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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2136 OF 2011 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL.) NO. 7953 OF 2011

UMMU SABEENA ... APPELLANT VERSUS

STATE OF KERALA & ORS. ... RESPONDENTS WITH

CRIMINAL APPEAL NO. 2137 OF 2011 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL.) NO. 7964 OF 2011

SALIYAL BEEVI ... APPELLANT VERSUS

STATE OF KERALA & ORS. ... RESPONDENTS

CRIMINAL APPEAL NO. 2138 OF 2011 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL.) NO. 7983 OF 2011

SALUKAL BEEVI ... APPELLANT VERSUS

STATE OF KERALA & ORS. ... RESPONDENTS

CRIMINAL APPEAL NO. 2139 OF 2011 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL.) NO. 8176 OF 2011

M. PARIMALA ... APPELLANT VERSUS

STATE OF KERALA & ORS. ... RESPONDENTS

JUDGMENT

GANGULY, J.

1. Leave granted. 2. All these four appeals have been filed impugning

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an order dated 30th September, 2011 of the High Court of  

Kerala whereby the writ petitions filed for issuance of  

writs  of  Habeas  Corpus,  assailing  the  orders  of  

detention dated 26th February, 2011 passed under the  

provisions  of  Conservation  of  Foreign  Exchange  and  

prevention  of  Smuggling  Activities  Act,  1974  

(hereinafter  referred  to  as  'the  COFEPOSA')  were  

rejected by the High Court.

3. It is not in dispute that the facts in all the  

cases are the same. Common ground is that an order of  

detention under Section 3 of the COFEPOSA was served on  

all the detenus on 10th March, 2011 on whose behalf  

petitions  were  filed  before  the  High  Court  and  

therefore,  their  detention  under  the  COFEPOSA  

commenced  on  and  from  10th March,  2011.  In  these  

proceedings, we are not going into the merits of the  

grounds or the recitals thereof.

4. Before us,  the detention  of the  appellants has  

been assailed on the question that the representations  

filed on behalf of the detenus were not disposed of in  

accordance with the mandate of Article 22(5) of the  

Constitution.

5. The admitted facts are that representations were  

made by the detenus on the 30th March, 2011 and the same  

were  rejected  by  the  State  Government  on  8th April,  

2011.  But  the  Central  Government  took  time  till  6th

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June, 2011 to reject the same. This delay on the part  

of  the  Central  Government  in  the  rejection  of  the  

detention  representation  has  been  sought  to  be  

explained on the basis of an affidavit filed on behalf  

of the Central Government.

6. Our attention has been drawn to the said affidavit  

which  has  been  filed  by  one  A.K.  Sharma,  Under  

Secretary to the Government of India in the Ministry of  

Finance,  Department  of  Revenue,  Central  Economic  

Intelligence Bureau, COFEPOSA Section, New Delhi. The  

purported explanation has been given in para 3 of the  

said affidavit. A perusal of para 3 of the affidavit  

reveals that the representation dated 30th March, 2011  

was forwarded by the State Government of Kerala to the  

Central Government by their letter dated 16th April,  

2011 and the same was received in the COFEPOSA Unit of  

the  Ministry  of  Finance,  Department  of  Revenue,  New  

Delhi on 21st April, 2011. It has been observed that  

22nd April,  2011  to  24th April,  2011  were  holidays.  

Thereafter parawise comments on the representation were  

called  for  from  the  Additional  Director  General,  

Directorate of Revenue Intelligence and the detaining  

authority i.e. Government of Kerala on 25th April, 2011.  

The  comments  were  received  on  10th May,  2011.  The  

comments of the detaining authority were received on  

18th May, 2011. Then the COFEPOSA Section submitted the

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file along with all the relevant files and documents to  

the Deputy Secretary, COFEPOSA on 18th May, 2011 for  

examination. After detailed examination of the issues  

raised  in  the  representations  and  comments  of  the  

Sponsoring Authority and the detaining authority, the  

Deputy Secretary submitted the file with comprehensive  

note to the Joint Secretary, COFEPOSA on 3rd June, 2011.  

