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2004 DIGILAW 333 (MAD)

Asharaf v. The State of Tamil Nadu & others

2004-03-04

FAKKIR MOHAMED IBRAHIM KALIFULLA, V.S.SIRPURKAR

body2004
Judgment :- V.S.Sirpurkar, J. In this Habeas Corpus petition, an order dated 8.3.2003 made by the Commissioner of Police, Coimbatore City under the provisions of section 3(2) of the National Security Act, 1980 directing the preventive detention of one M.A.Shabir son of Thiru M.I.Abbas is challenged. 2. The grounds suggest that the concerned detenu was a party to the conspiracy to cause damages to the Tamil Nadu State Transport Corporation buses plying in Kerala and to plant a time-bomb in Coimbatore City to terrorise the people of Coimbatore and also to throw a challenge to the Coimbatore City Police. It is suggested that this conspiracy was between the detenu and other accused persons, like one Abdul Nazar Maudani. It is also suggested in the grounds that some incriminating articles were seized by the police which included geletin sticks, electric detonator and battery connected with an improvised timer and some other items, like inflammatory messages in English given in the name of outlawed outfits, like Al-Umma, Chennai and Ameer Al-Jihad, Bombay. It is suggested further in the grounds that the detenu was arrested on 3.1.2003 as his hand was suspected and he gave a confession statement of his being involved in the anti-social activities and also the aforementioned conspiracy to terrorise the general public of Coimbatore City and to throw a challenge to the Coimbatore Police. We need not go into other details of the conspiracy which formed part of the grounds as Mr.Sankarasubbu, learned counsel relies only on one point. 3. According to the learned counsel, though a representation was made dated 22.3.2003 through the prison Superintendent, that representation was refused to be considered by the Central Government. Learned counsel points out that the said representation with four copies thereof was tendered to the Superintendent of Central Prison, Salem. All these copies were forwarded to the State Government and the State Government, in its turn, sent one of the copies to the Central Government. learned counsel then invites our attention to the counter affidavit filed by the Union of India and points out that this representation was admittedly received by the Ministry of Home Affairs on 1.4.2003 from the Government of Tamil Nadu and an English translation was called for by the Central Government on 1.4.2003 from the Government of Tamil Nadu which translation was received by the Central Government on 4.4.2003. It went to the concerned desk of the Central Government Home Ministry on 7.4.2003, however, since the representation was not addressed to the Central Government, the same was returned to the State Government for action under section 8 of the Act on 17.4.2003. From this, learned counsel then points out that thus there was a total refusal on the part of the Central Government to consider the representation merely because it was not addressed to the Central Government, though the representation was placed with the Central Government and the Central Government having invited the translation thereof was in the know of the nature of the representation also. Learned counsel further points out that in paragraph-7 of the counter it is admitted that another representation dated 4.4.2003 from Smt. Ramlah, mother of the detenu Shabir was received by the Central Government in the Ministry of Home Affairs on 22.4.2003 in the concerned desk of the Ministry, however, since even that representation was not addressed to the Central Government, the same was sent to the State Government for action. Learned counsel then points out that there was a third representation received by the Central Government on 15.7.2003, however, this representation was immediately processed for consideration and the case of the detenu was put before the Director of Ministry of Home Affairs on 17.7.2003. It was considered and the Union Home Secretary rejected the same on 18.7.2003. From this, learned counsel says that though the last representation was considered and rejected by the Central Government, his two representations were ignored by the Central Government or as the case may be, refused to be considered and thereby the constitutional right under Article 22(5) of active and alacritic consideration of the representation has been breached. Learned counsel relied upon the oft-quoted decision in GRACY V. STATE OF KERALA (1991 SCC (Cri) 467) and more particularly, the following observation by the Supreme Court:- " It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention of the learned Solicitor General. The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention." (Emphasis supplied). 4. As against this, Mr.A.Navaneethakrishnan, learned counsel appearing on behalf of the state Government and Mr. K.Rajendran, learned counsel appearing on behalf of the Central Government point out that the law laid down in Gracy case has been varied to a great extent in the subsequent decision in R.KESHAVA v. M.B.PRAKASH (2001 SCC (Cri) 289). Learned counsel further rely on some observations made in UNION OF INDIA v. PAUL MANICKAM reported in 2004 SCC (Cri) 239 as also UNION OF INDIA AND ANR. v. SNEHA KHEMKA AND ANR (JT 2004 (2)SC 43). According to the learned counsel for the respondents, it is not now required and it is not a constitutional obligation on the part of the detaining authority or, as the case may be, the Governments to forward a representation made to one authority to another. Learned counsel point out that in the grounds a specific mention is made of the right of the detenu to make a representation to the Central Government and the address of the concerned authority has also been provided, particularly in paragraph-20 of the grounds. They point out that the representation which has been made is addressed to the State Government and therefore there was no duty on the Central Government to consider this representation and the Central Government has acted within its rights in refusing to consider the representation and sending it back to the State Government for doing the needful. 