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CASE NO.: Appeal (crl.)  21 of 2002

PETITIONER: Union of India                                                   

RESPONDENT: Paul Nanickan and Anr.                           

DATE OF JUDGMENT: 13/10/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

        An order of detention under Section 3 (1)(i) of the Conservation  of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in  short the ’Act’) was passed on 26.4.2000 by the Secretary to Government  of Tamil Nadu, Public (Law and Order) Department. As a consequence of  such mittimus, Smt. Ratnamala (hereinafter referred to as ’the detenue’)  was interned in Special Jail for Women, Vellore. In the grounds of  detention it was, inter alia, stated that on 26.2.2000 she was found to  be in possession of huge quantity of contraband articles. On her  personal search as well as search of her baggages it was found that she  was carrying gold in addition to the other articles like cellular phones  etc. without any valid permission or documents for importation of goods  and she was attempting to smuggle these articles by concealing them in  emergency lamp and by wearing crude gold on her person and there was no  declaration made. The articles were seized under the provision of  Customs Act, 1962 (in short the ’Customs Act’) read with Foreign Trade  (Development and Regulation) Act, 1992. The detenu made voluntary  statements  on 26.2.2000 which were recorded under Section 108 of the  Customs Act. The order of detention was passed purportedly with an idea  of preventing her from carrying out smuggling activities in future. On  11.5.2000 the respondent who is the detenu’s father addressed a  representation on behalf of his daughter to the President of India. Four  days thereafter i.e. on 15.5.2000 a habeas corpus petition was filed  before the Madras High Court challenging the detention order. When the  matter was listed on 8.6.2000 notice was issued. It had been indicated  in the writ petition filed by the respondent that a representation by  registered post was sent to the State of Tamil Nadu and another was sent  to the Union of India represented by Secretary to Government, Ministry  of Finance (Department of Revenue) by speed post. They were the two  respondents in the writ petition.  A grievance was made in the writ  petition that the said respondents were duty bound to explain to the  Court that the representation had been considered without any delay and  in accordance with the constitutional requirements. It was also  indicated that though in the representation a request was made to supply  various documents and details, nothing had in fact been furnished. The  delay and the failure indicated above constituted violation of  constitutional safeguards. It was brought to the notice of the High  Court by the respondents before it that there was no representation made  as claimed when the matter was taken up on 28.9.2000. Only three grounds  were urged by the present respondent before the High Court. It was first  contended that there was no material to support the conclusion that the  detenu is a remand prisoner as was contended by the present appellant.  Secondly, the materials/documents furnished to the detenu were illegible

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and this disabled the detenu from making an effective representation  resulting in violation of the protection guaranteed under Article 22(5)  of the Constitution of India, 1950 (in short ’the Constitution’).  Finally, it was contended that the documents supplied were illegible  and, therefore, the detention order was vitiated and there was no  necessity of going into the question whether the documents were relied  upon or material documents or otherwise. The High Court did not find any  merit in the aforesaid three contentions and since no other point was  pressed, the writ petition was dismissed. An application for review was  filed on 8.12.2000. Notice was issued in the review application. For the  first time it was stated by the respondent in the review petition that  in fact no representation was filed before the concerned State  Government i.e. State of Tamil Nadu or the Union of India. In fact the  representation was made to the President of India. The Court considered  the periods spent from the date the representation reached the  President’s Secretariat   till its final disposal, and held that there  was an unexplained delay from the stage of dispatch from the President’s  Secretariat till it reached the Government of Tamil Nadu and the Union  of India.  This according to the High Court constituted violation of the  imperative requirement of dealing with the representation with utmost  expedition. Accordingly, the order of detention was quashed.

In the present appeal the Union of India has raised several issues  which need to be carefully considered. Firstly it is submitted that in  the order (grounds) of detention it was specifically indicated to the  detenu that she had a right to make a representation to the detaining  authority/State Government and also to the Government of India, if she  so desired, in writing against the order under which she was kept in  detention. It was also indicated that in case she wanted to make a  representation the same was to be addressed to the Secretary to the  Government of Tamil Nadu, Public (Law and Order) Department,  Secretariat, Chennai or to the Government of India, Ministry of Finance,  Department of Revenue, (COFEPOSA Unit), Central Economic Intelligence  Bureau, New Delhi, as the case may be, and it should be forwarded  through Superintendent of Prison, Special Prison for Women, Vellore in  which she was confined.  

