P.K.Umaiba vs The Union Of India on 8 January, 2008

Kerala High Court

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(Crl) No. 138 of 2007(S)


1. P.K.UMAIBA, W/O K.P.ABDUL MAJEED,
                      ...  Petitioner

                        Vs



1. THE UNION OF INDIA, REPRESENTED BY
                       ...       Respondent

2. THE JOINT SECRETARY,

3. THE SECRETARY,

                For Petitioner  :SRI.M.K.DAMODARAN (SR.)

                For Respondent  :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.M.JOSEPH

 Dated :08/01/2008

 O R D E R
                H.L. DATTU, CJ. & K.M. JOSEPH, J.
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                     W.P.(CRL) No.138 of 2007
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               Dated this the 8th day of January, 2008.

                                  JUDGMENT

K.M. JOSEPH,J,

Petitioner questions the detention of her son Sri.Asarulla

Rakha Khan, herein after referred to as ‘the detenu’, pursuant to

Ext.P1 detention order dated 19.11.2003. She seeks a writ of Habeas

Corpus or other appropriate writ directing the respondents to produce

the detenu and to release him. Exts. P7 to P9 are also challenged.

2. Ext.P2 dated 19.11.2003 contains the grounds on

which Ext.P1 detention order has been issued. The detenu submitted

Ext.P3 representation dated 20.4.2007. It is seen addressed to the

Joint Secretary of the Central Economic Intelligence Bureau

(respondent No.2). Ext.P4 is the representation addressed by the

detenu dated 27.4.2007. It is addressed to the third respondent, who

is the Secretary, Central Economic Intelligence Bureau in the

Department of Revenue. The detenu also addressed Ext.P5 dated

30.4.2007 before the COFEPOSA Advisory Board. Besides this, he is

stated to have addressed Ext.P6 to the Cabinet Minister of Finance

dated 2.5.2007. Ext.P7 is memorandum dated 11.5.2007 informing the

detenu that his representation dated 20.4.2007 signed on 27.4.2007

WP(Crl.) 138/2007.

by him has been rejected by the second respondent. Ext.P8 evidences

rejection of Ext.P4 representation dated 27.4.2007 signed on 7.5.2007 by

the detenu by the second respondent. Ext.P9 is dated 23.5.2007 and

evidences rejection of Ext.P4 representation given by the detenu by the

Special Secretary and Director General, Central Economic Intelligence

Bureau, Department of Revenue.

3. We heard Sri. M.K.Damodaran, Senior Counsel appearing

on behalf of the petitioner and Sri. V.T.Gopalan, learned Additional

Solicitor General appearing on behalf of the respondents.

4. It is submitted on behalf of the petitioner that there is no

basis for issuing the order of detention. He would submit that the order of

detention betrays non-application of mind. He would submit that going by

Exts.P1 and P2 the order of detention is seen issued under Section 3 of

Conservation of Foreign Exchange and Prevention of Smuggling Activities

Act, (herein after referred to as ‘the COFEPOSA Act’). He would submit

that the detenu was in fact having his permanent residence in Dubai. He

would submit that there is no authority under Section 3 of the Act to detain

a person, who is permanently residing outside India. He would submit that

the purpose of an order of detention passed under the Act, going by the

language of Section 3 of the Act, is to prevent the person from acting in

any manner prejudicial to the conservation or augmentation of foreign

WP(Crl.) 138/2007.

exchange or with a view to prevent him from carrying on activities, which

are elaborately mentioned in Section 3. He would submit that, therefore,

there is no authority under Section 3 to order the detention of a person,

who, at the time of passing of the order is admittedly residing beyond the

territories of the Union of India. He would further submit that this is a case

where Ext.P1 order of detention is dated 19.11.2003. However, the actual

detention of the detenu was effected only on 9.4.2007. He would therefore

contend that having regard to the well settled principle that an order of

detention executed with delay is vitiated, this is a clear case where the

order of detention being executed after more than three years is palpably

unsustainable. He would further contend that having regard to the facts as

brought out, there was delay in fact in passing the order of detention in

question. Sri. M.K.Damodaran would further contend that having regard to

the mandate of Article 22(5) of the Constitution as also the provisions

contained in Section 3(3) of the COFEPOSA Act, this is a case where the

mandate of law stood violated. He would contend that Ext.P2 grounds of

detection would show that detenu was advised that he may submit his

representation through the Jail authorities to the following persons: The

representation meant for the detaining authority was to be addressed to the

Joint Secretary, Central Economic Intelligence Bureau of the Department of

Revenue, Ministry of Finance,namely, the second respondent. The

WP(Crl.) 138/2007.

representation meant for the Central Government was to be addressed to

the Secretary, Department of Revenue, namely, the third respondent. The

representation meant for the Advisory Board was to be addressed to the

Chairman of the COFEPOSA Advisory Board, Delhi High Court. It is

submitted that Ext.P3 was addressed by the detenu, accordingly, to the

second respondent and Ext.P4 was addressed to the third respondent. He

would point out that there is violation of law in so far as the representation

which is addressed to the third respondent came to be disposed of by the

Special Secretary and Director General of the Department of Revenue.

The third respondent himself should have considered the representation of

the detenu and there was no authority with the Special Secretary and

Director General to consider his representation, he contends. He would

also submit that going by Ext.P8 it would appear that Ext.P4

representation, which, the detenu addressed to the third respondent was

not only not considered by him, but was considered by another authority,

namely, the detaining authority, who has proceeded to reject the

representation. It is submitted that the detenu had not addressed Ext.P4 to

the detaining authority. Therefore, the alleged consideration and rejection

of Ext.P4 representation by the detaining authority was wholly without

warrant and illegal and therefore vitiates the detention of the detenu. He

would further contend that the detention of the detenu is clearly vitiated for

WP(Crl.) 138/2007.

the reason that a perusal of Exts.P7 to P9 would show that the

representations have been rejected in a mechanical manner. He would

contend that it is settled proposition of law that Article 22(5) of the

Constitution and Section 3(3) of the Act contemplate a real and meaningful

consideration of the representation of the detenu, which is plainly absent in

this case. Thereafter, the Senior Counsel would further contend that there

is inordinate delay in the disposal of the representations filed by the

detenu. The first representation (Ext.P3) is seen dated 20.4.2007. It is

seen from Ext.P7 that Ext.P3, which is addressed to the detaining authority

is rejected by Ext.P7 dated 11.5.2007. It is contended that thus, there is

delay of nearly twenty one days in considering the representation of the

petitioner. Likewise, it is pointed out that Ext.P4 representation dated

27.4.2007 is disposed of only on 22.5.2007. It is further contended that

contrary to the settled mandate of law that the detaining authority should

furnish the materials which are relied on in the order of detention, there has

been a breach in the facts of this case, as the only material, by which the

detenu is said to be connected with the case, namely, the telephone bills

referred to in paragraph 24 of Ext.P2, were not supplied to the detenu. He

would further submit that there is really no basis for invoking the power

under Section 3 of the COFEPOSA Act, as the allegations in the order

relate to the remittances in Indian rupees and therefore this is not a case

WP(Crl.) 138/2007.

where it is open to the authorities to invoke Section 3, which is framed with

the object of inter alia checking undesirable dealings in foreign exchange.

Sri. M.K.Damodaran would submit that there is no authority under Section

3 COFEPOSA Act to proceed against a non-resident Indian.

Sri.M.K.Damodaran also contended that under the terms of Ext.P11 treaty

and Ext.P12 agreement, there was no difficulty for the respondents to get

the assistance of the UAE Government to take the detenu into custody in

execution of Ext.P1 order. It is also contended that had there been a non-

bailable warrant and steps taken under Sections 82 and 83 of the Criminal

Procedure Code, there would have been no difficulty for apprehending the

detenu from UAE, which is a contracting state in Exts. P11 and P12. It is

also contended that steps could have been taken under the Passports Act,

if the respondents were serious in executing the order of detention.

