UOI Vs SALEENA
Bench: DIPAK MISRA,PRAFULLA C. PANT
Case number: Crl.A. No.-001251-001251 / 2015
Diary number: 19058 / 2014
Advocates: B. KRISHNA PRASAD Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1251 OF 2015 (@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 5890 OF 2014)
Union of India & Ors. ... Appellant(s)
Versus
Saleena ...Respondent(s)
J U D G M E N T
Dipak Misra, J.
Calling in question the defensibility of the judgment
and order dated 24.10.2015 passed by the High Court of
Kerala by which the Division Bench has quashed the order
of detention passed against Abdu Rahiman (detenu), the
husband of the respondent, under Section 3(1) of the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (for brevity, ‘the COFEPOSA
Act’), the instant appeal, by special leave, has been
preferred.
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2. Shorn of unnecessary details, the facts which are
essential to be stated for adjudication of this appeal are that
an order of detention was issued on 08.02.2013 under
Section 3(1) of the COFEPOSA Act. The said order, as the
facts would uncurtain, came into existence on the basis of
proposal of the Sponsoring Authority (Directorate of
Enforcement) and the Empowered Officer of the Central
Government (the Detaining Authority). The grounds of
detention were communicated to the detenu vide
communication dated 08.02.2013. By the said
communication in compliance with Article 22(5) of the
Constitution and Section 3(3) of the COFEPOSA Act, the
detenu was informed of his right to make a representation
against his detention to the Detaining Authority. Be it
stated, pursuant to the order of detention, the detenu was
detained on 25.02.2013 and lodged in the Central Prison,
Thiruvananthapuram.
3. The detenu made a representation on 11.04.2013
which was received on 18.04.2013 by the Jail
Superintendent which was forwarded to the competent
authority and thereafter the Special Secretary-cum-Director
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General, Central Economic Intelligence Bureau, Ministry of
Finance, Department of Revenue, rejected the
representation on behalf of the Central Government on
26.04.2013 after due consideration. The order of rejection
was communicated to the detenu vide memorandum dated
29.04.2013 by the Under Secretary, Government of India.
Keeping in view the prescription enshrined under Section
8(1) of the COFEPOSA Act, reference was made to the
Advisory Board and the detenu was heard by the Advisory
Board on 04.05.2013, and thereafter vide order dated
21.05.2013, he was informed that the Advisory Board was of
the opinion that sufficient reasons existed for his detention.
On the basis of the opinion of the Advisory Board, the
Central Government confirmed the order of detention and
directed that the detention of the detenu would remain in
force for a period of one year commencing from the date of
his detention.
4. Aggrieved by the aforesaid order, the wife of the detenu
filed Writ Petition (Criminal) No. 406 of 2013 before the High
Court seeking a writ of habeas corpus. It was urged before
the High Court that the decision of the competent authority
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was not communicated to the detenu; that there was
inordinate and unexplained delay in passing the order of
detention; that the report submitted by the sponsoring
authority was not served on the detenu; that there was
delay in considering his representation; that the translated
copy of the order of detention was not served on him; that
he was not served the order rejecting his representation;
and that the order of rejection passed by the competent
authority indicating the reasons was not communicated to
the detenu.
5. Counter affidavit was filed by the respondents putting
forth the stand that before rejecting the representation of
the detenu, the requisite process was adhered to, and in
support of the same it was asserted that after receipt of the
representation of the detenu from the Jail Superintendent
by the Deputy Director, Calicut, the same was sent to the
Ministry with para-wise comments on 25.4.2013. On
26.4.2013, after examining the issue raised in the
representation, the Under Secretary put up the file before
the Joint Secretary who is the Competent Authority under
Section 3(1) of the COFEPOSA Act. The said Authority
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recorded its comments and submitted the file to the Special
Secretary and Director General, Central Economic
Intelligence Bureau for consideration, who vide order dated
26.4.2013 rejected the same.
6. The High Court noting the submissions of the learned
counsel for the parties adverted to the decisions in Devji
Vallabhbhai Tandel v. The Administrator of Goa,
Daman and Diu and Anr.1, Lekha Nandakumar v.
Government of India2, A.C. Razia v. Government of
Kerala and others3, Saliyal Beevi and others v. State
of Kerala and others4 and some other authorities and
eventually came to hold as follows:-
“As we have already stated, a detenu, who makes a representation availing of his constitutional rights under Article 22(5) of the Constitution of India is entitled to have proper consideration of his representation and that process of consideration is completed, only when a decision on his representation is also communicated to him. That constitutional requirement will not be satisfied if an authority subordinate to the competent authority informs the detenu that his representation is rejected. Admittedly, in this case, the decision of the competent authority was not communicated to the detenu and on the other hand, the only communication that was
1 AIR 1982 SC 1029 2 2004 (2) KLT 1094 3 AIR 2004 SC 2504 4 2011 (4) KHC 422
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issued to the detenu is that of the Under Secretary to the Government of India, where, it was laconically stated that his representation is rejected. In our view, this is a case where the right of the detenu under Article 22(5) of the Constitution of India is violated and the issue canvassed by the petitioner is fully covered in her favour by the principles laid down by the Division Bench of this Court in Lekha Nandakumar’s case (supra).”
Be it stated, all other grounds urged before the High
Court did not find favour and were regarded as
unacceptable. Thus, the only ground that impressed the
High Court is the one that is mentioned in the aforequoted
passage.
