AHAMED NASSAR v. STATE OF TAMIL NADU AND ORS.
Citation: [1999] SUPP. 3 S.C.R. 657; 1999 INSC 480
Court: Supreme Court of India
Bench: K.T. THOMAS , AJAY PRAKASH MISRA
Judgment date:
Case summary
1999 INSC 480. Supreme Court of India judgment dated 1999-10-14. AHAMED NASSAR v. STATE OF TAMIL NADU AND ORS. Read the judgment and case details on LawSphereX.
Judgment text
658 SUPREME COURT REPORTS [1999] SUPP. 3 S. C. R. AHAMED NASSAR v. STATE OF TAMIL NADU AND ORS. OCTOBER 14, 1999 (KT. THOMAS AND A. P. MISRA, JJ. ] Criminal Law: Conservation of Foreign Exchange and Prevention of Smuggling Activities" Act, 1974: Section 3: Preventive Detention-Appropriate authority-Representation before-- Disposal of-Delay in-Sponsoring authority took two days' time in sending his comments-'-Held : Delay not to be assessed on the yardstick of number of days-ln a given case even a few days' delay may be fatal while in another set of circumstances a longer delay may still be held to be for valid reasons-'-However, there should be no unexplained delay or delay through carelessness-ln the circumstances of the case, two days' delay is not undue delay. Preventive Deten~ion-Appropriate authority-Representation before- Communication-Mode of-Speed post-Delay in-Sponsoring authority's comments .
took three days' time in reaching Central Government-Held : Speed post is a reasonable mode of communication-Delay is attributable to vagaries or inefficiency of postal or communication agencies and not due to Government apathy or negligence-Constitution of India, 1950, Art. 22(5). Preventive Detention-Appropriate authority-Representation before- Communication-Delay in-Held: Detenu has no right to force representation to be sent through special messenger by air. Preventive Detention-Detention orde~Relevant material-Non-place- • ment of-Before detaining authority---Subjective satisfaction of-Effect-Held: ... Every conceivable material which is relevant must be placed before the detaining authority---Such materials must be considered by the detaining ,· authority-Non- consideratrion of the same vitiates the detention orde~The date of issuance of fonnal order of detention is the relevant date upto which relevant material has to be placed before the detaining authority.
Preventive Detention-Detention order-Relevant material-Non-placement of-Before detaining authority-Subjective satisfaction of-Two letters, one written by detenu awl the other by his advocate, not placed before the detaining autho1ity-Detenu 's letter related to retraction of his confession which was also recorded in his bail application-Detenu 's letter also mentioned that the seized goods were 11on-p10hibited goods for which he offered to pay the duty but still he was arrested-Effect-Held : Non-consideration of the first part of detenu's letter is acceptabl~But second pmt is detenu's stand 011 men'ts which is relevant-Hence, non-placement of the two letters before the detaining authority vitiates the detention order.
Preventive Detention-Detention order-Detenu in jail-Bail application rejected-Likelihood of detenu being released on bail---Detaining authority-Subjective satisfaction of~Held : Can be arrived at by looking to the contents of the bail application, although rejected, and also the Constitutional Scheme, Preamble, Objects and Reasons of the Act. Preventive Detention LaYir-lnterpretation of-Held : Should be strictly construed since it takes away one's liberty-But it should also be seen that no person who acts against the national interest is allowed to escap~Where two -interpretations are possible, the one which subserves the objects of the preventive detention statute should be preferred-More so, when the credibility of the statutory acts performed by statutory functionaries are to be scrntinized and tested. Interpretation of Statutes: Interpretation-Basic Principl&-lf there are two possible interpretations, the one which subserves the objective of the statute should be accepted.
Words and Phrases : "Expeditious disposal" and "likely to be releqsed"-Meaning of The petitioner-detenu was detained under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu sent his representation on 21. 5. 1999 which was received by the Central Government on 25. 5. 1999 and on the same day comments were called from the sponsoring authority. The sponsoring AHAMED NASSAR v. STATE 659 authority sent reply on 28. 5. 1999, which was received by the Central Government on 1. 6. 1999, which called for the comments of the detaining authority. The detaining authority sent the comments on 10. 6. 1999, which was received by the Central Government on 14. 6. 1999. On 15. 6. 1999 it was s11bmitted to the Special Secretary and on the same day it was rejected and information was sent to the Detenu also on the same day.