Strangely, the representation was not made to the authorities  clearly indicated in the order (grounds) of detention. For the first  time in review petition a stand was taken that representation was filed  before the President of India, though in the writ petition it was stated  representations were made to the Government of Tamil Nadu as well as to  the Union of India. This clearly constituted a suppression of fact and  the High Court was not approached with clean hands and fraud was  practised. Secondly, it was not open to the High Court to substitute its  original order by a fresh order which is impermissible in a review  application particularly on such grounds. Thirdly, the High Court having  accepted that there was no delay in dealing with the representation by  the State Government and the Union of India after it reached them, it  ought not to have held that there was unexplained delay in dealing with  the representation. A person should not be allowed to take advantage of  the concern shown by the courts to protect personal liberty resorting to  dubious and fraudulent methods to gain undeserved benefits by such  manipulations. He should not be permitted to gain any advantage from  such acts. It was further submitted that renegades who disturb peace and  tranquility of citizens are like termites which corrode financial  stability of the country with vicious designs file petitions full of  falsehood and at times approach this Court under Article 32 even without  approaching the jurisdictional High Court.  It was in essence submitted  that prerogative writs should not be issued in such cases to encourage  the deceiters from gaining any advantage.   

       In response, learned counsel for the respondent submitted that the  detenu was really arrested on 27.2.2000 and the order of detention was  passed after two months i.e. on 26.4.2000 and the High Court’s order on

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review is dated 13.2.2001. Therefore, the detenu has undergone the  detention for about the whole period. On that score alone, the appeal  has practically become infructuous and no decision should be rendered on  academic issues. It was submitted with  emphasis that representation to  the President of India was sufficient and merely because the  representation was not sent to any of the indicated authorities that  cannot alter the position in law.  

It was further submitted that detenu was already in custody and on  presumption and surmises that she may be released on bail the order of  detention was passed without proper application of mind regarding her  incarceration in custody.          Though technically speaking the detenu has suffered detention for  almost the whole period for which she was directed to detained, yet  considering the several important issues which have been raised by the  parties we think it appropriate to deal with them.  

The writ of habeas corpus called by Blackstone as the great and  efficacious writ in all manner of illegal confinement, really represents  another aspect of due process of law. As early as 1839 it was proclaimed  by Lord Denman that it had been for ages effectual to an extent never  known in any other country.  Lord Halsbury L.C. stated in Cox v. Hakes,  (1890) 15 AC 506, that the right to an instant determination as to the  lawfulness of an existing imprisonment is the substantial right made  available by this writ.  Article 22 of the Constitution confers four  fundamental rights on every person, except in two cases mentioned in  Clause (3), as essential requirements and safeguards to be followed when  it is necessary to deprive any person, for any cause whatsoever and for,  however brief a period of his personal liberty by placing him under  arrest or keeping him in detention.  Those are (i) to be informed, as  soon as may be, of grounds of such arrest; (ii) not to be denied the  right to consult and to be defended by a legal practitioner of his  choice; (iii) to be produced before the nearest Magistrate within a  period of twenty-four hours of such arrest excluding the time necessary  for the journey from the place of arrest to the Court of the Magistrate,  (iv) not to be detained in custody beyond the said period of twenty-four  hours without the authority of a Magistrate, Clauses (1) and (2) contain  the guarantee of the four fundamental rights enumerated above, Clause  (3) contains two exceptions and provides that the constitutional  guarantees do not apply to (a) enemy aliens, and (b) persons arrested or  detained under any law providing for preventive detention. Clauses (4)  and (7) are devoted to laying down certain fundamental principles as to  preventive detention and guaranteeing certain fundamental rights to  persons who are arrested under any law for preventive detention.  The  fundamental rights guaranteed by Clauses (4) to (7) to persons detained  under any law for preventive detention relate to the maximum period of  detention, the provision of an Advisory Board to consider and report on  the sufficiency of the cause for detention and the right to have the  earliest opportunity of making a representation against the order of  detention. Preventive detention is an anticipatory measure and does not  relate to an offence while the criminal proceedings are to punish a  person for an offence committed by him.  They are not parallel  proceedings. The object of the law of preventive detention is not  punitive but only preventive.  It is resorted to when the Executive is  convinced on the materials available and placed before it that such  detention is necessary in order to prevent the person detained from  acting in a matter prejudicial to certain objects which are specified by  the law.  The action of Executive in detaining a person being only  precautionary, the matter has necessarily to be left to the discretion  of the Executive Authority.  It is not practicable to lay down objective  rules of conduct, the failure to conform to which alone should lead to  detention.  In case of preventive detention of a citizen, Article 22(5)  of the Constitution enjoins the obligation of the appropriate Government  of the Detaining Authority to accord the detenu the earliest opportunity  to make a representation and to consider that representation speedily.

