Ummu Sabeena Vs. State
of Kerala & Ors
Saliyal Beevi Vs. State
of Kerala & Ors.
Salukal Beevi Vs. State
of Kerala & Ors.
M. Parimala Vs. State
of Kerala & Ors.
JUDGMENT
GANGULY, J.
1.
Leave
granted.
2.
All
these four appeals have been filed impugning an order dated 30th September,
2011 of the High Court of Kerala whereby the writ petitions filed for issuance
of writs of Habeas Corpus, assailing the orders of detention dated 26th February,
2011 passed under the provisions of Conservation of Foreign Exchange and prevention
of Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA') were
rejected by the High Court.
3.
It
is not in dispute that the facts in all the cases are the same. Common ground
is that an order of detention under Section 3 of the COFEPOSA was served on all
the detenus on 10th March, 2011 on whose behalf petitions were filed before the
High Court and therefore, their detention under the COFEPOSA commenced on and from
10th March, 2011. In these proceedings, we are not going into the merits of the
grounds or the recitals thereof.
4.
Before
us, the detention of the appellants has been assailed on the question that the
representations filed on behalf of the detenus were not disposed of in accordance
with the mandate of Article 22(5) of the Constitution.
5.
The
admitted facts are that representations were made by the detenus on the 30th
March, 2011 and the same were rejected by the State Government on 8th April, 2011.
But the Central Government took time till 6th June, 2011 to reject the same.
This delay on the part of the Central Government in the rejection of the detention
representation has been sought to be explained on the basis of an affidavit
filed on behalf of the Central Government.
6.
Our
attention has been drawn to the said affidavit which has been filed by one A.K.
Sharma, Under Secretary to the Government of India in the Ministry of Finance, Department
of Revenue, Central Economic Intelligence Bureau, COFEPOSA Section, New Delhi.
The purported
explanation has been given in para 3 of the said affidavit. A perusal of para 3
of the affidavit reveals that the representation dated 30th March, 2011 was
forwarded by the State Government of Kerala to the Central Government by their letter
dated 16th April, 2011 and the same was received in the COFEPOSA Unit of the Ministry
of Finance, Department of Revenue, New Delhi on 21st April, 2011.
It has been observed that
22nd April, 2011 to 24th April, 2011 were holidays. Thereafter parawise
comments on the representation were called for from the Additional Director General,
Directorate of Revenue Intelligence and the detaining authority i.e. Government
of Kerala on 25th April, 2011. The comments were received on 10th May, 2011.
The comments of the detaining
authority were received on 18th May, 2011. Then the COFEPOSA Section submitted
the file along with all the relevant files and documents to the Deputy Secretary,
COFEPOSA on 18th May, 2011 for examination.
After detailed examination
of the issues raised in the representations and comments of the Sponsoring Authority
and the detaining authority, the Deputy Secretary submitted the file with
comprehensive note to the Joint Secretary, COFEPOSA on 3rd June, 2011. 4th and 5th
June, 2011 were Saturday and Sunday and ultimately, the said representations were
considered and rejected by the Central Government on 6th June, 2011 as being
devoid of merit.
7.
Now
the question is whether the aforesaid manner of consideration and rejection of
representation by the Central Government is in accord with the principles laid down
by this Court on this aspect in several cases?
8.
It
is clear in this case that the Central Government took about more than two
months i.e. whole of April and May and ultimately rejected the representations only
on 6th June, 2011 whereas representations were made on 30th March, 2011.
9.
Reference
in this connection may be made to the Constitution Bench decision of this Court
in the case of K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India
& Ors., State of Karnataka & Ors. (1991) 1 SCC 476. The unanimous
Constitution Bench, speaking through Justice K. Jagannatha Shetty, after noting
the Constitutional provisions under sub-clauses (4) and (5) of Article 22, was
pleased to hold that neither under the Constitution nor under the relevant statutory
provision, any time limit has been fixed for consideration of representation
made by a detenu.
The time limit, according
to the Constitution Bench, has been deliberately kept elastic. But the Constitution
Bench laid emphasis on the expression 'as soon as may be' in sub-clause (5) of
Article 22 and held that the said expression sufficiently makes clear the
concern of the framers of the Constitution that the representation should be
very expeditiously considered and disposed of with a sense of urgency and without
any avoidable delay.
10.
Considering
the aforesaid provision, the Constitution Bench held that "there should
not be any supine indifference, slackness or callous attitude in considering the
representation. Any unexplained delay in the disposal of representation would
be a breach of the constitutional imperative and it would render the continued
detention impermissible and illegal".
11.
In
support of the said conclusion, the learned Judges of the Constitution Bench relied
on various other judgments mentioned in Para 12 at page 484 of the report.
12.
