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2000 DIGILAW 127 (KER)

Mrs. P. P. Naseema v. State of Kerala

2000-02-28

ARIJIT PASAYAT, K.S.RADHAKRISHNAN

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Judgment :- PASAYAT, C.J. Detention of Palakkat Ashraf (hereinafter referred to as 'detenu') pursuant to an order of detention in terms of Section 3(1)(i) and 3(1)(iii) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short, the Act) has been challenged by his wife in this Habeas Corpus petition. Pursuant to order of detention dated 14-12-1997, detenu was arrested on 22-6-1999 and is presently detained in Central Prison, Trivandrum. Grounds of detention were supplied to detenu on the date of arrest. Written representations were sent by detenu's counsel to Superintendent of Central Prison for detenu's signature and sending to State of Kerala and Union of India. Such representations were sent on 30-7-1999 to detaining authority and Central Government requesting to revoke order of detention. State Government rejected detenu's representation on 16-8-1999, while Central Government rejected it on 20-8-1999. As required under the Act, reference was made to Advisory Board. Said Board met, heard detenu and sent its report dated 20-8-1999 to the effect that there was sufficient cause for detention of detenu. Order of confirmation was passed on 6-9-1999 by the State Government confirming detention for a period of one year from date of detention. 2. Though several grounds have been taken in the writ petition, at the time of hearing, mainly two grounds were pressed into service. Firstly, it was contended that there was inordinate delay in executing the order of detention; and secondly, there was unexplained delay in disposal of representation. According to the petitioner, both the fatal to the order of detention. In support of first contention, it is submitted that order of detention dated 14-12-1997 was executed on 22-6-1999 i.e., after about 18 months. It is to be noted that specific stand has been taken in the petition to the effect that plea of detenu avoiding arrest is clearly false and contrary to fact situation because detenu appeared before police officials on 8-12-1998 and a statement was recorded from him, which is Ext. P10(a). Similarly, representations have been dealt the casually and it has not been explained as to what steps were taken to deal with the matter with the promptitude warranted. It is pointed out that even Central Government has not indicated how it dealt with representation. 3. Counter-affidavit has been filed by State Government, inter alia. P10(a). Similarly, representations have been dealt the casually and it has not been explained as to what steps were taken to deal with the matter with the promptitude warranted. It is pointed out that even Central Government has not indicated how it dealt with representation. 3. Counter-affidavit has been filed by State Government, inter alia. taking the stand that detenu was absconding to avoid arrest and went underground and action was initiated against him under Section 7 of the Act. As regards appearance of detenu at police station, stand taken in the counter affidavit of the State is interesting. In para 13 of counter-affidavit; it has been stated, inter alia, as follows : "13 ...... As per the case diary in Cr. No. 457/98, the detenu was questioned on 8-12-1998 and as per his statement, he reached India about one month prior to 8-12-1998 and also that he came to know about the money transaction took place on 5-10-1998 only after his coming to India about one month back. This would go against his claim of his availability at his native place for Keralolsavam and also during January and July, 1998. However, explanations are sought from the responsible police officers for not identifying the warrantee while he was questioned on 8-12-1998 by Tirurangadi Police and not executing the pending detention order against him ......" It is not indicated as to when action under Section 7 of the Act was initiated. Even the dates on which attempt was made to arrest the detenu or any detail in regard thereto have not been indicated in the counter-affidavit. There is no material to show that the authority has made serious attempts to locate the detenu and apprehend him and was not successful in finding him out. Absence of particulars in regard to attempt, if any, made by authorities to apprehend the detenu leads to the irresistible conclusion that no serious attempt was made by police authorities to apprehend the detenu (see SMF Sultan Abdul Khader v. Jt. Secretary to Government of India, 1998 SCC (Cri) 1534). Fact that detenu appeared at a police station and was not arrested establishes beyond a shadow of doubt lack of genuine and sincere efforts to apprehend the detenu. 4. Preventive detention is an anticipatory measure and does not relate to an offence while criminal proceedings are taken to punish a person for an offence committed by him. Fact that detenu appeared at a police station and was not arrested establishes beyond a shadow of doubt lack of genuine and sincere efforts to apprehend the detenu. 