Union of India Vs. Yumnam Anand M. @ Bocha @ Kora @ Suraj & Anr [2007] Insc 398 (12
April 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
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 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 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 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 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.
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