{"id":17559,"date":"2008-01-08T00:00:00","date_gmt":"2008-01-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-k-umaiba-vs-the-union-of-india-on-8-january-2008"},"modified":"2016-06-08T03:28:32","modified_gmt":"2016-06-07T21:58:32","slug":"p-k-umaiba-vs-the-union-of-india-on-8-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-k-umaiba-vs-the-union-of-india-on-8-january-2008","title":{"rendered":"P.K.Umaiba vs The Union Of India on 8 January, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
P.K.Umaiba vs The Union Of India on 8 January, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(Crl) No. 138 of 2007(S)\n\n\n1. P.K.UMAIBA, W\/O K.P.ABDUL MAJEED,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE UNION OF INDIA, REPRESENTED BY\n                       ...       Respondent\n\n2. THE JOINT SECRETARY,\n\n3. THE SECRETARY,\n\n                For Petitioner  :SRI.M.K.DAMODARAN (SR.)\n\n                For Respondent  :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR\n\nThe Hon'ble the Chief Justice MR.H.L.DATTU\nThe Hon'ble MR. Justice K.M.JOSEPH\n\n Dated :08\/01\/2008\n\n O R D E R\n                H.L. DATTU, CJ. & K.M. JOSEPH, J.\n               - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                     W.P.(CRL) No.138 of 2007\n               - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n               Dated this the 8th day of January, 2008.\n\n                                  JUDGMENT\n<\/pre>\n
K.M. JOSEPH,J,<\/p>\n
           Petitioner questions the detention of her son Sri.Asarulla<\/p>\n
Rakha Khan, herein after referred to as ‘the detenu’, pursuant to<\/p>\n
Ext.P1 detention order dated 19.11.2003. She seeks a writ of Habeas<\/p>\n
Corpus or other appropriate writ directing the respondents to produce<\/p>\n
the detenu and to release him. Exts. P7 to P9 are also challenged.<\/p>\n
           2.   Ext.P2 dated 19.11.2003 contains the grounds on<\/p>\n
which Ext.P1 detention order has been issued. The detenu submitted<\/p>\n
Ext.P3 representation dated 20.4.2007. It is seen addressed to the<\/p>\n
Joint Secretary of the Central Economic Intelligence Bureau<\/p>\n
(respondent No.2).     Ext.P4 is the representation addressed by the<\/p>\n
detenu dated 27.4.2007. It is addressed to the third respondent, who<\/p>\n
is the Secretary, Central Economic Intelligence Bureau in the<\/p>\n
Department of Revenue. The detenu also addressed Ext.P5 dated<\/p>\n
30.4.2007 before the COFEPOSA Advisory Board. Besides this, he is<\/p>\n
stated to have addressed Ext.P6 to the Cabinet Minister of Finance<\/p>\n
dated 2.5.2007. Ext.P7 is memorandum dated 11.5.2007 informing the<\/p>\n
detenu that his representation dated 20.4.2007 signed on 27.4.2007<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      2<\/span><\/p>\n
by him has been rejected by the second respondent. Ext.P8 evidences<\/p>\n
rejection of Ext.P4 representation dated 27.4.2007 signed on 7.5.2007 by<\/p>\n
the detenu by the second respondent. Ext.P9 is dated 23.5.2007 and<\/p>\n
evidences rejection of Ext.P4 representation given by the detenu by the<\/p>\n
Special Secretary and Director General, Central Economic Intelligence<\/p>\n
Bureau, Department of Revenue.\n<\/p>\n
             3. We heard Sri. M.K.Damodaran, Senior Counsel appearing<\/p>\n
on behalf of the petitioner and Sri. V.T.Gopalan,       learned Additional<\/p>\n
Solicitor General appearing on behalf of the respondents.<\/p>\n
             4. It is submitted on behalf of the petitioner that there is no<\/p>\n
basis for issuing the order of detention. He would submit that the order of<\/p>\n
detention betrays non-application of mind. He would submit that going by<\/p>\n
Exts.P1 and P2 the order of detention is seen issued under Section 3 of<\/p>\n
Conservation of Foreign Exchange and Prevention of Smuggling Activities<\/p>\n
Act, (herein after referred to as ‘the COFEPOSA Act’). He would submit<\/p>\n
that the detenu was in fact having his permanent residence in Dubai. He<\/p>\n
would submit that there is no authority under Section 3 of the Act to detain<\/p>\n
a person, who is permanently residing outside India. He would submit that<\/p>\n
the purpose of an order of detention passed under the Act, going by the<\/p>\n
language of Section 3 of the Act, is to prevent the person from acting in<\/p>\n
any manner prejudicial to the conservation or augmentation of foreign<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      3<\/span><\/p>\n
exchange or with a view to prevent him from carrying on activities, which<\/p>\n
are elaborately mentioned in Section 3. He would submit that, therefore,<\/p>\n
there is no authority under Section 3 to order the detention of a person,<\/p>\n
who, at the time of passing of the order is admittedly residing beyond the<\/p>\n
territories of the Union of India. He would further submit that this is a case<\/p>\n
where Ext.P1 order of detention is dated 19.11.2003. However, the actual<\/p>\n
detention of the detenu was effected only on 9.4.2007. He would therefore<\/p>\n
contend that having regard to the well settled principle that an order of<\/p>\n
detention executed with delay is vitiated, this is a clear case where the<\/p>\n
order of detention being executed after more than three years is palpably<\/p>\n
unsustainable. He would further contend that having regard to the facts as<\/p>\n
brought out, there was delay in fact in passing the order of detention in<\/p>\n
question. Sri. M.K.Damodaran would further contend that having regard to<\/p>\n
the mandate of Article 22(5) of the Constitution as also the provisions<\/p>\n
contained in Section 3(3) of the COFEPOSA Act, this is a case where the<\/p>\n
mandate of law stood violated. He would contend that Ext.P2 grounds of<\/p>\n
detection would show that detenu was advised that he may submit his<\/p>\n
representation through the Jail authorities to the following persons: The<\/p>\n
representation meant for the detaining authority was to be addressed to the<\/p>\n
Joint Secretary, Central Economic Intelligence Bureau of the Department of<\/p>\n
Revenue, Ministry of Finance,namely, the second respondent.               The<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      4<\/span><\/p>\n
representation meant for the Central Government was to be addressed to<\/p>\n
the Secretary, Department of Revenue, namely, the third respondent. The<\/p>\n
representation meant for the Advisory Board was to be addressed to the<\/p>\n
Chairman of the COFEPOSA Advisory Board, Delhi High Court.               It is<\/p>\n
submitted that Ext.P3 was addressed by the detenu, accordingly, to the<\/p>\n
second respondent and Ext.P4 was addressed to the third respondent. He<\/p>\n
would point out that there is violation of law in so far as the representation<\/p>\n
which is addressed to the third respondent came to be disposed of by the<\/p>\n
Special Secretary and Director General of the Department of Revenue.<\/p>\n
The third respondent himself should have considered the representation of<\/p>\n
the detenu and there was no authority with the Special Secretary and<\/p>\n
Director General to consider his representation, he contends. He would<\/p>\n
also submit that going by Ext.P8 it would appear that Ext.P4<\/p>\n
representation, which, the detenu addressed to the third respondent was<\/p>\n
not only not considered by him, but was considered by another authority,<\/p>\n
namely, the detaining authority, who has proceeded to reject the<\/p>\n
representation. It is submitted that the detenu had not addressed Ext.P4 to<\/p>\n
the detaining authority. Therefore, the alleged consideration and rejection<\/p>\n
of Ext.P4 representation by the detaining authority was wholly without<\/p>\n
warrant and illegal and therefore vitiates the detention of the detenu. He<\/p>\n
would further contend that the detention of the detenu is clearly vitiated for<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      5<\/span><\/p>\n
the reason that a perusal of Exts.P7 to P9 would show that the<\/p>\n
representations have been rejected in a mechanical manner.          He would<\/p>\n
contend that it is settled proposition of law that Article 22(5) of the<\/p>\n
Constitution and Section 3(3) of the Act contemplate a real and meaningful<\/p>\n
consideration of the representation of the detenu, which is plainly absent in<\/p>\n
this case. Thereafter, the Senior Counsel would further contend that there<\/p>\n
is inordinate delay in the disposal of the representations filed by the<\/p>\n
detenu. The first representation (Ext.P3) is seen dated 20.4.2007. It is<\/p>\n
seen from Ext.P7 that Ext.P3, which is addressed to the detaining authority<\/p>\n
is rejected by Ext.P7 dated 11.5.2007. It is contended that thus, there is<\/p>\n
delay of nearly twenty one days in considering the representation of the<\/p>\n
petitioner.  Likewise, it is pointed out that Ext.P4 representation dated<\/p>\n
27.4.2007 is disposed of only on 22.5.2007. It is further contended that<\/p>\n
contrary to the settled mandate of law that the detaining authority should<\/p>\n
furnish the materials which are relied on in the order of detention, there has<\/p>\n
been a breach in the facts of this case, as the only material, by which the<\/p>\n
detenu is said to be connected with the case, namely, the telephone bills<\/p>\n
referred to in paragraph 24 of Ext.P2, were not supplied to the detenu. He<\/p>\n
would further submit that there is really no basis for invoking the power<\/p>\n
under Section 3 of the COFEPOSA Act, as the allegations in the order<\/p>\n
relate to the remittances in Indian rupees and therefore this is not a case<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                       6<\/span><\/p>\n
where it is open to the authorities to invoke Section 3, which is framed with<\/p>\n
the object of inter alia checking undesirable dealings in foreign exchange.<\/p>\n
Sri. M.K.Damodaran would submit that there is no authority under Section<\/p>\n
3    COFEPOSA       Act   to  proceed     against  a  non-resident    Indian.<\/p>\n
Sri.M.K.Damodaran also contended that under the terms of Ext.P11 treaty<\/p>\n
and Ext.P12 agreement, there was no difficulty for the respondents to get<\/p>\n
the assistance of the UAE Government to take the detenu into custody in<\/p>\n
execution of Ext.P1 order. It is also contended that had there been a non-<\/p>\n
bailable warrant and steps taken under Sections 82 and 83 of the Criminal<\/p>\n
Procedure Code, there would have been no difficulty for apprehending the<\/p>\n
detenu from UAE, which is a contracting state in Exts. P11 and P12. It is<\/p>\n
also contended that steps could have been taken under the Passports Act,<\/p>\n
if the respondents were serious in executing the order of detention.<\/p>\n
             5. Per contra, learned Additional Solicitor General would<\/p>\n
contend that there is no merit in the writ petition. A counter affidavit has<\/p>\n
been filed and this has been followed up, apparently as per court direction,<\/p>\n
by the filing of an additional counter affidavit. He would contend that a<\/p>\n
perusal of the grounds would clearly show that there was indeed legal<\/p>\n
basis for invoking Section 3 of the COFEPOSA Act. He would submit that<\/p>\n
having regard to the phraseology of Section 3 of the COFEPOSA Act, there<\/p>\n
was authority with the detaining authority, if grounds exist, subject to the<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                          7<\/span><\/p>\n
satisfaction of the detaining authority to detain any person including a<\/p>\n
foreigner. When the detaining authority is the Central Government, there<\/p>\n
can be no legal hurdle in passing an order of detention, even though the<\/p>\n
person to be detained is residing permanently beyond the territories of the<\/p>\n
Government, he contends. He would submit that a perusal of Section 6<\/p>\n
would put matters beyond the region of doubt. Section 6 reads as follows:<\/p>\n
                    “6.    Detention order not to be invalid or<\/p>\n
       inoperative on certain grounds-No detention orders shall be<\/p>\n
       invalid or inoperative merely by reason-<\/p>\n
              (a) that the person to be detained thereunder is outside<\/p>\n
       the limits of the territorial jurisdiction of the Government or the<\/p>\n
       officer making the order of detention, or<\/p>\n<\/blockquote>\n
