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CASE NO.: Appeal (crl.)  546 of 2007

PETITIONER: Union of India

RESPONDENT: Yumnam Anand M. @ Bocha @ Kora @ Suraj & Anr

DATE OF JUDGMENT: 12/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.     546          OF 2007 (Arising out of SLP (Crl.) No. 6033 of 2006)  

Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the judgment of the  Division Bench of the Gauhati High Court, Imphal Bench,  allowing the habeas corpus petition filed by respondent no.1.   In the writ petition before the High Court the order of the  District Magistrate Tamenglong passed in exercise of powers  conferred under sub-section (3) of Section 3 of the National  Security Act, 1980 (in short the ’Act’) read with Home  Department’s Order No.17(1)/49/80-S(Pt) dated 31.5.2005  was challenged. Though several grounds were urged in  support of the application, the High Court accepted the stand  that there was unexplained delay in disposing of the  representation made.  It is to be noted that counter affidavit  had been filed giving details of the steps taken after the receipt  of the representation. It was explained that some time was  taken to obtain the view of the sponsoring authority.  The High  Court held that the views of the sponsoring authority were not  necessary to be taken and, therefore, the delay had not been  properly explained.  Accordingly the order of detention was  quashed.

Learned counsel for the appellant submitted that the  view expressed by the High Court is clearly contrary to the  views expressed by this Court in several cases.   

There is no appearance on behalf of respondent no.1 in  spite of the service of the notice.

The factual position needs to be noted before dealing with  the contention as to desirability of obtaining views of  sponsoring authority. The order of detention dated 3.9.2005  was served on respondent no.1 (hereinafter referred to as the  ’detenu’) on 14.9.2005.  The detention was approved by the  Governor of Manipur on 26.9.2005. The Ministry of Home  Affairs received the representation made by the detenu   against the detention on 3.11.2005.  Immediately the parawise  comments were called for from the sponsoring  authority. The  comments were received on 19.12.2005 and on 20.12.2005

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the representation was rejected.  On 7.11.2005 detenu filed a  Writ Petition (Crl.) No. 50 of 2005 before the Gauhati High  Court Imphal Bench for quashing the order of detention. It  was submitted that there was unusual delay in disposing of  the writ petition filed by the detenu.

So far as the pivotal question whether there was delay  in disposal of the representation is concerned, same has to  be considered in the background of Article 22(5) of the  Constitution. A constitutional protection is given to every  detenu which mandates the grant of liberty to the detenu to  make a representation against detention, as imperated in  Article 22(5) of the Constitution. It also imperates the  authority to whom the representation is addressed to deal  with the same with utmost expedition.  The representation is  to be considered in its right perspective keeping in view the  fact that the detention of the detenu is based on subjective  satisfaction of the authority concerned, and infringement of  the constitutional right conferred under Article 22(5)  invalidates the detention order. Personal liberty protected  under Article 21 is so sacrosanct and so high in the scale of  constitutional values that it is the obligation of the detaining  authority to show that the impugned detention meticulously  accords with the procedure established by law.  The  stringency and concern of the judicial vigilance that is  needed was aptly described in the following words in Thomas  Pacham Dales’ case: (1881 (6) QBD 376):

"Then comes the question upon the habeas  corpus. It is a general rule, which has always  been acted upon by the Courts of England,  that if any person procures the imprisonment  of another he must take care to do so by  steps, all of which are entirely regular, and  that if he fails to follow every step in the  process with extreme regularity the Court will  not allow the imprisonment to continue."

Article 21 of the Constitution having declared that no  person shall be deprived of life and liberty except in  accordance with the procedure established by law, a  machinery was definitely needed to examine the question of  illegal detention with utmost promptitude.  The writ of habeas  corpus is a device of this nature.  Blackstone called it "the  great and efficacious writ in all manner of illegal confinement".   The writ has been described as a writ of right which is  grantable ex dobito justitae.  Though a writ of right, it is not a  writ of course.  The applicant must show a prima facie case of  his unlawful detention.  Once, however, he shows such a  cause and the return is not good and sufficient, he is entitled  to this writ as of right.

In case of preventive detention no offence is proved, nor  any charge is formulated and the justification of such  detention is suspicion or reasonability and there is no criminal  conviction which can only be warranted by legal evidence.   Preventive justice requires an action to be taken to prevent  apprehended objectionable activities. (See Rex v. Nallidev  (1917 AC 260); Mr. Kubic Dariusz  v. Union of India and  others (AIR 1990 SC 605). But at the same time, a person’s  greatest of human freedoms, i.e., personal liberty is deprived,  and, therefore, the laws of preventive detention are strictly  construed, and a meticulous compliance with the procedural  safeguard, however, technical is mandatory.  The compulsions  of the primordial need to maintain order in society, without

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which enjoyment of all rights, including the right of personal  liberty would lose all their meanings, are the true justifications  for the laws of preventive detention. This jurisdiction has been  described as a "jurisdiction of suspicion", and the compulsions  to preserve the values of freedom of a democratic society and  social order sometimes merit the curtailment of the individual  liberty. (See Ayya alias Ayub v. State of U.P. and another (AIR  1989 SC 364).  To lose our country by a scrupulous adherence  to the written law, said Thomas Jafferson, would be to lose the  law, absurdly sacrificing the end to the means.  No law is an  end itself and the curtailment of liberty for reasons of State’s  security and national economic discipline as a necessary evil  has to be administered under strict constitutional restrictions.   No carte blanche is given to any organ of the State to be the  sole arbiter in such matters.   