7. Criticizing the aforesaid analysis and the ultimate view
expressed by the High Court, Mr. N.K. Kaul, learned
Additional Solicitor General appearing for the Union of India
has submitted that the High Court has fallen into error by
opining that in the obtaining factual matrix, Article 22(5) of
the Constitution of India has been violated. It is urged by
him that the decision of the Division Bench of the High
Court in Lekha Nandakumar (supra) had already been
diluted in Babu v. State of Kerala5, but the High Court by
5 2010 (1) KLT 230
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the impugned order placed reliance on the earlier view. It is
his further submission that the detenu has no vested right
neither under Article 22(5) of the Constitution nor under
Section 3(1) and (3) of the COFEPOSA Act to assert that
unless the order rejecting the representation itself is
communicated there is a procedural irregularity which
invalidates the detention. It has been further canvassed by
him that there has been no abuse of discretion but on the
contrary a complete application of mind, for all relevant
materials have been taken into consideration which is
reflective from the file and in such a situation, the order of
detention is not vulnerable in law. Elaborating further, it is
put forth by him that once a subjective satisfaction has
been arrived at on consideration of the relevant materials
placed before the detaining authority by the sponsoring
authority, the order is absolutely legally sustainable and
there was no warrant for any interference by the High
Court. It is argued by him that the High Court has been
wholly misguided by the aspect that the order rejecting the
representation was not communicated by the detaining
authority, for there is no requirement in law that it has to
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be communicated by the said authority. Emphasis has to
be on the satisfaction of the competent authority which is
demonstrable from the file and that would suffice the legal
requirement. To bolster the aforesaid submissions, Mr.
Kaul has placed reliance on Haradhan Saha v. State of
West Bengal6, Ashok Narain v. Union of India7, Gurdev
Singh v. Union of India8 and Ujagar Singh v. State of
Punjab9.
8. Mr. R. Basant, learned senior counsel appearing for
the respondent, per contra, would contend that right to
represent as provided under Article 22(5) includes the right
to fair and proper consideration and the said position in law
has been settled by the Constitution Bench in K.M. Abdulla
Kunhi v. Union of India10. It is urged by him that the right
for proper consideration, has been taken a step forward by
the High Court of Kerala in Lekha Nandakumar (supra) by
holding that detenu has a right to be communicated the
order rejecting his representation and the non-compliance
explicitly shows non- application of mind. It is put forth by
6 (1975) 3 SCC 198 7 (1982) 2 SCC 437 8 (2002) 1 SCC 545 9 1952 SCR 756 10 (1991) 1 SCC 476
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the learned senior counsel that when the order passed
rejecting the representation is communicated, the detenu
would have been apprised of the fact that there had been a
consideration of his representation in a fair and impartial
manner indicating application of mind, but when the
communication, as the fact situation in the present case
would show, is fundamentally a non-communication to
sustain an order of such nature, would be contrary to high
values relating to life, freedom and liberty, inasmuch as
such procedural violation vitiates the order of detention.
Learned senior counsel would argue with vehemence that
the order must be self-evident that the representation has
been considered in an impartial and dispassionate manner
and, therefore, the communication of the order passed by
the competent authority is imperative, for it would clearly
convey that there has been real and proper consideration.
Lastly it is propounded by Mr. Basant that if this Court
would be inclined to set aside the judgment of the High
Court, it may not send back the accused to undergo the
remaining period of detention as there exists no proximate
temporal nexus between the period of detention and today.
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That apart, submits the learned senior counsel, nothing has
been brought on record to indicate the desirability of further
or continued detention. In support of the order of the High
Court, learned senior counsel has placed reliance on
Haradhan Saha (supra), Lekha Nandakumar (supra),
K.M. Abdulla Kunhi (supra) and Bhut Nath Mete v. State
of West Bengal11 and for the second limb of submission, he
has drawn inspiration from Sunil Fulchand Shah v.
Union of India12, State of Tamil Nadu v. Kethiyan
Perumal13, State of Tamil Nadu v. Alagar14 and
Chandrakant Baddi v. ADM & Police Commr15.
9. When the matter was taken up for hearing on
12.3.2015, Mr. Basant, learned senior counsel appearing
for the respondent had pleaded for sustenance of the order
impugned on the foundation of the principles stated in
Haradhan Saha (supra) and Lekha Nandakumar (supra).
His singular submission was that unless the order itself is
communicated, there is a procedural illegality which
11 (1974) 1 SCC 645 12 (2000) 3 SCC 409 13 (2004) 8 SCC 780 14 (2006) 7 SCC 540 15 (2008) 17 SCC 290
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invalidates the detention. When the matter was taken up
on 26.3.2015, the following order came to be passed:-
“Mr. Neeraj Kishan Kaul, learned Additional Solicitor General commended us to the Division Bench decision of the Kerala High Court in Babu Vs. State of Kerala [(2010) (1) KLT 230] wherein paragraph 13 it has been held thus:
“Of course a reading of the portions emphasized above in the passage might suggest that communication by another of the order passed by the authority may not be sufficient. The portions emphasized above might create confusion as to whether that is the law. But we find it difficult to accept such understanding of the law based on the above observations. The order passed by the authority may be extracted in extensor or completely by a subordinate officer and that may be communicated to the detenu. In such a case it cannot possibly be contended that there is no communication for the reason that the order was not communicated by the authority which passed the order or that the order as such has not been communicated. The observations extracted above understood properly in the context, according to us, can only means and insist that the order must be communicated effectively and not that the order as such must be communicated or that the authority which passed the order must himself communicate the order.”
Mr. Basant, learned senior counsel, explaining the aforesaid judgment, submitted that effective communication of the order would tantamount to substantial compliance and in the said case the order passed by the competent authority was extracted. Mr. Kaul, learned Additional Solicitor
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General, submitted that the order need not be a speaking one and what is to be seen is that there is recording of subjective satisfaction by the competent authority. The communication by the lower authority putting the order in indirect speech would not affect the order of detention. In addition, he would submit that the court can, for its own satisfaction, peruse the record to find out whether procedural safeguards have been taken care of or not.”
10. The purpose of referring to the aforesaid order is that
the sole contention raised in the case, whether non-
communication of the order rejecting the representation in
an effective manner would invalidate or vitiate the order of
detention. To appreciate the said submission, we had
permitted the learned Additional Solicitor General to
produce the file for our perusal.