        (b) that the place of detention of such person is outside the<\/p>\n
       said limits.”\n<\/p><\/blockquote>\n
He would contend that undoubtedly as far as the Central Government is<\/p>\n
concerned, the limits of the territorial jurisdiction of the Government is the<\/p>\n
whole territory comprised within the Union of India.           Therefore, having<\/p>\n
regard to Section 6 of the COFEPOSA ACt, an order of detention shall not<\/p>\n
be in-operative or invalid merely for the reason that the proposed detenu is<\/p>\n
outside India when the order is passed and              there is no merit in the<\/p>\n
petitioner’s contention, he points out. He would submit that any other view<\/p>\n
would make Section 6 otiose. In regard to Clause (b) of Section 6 of<\/p>\n
COFEPOSA Act, he would submit that this would apply in respect of a<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                       8<\/span><\/p>\n
detention made by the State Government. He would submit that there<\/p>\n
were several materials to order detention of the detenu in this case. He<\/p>\n
reminded the court that what is necessary to pass a valid order of detention<\/p>\n
is only the existence of subjective satisfaction of the detaining authority. As<\/p>\n
far as delay in considering the representation is concerned, it is stated in<\/p>\n
the affidavit that though Ext.P3 representation, addressed to the detaining<\/p>\n
authority concerned, is dated 20.4.2007, it was signed by the detenu on<\/p>\n
27.4.2007. It was received in the Ministry on 2.5.2007. Comments were<\/p>\n
called for from the sponsoring authority on 3.5.2007.            Thereafter, a<\/p>\n
reminder was issued on 9.5.2007 to the Sponsoring Authority and on<\/p>\n
10.5.2007 the comments were received in the Ministry. The comments<\/p>\n
were processed and was put up for the decision of the detaining authority,<\/p>\n
who considered and rejected the same on 11.5.2007. It is their case that<\/p>\n
as far as Ext.P4 representation dated 27.4.2007 is concerned, it was<\/p>\n
considered by the detaining authority independently. The representation,<\/p>\n
Ext.P4, though dated 27.4.2007, was signed by the detenu on 7.5.2007, it<\/p>\n
was received in the Ministry on 10.5.2007. Comments were called for on<\/p>\n
11.5.2007.    There was reminder sent on 18.5.2007 to the Sponsoring<\/p>\n
authority.   Thereafter comments were received on 21.5.2007 by the<\/p>\n
Ministry, comments were processed on 22.5.2007 and decision taken by<\/p>\n
both the detaining authority and also the Special Secretary cum Director<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                     9<\/span><\/p>\n
General on 22.5.2007.\n<\/p>\n
             6. As regards the contention of the petitioner that the third<\/p>\n
respondent, Secretary, to whom Ext.P4 representation was addressed, has<\/p>\n
not considered the representation, but the Special Secretary has<\/p>\n
considered it, to whom it was not addressed, it is submitted that in partial<\/p>\n
modification of the delegation of the powers contained in his order dated<\/p>\n
22.4.1998, the Minister of Finance, Government of India ordered the<\/p>\n
vesting of the power in the Central Government in relation to the provisions<\/p>\n
of the Act in regard to Section 11 with the Secretary or Special Secretary<\/p>\n
cum D.G., CE.IB in the Department of Revenue, Ministry of Finance. This<\/p>\n
vesting of powers in the Secretary or Special Secretary under Section 11 is<\/p>\n
stated to be on 2.9.1998. Therefore it is contended that the consideration<\/p>\n
of the representation by the Special Secretary was perfectly valid and<\/p>\n
strictly in accordance with Section 3 of the COFEPOSA Act. He would<\/p>\n
submit that though Exts.P7 to P9 are signed by the Under Secretary, they<\/p>\n
are only decisions taken by the appropriate authorities, which are<\/p>\n
communicated by the Under Secretary in accordance with the Manual of<\/p>\n
Office Procedure and there is no merit in the contention of the petitioner<\/p>\n
that the competent authority, to whom the representations were addressed,<\/p>\n
has not considered his representations. He would further contend in reply<\/p>\n
that there was no delay in passing the order of detention.        He would<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      10<\/span><\/p>\n
contend that this is a case where a number of follow up actions had to be<\/p>\n
taken from the date of the incident, that is 11.4.2000 till 27.11.2003.<\/p>\n
Synopsis of the dates and the dates of action taken are given in the<\/p>\n
additional counter affidavit. He would point out that as stated in Ext.P2<\/p>\n
order of grounds of detention, the matter was fairly complicated, the<\/p>\n
amount involved was huge and there had to be proper care exercised in<\/p>\n
collecting information and evaluating the same before an order of detention<\/p>\n
could be passed against the detenu.         Regarding the contention of the<\/p>\n
petitioner that there was delay in executing the order of detention, it is<\/p>\n
contended that though the order of detention was passed on 19.11.2003,<\/p>\n
the detenu came to India for the first time after the date of the order only on<\/p>\n
9.4.2007.    He came to be arrested immediately and he has been in<\/p>\n
detention ever since. It is brought to our notice that there was no delay at<\/p>\n
all in executing the order of detention. He would submit that this is a case<\/p>\n
where it is knowing fully well that there is an order of detention, the detenu<\/p>\n
continued to keep away from the Indian soil and he points out the<\/p>\n
petitioner’s representation in support thereof.     He would submit that it<\/p>\n
would not be correct to contend that there is a rupture in the link by reason<\/p>\n
of the date of actual detention. He would submit that this is a case where<\/p>\n
action was taken under Section 7 of the COFEPOSA Act. The detenu<\/p>\n
instead of responding to the order of detention, chose to remain away and<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                       11<\/span><\/p>\n
absconded thereby preventing the execution of the order.            He would<\/p>\n
therefore submit that the order of detention could not be attacked on the<\/p>\n
ground of delay in effectuating it, as the delay in effectuating the order of<\/p>\n
detention was solely on the ground of the conduct of the detenu in<\/p>\n
remaining beyond the territory of India.    He would contend that there is no<\/p>\n
merit in the complaint of the petitioner that the detenu was not supplied<\/p>\n
with the telephone bills referred to in paragraph 24 of Ext.P2 grounds of<\/p>\n
detention.     According to respondents, what was before the detaining<\/p>\n
authority was only the scrutiny report of the bills. That scrutiny report was<\/p>\n
made available to the detenu also.         He would also contend that it is<\/p>\n
pertinent to note that there is no request by the detenu to be served with<\/p>\n
the bills. No doubt, learned Additional Solicitor General would fairly submit<\/p>\n
that it is the law that if any document is relied on by the detaining authority<\/p>\n
for ordering detention, even without any request from the detenu, it is<\/p>\n
incumbent upon the authority to supply the detenu with such materials. It<\/p>\n
makes no difference that the detenu has not made any request to be<\/p>\n
supplied with the same. But it is submitted on behalf of the respondents<\/p>\n
that in the facts of this case, in so far as the bills as such were not before<\/p>\n
the detaining authority, there is no violation of the constitutional mandate.<\/p>\n
He would submit that there is no merit in the contention of the petitioner<\/p>\n
that the representations were disposed of in a mechanical manner.<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      12<\/span><\/p>\n
According to him, the decision of the Apex Court has established the<\/p>\n
principle that an order disposing a representation by a detenu need not<\/p>\n
contain any reasons. What is required is only that there should be a proper<\/p>\n
consideration of the representation made by the detenu. He would submit<\/p>\n
that the authorities, who have considered the representations are<\/p>\n
authorities well versed with the matters and on the one hand they are<\/p>\n
expected to pass orders expeditiously, and on the other hand there should<\/p>\n
be a proper consideration of the representation, and therefore a balance<\/p>\n
has to be struck and the files would indicate, according to the Additional<\/p>\n
Solicitor General, that there has been proper consideration of the<\/p>\n
representations in the facts of this case.     He would submit that the<\/p>\n
detaining authority came to consider Ext.P4 representation only on the<\/p>\n
basis of the principle established by the Apex Court in Smt. Gracy v. State<\/p>\n
of Kerala<\/a> (1991 (2) SCC 1), which is to the effect that when a<\/p>\n
representation is addressed to the Advisory Board, there is a duty cast on<\/p>\n
the detaining authority also to independently consider the same. He would<\/p>\n
point out that in the letter of the Superintendent of Central Prison<\/p>\n
accompanying the representation dated 27.4.2007, there is a copy marked<\/p>\n
to the Chairman of the Central Advisory Board and it was in such<\/p>\n
circumstances the detaining authority also proceeded to independently<\/p>\n
consider Ext.P4 representation and reject it. He would submit that there is<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      13<\/span><\/p>\n
no prejudice at all at any rate caused to the detenu by the fact that the<\/p>\n
detaining authority has also considered Ext.P4 representation and rejected<\/p>\n
it. This was for the reason that apart from the detaining authority, the<\/p>\n
Central Government acting through the Special Secretary, who was duly<\/p>\n
authorised has independently considered the representation of the detenu<\/p>\n
and rejected it.   He would contend that the order of detention is passed in<\/p>\n
exercise of jurisdiction of suspicion.     It is not punitive.  While all the<\/p>\n
safeguards vouch safed to the detenu under the Constitution and under<\/p>\n
the Act has to be scrupulously followed, which has been done in this case,<\/p>\n
the courts would be loathe to interfere with the order of preventive<\/p>\n
detention, which is to be passed on subjective satisfaction, he submits. He<\/p>\n
would submit that while subjective satisfaction is not to be confused with<\/p>\n
acting on the ipse dixit of the authority, its validity cannot be impugned<\/p>\n
except in a case where there are no materials at all or with the materials on<\/p>\n
record a view which is perverse has been adopted. He would submit that<\/p>\n
none of the contingencies, which imperil an order of detention exist in the<\/p>\n
facts of this case.\n<\/p>\n
              7. Both parties referred to a large body of case law.<\/p>\n
(1) Non-supply of documents.\n<\/p>\n
              (i)  Learned counsel for the petitioner sought to draw<\/p>\n
assistance from the following decisions of the Apex Court to buttress his<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      14<\/span><\/p>\n
contention that non-supply of the telephone bills was fatal to the validity of<\/p>\n
the order of detention.\n<\/p>\n
             (ii) In Icchu Devi v. Union of India (AIR 1980 SC 1983) the<\/p>\n
Apex Court has inter alia held as follows:\n<\/p>\n
                    “If there are any documents, statements or other<\/p>\n
      materials relied upon in the grounds of detention, they must<\/p>\n
      also be communicated to the detenu, because being<\/p>\n
      incorporated in the grounds of detention, they form part of the<\/p>\n
      grounds and the grounds furnished to the detenu cannot be<\/p>\n
      said to be complete without them. It would not therefore be<\/p>\n
      sufficient to communicate to the detenu a bare recital of the<\/p>\n
      grounds of detention, but copies of the documents, statements<\/p>\n
      and other materials relied upon in the grounds of detention<\/p>\n
      must also be furnished to the detenue within the prescribed<\/p>\n
      time subject of course to cl. (6) of Article 22 in order to<\/p>\n
      constitute compliance with clause (5) of Article 22 and Section<\/p>\n
      3, sub-section (3) of the COFEPOSA Act. One of the primary<\/p>\n
