1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.12.2011 CORAM: THE HONOURABLE MR.JUSTICE.M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE.S.NAGAMUTHU H.C.P.(MD)No.505 of 2011 Pathumuthu : Petitioner Vs 1.The State of Tamil Nadu, rep.by the Secretary to Government, Public(SC)Dept., Fort.St.George, Chennai-600 009. 2.The Union of India, rep.by the Secretary to the Government, Ministry of Finance, Department of Revenue, (COFEPOSA-UNIT), New Delhi. 3.The Superintendent of Central Prison, Central Prison, Puzhal, Chennai-600 066. 4.The Passport Officer, Regional Passport Office, Tiruchirapalli. : Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus Petition filed seeking to call for the records relating to the detention order in G.O.No.S.R.1/807-10/2010, dated 28.05.2011, passed by the first respondent herein and quash the same and direct the respondent to produce the body of the person of the detenu, namely, Ibrahim Mohamed Iqbal, aged about 38 years, son of Ibrahim, before this Court, now detained under Section 3(1)(i) of the COFEPOSA Act in the Central Prison, Puzhal, Chennai and set him at liberty forthwith. For Petitioner : Mr.S.Palanikumar For R.1 & 3 : Mr.A.Ramar Additional Public Prosecutor For R.2 : Mr.B.Vijay Karthikeyan Senior Standing Counsel for Customs & Central Excise For R.4 : Mr.K.Ayyanar O R D E R [Order of the Court was made by M.JAICHANDREN.J] This Habeas Corpus petition has been filed to call for the records relating to the detention order of the first respondent, dated 28.05.2011, in G.O.No.SR.1/807-10/2010, and quash the same and direct the respondents to produce the detenu, namely, Ibrahim Mohamed Iqbal, aged https://hcservices.ecourts.gov.in/hcservices/ 2 about 38 years, detained under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (Central Act 52 of 1974), in the Central Prison, Chennai, before this Court and to set him at liberty. 2. It has been stated that the petitioner is the wife of the detenu. She had stated that the first respondent had passed the impugned detention order, dated 28.05.2011, in exercise of the powers conferred by Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (Central Act 52 of 1974), directing the detention of Ibrahim Mohamed Iqbal, the husband of the petitioner, in the Central Prison, Chennai. 3. It has been stated that the detenu is an innocent person. He had not committed any offence, either under the Customs Act or under the FEMA Act. The detenu had never indulged in any smuggling activities, as alleged by the first respondent. The detenu had come from Colombo, Srilanka, and he had arrived at the Anna International Airport, Chennai, on 11.11.2010. While so, the Immigration Officers attached to the Customs Department had intercepted him stating that he had smuggled gold into India, without making the necessary declarations. The Customs Officer concerned had examined the detenu and had recovered 668 grams of gold from him and it had been assessed its value at Rs.13,60,716.00. The Officers had also prepared a seizure mahazar. Thereafter, the detenu had been arrested, on 11.11.2010, on the allegation that he had contravened the provisions of the Customs Act,1962. 4. Even though various grounds had been raised by the petitioner, in the present Habeas Corpus petition, while challenging the order of detention, passed by the first respondent, the learned counsel appearing on behalf of the petitioner had submitted that the order of detention passed by the first respondent, on 28.05.2011, is liable to be set aside, merely on the ground of delay in the disposal of the representation, dated 10.06.2011 , made on behalf of the detenu, to the state Government, as well as to the central Government. 5. The petitioner had submitted that the State Government and the Central Government, are vested with independent powers to revoke or to modify the detention order, at any time, as per Section 11 of the COFEPOSA Act. 6. The petitioner has stated that a representation, dated 10.06.2011, had been sent on behalf of the detenu, to the State Government, as well as to the Central Government. However, there has been an undue delay in disposing of the said representation, as it had been rejected by the State Government and the Central Government only, on 28.06.2011 and 19.07.2011, respectively. However, there is no proper and acceptable explanation for the undue delay caused in the disposal of the representation made on behalf of the detenu. As such, the detention order passed by the first respondent, on 28.05.2011, is liable to be set aside. 7. In the counter affidavit filed on behalf of the first respondent, the averments and the allegations made in the affidavit filed in support of the Habeas Corpus petition had been denied. It has been stated that the detention order passed by the first respondent, on https://hcservices.ecourts.gov.in/hcservices/ 3 28.05.2011, is valid, as it has been passed in accordance with the procedures established by law. It has been further stated that there is no delay in the disposal of the representation made on behalf of the detenu. 