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Judgment
Arunachalam, J.—These two Habeas Corpus Petitions are disposed of together by a common order, since it was represented that the detenus concerned Mohammed Zakir and Haja Najimuddin, stood involved in the same ground crime, leading to their preventive detention.
Sajitha Banu, Petitioner in HCP No. 1192 of 1994, is the wife of detenu Mohammed Zakir, while Nazum Banu, Petitioner in HCP. No. 1193 of 1994, is the wife of detenu Haja Najimuddin. These two detenus are brothers, being the sons of Bewa Bahrudeen. By two separate orders dated 27th April, 1994 passed by the first Respondent, Joint Secretary to Government of India, in exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,, 1974 (as amended), these two person were directed to be preventively detained with a view to preventing them from acting in any manner prejudicial to the conservation of foreign exchange in future.
Facts which led to the passing of the impugned orders of detention may have to be stated in brief. On the night of 27.1.1994, Enforcement Officials searched the premises of Mohammed Zakir (detenu in HCP. No. 1192 of 1994) situated in K.K. Nagar, Madras, and found in a black coloured bag inside the said house, a large amount of foreign currencies. During the process of search, three persons, Ismail, Noorul Ameen, and Sahul Hameed, entered into the premises. Their belongings were searched. They were found to possess a large number of Tamil magazines bearing dates in February, 1994. A statement was recorded on 28.1.1994 from Mohammed Zakir. According to this statement, his younger brother Haja Najimuddin (detenu in HCP. No. 1193 of 1994) was involved in purchasing of foreign goods at Singapore and bringing them to India for sale to certain shops situated in Burma Bazaar. Haja Najimuddin left for Singapore on 21.1.1994 and before leaving, he had left with the detenu a large amount of Indian currency. On 23.1.1994, Haja Najimuddin telephoned to him from Singapore and directed him to purchase foreign currency out of the Indian currency already handed over to him. He was also further desirous of obtaining foreign exchange. Mohammed Zakir was also informed by his younger brother that he can take the assistance of their relative Ziauddin. In accordance with the directions of his younger brother, Mohammed Zakir purchased foreign currency on 24.1.1994 from one Jaila and had them kept in his usual residential place at K.K. Nagar. It is only on 27.1.1994 that Mohammed Zakir had purchased foreign currency from Jaila with the help of Ziauddin. At 7.00 p.m. on the same day, Enforcement Officers had seized those currencies. The three persons who intervened during the search, were expected to take away foreign exchange from him under instructions of his younger brother Haja Najimuddin. Mohammed Zakir further stated in his confession, that two slips of paper contained denominations of foreign currency, seized from him. On the next day, statements were recorded from Ziauddin, Ismail, Nurul Hameed, Shahul Hameed and others. On 28.1.1994, detenu Mohammed Zakir was remanded to custody. On 8.3.1994, he was released on conditional bail. Even on 4.2.1994, the detenu had retracted his confession. The preventive order passed against Mohammed Zakir (detenu in HCP No. 1192 of 1994) was executed on 28.6.1994, while grounds of detention stood served on him on the next day.
As far as Haja Najimuddin (detenu in HCP. No. 1193 of 1994) is concerned, he was neither arrested, nor his statement recorded before the impugned order was executed on 13.7.1994.
