UMMU SABEENA Vs STATE OF KERALA .
Bench: ASOK KUMAR GANGULY,JAGDISH SINGH KHEHAR
Case number: Crl.A. No.-002136-002136 / 2011
Diary number: 32841 / 2011
Advocates: K. K. MANI Vs
B. KRISHNA PRASAD
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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