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The right to make a representation implies right of making an effective  representation. It is the constitutional right of the detenu to get all  the ground on which the order has been made. As has been said by  Benjamin Cardozo, "A Constitution states or ought to state not rules  for the passing hour but the principles for an expanding future". The  concept of grounds used in the context of detention in Article 22(5) has  to receive an interpretation which will keep it meaningful in tune with  contemporary notions of the realities of the society, and the purposes  of the Act in the light of concepts of liberty; and fundamental  freedoms.  While the expression "grounds" for that matter includes not  only conclusions of fact but also all the basic facts on which those  conclusions were founded; they are different from subsidiary facts or  further particulars of the basic facts. The detenu is entitled to obtain  particulars as to the grounds which will enable him to make an effective  representation against the order of detention.

It has been said that the history of liberty has largely been the  history of observance of procedural safeguards. The procedural sinews  strengthening the substance of the right to move the Court against  executive invasion of personal liberty and the due dispatch of judicial  business touching violations of this great right is stressed in the  words of Lord Denning as follows:

"Whenever one of the King’s Judges takes his seat,  there is one application which by long tradition has  priority over all other, Counsel has but to say: My  Lord, I have an application which concerns the  liberty of the subject and forthwith the Judge will  put all other matter aside and hear it. It may be an  application for a writ of habeas corpus, or an  application for bail but whatever form it takes, it  is heard first." (Freedom under the Law, Hamlyn  Lectures, 1949).

       The constitutional philosophy of personal liberty is an idealistic  view, the curtailment of liberty for reasons of States’ security, public  order, disruption of national economic discipline etc. being envisaged  as a necessary evil to be administered under strict constitutional  restrictions. In Smt. Ichhu Devi v. Union of India (AIR 1980 SC 1983),  this judicial commitment was highlighted in the following words:    

"The Court has always regarded personal liberty as  the most precious possession of mankind and refused  to tolerate illegal detention, regardless of the  social cost involved in the release of a possible  renegade".

"This is an area where the Court has been most  strict and scrupulous in ensuring observance with the  requirement of the law and even where a requirement  of the law is breached in the slightest measure, the  Court has not hesitated to strike down the order of  detention".

In Vijay Narain Singh v. State of Bihar (AIR 1984 SC 1334),  Justice  Chinnappa Reddy in his concurring majority view said:   

".....I do not agree with the view that those who  are responsible for the national security or for the  maintenance of public order must be the sole Judges  of what the national security or public requires. It

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is too perilous a proposition.  Our Constitution does  not give as carte blanche to any organ of the State  to be the sole arbiter in such matter......"

[Page 1336 (of AIR)]

".....There are two sentinels, one at either end.  The legislature is required to mark the law  circumscribing the limits within which persons may be  preventively detained and providing for safeguards  prescribed by the Constitution and the Courts are  required to examine, when demanded, whether there has  been any excessive detention, that is whether the  limits set by the Constitution and the legislature  have been transgressed.....".                                  In Hem Lall Bhandari v. State of Sikkim (AIR 1987 SC 762 at page 766),  it was observed:   "It is not permissible in matters relating to the  personal liberty and freedom of a citizen to take  either a liberal or a generous view of the lapses on  the part of the officers.....".    

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."