Mr. B. Kumar, learned Counsel appearing on behalf of the Petitioners in both these Habeas Corpus Petitions contended, that both these detenus had forwarded representations to the Detaining Authority as well as the Union Government on 2.8.1994. He would urge, that nine copies of the representations addressed to both the authorities were handed over to the Jail Superintendent, for onward despatch to all the authorities who were, in law, authorized to consider and dispose of their representations. Though the detaining authority had disposed of the representations on 31.8.1994, Union Government had kept these representations in cold storage for about one month, before initiating action and thereafter, the process in rejection, which followed, was not in consonance with the legal requirements, for the manner of disposal clearly highlighted lack of independent consideration of the representations by the Union Government, which had chosen to confirm the order, long before rejection of the pending representations, though it had time enough to confirm the impugned order. He then submitted, that these two detenus were unacquainted with English and they know Tamil alone. Satisfaction reached by the Detaining Authority in English version in the grounds, had not been properly conveyed in the grounds of detention supplied to them in Tamil, the language known to them. The orders of detention and the grounds supplied in English clearly postulate that preventive orders had been passed against the detenus, with a view to preventing them from acting in any manner prejudicial to the conservation of foreign exchange in future. However, grounds of detention supplied to both the detenus in Tamil indicate satisfaction having been arrived at to prevent the detenus from acting in any manner prejudicial to the augmentation of foreign exchange resources, though the orders of detention in Tamil correctly mention that the impugned orders were passed for the purpose of preventing the detenus from acting in any manner prejudicial to the conservation of foreign exchange in future. This gave infirmity, according to Mr. B. Kumar, had put the detenus in quandary as to the case they had to meet and that had prevented them from making an effective and suitable representation to the authorities concerned. They had also made clear through their representations to the authorities, that they were handicapped in making purposeful representations in view of the violent divergence between the grounds of detention and the order of detention supplied to them in Tamil in relation to the purpose for which they stood preventively detained. A strenuous plea was made, that if two authorities were, in law, bound to dispose of the same representation independently, one of them cannot wait for disposal of the representation by one authority, before the other could take up the same representation for disposal on its inherent merits. When the detenus had been informed through the grounds of detention that they were entitled to represent to both the authorities (Detaining Authority and the Union Government) challenging the impugned orders, both the authorities were duty-bound to consider and dispose of the representations independently and individually within a reasonable time-frame and cannot allow the representations to lie unattended for unreasonably long periods, without any action being initiated on them. Mr. Kumar placed for our scrutiny certain decided cases, which, we will refer to at the relevant stage.
Countering the arguments of Mr. B. Kumar, Mr. K. Asokan, learned Additional Central Government Standing Counsel, appearing on behalf of the Respondents, submitted that in the process of disposal of representations, the same officers had to deal with the file at different stages, and such procedure was adopted even in the instant cases and after the Detaining Authority (Joint Secretary) had disposed of the representation, Union Government then stepped in, to act further on the same representation, to perform its duty, to consider and dispose it of on its inherent merits. However, it was fairly stated by Mr. Asokan, that representations were separately received by the Detaining Authority and the Union Government and from the file placed before him, no material, whatever, was available to indicate as to what had happened to the representation addressed to Union Government from the date of its receipt on 10.8.1994 till it was put up for consideration for the first time on 1.9.1994, before the authority concerned. He was able to visualise, on the basis of entries made in the representation file, that the Union Government had time enough to confirm the preventive orders and even so, it had chosen to keep the representations pending after confirmation and no answer would be feasible as to why the representations could not have been disposed of before confirmation, for material required for disposal of representations was certainly available, at or about the time of confirmation of the impugned orders. However, on the second ground of challenge, Mr. Asokan, with all emphasis he could command, submitted, that unlike the act of smuggling which had several facets as is evident from Section 3(1) of the Act, in respect of foreign exchange, only two concepts of augmentation and conservation were available, which cannot be held to be as violent in divergence as the act of smuggling. He then submitted that augmentation can only be supplemented if foreign exchange already stood conserved. In other words, conservation and augmentation complement each other, rather than being mutually exclusive. He contended that the pith and substance of prejudicial activity will have to be communicated to the detenus and if, in a given case, entire facts leading to the passing of the impugned orders stood communicated, that would suffice, for then, the detenus cannot claim any prejudice. However, he submitted, that existence of discrepancy, in the Tamil grounds and Tamil orders of detention, be it for conservation or augmentation, will have to be admitted. In his turn, he placed reliance on certain decided cases, which will also be taken note of in the course of our reasoning process.
The questions addressed before us by counsel on either side, have been subject-matter of consideration, discussion and verdict by the Supreme Court, in a number of decided cases. It is not as though, new questions has arisen for our decision, though, in a limited way, so far as augmentation or conservation, being complementary or otherwise, there is no direct pronouncement by the Supreme Court. Since we are of the firm opinion that the detenus are bound to succeed on the first ground of challenge, we will take it up for consideration initially. We also intend referring to the second ground in passing, and also, in a nutshell, indicating the law available, on that issue.