8. In paragraph 2.1 of the counter affidavit filed on behalf of the second respondent, it is stated as follows:- “With regard to the averments referred to in Para-20 of the Petition insofar these relate to the Respondent No.2 i.e. Union of India, it is respectfully submitted that as per records maintained in the COFEPOSA Unit of the Department of Revenue, New Delhi, a copy of the purported representation dated 10.06.2011 in Tamil language in respect of Shri Ibrahim Mohamed Iqbal, COFEPOSA Detenu and the husband of the Petitioner herein was received in the COFEPOSA Unit of the Ministry of Finance, Department of Revenue, New Delhi, on 17.06.2011 from the Superintendent of Central Prison, Puzhal, Chennai. Parawise comments on the representation along with the English translation thereof were called for from the Sponsoring Authority, viz. the Commissioner of Customs (COFEPOSA - Air), Chennai as well as the Detaining Authority viz. public (Law & Order) Department, Government of Tamil Nadu, Chennai on 17.06.2011 itself. The comments of the Sponsoring Authority on the representation along with the English translation of the same, sent vide letter dated 20.06.2011 were received in the COFEPOSA Unit of Ministry of Finance, / Department of Revenue, New Delhi on 24.06.2011. The comments of the Detaining Authority on the representation, sent vide letter dated 21.06.2011, were received in the COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi on 24.06.2011. COFEPOSA Section submitted the file along with all the relevant files & documents to the Deputy Secretary (COFEPOSA) on 24.06.2011 for examination. On examination, Deputy Secretary (COFEPOSA) found that the information furnished by the Detaining Authority and Sponsoring Authority were incomplete. Therefore, vide Ministry's letters both dated 28.6.2007, the Detaining Authority and Sponsoring Authority were asked to furnish some additional information. The information of the Detaining Authority, sent vide letter dated 01.07.2011, were received in the COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi on 06.07.2011. The information of the Sponsoring Authority, sent vide letter dated 08.07.2011, were received in the COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi on 11.07.2011. COFEPOSA Section submitted the file alongwith all the relevant files & documents to the Deputy Secretary (COFEPOSA) on 11.07.2011 for examination. After conducting detailed examination of the issues raised in the representation and the comments of the Sponsoring Authority and Detaining Authority thereon, the Deputy Secretary (COFEPOSA) submitted the file with a comprehensive note to the Additional Secretary (Cofeposa) on 18.07.2011. Additional Secretary (Cofeposa), in turn, submitted the file to the Special Secretary & Director General, Central Economic Intelligence Bureau, New Delhi on 19.07.2011. The said representation was considered by the Special Secretary & Director General, Central Economic Intelligence Bureau, Ministry of Finance, Department of Revenue, New Delhi, on behalf of the Central Government and the same was rejected by him on 19.07.2011, being devoid of merit. The file was https://hcservices.ecourts.gov.in/hcservices/ 4 received back in the COFEPOSA Unit on 19.07.2011. The detenu was intimated about the rejection of the representation dated 10.06.2011, vide memorandum dated 19.07.2011.” 9. In paragraph 2.1 of the counter affidavit filed on behalf of the second respondent, it has been stated that a copy of the representation made on behalf of the detenu, on 10.06.2011, had been received in the COFEPOSA Unit of the Ministry of Finance, Department of Revenue, New Delhi, on 17.06.2011, from the Superintendent of Central Prison, Puzhal, Chennai. Parawise comments on the representation, along with english translation thereof were called for from the sponsoring authority, namely, the Commissioner of Customs (COFEPOSA-Air), Chennai, as well as the Detaining Authority, namely, Public (Law and Order), Department, Government of Tamil Nadu, Chennai, on 17.06.2011. The comments of the sponsoring authority, along with the english translation of the same had been received in the COFEPOSA Unit of the Ministry of Finance, Department of Revenue, New Delhi, on 24.06.2011. 