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2010 DIGILAW 184 (KAR)

Sushma M. Jain v. Government of Karnataka

2010-02-11

MANJULA CHELLUR, V.JAGANNATHAN

body2010
Judgment :- 1. The challenge in this petition is to the detention order and the order of confirmation passed under the COFEPOSA Act, on the ground of delay in considering the representation given by the detenue and no strict compliance of the law by the authorities concerned as well as the order passed is not in conformity with COFEPOSA Act Section 3 (1) (i). 2. The brief facts are that the Officers of the Directorate of Revenue Intelligence examined the export consignments of the detenue on 10.6.2009 stuffed in two containers viz. CRXU 2031190 AND NESU 3523162 belonging to the detenue’s firm M/s. Tirupati Exports, No.27, Industrial Estate, Chunchaghatta Road, Konankunte Post, Bangalore, and revealed that there was misdeclaration of quantity of export goods in as much as the examination revealed that said containers contained 11,376 pieces of readymade garments as against declared quantity of 55,584 pieces of readymade garments and according to the Officers of Revenue Intelligence, number of cartons declared was 399 as against 306 in respect of cotton knitted Men’s T-shirts and the quantity declared was 27,864 pieces as against the actual quantity found 3,792 pieces and in respect of 100% cotton material which is referred to in Sl. No.2 of the grounds of detention, number of cartons declared was 452 as against 329 which was actually found and the quantity declared was 27,720 pieces as against the actual quantity found 7,584 pieces. The export goods were seized under mahazar on 11.6.2009 and having regard to the material value of the goods estimated as against the declared goods in two export documents, the authorities, therefore opined that the quantity declared by the detenue was false and attracted morefully Section 2(39) of the Customs Act, 1962 read with Section 2(3) of COFEPOSA Act, 1974 and the Detaining Authority therefore was of the view that he was satisfied that a case for the detention of the detenue under Section 3 (1)(i) of COFEPOSA Act, 1974 therefore is made out. Thereafterwards, the detenue was arrested on 12.6.2009 and order of detention was passed on 6.7.2009 and the said order was served on the detenue on 21.7.2009 and the order of confirmation of the detention order was passed on 24.9.2009. 3. Thereafterwards, the detenue was arrested on 12.6.2009 and order of detention was passed on 6.7.2009 and the said order was served on the detenue on 21.7.2009 and the order of confirmation of the detention order was passed on 24.9.2009. 3. In this petition for habeas corpus, the petition being the wife of the detenue Sri.Milap Ratan Chand Jain, has raised several grounds attacking the order of detention and these grounds are, delay in considering the representation by the Detaining Authority, document that came into existence after the detention order were not considered by the Advisory Board and the order of detention was not in conformity with COFEPOSA provisions under Section 3(1) and 3(1)(i) and the assistance of a lawyer was not given to the detenue and further there was a long delay in considering the representation and on these grounds, the detention order is assailed by the writ petitioner. The additional grounds raised are that the 1st respondent ought to have considered the representation given to the Advisory Board, independent of the opinion of the Advisory Board and there was delay of 54 days in considering the representation and as such there is violation of strict compliance of law having regard to Article 22(5) of the Constitution of India. Non-application of mind by the Detaining Authority is also one of the grounds that is urged in this petition. 4. We have heard the learned counsel appearing for the parties and perused the material placed. 5. Learned counsel appearing for the petitioner, relying on the Apex Court decisions and also of this Court, submitted that the grounds urged in this petition therefore are sufficient to hold that the order of detention and the confirmation order are violative of Article 22(5) of the Constitution of India and the Detaining Authority has not applied its mind to all the aspects of the case and as such the impugned orders are liable to be set aside as being contrary to the provisions contained in Article 22(5) of the Constitution of India. The decisions referred to in this regard by the learned counsel for the petitioner are Jayanarayan Sukkul v. State of West Bengal ( AIR 1970 SC 675 ); Kamleshkumar Ishwardas Patel v. Union of India (1995 SCC (Crl) 643); Harish Pahwa v. State of U.P. & others (1981 SCC (Crl) 589); T.A.Abdul Rahman v. State of Kerala & others (1990 SCC (Crl) 76); H.G.Ravindra and another v. The State of Karnataka and another (1984 Crl.L.J.45); K.M.Abdulla Kunhi v. Union of India & others v. Zubair Haji Qasim ((2009) 1 SCC (Crl) 477; Kundanbhai Dulabhai Shaikh v. District Magistrate, Ahmedabad & others (1996 SCC (Crl) 470) and Rajesh Gulati v. Govt. of NCT of Delhi & another (2002 SCC (Crl) 1627. Our attention was also drawn to the Apex Court decision in Crl.A.2121/09. 