4th and  5th June,  2011  were  Saturday  and  Sunday  and  

ultimately,  the  said  representations  were  considered  

and rejected by the Central Government on 6th June, 2011  

as being devoid of merit.

7. Now the question is whether the aforesaid manner  

of consideration and rejection of representation by the  

Central  Government  is  in  accord  with  the  principles  

laid  down  by  this  Court  on  this  aspect  in  several  

cases?

8. It  is  clear  in  this  case  that  the  Central  

Government took about more than two months i.e. whole  

of  April  and  May  and  ultimately  rejected  the  

representations  only  on  6th June,  2011  whereas  

representations were made on 30th March, 2011.

9. Reference in this connection may be made to the  

Constitution Bench decision of this Court in the case  

of K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union  

of India & Ors., State of Karnataka & Ors. (1991) 1 SCC  

476. The unanimous Constitution Bench, speaking through

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Justice  K.  Jagannatha  Shetty,  after  noting  the  

Constitutional provisions under sub-clauses (4) and (5)  

of Article 22, was pleased to hold that neither under  

the  Constitution  nor  under  the  relevant  statutory  

provision,  any  time  limit  has  been  fixed  for  

consideration of representation made by a detenu. The  

time limit, according to the Constitution Bench, has  

been deliberately kept elastic. But the Constitution  

Bench laid emphasis on the expression 'as soon as may  

be' in sub-clause (5) of Article 22 and held that the  

said expression sufficiently makes clear the concern of  

the framers of the Constitution that the representation  

should be very expeditiously considered and disposed of  

with  a  sense  of  urgency  and  without  any  avoidable  

delay.

10. Considering  the  aforesaid  provision,  the  

Constitution Bench held that “there should not be any  

supine indifference, slackness or callous attitude in  

considering the representation. Any unexplained delay  

in the disposal of representation would be a breach of  

the constitutional imperative and it would render the  

continued detention impermissible and illegal”.

11. In support  of the  said conclusion,  the learned  

Judges  of  the  Constitution  Bench  relied  on  various  

other judgments mentioned in Para 12 at page 484 of the  

report.

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12. In a subsequent judgment in the case of Rajammal  

Vs. State of T.N. & Anr.  (1999) 1 SCC 417,  a three  

Judge Bench of this Court, relying on the ratio of the  

Constitution  Bench  decision  in  Abdulla  Kunhi,  

reiterated the same principles. From Para 9 at page 421  

of the report, it would appear that in the case of  

Rajammal,  the  concerned  Minister,  while  on  tour,  

received  the file after 9.2.1998 and then passed the  

order on 14.2.1998. No explanation was offered for this  

delay of about five days. This Court held that such  

delay has vitiated further detention of the detenu [see  

para 11 at page 422].

13. In another subsequent judgment of this Court in  

the  case  of  Kundanbhai  Dulabhai  Shaikh  Vs.  Distt.  

Magistrate, Ahmedabad & Ors.,  (1996) 3 SCC 194,  this  

Court while reiterating the aforesaid principles, found  

that  representation  was  received  by  the  Central  

Government on 21st September, 1995 and then comments  

were called for from the State Government and the same  

were received by the Central Government on 18th October,  

1995  and  the  representation  was  rejected  on  19th  

October,  1995.  This  Court  held  in  para  22  of  the  

judgment at page 204 that the internal movement of the  

file thus took four days and this Court found that this  

inaction in taking up the representation for six days  

is unexplained and the mere ground was that there were

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forty or fifty representations pending for disposal is  

not a valid justification. This Court found that such  

delay voids the continued detention of the detenus and  

the detention order was quashed.

14. Going by the aforesaid precedents, as we must, we  

hold  that  the  procedural  safeguards  given  for  

protection  of  personal  liberty  must  be  strictly  

followed. The history of personal liberty, as is well  

known,  is  a  history  of  insistence  on  procedural  

safeguards.