10. It has also been stated that the complete information from the sponsoring authority had been received by the COFEPOSA Unit, Ministry of Finance, Department of Revenue, New Delhi, only on 11.07.2011. After conducting a detailed examination of the issues raised in the representation made on behalf of the detenu, the comments of the sponsoring authority and the detaining authority, the Deputy Secretary (COFEPOSA) had submitted the file, with a comprehensive note, to the Additional Secretary (COFEPOSA), on 18.07.2011. The Additional Secretary (COFEPOSA), had submitted the file to the Special Secretary and Director General, Central Economic Intelligence Bureau, New Delhi, on 19.07.2011. Thereafter, the said representation had been considered by the Special Secretary and Director General, Central Economic Intelligence Bureau, Ministry of Finance, Department of Revenue, New Delhi, on behalf of the Central Government and it had been rejected by him, on 19.07.2011, stating that the said representation is devoid of merits. Thereafter, the detenu had been intimated about the rejection of the representation, dated 10.06.2011, vide memorandum, dated 19.07.2011. 11. From the above statements made in paragraph 2.1 of the counter affidavit filed on behalf of the second respondent, it is clear that there has been an inordinate delay in the disposal of the representation made on behalf of the detenu, by the Central Government. 11.a. Para 14 of the counter affidavit filed on behalf of the first respondent reads as follows:- “As far as the averments made in paragraph 20 of the affidavit are concerned, it is submitted that the representation of the detenu dated 08-06-2011 and signed as 10-06-2011 was received by the Government through the Superintendent, Central Prison, Chennai on 13-06-2011 and it was disposed of on 27-06-2011 as follows:- Representation of the detenu dated 08-06-2011 and signed as 10-06-2011 was received by the Government through the Superintendent, Central Prison, Chennai on : 13-06-2011 https://hcservices.ecourts.gov.in/hcservices/ 5 Parawar remarks called for from the Customs Department on : 13-06-2011 Remarks received from the Customs Department on : 14.06.2011 File sent to the Public (SC) Department on : 15-06-2011 File returned from the Public (SC) Department on : 16-06-2011 Further particulars called for from the Customs Department on : 17-06-2011 Saturday : 18-06-2011 Sunday : 19-06-2011 Further remarks received from the Customs Department on : 23-06-2011 Circulation note was put up on : 24-06-2011 Under Secretary to Government, Public (Law & Order) Department, considered the representation on :24-06-2011 Additional Secretary to Government, Public (Law & Order) Department, considered the representation on : 24-06-2011 Secretary to Government, Public Department, considered the representation on : 25-06-2011 Saturday : 25-06-2011 Sunday : 26-06-2011 Additional Secretary to Government, Law Department, considered the representation on :27.06.2011 Honourable Minister for Law considered and rejected the representation on : 27-06-2011 Reply sent to the detenu on : 28-06-2011 Detenu received the letter under acknowledgment on : 29-06-2011 The representation was received on 13-06-2011 and it was disposed of on 27-06-2011. In between 13-06-2011 and 27-06-2011, there were fifteen days. Out of these fifteen days, there were four Government holidays. Excluding these holidays, the representation was continuously and carefully considered and disposed of within eleven days and there was no https://hcservices.ecourts.gov.in/hcservices/ 6 undue and unexplained delay in considering the representation. Further, it is submitted that as requested by the detenu, a copy of the above representation was also forwarded to the Government of India, in Government letter No.3017/L&O-F/2011-5, Public (Law & Order-F) Department, dated:21-06-2011. The same was considered by the Government of India and rejected on 19-07-2011. This information was furnished to the detenu by the Government of India and the letter was served to the detenu on 21-07-2011 under acknowledgment.” 12. The learned counsel appearing on behalf of the first respondent had submitted that there is no delay on the part of the State Government in disposing of the representation made on behalf of the detenu, on 10.06.2011, as stated in paragraph 14 of the counter affidavit. 13. The learned counsel had submitted that the representation, dated 10.06.2011, made on behalf of the detenu, to the State Government, had been forwarded to the Central Government in Government letter No.3017/L&O-F/2011-5, Public (Law & Order-F) Department, dated 21.06.2011, along with the comments of the Detaining Authority. It had been received by the COFEPOSA Unit of the Ministry of Finance, Department of Revenue, New Delhi, on 24.06.2011. COFEPOSA Section submitted the file along with the relevant files and the documents, to the Deputy Secretary (COFEPOSA), on 24.06.2011. On examination of the representation, along with the relevant records, the Deputy Secretary (COFEPOSA), found that the information furnished by the Detaining Authority and the Sponsoring Authority were incomplete. Therefore, a letter, dated 28.06.2011, had been sent to the Detaining Authority and the Sponsoring Authority to furnish additional information. The information of the Detaining Authority had been received in the (COFEPOSA) Unit of Ministry of Finance, Department of Revenue, New Delhi, on 06.07.2011. The information from the sponsoring authority had been received by the said unit, on 11.07.2011. Thereafter, the COFEPOSA Section submitted the file, along with all the relevant files and documents, to the Deputy Secretary (COFEPOSA), on 11.07.2011, for examination. After conducting a detailed examination of the issues raised in the representation and based on the comments of the sponsoring authority, as well as the detaining authority, the Deputy Secretary (COFEPOSA), had submitted a file to the Additional Secretary (COFEPOSA), on 18.07.2011, with a comprehensive note. Thereafter, the said file had been submitted to the Special Secretary and Director General, Central Economic Intelligence Bureau, New Delhi, on 19.07.2011. The request made on behalf of the detenu, vide his representation, dated 10.06.2011, had been rejected by the Central Government, on 19.07.2011, as it was devoid of merits. Thereafter, the detenu had been intimated about the rejection of the representation, dated 10.06.2011, vide memorandum, dated, 19.07.2011. 14. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents, and on a perusal of the records available and in view of the decisions cited supra, this Court is of the considered view that the impugned detention order, dated 28.05.2011, passed by the first respondent, is liable to be set aside, as there has been an inordinate delay in the disposal of the representation, dated 10.06.2011, made on behalf of the detenu. https://hcservices.ecourts.gov.in/hcservices/ 7 15. The representation, dated 10.06.2011, had been disposed of by the Central Government, on 19.07.2011 and the order of rejection had been communicated to the detenu, on 19.07.2011. From the records available, it is also seen that the complete information from the sponsoring authority had been received in the COFEPOSA Unit of the Ministry of Finance, Department of Revenue, New Delhi, on 11.07.2011. Thereafter, the representation, dated 10.06.2011, had been rejected by the Central Government, only on 19.07.2011. As such, there has been an actual and inordinate delay in the disposal of the representation made on behalf of the detenu by the Central Government. 16. In a number of decisions, the Apex Court, as well as the 16. High Courts, have made it clear that the delay in disposing of the representation would vitiate the order of detention. Some of them are as follows: 1. BINOD SINGH Vs. DISTRICT MAGISTRATE, DHANBAD (AIR 1986 SC 2090) 2. RIVADENEYTA RICARDO AGUSTIN Vs. GOVERNMENT OF DELHI (1994 SCC (Cri) 354) 3. RAJAMMAL Vs. STATE OF TAMIL NADU AND ANOTHER (1999 SCC (Cri) 93) 4. SENTHIL KUMAR Vs. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR (2008 (2) MLJ (Crl.) 1071) 5. JAKKULIN Vs. STATE OF TAMIL NADU (2008 (2) MLJ (Crl.) 1571) 6. STATE OF TAMIL NADU REP. BY ITS SECRETARY TO GOVERNMENT, HOME, PROHIBITION AND EXCISE (IX) DEPARTMENT, SECRETARIAT, CHENNAI AND ANOTHER (2009(1) MWN (Cr.) 400 (DB) 16.1. In the decision, in Prabhu Dayal Deorah Vs. District Magistrate, Kamrup and others, (AIR 1974 SC 183), the Supreme Court has held that the constitutional requirement of Article 22(5) will not be satisfied, unless the detenu is given the earliest opportunity to make a representation against the detention. Thus, it is clear that the State has a concomitant and corresponding duty to dispose of the representation, without any delay. Therefore, the Supreme Court has repeatedly held that the State government is bound to consider the representation made on behalf of the detenu, at the earliest possible, as it is a mandatory obligation cast on it, by Clause (5) of Article 22 of the Constitution of India. 16.2. In Ramamurthy Vs. The State of Tamil Nadu (2006(4) CTC 181), this Court had set aside the order of detention on the ground of delay in considering the representation made on behalf of the detenu. 16.3. In a decision of the Constitution Bench of the Supreme Court, in Jayanarayan Sukul Vs. State of West Bengal, (1970(1) SCC 219), it has been held as follows:- “The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty https://hcservices.ecourts.gov.in/hcservices/ 8 of a person is in peril, immediate action should be taken by the relevant authorities.” 16.4. The Supreme Court, in Mahesh Kumar Chauhan alias Banti Vs. Union of India & Others, (1990) 3 SCC 148), while dealing with a case of preventive detention, has observed as under: “Except merely mentioning that the representation was forwarded to the concerned sponsoring authority on August 25, 1989 and the comments from the sponsoring authority was received by the Department on September 11, 1989, there is absolutely no explanation as to why such a delay had occurred. This undue and unexplained delay is in violation of Article 22(5) rendering the detention order invalid.” 