REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 465 OF 2001

State of Tamil Nadu and Anr. …Appellants

Versus

R. Sasikumar …Respondent

J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division

Bench of the Madras High Court allowing the Habeas Corpus

Petition  filed  by  the  respondent  questioning  the  order  of

detention  i.e.  Detention  Order  519/BDFGIS/99   dated

9.7.1999 passed by the Commissioner of Police, Chennai.

2. Background facts in a nutshell are as follows:  

The respondent (hereinafter referred to as the ‘detenu’)

was detained under sub-section (1) of Section 3 of Tamil Nadu

Prevention  of  Dangerous  Activities  of  Bootleggers,  Drug

Offenders,  Forest  Offenders,  Goondas,  Immoral  Traffic

Offenders and Slum Grabbers Act, 1982 (in short the ‘Act’).

The only point urged before the High Court was that an order

of  detention  was  passed  on  9.7.1999  and  on  6.7.1999  the

mother of the detenu had sent a representation to the Chief

Minister  of  Tamil  Nadu.  A  copy  of  the  representation  was

marked  to  the  Director  General  of  Police,  Chennai,  the

Advisory Board under the Act as well as the Chief Justice of

the High Court.  It was, therefore, submitted that there was

evidence of dispatch of the representation and since it was not

considered by the detaining authority the order of detention

was bad.  

The  stand  of  the  detaining  authority  was  that  the

representation was not sent  to the detaining authority and,

2

therefore,  there  was  no  question  of  considering  the  same

before passing the order of detention.  

The High Court found that since two of the authorities

had received the representation it must be presumed that the

Director  General  of  Police  would  have  received  the

representation in the usual course.  A presumption was drawn

that  the  Director  General  of  Police  had  been  served  the

representation and accordingly it was held that the Director

General of Police must have received the representation and

since that was not taken note of, there was violation of Article

22(5)  of  the  Constitution  of  India,  1950  (in  short  the

‘Constitution’).  Accordingly,  the  order  of  detention  was

quashed.  

The  State  of  Tamil  Nadu  and  the  detaining  authority

have  challenged  the  correctness  of  the  order  of  the  High

Court. Notice was issued by this Court on 4.9.2000. When the

matter  was  taken  up  subsequently  on  11.12.2000,  it  was

noted that the detenu was not represented and there was no

appearance on behalf  of  the detenu, though he was served.

3

The Bench also noted that the period of detention was also

over  and  the  detenu  had been  released.  The  Court  further

noted  that  it  would  be  proper  to  appoint  Mr.  K.K.  Mani,

Advocate as Amicus Curiae.   

3. Learned  counsel  for  the  appellants  submitted  that  the

approach of  the High Court  is clearly  wrong.  There  was no

question  of  any  representation  even  before  the  order  of

detention was passed and there was no question of sending it

to the Advisory Board.

4. Learned  Amicus  Curiae  submitted  that  since  the

representations sent  to the Chief  Minister  and the Advisory

Board  amongst  others  had  been  received,  the  High  Court

found that the Director General of Police is presumed to have

received  the  notice.  Therefore,  impugned  order  cannot  be

faulted.  We  find  that  the  High  Court’s  order  proceeds  on

presumption.  Merely  because  two  of  the  addressees  had

received the representations that  in no way shows that the

Director  General  of  Police  had  received  the  representation.

4

Additionally, as rightly submitted by learned counsel for the

appellant-State,  before  the  order  of  detention  was  passed

there  is  no  question  of  sending  a  representation  to  the

Advisory  Board.   This  appears  to  be  clever  use  to  create

evidence to contend non-application of mind.   This is a classic

case, (such cases are increasing by leaps and bounds) where

red-hearings are intentionally drawn to deflect the course of

justice. In Sri Anand Hanumathsa Katar v. Additional District

Magistrate and Ors. (2006 (10) SCC 725) it was observed by

this Court as follows:

“11. At this  juncture  it  would  be  relevant  to take note of paras 17 to 19 of Union of India v. Paul Manickam (2003 (8) SCC 342) They read as follows: (SCC pp. 354-55)

“17. Coming to the question whether the representation to the President of India meets  with  the  requirement  of  law,  it has to be noted that in Raghavendra Singh v.  Supdt.,  District  Jail,  Kanpur (1986 (1) SCC 650) and Rumana Begum v. State of A.P. (1993 Supp. (2) SCC 341) it was held that a representation 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

5

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  to  be made. Such indication is also a part of the  move  to  facilitate  an  expeditious consideration  of  the  representations actually made.

18. 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.  Before  the  High  Court  in the writ petition the first and the second respondents were described as follows:

‘1. State of Tamil Nadu, rep. by its Secretary,  Government of Tamil Nadu, Public (SC) Department,  Fort St. George, Chennai, 600 009.

2. Union of India, rep. by its Secretary, Ministry of Finance, Department of Revenue, New Delhi.’

19. As noted supra, for the first time in the  review  application  it  was  disclosed that the representation was made to the President of India and no representation was made to the State of Tamil Nadu or the Union of India who were arrayed in the writ petition as parties. This appears to  be  a  deliberate  attempt  to  create confusion  and  reap  an  undeserved benefit by adopting such dubious device.