11. We have already stated about the date of detention,
date of submission of representation and rejection of
representation. There is no dispute that the order of
rejecting the representation has been communicated by the
Under Secretary on 29.4.2013. The said order reads as
follows:-
“With reference to his representation dated 11.04.2013 (in regional language) received through the Jail Superintendent, Central Prison, Thiruvananthapuram on 18.04.2013 in the
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Ministry, Shri Abdu Rahiman @ Atheeq, a COFEPOSA detenu is hereby informed that the aforesaid representation has been carefully considered by the Special Secretary & Director General, Central Economic Intelligence Bureau, Ministry of Finance, Department of Revenue, New Delhi on behalf of the Central Government, but it is regretted that the same has been rejected.”
12. The gravamen of the submission is whether
non-communication of the order by the competent authority
or absence of an effective communication would vitiate the
order of detention. To appreciate the controversy in proper
perspective, we may refer to Article 22(5) of the Constitution
which reads as follows:-
“When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”
13. Section 3 of the COFEPOSA Act reads as follows:-
“Section 3. Power to make orders detaining certain persons.- (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of the State Government, not below the rank of a Secretary to
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that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from-
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping smuggled goods, or
(iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods,
it is necessary so to do, make an order directing that such person be detained:
Provided that no order of detention shall be made on any of the grounds specified in this sub- section on which an order of detention may be made under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 or under section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (J&K Ordinance 1 of 1988).
(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.
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(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.”
14. We shall analyse what the Division Bench of the High
Court of Kerala in Lekha Nandakumar (supra) has laid
down in the backdrop of the constitutional mandate, the
statutory command and the view expressed by this Court.
In the said case the Division Bench stated that it was not
considering the correctness of application of mind
pertaining to the satisfaction of the authority or merits of
the case, but addressing to the aspect whether
constitutional safeguards prescribed by law were complied
with or not. It noted the four contentions raised by the
petitioner therein. One of the contention was that the
representation was not properly disposed of by the
appropriate authority and it was not sent to him by the
competent authority but the rejection order was
communicated by another authority without stating any
reason. The High Court referred to the nature of
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allegations, the protection granted under Article 22(5) of the
Constitution and Section 11 of the COFEPOSA Act, the duty
of the authority who deals with the representation, took
note of the fact that the representation addressed to the
Secretary was considered by the Joint Secretary and in that
context proceeded to state as follows:-
“Even though various contentions including non- supply of necessary documents etc. were mentioned in the representation, there is no application of mind by the Secretary to Government. The Secretary has just rejected the representation. It does not show that he has applied his mind. When the Authority disposes a representation, which is a constitutional right of the detenu, it cannot be disposed of like this in a casual manner. Further, the Secretary has not communicated his order to the detenu, but only the Under Secretary has communicated the order. It is true that even though making of representation is a constitutional right, there is no obligation for the Central Government to grant a hearing. It is also not necessary that an elaborate speaking order should be passed. But from the order it should appear that the authority has applied its mind while disposing of the representation. The order should be sent to the detenu. Here the order passed by the Secretary was not sent to the detenu, but only the factum of rejection of his representation was intimated by the Under Secretary keeping the detenu in dark regarding the way in which his representation was disposed of. There is nothing on record to show that the concerned authority has applied its mind. Even if the Under Secretary informed him that Secretary has disposed of his
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representation, this is not the way a constitutional obligation is to be discharged by the Government Secretary. Therefore, there is no proper disposal of the representation. We are of the view that on this ground alone the detention order will not stand as there is procedural violation.”
[underlining is by us]
15. In Babu (supra), a subsequent Division Bench posed
the question which reads as follows:-
“Does the communication by anyone other than the authority passing the order of the fate of the representation made by the detenu (and not the order as such) infringe such fundamental right of the detenu?”
16. Dealing with the said issue, the Court opined that the
order must be communicated effectively and not that the
order as such must be communicated or that the authority
which passed the order must himself communicate the
order. Thereafter, the Division Bench proceeded to lay down
the principle relating to effective communication and in that
regard came to hold as follows:-
“… The order passed by the authority may be extracted in extenso or completely by a subordinate officer and that may be communicated to the detenu. In such a case it cannot possibly be contended that there is no communication for the reason that the order was
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not communicated by the authority which passed the order or that the order as such has not been communicated. The observations extracted above understood properly in the context, according to us, can only mean and insist that the order must be communicated effectively and not that the order as such must be communicated or that the authority which passed the order must himself communicate the order.”
17. Thus, the decision in Lekha Nandakumar (supra)
lays down that there has to be a communication by the
competent authority failing which the order of detention is
invalid. The second Division Bench explains the first one
and goes by the concept of “effective communication”. It
states that the order passed by the competent authority
should be properly extracted in the order of communication
and it must indicate subjective satisfaction. The question is
whether the principles stated in both the decisions are
correct or to put it differently, whether non-communication
of the order by the competent authority or for that matter
non-extraction of the order of the competent authority by
the communicating authority would straightaway invalidate
the order of detention. In this regard, we may usefully refer
to the authority in Haradhan Saha (supra). In the said
case, the Constitution Bench was dealing with the
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constitutional validity of the Maintenance of Internal
Security Act, 1971. While dealing with the consideration of
representation, the larger Bench opined thus:-
“24. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire material. The Board can also call for more materials. The Board may call the detenu at his request. The constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. The constitution of the Board observes the fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenu all the rights which are guaranteed by Article 22(5). The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers whether in the light of the representation there is sufficient cause for detention.
xxxxx xxxxx
26. The opinion of the Board as well as the order of the Government rejecting the representation of the detenu must be after proper consideration. There need not be a speaking order. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government and the Advisory Board.”