6. On the other hand, the learned Additional Advocate General for the State Sri.K.M.Nataraj supported the detention and the confirmation orders by referring to the objections filed and argued that the authorities have considered the representation given and the documents as well as the letter of retraction and there is no failure on the part of the authorities and there is also no delay in considering the representation by the authorities concerned and as such the grounds put forward by the petitioner’s counsel do not carry much substance. Learned Addl. Advocate General for the State also referred to the provisions of COFEPOSA Act to submit that the said provisions have been duly complied with and in so far as a single incident having been the cause for detention, submission made is that in view of the decision of the Apex Court reported in the case of Saraswathi Seshagiri v. State of Kerala ( 1982 (2) SCC 310 ) even a single act can form the basis for the detention order. 7. In the light of the aforesaid contentions put forward, the point for consideration is: “Whether detention order and subsequent order of confirmation can be held in accordance with the provision of law both under COFEPOSA Act and under Article 22 (5) of the Constitution of India?” 8. Before we proceed to examine this aspect of the matter, it would be appropriate to refer to the law laid down by the Apex Court in the matter of detention order being passed by the authorities concerned. Before we proceed to examine this aspect of the matter, it would be appropriate to refer to the law laid down by the Apex Court in the matter of detention order being passed by the authorities concerned. In the case of Jayanarayan Sukkul v. State of West Bengal ( AIR 1970 SC 675 ), the Apex Court laid down four principles that have to be followed in regard to the representation of the detenues and the relevant observations are as under: “Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board, Thirdly, there should not be any delay in the mater of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of citizens. A citizen’s right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu’s representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu’s representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.” 9. As far as the consideration of representation given by the detenue is concerned, the Apex Court has held that it is the right implicit in Article 22(5) and it is in addition to his right to make representation to the State Government and the Central Government. As far as the consideration of representation given by the detenue is concerned, the Apex Court has held that it is the right implicit in Article 22(5) and it is in addition to his right to make representation to the State Government and the Central Government. Referring to this aspect in the case of Kamleshkumar Ishwardas Patel v. Union of India (1995 SCC (Crl) 643) the following observations are made by the Apex Court: “14. Article 22 (5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the Detaining Authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation. 38. Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered: Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation. 46. The decisions in Sat Pal and Raj Kishore Prasad on which the High Court has placed reliance do not, therefore, detract from the law laid down in Santosh Anand. Having found that the representation of the person detained was not considered by the officer making the order of detention the High Court was in error in holding that the said failure on the part of the detaining authority to consider and decide the representation is not fatal to the order of detention. We are, therefore, unable to uphold the answer given by the Full Bench to Question No. 3 and, in our view, the said question should be answered in the affirmative. On that basis it has to be held that since there was a denial of the constitutional safeguard provided to the detenu under Article 22(5) of the Constitution on account of the failure on the part of the officer who had made the order of detention to independently consider the representation submitted by the detenu against his detention and to take a decision on the said representation the further detention of the detenu Ishwardas Bechardas Patel is rendered illegal. The appeals, therefore, deserve to be allowed. 49. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenus have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the national economy. 49. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenus have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the national economy. He has urged that having regard to the nature of the activities of the detenus the cases do not justify interference with the orders of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenus are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The Farmers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be “zealously watched and enforced by the Court”. Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this Court while rejecting a similar submission: “Maybe that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic setup, it is essential that at least those safeguards are not denied to the detenus.”” 10. Keeping the aforesaid principles laid down by the Apex Court, we have to examine the case on hand and though the respondents – State in its objections has stated that there was no delay on its part in considering the representation given by the detenue, the facts which are not in dispute are that the detenue made the representation to the Advisory Board on 1.8.2009 and it was considered by 1st respondent only on 24.9.2009. Therefore, there is a delay of 54 days. Therefore, there is a delay of 54 days. Secondly, the order of detention mentions that the 1st respondent is satisfied that the detenue will have to be prevented from smuggling textile articles and therefore by virtue of power conferred on Section 3 (1) and 3(1)(i) of the COFEPOSA Act, the order was passed directing the detention of the detenue. The provisions contained in Section 3(1) of the COFEPOSA Act deals with a case that falls within the purview of ‘with a view to preventing him in acting in any manner conservation or augmentation of foreign exchange’ whereas the second part of the said Section reads, ‘with a view to preventing him from smuggling of goods’. 11. Therefore, referring to the aforesaid provision of Section 3(1) and 3(1)(i), it was argued by the learned counsel for the petitioner that the first part of the Section deals with the offence under the COFE part of the Act whereas the second part refers to POSA part of the Act and as such in the instant case, by referring to both Section 3(1) and 3(1)(i), the authorities have rendered the communication being not clear and this has also caused great prejudice to the detenue in the sense that he is unaware of the offence for which he is ordered to be detained. The communication therefore lacks clarity and is improper. Apart from this, it was also pointed out that in the grounds of detention it has been mentioned that the offence committed by the detenue falls under smuggling and in the subsequent paragraph of the grounds of detention at para 11, it is stated that the detention is under Section 3(1) and 3(1)(i) of the COFEPOSA Act. Therefore, there is enough force in the submission made by the learned counsel for the petitioner that the communication itself was not very clear and the detenue was unaware of the offence on which he was ordered to be detained. 12. The representation given by the detenue was not considered by the 1st respondent and there is a delay of as many as 54 days. Whether the said delay would constitute the order of detention invalid is the question. 12. The representation given by the detenue was not considered by the 1st respondent and there is a delay of as many as 54 days. Whether the said delay would constitute the order of detention invalid is the question. The Apex Court in the case of H.G.Ravindra and another v. The State of Karnataka and another (1984 Crl.L.J.45) has held, that where the representation made by detenue was not considered and there was delay of 19 days in the disposal of the representation and the explanation given was that the delay was on account of the papers going from table to table, receiving comments at each stage, the delay has not been reasonably explained and detention order gets invalidated by the same infraction. 13. In yet another case Harish Pahwa v. State of U.P. & others (1981 SCC (Crl) 589) it was held by the Apex Court that where there was delay in considering the representation by the Government and the explanation given was that the file has to move from table to table, the Apex Court observed that calling comment from other departments, seeking opinion of the Secretary, allowing the representation to lie without being attended to is not the type of action which the State is expected to take in the matter of such vital import and went on to observe that it is the duty of the State to proceed to determine the representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such representation is received and dealt with continuously and this having not been done, the Apex Court found in the said case that it was left with no other option than to declare the order of detention unconstitutional. 14. As far as the request of the detenue to provide him assistance through a legal practitioner is concerned, in the case on hand no such request of the detenue was considered and though the COFEPOSA Act does not give the right to the detenue to be represented by the legal practitioner, that does not mean that the authorities are to disregard the request made by the petitioner. In this context, the decision of the Apex Court referred to by the petitioner’s counsel in the case of K.M.Abdulla Kunhi v. Union of India & others v. Zubair Haji Qasim (2009) 1 SCC (Crl) 477) needs to be pressed into service and Apex Court has observed that it was the duty on the part of the authority concerned, to consider the request and whether the detenue is entitled in law under the scheme of COFEPOSA Act to represent with a legal practitioner or not will not preclude the authority concerned from passing an order on the request made by the detenue. 