5. Per contra, learned Additional Solicitor General would

contend that there is no merit in the writ petition. A counter affidavit has

been filed and this has been followed up, apparently as per court direction,

by the filing of an additional counter affidavit. He would contend that a

perusal of the grounds would clearly show that there was indeed legal

basis for invoking Section 3 of the COFEPOSA Act. He would submit that

having regard to the phraseology of Section 3 of the COFEPOSA Act, there

was authority with the detaining authority, if grounds exist, subject to the

WP(Crl.) 138/2007.

satisfaction of the detaining authority to detain any person including a

foreigner. When the detaining authority is the Central Government, there

can be no legal hurdle in passing an order of detention, even though the

person to be detained is residing permanently beyond the territories of the

Government, he contends. He would submit that a perusal of Section 6

would put matters beyond the region of doubt. Section 6 reads as follows:

“6. Detention order not to be invalid or

inoperative on certain grounds-No detention orders shall be

invalid or inoperative merely by reason-

(a) that the person to be detained thereunder is outside

the limits of the territorial jurisdiction of the Government or the

officer making the order of detention, or

(b) that the place of detention of such person is outside the

said limits.”

He would contend that undoubtedly as far as the Central Government is

concerned, the limits of the territorial jurisdiction of the Government is the

whole territory comprised within the Union of India. Therefore, having

regard to Section 6 of the COFEPOSA ACt, an order of detention shall not

be in-operative or invalid merely for the reason that the proposed detenu is

outside India when the order is passed and there is no merit in the

petitioner’s contention, he points out. He would submit that any other view

would make Section 6 otiose. In regard to Clause (b) of Section 6 of

COFEPOSA Act, he would submit that this would apply in respect of a

WP(Crl.) 138/2007.

8

detention made by the State Government. He would submit that there

were several materials to order detention of the detenu in this case. He

reminded the court that what is necessary to pass a valid order of detention

is only the existence of subjective satisfaction of the detaining authority. As

far as delay in considering the representation is concerned, it is stated in

the affidavit that though Ext.P3 representation, addressed to the detaining

authority concerned, is dated 20.4.2007, it was signed by the detenu on

27.4.2007. It was received in the Ministry on 2.5.2007. Comments were

called for from the sponsoring authority on 3.5.2007. Thereafter, a

reminder was issued on 9.5.2007 to the Sponsoring Authority and on

10.5.2007 the comments were received in the Ministry. The comments

were processed and was put up for the decision of the detaining authority,

who considered and rejected the same on 11.5.2007. It is their case that

as far as Ext.P4 representation dated 27.4.2007 is concerned, it was

considered by the detaining authority independently. The representation,

Ext.P4, though dated 27.4.2007, was signed by the detenu on 7.5.2007, it

was received in the Ministry on 10.5.2007. Comments were called for on

11.5.2007. There was reminder sent on 18.5.2007 to the Sponsoring

authority. Thereafter comments were received on 21.5.2007 by the

Ministry, comments were processed on 22.5.2007 and decision taken by

both the detaining authority and also the Special Secretary cum Director

WP(Crl.) 138/2007.

9

General on 22.5.2007.

6. As regards the contention of the petitioner that the third

respondent, Secretary, to whom Ext.P4 representation was addressed, has

not considered the representation, but the Special Secretary has

considered it, to whom it was not addressed, it is submitted that in partial

modification of the delegation of the powers contained in his order dated

22.4.1998, the Minister of Finance, Government of India ordered the

vesting of the power in the Central Government in relation to the provisions

of the Act in regard to Section 11 with the Secretary or Special Secretary

cum D.G., CE.IB in the Department of Revenue, Ministry of Finance. This

vesting of powers in the Secretary or Special Secretary under Section 11 is

stated to be on 2.9.1998. Therefore it is contended that the consideration

of the representation by the Special Secretary was perfectly valid and

strictly in accordance with Section 3 of the COFEPOSA Act. He would

submit that though Exts.P7 to P9 are signed by the Under Secretary, they

are only decisions taken by the appropriate authorities, which are

communicated by the Under Secretary in accordance with the Manual of

Office Procedure and there is no merit in the contention of the petitioner

that the competent authority, to whom the representations were addressed,

has not considered his representations. He would further contend in reply

that there was no delay in passing the order of detention. He would

WP(Crl.) 138/2007.

10

contend that this is a case where a number of follow up actions had to be

taken from the date of the incident, that is 11.4.2000 till 27.11.2003.

Synopsis of the dates and the dates of action taken are given in the

additional counter affidavit. He would point out that as stated in Ext.P2

order of grounds of detention, the matter was fairly complicated, the

amount involved was huge and there had to be proper care exercised in

collecting information and evaluating the same before an order of detention

could be passed against the detenu. Regarding the contention of the

petitioner that there was delay in executing the order of detention, it is

contended that though the order of detention was passed on 19.11.2003,

the detenu came to India for the first time after the date of the order only on

9.4.2007. He came to be arrested immediately and he has been in

detention ever since. It is brought to our notice that there was no delay at

all in executing the order of detention. He would submit that this is a case

where it is knowing fully well that there is an order of detention, the detenu

continued to keep away from the Indian soil and he points out the

petitioner’s representation in support thereof. He would submit that it

would not be correct to contend that there is a rupture in the link by reason

of the date of actual detention. He would submit that this is a case where

action was taken under Section 7 of the COFEPOSA Act. The detenu

instead of responding to the order of detention, chose to remain away and

WP(Crl.) 138/2007.

11

absconded thereby preventing the execution of the order. He would

therefore submit that the order of detention could not be attacked on the

ground of delay in effectuating it, as the delay in effectuating the order of

detention was solely on the ground of the conduct of the detenu in

remaining beyond the territory of India. He would contend that there is no

merit in the complaint of the petitioner that the detenu was not supplied

with the telephone bills referred to in paragraph 24 of Ext.P2 grounds of

detention. According to respondents, what was before the detaining

authority was only the scrutiny report of the bills. That scrutiny report was

made available to the detenu also. He would also contend that it is

pertinent to note that there is no request by the detenu to be served with

the bills. No doubt, learned Additional Solicitor General would fairly submit

that it is the law that if any document is relied on by the detaining authority

for ordering detention, even without any request from the detenu, it is

incumbent upon the authority to supply the detenu with such materials. It

makes no difference that the detenu has not made any request to be

supplied with the same. But it is submitted on behalf of the respondents

that in the facts of this case, in so far as the bills as such were not before

the detaining authority, there is no violation of the constitutional mandate.

He would submit that there is no merit in the contention of the petitioner

that the representations were disposed of in a mechanical manner.

WP(Crl.) 138/2007.

12

According to him, the decision of the Apex Court has established the

principle that an order disposing a representation by a detenu need not

contain any reasons. What is required is only that there should be a proper

consideration of the representation made by the detenu. He would submit

that the authorities, who have considered the representations are

authorities well versed with the matters and on the one hand they are

expected to pass orders expeditiously, and on the other hand there should

be a proper consideration of the representation, and therefore a balance

has to be struck and the files would indicate, according to the Additional

Solicitor General, that there has been proper consideration of the

representations in the facts of this case. He would submit that the

detaining authority came to consider Ext.P4 representation only on the

basis of the principle established by the Apex Court in Smt. Gracy v. State

of Kerala (1991 (2) SCC 1), which is to the effect that when a

representation is addressed to the Advisory Board, there is a duty cast on

the detaining authority also to independently consider the same. He would

point out that in the letter of the Superintendent of Central Prison

accompanying the representation dated 27.4.2007, there is a copy marked

to the Chairman of the Central Advisory Board and it was in such

circumstances the detaining authority also proceeded to independently

consider Ext.P4 representation and reject it. He would submit that there is

WP(Crl.) 138/2007.

13

no prejudice at all at any rate caused to the detenu by the fact that the

detaining authority has also considered Ext.P4 representation and rejected

it. This was for the reason that apart from the detaining authority, the

Central Government acting through the Special Secretary, who was duly

authorised has independently considered the representation of the detenu

and rejected it. He would contend that the order of detention is passed in

exercise of jurisdiction of suspicion. It is not punitive. While all the

safeguards vouch safed to the detenu under the Constitution and under

the Act has to be scrupulously followed, which has been done in this case,

the courts would be loathe to interfere with the order of preventive

detention, which is to be passed on subjective satisfaction, he submits. He

would submit that while subjective satisfaction is not to be confused with

acting on the ipse dixit of the authority, its validity cannot be impugned

except in a case where there are no materials at all or with the materials on

record a view which is perverse has been adopted. He would submit that

none of the contingencies, which imperil an order of detention exist in the

facts of this case.

