ABDU SALAM @THIYYAN S-O THIYYAN MOHAMMAD, DETENU NO. 962, GENERAL PRISON, TRIVENDRUM v. UNION OF INDIA AND OTHERS

Citation: [1990] 2 S.C.R. 517

Court: Supreme Court of India

Bench: S. RATNAVEL PANDIAN, K. JAYACHANDRA REDDY

Case summary

West Bengal and Others, [1975] 2 sec 81 this Court held that one of the basic requirement of clause (5) of Article 22 is that the authority making the order must afford the detenu the earliest opportunity of making a representation against the order and this requirement will.

Judgment text

The Judgment of the Court was delivered by K.. TAYACHANDRAREDDY,J. Leavegranted. ABDU SALAM v. U. 0. L (REDDY, J. ] 519 This is an appeal seeking a writ of habeas corpus. The appellant who has beert detained under Section 3(1)(i) and 3(1)(iii) of . the COFEPOSA Act, 1974, has chi! llenged the detention order. The appellant is a native of Panakkad, Malapuram District in Kerala and had been to Jeddah after his Haj ·pilgrimage and from Jeddah he landed in Bombay on 15. 9. 87. Then he started by a bus to go to his native place. On 17. 9. 87 the Customs Officials intercepted the bus near Thiruvannoor and in the presence of panch witnesses, a search was conducted on the person of the appellant and the chappals worn by him were inspected and on their being opened up about 13 gold ingots with foreign marking were found and they were duly recovered. Further some incriminating documents were also recovered. The gold was valued at Rs. 4,64,951 and it was found to be smuggled gold.

The appellant was interrogated by the Superintendent of Customs and a statement of the appellant was recorded. He confessed that he was introduced to a person who promised to give him remuneration provided he carries the gold to India and appellant agreed and carried these gold biscuits. Criminal proceedings were initiated. However, the detaining authority, the Home Secretary to Government of Kerala being satisfied passed the detention order dated 21. 9. 88 against the appellant with a view to preventing him from smuggling activities. The grounds also were served within time and in the grounds all the above mentioned details are mentioned. In the grounds the appellant also is informed that if he desires to make a representation to the Advisory Board, he may address it to the Chairman, Advisory Board and that he can also make a representation to the detaining authority or the Central Government. Questioning the same the present appeal is filed.

It is submitted that the representation was made on 27. 9. 88 to the Central Government and it was disposed of on 2. 11. 88. Therefore there was enormous delay by the Central Government in rejecting the representation and the delay amounts to violation of Article 22(5) of the Constitution of India. The next submission is that though the alleged smuggling of gold is said to have been taken place on 17. 9. 87, the detention _order was passed on 21. 5. 88 i. e. after a lapse of eight months and that too it was a solitary instance and because of the delay, the same has become stale and there is no other material to establish any nexus or live connection between the alleged date of smuggling and the date of detention. The next submission is that there was delay in the execution of the detention order which was executed only on 6. 8. 88 though passed on 21. 5. 88 and that there is no allegation that the appellant was ! lbsconding.

It is also submitted that the appellant was not given an effective opportunity to represent his case before the Advisory Board inasmuch as the appellant was not permitted to be represented by an advocate or by his next fnend. In the counter-affidavit it is stated that the Collector of Customs furnished proposals for the detention of the appellant on 24. 3. 1988 and the detention order waspassed on 21. 5. 1988 and the appellant was detained on 6. 8. 1988. The appellant made a representation to the detaining authority on 27. 9. 1988 and it was rejected by the State Government on 1. 10. 1988 and the Central Government rejected the same on 2. 11. 1988. Therefore in the counter-affidavit it is admitted ~ that there is a delay of one month and five days in considering and ··. rejecting the representation by the Central Government.

/ It can be seen that so far as the State Government namely the detaining authority is concerned, there is no delay but the submission is that the delay in disposing of the representation by the Central Government also is fatal. Article 22(5) of the Constitution of India lays down that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making 1he order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. It is well-settled that this Clause confers a valuable right upon the detenu to make a representation and also mandates that the detaining authority should dispose of the same without delay.

Therefore the right under this Clause is two-fold, namely that the authority making the order mlist communicate to the detenu the grounds cm which the order has been made, as soon as the order is made and secondly that the detenu must also be afforded the earliest opportunity of making a F . representation against the order. Article 22(5) itself does not say to whom the representation is -~ made or who will consider the representation. By virtue of previsions of the statute under which . he has been detained, the . appropriate Government is legally obliged to comply with these requirements. It. is obligatory on the appropriate Government to consider the detenu~s representation separate from the consideration of tbe detenu's case by the Advisory Board. But what the learned counsel submits is that the Oentral Government which bas the power to revoke the detention order passed by the State authority, is also under legal obligation tO dispose of the representation. without delay.

Learned counsel relied on some of the decisions of this Court. In Khudiram Das v. The State of West Bengal and Others, [1975] 2 sec 81 this Court held that one of the basic requirement of clause (5) of Article 22 is that the authority making the order must afford the detenu the earliest opportunity of making a representation against the order and this requirement will. be · ineffective unless there is a corresponding obligation to consider the representation of the detenu as early as possible. ~t may no. t be neces, sary for us to refer to all those decisions which deal with the delay caused by the appropriate Government in considering. the· representa~ tion inasmuch as in the instant case. there is no delay in considering the representation by the State Government which is the detaining authority. ...