[Emphasis added]
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The Court elucidating the said aspect in the backdrop
of natural justice expressed thus:-
“30. Elaborate rules of natural justice are excluded either expressly or by necessary implication where procedural provisions are made in the statute or where disclosure of relevant information to an interested party would be contrary to the public interest. If a statutory provision excludes the application of any or all the principles of natural justice then the court does not completely ignore the mandate of the legislature. The court notices the distinction between the duty to act fairly and a duty to act judicially in accordance with natural justice. The detaining authority is under a duty to give fair consideration to the representation made by the detenu but it is not under a duty to disclose to the detenu any evidence or information. The duty to act fairly is discharged even if there is not an oral hearing. Fairness denotes abstention from abuse of discretion.
31. Article 22 which provides for preventive detention lays down substantive limitations as well as procedural safeguards. The principles of natural justice insofar as they are compatible with detention laws find place in Article 22 itself and also in the Act. Even if Article 19 be examined in regard to preventive detention, it does not increase the content of reasonableness required to be observed in respect of orders of preventive detention. The procedure in the Act provides for fair consideration to the representation. Whether in a particular case, a detenu has not been afforded an opportunity of making a representation or whether the detaining authority is abusing the powers of detention can be brought before the court of law.”
[Emphasis supplied]
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18. From the aforesaid authority, it is clear as day that
while rejecting the representation, a speaking order need
not be passed and what is necessary is that there should be
real and proper consideration by the Government and the
Advisory Board. The Constitution Bench has limited the
application of principles of natural justice to the sphere of
deliberation. It has confined it to real and proper
consideration; application of mind. Dealing with the
concept of fairness, it has been observed that fairness
denotes abstention from abuse of discretion.
Understanding the said principle correctly, it can be said
that the use of discretion has to be based on fairness of
approach. The authority concerned may not give reasons
but there has to be application of mind. Mr. Kaul, learned
Additional Solicitor General would submit that even if the
order itself does not indicate application of mind by the
competent authority or it has been communicated by
another authority not indicating the approach of the
competent authority the Court has ample power to call for
the file and satisfy itself. In this regard, he has drawn our
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attention to the view expressed by this Court in Ashok
Narain (supra). In the said case, one Santosh Kumar Jain
was engaged in illegal foreign exchange operations and he
apprehended by the Enforcement Directorate of the Ministry
of Finance. On the basis of certain materials, he was
arrested under Section 35 of the Foreign Exchange
Regulation Act and remanded to judicial custody and
thereafter he was released on bail. After he was enlarged on
bail, an order of detention was passed under COFEPOSA
Act. The said detention was challenged under Article 32 of
the Constitution before this Court, and it was contended
before this Court that the failure to launch the prosecution,
taken along with the circumstance, that a long time was
allowed to lapse before the order of detention was made,
was sufficient to expose the hollowness of the claim that the
order was made with a view to prevent the detenu from
acting in any manner prejudicial to the augmentation of
foreign exchange. To appreciate the said submission, the
Court called for the original file and upon perusal of the file
held thus:-
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“In order to satisfy ourselves that there was no undue or unnecessary delay in making the order of detention, we sent for the original files and we have perused them. We are satisfied that the matter was examined thoroughly at various levels and the detaining authority applied his mind fully and satisfactorily to the question whether the petitioner should be detained under the COFEPOSA. The passage of time from the date of initial apprehension of the detenu and the making of the order of detention was not occasioned by any laxity on the part of the agencies concerned, but was the result of a full and detailed consideration of the facts and circumstances of the case by the various departments involved. We find from the file that the very question whether the passage of time had made it unnecessary to order the detention of the detenu was also considered by the detaining authority. We are unable to hold in the circumstances of this case that there was any tardiness on the part of any one or that the detention is in any manner illegal.”
19. In this regard, we may profitably refer to the decision
in Gurdev Singh (supra). In the said case, it was
contended by the appellant therein that the order of
detention was vitiated because of non-consideration of
relevant materials by the detaining authority. The Court
referred to the decisions in A. Sowkath Ali v. Union of
India16, Ahamed Nassar v. State of T.N.17, Sanjay
Kumar Aggarwal v. Union of India18 and Ashadevi v. K. 16 (2000) 7 SCC 148 17 (1999) 8SCC 473 18 (1990) 3 SCC 309
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Shivraj, Addl. Chief Secretary to the Govt. of Gujarat19
and came to rule thus:-
“Testing the case at hand on the touchstone of the principles laid down in the decisions noted above, we find that the subjective satisfaction arrived at by the detaining authority in the case is based on consideration of all the relevant materials placed before it by the sponsoring authority. It is not the case of the appellant that the sponsoring authority did not place before the detaining authority any material in its possession which is relevant and material for the purpose and such material, if considered by the detaining authority, might have resulted in taking a different view in the matter. All that is contended on behalf of the detenu is that the detaining authority should have taken further steps before being satisfied that a case for detention under the COFEPOSA Act has been made out against the detenu. Whether the detention order suffers from non-application of mind by the detaining authority is not a matter to be examined according to any straitjacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collected in support of such allegations, the propensity and potentiality of the detenu in indulging in such activities etc. The Act does not lay down any set parameters for arriving at the subjective satisfaction by the detaining authority. Keeping in view the purpose for which the enactment is made and the purpose it is intended to achieve, Parliament in its wisdom, has not laid down any set standards for the detaining authority to decide whether an order of detention should be passed against a person. The matter is
19 (1979) 1 SCC 222
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left to the subjective satisfaction of the competent authority.”
20. Be it stated, Mr. Kaul, learned Additional Solicitor
General, relying on the said passage has urged that where
after communicating detailed grounds of the detention order
and upon receipt of the representation from the detenu, the
same has been properly considered, mere non-supply of the
original order of rejection of the detenu’s representation
would not vitiate the detention order itself and it can never
be a ground for interference in the order of detention by the
High Court under Article 226 of the Constitution.