7. Both parties referred to a large body of case law.

(1) Non-supply of documents.

(i) Learned counsel for the petitioner sought to draw

assistance from the following decisions of the Apex Court to buttress his

WP(Crl.) 138/2007.

14

contention that non-supply of the telephone bills was fatal to the validity of

the order of detention.

(ii) In Icchu Devi v. Union of India (AIR 1980 SC 1983) the

Apex Court has inter alia held as follows:

“If there are any documents, statements or other

materials relied upon in the grounds of detention, they must

also be communicated to the detenu, because being

incorporated in the grounds of detention, they form part of the

grounds and the grounds furnished to the detenu cannot be

said to be complete without them. It would not therefore be

sufficient to communicate to the detenu a bare recital of the

grounds of detention, but copies of the documents, statements

and other materials relied upon in the grounds of detention

must also be furnished to the detenue within the prescribed

time subject of course to cl. (6) of Article 22 in order to

constitute compliance with clause (5) of Article 22 and Section

3, sub-section (3) of the COFEPOSA Act. One of the primary

objects of communicating the grounds of detention to the

detenu is to enable the detenu, at the earliest opportunity, to

make a representation against his detention and it is difficult to

see how the detenu can possibly make an effective

representation unless he is also furnished copies of the

documents, statements and other materials relied upon in the

grounds of detention.”

(iii) The same reasoning has been followed in the decision

reported in S. Gurdip Singh v. Union of India (AIR 1981 SC 362). In

WP(Crl.) 138/2007.

15

Kamla v. State of Maharashtra (AIR 1981 SC 814) the court held as

follows:

“The documents and materials relied upon in the

order of detention form an integral part of the grounds and

must be supplied to the detenu pari passu the grounds of

detention. If the documents and materials are supplied later,

then the detenu is deprived of an opportunity of making an

effective representation against the order of detention. Before

an order of detention can be supported, the constitutional

safeguards must be strictly observed. Duties of detaining

authority pointed out.”

(iv) In Powanammal v. State of Tamil Nadu (AIR 1999 SC

618) the court held as follows:

“However, this court has maintained a distinction

between a document which has been relied upon by the

detaining authority in the grounds of detention and a document

which finds a mere reference in the grounds of detention.

Whereas non-supply of a copy of the document relied upon in

the grounds of detention has been held to be fatal to continued

detention, the detenue need not show that any prejudice is

caused to him. This is because non-supply of such a

document would amount to denial of the right of being

communicated the grounds and of being afforded the

opportunity of making an effective representation against the

order. But it would not be so where the document merely finds

a reference in the order of detention or among the grounds

WP(Crl.) 138/2007.

16

thereof. In such a case, the detenue’s complaint of non-supply

of document has to be supported by prejudice caused to him in

making an effective representation. What applies to a

document, would equally apply to furnishing translated copy of

the document in the language known to and understood by the

detenue, should the document be in a different language.”

(v) In Sophia Gulam Mohd. Bham v. State of Maharashtra

(AIR 1999 SC 3051) also the Apex Court followed the said principle. That

is a case where ground of detention was that when the detenu was held at

the Air Port and on his search being taken he was found in possession of

diamonds which he was trying to smuggle out of India. The document

seized from the premises revealed a link between the smugglers and the

detenu. On the basis that he was a carrier, the detention order came to be

passed. But the copies of the documents were not supplied to the detenu.

In that case the court took note of the fact that when justifying non-supply

of the document in the counter affidavit, the stand was that the diaries were

considered and looked into by the detaining authority and only then he

came to know that the entries were unconnected with the detenu or that the

name of the detenu did not figure in any of the entries in the said diary

rendering the stand contradictory and unreliable. This principle has also

seen followed in the decision reported in M. Ahamedkutty v. Union of

India ((1990) 2 SCC 1). Therein the court had to consider the question as

WP(Crl.) 138/2007.

17

to whether the non-supply of the bail application and the bail order was

fatal to the order of detention. The court held that if there is failure or even

delay in furnishing those documents, it would amount to denial of a right to

make an effective representation. It further held as follows:

“It is immaterial whether the detenu already knew

about their contents or not. In Mehrunissa v. State of

Maharashtra it was held that the fact that the detenu was

aware of the contents of the documents not furnished was

immaterial and non-furnishing of the copy of the seizure list

was held to be fatal. To appreciate this point one has to bear

in mind that the detenu is in jail and has no access to his own

documents. In Mohd.Zakir v. Delhi Administration it was

reiterated that it being a constitutional imperative for the

detaining authority to give the documents relied on and

referred to in the order of detention pari passu the grounds of

detention, those should be furnished at the earliest so that the

detenu could make an effective representation immediately

instead of waiting for the documents to be supplied with. The

question of demanding the documents was wholly irrelevant

and the infirmity in that regard was violative of constitutional

safeguards enshrined in Article 22(5).”

(vi) The petitioner also relied on the decision reported in

District Collector, Ananthapur v. V. Laxmanna ((2005) 3 SCC 663),

wherein the court held as follows:

“Therefore, while holding that dealing with arrack,

WP(Crl.) 138/2007.

18

which is dangerous to public health would become an act

prejudicial to the maintenance of public order attracting the

provisions of the Act, it must be held that it is obligatory for the

detaining authority to provide the material on which it has

based its conclusion on this point. Therefore, we are in

agreement with the High Court that if the detaining authority is

of the opinion that it is necessary to detain a person under the

Act to prevent him from indulging in sale of goods dangerous

for human consumption the same should be based on some

material and the copies of such material should be given to the

detenu.”

(vii) Petitioner also relied on the decision reported in

K.Krishnaveni v. Secretary, Govt. of Tamil Nadu, Public (L & O),

Department of Revenue (2006 Crl.L.J. 757), which is a Bench decision of

the Madras High Court taking the view inter alia that documents, which are

relied on must be communicated to the detenu for an effective

consideration. The court declared that the question of demanding

documents, which are relied on is wholly irrelevant, because it is the

constitutional mandate to supply the documents.

(2) Manner of consideration of representation.

(i) In support of his contention that there was delay in

considering the representation of the detenu, the following decisions are

referred to:

WP(Crl.) 138/2007.

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(ii) In the decision in Union of India v. Paul Manickam

((2003) 8 SCC 342) the court held as follows:

“So far as the pivotal question whether there was

delay in disposal of the representation is concerned, the same

has to be considered in the background of Article 22(5) of the

Constitution. A constitutional protection is given to every

detenu which mandates the grant of liberty to the detenu to

make a representation against detention, as imperated in

Article 22(5) of the Constitution. It also imperates the authority

to whom the representation is addressed to deal with the same

with utmost expedition. The representation is to be considered

in its right perspective keeping in view the fact that the

detention of the detenu is based on the subjective satisfaction

of the authority concerned, and infringement of the

constitutional right conferred under Article 22(5) invalidates the

detention order. Personal liberty protected under Article 21 is

so sacrosanct and so high in the scale of constitutional values

that it is the obligation of the detaining authority to show that

the impugned detention meticulously accords with the

procedure established by law. The stringency and concern of

the judicial vigilance that is needed was aptly described in the

following words in Thomas Pacham Dale’s case:

“Then comes the question upon the habeas corpus. It is

a general rule, which has always been acted upon by the

courts of England, that if any person procures the

imprisonment of another he must take care to do so by steps,

all of which are entirely regular, and that if he fails to follow

WP(Crl.) 138/2007.

20

every step in the process with extreme regularity the court will

not allow the imprisonment to continue.” ”

(iii) In Prem Lata Sharma v. District Magistrate ((1998) 4

SCC 260) the court held as follows:

“The reasons given by the detaining authority for

not sending the representation to the detaining authority were

not tenable. There is no – nor can there be – a period of

limitation regarding exercise of a right of a detenu to make a

representation and the corresponding obligation of the Central

Government to consider the same for deciding upon the

question of revocation of the order of detention, for such right

and obligation subsist so long as the detention continues.