We have before us the additional counter-affidavit sworn to on behalf of the Respondents by K.V. Verma, Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi. It Is evident from his counter-affidavit that representations dated 2.8.1994, forwarded to the Union Government and the Detaining Authority through the Superintendent of Central Prison, Madras, along with parawise comments thereon, stood received in the COFE-POSA Unit on 23.8.1994. However, we have scrutinised the detention files and we have now become aware, that these representations were received by the Finance Ministry on 10.8.1994. On both these representations, on 11.8.1994 parawar remarks were called for. Such parawar remarks were received on 23.8.1994, but the file was kept without any action being taken, for the Advisory Board was expected to conduct its deliberations on 26.8.1994. However, the said meeting got postponed to 2.9.1994. Due to such postponement, the file commenced its movement on 31.8.1994, on which date the Detaining Authority (Joint Secretary) chose to reject the representations, as far as disposal of representations by the detaining authority is concerned, no arguments were advanced before us by Mr. Kumar.
The counter-affidavit of Mr. Verma further shows that since the representation was addressed to the Secretary, Revenue, as well, the case was then put up, to the said Secretary, on 1.9.1994. This counter-affidavit does not offer any explanation as to why representation received on 10.8.1994 was not placed before the Secretary, Revenue, representing the Union Government, for its disposal prior to 1.9.1994. After careful verification of the detention file, Mr. K. Asokan submitted, that nothing is available in the notes, to indicate as to why no action was taken by the Secretary, Revenue, on this independent representation, till it was placed before him on 1.9.1994, though on 11.8.1994 there was an entry for calling for parawar remarks. It is not known as to who had called for such parawar remarks, though it apparently appears, to have not been done by the Secretary, Revenue. It is because of this infirmity, which cannot easily be reconciled, that Mr. Asokan chose to get over the crisis by addressing before us, that the same set of officials had to deal with both the representations throughout, and it was probably the said procedure, which had led to the separate representations addressed to the Union Government, having been left unattended till the Joint Secretary exercised his prerogative of disposing of the representation addressed to him in his capacity as the Detaining Authority. There cannot be any divergence, that it is settled law, that the Detaining Authority and the Union Government are bound to independently, consider the representations addressed to either of them with promptitude and a sense of urgency. If it is the law, that independent consideration is the sine qua non, then the contention advanced, that the senior authority was waiting for disposal of the representations by the junior authority, will have no strength, whatever, for, on that submission alone, the concept of independent consideration, of these representations gets smacked. As a matter of fact, we have perused the entries made in the detention file in respect of these two representations addressed to two different authorities, and it is fairly apparent, that the concept of independent consideration has been given a go by, and if at all, the dependency of consideration, by one or the other of the authority, is so much apparently obvious. All that cannot be, in law, done, has, in fact, been done. Apart from lack of independent consideration, as we have already stated, Union Government represented by its Secretary, has not chosen to explain as to what had happened to the representations of the detenus addressed to it and received on 10.8.1994, till the process of circulation commenced at its end, on and from 1.9.1994. After 1.9.1994, we are able to visualise that the Secretary had commenced applying his mind, for he had made certain relevant queries, which needed clarification before the representation of one of them (Haja Najimuddin) could be disposed of. Merely because some queries pertain to one of the detenus, that can hardly be a ground to keep in suspense the representation of the other detenu (Mohammed Zakir). Be it as it may, even after an answer was furnished to the Secretary or the queries were met, which could have been sufficient to pass orders either way on the representations of the detenus, it is not known as to why confirmation was thought of on 26.9.1994 even before disposal of the representations. Time and again, Courts have stated, that if there was sufficient time available for confirmation, in all fairness, the representation should be disposed of before confirmation, so that at least the semblance of independent consideration, would not get clouded. It is rather unfortunate, that in the instant case, the highest authority concerned had chosen to mechanically affix his signature, though the initial note by the officials concerned and the query put up by the Secretary, Union Government, have divergence. In such contingency, it would not only be necessary, but also would be mandatory, for the highest authority to apply his independent mind and indicate application of his mind in some pattern, which could easily receive judicial acceptance. If such an application of mind is conspicuously absent, it would be reasonable to hold in favour of the detenus, rather than in favour of the authorities concerned. If only signatures are affixed in the file, by several authorities mechanically as though it is ritual, it will not be possible for the Courts to presume application of mind, more so, in cases where there is divergence in the notes, one made by the officials in the ministry and the other by the Secretary. A note reads that representations have already been rejected by the Detaining Authority, slyly suggesting that this was yet another ritual. There will be no need to expatiate further on this aspect, except observing that in future the authorities concerned will devote more purposeful attention to this serious infirmity, for ultimately the executive as well the Courts will have to safeguard the interests of the society at large.