      objects of communicating the grounds of detention to the<\/p>\n
      detenu is to enable the detenu, at the earliest opportunity, to<\/p>\n
      make a representation against his detention and it is difficult to<\/p>\n
      see how the detenu can possibly make an effective<\/p>\n
      representation unless he is also furnished copies of the<\/p>\n
      documents, statements and other materials relied upon in the<\/p>\n
      grounds of detention.”\n<\/p><\/blockquote>\n
             (iii) The same reasoning has been followed in the decision<\/p>\n
reported in S. Gurdip Singh v. Union of India (AIR<\/a> 1981 SC 362). In<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                     15<\/span><\/p>\n
\n<\/blockquote>\n
Kamla v. State of Maharashtra (AIR 1981 SC 814) the court held as<\/p>\n
follows:\n<\/p>\n
                   “The documents and materials relied upon in the<\/p>\n
      order of detention form an integral part of the grounds and<\/p>\n
      must be supplied to the detenu pari passu the grounds of<\/p>\n
      detention. If the documents and materials are supplied later,<\/p>\n
      then the detenu is deprived of an opportunity of making an<\/p>\n
      effective representation against the order of detention. Before<\/p>\n
      an order of detention can be supported, the constitutional<\/p>\n
      safeguards must be strictly observed.      Duties of detaining<\/p>\n
      authority pointed out.”\n<\/p><\/blockquote>\n
             (iv) In Powanammal v. State of Tamil Nadu (AIR<\/a> 1999 SC<\/p>\n<\/blockquote>\n
618) the court held as follows:\n<\/p><\/blockquote>\n
                   “However, this court has maintained a distinction<\/p>\n
      between a document which has been relied upon by the<\/p>\n
      detaining authority in the grounds of detention and a document<\/p>\n
      which finds a mere reference in the grounds of detention.<\/p><\/blockquote>\n
\n<\/blockquote>\n
      Whereas non-supply of a copy of the document relied upon in<\/p>\n
      the grounds of detention has been held to be fatal to continued<\/p>\n
      detention, the detenue need not show that any prejudice is<\/p>\n
      caused to him.       This is because non-supply of such a<\/p>\n
      document would amount to denial of the right of being<\/p>\n
      communicated the grounds and of being afforded the<\/p>\n
      opportunity of making an effective representation against the<\/p>\n
      order. But it would not be so where the document merely finds<\/p>\n
      a reference in the order of detention or among the grounds<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                     16<\/span><\/p>\n
\n<\/blockquote>\n
      thereof. In such a case, the detenue’s complaint of non-supply<\/p>\n
      of document has to be supported by prejudice caused to him in<\/p>\n
      making an effective representation.        What applies to a<\/p>\n
      document, would equally apply to furnishing translated copy of<\/p>\n
      the document in the language known to and understood by the<\/p>\n
      detenue, should the document be in a different language.”<\/p>\n<\/blockquote>\n
             (v) In Sophia Gulam Mohd. Bham v. State of Maharashtra<\/p>\n
(AIR<\/a> 1999 SC 3051) also the Apex Court followed the said principle. That<\/p>\n
is a case where ground of detention was that when the detenu was held at<\/p>\n
the Air Port and on his search being taken he was found in possession of<\/p>\n
diamonds which he was trying to smuggle out of India. The document<\/p>\n
seized from the premises revealed a link between the smugglers and the<\/p>\n
detenu. On the basis that he was a carrier, the detention order came to be<\/p>\n
passed. But the copies of the documents were not supplied to the detenu.<\/p>\n<\/blockquote>\n
In that case the court took note of the fact that when justifying non-supply<\/p>\n
of the document in the counter affidavit, the stand was that the diaries were<\/p>\n
considered and looked into by the detaining authority and only then he<\/p>\n
came to know that the entries were unconnected with the detenu or that the<\/p>\n
name of the detenu did not figure in any of the entries in the said diary<\/p>\n
rendering the stand contradictory and unreliable. This principle has also<\/p>\n
seen followed in the decision reported in M. Ahamedkutty v. Union of<\/p>\n
India<\/a> ((1990) 2 SCC 1). Therein the court had to consider the question as<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      17<\/span><\/p>\n
to whether the non-supply of the bail application and the bail order was<\/p>\n
fatal to the order of detention. The court held that if there is failure or even<\/p>\n
delay in furnishing those documents, it would amount to denial of a right to<\/p>\n
make an effective representation. It further held as follows:<\/p>\n
                    “It is immaterial whether the detenu already knew<\/p>\n
       about their contents or not.        In Mehrunissa v. State of<\/p>\n
       Maharashtra<\/a> it was held that the fact that the detenu was<\/p>\n
       aware of the contents of the documents not furnished was<\/p>\n
       immaterial and non-furnishing of the copy of the seizure list<\/p>\n
       was held to be fatal. To appreciate this point one has to bear<\/p>\n
       in mind that the detenu is in jail and has no access to his own<\/p>\n
       documents.      In Mohd.Zakir v. Delhi Administration<\/a> it was<\/p>\n
       reiterated that it being a constitutional imperative for the<\/p>\n
       detaining authority to give the documents relied on and<\/p>\n
       referred to in the order of detention pari passu the grounds of<\/p>\n
       detention, those should be furnished at the earliest so that the<\/p>\n
       detenu could make an effective representation immediately<\/p>\n
       instead of waiting for the documents to be supplied with. The<\/p>\n
       question of demanding the documents was wholly irrelevant<\/p>\n
       and the infirmity in that regard was violative of constitutional<\/p>\n
       safeguards enshrined in Article 22(5).”\n<\/p><\/blockquote>\n
             (vi)  The petitioner also relied on the decision reported in<\/p>\n
District Collector, Ananthapur v. V. Laxmanna<\/a> ((2005) 3 SCC 663),<\/p>\n
wherein the court held as follows:\n<\/p><\/blockquote>\n
                    “Therefore, while holding that dealing with arrack,<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                      18<\/span><\/p>\n
\n<\/blockquote>\n
      which is dangerous to public health would become an act<\/p>\n
      prejudicial to the maintenance of public order attracting the<\/p>\n
      provisions of the Act, it must be held that it is obligatory for the<\/p>\n
      detaining authority to provide the material on which it has<\/p>\n
      based its conclusion on this point.       Therefore, we are in<\/p>\n
      agreement with the High Court that if the detaining authority is<\/p>\n
      of the opinion that it is necessary to detain a person under the<\/p>\n
      Act to prevent him from indulging in sale of goods dangerous<\/p>\n
      for human consumption the same should be based on some<\/p>\n
      material and the copies of such material should be given to the<\/p>\n
      detenu.”\n<\/p><\/blockquote>\n
             (vii)  Petitioner also relied on the decision reported in<\/p>\n
K.Krishnaveni v. Secretary, Govt. of Tamil Nadu, Public (L & O),<\/p>\n
Department of Revenue<\/a> (2006 Crl.L.J. 757), which is a Bench decision of<\/p>\n
the Madras High Court taking the view inter alia that documents, which are<\/p>\n
relied on must be communicated to the detenu for an effective<\/p>\n
consideration.    The court declared that the question of demanding<\/p>\n
documents, which are relied on is wholly irrelevant, because it is the<\/p>\n
constitutional mandate to supply the documents.<\/p>\n<\/blockquote>\n
(2) Manner of consideration of representation.\n<\/p>\n
             (i)  In support of his contention that there was delay in<\/p>\n
considering the representation of the detenu, the following decisions are<\/p>\n
referred to:\n<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                     19<\/span><\/p>\n
             (ii) In the decision in Union of India v. Paul Manickam<\/a><\/p>\n
((2003) 8 SCC 342) the court held as follows:\n<\/p>\n
                   “So far as the pivotal question whether there was<\/p>\n
     delay in disposal of the representation is concerned, the same<\/p>\n
     has to be considered in the background of Article 22(5) of the<\/p>\n
     Constitution.    A constitutional protection is given to every<\/p>\n
     detenu which mandates the grant of liberty to the detenu to<\/p>\n
     make a representation against detention, as imperated in<\/p>\n
     Article 22(5) of the Constitution. It also imperates the authority<\/p>\n
     to whom the representation is addressed to deal with the same<\/p>\n
     with utmost expedition. The representation is to be considered<\/p>\n
     in its right perspective keeping in view the fact that the<\/p>\n
     detention of the detenu is based on the subjective satisfaction<\/p>\n
     of    the   authority concerned, and infringement         of the<\/p>\n
     constitutional right conferred under Article 22(5) invalidates the<\/p>\n
     detention order. Personal liberty protected under Article 21 is<\/p>\n
     so sacrosanct and so high in the scale of constitutional values<\/p>\n
     that it is the obligation of the detaining authority to show that<\/p>\n
     the impugned detention meticulously accords with the<\/p>\n
     procedure established by law. The stringency and concern of<\/p>\n
     the judicial vigilance that is needed was aptly described in the<\/p>\n
     following words in Thomas Pacham Dale’s case:<\/p>\n<\/blockquote>\n
             “Then comes the question upon the habeas corpus. It is<\/p>\n
     a general rule, which has always been acted upon by the<\/p>\n
     courts of England, that if any person procures the<\/p>\n
     imprisonment of another he must take care to do so by steps,<\/p>\n
     all of which are entirely regular, and that if he fails to follow<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                      20<\/span><\/p>\n
\n<\/blockquote>\n
      every step in the process with extreme regularity the court will<\/p>\n
      not allow the imprisonment to continue.” ”\n<\/p><\/blockquote>\n
             (iii) In Prem Lata Sharma v. District Magistrate<\/a> ((1998) 4<\/p>\n
SCC 260) the court held as follows:\n<\/p><\/blockquote>\n
                    “The reasons given by the detaining authority for<\/p>\n
      not sending the representation to the detaining authority were<\/p>\n
      not tenable. There is no – nor can there be – a period of<\/p>\n
      limitation regarding exercise of a right of a detenu to make a<\/p>\n
      representation and the corresponding obligation of the Central<\/p>\n
      Government to consider the same for deciding upon the<\/p>\n
      question of revocation of the order of detention, for such right<\/p>\n
      and obligation subsist so long as the detention continues.<\/p>\n
      Further, when the representation was made to the Central<\/p>\n
      Government it was for it – and not for the detaining authority –<\/p>\n
      to decide whether the representation should be rejected on the<\/p>\n
      ground that his earlier representation had already been<\/p>\n
      considered and rejected.       To put it differently, when the<\/p>\n
      representation was addressed to the Central Government it<\/p>\n
      was incumbent on the part of the detaining authority to forward<\/p>\n
      the same to the Central Government and not to take a pre-<\/p>\n
      emptive action thereupon of its own.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
             (iv) In John Martin v. State of West Bengal (AIR<\/a> 1975 SC<\/p>\n<\/blockquote>\n
775) the court held as follows:\n<\/p><\/blockquote>\n
                    “We must, therefore, hold that under Section 8(1)<\/p>\n
      of the Act, it is the appropriate Government that is required to<\/p>\n
      consider the representation of the detenu.      This, however,<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                       21<\/span><\/p>\n
\n<\/blockquote>\n
     does not mean that the appropriate Government can reject the<\/p>\n
     representation of the detenu in a casual or mechanical<\/p>\n