The High Court was of the view that parawise comments  were not required to be called for and it was held that the  same was fatal to the detention.   

The question as to whether the views of the sponsoring   authority are to be called for and whether they are necessary  have been dealt with in several cases. In Kamarunnissa v.  Union of India and Anr. (1991 (1) SCC 128) it was observed as  under:

"The learned counsel for the petitioners  raised several contentions including the  contentions negatived by the High Court of  Bombay.  It was firstly contended that the  detenus had made representations on  December 18, 1989 which were rejected by the  communication dated January 30, 1990 after  an inordinate delay.  The representations  dated December 18, 1989 were delivered to the  jail authorities on December 20, 1989.  The jail  authorities dispatched them by registered post.   December 23, 24 and 25, 1989 were non- working days. The representations were  received by the COFEPOSA Unit on December  28, 1989.  On the very next day i.e. December  29, 1989 they were forwarded to the  sponsoring authority for comments. December  30 and 31, 1989 were non-working days.   Similarly, January 6 and 7, 1990 were non- working days.  The comments of the  sponsoring authority were forwarded to the  COFEPOSA Unit on January 9, 1990.  Thus it  is obvious that the sponsoring authority could  not have received the representation before  January 1, 1990.  Between January 1, 1990  and January 8, 1990 there were two non- working days, namely, January 6 and 7, 1990  and, therefore, the sponsoring authority can be  said to have offered the comments within the  four or five days available to it.  It cannot,  therefore, be said that the sponsoring  authority was guilty of inordinate delay.  The  contention that the views of the sponsoring  authority were totally unnecessary and the  time taken by that authority could have been  saved does not appeal to us because  consulting the authority which initiated the  proposal can never be said to be an  unwarranted exercise.  After the COFEPOSA

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Unit received the comments of the sponsoring  authority it dealt with the representations and  rejected them on January 16, 1990.  The  comments were dispatched on January 9,  1990 and were received by the COFEPOSA  Unit on January 11, 1990.  The file was  promptly submitted to the Finance Minister on  the 12th; 13th and 14th being non-working days,  he took the decision to reject the  representation on January 16, 1990 and the  memo of rejection was dispatched by post on  January 18, 1990. It appears that there was  postal delay in the receipt of the  communication by the detenus but for that the  detaining authority cannot be blamed. It is,  therefore, obvious from the explanation given  in the counter that there was no delay on the  part of the detaining authority in dealing with  the representations of the detenus. Our  attention was drawn to the case law in this  behalf but we do not consider it necessary to  refer to the same as the question of delay has  to be answered in the facts and circumstances  of each case. Whether or not the delay, if any,  is properly explained would depend on the  facts of each case and in the present case we  are satisfied that there was no delay at all as is  apparent from the facts narrated above.  We,  therefore, do not find any merit in this  submission."                               

Again in Dr. Prakash v. State of T.N. and Ors. (2002 (7)  SC 759) it was held as follows:

"It is lastly contended that the State  Government was prejudiced by the opinion  rendered by the detaining authority. This  argument is built around the fact that the  State Government sought parawise remarks  from the 2nd respondent while dealing with the  petitioner’s representation.  In response to that  the 2nd respondent while sending his remarks  in the last para stated that the petitioner’s  representation may be rejected.  This  recommendation according to the learned  counsel has weighed in the mind of the  confirming authority to reject the petitioner’s  representation.  We are unable to accept this  argument also. It is normal under the rules of  business for the Government to seek the  remarks of the officer against whose order a  representation is made to the Government.  As  a matter of fact, if such remarks are not called  for and statutory representations are rejected  summarily by the Government it would be  considered as a rejection without application of  mind. Therefore, in cases where the  considering authority feels that the remarks of  the officer who made the original order are  necessary then such superior authority must  call for such remarks. In the instant case, the  representation filed by the detenu did raise  certain factual points which without the  comment of the detaining authority might have

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been difficult to be dealt with.  Therefore, in  our opinion, the authority considering the  representation had justly called for the  remarks.  The next limb of this argument that  the State Government was influenced by the  remarks of the detaining authority to dismiss  the representation is too far-fetched.  In the  instant case, the Government of Tamil Nadu  has been authorized to be the authority to  consider the representation against the  detention order made by the Commissioner of  Police who is subordinate to it.  Therefore, to  presume that such higher authority would be  influenced by an observation made by the  subordinate to such an extent as to surrender  its independent authority is to demean the  independence of authority exercised by the  State Government, hence this argument is  recorded here only to be rejected."                

In the circumstances, the High Court’s impugned order is  clearly indefensible and is set aside. However, the detaining  authority shall decide within a period of two months if it would        be desirable to take back the respondent no.1 to custody.     

The appeal is allowed.