Let us now have a quick look at the case law available on this subject. In Sat Pal Vs. State of Punjab and others, two questions were canvassed before the Supreme Court. One was whether there was any duty cast on the State Government to forward to the Central Government the representation for revocation of the order of detention u/s 11 of the Act. It was urged that the detenu had no right to simultaneously make a representation against the order of detention to the Detaining Authority under Article 22(5) of the Constitution and an application for revocation of order of detention u/s 11 of the Act. The second was whether the power of revocation of the order of detention by the Central Government u/s 11 of the Act was exercisable only after the representation stood rejected by the State Government and the Advisory Board and the order of detention was confirmed by the State Government u/s 8(f). Otherwise, it was stated before the Court that there would be conflict of jurisdiction. Both contentions Were not accepted. The Supreme Court stated as hereunder:
The whole purpose of a representation that a detenu makes under Article 22(5) of the Constitution read with Section 8 of the Act, is to secure revocation of the order of detention. It is evident from the scheme of the Act that the power of revocation is exercisable at two stages. In the first place, there is a duty cast on the appropriate Government, i.e. the Central Government or the State Government, as the case may be, to revoke the detention order u/s 8(f) of the Act and cause the person to be released forthwith, where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention. Secondly, the Central Government, may, at any time, under cl.(b) of Sub-section (1) of Section 11 of the Act, revoke an order of detention that has been made by an officer of the Central Government, may, likewise, exercise such power in relation to an order made by an officer of the State Government. u/s ll(l)(b) of the Act, the Central Government therefore, has the overriding power to revoke a detention order, at any time, made by the State Government, or an officer of the State Government under Sub-section (3) of the Act. That is as it should be as under our federal structure the Centre must always keep a vigilant eye in the matter of life and liberty of a citizen guaranteed under Art. 21. The constitutional imperatives of Article 22(5) enjoin that where the detenu makes simultaneously a representation to the Detaining Authority as well as an application for revocation u/s 11 of the Act, they must both be dealt with by the appropriate governments at the same time, and there is no question of any conflict of jurisdiction. To illustrate, if the Central Government were to revoke an order of detention u/s ll(l)(b) of the Act, there would be no representation of the State Government to consider, or to refer to the Advisory Board u/s 8(b); nor will there arise any question of the Advisory Board submitting a report to it, or on receipt of such report, confirming the order of detention u/s 8(f). The other type of case would be where notwithstanding that the order of detention has been confirmed u/s 8(f), the appropriate Government may, at any time, revoke the same u/s 11 of the Act. The power of revocation conferred on the appropriate Government u/s 11 of the Act is independent of the power of confirming or setting aside an order of detention u/s 8(f). The power u/s ll(l)(b) may either be exercised on information received by the Central Government from its own sources including that supplied by the State Government u/s 3(2), or, from the detenu in the form of a petition or representation. It is for the Central Government to decide whether or not, it should revoke the order of detention in a particular case. The use of the words ''at any time'' in Section 11, gives the power of revocation and overriding effect on the power of detention u/s 3. Ordinarily, the Central Government would in a case like the present under the Act, like to await the report of the Advisory Board u/s 8(c) before taking any action u/s ll(l)(b) but the circumstances may differ, and there may be a case where the Central Government finds that the order of detention passed u/s 3 is mala fide or constitutes an abuse of power on the part of the State Government or an officer of the State Government specially empowered in that behalf, it may ''at any time'', revoke the order of detention. The detenu has therefore the right to approach the Central Government by a representation for revocation of his order of detention u/s ll(1)(b) and when such a representation is made, the State Government has the corresponding duty to forward it to the Central Government for necessary action.