6

The  High  Court  also  transgressed  its jurisdiction  in  entertaining  the  review petition with an entirely new substratum of issues.  Considering the limited scope for review, the High  Court ought not to  have  taken  into  account  factual aspects which were not disclosed or were concealed  in  the  writ  petition.  While dealing with a habeas corpus application undue importance is not to be attached to  technicalities,  but  at  the  same  time where  the  court  is  satisfied  that  an attempt  has  been  made  to  deflect  the course  of  justice  by  letting  loose  red herrings  the  court  has  to  take  serious note  of  unclean  approach.  Whenever  a representation is  made  to  the  President and the Governor instead of the indicated authorities,  it  is  but  natural  that  the representation should indicate as to why the  representation  was  made  to  the President  or  the  Governor  and  not  the indicated  authorities.  It  should  also  be clearly  indicated  as  to  whom  the representation  has  been  made specifically, and not in the manner done in the case at hand. The President as well as  the  Governor,  no  doubt  are constitutional  Heads  of  the  respective Governments  but  the  day-to-day administration  at  respective  levels  is carried  on  by  the  Heads  of  the Departments/Ministries  concerned  and designated  officers  who  alone  are ultimately  responsible  and  accountable for the action taken or to be taken in a given case. If really the citizen concerned genuinely  and  honestly  felt  or  was interested  in  getting  an  expeditious consideration  or  disposal  of  his grievance, he would and should honestly approach the real  authorities concerned and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry  for  relief  on  his  own  manipulated ground, by directing his representation to an  authority  which  is  not directly/immediately  concerned  with such consideration.”

7

12. Paras 17 to 19 of Union of India v.  Chaya Ghoshal (2005 (10) SCC 97) are also relevant. They read as follows: (SCC pp. 106-07)

“17.  While  dealing  with  a  habeas corpus application, undue importance is not to be attached to technicalities,  but at  the  same  time  where  the  court  is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings, the court has to take serious  note  of  unclean  approach. Whenever a representation is made to the President or the Governor instead of the indicated  authorities,  it  is  but  natural that  the  representation  should  indicate as to why the representation was made to the President or the Governor and not to the indicated authorities.  It  should  also be  clearly  indicated  as  to  whom  the representation  has  been  made specifically. The President as well as the Governor,  no  doubt  are  constitutional Heads of the respective Governments but day-to-day  administration  at  respective levels is carried on by the Heads of the Department/Ministries  concerned  and designated  officers  who  alone  are ultimately  responsible  and  accountable for the action taken or to be taken in a given case. If really the citizen concerned genuinely  and  honestly  felt  or  is interested in getting an expeditious   consideration  or  disposal  of  his grievance, he would and should honestly approach the real  authorities concerned and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry  for  relief  on  his  own  manipulated ground, by directing his representation to an  authority  which  is  not directly/immediately  concerned  with such consideration.

18.  Where,  however,  a  person alleging infraction of personal liberty tries to act in a manner which is more aimed at deflecting the course of justice than for

8

protection of his personal right, the court has to make a deliberate balancing of the fact  situation  to  ensure  that  the  mere factum of some delay alone is not made use of to grant relief. If a fraud has been practised  or  perpetrated,  that  may in  a given  case  nullify  the  cherished  goal  of protecting  personal  liberty,  which obligated this Court to devise guidelines to  ensure  such  protection  by  balancing individual rights and the interests of the nation, as well.

19. In  R. Keshava v.  M.B. Prakash ((2001 (2) SCC  145) it  was  observed  by  this  Court  as follows: (SCC p. 154, para 17)

‘17.  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. ”

9

5. The question of making a representation to the Advisory

Board arises only after the order of detention had been passed

and  served  on  the  detenu.  The  High  Court  therefore,  was

clearly in error in quashing the order of detention.  

6. Another point which has been urged is that the incidence

referred to in the order of detention is stale and could not have

formed the foundation for the order of detention. We find that

several  incidents  have  been  referred  to  in  the  order  of

detention and the last  of  such instances  was of  22.6.1999.

The detention order was passed on 9.7.1999 and, therefore, it

cannot  be  said  to  be  relatable  to  stale  incidents.  The

impugned order of the High Court is therefore quashed.  Since

the impugned order of the High Court was passed more than 8

years back, considering the nature of the order of detention

which is essentially preventive in character, it is appropriate

for  the  State  Government  and  the  detaining  authority  to

consider whether there is any need to take the detenu back to

detention for serving the remainder of the period of detention

10

which was indicated in the order of detention.  We express no

opinion on that aspect. In State of T.N. and Another v. Alagar

[2006 (7) SCC 540] it was noted as follows:

“9. The  residual  question  is  whether  it would be appropriate to direct the respondent to  surrender  for  serving  remaining  period  of detention in view of passage of time. As was noticed  in  Sunil  Fulchand  Shah v.  Union  of India (2000 (3)  SCC 409)  and  State of  T.N. v. Kethiyan Perumal (2004 (8) SCC 780) it is for the appropriate State to consider whether the impact of the acts, which led to the order of detention still  survives  and whether it would be  desirable  to  send  back  the  detenu  for serving  remainder  period  of  detention. Necessary order in this regard shall be passed within  two  months  by  the  appellant  State. Passage  of  time  in  all  cases  cannot  be  a ground  not  to  send  the  detenu  to  serve remainder  of  the  period  of  detention.  It  all depends  on  the  facts  of  the  act  and  the continuance  or  otherwise  of  the  effect  of  the objectionable  acts.  The  State  shall  consider whether there still exists a proximate temporal nexus  between  the  period  of  detention indicated  in  the  order  by  which  the  detenu was required to be detained and the date when the detenu is required to be detained pursuant to the present order.”

7. The appeal is allowed to the aforesaid extent.  

………………………….J. (Dr. ARIJIT PASAYAT)

11

…………………………J. (P. SATHASIVAM)

…………………………J. (AFTAB ALAM)

New Delhi, July 9, 2008

12