     manner. The appropriate Government must bring to bear on<\/p>\n
     the consideration of the representation an unbiased mind.<\/p>\n
     There should be, as pointed out by this Court in Haradhan<\/p>\n
     Saha’s case “a real and proper consideration” of the<\/p>\n
     representation by the appropriate Government. We cannot<\/p>\n
     over-emphasise the need for the closest and most zealous<\/p>\n
     scrutiny of the representation for the purpose of deciding<\/p>\n
     whether the detention of the petitioner is justified.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
             (v) In Union of India v. Yumnam Anand M.<\/a> @ Bocha @<\/p>\n
Kora @ Suraj & another (JT 2007(5) SC 520), the court held as follows:<\/p>\n<\/blockquote>\n
                  “In case of preventive detention no offence is<\/p>\n
     proved, nor any charge is formulated and the justification of<\/p>\n
     such detention is suspicion or reasonability and there is no<\/p>\n
     criminal conviction which can only be warranted by legal<\/p>\n
     evidence. Preventive justice requires an action to be taken to<\/p>\n
     prevent apprehended objectionable activities.         (See Rex v.<\/p>\n
     Nallidev ; Mr.Kubic Dariusz v. Union of India and others<\/a>). But<\/p>\n
     at the same time, a person’s greatest of human freedoms, i.e.,<\/p>\n
     personal liberty is deprived, and, therefore, the laws of<\/p>\n
     preventive detention are strictly construed, and a meticulous<\/p>\n
     compliance with the procedural safeguard, however, technical<\/p>\n
     is mandatory.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
             (vi) Petitioner also relied on the decision of the Apex Court in<\/p>\n
Haradhan Saha v. State of West Bengal (AIR<\/a> 1974 SC 2154) to<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                      22<\/span><\/p>\n
\n<\/blockquote>\n
emphasise that the representation of the detenu should receive a proper<\/p>\n
consideration. The court held as follows:\n<\/p>\n
                    “The opinion of the Board as well as the order of<\/p>\n
     the Government rejecting the representation of the detenu<\/p>\n
     must be after proper consideration.        There need not be a<\/p>\n
     speaking order. There is also no failure of justice by the order<\/p>\n
     not being a speaking order. All that is necessary is that there<\/p>\n
     should be a real and proper consideration by the Government<\/p>\n
     and the Advisory Board.\n<\/p><\/blockquote>\n
               x x               x x               x x<\/p>\n
             Elaborate rules of natural justice are excluded either<\/p>\n
     expressly or by necessary implication where procedural<\/p>\n
     provisions are made in the statute or where disclosure of<\/p>\n
     relevant information to an interested party would be contrary to<\/p>\n
     the public interest. If a statutory provision excludes justice<\/p>\n
     then the court does not completely ignore the mandate of the<\/p>\n
     legislature. The court notices the distinction between the duty<\/p>\n
     to act fairly and a duty to act judicially in accordance with<\/p>\n
     natural justice. The detaining authority is under a duty to give<\/p>\n
     fair consideration to the representation made by the detenu but<\/p>\n
     it is not under a duty to disclose to the detenu any evidence or<\/p>\n
     information. The duty to act fairly is discharged even if there is<\/p>\n
     not an oral hearing. Fairness denotes abstention from abuse<\/p>\n
     of discretion.”\n<\/p><\/blockquote>\n
             (vii) In Bhut Nath Mate v. State of West Bengal (AIR<\/a> 1974<\/p>\n
SC 806) the Apex Court held as follows:\n<\/p><\/blockquote>\n
                    “It is not necessary that a speaking order should<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                      23<\/span><\/p>\n
\n<\/blockquote>\n
      be passed by Government or by the Advisory Board while<\/p>\n
      approving or advising continuance of detention although a brief<\/p>\n
      expression of the principal reasons is desirable. The subject<\/p>\n
      matter being the deprivation of freedom, clearly implies a<\/p>\n
      quasi-judicial approach. The bare bones of natural justice in<\/p>\n
      this context need not be clothed with the ample flesh of<\/p>\n
      detailed hearing and elaborate reasoning.       It must be self-<\/p>\n
      evident from the order that the substance of the charge and<\/p>\n
      the essential answers in the representation have been<\/p>\n
      impartially considered. A harmonious reconciliation between<\/p>\n
      the claims of security of the nation and the liberty of the citizen<\/p>\n
      are the necessary components of natural justice. Not more.”<\/p>\n<\/blockquote>\n
             (viii) In Prof. Khaidem Ibocha Singh v. State of Manipur<\/p>\n
(AIR<\/a> 1972 SC 438) the court was dealing with a case where there was a<\/p>\n
delay of 17 days, which was found to be unexplained. In the course of its<\/p>\n
judgment, the court held as follows:\n<\/p><\/blockquote>\n
                   “In its recent decision in Jayanarayan Sukul v.<\/p>\n
      State of West Bengal<\/a> (1970) 3 SCR 225 = (AIR 1970 SC 675),<\/p>\n
      after a review of the earlier decisions Ray, J., speaking for the<\/p>\n
      Court, has observed as follows:<\/p><\/blockquote>\n
\n<\/blockquote>\n
                         “It is established beyond any measure<\/p>\n
             of doubt that the appropriate authority is bound to<\/p>\n
             consider the representation of the detenu as early as<\/p>\n
             possible.   The appropriate Government itself is<\/p>\n
             bound     to   consider    the   representation      as<\/p>\n
             expeditiously as possible. The reason for immediate<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                      24<\/span><\/p>\n
\n<\/blockquote>\n
             consideration of the representation is too obvious to<\/p>\n
             be stressed. The personal liberty of a person is at<\/p>\n
             stake. Any delay would not only be an irresponsible<\/p>\n
             act on the part of the appropriate authority but also<\/p>\n
             constitutional because the Constitution enshrines<\/p>\n
             the fundamental right of a detenu to have his<\/p>\n
             representation considered and it is imperative that<\/p>\n
             when the liberty of a person is in peril immediate<\/p>\n
             action should be taken by the relevant authorities.<\/p>\n
             No definite time can be laid down within which a<\/p>\n
             representation of a detenu should be dealt with save<\/p>\n
             and except that it is a constitutional right of a detenu<\/p>\n
             to   have    his    representation     considered     as<\/p>\n
             expeditiously as possible. It will depend upon the<\/p>\n
             facts and circumstances of each case whether the<\/p>\n
             appropriate Government has disposed of the case<\/p>\n
             as expeditiously as possible for otherwise in words<\/p>\n
             of Shelat,J., who spoke for this Court in the case of<\/p>\n
             Khairul Haque, (1969) Writ Petn.No.246 of 1969. D\/-<\/p>\n
             10.9.1969 (SC), “it is obvious that the obligation to<\/p>\n
             furnish   the  earliest   opportunity     to   make    a<\/p>\n
             representation loses both its purpose and meaning.”<\/p><\/blockquote>\n
             (ix) In Union of India v. Sneha Khemka<\/a> ((2004) 2 SCC 570),<\/p>\n
the court emphasised the need for an expeditious disposal of the<\/p>\n
representation.\n<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      25<\/span><\/p>\n
(3) Non-application of Mind<\/p>\n
             (i)  Learned counsel for the petitioner also referred to the<\/p>\n
decision of the Apex Court in Dharamdas Shamlal Agarwal v. Police<\/p>\n
Commissioner<\/a> ((1989) 2 SCC 370) for the proposition that non-application<\/p>\n
of mind would vitiate the detention order. The court held as follows:<\/p>\n
                   “The    requisite   subjective    satisfaction,   the<\/p>\n
      formation of which is a condition precedent to passing of a<\/p>\n
      detention order, will get vitiated if material or vital facts which<\/p>\n
      would have bearing on the issue and weighed the satisfaction<\/p>\n
      of the detaining authority one way or the other and influenced<\/p>\n
      his mind are either withheld or suppressed by the sponsoring<\/p>\n
      authority or ignored and not considered by the detaining<\/p>\n
      authority before issuing the detention order.”\n<\/p>\n
This contention is raised in the context of the fact that the detenu in this<\/p>\n
case was in Dubai. In Sita Ram Somani v. State of Rajasthan<\/a> ((1986) 2<\/p>\n
SCC 86) is also relied on by the petitioner for the proposition that non-<\/p>\n
application of mind will result in the order of detention being invalidated.<\/p>\n
That was a case where the bail application in pending criminal cases and<\/p>\n
the applications made to the Collector of Customs by the detenu and his<\/p>\n
associates, in which they had retracted their earlier confessional<\/p>\n
statements were not placed before the detaining authority. In the context<\/p>\n
of the same, the court took the view that in so far as it was for the detaining<\/p>\n
authority to consider the relevant materials and that even if the matter was<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                        26<\/span><\/p>\n
placed before the Screening Committee, there was a clear non-application<\/p>\n
of mind by the detaining authority to the relevant materials as the matter<\/p>\n
was not placed before the detaining authority. The court found that the<\/p>\n
relevant materials were not placed before the detaining authority to apply<\/p>\n
its mind to consider whether an order of detention was called for.<\/p>\n
             (ii) Petitioner also relied on the decision reported in Ashadevi<\/p>\n
v. K.Shivraj (AIR 1979 SC 447). That was also a case where material or<\/p>\n
vital facts which could have a bearing on the issue or influence the mind of<\/p>\n
the detaining authority one way or other being ignored or not considered by<\/p>\n
the detaining authority was found to vitiate the order of detention. That was<\/p>\n
a case, where the detenu had retracted his confessional statements at the<\/p>\n
earliest available opportunity while he was in judicial custody and the same<\/p>\n
was not placed before or considered by the detaining authority. The court<\/p>\n
held as follows:\n<\/p>\n
                     “It is well settled that the subjective satisfaction<\/p>\n
       requisite on the part of the detaining authority, the formation of<\/p>\n
       which is a condition precedent to the passing of the detention<\/p>\n
       order will get vitiated if material or vital facts which would have<\/p>\n
       a bearing on the issue and would influence the mind of the<\/p>\n
       detaining authority one way or the other are ignored or not<\/p>\n
       considered by the detaining authority before issuing the<\/p>\n
       detention order.”\n<\/p><\/blockquote>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      27<\/span><\/p>\n
(4) Delay in passing the order of detention<\/p>\n
              (i) The decision of the Apex Court in Adisgwar Jain v. Union<\/p>\n
of India (JT 2006(9) SC 432) is relied on to contend that for the proposition<\/p>\n
that there cannot be delay in passing the order as also there cannot be<\/p>\n
delay in executing the order of detention.\n<\/p>\n
              (ii) In Rajinder Arora v. Union of India<\/a> ((2006) 4 SCC 796),<\/p>\n
the court held that an order of detention passed after about ten months of<\/p>\n
the alleged illegal act and for which no explanation was given was vitiated.<\/p>\n
              8.   The learned Additional Solicitor General canvassed the<\/p>\n
following decisions in support of his contention:<\/p>\n
              (i) In Union of India v.Venkateshan ((2002) 5 SCC 285), the<\/p>\n
court held as follows:\n<\/p>\n
                     “The COFEPOSA Act contemplates two situations<\/p>\n
       for exercise of power of preventive detention – (a) to prevent<\/p>\n
       violation of foreign exchange regulations; and (b) to prevent<\/p>\n