Further, when the representation was made to the Central

Government it was for it – and not for the detaining authority –

to decide whether the representation should be rejected on the

ground that his earlier representation had already been

considered and rejected. To put it differently, when the

representation was addressed to the Central Government it

was incumbent on the part of the detaining authority to forward

the same to the Central Government and not to take a pre-

emptive action thereupon of its own.”

(iv) In John Martin v. State of West Bengal (AIR 1975 SC

775) the court held as follows:

“We must, therefore, hold that under Section 8(1)

of the Act, it is the appropriate Government that is required to

consider the representation of the detenu. This, however,

WP(Crl.) 138/2007.

21

does not mean that the appropriate Government can reject the

representation of the detenu in a casual or mechanical

manner. The appropriate Government must bring to bear on

the consideration of the representation an unbiased mind.

There should be, as pointed out by this Court in Haradhan

Saha’s case “a real and proper consideration” of the

representation by the appropriate Government. We cannot

over-emphasise the need for the closest and most zealous

scrutiny of the representation for the purpose of deciding

whether the detention of the petitioner is justified.”

(v) In Union of India v. Yumnam Anand M. @ Bocha @

Kora @ Suraj & another (JT 2007(5) SC 520), the court held as follows:

“In case of preventive detention no offence is

proved, nor any charge is formulated and the justification of

such detention is suspicion or reasonability and there is no

criminal conviction which can only be warranted by legal

evidence. Preventive justice requires an action to be taken to

prevent apprehended objectionable activities. (See Rex v.

Nallidev ; Mr.Kubic Dariusz v. Union of India and others). But

at the same time, a person’s greatest of human freedoms, i.e.,

personal liberty is deprived, and, therefore, the laws of

preventive detention are strictly construed, and a meticulous

compliance with the procedural safeguard, however, technical

is mandatory.”

(vi) Petitioner also relied on the decision of the Apex Court in

Haradhan Saha v. State of West Bengal (AIR 1974 SC 2154) to

WP(Crl.) 138/2007.

22

emphasise that the representation of the detenu should receive a proper

consideration. The court held as follows:

“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 a real and proper consideration by the Government

and the Advisory Board.

x x x x x x

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 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.”

(vii) In Bhut Nath Mate v. State of West Bengal (AIR 1974

SC 806) the Apex Court held as follows:

“It is not necessary that a speaking order should

WP(Crl.) 138/2007.

23

be passed by Government or by the Advisory Board while

approving or advising continuance of detention although a brief

expression of the principal reasons is desirable. The subject

matter being the deprivation of freedom, clearly implies a

quasi-judicial approach. The bare bones of natural justice in

this context need not be clothed with the ample flesh of

detailed hearing and elaborate reasoning. 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. A harmonious reconciliation between

the claims of security of the nation and the liberty of the citizen

are the necessary components of natural justice. Not more.”

(viii) In Prof. Khaidem Ibocha Singh v. State of Manipur

(AIR 1972 SC 438) the court was dealing with a case where there was a

delay of 17 days, which was found to be unexplained. In the course of its

judgment, the court held as follows:

“In its recent decision in Jayanarayan Sukul v.

State of West Bengal (1970) 3 SCR 225 = (AIR 1970 SC 675),

after a review of the earlier decisions Ray, J., speaking for the

Court, has observed as follows:

“It is established beyond any measure

of doubt that the appropriate authority is bound to

consider the representation of the detenu as early as

possible. The appropriate Government itself is

bound to consider the representation as

expeditiously as possible. The reason for immediate

WP(Crl.) 138/2007.

24

consideration of the representation is too obvious to

be stressed. The personal liberty of a person is at

stake. Any delay would not only be an irresponsible

act on the part of the appropriate authority but also

constitutional because the Constitution enshrines

the fundamental right of a detenu to have his

representation considered and it is imperative that

when the liberty of a person is in peril immediate

action should be taken by the relevant authorities.

No definite time can be laid down within which a

representation of a detenu should be dealt with save

and except that it is a constitutional right of a detenu

to have his representation considered as

expeditiously as possible. It will depend upon the

facts and circumstances of each case whether the

appropriate Government has disposed of the case

as expeditiously as possible for otherwise in words

of Shelat,J., who spoke for this Court in the case of

Khairul Haque, (1969) Writ Petn.No.246 of 1969. D/-

10.9.1969 (SC), “it is obvious that the obligation to

furnish the earliest opportunity to make a

representation loses both its purpose and meaning.”

(ix) In Union of India v. Sneha Khemka ((2004) 2 SCC 570),

the court emphasised the need for an expeditious disposal of the

representation.

WP(Crl.) 138/2007.

25

(3) Non-application of Mind

(i) Learned counsel for the petitioner also referred to the

decision of the Apex Court in Dharamdas Shamlal Agarwal v. Police

Commissioner ((1989) 2 SCC 370) for the proposition that non-application

of mind would vitiate the detention order. The court held as follows:

“The requisite subjective satisfaction, the

formation of which is a condition precedent to passing of a

detention order, will get vitiated if material or vital facts which

would have bearing on the issue and weighed the satisfaction

of the detaining authority one way or the other and influenced

his mind are either withheld or suppressed by the sponsoring

authority or ignored and not considered by the detaining

authority before issuing the detention order.”

This contention is raised in the context of the fact that the detenu in this

case was in Dubai. In Sita Ram Somani v. State of Rajasthan ((1986) 2

SCC 86) is also relied on by the petitioner for the proposition that non-

application of mind will result in the order of detention being invalidated.

That was a case where the bail application in pending criminal cases and

the applications made to the Collector of Customs by the detenu and his

associates, in which they had retracted their earlier confessional

statements were not placed before the detaining authority. In the context

of the same, the court took the view that in so far as it was for the detaining

authority to consider the relevant materials and that even if the matter was

WP(Crl.) 138/2007.

26

placed before the Screening Committee, there was a clear non-application

of mind by the detaining authority to the relevant materials as the matter

was not placed before the detaining authority. The court found that the

relevant materials were not placed before the detaining authority to apply

its mind to consider whether an order of detention was called for.

(ii) Petitioner also relied on the decision reported in Ashadevi

v. K.Shivraj (AIR 1979 SC 447). That was also a case where material or

vital facts which could have a bearing on the issue or influence the mind of

the detaining authority one way or other being ignored or not considered by

the detaining authority was found to vitiate the order of detention. That was

a case, where the detenu had retracted his confessional statements at the

earliest available opportunity while he was in judicial custody and the same

was not placed before or considered by the detaining authority. The court

held as follows:

“It is well settled that the subjective satisfaction

requisite on the part of the detaining authority, the formation of

which is a condition precedent to the passing of the detention

order will get vitiated if material or vital facts which would have

a bearing on the issue and would influence the mind of the

detaining authority one way or the other are ignored or not

considered by the detaining authority before issuing the

detention order.”

WP(Crl.) 138/2007.

27

(4) Delay in passing the order of detention

(i) The decision of the Apex Court in Adisgwar Jain v. Union

of India (JT 2006(9) SC 432) is relied on to contend that for the proposition

that there cannot be delay in passing the order as also there cannot be

delay in executing the order of detention.

(ii) In Rajinder Arora v. Union of India ((2006) 4 SCC 796),

the court held that an order of detention passed after about ten months of

the alleged illegal act and for which no explanation was given was vitiated.

8. The learned Additional Solicitor General canvassed the

following decisions in support of his contention:

(i) In Union of India v.Venkateshan ((2002) 5 SCC 285), the

court held as follows:

“The COFEPOSA Act contemplates two situations

for exercise of power of preventive detention – (a) to prevent

violation of foreign exchange regulations; and (b) to prevent

smuggling activities. Under Section 2(c) of the COFEPOSA

Act, “smuggling” is to be understood as defined under clause

(39) of Section 2 of the Customs Act, 1962 which has noting to

do with the penal provisions i.e. Sections 135 and 135-A of the

Customs Act which provide for punishment of an offence

relating to smuggling activities. Hence, to contend that for

exercising power under the COFEPOSA Act for detaining a

person, he must be involved in criminal offence is not borne

out by the said provisions.