       One of the points raised by the respondent was that detenu being  in custody, the anticipated and apprehended acts were practical  impossibilities.   

So far as this question relating to procedure to be adopted in  case the detenu is already in custody is concerned, the matter has been  dealt with in several cases. Where detention orders are passed in  relation to persons who are already in Jail under some other laws, the  detaining authorities should apply their mind and show their awareness  in this regard in the grounds of detention, the chances of release of  such persons on bail. The necessity of keeping such persons in detention  under the preventive detention laws has to be clearly indicated.

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Subsisting custody of the detenu by itself does not invalidate an order  of his preventive detention, and decision in this regard must depend on  the facts of the particular case. Preventive detention being necessary  to prevent the detenu from acting in any manner prejudicial to the  security of the State or to the maintenance of public order or economic  stability, etc. ordinarily, it is not needed when detenu is already in  custody. The detaining authority must show its awareness to the fact of  subsisting custody of the detenu and take that factor into account while  making the order.  If the detaining authority is reasonably satisfied on  cogent materials that there is likelihood of his release and in view of  his antecedent activities which are proximate in point of time, he must  be detained in order to prevent him from indulging such prejudicial  activities the detention order can be validly made.  Where the detention  order in respect of a person already in custody does not indicate that  the detenu was likely to be released on bail, the order would be  vitiated. (See N. Meera Rani v. Govt. of Tamil Nadu: (AIR 1989 SC 2027:  Dharmendra Suganchand v. Union of India: AIR 1990 SC 1196). The point  was gone into detail in Kamarunnissa v. Union of India (AIR 1991 SC  1640). The principles were set out as follows. Even in the case of a  person in custody, a detention order can be validly passed (1) If the  authority passing the order is aware of the fact that he is actually in  custody; (2) if he has reason to believe on the basis of reliable  material placed before him; (a) that there is a real possibility of his  release on bail, and (b) that on being released, he would in all  probability indulge in prejudicial activities, and (3) if it is felt  essential to detain him to prevent him from so doing.  If an order is  passed after recording satisfaction in that regard, the order would be  valid.  In the case at hand the order of detention and grounds of  detention show awareness of custody and/or possibility of release on  bail.

       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 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

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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.   

       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. Superintendent, District Jail, Kanpur and Ors.  (1986 (1) SCC 650) and Rumana Begum v. State of Andhra Pradesh and Anr.  (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 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 part of the move to facilitate an expeditious consideration of  the representations actually made.  

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 respondent 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."

       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. The High Court also  transgressed its jurisdiction in entertaining the review petition with  an entirely a 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 day to

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day administration  at  respective  levels are 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. It really the citizen concerned genuinely and  honestly felt or interested in getting an expeditious consideration or  disposal of his grievance, he would and should honestly approach the  really concerned authorities 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.  

It was nowhere indicated in the representation by the respondent  as to why the representation was not being made to the indicated  authorities and instead was being made to the President of India. This  appears to be a deliberate view to take advantage of the concern shown  by this Court in protecting personal liberty of citizens. 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  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 made use of to grant relief. If a fraud has been  practiced or perpetrated that may in a given case nullify the cherished  goal of protecting personal liberty, which obligated this Court to  device guidelines to ensure such protection by balancing individual  rights and the interests of the nation, as well.  

       In R. Keshava v. M.B. Prakash and Ors. (2001 (2) SCC 145) it was  observed by this Court as follows:

"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".   

       Another aspect which has been highlighted is that many  unscrupulous petitioners are approaching this Court under Article 32 of  the Constitution challenging the order of detention directly without  first approaching the concerned High Courts. It is appropriate that the  concerned High Court under whose jurisdiction the order of detention has  been passed by the State Government or Union Territory should be  approached first. In order to invoke jurisdiction under Article 32 of  the Constitution to approach this Court directly, it has to be shown by  the petitioner as to why the High Court has not been approached, could  not be approached or it is futile to approach the High Court. Unless  satisfactory reasons are indicated in this regard, filing of petition on  such matters, directly under Article 32 of the Constitution is to be  discouraged.

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In view of the fact that the detenu has suffered detention for  about the whole period of detention, we do not consider this a fit case  for interference. We dismiss it subject to the observations made above.