15. Following the said principle, we find that delay  

in these cases is for a much longer period and there is  

hardly  any  explanation.  We,  therefore,  have  no  

hesitation in quashing the orders of detention on the  

ground of delay on the part of the Central Government  

in disposing of the representation of the detenus.

16. Learned counsel for the respondents has however  

urged that he is not disputing the principles laid down  

by  this  Court  in  the  aforesaid  judgments  but  he  

submitted that in the instant case, the Habeas Corpus  

petition filed before the High Court was not to quash  

the detention on the ground of delay and inasmuch as it  

could not have been so prayed for as the writ petition  

was filed prior to the rejection of the representation  

by the detenus.

17. Learned counsel  for the  Union of  India further

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argued that the question of delay has not been urged  

before the High Court.

18. Taking up the second objection first, we find that  

the question of delay was urged before the High Court  

as  it  appears  from  Pages  6  and  7  of  the  impugned  

judgment.  But,  insofar  as  the  question  of  technical  

plea which has been raised by the learned counsel on  

the question of prayer in the Habeas Corpus petition is  

concerned,  we  are  constrained  to  observe  that  in  

dealing  with  writs  of  Habeas  Corpus,  such  technical  

objections cannot be entertained by this Court.

19. Reference in this connection may be made to the  

Law of Habeas Corpus by James A. Scott and Charles C.  

Roe  of  the  Chicago  Bar  [T.H.  Flood  &  Company,  

Publishers, Chicago, Illinois, 1923] where the learned  

authors have dealt with this aspect in a manner which  

we should reproduce as we are of the view that the same  

is the correct position in law:

“A writ of habeas corpus is a writ of right  of very ancient origin, and the preservation  of its benefit is a matter of the highest  importance  to  the  people,  and  the  regulations  provided  for  its  employment  against  an  alleged  unlawful  restraint  are  not  to  be  construed  or  applied  with  overtechnical nicety, and when ambiguous or  doubtful should be interpreted liberally to  promote the effectiveness of the proceeding.  [Ware v. Sanders, 146 Iowa, 233, 124 N.W.  958]”.

20. In this connection, if we may say so, the writ of  

Habeas Corpus is the oldest writ evolved by the Common

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Law  of  England  to  protect  the  individual  liberty  

against its invasion in the hands of the Executive or  

may be also at the instance of private persons. This  

principle of Habeas Corpus has been incorporated in  

our Constitutional law and we are of the opinion that  

in  a  democratic  republic  like  India  where  Judges  

function under a written Constitution and which has a  

chapter on Fundamental Rights, to protect individual  

liberty,  the  Judges  owe  a  duty  to  safeguard  the  

liberty  not  only  of  the  citizens  but  also  of  all  

persons  within  the  territory  of  India.  The  most  

effective way of doing the same is by way of exercise  

of power by the Court by issuing a writ of Habeas  

Corpus.

21. This facet of the writ of  Habeas Corpus makes it  

a writ of the highest Constitutional importance being  

a remedy available to the lowliest citizen against the  

most  powerful  authority  [see  Halsbury,  Laws  of  

England, Fourth Edition, Volume 11, para 1454].

22. That is why it has been said that the writ of  

Habeas  Corpus  is  the  key  that  unlocks  the  door  to  

freedom  [see  The  Common  Law  in  India-1960  by  M.C.  

Setalvad, page 38].

23. Following the aforesaid time-honoured principles,  

we make it very clear that if we uphold such technical  

objection in this proceeding and send the matter back

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to the High Court for reagitation of this question,  

the same would deprive the detenus of their precious  

liberty, which we find, has been invaded in view of  

the manner in which their representations were unduly  

kept  pending.  We,  therefore,  overrule  the  aforesaid  

technical objection and allow these appeals.

24. We  direct  that  the  detenus  should  be  set  at  

liberty  forthwith  unless  they  are  required  to  be  

detained in connection with any other case.

25. The appeals are accordingly allowed.

......................J. (ASOK KUMAR GANGULY)

......................J. (JAGDISH SINGH KHEHAR)

New Delhi, 17-11-2011