WP(Crl.) 138/2007.

28

The other important aspect is that the COFEPOSA

Act and FEMA occupy different fields. The COFEPOSA Act

deals with preventive detention for violation of foreign

exchange regulations and FEMA is for regulation and

management of foreign exchange through authorised person

and provides for penalty for contravention of the said

provisions. The object is for promoting orderly development

and maintenance of foreign exchange market in India.

Preventive detention law is for effectively keeping out of

circulation the detenu during a prescribed period by means of

preventive detention. The power of detention is clearly a

preventive measure. It does not partake in any manner of the

nature of punishment. It is taken by way of precaution to

prevent mischief to the community.”

The question arose in that case was whether continued detention under

COFEPOSA Act was vitiated on the ground that what was considered to be

a criminal offence under Foreign Exchange Regulation Act had ceased to

be a criminal offence under the Foreign Exchange Management Act, 1999.

(ii) In Mohtesham Mohd.Ismail v. Special Director,

Enforcement Directorate ((2007) 8SCC 254), the Apex Court held as

follows:

” Only when an officer is specifically authorised,

he can act on behalf of the Central Government and not

otherwise. Only because an officer has been appointed for the

purpose of acting in terms of the provisions of the Act, the

WP(Crl.) 138/2007.

29

same would not by itself entitle an officer to discharge all or

any of the functions of the Central Government. Even

ordinarily a quasi-judicial authority cannot prefer an appeal

being aggrieved by an dissatisfied with the judgment of the

appellate authority whereby and whereunder its judgment has

been set aside. An adjudicating authority, although an officer

of the Central Government, should act as an impartial tribunal.

An adjudicating authority, therefore, in absence of any power

conferred upon it in this behalf by the Central Government,

could not prefer any appeal against the order passed by the

Appellate Board.”

This is to emphasise that the Special Secretary was indeed possessed

with power to deal with Ext.P4 representation.

(iii) In A.Sanjeevi Naidu v. State of Madras (1970(1) SCC

443) the Apex Court held as follows:

“The cabinet is responsible to the Legislature for

every action taken in any of the Ministers. That is the essence

of joint responsibility. That does not mean that each and

every decision must be taken by the cabinet. The political

responsibility of the Council of Ministers does not and cannot

predicate the personal responsibility of the Council of Ministers

to discharge all or any of the Governmental functions.

Similarly and individual Minister is responsible to the

Legislature for every action taken or omitted to be taken in his

ministry. This again is a political responsibility and not

personal responsibility. Even the most hard working Minister

WP(Crl.) 138/2007.

30

cannot attend to every business in his department. If he

attempts to do it, he is bound to make a mess of his

department. In every well planned administration, most of the

decisions are taken by the civil servants who are likely to be

experts and not subject to political pressure. The Minister is

not expected to burden himself with the day-to-day

administration. His primary function is to lay down the policies

and programmes of his ministry while the Council of Ministers

settle the major policies and programmes of the Government.

When a civil servant takes a decision, he does not do it as a

delegate of his Minister. He does it on behalf of the

Government. It is always open to a Minister to call for any file

in his ministry and pass orders. He may also issue directions

to the officers in his ministry regarding the disposal of

Government business either generally or as regards any

specific case. Subject to that over all power, the officers

designated by the ‘Rules’ or the standing orders, can take

decisions on behalf of the Government. These officers are

the limbs of the Government and not its delegates.”

This decision is relied on in support of the contention that the disposal of

Ext.P4 representation by the Special Secretary is perfectly valid.

(iv) Respondent also sought to draw support from the decision

of the Apex Court in Haradhan Saha v. The State of West Bengal ((1975)

3 SCC 198), where the Apex Court upheld the validity of Maintenance of

Internal Security Act, 1971. The court took the view inter alia that the basis

of detention is satisfaction of the Executive of a reasonable probability of

WP(Crl.) 138/2007.

31

the likelihood of the detenu acting in a manner similar to his past acts and

preventing him from doing the same.

(v) In State of Uttar Pradesh v. Zavad Zama Khan ((1984) 3

SCC 505) the court took the view that in the facts of the case it was not

obligatory on the part of the Central Government to consider the second

representation for revocation under Section 14.

(vi) In M. Ahamedkutty v. Union of India ((1990) 2 SCC 1)

the court held as follows:

“Where the passage of time is caused by the

detenu himself by absconding, the satisfaction of the detaining

authority cannot be doubted and the detention cannot be held

to be bad on that ground. In Bhawarlal Ganeshmalji v, State of

Tamil Nadu where the appellant had been evading arrest and

surrendering after three years of the making of order of

detention under the COFEPOSA Act the order was held to be

still effective as the detenu himself was to be blamed for the

delay. This Court observed that there must be a ‘live and

proximate link’ between the grounds of detention alleged by

the detaining authority and the avowed purpose of detention,

namely, the prevention of smuggling activities. In appropriate

cases it could be assumed that the link was snapped if there

was a long and unexplained delay between the date of order of

detention and the arrest of the detenu and in such a case the

order of detention could be struck down unless the grounds

indicated a fresh application of mind of the detaining authority

WP(Crl.) 138/2007.

32

to the new situation and the changed circumstances. But

where the delay is not only adequately explained but also is

found to be the result of the recalcitrant or refractory conduct

of the detenu in evading arrest, there is warrant to consider the

‘link’ not snapped but strengthened. In that case the order of

detention was made on December 19, 1974. The detenu was

found to be absconding. Action was taken pursuant to Section

7 of the COFEPOSA Act and he was proclaimed as a person

absconding under Section 82 of the Criminal Procedure Code.

The proclamation was published in several leading English

and local daily newspapers. Several other steps were taken

despite which he could not be arrested until he surrendered

himself on February 1, 1978.”

This is cited by the learned Additional Solicitor General to contend that

there is no merit in the contention of the petitioner that the actual detention

being carried out more than three years from the date of order of detention,

the order is vitiated.

(vii) Naresh Kumar Goyal v. Union of India ((2005) 8 SCC

276) was a case of a writ petition filed at the pre-arrest stage challenging

the detention order. Therein, the court took the view that delay in passing

the order of detention or delay in executing the order could not be fatal

except when the same stands unexplained.

(viii) In Vinod K. Chawla v. Union of India ((2006) 7 SCC

337) the court took the view that the law does not contemplate every

WP(Crl.) 138/2007.

33

document or material in the possession of the sponsoring authority must

necessarily be placed before the detaining authority. It further held as

follows:

“The contention regarding delay in disposal of the

representation cannot be judged by any straitjacket formula

divorced from facts. This has to be examined with reference to

the facts of each case having regard to the volume and

contents of the grounds of detention, the documents supplied

along with the grounds, the inquiry to be made by the officers

of different departments, the nature of the inquiry, the time

required for examining the various pleas raised, the time

required in recording the comments by the authorities of the

department concerned, and so on. There should be no

inaction or lethargy in consideration of the representation and

where there is a proper explanation for the time taken in

disposal of representation even though it may be long, the

continued detention of the detenu would not be rendered illegal

in any manner.”

(ix) In Safiya v. Government of Kerala ((2003) 7 SCC 46),

the court took the view that the delay was explained by the dates and other

details given in the counter affidavit, and there was no undue delay. The

court also held as follows:

“The liberty of a citizen is undoubtedly very

important. It is our duty to ensure that there is strict

compliance with the provisions of law. In our view, strict

WP(Crl.) 138/2007.

34

compliance with the provisions of law has been made. The

Court, in our opinion, cannot lose sight of the fact that those

who commit economic offence do harm to the national interest

and economy. Thus, the High Court, while examining the

case, had taken a cumulative view of the situation and had

seen all the relevant facts.

On a consideration of the totality of the

circumstances, the High Court came to the conclusion that the

detenu has violated the provisions of law and his activities are

not in the larger national interest and that the Court should be

slow to come to the aid of the detenu. We agree with the

conclusion arrived at by the High Court.”

That was a case where the Under Secretary, upon receipt of the comments

sent by the Sponsoring Authority had placed the matter before the

Secretary on 7.10.2002 through the Joint Secretary, to whom it was put up.