5. It will have, therefore. 5. It will have, therefore. to be seen as to whether, in the light of the circumstances and the facts prevailing in this case, there is any infraction of right of the detenu under Article 22(5) by a specific refusal on the part of the Central Government to consider the representation on the mere ground that the representation is not addressed to it? 6. In R.Keshava judgment, cited supra, there can be no doubt that the law laid down in Gracy case has been considered. That was a case where the Advisory Board had failed to forward the representation made to it to the State Government and therefore there was no consideration of the said representation made to the Advisory Board on behalf the detenu by the State Government. The Supreme Court ultimately held, after considering the observations in Gracy case, that there was really no such duty on the part of the Advisory Board to forward the representation and the non-consideration was of no consequence. In paragraph-8, the Supreme Court gave the question formulated in Gracy case. However, in paragraph-9 it found, on the basis of the observations made on the basis of the contents of the affidavit of the respondent, that the representation was not factually sent by the Advisory Board to the State Government. It seems to have relied on the following contents in the affidavit: " However, respondents 1 and 2 did not receive any representation given to the Advisory Board inasmuch as the Advisory Board has not sent the copy of the representation of the detenu, to the State Government. Therefore, the State Government could not consider the said representation". Even in the affidavit before the Apex Court there was undoubtedly a further stand taken that since the representations were addressed to the Advisory Board alone, there was no obligation on the part of the Superintendent of Prison to forward a copy of the representation to the State Government or the Central Government. This was therefore clearly on a different set of facts where the representation was actually not put before the State Government at all and the State Government was not even in a position to consider the representation in any manner since the representation was never forwarded to it by the Advisory Board. This was therefore clearly on a different set of facts where the representation was actually not put before the State Government at all and the State Government was not even in a position to consider the representation in any manner since the representation was never forwarded to it by the Advisory Board. In paragraph-12, the Court, after referring to the Gracy case again, specifically held in the following words: " It may be appropriate for the Board to transmit the whole record along with the report, if deemed expedient but omission to send such record or report would not render the detention illegal or cast an obligation upon the appropriate Government to make inquiries for finding out as to whether the detenu has made any representation, to any person or authority, against his detention or not. We are of the opinion that in Gracy case it was not held that any such duty was cast upon the Board but even if the observations are stretched to that extent, we feel that those observations were uncalled for in view of the scheme of the act and the mandate of the Constitution". From these observations it will be clear that in R.Keshava case the Supreme Court viewed at the Gracy case only to examine as to whether there existed a duty on the Advisory Board to pass on or forward any representation made to the Advisory Board on behalf of the detenu to the Government. The Court came to the conclusion that there was no such duty. However, it did not fall for the consideration of the Supreme Court in that case as to whether if the representation was placed before the Central Government or any Government for that matter and the Government could realise that it was a representation made against the detention order, could the Government still refuse to consider it only on the ground that it was not addressed to the Government. Now, we may again go back to the observation of the supreme Court in Gracy case which is binding on us even at the cost of repetition, which is as under: " The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention." 7. It cannot be denied that the right of the representation being considered at the earliest point of time and in an effective manner has been considered and held in favour of the detenu in Gracy case and to that extent, the law laid down in Gracy case has not been whittled down. What was considered in the subsequent cases on the basis of Gracy decision is that there is no duty on the part of one of the authorities to which the representation is made to forward the said representation to other authorities for being considered. That is the observation in paragraph-14. It is observed, 'In view of the constitutional and legal position, as noted by us, we find it difficult to agree with the reasoning in the aforesaid observations. In the absence of constitutional or statutory provisions, we are unable to observe that the Advisory Board was under an obligation to forward the whole of the record of its proceedings to the State Government. The State Government while confirming the order of detention has to peruse the report of the Advisory Board along with other records, if any, in its possession, and cannot determine the legality of the procedure adopted by the Advisory Board. ....." More significantly the Supreme Court in paragraph-17 further goes on to hold, "we are satisfied that the detenu in this case was apprised of his right to make representation to the appropriate Government/authorities against his order of detention as mandated in Article 22(5) of the Constitution. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate Government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to send its copy to the authorities concerned under the Act. In the absence of representation or the knowledge of the representation having been made by the detenu, the appropriate Government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenu to the Advisory Board. For this alleged failure of the appropriate Government, the order of detention of the appropriate Government is neither rendered unconstitutional nor illegal". (Emphasis supplied) 8. Particularly, after noting these observations from the Apex Court judgment, we have no doubt that in R.Keshava case the question which fell for consideration is entirely different. For this alleged failure of the appropriate Government, the order of detention of the appropriate Government is neither rendered unconstitutional nor illegal". (Emphasis supplied) 8. Particularly, after noting these observations from the Apex Court judgment, we have no doubt that in R.Keshava case the question which fell for consideration is entirely different. There the question was not related to the obligation on the part of the Government to consider the representation which had been placed before it by some other authorities. In R.Keshava case the question was as to whether there was a duty to place the representation before the State Government on the part of the Advisory Board. The Supreme Court did not find any such duty on the Advisory Board to place the representation before the State Government. But, in the case on hand, the situation is entirely different. Here, as many as four additional copies have been handed over by the detenu to the Superintendent of Prison along with main representation. True it is that the representation has been addressed only to the State Government. It is also liable to be noted that in other copies which have been sent addressees are left blank. Obviously, the detenu wanted his representation to be sent to all such authorities whom had the power to consider those representations. Otherwise, there was no meaning on the part of the detenu to supply four additional copies along with the main representation. This situation was absent in R.Keshava case. Further, in the case at hand after the copies were forwarded by the Jail Superintendent only to the State Government, the State Government chose to send one of the representations to the Central Government and in our view, rightly. Obviously, the State Government was driven to take this step because enough number of copies had been supplied to the State Government of that representation. Once the representation reached the Central Government, the Central Government also acted on the same in the sense that it required translation of the representation from the State of Tamil Nadu which translation was also supplied. It was then that it dawned upon the Central Government that the representation was not addressed to it. If the translation of the representation was available before the Central Government, it was bound to realise that it was a representation against the detention order. It was then that it dawned upon the Central Government that the representation was not addressed to it. If the translation of the representation was available before the Central Government, it was bound to realise that it was a representation against the detention order. Article 22(5) requires the representation to be put against a detention order. The Article does not necessarily direct that it should be directed to 'A' authority or 'B' authority. Once the Central Government realised that this was a representation against the order of detention and it was duly placed before it by the State Government, it was bound to consider the same. In our opinion, the non-consideration of the same has fatalised the further detention. We feel ourselves justified in taking this view, particularly in view of the observation in Gracy case that the form of representation is not relevant and what is material is the substance of the representation. Here was a case where a proper representation against the detention order was available with the Central Government and it did not do its duty to consider the same on the frivolous ground that it was not addressed to the Central Government. 9. The other decision relied upon by the learned counsel for the respondents was UNION OF INDIA v. PAUL MANICKAM (2004 SCC (Cri) 239). This was a case entirely turning on different facts. Here, instead of making a representation to the proper authority, the representation was made to the President of India. Very heavy reliance was placed on R.Keshava case, more particularly, the observations by the Supreme Court as in paragraphs-17 and 18 which were observed after referring to Raghavendra Singh v. Supdt., District Jail (1986) 1 SCC 650 : 1986 SCC (Cri) 60) and Ramana Begum v. State of A.P. (1993 Supp (2) SCC 341: 1993 SCC (Cri) 551). It was held that the representation made to the President of India or the Governor as the case may be would amount to representation to the Central Government and the State Government respectively. Therefore the representation made to the President of India or the Governor would amount to representation to the Central Government and the State Government, but this cannot be allowed to create a smokescreen by an