4. Preventive detention is an anticipatory measure and does not relate to an offence while criminal proceedings are taken to punish a person for an offence committed by him. They are not parallel proceedings. Object of the law of preventive detention is no punitive, but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objectives which are specified by law. Action of the Executive in detaining a person being only precautionary, matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct, failure to conform to which should lead to detention. Satisfaction of the detaining authority, therefore, is a purely subjective affair. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something, but to intercept before he does it and to prevent him from doing. 5. In view of the above object of preventive detention, it becomes absolutely imperative on the part of detaining authority as well as executing authorities to be very vigilant and keep their eyes open and alert, and not to turn a blind eye in securing the detenu and executing the detention order, because any indifferent attitude on the part of detaining authority or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate entire proceedings. There must be a live and proximate link between the grounds of detention alleged by the detaining authority and avowed purpose of detention, viz. prevention of smuggling activities. Link is snapped if there is long and unexplained delay between date of order of detention and arrest of detenu. In such cases, order of detention can be struck down, unless grounds indicate a fresh application mind of the detaining authority to the new situation and changed circumstances. prevention of smuggling activities. Link is snapped if there is long and unexplained delay between date of order of detention and arrest of detenu. In such cases, order of detention can be struck down, unless grounds indicate a fresh application mind of the detaining authority to the new situation and changed circumstances. But where delay is not adequately explained but is found to be the result of recalcitrant or refractory conduct of detenu in evading arrest, there is warrant to consider the link not snapped but strengthened (see Bhawarlal Ganeshmalji v. State of Tamil Nadu, AIR 1979 SC 541 : (1979 Cri LJ 462). Whether delay was unreasonable or not depends on the facts and circumstances of each case. If there is unreasonable delay between date of order of detention and date of arrest of detenu, such delay, unless satisfactorily explained, throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing detention order and consequently renders detention order bad and invalid because live and proximate link between grounds of detention and purpose of detention is snapped in not arresting detenu. Plea that detenu had been evading execution of the detention order hardly gives credit to authorities in charge of enforcing orders of detention. Fact situation indicated above corrodes acceptability of such stand. Even when the detenu appeared at the police station, the order of detention was not executed." 6. In A. Mohammed Farook v. Jt. Secretary to Government of India, 1999 (7) Scale 274, delay of 40 days in executing the detention order was held to be fatal to detention. When there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in prejudicial manner. (See T. A. Abdul Rahman v. State of Kerala, 1989 4 SCC 741 : (1990 Cri LJ 578), K. P. M. Basheer v. State of Karnataka, 1992 2 SCC 295 : (1992 Cri LJ 1927). On the fact situation highlighted above, the order of detention is unsustainable. 7. (See T. A. Abdul Rahman v. State of Kerala, 1989 4 SCC 741 : (1990 Cri LJ 578), K. P. M. Basheer v. State of Karnataka, 1992 2 SCC 295 : (1992 Cri LJ 1927). On the fact situation highlighted above, the order of detention is unsustainable. 7. Other point urged relates to delay in presentation of representation. In Rajammal v. State of T.N., 1999 SCC (Cri) 93 : (1999 Cri LJ 826), it was observed by Apex Court that no period is prescribed by Article 22 of the Constitution for decision to be taken on the representation. Words 'as soon as may be' in Clause (5) of Article 22 convey the message that representation should be considered and disposed of at the earliest. But that does not mean that authority is pre-empted from explaining any delay which would have occasioned in the disposal of representation. Court can certainly consider whether delay was occasioned due to permissible reason or on unavoidable causes. Even longer delay can be well explained. It is not enough to say that delay was very short. As we have held the order of detention to be unsustainable on the ground of delayed execution thereof, we feel it unnecessary to deal in detail this plea.We allow the Original Petition, set aside and quash the order of detention and direct that detenu be set at liberty forthwith unless his continued detention is necessary in connection with any other case. Petition allowed.