Thereafter the representation was disposed of on 17.10.2002 by the

Secretary. The court noted that 12.10.2002, 13.10.2002, 14.10.2002 and

15.10.2002 were holidays.

(x) In Hare Ram Pandey v. State of Bihar ((2004) 3 SCC

289), the court did not countenance the petition of the detenu at the

instance of a person against whom order of detention was passed finding

that he was trying his best in taking various dilatory tactics to deflect the

course of justice. The court also held that satisfaction of the detaining

authority is a purely subjective affair. He may act on any material and on

WP(Crl.) 138/2007.

any information that it may have before it. In the course of the judgment

the court held as follows:

“The detaining authority may act on any material

and on any information that it may have before it. Such

material and information may merely afford basis for a

sufficiently strong suspicion to take action, but may not satisfy

the tests of legal proof on which alone a conviction for offence

will be tenable. The compulsions of the primordial need to

maintain order in society without which the enjoyment of all

rights, including the right to personal liberty would lose all their

meanings are the true justification for the laws of preventive

detention. The pressures of the day in regard to the

imperatives of the security of the State and of public order

might require the sacrifice of the personal liberty of individuals.

Laws that provide for preventive detention posit that an

individual’s conduct prejudicial to the maintenance of public

order or to the security of State or corroding financial base

provides grounds for satisfaction for a reasonable

prognostication of possible future manifestations of similar

propensities on the part of the offender. This jurisdiction has

been called a jurisdiction of suspicion. The compulsions of the

very preservation of the values of freedom of democratic

society and of social order might compel a curtailment of

individual liberty . “To lose our country by a scrupulous

adherence to the written law” said Thomas Jefferson “would be

to lose the law itself, with life, liberty and all those who are

enjoying with us, thus absurdly sacrificing the end to the

WP(Crl.) 138/2007.

needs.” This, no doubt, is the theoretical jurisdiction for the

law enabling preventive detention. But the actual manner of

administration of the law of preventive detention is of utmost

importance. The law has to be justified by the genius of its

administration so as to strike the right balance between

individual liberty on the one hand and the needs of an orderly

society on the other.”

(xi) In Sayed Taher Bawamiya v. Joint Secretary to the

Govt. of India ((2000) 8 SCC 630) an order of detention was passed on

29.6.1984 against the brother of the petitioner under Section 3 of the

COFEPOSA Act. Despite the passage of 16 years the order was not

served on the proposed detenu as he left India on 25.5.1976. Petitioner

challenged the notice under Section 6(1) of the SAFEMA Act for fear of

losing the property. Applying the ratio of the decision in Addl. Secretary to

the Government of India v. Alka Subhash Gadia (1992 Supp (1) SCC 496)

the High Court refused to interfere in the matter in exercise of its discretion

under Article 226 taking the view that the proposed detenu had not

surrendered and the detention order not being served on him. The Apex

Court upheld the said view.

(xii) In Sunil Fulchand Shah v. Union of India((2000) 3 SCC

409) the court took the view that the period of detention has to be

computed from the date of actual detention and not from the date of the

order.

WP(Crl.) 138/2007.

(xiii) In Smt. Gracy v. State of Kerala (1991) 2 SCC 1) the

court took the view that even if representation is addressed only to the

Advisory Board instead of to Central Government or also to Central

Government, the Central Government is obliged to consider it

independently of the opinion of the Advisory Board. In the course of the

said judgment, the court held as follows:

“It being settled that the aforesaid dual obligation

of consideration of the detenu’s representation by the Advisory

Board and independently by the detaining authority flows from

Article 22(5) when only one representation is made addressed

to the detaining authority, there is no reason to hold that the

detaining authority is relieved of this obligation merely because

the representation is addressed to the Advisory Board instead

of the detaining authority and submitted to the Advisory Board

during pendency of the reference before it. It is difficult to spell

out such an inference from the contents of Article 22(5) in

support of the contention of the learned Solicitor General. The

contents of Article 22(5) as well as the nature of duty imposed

thereby on the detaining authority support the view that so long

as there is a representation made by the detenu against the

order of detention, the aforesaid dual obligation under Article

22(5) arises irrespective of the fact whether the representation

is addressed to the detaining authority or to the Advisory

Board or to both. The mode of address is only a matter of

form which cannot whittle down the requirement of the

constitutional mandate in Article 22(5) enacted as one of the

WP(Crl.) 138/2007.

safeguards provided to the detenu in case of preventive

detention.”

This position is relied on by the respondents in support of the decision

taken on Ext.P4 representation by the detaining authority, though Ext.P4

was addressed to the third respondent.

(xiv) In K.I.Pavunny v. Assistant Collector (HQ), Central

Excise Collectorate, Cochin ((1997) 3 SCC 721) the court held that a

statement taken by the Customs Officer under Section 108 of the Customs

Act can be admissible as evidence for prosecution under Section 135 of

the Customs Act. This decision is cited to contend that if such statements

can be relied on even in a prosecution, it is clearly possible for the

authorities to rely upon such statements which have been taken by the

authorities under FEMA for forming the requisite opinion under Section 3 of

the COFEPOSA Act.

9. Sri. M.K.Damodaran relied on the decision of the Apex

Court reported in D. Anuradha v. Joint Secretary (2006(5) SCC 142).

Paragraph 26 of the said judgment reads as follows:

“The learned counsel for the appellant had urged

before the High Court that the detenu was a non-resident

Indian and, therefore, the detention order could not have been

passed against him. This contention was elaborately

considered in Point I in the impugned judgment and it was held

WP(Crl.) 138/2007.

that the detenu was not a non-resident Indian. No materials

have been placed before us to prove that he was a non-

resident Indian and therefore beyond the ken of the provisions

of the COFEPOSA Act. The order of detention was rightly

passed and we find no reason to interfere with the impugned

judgment.”

Sri. M.K.Damodaran would rely on the said decision in support of the

contention that in view of the fact that the detenu is a non-resident Indian,

undoubtedly he was beyond the ken of the provision of the Act and

therefore, the order of detention is illegal.

10. The learned Additional Solicitor General met this

argument by pointing out that what was in issue in the case before the High

Court, from which the matter came up before the Apex Court, did not

warrant application to the facts of this case.

11. Findings

(1) Whether Section 3 of the COFEPOSA Act available against a

person permanently residing abroad?

(i). As regards the contention of the petitioner that Section 3

of the COFEPOSA Act cannot be invoked against the detenu as he was

permanently residing at Dubai is concerned, we think that there is no merit

in that contention. On a perusal of Section 3, it is clear that the Act vests in

the appropriate Government, the authority to detain any person including a

WP(Crl.) 138/2007.

foreigner. In the Foreigners Act, ‘foreigner’ is defined as any person, who

is not a citizen of India. Sri. Damodaran would contend that it is

indispensable for the authority in exercise of power under Section 3 that

the proposed detenu should not be permanently residing outside India.

According to him, any other view would make the proceedings

meaningless, as an order of preventive detention is not punitive and the

order of detention is meant to be executed immediately as it is intended to

prevent the doing of an act or series of acts contemplated in the provision

in the future. If there is no prospect of the order of detention being

implemented, in view of the fact that the proposed detenu is beyond the

territory of India, it will be a mere futile exercise and not in keeping with the

object of the Act, he contends. There is no extra territorial jurisdiction

vested with the Government, he contends. It may be another thing that if,

after the passing the order of detention, the proposed detenu, who was

within India absconds and proceeds to go abroad. It may be another thing,

he would submit that, if the detenu is residing in India and he has gone

abroad only for a short period. We are however inclined to agree with the

Additional Solicitor General that having regard to the wording of the Act

and the object of the Act, it would not be illegal to order detention of a

person, who, at the time of the passing of the order, is residing outside

India permanently.

WP(Crl.) 138/2007.