21. Resisting the said submission, it is propounded by Mr.
Basant that incorporation of the extract of the order passed
by the competent authority where another authority
communicates the order is a constitutional safeguard as
envisaged under Article 22(5) of the Constitution. In Babu
(supra), the Division Bench of the High Court, while dealing
with the deprivation of right to life and liberty of the
citizens, held that it is obligatory on the competent
authority to make aware the reasoning of the decision to the
detenu and intimation in laconic style has to be avoided.
That apart, the authority must not be prisoner of the notes
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submitted by the subordinate, for it is its duty to consider
the representation in proper perspective. Emphasis has
been laid on individual freedom and liberty especially in
preventive detention where it gets vitiated only when there is
violation of procedural safeguards. To arrive at the said
conclusion, heavy reliance has been placed on Article 22(5)
of the Constitution. The said decision, as we notice, has
engrafted the principle that unless the extract of the original
order is communicated, the detention is vitiated, as there is
a violation of the constitutional safeguard. We may hasten
to state that Babu (supra) clarifies the proposition of law
laid down in Lekha Nandakumar (supra) but the base of
both the decisions is that unless the detenu is made aware
of the order passed by the competent authority, the said
order is bound to suffer from legal impropriety. It has been
laid down in Haradhan Saha (supra) that there may not be
a speaking order but application of mind. In Gurdev
Singh (supra), this Court had made it clear that whether
the detention orders suffer from non-application of mind by
the detaining authority is not a matter to be examined
according to any straitjacket formula or set principles and it
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would depend on the facts and circumstances of the case.
Therefore, the stress is on the application of mind.
Communication of grounds on which the order of detention
has been made cannot be equated with communication of
the order rejecting the representation. There is a
constitutional command to intimate the grounds on which
the order of detention has been made. There is a statutory
mandate that grounds of detention have to be
communicated within five days and delay upto fifteen days
is allowed, if reason is given in writing. There can be no
shadow of doubt that if reasons are not communicated
within the said time, the order of detention would be
vitiated. There can be no trace of doubt that in both the
stages there has to be application of mind which would be
in the realm of subjective satisfaction based on
consideration of all the relevant materials placed before the
competent authority. The satisfaction of the competent
authority regarding sufficiency of materials on which the
satisfaction is recorded is subjective in nature. In this
regard, it is seemly to reproduce the observations made by
this Court in Union of India v. Arvind Shergill20 :- 20 (2000) 7 SCC 601
Page 28
28
“The High Court has virtually decided the matter as if it was sitting in appeal on the order passed by the detaining authority. The action by way of preventive detention is largely based on suspicion and the court is not an appropriate forum to investigate the question whether the circumstances of suspicion exist warranting the restraint on a person. The language of Section 3 clearly indicates that the responsibility for making a detention order rests upon the detaining authority which alone is entrusted with the duty in that regard and it will be a serious derogation from that responsibility if the court substitutes its judgment for the satisfaction of that authority on an investigation undertaken regarding sufficiency of the materials on which such satisfaction was grounded. The court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent the detenu from engaging in smuggling activity. The said satisfaction is subjective in nature and such a satisfaction, if based on relevant grounds, cannot be stated to be invalid. The authorities concerned have to take note of the various facts including the fact that this was a solitary incident in the case of the detenu and that he had been granted bail earlier in respect of which the application for cancellation of the same was made but was rejected by the Court. In this case, there has been due application of mind by the authority concerned to that aspect of the matter as we have indicated in the course of narration of facts. Therefore, the view taken by the High Court in the circumstances of the case cannot be sustained.”
22. This being the position of law, when there is allegation
that there has been non-application of mind and the
Page 29
29
representation has been rejected in a laconic or mechanical
manner by the competent authority, we are disposed to
think, the Court can always call for the file and peruse the
notes and the proceedings whether there has been
application of mind by the competent authority or not. Our
said conclusion gets support from the decision in Ashok
Narain (supra). In the said case, this Court on perusal of
file has expressed its opinion that there had been no
tardiness on behalf of any one and, therefore, the detention
in no manner was illegal.
23. We are absolutely conscious that liberty of an
individual is sacred. The individual liberty has to be given
paramount importance. But such liberty can be controlled
by taking recourse to law. Preventive detention is
constitutionally permissible. The Courts can interfere where
such detention has taken place in violation of constitutional
or statutory safeguards. Treating the issue of
communication of rejection of the representation by the
competent authority or incorporation of the order passed by
the competent authority in the order of communication as a
constitutional safeguard, would not be correct. The duty of
Page 30
30
the Court in this regard is to see whether the representation
submitted by the detenu has been rejected in a mechanical
manner without application of mind. We are inclined to
hold that for the said purpose, the relevant file can be called
for and perused and, accordingly, keeping that in view, in
the course of hearing, we had asked for production of the
file and the same had been produced.
24. On a perusal of the file, we find that after receipt of the
representation, the Under Secretary, COFEPOSA, had
narrated the grounds of detention and the file pertaining to
the detention was also placed on record. Parawise
comments of the sponsoring authority, that is, the
Directorate of Enforcement, Kochi has been obtained.
Various contentions have been raised in the representation
that the detenu had studied only upto 10th standard in the
Malayalam medium school of his native place and though
he can write and read certain English words, he does not
have enough knowledge to understand the meaning of the
English words and sentences. In the comment, it has been
mentioned that free Malayalam translation of the grounds of
detention and relied upon documents had been supplied to
Page 31
31
the detenu to make him aware of the grounds and reasons
for his detention under the COFEPOSA Act and, therefore,
the ground had no relevance. As indicated earlier, such a
ground was raised before the High Court and not found
favour. It was also urged in the representation that he was
unable to understand the documents which were furnished
to him in Malayalam as they were not legible. It has been
commented that the relevant writings were very much
legible and photocopies of the FIR and Search List were
furnished to the detenu. A further ground was urged that
he was not supplied the reasons of his detention and the
documents were not supplied within five days or maximum
within fifteen days. As has been stated in the comment, he
was supplied the documents in the language known to him,
that is, Malayalam within the statutory period and
acknowledgement was obtained from him. All the
assertions made in the representation were commented by
the Under Secretary and every aspect has been stated in
detail. The competent authority has passed the following
order:-
“I have gone through the representation. I do not find sufficient ground for exercising powers under
Page 32
32
Section 11 of the COFEPOSA Act. The representation is rejected.”