In this petition it was contended on behalf of the petitioner • Detenu that there was a delay of two days, namely, 25. 5. 1999 and 26. 5. 1999 in· considering the representation of the Detenu; that two letters, one written by the Detenu and the other written by his advocate, were not placed before the sponsoring authority; that the letters contained factual assertions like · retraction of the detenu's earlier alleged confossion and the detenu's stand that the seized goods were not prohibited goods for which Detenu offered to pay the duty but the officer concerned without listening to him arrested him and that the recording of the detaining authority that there was likelihood. of the detenu being released on bail was not based on any factual basis which showed non-application of mind by the detaining authority.
On behalf of the respondent it was contended that the retraction of the confession was also recorded in the bail application which was placed and considered by the detaining authority. Allowing the appeal, this Court. HELD : 1. The alleged delay of two days, viz. , 25. 5. 1999 and 26. 5. 1999 the time taken by the sponsoring authority to send its comment. Though both the authorities were in the same city it cannot be held that this delay is attributable for the delay in disposal of detenu's representation. In a given case even few days' delay may be fatal while in another set of circumstances a longer delay may still be held to be for valid reasons. Expeditious disposal of any representation only means which could be expeditiously disposed of by the concerned authority but should not be with any unexplained delay of delay through carelessness. This would depend on the facts and circumstances of each case. [668-B; CJ Mst. L. M. S. Ummu Sa/eema v. Shri B. B.
Gujarat, [1981) 3 SCC 317 and KM. Abdulla Kunhi v. Union of india, [1991) 1 SCC 47. 6, relied on. 2. 1. The liberty of an individual under the Constitution is very . sacrosanct and there is a constitutional obligation ca~t on the concerned authorities but this liberty should not be SO stretched to such an UR· reasonable extent to force communications to. be sent through special messenger by air. [669-G; H] 2. 2. The mode of communication for the statutory authorities has to be in the mode prescribed which has to be reasonable. In the present case, the mode of these communications was through speed post. This could not 'be construed as callous, slack or casual disposition of the detenu's representation. [670-A] 2. 3. The delay attributed was caused in postal communications. So such a short delay may -not have much bearing. What is relevant is, there should be reasonable explanation for such a delay. How the authorities have . dealt with the matter?
If it was casual, neglect, keeping relevant papers immobile without any reasonable cause they are attributable to assess delay. But delay on account of vagaries of or on account of inef'· ficiency of postal or communicating agencies cannot in normal circumstances be taken as inexcusable delay either on the part the sponsoring or detaining authority or the concerned State authorities in disposal of the detenu's representation. [671-A; B; CJ 2. 4. The stated delay was on account of vagaries of the postal department. It is not attributable to the States. Hence, on the facts and circumstan, · of this case, it is not possible to hold that there was any delay in the disposal of the detenu's representation by the Central Government. [670-B; C] Venmathi Selvam (Mrs. ) v. State of T. N. , [1998] 5 SCC 510 and Rajammal v. State of T. N. , [1999] 1 SCC 417, held inapplicable. 3. A man is to be ddained in prison based on the subjective satisfaction of the detaining authority.
Every conceivable material, which is relevant and vital, which may have a bearing on the issue, should be placed before the detaining authority. Sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. Decision is not to be made by the sponsoring authority. The law on this subject is well settled; a detention order vitiates 'if any relevant document is not placed before the detaining authority, which reasonably could affect his decision. (672-G; H; 673-A] AHAMED NASSAR v. STATE 661 Ashadevi v. K Shivraj, [1979] 1SCC222;Ayya v, State of U. P. , [19891 l SCC 374 and Sita Ram Somani v. State of Rajasthan, [1986] 2 SCC 86, . relied on. 4~1. The two letters, one written by the detenu and the other \l -ll castes and Schedule Tribes respectively.
Article 16 creates right for equality of opportunity in the matter of public employment which is curtailed through its sub-clauses (3), (4), (4A) and (5) by enabling the Parliament to make law confining to a class or classes for employment to an office even prior to such emplpyment, permitting reservation in favour of backward class, Scheduled castes and Scheduled tribes or in the cases of religious denominational institution. Each of the most solemn rights of any citizens is cloaked with reasonable restrictions under various sub-clauses of Article 19. The protection of life and personal liberty enshrined in Article 21 itself contains the restriction which can be curtailed through the procedure established by law, which of course has to be reasonable fair and just. Article 22 confers power to deprive of the very sacrosanct individual right of liberty under very restricted conditions. Sub-clauses (1) and (2) confers right to arrest within the limitations prescribed therein.