16.5. In RAMA DHONDU BORADE VS. V.K.SARAF, COMMISSIONER OF POLICE (1989) 3 SCC 173), the Supreme Court has observed as follows: “A representation of a detenu whose liberty is in peril should be considered and disposed of as expeditiously as possible; otherwise, the continued detention will render itself impermissible and invalid as being violative of Article 22(5). If any delay occurs in the disposal of a representation, such delay should be explained by the appropriate authority to the satisfaction of the Court. In case the appropriate authority is unable to explain personally the delay at various stages, then it will be desirable - indeed appropriate - for the concerned authority or authorities at whose hands the delay has occurred to individually explain such delay. In absence of any explanation, Court cannot wink at or skip over or ignore such an infringement of the constitutional mandate and uphold an order of detention merely on the ground that the enormity of allegations made in the grounds of detention is of a very serious nature as in the present case” 16.6. In the decision, in Venkatesan @ Maya Venkatesan (2007(1) MLJ (Crl.) 1176), it has been held as follows: “10..... thus it is clear that the Government is bound to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. The test is not the duration or range of delay, but how it is explained by the Authority concerned. In this case, as pointed out above, there is absolutely no explanation for the delay of four days. It is a constitutional obligation to consider the representation forwarded by the detenu without any delay, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Hence, on this ground also the order of detention is liable to be quashed.” 16.7. In the decision, in Sumaiya Vs. The Secretary to Government, Prohibition and Excise Department, Government of Tamilnadu, Fort St. George, Chennai-9 and another [2007(2) MWN (Cr.) 145 (DB)], this Court had held that an unexplained delay of three days in the disposal of the representation, made on behalf of the detenu, would be sufficient to set aside the detention order. 16.8. In Kalaiselvi.G. Vs. The State of Tamil Nadu (2007(5) CTC 657), a Full Bench of this Court had held as follows: “26.The last contention is relating to delay in disposal of the representation. It is by now well recognised that the authorities concerned are duty bound to afford to the detenu an opportunity of https://hcservices.ecourts.gov.in/hcservices/ 9 making representation and such right of the detenu obviously encompasses the corresponding duty that the representation must receive careful and expeditious attention and should be disposed of without any unnecessary delay and the result of such representation should also be communicated without unnecessary delay. This position is apparent from several decisions of the Supreme Court, including the decision Usha Agarwal vs. Union of India and others (2007 (1) SCC 295), wherein, after referring to the Constitution Bench decision of the Supreme Court in Kamleshkumar Ishwandas Patel vs. Union of India, (1995) 4 SCC 51, it was observed: This Court has also repeatedly held that though there can be no specific or mechanical test for determining whether there has been undue delay, where there is an unexplained delay in either making the order or serving the order, it would vitiate the order of detention.” 16.9. In Rekha Vs. State of Tamilnadu (2011(5) SCC 244), it has been held that the personal liberty of a person is protected, under Article 21 of the Constitution of India. As it is so sacrosanct and so high in the scale of constitutional values, there is an obligation on the part of the Detaining Authority to show that, while passing the impugned order of detention, the procedures established by law have been meticulously followed. The procedural safe guards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. 16.10. A dissenting note seems to have emerged from the decision of the Supreme Court, in D.M.Nagaraja Vs. The Government of Karnataka and others (2011(2) TLNJ 361 (Criminal), wherein, it has been held that there is no constitutional mandate, under Clause (5) of Article 22, much less any statutory requirement, to consider the representation made on behalf of the detenu, before the order of detention is confirmed. However, it is needless to point out that the correct position of law has been enunciated by the Supreme Court, in its decision, in K.M.Abdulla Kunhi Vs. Union of India (1991(1) SCC 476), wherein, it had been held as follows: “12........ The requirement however, is that there should not be 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.....” 16.11. In fact, this Court, in its order, dated 9.11.2011, in Smt.Sowdun Bivi Vs. The State of Tamilnadu (H.C.P.No.108 of 2011), has clarified the position relating to the issue regarding the consideration of the representation made on behalf of the detenu, referring to the Full Bench decision of this