       smuggling activities. Under Section 2(c) of the COFEPOSA<\/p>\n
       Act, “smuggling” is to be understood as defined under clause<\/p>\n
       (39) of Section 2 of the Customs Act, 1962 which has noting to<\/p>\n
       do with the penal provisions i.e. Sections 135 and 135-A of the<\/p>\n
       Customs Act which provide for punishment of an offence<\/p>\n
       relating to smuggling activities. Hence, to contend that for<\/p>\n
       exercising power under the COFEPOSA Act for detaining a<\/p>\n
       person, he must be involved in criminal offence is not borne<\/p>\n
       out by the said provisions.\n<\/p><\/blockquote>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                    28<\/span><\/p>\n
                   The other important aspect is that the COFEPOSA<\/p>\n
      Act and FEMA occupy different fields. The COFEPOSA Act<\/p>\n
      deals with preventive detention for violation of foreign<\/p>\n
      exchange regulations and FEMA is for regulation and<\/p>\n
      management of foreign exchange through authorised person<\/p>\n
      and provides for penalty for contravention of the said<\/p>\n
      provisions. The object is for promoting orderly development<\/p>\n
      and maintenance of foreign exchange market in India.<\/p>\n
      Preventive detention law is for effectively keeping out of<\/p>\n
      circulation the detenu during a prescribed period by means of<\/p>\n
      preventive detention.   The power of detention is clearly a<\/p>\n
      preventive measure. It does not partake in any manner of the<\/p>\n
      nature of punishment.    It is taken by way of precaution to<\/p>\n
      prevent mischief to the community.”\n<\/p>\n
The question arose in that case was whether continued detention under<\/p>\n
COFEPOSA Act was vitiated on the ground that what was considered to be<\/p>\n
a criminal offence under Foreign Exchange Regulation Act had ceased to<\/p>\n
be a criminal offence under the Foreign Exchange Management Act, 1999.<\/p>\n
             (ii)  In Mohtesham Mohd.Ismail v. Special Director,<\/p>\n
Enforcement Directorate<\/a> ((2007) 8SCC 254), the Apex Court held as<\/p>\n
follows:\n<\/p>\n
                   ” Only when an officer is specifically authorised,<\/p>\n
      he can act on behalf of the Central Government and not<\/p>\n
      otherwise. Only because an officer has been appointed for the<\/p>\n
      purpose of acting in terms of the provisions of the Act, the<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                     29<\/span><\/p>\n
\n<\/blockquote>\n
      same would not by itself entitle an officer to discharge all or<\/p>\n
      any of the functions of the Central Government.            Even<\/p>\n
      ordinarily a quasi-judicial authority cannot prefer an appeal<\/p>\n
      being aggrieved by an dissatisfied with the judgment of the<\/p>\n
      appellate authority whereby and whereunder its judgment has<\/p>\n
      been set aside. An adjudicating authority, although an officer<\/p>\n
      of the Central Government, should act as an impartial tribunal.<\/p>\n
      An adjudicating authority, therefore, in absence of any power<\/p>\n
      conferred upon it in this behalf by the Central Government,<\/p>\n
      could not prefer any appeal against the order passed by the<\/p>\n
      Appellate Board.”\n<\/p><\/blockquote>\n
This is to emphasise that the Special Secretary was indeed possessed<\/p>\n
with power to deal with Ext.P4 representation.\n<\/p>\n
             (iii) In A.Sanjeevi Naidu v. State of Madras (1970(1) SCC<\/p>\n
443) the Apex Court held as follows:\n<\/p>\n
                    “The cabinet is responsible to the Legislature for<\/p>\n
      every action taken in any of the Ministers. That is the essence<\/p>\n
      of joint responsibility. That does not mean that each and<\/p>\n
      every decision must be taken by the cabinet. The political<\/p>\n
      responsibility of the Council of Ministers does not and cannot<\/p>\n
      predicate the personal responsibility of the Council of Ministers<\/p>\n
      to discharge all or any of the Governmental functions.<\/p><\/blockquote>\n
      Similarly and individual Minister is responsible to the<\/p>\n
      Legislature for every action taken or omitted to be taken in his<\/p>\n
      ministry.    This again is a political responsibility and not<\/p>\n
      personal responsibility. Even the most hard working Minister<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                     30<\/span><\/p>\n
      cannot attend to every business in his department.          If he<\/p>\n
      attempts to do it, he is bound to make a mess of his<\/p>\n
      department. In every well planned administration, most of the<\/p>\n
      decisions are taken by the civil servants who are likely to be<\/p>\n
      experts and not subject to political pressure. The Minister is<\/p>\n
      not expected to       burden himself     with the day-to-day<\/p>\n
      administration. His primary function is to lay down the policies<\/p>\n
      and programmes of his ministry while the Council of Ministers<\/p>\n
      settle the major policies and programmes of the Government.<\/p>\n
      When a civil servant takes a decision, he does not do it as a<\/p>\n
      delegate of his Minister.      He does it on behalf of the<\/p>\n
      Government. It is always open to a Minister to call for any file<\/p>\n
      in his ministry and pass orders. He may also issue directions<\/p>\n
      to the officers in his ministry regarding the disposal of<\/p>\n
      Government business either generally or as regards any<\/p>\n
      specific case. Subject to that over all power, the officers<\/p>\n
      designated by the ‘Rules’ or the standing orders, can take<\/p>\n
      decisions on behalf of the Government. These officers are<\/p>\n
      the limbs of the Government and not its delegates.”<\/p>\n
This decision is relied on in support of the contention that the disposal of<\/p>\n
Ext.P4 representation by the Special Secretary is perfectly valid.<\/p>\n
             (iv) Respondent also sought to draw support from the decision<\/p>\n
of the Apex Court in Haradhan Saha v. The State of West Bengal<\/a> ((1975)<\/p>\n
3 SCC 198), where the Apex Court upheld the validity of Maintenance of<\/p>\n
Internal Security Act, 1971. The court took the view inter alia that the basis<\/p>\n
of detention is satisfaction of the Executive of a reasonable probability of<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                       31<\/span><\/p>\n
the likelihood of the detenu acting in a manner similar to his past acts and<\/p>\n
preventing him from doing the same.\n<\/p>\n
               (v) In State of Uttar Pradesh v. Zavad Zama Khan<\/a> ((1984) 3<\/p>\n
SCC 505) the court took the view that in the facts of the case it was not<\/p>\n
obligatory on the part of the Central Government to consider the second<\/p>\n
representation for revocation under Section 14.\n<\/p>\n
               (vi) In M. Ahamedkutty v. Union of India<\/a> ((1990) 2 SCC 1)<\/p>\n
the court held as follows:\n<\/p>\n
                     “Where the passage of time is caused by the<\/p>\n
       detenu himself by absconding, the satisfaction of the detaining<\/p>\n
       authority cannot be doubted and the detention cannot be held<\/p>\n
       to be bad on that ground. In Bhawarlal Ganeshmalji v, State of<\/p>\n
       Tamil Nadu where the appellant had been evading arrest and<\/p>\n
       surrendering after three years of the making of order of<\/p>\n
       detention under the COFEPOSA Act the order was held to be<\/p>\n
       still effective as the detenu himself was to be blamed for the<\/p>\n
       delay. This Court observed that there must be a ‘live and<\/p>\n
       proximate link’ between the grounds of detention alleged by<\/p>\n
       the detaining authority and the avowed purpose of detention,<\/p>\n
       namely, the prevention of smuggling activities. In appropriate<\/p>\n
       cases it could be assumed that the link was snapped if there<\/p>\n
       was a long and unexplained delay between the date of order of<\/p>\n
       detention and the arrest of the detenu and in such a case the<\/p>\n
       order of detention could be struck down unless the grounds<\/p>\n
       indicated a fresh application of mind of the detaining authority<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                      32<\/span><\/p>\n
\n<\/blockquote>\n
      to the new situation and the changed circumstances. But<\/p>\n
      where the delay is not only adequately explained but also is<\/p>\n
      found to be the result of the recalcitrant or refractory conduct<\/p>\n
      of the detenu in evading arrest, there is warrant to consider the<\/p>\n
      ‘link’ not snapped but strengthened. In that case the order of<\/p>\n
      detention was made on December 19, 1974. The detenu was<\/p>\n
      found to be absconding. Action was taken pursuant to Section<\/p>\n
      7 of the COFEPOSA Act and he was proclaimed as a person<\/p>\n
      absconding under Section 82 of the Criminal Procedure Code.<\/p>\n
      The proclamation was published in several leading English<\/p>\n
      and local daily newspapers. Several other steps were taken<\/p>\n
      despite which he could not be arrested until he surrendered<\/p>\n
      himself on February 1, 1978.”\n<\/p><\/blockquote>\n
This is cited by the learned Additional Solicitor General to contend that<\/p>\n
there is no merit in the contention of the petitioner that the actual detention<\/p>\n
being carried out more than three years from the date of order of detention,<\/p>\n
the order is vitiated.\n<\/p>\n
             (vii) Naresh Kumar Goyal v. Union of India<\/a> ((2005) 8 SCC<\/p>\n
276) was a case of a writ petition filed at the pre-arrest stage challenging<\/p>\n
the detention order. Therein, the court took the view that delay in passing<\/p>\n
the order of detention or delay in executing the order could not be fatal<\/p>\n
except when the same stands unexplained.\n<\/p>\n
             (viii) In Vinod K. Chawla v. Union of India<\/a> ((2006) 7 SCC<\/p>\n
337) the court took the view that the law does not contemplate every<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      33<\/span><\/p>\n
document or material in the possession of the sponsoring authority must<\/p>\n
necessarily be placed before the detaining authority. It further held as<\/p>\n
follows:\n<\/p>\n
                   “The contention regarding delay in disposal of the<\/p>\n
      representation cannot be judged by any straitjacket formula<\/p>\n
      divorced from facts. This has to be examined with reference to<\/p>\n
      the facts of each case having regard to the volume and<\/p>\n
      contents of the grounds of detention, the documents supplied<\/p>\n
      along with the grounds, the inquiry to be made by the officers<\/p>\n
      of different departments, the nature of the inquiry, the time<\/p>\n
      required for examining the various pleas raised, the time<\/p>\n
      required in recording the comments by the authorities of the<\/p>\n
      department concerned, and so on.          There should be no<\/p>\n
      inaction or lethargy in consideration of the representation and<\/p>\n
      where there is a proper explanation for the time taken in<\/p>\n
      disposal of representation even though it may be long, the<\/p>\n
      continued detention of the detenu would not be rendered illegal<\/p>\n
      in any manner.”\n<\/p><\/blockquote>\n
             (ix) In Safiya v. Government of Kerala<\/a> ((2003) 7 SCC 46),<\/p>\n
the court took the view that the delay was explained by the dates and other<\/p>\n
details given in the counter affidavit, and there was no undue delay. The<\/p>\n
court also held as follows:\n<\/p><\/blockquote>\n
                   “The liberty of a citizen is undoubtedly very<\/p>\n
      important.    It is our duty to ensure that there is strict<\/p>\n
      compliance with the provisions of law.       In our view, strict<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                      34<\/span><\/p>\n
\n<\/blockquote>\n
      compliance with the provisions of law has been made. The<\/p>\n
      Court, in our opinion, cannot lose sight of the fact that those<\/p>\n
      who commit economic offence do harm to the national interest<\/p>\n