, ~- Settion 11 of the COFEPOSA Act, 1974 deals with the revP1:3tion of detention orders and under Section ll(b) the Central Go>1ern· ment may, at any time, revoke or modify an order made. by the Sta~ Government. Though strictly speaking the Central Government is not the detaining authority within the meaning of Article 22(5) yet they are under legal 'obligation to dispose of tj'. le representation as early as possible but the question is whether such delay by the Central Government also 11hould be subjected to such a rigorous scrutiny as is done in the case of a delay caused by the appropriate Government namely the detaining authority. In Tara Chandv. The State ofRajasthan, [1980] 2 SCC 321, this Court held that: · ' "Once a representation is made to the Central Government, it is duty boμnd to considef the same in order to exercise its discretion either in. rejecting or accepting 'it..

If - there is inordinate delay in consideting the representation thatwould clearly amount to violation of Article 22(5) so as to render the detention unconstitutional and void. " In Shyam Ambalal Siroya v. Union of India. and Ors. , [1980] 2 SCR 1078 it is held that: "The power of the Central Government to revoke the - order of detention implies that the detenu can make a rel" resentation for exercise of that power. Any petition for revocation of an order of detention should be dealt with reasonable expedition ..... It may be permissible for the Central Government to take reasonable time for disposing any revocation petition. ·But it would. not be justified in l:i - • ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government. It is necessary that the Government should apply its mind and ___.. __ either revoke the order of detention or dismiss the petition, declining to order for revocation. " In Sabir Ahmed v.

Union of India and Ors. , [1980] 3 SCR 738 dealing with the power of the revocation of the Central Gov. ,mment ;t is observed that such power is intended to be an additional check or safeguard against the improper exercise of its power of detention by "' the detaining authority or the State Government and that the Central Government should consider the same with reasonable expedition and ~ that what is reasonable expedition depends upon the circumstances of the particular case. No hard and fast rule as to the measure of reason- "\ able time can be laid down. It is also observed that it certainly does not cover the delay due to negligence, callous inaction, avoidable red- ~. taj>ism and unduly protracted procrastination.

In Sabir Ahmed's case as well as in Shyam Ambalal Siroya's case the representation made by the detenu to the Central Government has -been ignored and left unattended for a period of about four months and under those circumstances it was held that there was violation of Article 22(5). # • In Rama Dhondu Borade v. V. K. Saraf, Commissioner of Police and Others, [1989] 3 SCC 173 the detenu made a representation to the Central Government on 26. 9. 1988 and rue decision of the Central Government rejecting the representation was communicated to the appellant on 31. 10. 1988. The explanation submitted by the Central Government was not accepted on the ground that it is not satisfactory. --"{ In T. A. Abdul Rahman v. State ofKera/a and Others, [1989] 4 SCC 741 there was a delay of 72 days and it was observed that the representa- ___. _ tion of the detenu has not been given prompt and expeditious consideration and was allowed to lie without being properly attended to.

Bearing these principles in mind we shall examine whether the Central Government has expeditiously considered the representation or not. We have already noted that the representation was made on - 27. 9. 88 and disposed of by the Central Government on 2. 11. 88, i. e. within a month and five days. In the counter-affidavit filed on behalf of ~ the Central Government it is stated that the representation dated 27. 9. 88 was received in the COFEPOSA Section of the Ministry of Finance on 10. 10. 88 and the representation was in Malyalam. It is also stated that there were some allegations regarding the non-placement of certain documents and non-supply of certain, documents to him. Therefore a copy of the representation was sent to the sponsoring authority i. e. Collector of Customs, Cochin on that very day and the comments from the Collector of Customs, Cochin dated. 25. 10. 88 were received in the COFEPOSA Section on 27. 10. 88 and that the Additional Secretary examined them and with hi.

s comments, they were forwarded to the Minister of State for Revenue on 31. 10. 88, since 29th and 30th October, 1988 were holidays. Th~ Minister of State for Revenue with this comments forwarded the representation on the same day i. e. 31. 10. 88 to the Finance Minister. The Finance Minister considered and rejected the representation on 1. 11. 88 and the file was received in the Office on 2. 11. 88 and on the same day, memorandum rejecting the representation was sent to the detenu. From the explanation it can be seen that the representation was considered most expeditiously and there is no "negligence or callous inaction or avoidable red-tapism". For these reasons we are unable to accept this contention of the learned counsel. The next submission of the learned counsel is that the date of search was 17. 9. 87 and the detention order was passed on 21. 5.

88 after a long time and therefore there is no nexus between the alleged incident and the detention order and therefore there is no genuine satisfaction on the part of the detaining authority. The learned counsel submits that there was no live existing connection between the incident and the detention. In Lakshman Khatik v. The State of West Bengal, [1974] 4 sec 1 it is observed that mere delay in passing a detention order is not conclusive but the type of grounds given have to be seen and then consider whether such grounds could really weigh with an officer after such delay in coming to the conclusion that it was necessary to detain the detenu. In Rajendrakumar Natvar/al Shah v. State of Gujarat and Others, [1988] 3 SCC 153. it is held that the mere delay in passing the detention order is not fatal unless the court finds that the grounds are stale or illusory or that there is no real nexus between the grounds and the detention.

In Abdul Rahman's case seizure of the gold biscuits was on 30. 11. 86 and the detention order was passed 11 months thereafter. On the ground that there was no satisfactory explanation for this undue, unreasonable and unexplained delay, it was held that the delay throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority. In the counter-affidavit, in the instant case, filed on behalf of the detaining authority it is stated that the case records relating to the