(ii). Learned Additional Solicitor General made available

before us the details of the visits of the detenu to India on the strength of

the entries in the passport. They would really show that the detenu had

come to India on 17.2.1996. 6.2.1997, 23.7.1997, 16.10.1997, 15.1.1999,

25.3.1999, on four occasions in the year 2000, three occasions in the year

2001, and on four occasions in the year 2002. The order of detention was

passed on 19.11.2003. The petitioner has not come to India in the years

2003, 2004, 2005 and 2006. Thereafter he came to India on 9.4.2007 and

was apprehended and detained. We would think that the authority to pass

an order of detention is vested with the Government as regards any person

including a foreigner. The fact that the order may not be immediately

executed cannot detract from the validity of the order of detention and the

validity of the order of detention cannot be premised on the possibility that

the order of detention may not be capable of being executed in the

immediate future. But, for the fact that the detenu chose not to come to

India after the order of detention for a good period of time, it is possible that

the order may have been implemented earlier upon his having come to

India earlier than he actually did. The fact that execution is delayed on

account of the proposed detenu himself not making himself available,

cannot take away the validity of the order. No doubt, an order of detention

can be passed against a person including a foreigner, only when his

WP(Crl.) 138/2007.

conduct attracts the grounds mentioned in Section 3 of the Act. Those

grounds do provide a territorial nexus between him and the Union of India.

Proposed detenu’s act must be deleterious in the context of the activities

which must have connection with the interest of the Nation as enumerated

in Section 3. Once that nexus is established between the person, it may

not be either in keeping with the literal meaning and also with purposive

interpretation, which courts are charged to place on statutory provision to

deny the authority, the right to detain a person, who may be at the given

time even permanently residing outside the territory of India. We would

think that, having regard to the wording of Section 3 of the Act, even

without reference to Section 6, the order of detention in this case is to the

supported.

(2) Whether there was delay in passing order of detention?

Regarding the contention of the petitioner that there was delay

in passing the order of detention, we would think that the petitioner has not

made out a case in the facts of this case. Ext.P2 would show that the

matter was fairly convoluted. It involved a very detailed investigation,

collection of various materials and taking of statements from various

persons. The matter started with the search of the premises of

Sri.Surendra Kumar on 11.4.2000. Having regard to the various matters,

which have been done with reference to various dates as given in the

WP(Crl.) 138/2007.

additional counter affidavit, we are of the view that we should not interfere

with the order of detention for the reason that there was delay in making

the order of detention as far as the detenu is concerned. The order of

detention cannot be passed lightly. Though order of detention is to be

made on subjective satisfaction of the detaining authority, he must have

some materials. He would obviously be alive to the possibility of the matter

engaging the attention of the Constitutional court. Therefore, if time is

taken to collect the materials and scrutinize it from time to time, to dub an

order of detention passed, after taking such steps, as vitiated for the

reason of delay in making the order, we would think that that would be not

in keeping with either the purpose of the Act or opposed to the

constitutional guarantee.

(3) Whether consideration of Ext.P4 by the Special Secretary was

sufficient?

As regards the contention of the petitioner that the

representation though addressed by the detenu to the third respondent,

had come to be disposed of by the Special Secretary to whom no

representation was given by the detenu, we are of the view that it is without

merit. As already noticed, since 3.9.1998 the power under Section 11 of

the Act could be exercised either by the Secretary or the Special Secretary.

It may be true that the petitioner has addressed Ext.P4 to the third

WP(Crl.) 138/2007.

respondent Secretary. Section 11 of the Act provides for revocation or

modification of the order of detention made by the officer of the Central

Government or by the State Government by the Central Government.

Thus, it may not be open to contend that one of the authorities, who is duly

authorised to consider the representation is deprived of his authority to

consider the representation by reason of the mere fact that the detenu has

addressed the representation specifically to the other authority, who is also

empowered to consider such representation. The detenu cannot be said to

have claim or a vested right to have the representation considered by only

a particular officer and the consideration of his representation by another

named officer of the Central Government, who is duly empowered in the

said behalf by law cannot vitiate a decision on the representation.

(4) Is consideration of representations mechanical?

(i). As regards the further contention of the petitioner that the

consideration of the representations were done in a mechanical manner,

we would think that there may not be much justification in the matter. We

must remind ourselves that on the one hand the authorities are charged

with the constitutional duty to consider the representation without delay,

they are equally obliged under the Constitution and the Act to consider it in

a proper manner. Having regard to the decisions of the Apex Court cited

before us, there can be no dispute that an order considering a

WP(Crl.) 138/2007.

representation need not be reasoned. Thus an order rejecting a

representation cannot be interfered with for the reason that there are no

reasons given at all in support of the order rejecting the representation.

We must at this juncture indicate that there is no merit in the complaint of

the petitioner that Exts.P7 to P9 are seen signed by the Under Secretary.

We have perused the files relating to the decisions on the representations

made available before us by the Additional Solicitor General. We find that

the decisions are seen taken, going by the files made available before us,

by the detaining authority and by the Special Secretary. All that the Under

Secretary has done is to communicate the decisions taken by the detaining

authority and the Special Secretary on behalf of the Central Government.

It is not the law that the decision taken by the competent authority is also to

be communicated by them. No doubt Sri. M.K.Damodaran would contend,

after noting the files which we made available for his perusal, that the order

of rejection of the representation by the Special Secretary would show that

he has not considered the matter at all. He would submit that though the

files would show that the detention file was before him, if one goes by the

remarks made by the Under Secretary, the actual order passed by the

Special Secretary would show that he has not considered the files at all. It

is contended that there is non-consideration of the representation by the

Special Secretary for not only the reason that the decision is taken on

WP(Crl.) 138/2007.

22.5.2007 by both the detaining authority and the Special Secretary going

by the affidavits in a case where the comments were made available to

them on 22.5.2007, going by the order, the Special Secretary has only

stated that he has gone through the representation and considered it in the

context of the party and materials on record and found it be without merit

and rejected it. It is submitted that he has not even referred to the

detention file. He would submit that this would not satisfy the requirements

of law. In this connection he cited the decision of the Division Bench of this

court reported in Lekha Nandakumar v. Government of India (2004(2)

K.L.T 1094) and he would submit that in similar circumstances this court

frowned upon the method of consideration of the representation and found

it to be in violation of law. To this, Additional Solicitor General would

contend that it must be borne in mind that it is beyond any controversy that

no reasons are required to support a valid order rejecting the

representation by the detenu. When once reasons are not required to be

furnished in support of an order of detention, it is inconceivable that it could

be contended that the order rejecting representation would be termed

mechanical.

(ii). Sri. M.K.Damodaran would contend that the court should

also take a serious note of the fact that while in the affidavit filed before this

court, it is contended that the detaining authority has rejected Ext.P4

WP(Crl.) 138/2007.

representation on 22.5.2007, a perusal of the files would clearly show that

the representation was rejected by the detaining authority on 21.5.2007.

He would submit that the matter was being approached in a most callous

manner, thus probabilising his contentions.

(iii). Exts. P7 to P9 actually evidence only the communication

of the decision taken by the detaining authority and by the duly authorised

officer. As held by the Apex Court a decision taken on the representation

without calling for the remarks of the sponsoring authority would become

vitiated. Going by the files, it is clear that comments were indeed called for

from the sponsoring authority, comments were processed and put up

before the detaining authority and also the Special Secretary. Going by the

files, it is true that the detaining authority has rejected Ext.P4

representation on 21.5.2007. The statement in the affidavit that it was

disposed of on 22.5.2007 is sought to be explained as a mere mistake.

Even though Sri. Damodaran did suggest that the discrepency would all

show the possibility of the files being made up cannot be discounted, we

are of the view that the contention of the petitioner that the representation

was not considered as required in law is to be rejected. The rejection need

not be by a reasoned order. No doubt, the Special Secretary has in the file

not made mention of the detention file in particular in his order, but we

cannot overlook the fact that the detention file was very much before him

WP(Crl.) 138/2007.

as was the representation and the comments. We are not satisfied that the

petitioner has made out a case that Ext.P4 representation was not properly

considered. We also feel that it could not be said that Ext.P3

representation did not receive consideration as required in law. Equally we

feel that no prejudice is caused to the detenu by the detaining authority

also considering and rejecting Ext.P4 representation and hence we need

not consider whether the petitioner is right in contending that the decision

of the Apex Court in Smt.Gracy’s Case (1991(2) SCC 1) did not warrant

the detaining authority also rejecting Ext.P4 representation.