      and economy.      Thus, the High Court, while examining the<\/p>\n
      case, had taken a cumulative view of the situation and had<\/p>\n
      seen all the relevant facts.\n<\/p><\/blockquote>\n
                   On a consideration of the totality of the<\/p>\n
      circumstances, the High Court came to the conclusion that the<\/p>\n
      detenu has violated the provisions of law and his activities are<\/p>\n
      not in the larger national interest and that the Court should be<\/p>\n
      slow to come to the aid of the detenu. We agree with the<\/p>\n
      conclusion arrived at by the High Court.”\n<\/p><\/blockquote>\n<\/blockquote>\n
That was a case where the Under Secretary, upon receipt of the comments<\/p>\n
sent by the Sponsoring Authority had placed the matter before the<\/p>\n
Secretary on 7.10.2002 through the Joint Secretary, to whom it was put up.<\/p>\n<\/blockquote>\n
Thereafter the representation was disposed of on 17.10.2002 by the<\/p>\n
Secretary. The court noted that 12.10.2002, 13.10.2002, 14.10.2002 and<\/p>\n
15.10.2002 were holidays.\n<\/p>\n
             (x) In Hare Ram Pandey v. State of Bihar ((2004) 3 SCC<\/p>\n
289), the court did not countenance the petition of the detenu at the<\/p>\n
instance of a person against whom order of detention was passed finding<\/p>\n
that he was trying his best in taking various dilatory tactics to deflect the<\/p>\n
course of justice. The court also held that satisfaction of the detaining<\/p>\n
authority is a purely subjective affair. He may act on any material and on<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      35<\/span><\/p>\n
any information that it may have before it. In the course of the judgment<\/p>\n
the court held as follows:\n<\/p>\n
                   “The detaining authority may act on any material<\/p>\n
      and on any information that it may have before it.            Such<\/p>\n
      material and information may merely afford basis for a<\/p>\n
      sufficiently strong suspicion to take action, but may not satisfy<\/p>\n
      the tests of legal proof on which alone a conviction for offence<\/p>\n
      will be tenable. The compulsions of the primordial need to<\/p>\n
      maintain order in society without which the enjoyment of all<\/p>\n
      rights, including the right to personal liberty would lose all their<\/p>\n
      meanings are the true justification for the laws of preventive<\/p>\n
      detention.     The pressures of the day in regard to the<\/p>\n
      imperatives of the security of the State and of public order<\/p>\n
      might require the sacrifice of the personal liberty of individuals.<\/p><\/blockquote>\n
      Laws that provide for preventive detention posit that an<\/p>\n
      individual’s conduct prejudicial to the maintenance of public<\/p>\n
      order or to the security of State or corroding financial base<\/p>\n
      provides     grounds    for   satisfaction   for  a    reasonable<\/p>\n
      prognostication of possible future manifestations of similar<\/p>\n
      propensities on the part of the offender. This jurisdiction has<\/p>\n
      been called a jurisdiction of suspicion. The compulsions of the<\/p>\n
      very preservation of the values of freedom of democratic<\/p>\n
      society and of social order might compel a curtailment of<\/p>\n
      individual liberty . “To lose our country by a scrupulous<\/p>\n
      adherence to the written law” said Thomas Jefferson “would be<\/p>\n
      to lose the law itself, with life, liberty and all those who are<\/p>\n
      enjoying with us, thus absurdly sacrificing the end to the<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                     36<\/span><\/p>\n
      needs.” This, no doubt, is the theoretical jurisdiction for the<\/p>\n
      law enabling preventive detention. But the actual manner of<\/p>\n
      administration of the law of preventive detention is of utmost<\/p>\n
      importance. The law has to be justified by the genius of its<\/p>\n
      administration so as to strike the right balance between<\/p>\n
      individual liberty on the one hand and the needs of an orderly<\/p>\n
      society on the other.”\n<\/p>\n
             (xi) In Sayed Taher Bawamiya v. Joint Secretary<\/a> to the<\/p>\n
Govt. of India ((2000) 8 SCC 630) an order of detention was passed on<\/p>\n
29.6.1984 against the brother of the petitioner under Section 3 of the<\/p>\n
COFEPOSA Act. Despite the passage of 16 years the order was not<\/p>\n
served on the proposed detenu as he left India on 25.5.1976. Petitioner<\/p>\n
challenged the notice under Section 6(1) of the SAFEMA Act for fear of<\/p>\n
losing the property. Applying the ratio of the decision in Addl. Secretary to<\/p>\n
the Government of India v. Alka Subhash Gadia<\/a> (1992 Supp (1) SCC 496)<\/p>\n
the High Court refused to interfere in the matter in exercise of its discretion<\/p>\n
under Article 226 taking the view that the proposed detenu had not<\/p>\n
surrendered and the detention order not being served on him. The Apex<\/p>\n
Court upheld the said view.\n<\/p>\n
             (xii) In Sunil Fulchand Shah v. Union of India<\/a>((2000) 3 SCC<\/p>\n
409) the court took the view that the period of detention has to be<\/p>\n
computed from the date of actual detention and not from the date of the<\/p>\n
order.\n<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                       37<\/span><\/p>\n
             (xiii) In Smt. Gracy v. State of Kerala<\/a> (1991) 2 SCC 1) the<\/p>\n
court took the view that even if representation is addressed only to the<\/p>\n
Advisory Board instead of to Central Government or also to             Central<\/p>\n
Government, the Central Government is obliged to consider it<\/p>\n
independently of the opinion of the Advisory Board. In the course of the<\/p>\n
said judgment, the court held as follows:\n<\/p>\n
                    “It being settled that the aforesaid dual obligation<\/p>\n
      of consideration of the detenu’s representation by the Advisory<\/p>\n
      Board and independently by the detaining authority flows from<\/p>\n
      Article 22(5) when only one representation is made addressed<\/p>\n
      to the detaining authority, there is no reason to hold that the<\/p>\n
      detaining authority is relieved of this obligation merely because<\/p>\n
      the representation is addressed to the Advisory Board instead<\/p>\n
      of the detaining authority and submitted to the Advisory Board<\/p>\n
      during pendency of the reference before it. It is difficult to spell<\/p>\n
      out such an inference from the contents of Article 22(5) in<\/p>\n
      support of the contention of the learned Solicitor General. The<\/p>\n
      contents of Article 22(5) as well as the nature of duty imposed<\/p>\n
      thereby on the detaining authority support the view that so long<\/p>\n
      as there is a representation made by the detenu against the<\/p>\n
      order of detention, the aforesaid dual obligation under Article<\/p>\n
      22(5) arises irrespective of the fact whether the representation<\/p>\n
      is addressed to the detaining       authority or to the Advisory<\/p>\n
      Board or to both. The mode of address is only a matter of<\/p>\n
      form which cannot whittle down the requirement of the<\/p>\n
      constitutional mandate in Article 22(5) enacted as one of the<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                    38<\/span><\/p>\n
\n<\/blockquote>\n
     safeguards provided to the detenu in case of preventive<\/p>\n
     detention.”\n<\/p><\/blockquote>\n
This position is relied on by the respondents in support of the decision<\/p>\n
taken on Ext.P4 representation by the detaining authority, though Ext.P4<\/p>\n
was addressed to the third respondent.\n<\/p>\n
             (xiv) In K.I.Pavunny v. Assistant Collector (HQ), Central<\/p>\n
Excise Collectorate, Cochin<\/a> ((1997) 3 SCC 721) the court held that a<\/p>\n
statement taken by the Customs Officer under Section 108 of the Customs<\/p>\n
Act can be admissible as evidence for prosecution under Section 135 of<\/p>\n
the Customs Act. This decision is cited to contend that if such statements<\/p>\n
can be relied on even in a prosecution, it is clearly     possible for the<\/p>\n
authorities to rely upon such statements which have been taken by the<\/p>\n
authorities under FEMA for forming the requisite opinion under Section 3 of<\/p>\n
the COFEPOSA Act.\n<\/p>\n
             9. Sri. M.K.Damodaran relied on the decision of the Apex<\/p>\n
Court reported in D. Anuradha v. Joint Secretary<\/a> (2006(5) SCC 142).<\/p>\n
Paragraph 26 of the said judgment reads as follows:<\/p>\n
                   “The learned counsel for the appellant had urged<\/p>\n
     before the High Court that the detenu was a non-resident<\/p>\n
     Indian and, therefore, the detention order could not have been<\/p>\n
     passed against him.         This contention was elaborately<\/p>\n
     considered in Point I in the impugned judgment and it was held<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                        39<\/span><\/p>\n
\n<\/blockquote>\n
       that the detenu was not a non-resident Indian. No materials<\/p>\n
       have been placed before us to prove that he was a non-<\/p>\n
       resident Indian and therefore beyond the ken of the provisions<\/p>\n
       of the COFEPOSA Act. The order of detention was rightly<\/p>\n
       passed and we find no reason to interfere with the impugned<\/p>\n
       judgment.”\n<\/p><\/blockquote>\n
Sri. M.K.Damodaran would rely on the said decision in support of the<\/p>\n
contention that in view of the fact that the detenu is a non-resident Indian,<\/p>\n
undoubtedly he was beyond the ken of the provision of the Act and<\/p>\n
therefore, the order of detention is illegal.\n<\/p>\n
             10.    The learned Additional Solicitor General met this<\/p>\n
argument by pointing out that what was in issue in the case before the High<\/p>\n
Court, from which the matter came up before the Apex Court, did not<\/p>\n
warrant application to the facts of this case.\n<\/p>\n
                                11. Findings<\/p>\n
(1) Whether Section 3 of the COFEPOSA Act available against a<\/p>\n
person permanently residing abroad?\n<\/p>\n
             (i).  As regards the contention of the petitioner that Section 3<\/p>\n
of the COFEPOSA Act cannot be invoked against the detenu as he was<\/p>\n
permanently residing at Dubai is concerned, we think that there is no merit<\/p>\n
in that contention. On a perusal of Section 3, it is clear that the Act vests in<\/p>\n
the appropriate Government, the authority to detain any person including a<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                         40<\/span><\/p>\n
foreigner. In the Foreigners Act, ‘foreigner’ is defined as any person, who<\/p>\n
is not a citizen of India.         Sri. Damodaran would contend that it is<\/p>\n
indispensable for the authority in exercise of power under Section 3 that<\/p>\n
the proposed detenu should not be permanently residing outside India.<\/p>\n
According to him, any other view would make the proceedings<\/p>\n
meaningless, as an order of preventive detention is not punitive and the<\/p>\n
order of detention is meant to be executed immediately as it is intended to<\/p>\n
prevent the doing of an act or series of acts contemplated in the provision<\/p>\n
in the future.    If there is no prospect of the order of detention being<\/p>\n
implemented, in view of the fact that the proposed detenu is beyond the<\/p>\n
territory of India, it will be a mere futile exercise and not in keeping with the<\/p>\n
object of the Act, he contends.         There is no extra territorial jurisdiction<\/p>\n
vested with the Government, he contends. It may be another thing that if,<\/p>\n
after the passing the order of detention, the proposed detenu, who was<\/p>\n
within India absconds and proceeds to go abroad. It may be another thing,<\/p>\n
he would submit that, if the detenu is residing in India and he has gone<\/p>\n
abroad only for a short period. We are however inclined to agree with the<\/p>\n
Additional Solicitor General that having regard to the wording of the Act<\/p>\n
and the object of the Act, it would not be illegal to order detention of a<\/p>\n
person, who, at the time of the passing of the order, is residing outside<\/p>\n
India permanently.\n<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                       41<\/span><\/p>\n