In
a subsequent judgment in the case of Rajammal Vs. State of T.N. & Anr. (1999)
1 SCC 417, a three Judge Bench of this Court, relying on the ratio of the Constitution
Bench decision in Abdulla Kunhi, reiterated the same principles. From Para 9 at
page 421 of the report, it would appear that in the case of Rajammal, the concerned
Minister, while on tour, received the file after 9.2.1998 and then passed the order
on 14.2.1998. No explanation was offered for this delay of about five days. This
Court held that such delay has vitiated further detention of the detenu [see para
11 at page 422].
1.
In
another subsequent judgment of this Court in the case of Kundanbhai Dulabhai Shaikh
Vs. Distt. Magistrate, Ahmedabad & Ors., (1996) 3 SCC 194, this Court while
reiterating the aforesaid principles, found that representation was received by
the Central Government on 21st September, 1995 and then comments were called
for from the State Government and the same were received by the Central
Government on 18th October, 1995 and the representation was rejected on 19th October,
1995.
This Court held in para
22 of the judgment at page 204 that the internal movement of the file thus took
four days and this Court found that this inaction in taking up the
representation for six days is unexplained and the mere ground was that there
were forty or fifty representations pending for disposal is not a valid
justification. This Court found that such delay voids the continued detention
of the detenus and the detention order was quashed.
13.
Going
by the aforesaid precedents, as we must, we hold that the procedural safeguards
given for protection of personal liberty must be strictly followed. The history
of personal liberty, as is well known, is a history of insistence on procedural
safeguards.
14.
Following
the said principle, we find that delay in these cases is for a much longer
period and there is hardly any explanation. We, therefore, have no hesitation
in quashing the orders of detention on the ground of delay on the part of the
Central Government in disposing of the representation of the detenus.
15.
Learned
counsel for the respondents has however urged that he is not disputing the
principles laid down by this Court in the aforesaid judgments but he submitted
that in the instant case, the Habeas Corpus petition filed before the High
Court was not to quash the detention on the ground of delay and inasmuch as it could
not have been so prayed for as the writ petition was filed prior to the
rejection of the representation by the detenus.
16.
Learned
counsel for the Union of India further argued that the question of delay has not
been urged before the High Court.
17.
Taking
up the second objection first, we find that the question of delay was urged
before the High Court as it appears from Pages 6 and 7 of the impugned judgment.
But, insofar as the question of technical plea which has been raised by the learned
counsel on the question of prayer in the Habeas Corpus petition is concerned, we
are constrained to observe that in dealing with writs of Habeas Corpus, such technical
objections cannot be entertained by this Court.
18.
Reference
in this connection may be made to the Law of Habeas Corpus by James A. Scott
and Charles C. Roe of the Chicago Bar [T.H. Flood & Company, Publishers,
Chicago, Illinois, 1923] where the learned authors have dealt with this aspect
in a manner which we should reproduce as we are of the view that the same is
the correct position in law:
"A writ of
habeas corpus is a writ of right of very ancient origin, and the preservation of
its benefit is a matter of the highest importance to the people, and the regulations
provided for its employment against an alleged unlawful restraint are not to be
construed or applied with overtechnical nicety, and when ambiguous or doubtful should
be interpreted liberally to promote the effectiveness of the proceeding. [Ware v.
Sanders, 146 Iowa, 233, 124 N.W. 958]".
19.
In
this connection, if we may say so, the writ of Habeas Corpus is the oldest writ
evolved by the Common 9Law of England to protect the individual liberty against
its invasion in the hands of the Executive or may be also at the instance of
private persons.
This principle of Habeas
Corpus has been incorporated in our Constitutional law and we are of the
opinion that in a democratic republic like India where Judges function under a
written Constitution and which has a chapter on Fundamental Rights, to protect individual
liberty, the Judges owe a duty to safeguard the liberty not only of the citizens
but also of all persons within the territory of India.
The most effective
way of doing the same is by way of exercise of power by the Court by issuing a writ
of Habeas Corpus.
20.
This
facet of the writ of Habeas Corpus makes it a writ of the highest
Constitutional importance being a remedy available to the lowliest citizen
against the most powerful authority [see Halsbury, Laws of England, Fourth
Edition, Volume 11, para 1454].
21.
That
is why it has been said that the writ of Habeas Corpus is the key that unlocks the
door to freedom [see The Common Law in India-1960 by M.C. Setalvad, page 38].
22.
Following
the aforesaid time-honoured principles, we make it very clear that if we uphold
such technical objection in this proceeding and send the matter back to the High
Court for reagitation of this question, the same would deprive the detenus of their
precious liberty, which we find, has been invaded in view of the manner in
which their representations were unduly kept pending. We, therefore, overrule the
aforesaid technical objection and allow these appeals.
23.
We
direct that the detenus should be set at liberty forthwith unless they are required
to be detained in connection with any other case.
24.
The
appeals are accordingly allowed.
......................J.
(ASOK KUMAR GANGULY)
......................J.
(JAGDISH SINGH KHEHAR)
New
Delhi
17th
November 2011
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