The making of an application for revocation to the Central Government u/s 11 of the Act is, therefore, part of the constitutional right a citizen has against his detention under a law relating to preventive detention. While Act 22(5) contemplates the making of a representation against the order of detention to the Detaining Authority, which has to be referred by the appropriate Government to the Advisory Board constituted u/s 8(a) of the Act, Parliament has, in its wisdom, enacted Section 11 and conferred an additional safeguard against arbitrary executive action. It is, therefore, idle to contend that the State Government had no duty to forward the representation made by the detenu to the Central Government for revocation of his order of detention u/s 11 of the Act. The State Government had, therefore, no business in withholding the representation endorsed to the Central Government for revocation of the order of detention u/s 11 of the Act for a period of 2 months and 15 days.
In conclusion, the Supreme Court stated that they had no hesitation in repelling the contention that the power of revocation conferred on the Central Government u/s 11 was not attracted until the State Government had considered the representation made by the detenu and rejected it. It was further observed, that under the Act, a detenu has a right to simultaneously make a representation to the detaining authority, which has to be considered by the Advisory Board as also the right to apply to the Central Government for revocation of the detention order u/s 11. The principle enunciated in Sat Pal Vs. State of Punjab and others, will squarely attract the instant facts.
That there must be continuous consideration of the representation is the law laid down by the Supreme Court in Harish Pahwa Vs. State of U. P. and Others, ). Observations made by the Supreme Court are as hereunder:
We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional.
The principle laid down in Harish Pahwa Vs. State of U. P. and Others, was quoted and approved by the Supreme Court in Piara Singh Vs. State of Punjab, . After quoting its earlier observations in Harish Pahwa''s case (IR 1981 S.C. 1126) , the Supreme Court stated as hereunder;
Where the liberty of a person is involved, it is the duty of the State to determine his representations with the utmost expedition and deal with it continuously until a final decision is taken and communicated to the detenu.
Authorities can be multiplied on this proposition that representations of the detenus shall have to be considered and disposed of continuously and expeditiously with a sense of urgency and promptitude. Of course, the latest thinking of the Supreme Court is that some leeway may have to be given for administrative delays, but giving of such leeway must be based on reasonableness, which must naturally depend upon explanations, which are sought to be offered, regarding the delays that had ensued.
On the aspect of independent consideration of representations, law laid down by the Supreme Court in Moosa Husein Singhar v. State of Gujarat (1993 SCC (Crl) 340) will be very relevant. They are extracted hereunder,
These decisions show that in a case where the representation has been received before the case is referred to the Advisory Board, the appropriate Government must consider the same before the matter is referred to the Advisory Board and it would be justified in not considering the same only if there is no reasonable time to consider and dispose of the representation before the case is referred to the Advisory Board and in such case, the representation may be forwarded to the Advisory Board along with the case of the detenu. In the instant case, we find that the representation dated March 15, 1991, was received by the Detaining Authority on March 18, 1991, and the case of the Appellant was referred to the Advisory Board on March, 25,1991, and the representation was actually considered by the Advisory Board on April, 30, 1991. It is not the case of the Respondents and this is important distinction in this case-that there was no time for the State Government to consider the said representation of the Appellant before referring the matter of the Appellant''s detention to the Advisory Board on March 25, 1991, or before the said matter was considered by the Advisory Board. The only explanation that has been offered by the State government is that there were holidays on March, 23, 1991 and March, 24, 1991 and there was hardly five days'' time with the authorities between the time they received the representation of the Appellant and the time the reference was made to the Advisory Board. The State Government had not given any reason to indicate that the said period was insufficient for a proper consideration of the representation of the Appellant by the State Government. Moreover, even after the reference had been made on March, 25, 1991, the representation of the Appellant could have been considered by the Government and it could have been forwarded to the Advisory Board along with the decision of the State Government on the said representation. Instead of adopting this course, the State Government forwarded the representation to the Advisory Board and took up the said representation for consideration after the receipt of the opinion of the Advisory Board and rejected it by order dated May 13, 1991. As a result the representation of the detenu which was submitted on March, 15, 1991 was considered by the State Government only on May 13, 1991. There was, thus, inordinate delay on the part of the State Government in considering the representation of the Appellant and the said delay in the disposal of the representation of the Appellant has rendered the continued detention of the Appellant as illegal.