              (ii). Learned Additional Solicitor General made available<\/p>\n
before us the details of the visits of the detenu to India on the strength of<\/p>\n
the entries in the passport. They would really show that the detenu had<\/p>\n
come to India on 17.2.1996. 6.2.1997, 23.7.1997, 16.10.1997, 15.1.1999,<\/p>\n
25.3.1999, on four occasions in the year 2000, three occasions in the year<\/p>\n
2001, and on four occasions in the year 2002. The order of detention was<\/p>\n
passed on 19.11.2003. The petitioner has not come to India in the years<\/p>\n
2003, 2004, 2005 and 2006. Thereafter he came to India on 9.4.2007 and<\/p>\n
was apprehended and detained. We would think that the authority to pass<\/p>\n
an order of detention is vested with the Government as regards any person<\/p>\n
including a foreigner. The fact that the order may not be immediately<\/p>\n
executed cannot detract from the validity of the order of detention and the<\/p>\n
validity of the order of detention cannot be premised on the possibility that<\/p>\n
the order of detention may not be capable of being executed in the<\/p>\n
immediate future. But, for the fact that the detenu chose not to come to<\/p>\n
India after the order of detention for a good period of time, it is possible that<\/p>\n
the order may have been implemented earlier upon his having come to<\/p>\n
India earlier than he actually did. The fact that execution is delayed on<\/p>\n
account of the proposed detenu himself not making himself available,<\/p>\n
cannot take away the validity of the order. No doubt, an order of detention<\/p>\n
can be passed against a person including a foreigner, only when his<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      42<\/span><\/p>\n
conduct attracts the grounds mentioned in Section 3 of the Act. Those<\/p>\n
grounds do provide a territorial nexus between him and the Union of India.<\/p>\n
Proposed detenu’s act must be deleterious in the context of the activities<\/p>\n
which must have connection with the interest of the Nation as enumerated<\/p>\n
in Section 3. Once that nexus is established between the person, it may<\/p>\n
not be either in keeping with the literal meaning and also with purposive<\/p>\n
interpretation, which courts are charged to place on statutory provision to<\/p>\n
deny the authority, the right to detain a person, who may be at the given<\/p>\n
time even permanently residing outside the territory of India. We would<\/p>\n
think that, having regard to the wording of Section 3 of the Act, even<\/p>\n
without reference to Section 6, the order of detention in this case is to the<\/p>\n
supported.\n<\/p>\n
(2) Whether there was delay in passing order of detention?<\/p>\n
             Regarding the contention of the petitioner that there was delay<\/p>\n
in passing the order of detention, we would think that the petitioner has not<\/p>\n
made out a case in the facts of this case. Ext.P2 would show that the<\/p>\n
matter was fairly convoluted.     It involved a very detailed investigation,<\/p>\n
collection of various materials and taking of statements from various<\/p>\n
persons.     The matter started with the search of the premises of<\/p>\n
Sri.Surendra Kumar on 11.4.2000. Having regard to the various matters,<\/p>\n
which have been done with reference to various dates as given in the<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                     43<\/span><\/p>\n
additional counter affidavit, we are of the view that we should not interfere<\/p>\n
with the order of detention for the reason that there was delay in making<\/p>\n
the order of detention as far as the detenu is concerned. The order of<\/p>\n
detention cannot be passed lightly. Though order of detention is to be<\/p>\n
made on subjective satisfaction of the detaining authority, he must have<\/p>\n
some materials. He would obviously be alive to the possibility of the matter<\/p>\n
engaging the attention of the Constitutional court. Therefore, if time is<\/p>\n
taken to collect the materials and scrutinize it from time to time, to dub an<\/p>\n
order of detention passed, after taking such steps, as vitiated for the<\/p>\n
reason of delay in making the order, we would think that that would be not<\/p>\n
in keeping with either the purpose of the Act or opposed to the<\/p>\n
constitutional guarantee.\n<\/p>\n
(3) Whether consideration of Ext.P4 by the Special Secretary was<\/p>\n
sufficient?\n<\/p>\n
             As regards the contention of the petitioner that the<\/p>\n
representation though addressed by the detenu to the third respondent,<\/p>\n
had come to be disposed of by the Special Secretary to whom no<\/p>\n
representation was given by the detenu, we are of the view that it is without<\/p>\n
merit. As already noticed, since 3.9.1998 the power under Section 11 of<\/p>\n
the Act could be exercised either by the Secretary or the Special Secretary.<\/p>\n
It may be true that the petitioner has addressed Ext.P4 to the third<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                     44<\/span><\/p>\n
respondent Secretary. Section 11 of the Act provides for revocation or<\/p>\n
modification of the order of detention made by the officer of the Central<\/p>\n
Government or by the State Government by the Central Government.<\/p>\n
Thus, it may not be open to contend that one of the authorities, who is duly<\/p>\n
authorised to consider the representation is deprived of his authority to<\/p>\n
consider the representation by reason of the mere fact that the detenu has<\/p>\n
addressed the representation specifically to the other authority, who is also<\/p>\n
empowered to consider such representation. The detenu cannot be said to<\/p>\n
have claim or a vested right to have the representation considered by only<\/p>\n
a particular officer and the consideration of his representation by another<\/p>\n
named officer of the Central Government, who is duly empowered in the<\/p>\n
said behalf by law cannot vitiate a decision on the representation.<\/p>\n
(4) Is consideration of representations mechanical?<\/p>\n
             (i). As regards the further contention of the petitioner that the<\/p>\n
consideration of the representations were done in a mechanical manner,<\/p>\n
we would think that there may not be much justification in the matter. We<\/p>\n
must remind ourselves that on the one hand the authorities are charged<\/p>\n
with the constitutional duty to consider the representation without delay,<\/p>\n
they are equally obliged under the Constitution and the Act to consider it in<\/p>\n
a proper manner. Having regard to the decisions of the Apex Court cited<\/p>\n
before us, there can be no dispute that an order considering a<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                       45<\/span><\/p>\n
representation need not be reasoned.            Thus an order rejecting a<\/p>\n
representation cannot be interfered with for the reason that there are no<\/p>\n
reasons given at all in support of the order rejecting the representation.<\/p>\n
We must at this juncture indicate that there is no merit in the complaint of<\/p>\n
the petitioner that Exts.P7 to P9 are seen signed by the Under Secretary.<\/p>\n
We have perused the files relating to the decisions on the representations<\/p>\n
made available before us by the Additional Solicitor General. We find that<\/p>\n
the decisions are seen taken, going by the files made available before us,<\/p>\n
by the detaining authority and by the Special Secretary. All that the Under<\/p>\n
Secretary has done is to communicate the decisions taken by the detaining<\/p>\n
authority and the Special Secretary on behalf of the Central Government.<\/p>\n
It is not the law that the decision taken by the competent authority is also to<\/p>\n
be communicated by them. No doubt Sri. M.K.Damodaran would contend,<\/p>\n
after noting the files which we made available for his perusal, that the order<\/p>\n
of rejection of the representation by the Special Secretary would show that<\/p>\n
he has not considered the matter at all. He would submit that though the<\/p>\n
files would show that the detention file was before him, if one goes by the<\/p>\n
remarks made by the Under Secretary, the actual order passed by the<\/p>\n
Special Secretary would show that he has not considered the files at all. It<\/p>\n
is contended that there is non-consideration of the representation by the<\/p>\n
Special Secretary for not only the reason that the decision is taken on<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      46<\/span><\/p>\n
22.5.2007 by both the detaining authority and the Special Secretary going<\/p>\n
by the affidavits in a case where the comments were made available to<\/p>\n
them on 22.5.2007, going by the order, the Special Secretary has only<\/p>\n
stated that he has gone through the representation and considered it in the<\/p>\n
context of the party and materials on record and found it be without merit<\/p>\n
and rejected it.   It is submitted that he has not even referred to the<\/p>\n
detention file. He would submit that this would not satisfy the requirements<\/p>\n
of law. In this connection he cited the decision of the Division Bench of this<\/p>\n
court reported in Lekha Nandakumar v. Government of India<\/a> (2004(2)<\/p>\n
K.L.T 1094) and he would submit that in similar circumstances this court<\/p>\n
frowned upon the method of consideration of the representation and found<\/p>\n
it to be in violation of law. To this, Additional Solicitor General would<\/p>\n
contend that it must be borne in mind that it is beyond any controversy that<\/p>\n
no reasons are required to support a valid order rejecting the<\/p>\n
representation by the detenu. When once reasons are not required to be<\/p>\n
furnished in support of an order of detention, it is inconceivable that it could<\/p>\n
be contended that the order rejecting representation would be termed<\/p>\n
mechanical.\n<\/p>\n
             (ii). Sri. M.K.Damodaran would contend that the court should<\/p>\n
also take a serious note of the fact that while in the affidavit filed before this<\/p>\n
court, it is contended that the detaining authority has rejected Ext.P4<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                        47<\/span><\/p>\n
representation on 22.5.2007, a perusal of the files would clearly show that<\/p>\n
the representation was rejected by the detaining authority on 21.5.2007.<\/p>\n
He would submit that the matter was being approached in a most callous<\/p>\n
manner, thus probabilising his contentions.\n<\/p>\n
             (iii). Exts. P7 to P9 actually evidence only the communication<\/p>\n
of the decision taken by the detaining authority and by the duly authorised<\/p>\n
officer. As held by the Apex Court a decision taken on the representation<\/p>\n
without calling for the remarks of the sponsoring authority would become<\/p>\n
vitiated. Going by the files, it is clear that comments were indeed called for<\/p>\n
from the sponsoring authority, comments were processed and put up<\/p>\n
before the detaining authority and also the Special Secretary. Going by the<\/p>\n
files, it is true that the detaining authority has rejected Ext.P4<\/p>\n
representation on 21.5.2007. The statement in the affidavit that it was<\/p>\n
disposed of on 22.5.2007 is sought to be explained as a mere mistake.<\/p>\n
Even though Sri. Damodaran did suggest that the discrepency would all<\/p>\n
show the possibility of the files being made up cannot be discounted, we<\/p>\n
are of the view that the contention of the petitioner that the representation<\/p>\n
was not considered as required in law is to be rejected. The rejection need<\/p>\n
not be by a reasoned order. No doubt, the Special Secretary has in the file<\/p>\n
not made mention of the detention file in particular in his order, but we<\/p>\n
cannot overlook the fact that the detention file was very much before him<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      48<\/span><\/p>\n
as was the representation and the comments. We are not satisfied that the<\/p>\n
petitioner has made out a case that Ext.P4 representation was not properly<\/p>\n
considered. We also feel that it could not be said that Ext.P3<\/p>\n
representation did not receive consideration as required in law. Equally we<\/p>\n
feel that no prejudice is caused to the detenu by the detaining authority<\/p>\n