25. The order that has been communicated to him by the
Under Secretary indicates that the representation submitted
by the detenu had been carefully considered by the
competent authority.
26. We have already referred to the Constitution Bench
decision in Haradhan Saha (supra) in the context of duty
of the Government while considering the representation;
and the power of the Advisory Board. It has been clearly
stated that the Government considers the representation to
ascertain whether the order has been made within power
under the law and the Board, on the other hand, considers
whether in the light of the representation, there is sufficient
cause for detention. The Court has expressed the view that
the order of the Government rejecting the representation of
the detenu should show real and proper consideration by
the Government. The ratio of the said authority has to be
appositely understood. The competent authority while
considering the representation is not required to pass a
speaking order but it must reflect that there has been real
and proper consideration of the representation. It is, as has
Page 33
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been held in Gurdev Singh (supra), a subjective
satisfaction. But the subjective satisfaction must show that
the authority had the opportunity to peruse the material
obtained against the detenu. To elucidate, the material
documents are to be produced before the competent
authority who has the competence to deal with the
representation. On a scrutiny of the file, we find that the
entire file relating to the detention was produced before the
competent authority alongwith detailed comments. The said
authority has clearly stated that he has gone through the
representation and does not find any sufficient ground to
exercise the jurisdiction under the COFEPOSA Act. In our
considered opinion, this would tantamount to real and
proper consideration, for the competent authority is not
required to pass an adjudicatory order. The High Court of
Kerala in Lekha Nandakumar (supra) lays down that the
order passed by the competent authority has to be
communicated to the detenu and the decision in Babu
(supra) clarifies that the order passed by the authority may
be extracted in extenso or completely by a subordinate
officer and that may be communicated to the detenu. Thus,
Page 34
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in Babu (supra), the emphasis is on the effective
communication.
27. Mr. Kaul, learned Additional Solicitor General, has
submitted that the both the decisions have not laid down
the correct principles of law and further the factual score in
Babu (supra) is quite different.
28. At this juncture, it would be quite pertinent to refer to
the authority in John Martin v. State of West Bengal21,
wherein a three-Judge Bench dealt with the rejection of
representation of the petitioner therein against the order of
detention and in that context, opined that appropriate
Government cannot reject the representation of the detenu
in a casual and mechanical manner and it must bring to
bear on the consideration of the representation an unbiased
mind. The Court referred to Haradhan Saha (supra)
wherein it has been stated that there has to be “a real and
proper consideration” of the representation by the
appropriate Government and thereafter proceeded to opine
thus:-
“We cannot over-emphasise the need for the closest and most zealous scrutiny of the representation for the purpose of deciding
21 (1975) 3 SCC 836
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whether the detention of the petitioner is justified.”
29. A contention was raised in the said case that the order
passed by the State Government rejecting the
representation of the detenu should be a reasoned order.
The three-Judge Bench on consideration of the principles
laid down in Haradhan Saha (supra), quoted a passage
therefrom and observed as follows:-
“These observations must give a quietus to the contention that the order of the State Government must be a reasoned order. It is true that in Bhut Nath Mete v. State of W.B.22 Krishna Iyer, J., speaking on behalf of a Division Bench of this Court observed that: [SCC p. 659 para 23, SCC (CRI) p. 314]
“It must be self-evident from the order that the substance of the charge and the essential answers in the representation have been impartially considered”,
but if we read the judgment as a whole there can be no doubt that these observations were not meant to lay down a legal requirement that the order of the State Government must be a speaking order but they were intended to convey an admonition to the State Government that it would be eminently desirable if the order disclosed that “the substance of the charge and the essential answers in the representation” had been impartially considered. The learned Judge in fact started the discussion of this point by stating: [SCC p. 659 para 23, SCC (CRI) p. 314]
22 (1974) 1 SCC 645
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“We are not persuaded that a speaking order should be passed by the Government or by the Advisory Board while approving or advising continuance of detention;”
In any event, the decision in Haradhan Saha case being a decision rendered by a Bench of five judges must prevail with us. We, therefore, reject the present contention of the petitioner.”
30. From the aforesaid analysis, it is quite limpid that
whatever has been stated in Bhut Nath Mete (supra) has
been explained in John Martin (supra) and it has reiterated
the principle that a speaking order need not be passed by
the government or by the Advisory Board. It has also been
explained that the observations made in Bhut Nath Mete
(supra) were not meant to lay down a legal requirement that
the order of the State Government must be a speaking
order. Reliance was placed on the Constitution Bench
decision in Haradhan Saha (supra) to lay down that Bhut
Nath Mete (supra) is not a binding precedent. The said
delineation makes it absolutely clear that the Court should
be guided by the principles stated in Haradhan Saha
(supra) and not by Bhut Nath Mete (supra). Thus the
principle behind “real and proper consideration” would only
mean as has been stated in John Martin (supra), the
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37
representation cannot be rejected in a casual and
mechanical manner. Overemphasis cannot be placed on
“real and proper consideration”. What has to be seen by the
competent authority is that the materials are placed before
him and such materials come within the purview of the
statute and it must show that there has been subjective
satisfaction. The word “satisfaction” need not be used while
rejecting the representation. To elaborate, the consideration
by the competent authority the government is to ascertain
essentially whether the order is in consonance with the
power conferred under the law and the allegations made
against the detenu come within the purview of the said law.