(5) Delay in execution of the order

(i). As far as the question of delay in execution is concerned,

we find that the principle to be followed is whether the delay has been

explained. Going by the entries in the passport, the detenu has not visited

India after the order of detention during 2004, 2005 and 2006. He makes

his appearance for the first time in 2007. Proceedings under Section 7 of

the COFEPOSA Act had been initiated. The detenu did not respond to the

same and surrender, instead he chose to remain away. Going by the

representation filed by the petitioner, it would appear that the detenu was

very well aware of the order of detention and the order of detention was the

reason why the detenu was not able to come to India. Thus when the

detenu chose to remain away from India, and the detention was effected

WP(Crl.) 138/2007.

immediately upon the detenu coming to India for the first time after the

order of detention, we would think that the argument of the petitioner that

there is delay in execution of the order of detention vitiating the detention

itself cannot be accepted. As held by the Apex Court, in such a case far

from the links snapping, this would also be a case where the link is

strengthened.

(ii). We are not impressed by the contention of Sri.

M.K.Damodaranan based on Ext.P11 extradition treaty and Ext.P12

agreement to the effect that no steps were taken by the respondents in

getting the assistance of UAE Government to take the detenu into custody

in execution of Ext.P1 order. Having perused Exts.P11 and P12, we are of

the view that under the same, the detenu could not have been arrested and

brought back to India.

(iii). The order of detention cannot be said to be an order of

the criminal court passed in a criminal case. When an order of detention is

passed, it cannot be said that he is accused of an offence. An order of

detention cannot be treated as a sentence by a criminal court.

(iv). The argument based on the Passports Act and the

powers under the Act also do not appeal to us. An order impounding the

passport of the detenu is permissible in law only after complying with the

principles of natural justice. It is the respondents’ case that in the facts, it

WP(Crl.) 138/2007.

was not possible.

(6) Non-supply of material relied on

Much store is laid by the Senior Counsel on the contention

regarding non-supply of material relied on by the detaining authority.

Paragraph 24 of Ext.P2, being crucial, is extracted hereunder :

“The call statement of the said mobile phone

No.98430 21514 of Shri. C. Surendran showed Mumbai phone

No.022 – 2669295. Verification made by the Directorate

disclosed that the said telephone was in the name of Ms.

Shahida V.P. Abubacker which was installed at Bismillah

Travels and used as STD/PCO Booth and Shri V.P.Abubacker,

her father was looking after the said Booth. In his statements

dated 04.09.2002 and 05.09.2002, Shri.V.P. Abubacker stated,

interalia, that he could not recognise any of the persons who

had made calls from the said booth whose details were pointed

out to him. He submitted copies of few telephone bills in

respect of the above phone number. Scrutiny of the said bills

disclosed that calls were made one after another from the said

telephone to your Dubai Cell No.00971506590974 to the Cell

No.98430-21514 of Shri. C.Surendran, to your father’s

telephone numbers in Calicut and to Lord Krishna Bank,

Coimbatore. It was further seen that out of the five Calicut

telephone numbers figured repeatedly in the said telephone

bills, three numbers viz., 765926, 366138 and 761354 were

found to be the numbers of telephones installed in your

WP(Crl.) 138/2007.

residence in Calicut.”

Petitioner would contend that it is only the telephone bill referred to in the

said paragraph which are used to connect the detenu with the entire

incidents. The petitioner also points out the further statement of

Shri.V.P.Abubacker to support his contention. In the said statement Shri

V.P.Abubacker has stated as follows:

“I am producing before you page Nos.1 to 278 and

page Nos.1 to 131, which are the telephone bills of telephone

Nos.2669295 and 2449135, which are installed in my STD

Booth for your perusal.”

It is contended that it is clear that the telephone bills as such should have

been made available to the detenu and the refusal to do so is fatal to the

detention. It is pointed out on behalf of the respondents that there are

other materials which were available to connect the detenu with the matter,

which have been detailed in the grounds of detention. He would also point

out that what was available with the detaining authority was only the

scrutiny of the telephone bills. It is submitted that the bills were made

available before the Enforcement Officer. Thereupon Sri. M.K.Damodaran

would contend that if it is true that the telephone bills were as such not

placed before the detaining authority, matters would be worse as it would

be a case where the order would be vitiated by non-application of mind by

WP(Crl.) 138/2007.

the detaining authority to the relevant material as a result of the sponsoring

authority not placing relevant materials before the detaining authority in the

form of actual telephone bills. It is true that going by Ext.P2 reference was

made to the ‘scrutiny of the said bills’. We note however that item No.47 in

the list of relied upon documents is the scrutiny report in respect of the

telephone bills submitted by Shri.V.P.Abubacker. Thus there was indeed a

scrutiny report made on the basis of the telephone bills submitted by Shri.

V.P.Abubacker. Though indeed the language employed at first blush in

para 24 supports the petitioner, we would think that actually what was

before the detaining authority was the scrutiny report made on the basis of

the bills submitted by Shri.V.P.Abubacker before the Enforcement Officer.

It is not in dispute that the scrutiny report as such was made available to

the detenu. We therefore find that there is no merit int he contention of the

petitioner that the detention is vitiated for the reason that relied upon

documents were not supplied to the detenu.

(7) Whether preventive detention is permissible against Non-Resident

Indian?

We are not impressed by the contention of the petitioner that

no order of detention can be passed against the detenu as he was a non-

resident Indian. The decision in D.Anuradha v. Joint Secretary (2006(5)

WP(Crl.) 138/2007.

SCC 142) relied on by the petitioner cannot be treated as an authority for

the proposition that an order of detention could not be passed against a

non-resident Indian. The power under Section 3 of the COFEPOSA Act is

to be traced upon fulfillment of the conditions obtaining as contemplated in

the said provision. It is available even against a foreigner. The authority

can pass an order of detention against any person. The purpose is not

punitive. The object is preventive. It is to pre-empt any person from

carrying on activities which are referred to in the said provision. As long as

the conditions are fulfilled as required under Section 3 of the COFEPOSA

Act, it would not matter that the person is a non-resident Indian or even a

foreigner. What matters is what the person has done and what is more is

likely to do in the future. We do not think that it would be correct to hold

that a non-resident Indian could not contravene the provisions of the the

Foreign Exchange Management Act.

(8) Whether order of detention invalid being without any basis?

Having gone through the grounds of detention, we do not think

that we could say that this is a case where there is no basis to issue an

order of preventive detention under Section 3 of the COFEPOSA Act. As

held by the Apex Court, the order of detention is passed in exercise of

jurisdiction of suspicion. Judicial review is limited to ascertain whether

there were some material connecting the detenu and whether the finding

WP(Crl.) 138/2007.

that detention is necessary is perverse. On a perusal of the grounds of

detention, we would think that there were materials/information before the

detaining authority and it could not be said that the subjective satisfaction

of the detaining authority was vitiated.

(9) Whether there is delay in considering the representation?

(i) We have already extracted the dates. In regard to Ext.P3,

though it is dated 20.4.2007, it is signed by the detenu on 27.4.2007 and it

reaches with the authority on 2.5.2007. Thereafter, the comments of the

Sponsoring authority were called for and it is finally considered with the

comments on 11.5.2007. We would think that having regard to the entirety

of the facts, it cannot be said that the time taken to dispose of the

representation by the detaining authority has not been explained.

(ii) As far as Ext.P4 representation is concerned, though it is

dated 27.4.2007, it was signed on 7.5.2007. It was received by the

Ministry on 10.5.2007. The comments, though called for on 11.5.2007, the

comments were received only on 21.5.2007. The representation was

disposed of on the very next day, namely, 22.5.2007by the Special

Secretary. We would think again that it is also a case where in the teeth of

these facts it could not be said that there was such a delay as to vitiate the

detention of the detenu.

In this view of the matter, we would think that there is no merit

WP(Crl.) 138/2007.

in the contentions raised by the petitioner. The writ petition is liable to the

dismissed, and accordingly it is dismissed. There will be no order as to

costs.

H.L. DATTU,
CHIEF JUSTICE

K.M. JOSEPH,
JUDGE

sb.

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P.K.Umaiba vs The Union Of India on 8 January, 2008

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