also considering and rejecting Ext.P4 representation and hence we need<\/p>\n
not consider whether the petitioner is right in contending that the decision<\/p>\n
of the Apex Court in Smt.Gracy’s Case (1991(2) SCC 1) did not warrant<\/p>\n
the detaining authority also rejecting Ext.P4 representation.<\/p>\n
(5) Delay in execution of the order<\/p>\n
             (i). As far as the question of delay in execution is concerned,<\/p>\n
we find that the principle to be followed is whether the delay has been<\/p>\n
explained. Going by the entries in the passport, the detenu has not visited<\/p>\n
India after the order of detention during 2004, 2005 and 2006. He makes<\/p>\n
his appearance for the first time in 2007. Proceedings under Section 7 of<\/p>\n
the COFEPOSA Act had been initiated. The detenu did not respond to the<\/p>\n
same and surrender, instead he chose to remain away. Going by the<\/p>\n
representation filed by the petitioner, it would appear that the detenu was<\/p>\n
very well aware of the order of detention and the order of detention was the<\/p>\n
reason why the detenu was not able to come to India. Thus when the<\/p>\n
detenu chose to remain away from India, and the detention was effected<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                       49<\/span><\/p>\n
immediately upon the detenu coming to India for the first time after the<\/p>\n
order of detention, we would think that the argument of the petitioner that<\/p>\n
there is delay in execution of the order of detention vitiating the detention<\/p>\n
itself cannot be accepted. As held by the Apex Court, in such a case far<\/p>\n
from the links     snapping, this would also be a case where the link is<\/p>\n
strengthened.\n<\/p>\n
             (ii).  We are not impressed by the contention of Sri.<\/p>\n
M.K.Damodaranan based on Ext.P11 extradition treaty and Ext.P12<\/p>\n
agreement to the effect that no steps were taken by the respondents in<\/p>\n
getting the assistance of UAE Government to take the detenu into custody<\/p>\n
in execution of Ext.P1 order. Having perused Exts.P11 and P12, we are of<\/p>\n
the view that under the same, the detenu could not have been arrested and<\/p>\n
brought back to India.\n<\/p>\n
             (iii). The order of detention cannot be said to be an order of<\/p>\n
the criminal court passed in a criminal case. When an order of detention is<\/p>\n
passed, it cannot be said that he is accused of an offence. An order of<\/p>\n
detention cannot be treated as a sentence by a criminal court.<\/p>\n
             (iv).    The argument based on the Passports Act and the<\/p>\n
powers under the Act also do not appeal to us. An order impounding the<\/p>\n
passport of the detenu is permissible in law only after complying with the<\/p>\n
principles of natural justice. It is the respondents’ case that in the facts, it<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                    50<\/span><\/p>\n
was not possible.\n<\/p>\n
(6) Non-supply of material relied on<\/p>\n
             Much store is laid by the Senior Counsel on the contention<\/p>\n
regarding    non-supply of material relied on by the detaining authority.<\/p>\n
Paragraph 24 of Ext.P2, being crucial, is extracted hereunder :<\/p>\n
                  “The call statement of the said mobile phone<\/p>\n
     No.98430 21514 of Shri. C. Surendran showed Mumbai phone<\/p>\n
     No.022 – 2669295.       Verification made by the Directorate<\/p>\n
     disclosed that the said telephone was in the name of Ms.<\/p>\n
     Shahida V.P. Abubacker which was installed at Bismillah<\/p>\n
     Travels and used as STD\/PCO Booth and Shri V.P.Abubacker,<\/p>\n
     her father was looking after the said Booth. In his statements<\/p>\n
     dated 04.09.2002 and 05.09.2002, Shri.V.P. Abubacker stated,<\/p>\n
     interalia, that he could not recognise any of the persons who<\/p>\n
     had made calls from the said booth whose details were pointed<\/p>\n
     out to him.     He submitted copies of few telephone bills in<\/p>\n
     respect of the above phone number. Scrutiny of the said bills<\/p>\n
     disclosed that calls were made one after another from the said<\/p>\n
     telephone to your Dubai Cell No.00971506590974 to the Cell<\/p>\n
     No.98430-21514 of Shri. C.Surendran, to your father’s<\/p>\n
     telephone numbers in Calicut and to Lord Krishna Bank,<\/p>\n
     Coimbatore. It was further seen that out of the five Calicut<\/p>\n
     telephone numbers figured repeatedly in the said telephone<\/p>\n
     bills, three numbers viz., 765926, 366138 and 761354 were<\/p>\n
     found to be the numbers of telephones installed in your<\/p>\n
WP(Crl.) 138\/2007.\n<\/p><\/blockquote>\n
                                       51<\/span><\/p>\n
\n<\/blockquote>\n
       residence in Calicut.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
Petitioner would contend that it is only the telephone bill referred to in the<\/p>\n
said paragraph which are used to connect the detenu with the entire<\/p>\n
incidents. The petitioner also points out the further statement of<\/p>\n
Shri.V.P.Abubacker to support his contention. In the said statement Shri<\/p>\n
V.P.Abubacker has stated as follows:\n<\/p>\n
                   “I am producing before you page Nos.1 to 278 and<\/p>\n
       page Nos.1 to 131, which are the telephone bills of telephone<\/p>\n
       Nos.2669295 and 2449135, which are installed in my STD<\/p>\n
       Booth for your perusal.”\n<\/p><\/blockquote>\n
It is contended that it is clear that the telephone bills as such should have<\/p>\n
been made available to the detenu and the refusal to do so is fatal to the<\/p>\n
detention. It is pointed out on behalf of the respondents that there are<\/p>\n
other materials which were available to connect the detenu with the matter,<\/p>\n
which have been detailed in the grounds of detention. He would also point<\/p>\n
out that what was available with the detaining authority was only the<\/p>\n
scrutiny of the telephone bills. It is submitted that the bills were made<\/p>\n
available before the Enforcement Officer. Thereupon Sri. M.K.Damodaran<\/p>\n
would contend that if it is true that the telephone bills were as such not<\/p>\n
placed before the detaining authority, matters would be worse as it would<\/p>\n
be a case where the order would be vitiated by non-application of mind by<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                       52<\/span><\/p>\n
the detaining authority to the relevant material as a result of the sponsoring<\/p>\n
authority not placing relevant materials before the detaining authority in the<\/p>\n
form of actual telephone bills. It is true that going by Ext.P2 reference was<\/p>\n
made to the ‘scrutiny of the said bills’. We note however that item No.47 in<\/p>\n
the list of relied upon documents is the scrutiny report in respect of the<\/p>\n
telephone bills submitted by Shri.V.P.Abubacker. Thus there was indeed a<\/p>\n
scrutiny report made on the basis of the telephone bills submitted by Shri.<\/p>\n
V.P.Abubacker. Though indeed the language employed at first blush in<\/p>\n
para 24 supports the petitioner, we would think that actually what was<\/p>\n
before the detaining authority was the scrutiny report made on the basis of<\/p>\n
the bills submitted by Shri.V.P.Abubacker before the Enforcement Officer.<\/p>\n
It is not in dispute that the scrutiny report as such was made available to<\/p>\n
the detenu. We therefore find that there is no merit int he contention of the<\/p>\n
petitioner that the detention is vitiated for the reason that relied upon<\/p>\n
documents were not supplied to the detenu.\n<\/p>\n
(7) Whether preventive detention is permissible against Non-Resident<\/p>\n
Indian?\n<\/p>\n
               We are not impressed by the contention of the petitioner that<\/p>\n
no order of detention can be passed against the detenu as he was a non-<\/p>\n
resident Indian. The decision in D.Anuradha v. Joint Secretary<\/a> (2006(5)<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      53<\/span><\/p>\n
SCC 142) relied on by the petitioner cannot be treated as an authority for<\/p>\n
the proposition that an order of detention could not be passed against a<\/p>\n
non-resident Indian. The power under Section 3 of the COFEPOSA Act is<\/p>\n
to be traced upon fulfillment of the conditions obtaining as contemplated in<\/p>\n
the said provision. It is available even against a foreigner. The authority<\/p>\n
can pass an order of detention against any person. The purpose is not<\/p>\n
punitive. The object is preventive. It is to pre-empt any person from<\/p>\n
carrying on activities which are referred to in the said provision. As long as<\/p>\n
the conditions are fulfilled as required under Section 3 of the COFEPOSA<\/p>\n
Act, it would not matter that the person is a non-resident Indian or even a<\/p>\n
foreigner. What matters is what the person has done and what is more is<\/p>\n
likely to do in the future. We do not think that it would be correct to hold<\/p>\n
that a non-resident Indian could not contravene the provisions of the the<\/p>\n
Foreign Exchange Management Act.\n<\/p>\n
(8) Whether order of detention invalid being without any basis?<\/p>\n
             Having gone through the grounds of detention, we do not think<\/p>\n
that we could say that this is a case where there is no basis to issue an<\/p>\n
order of preventive detention under Section 3 of the COFEPOSA Act. As<\/p>\n
held by the Apex Court, the order of detention is passed in exercise of<\/p>\n
jurisdiction of suspicion. Judicial review is limited to ascertain whether<\/p>\n
there were some material connecting the detenu and whether the finding<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                      54<\/span><\/p>\n
that detention is necessary is perverse. On a perusal of the grounds of<\/p>\n
detention, we would think that there were materials\/information before the<\/p>\n
detaining authority and it could not be said that the subjective satisfaction<\/p>\n
of the detaining authority was vitiated.\n<\/p>\n
(9) Whether there is delay in considering the representation?<\/p>\n
             (i) We have already extracted the dates. In regard to Ext.P3,<\/p>\n
though it is dated 20.4.2007, it is signed by the detenu on 27.4.2007 and it<\/p>\n
reaches with the authority on 2.5.2007. Thereafter, the comments of the<\/p>\n
Sponsoring authority were called for and it is finally considered with the<\/p>\n
comments on 11.5.2007. We would think that having regard to the entirety<\/p>\n
of the facts, it cannot be said that the time taken to dispose of the<\/p>\n
representation by the detaining authority has not been explained.<\/p>\n
             (ii) As far as Ext.P4 representation is concerned, though it is<\/p>\n
dated 27.4.2007, it was signed on 7.5.2007. It was received by the<\/p>\n
Ministry on 10.5.2007. The comments, though called for on 11.5.2007, the<\/p>\n
comments were received only on 21.5.2007.          The representation was<\/p>\n
disposed of on the very next day, namely, 22.5.2007by the Special<\/p>\n
Secretary. We would think again that it is also a case where in the teeth of<\/p>\n
these facts it could not be said that there was such a delay as to vitiate the<\/p>\n
detention of the detenu.\n<\/p>\n
             In this view of the matter, we would think that there is no merit<\/p>\n
WP(Crl.) 138\/2007.\n<\/p>\n
                                     55<\/span><\/p>\n
in the contentions raised by the petitioner. The writ petition is liable to the<\/p>\n
dismissed, and accordingly it is dismissed. There will be no order as to<\/p>\n
costs.\n<\/p>\n<\/p>\n
                                                      H.L. DATTU,
\n                                                  CHIEF JUSTICE<\/p>\n
                                                     K.M. JOSEPH,
\n                                                       JUDGE<\/p>\n
sb.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court P.K.Umaiba vs The Union Of India on 8 January, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-17559","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nP.K.Umaiba vs The Union Of India on 8 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/p-k-umaiba-vs-the-union-of-india-on-8-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P.K.Umaiba vs The Union Of India on 8 January, 2008 - 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