The real and proper consideration by the appropriate
government means the order of rejection should indicate
that there has been subjective satisfaction by the competent
authority to reject the representation. As has been held in
John Martin (supra), there cannot be zealous scrutiny of
the representation for the purpose of deciding whether the
detention of the petitioner is justified. In the said case,
analyzing the principle stated in Haradhan Saha (supra), it
has been reiterated that the order need not be a speaking
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order and non-speaking order does not amount to failure of
justice. The said controversy, as has been observed by the
three-Judge Bench, should be given a quietus. That being
the legal position, on a careful perusal of the file, we find
that there has been subjective satisfaction on the basis of
the materials placed before the competent authority along
with the representation. It cannot be said that the subjective
satisfaction is not discernible from the order passed. In
view of the analysis, the decision in Lekha Nandakumar
(supra) by the Division Bench of the High Court stating the
principle that the order passed by the competent authority
should be communicated failing which there will be a
violation of the constitutional command engrafted under
Article 22(5) is not correct. The Court can always call for
the file and peruse whether there has been rejection of the
representation as required under the law.
31. The decision in Babu (supra) while explaining the
Lekha Nandakumar (supra) states that if an order is
communicated by the Under Secretary do not meet the
constitutional obligation, for the order passed by the
authority would be extracted in extenso completely by a
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subordinate officer and that may be communicated to the
detenu. Thus, the said decision introduces principle of
effective communication in a different way. This approach,
in our view, is erroneous. If the order is communicated by
another authority and eventually the order is affirmed by
the Advisory Board and the same is challenged, the
constitutional courts have ample power to call for the
records and verify how the representation has been rejected.
We are not adverting to the facts in Babu (supra) whether
there had been real and proper consideration or not, but
suffice it to say that jurisdiction of the court is only to see
whether there has been any subjective satisfaction that the
proper law had been applied at the time of detention of the
detenu. There is no need on the part of the competent
authority to pass a speaking order and to give reasons on
any facet. Thus analysed, the extended proposition in Babu
(supra) is not legally correct.
32. In this context, we may fruitfully refer to a four-Judge
Bench decision in Khudiram Das v. The State of West
Bengal and others23 wherein explaining the observations
made in Bhut Nath Mete (supra), the Court observed that:- 23 (1975) 2 SCC 81
Page 40
40
“It was, however, sought to be contended on behalf of the petitioner, relying on the observation of this Court in Bhut Nath Mete v. State of W.B that the exercise of the power of detention “implies a quasi-judicial approach”, that the power must be registered as a quasi-judicial power. But we do not think it would be right to read this observation in the manner contended on behalf of the petitioner. This observation was not meant to convey that the power of detention is a quasi-judicial power. The only thing which it intended to emphasise was that the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention.
33. In the said case, while dealing with subjective
satisfaction, the Court observed:-
“There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all; in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Bannerji24 is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose : such a case would also negative the existence of satisfaction on the part of the authority. The existence of “improper purpose”, that is, a purpose not contemplated by the statute, has been recognised as an independent ground of control in several decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and therefore, if, in exercising the power, the authority has acted under the dictation of another body as the Commissionerof Police did in
24 AIR 1943 FC 75 = 45 CriLJ 341
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Commissioner of Police v. Gordhandas Bhanji25 and the officer of the Ministry of Labour and National Service did in Simms Motor Units Ltd. v. Minister of Labour and National Service26 the exercise of the power would be bad and so also would the exercise of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self- created rules of policy or in any other manner. The satisfaction said to have been arrived at by the authority would also be bad where it is based on the application of a wrong test or the misconstruction of a statute. Where this happens, the satisfaction of the authority would not be in respect of the thing in regard to which it is required to be satisfied. Then again the satisfaction must be grounded “on materials which are of rationally probative value”. Machindar v. King27. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject- matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Pratap Singh v. State of Punjab28. If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters.”
25 1952 SCR 135 = AIR 1952 SC 16 26 (1946) 2 All ER 201 27 AIR 1950 FC 129 = Cri LJ 1480 28 AIR 1964 SC 72
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34. We have referred to the aforesaid passage only to
highlight that how the subjective satisfaction has been
understood by this Court especially in the context of
preventive detention. The detaining authority on the basis
of certain material passes an order of detention. The same
has to be communicated at the earliest as mandated under
Article 22(5) of the Constitution. A period has been
determined. Non-communication within the said period
would be an impediment for sustaining the order of
detention. Similarly, if a representation is made and not
considered with promptitude and there is inordinate delay
that would make the detention order unsustainable. In Raj
Kishore Prasad v. State of Bihar and others29 while
dealing with an order of detention passed the National
Security Act, 1980 the Court was dealing with the
contention that as there was inordinate delay in considering
the representation of the detenu and the unexplained delay
in considering the representation of the detenu could vitiate
the order. The two-Judge Bench referred to Section 3(2) of
the 1980 Act and in the backdrop of the statutory scheme
proceeded to state that when there has been a long delay of 29 (1982) 3 SCC 10
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28 days in disposing of the representation, it would
invalidate the order.
35. In Vijay Kumar v. State of Jammu & Kashmir and
others30 while dealing with the order of detention passed
under Section 8 of the Jammu & Kashmir Public Safety Act,
1978, took into consideration the delay in disposal of
representation and in that context opined:-
“In Khudiram Das v. State of W.B., (1975) 2 SCC 81, this Court held that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must afford the detenu the earliest opportunity of making a representation against the order of detention and this requirement would become illusory unless there is a corresponding obligation on the detaining authority to consider the representation of the detenu as early as possible. Thus, in the facts of this case we are not satisfied that the representation was dealt with as early as possible or as expeditiously as possible, and, therefore, there would be contravention of Section 13 of the Act which would result in the invalidation of the order.”
36. We have referred to the said authorities solely to
emphasise the duty of the appropriate government to
dispose of the representation at the earliest and what is
understood by the concept of subjective satisfaction. The
Government has to follow the safeguards provided under
30 (1982) 2 SCC 43
Page 44
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Article 22(5) and the provisions of the statute. It is because
without a trial a person is deprived of his liberty.