Sub-clause (3) even erases this residual protective right under sub-clauses (2) and (3) by conferring right on the authority to detain man without trial under the preventive detention law. This drastic -< clipping of right is for a national purpose and for the security of the State. . J Similarly, Article 301, Chapter XII of the Constitution confers right to trade, commerce and intercourse freely through out the territory of India but succeeding Articles, viz. , Articles 302, 303 and 304 slice that absolute freedom in various grades and degrees. Each of such checks and clippings in the absolute right of an individual is made within the sphere of certain reasonableness to give preference, when in conflict with the collective right of and for the gain of the society. Man is a social animal who dedicates his works to enrich the social coffer for enriching social development.
On one hand individual rights are well recognised but when it makes dent on society, affecting public right it gives way. This is the pattern of our Constitution. So far as individual rights are concerned they are recognised and fully protected but such right is curtailed when it tramples on community right or right of public at large. It is severely curtailed when it tramples with considerable magnitude for self gain, deleteriously effecting the national interest by dealing such person sternly through preventive detention without trial, for a specified period within the limitation provided therein. So in any organised society there can be no right in absolute term. ~ Thus courts must first find, the extent of individual right deciphering AHAMED NASSAR v. STATE [MISRA,J. ] 679 with the degree of trespass he makes on the public right, on which there is embargo.
Where an individual acts clandestinely for his personal gain against national interest deleteriously affecting national economy or security the draSlic curtailment of his right should be kept in mind to see that no such person escapes from the clutches of law. On the one hand, as it takes away ones liberty it should be strictly construed, on the other hand to subserve the objective of this Act, in the national interest it should be seen that no such person escapes. In this backdrop of the Constitutional scheme, the preamble as also the objects and reasons of COFEPOSA we have to scrutinize and test the justiciability of the acts of every statutory functionary performing statutory obligations under the Act. It is well settled that whenever there are two possible interpretations of a statute, the one that subserves the objective of an enactment is to be accepted.
The same princi pie shall with equal force apply in testing the credibility of the acts of a statutory functionary performing their statutory obligations. Such authorities, while performing their obligations under the preventive detention law must perform it on one hand t ·~ with promptness, as not to further lengthen detenus detention through their causal conduct, neglect, lethargy, etc. , on the other hand all what is required to be done by it is if it has been done then in construing its conduct, conclusions etc. , if there be two possible interpretations then the one that subserve the objective of the statute should be accepted. Next, returning to the issue under consideration, as to what should be the measure to test the legality of the subjective satisfaction of the detaining authority when he records, "there is likelihood of detenu being released on bail".
Even for judging this we have to keep in l]lind the aforesaid conspectus of the Constitution, preamble, objects and reasons of the Act. When one's liberty is to be curtailed, on the subjective satisfaction of the detaining authority, with area of interference by the court being limited, then within this limitation, Court must see, in this authority privileged area that the detaining authority does not stretch itself illegitimately in the exercise of its jurisdiction. ' Learned counsel for the detenu relies on Dhannendra Suganchand Chelawat through his sister Km. Archana Chelawat & Suganchand Kan-naiyyalal Chelawat through his daughter Km. Archana Chelawat v. Union of India & Ors. , [1990] 1 SCC 746, in this case . the Court held : .
"In the present case there was no material in the grounds of detention showing that the detaining authority apprehended that the further remand would not be granted by the Magistrate on October 13, 1988, and the appellants would be released from custody on that day. On the other hand the bail applications moved by the appellants had been rejected by the Sessions Judge a few days prior to the passing of the order of detention. The grounds of detention disclose that the appellants were engaged in activities which are offences punishable with imprisonment under the Narcotic Drugs and Psychotropic Substances Act, 1985.
It cannot, therefore, be said that there was a reasonable prospect of the appellants not being further remanded to custody on October 13, 1988 and their being released from custody at the time when the order for preventive detention was passed on October 11, 1988" In the above, it was a case under Narcotic Drugs and Psychotropic Substances Act, 1985, therefore, it cannot be said that there was a reasonable prospect of the appellant being released on bail. .. ' In Binod Singh v. District Magistrate, Dhanbad, Bihar and Ors. , [1986] 4 sec 416, the detenu was in detention when order of detention under Section 3(2) National Security Act, 1980 was served on him. There were criminal cases against him and in one of them the offence was Section 303 of the IPC. When the order of detention was passed the petitioner had not surrendered but when it was served petitioner had already surrendered.
In this background subjective satisfaction of the order of detention was challenged as there was no likelihood of the detenu being released on bail. This Court held: "If a man is in custody and there is nc imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. " In this case there exL~ted prim a f acie no scope to release him on bail as the offence was under Section 303 IPC. AHAMED NASSAR v. STATE [MISRA, J. ] 681 Jn Rivadeneyta Ricardo Agustin v. Government of the National Capital . Territory of Delhi and Ors. , [1994] 1 Supp.