15. Thus, we find that in the case on hand there has been no strict compliance of the letter of rule and as has been observed by the Apex Court in the case of Ram Manohar Lohia V. The State of Bihar & another ( AIR 1966 SC 740 ), the Court cannot enquire into the grounds on which the Government thought that it was necessary to make an order of detention. The Courts are only entitled to look at the face of the order and yet cannot go behind the face of the order of detention because the satisfaction of the Government justifies the order under the Rule is a subjective satisfaction. Having so observed, the Apex Court in the said case went on to observe thus: “(11) It was said that this was too technical a view of the matter; there was no charm in words used. I am not persuaded by this argument. The question is of substance. If a man can be deprived of his liberty under a rule by the simple process of the making of a certain order, he can only be so deprived if the order is in terms of the rule. Strict compliance with the letter of the rule is the essence of the matter. We are dealing with a statute which drastically interferes with the personal liberty of people, we are dealing with an order behind the face of which a Court is prevented from going. I am not complaining of that. Circumstances may make it necessary. But it would be legitimate to require in such cases strict observance of the rules. If there is any doubt whether the rules have been strictly observed, that doubt must be resolved in favour of the detenu. I am not complaining of that. Circumstances may make it necessary. But it would be legitimate to require in such cases strict observance of the rules. If there is any doubt whether the rules have been strictly observed, that doubt must be resolved in favour of the detenu. It is certainly more than doubtful whether law and order means the same as public order. I am not impressed by the argument that the reference in the detention order to R.30(1) (b) shows that by law and order what was meant was public order. That is a most mischievous way of approaching the question. If that were right, a reference to the rule in the order might equally justify all other errors in it. Indeed it might with almost equal justification then be said that a reference to the rule and an order of detention would be enough. That being so, the only course open to us is to hold that the rules have not been strictly observed. If for the purpose of justifying the detention such compliance by itself is enough, a non-compliance must have a contrary effect.” 16. The Apex Court also reiterated the importance of meticulous following of the letter of law while referring the decision in the case of Rajesh Gulati v. Govt. of NCT of Delhi & another (2002 SCC (Crl) 1627) and relevant paragraphs are 11 and 12 which we consider necessary to refer at this juncture and which read as under: “11. We are of the view that the High Court erred in accepting the respondents’ submissions and rejecting the appellant’s writ application. This Court has repeatedly held that the law permitting preventive detention must be meticulously followed both substantively and procedurally by the detaining authority. The facts of this case show a breach of both. 12. It cannot be overemphasized that the object of detention under the Act is not to punish but to prevent the commission of certain offences. Section 3(1) of the Act allows the detention of a person only if the appropriate detaining authority is satisfied that with a view to preventing such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such person. The satisfaction of the detaining authority is not a subjective one based on the detaining authority’s emotions, beliefs or prejudices. The satisfaction of the detaining authority is not a subjective one based on the detaining authority’s emotions, beliefs or prejudices. There must be a real likelihood of the person being able to indulge in such activities, the inference of such likelihood being drawn from objective data.” 17. Thus, on consideration of the records and the reasons given by the Government for the delay in considering the representation of the detenue, we hold that the impugned orders – the order of detention and confirmation cannot be sustained in law as they are contrary to the spirit of Article 22(5) of the Constitution of India and in other words the conclusion arrived is that there is no strict compliance of Rule of law and the authority concerned have failed to discharge constitutional obligation and the reason for this grave error is the inactivity on the part of the Government and lack of independent judgment in the sense there is lack of application of mind which is explicit, much in the order of detention as well as the grounds of detention which were served on the detenue. 18. For the above reasons, we allow this writ petition and set aside the order of detention in No.HD 11 SCF 2009 dated 21.7.2009 as well as the order of confirmation and direct the detenue Sri.Milap Ratan Chand Jain be released forthwith, if not required in any other case.