Promptitude of action within the statutory scheme is
imperative. In the case at hand, these aspects which have
been raised before the High Court have been negatived, and
rightly so. On a scrutiny of the file which has been produced
before us, we find that the competent authority of the
appropriate government has passed an order on the basis of
the material produced before it. It cannot be said that there
is no subjective satisfaction. We may ingeminate that when
the material, the file, the representation and the comments
on the representation were produced before the authority
and he had mentioned in the order that he had gone
through the representation and not found sufficient ground
for exercising the power under Section 11 of the COFEPOSA
Act, it cannot be said that there has been no subjective
satisfaction. The Constitution Bench in Haradhan Saha
(supra) has laid down that the order need not be a speaking
one but there should be real and proper consideration. The
principle stated by the Constitution Bench has to be
properly understood. The said principle has been explained
Page 45
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in John Martin (supra) and Khudiram Das (supra).
Succinctly put, it is to be seen by the said authority that the
materials on record on the basis of which the order is
passed are under appropriate statute; that the detaining
authority has not travelled beyond the grounds that are
within the framework of the statute; and that the grounds
are not vague, etc., and all these come within the scope and
ambit of subjective satisfaction and need not be objectively
pronounced by an order. There is no trace of doubt that
“subjective satisfaction” is not insusceptible from judicial
reviewability. Thus analysed, the impugned order granting
the writ of habeas corpus and directing the detenu to be set
at liberty is totally vulnerable and accordingly we set aside
the same.
37. Now, we shall proceed to deal with the alternative
submission of Mr. Basant, learned senior counsel for the
respondent. It is urged by him that the detenu was
detained on 25.2.2013 and released on 24.10.2013 and in
this backdrop, the detenu should not be sent back to
undergo the remaining period of detention, for there exists
no proximate temporal nexus between the period of
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detention indicated in the order for which the detenu was
required to be detained and the date when the detenu is
required to be detained if the order is set aside. Learned
senior counsel would urge that there is a necessity on the
part of the authorities to be satisfied whether it is desirable
that the detenu should be further detained for the balance
period of detention. Mr. Basant has commended us to
certain authorities which we shall proceed to deal with it.
38. In Sunil Fulchand Shah (supra), the Constitution
Bench was dealing with the issue whether the period of
detention under the COFEPOSA Act is a fixed period
running from the date specified in the detention order and
ending with the expiry of that period or the period is
automatically extended by any period of parole granted to
the detenu. While dealing with the said issue, the majority
speaking through the learned Chief Justice noted the
observation made in State of Gujarat v. Adam Kasam
Bhaya31, viz., “if he has served a part of the period of
detention, he will have to serve out the balance” and
adverted to various facets and eventually recorded the
following conclusion in respect of the said issue:- 31 (1981) 4 SCC 216
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“33.6. The quashing of an order of detention by the High Court brings to an end such an order and if an appeal is allowed against the order of the High Court, the question whether or not the detenu should be made to surrender to undergo the remaining period of detention, would depend upon a variety of factors and in particular on the question of lapse of time between the date of detention, the order of the High Court, and the order of this Court, setting aside the order of the High Court.
A detenu need not be sent back to undergo the remaining period of detention, after a long lapse of time, when even the maximum prescribed period intended in the order of detention has expired, unless there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the appellate order and the State is able to satisfy the court about the desirability of “further” or “continued” detention.
7. That where, however, a long time has not lapsed or the period of detention initially fixed in the order of detention has not expired, the detenu may be sent back to undergo the balance period of detention. It is open to the appellate court, considering the facts and circumstances of each case, to decide whether the period during which the detenu was free on the basis of an erroneous order should be excluded while computing the total period of detention as indicated in the order of detention though normally the period during which the detenu was free on the basis of such an erroneous order may not be given as a “set- off” against the total period of detention. The actual period of incarceration cannot, however, be permitted to exceed the maximum period of
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detention, as fixed in the order, as per the prescription of the statute.”
39. In Kethiyan Perumal (supra), a two-Judge Bench,
after referring to the Constitution Bench decision in Sunil
Fulchand Shah (supra), directed as follows:-
“… it is for the appropriate State to consider whether the impact of the acts, which led to the order of detention, still survives and whether it would be desirable to send back the detenu for serving the remainder period of detention. Necessary order in this regard shall be passed within two months by the appellant State. Passage of time in all cases cannot be a ground not to send the detenu to serve the remainder of the period of detention. It all depends on the facts of the act and the continuance or otherwise of the effect of the objectionable acts. The State shall consider whether there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the appellate order.”
40. In Alagar (supra), similar observations were made. In
Chandrakant Baddi (supra), a two-Judge Bench referred
to the earlier decisions and opined that:-
“A reading of the abovequoted paragraphs would reveal that when an order of a court quashing the detention is set aside, the remittance of the detenu to jail to serve out the balance period of detention does not automatically follow and it is open to the detaining authority to go into the various factors delineated in the judgments aforequoted so as to find out as to whether it
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would be appropriate to send the detenu back to serve out the balance period of detention. …”
41. In the present case, the detenu was initially detained
for one year. He remained in incarceration from 25.2.2013
to 24.10.2013. The High Court has quashed the order of
detention and he has been set at liberty. Submission of
Mr. Kaul, learned Additional Solicitor General is that regard
being had to the nature of grounds on which the detention
order was passed, this Court may direct that the detenu
should surrender to custody. Regard being had to the
authorities cited by Mr. Basant, we are of the opinion that
the appropriate course would be that the detaining
authority should re-examine the matter keeping in view the
principle stated in Sunil Fulchand Shah (supra) and
Chandrakant Baddi (supra) within two months from
today.
42. Consequently, the appeal is allowed in above terms.
.................................J. [Dipak Misra]
................................J. [Prafulla C. Pant]
New Delhi January 29, 2016