SCC 597, reliance is placed on the following passage which approved the case of Kamanmnissa v. Union of India, [1991) 1 SCC 128 held '~ C• "The decisions of this Court to which our attention was drawn by the learned counsel for the petitioners lay down in no uncertain terms that detention orders ean validly be passed against detenus who are in jail, provided the officer passing the order is alive to the fact of the detenus being in custody and there is material on record to justify his conclusion that they would indulge in similar activity, if set at liberty. " The above decision is strongly relied by learned counsel for the detenu as detention therein was also under Section 3 of the COFEPOSA per. taining to an offence under Section 135 of the Customs Act. It was held that the State could not bring to the notice any material indicating that release of the pditioner was imminent or there was a likelihood of his being ... released.
In that case the bail application was finally dismissed on June 9, 1992 and hence there was no scope for presuming a likelihood of his being released on bail. Further significantly proposal for the detention was sent on May 22, 1992 but the authority concerned passed the order only on August 18, 1992, after several months without appraising of. the facts prevailing in the middle of the August 1992. The above decision is, therefore, distinguishable on facts. The Court in the above case records : "The bail petition filed by him were dismissed finally on June 9, 1992. He did not move any bail application thereafter ... 'It is pointed out that according to counter, proposal for the detention of petitioner was sent to the Administrator on May 22, 1992 but the authority passed the order only on August 18, 1992 without apprising himself of the fact situation prevailing in the middle of August 1992.
" We have already observed in the matter of testing satisfaction of any detaining authority, it has to be tested on the facts and circumstances of each case. Examining the facts in the present case, we find in para 7 of the counter affidavit filed on behalf of respondent No. 1 (State) by Mr. S. Retnaswamy, Deputy Secretary to Government, Public Department, · Government of Tamil Nadu, Chennai-9 it is stated : " .... It is further submitted that the detaining authority has considered 'the bail application of the detenu dated 1. 4. 1999 and arrived at the subjective satisfaction that there is likelihood of the release of the detenu on bail and hence it cannot be stated that there is non-application of mind on the part of the detaining authority. " So before the detaining authority, there existed not only order dated 12. 4. 1999 rejecting his bail application but the contents of the bail application dated 1. 4. 1999.
The averment made therein are relevant material on which subjective satisfaction could legitimately be drawn either way. Thus in spite of rejection of the bail application by a court, it is open to the detaining authority lo come to his own satisfaction based on the contents of the bail application keeping in mind the circumstance that there is likelihood of detenu being released on bail. Merely because no bail application was then pending is no premise to hold that there was no likelihood of his being released on bail. The words "likely to be released" connote chances of being bailed out, in case there be pending bail application or in case, if it is moved in future, is decided. The word "likely" shows it can be either way.
So without taking any such risk if on the facts and circumstances of each case, the type of crime to be dealt with under the criminal Jaw, including contents of the bail application, each separately or all this compositely, all would constitute to be relevant material for arriving at any conclusion. The contents of bail application would vary from one case to the other, coupled with the different set of circumstances in each case, it may be legitimately possible in a given case for a detaining authority to draw an inference that there is likelihood of detenu being released on bail. The detention order records :- "The Administrator of the National Capital Territory of Delhi is aware that you are in judicial custody and had not moved any bail application in the Court(s) after June 9, 1992 but nothing prevents you from moving bail applications and possibility of your release on bail cannot be ruled out in the near future.
Keeping in view your modus operandi to smuggle gold into India and frequent visits to India, the Administrator of the National Capital Territory -----of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once you are released. " AHAMED NASSAR v. STATE [MISRA, J. ] 683 Thus we hold the conclusion of the detaining authority on the facts of the present case, "there is likehood of his being released on bail" cannot be said to be based on no relevant material. However, in view of our findings, viz.
, non-placement of two material documents, one letter dated 19th April, 1999 by the advocate of the detenu to the sponsoring authority and the other, letter dated 23rd April, 1999 by the detenu, before the detaining authority which were relevant and were likely to affect the satisfaction, hence we have no hesitation to hold that the detention of the petitioner under Section 3(1) of the COFEPOSA vitiates and the detention order is unsustainable in law. Accordingly, we quash the impugned detention order dated 28th April, 1999 passed by the detaining authority under Section 3(l)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities, 1974. The writ petition is accordingly allowed. The petitioner be released from jail forthwith unless required in connection with some other case. v. s. s. Appeal allowed ....
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