unscrupulous detenu to take the authorities by surprise acting surreptitiously or with ulterior motives. Therefore the representation made to the President of India or the Governor would amount to representation to the Central Government and the State Government, but this cannot be allowed to create a smokescreen by an unscrupulous detenu to take the authorities by surprise acting surreptitiously or with ulterior motives. In the present case, the order (grounds) of detention specifically indicated the authority to whom the representation was made. Such indication is also a part of the move to facilitate the expeditious consideration of the representation actually made. In paragraph-18 it further observed, 'the respondent does not appear to have come with clean hands to the court. In the writ petition there was no mention that the representation was made to the President; instead it was specifically stated in paragraph 23 that the representation was made by registered post to the first respondent on 11.5.2000 and a similar representation was made to the second respondent'. The first and the second respondents in that case were the State of Tamil Nadu and Union of India respectively. It was on the basis of these facts that the Supreme Court came down very heavily and pointed out that such tactics in order to create grounds against the detention could not be allowed and unscrupulous detenu could not be allowed to have the advantage thereof. Learned Public Prosecutor suggested that in this case also the detenu had done the same thing. We do not agree. All that the detenu had done was that he had given five copies to the Jail Superintendent; first one was addressed to the State Government and the rest were obviously not addressed to anybody and they were left blank. Therefore they were obviously meant to send to such authorities who had the authority to consider those representations. Here is not a case where the detenu has not come to the Court with clean hands. In the grounds, there is a specific ground that the Central Government has not considered the representation. We therefore do not find any support in favour of the respondents in the aforementioned decision of Paul Manickam which turns entirely on different facts. 10. Lastly, the latest judgment of the Supreme Court in UNION OF INDIA AND ANR. v. SNEHA KHEMBA AND ANR. (JT 2004 (2) SC 43) has been relied upon. Here also, the case turns on different facts. 10. Lastly, the latest judgment of the Supreme Court in UNION OF INDIA AND ANR. v. SNEHA KHEMBA AND ANR. (JT 2004 (2) SC 43) has been relied upon. Here also, the case turns on different facts. It was a case of consideration of the representation by different authorities independent of others. The Supreme Court more particularly has referred to the observations made in Gracy case and Kamlesh Kumar Ishwardas Patel etc. v. Union of India and others, etc. (JT 1995 (3)SC 639: (1995) 4 SCC 51 ). It then observed in paragraph-26 that copy of the representation made by the detenu to one authority need not be placed before all the authorities and all such authorities need not consider and pass orders on the representation though the representations were not made to anyone of them. The observation only speaks regarding the duty of an authority to place the representation made to it before any other authority though the representation is not made to that authority. However, here the question is entirely different. Here, there is no failure on the part of the State Government to place the representation made to it. On the other hand, the State Government seems to have correctly understood that other copies were meant for other authorities, particularly because in other copies the addressee was left blank. The representation was therefore undoubtedly and correctly forwarded by the State Government to the Central Government. Once the Central Government came into possession of that representation and once it knew because of the translation of the representation as to the nature of the representation and more particularly, it being against the detention order, we feel that the Central Government was bound to consider without going into the jargon of the mere address. In paragraph-13 of that judgment it is observed, 'it is now well-settled that the object and purpose of the representation is to enable the detenu to obtain relief at the earliest opportunity wherefor, he may make representation before such authority which can revoke the same by setting him liberty". In paragraph-13 of that judgment it is observed, 'it is now well-settled that the object and purpose of the representation is to enable the detenu to obtain relief at the earliest opportunity wherefor, he may make representation before such authority which can revoke the same by setting him liberty". We feel that though there was no duty on the part of the State Government to send copies of the representation to such other authorities to whom the representation was not apparently made, once that representation became available and duly placed before the Central Government, the Central Government was not justified in refusing to consider the representation on the frivolous ground that the representation was not addressed to it. We are of the clear opinion that the Central Government has therefore erred in not considering the representation. Undoubtedly, the last representation was considered by the Central Government, however, that does not cure the illegality committed by the Central Government in refusing to consider the earlier representation. We are therefore of the clear opinion that the subsequent detention of the detenu is rendered illegal. The writ petition succeeds. Rule is made absolute. The detenu is directed to be released forthwith unless he is required in any other matter.