In the instant case, Union Government had time enough till 11-10-1994 to confirm the impugned preventive orders. In spite of it, it had chosen to confirm the preventive orders on 26-9-1994 while rejecting the representations on 7.10.1994.
In Navalshankar I, Dave v. State of Gujarat (1993 (Crl.) SCC 1126) , Supreme Court had occasion to consider the effect of keeping representations without consideration and awaiting the decision of another authority before seeking to reject the said representation. It will be better to extract in detail the legal principles that arise out of the factual details, which the Supreme Court was called upon to consider in the aforestated case. They read as hereunder:
In Jayanarayan Sukul Vs. State of West Bengal, the facts were mat the detenu had made his representation to the State Government on June, 23, 1969. On July, 1, 1969, the Government forwarded to the Advisory Board his case together with his representation. On August, 13, 1969, the Board sent its report and based thereon the State Government rejected the representation of the detenu. A Constitution Bench of this Court laid four principles, one of which being that the consideration of the representation of the detenu by the State Government is independent of any action by the Advisory Board including its consideration of the representation. The appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu''s representation to the Advisory Board. If the appropriate Government itself releases the detenu, the case need not be sent along with detenu''s representation to the Advisory Board. If the Advisory Board expresses an opinion in favour of the release of the detenu the release of the detenu thereafter by the appropriate Government will be independent. Even if the Advisory Board expresses any opinion against the release of the detenu, still the Government may exercise its power to release the detenu. In Haradhan Saha v. State of W.B .(1975) 3 SCC 1988, 1974 SCC (Crl.) 816): (1975) I SCR 778) another Constitution Bench reiterated the same view holding that if the representation is made after the matter has been referred to the Advisory Board, the Detaining Authority will consider it before it will send representation to the Advisory Board. In K.M. Abdulla Kunhi and K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, reviewing the case-law the constitution Bench held that the representation relates to the liberty of the individual; it is enshrined under Article 21; therefore Clause (5) of Article 22 casts a legal obligation on the Government to consider representation as early as possible and it should be expeditiously considered and disposed of with a sense of urgency without an unavoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed in this behalf within which the representation should be dealt with but the requirement is that there should not be any indifference or callous attitude in considering the representation. Unexplained delay in disposing of the representation would be a breach of the constitutional mandate rendering the detention impermissible and illegal. Therein the representation was received by the Government on April 17, 1989. The Advisory Board was constituted thereafter and held its meeting on April, 20, 1989. After its submitting the report the Government on April 27, 1989 affirmed the order of detention and considered the representation on May, 1, 1989 and rejected the same. This Court held that there was a breach of constitutional mandate of Article 22(5). In Moosa Husein Sanghar Vs. State of Gujarat and others, the detention order was served on the Appellant on February 21,1991. On March 22, 1991 the declaration was made u/s 9 of COFEPOSA by the Central Government. The Appellant handed over the representation dated March, 15, 1991 to jail authorities for onward transmission. It was addressed to the Advisory Board. It was received by the Detaining Authority on March 18, 1991 who returned it to the Appellant on March 27, 1991 to follow the manner of serving representation meant for Advisory Board. On March 25, 1991 the Advisory Board considered the representation. On March 30, 1991 again other representation was sent to the Advisory Board. The xerox copies of the representation were sent to the Chairman of the Advisory Board. On May 6, 1991 the Board sent its opinion to the State Government. On May 13, 1991 the Government confirmed the order of detention and on the same day rejected the representation of the Appellant. When the writ petition was filed the High Court dismissed the petition. On appeal, this Court held that though the representation was addressed to the Advisory Board, the communication was meant to be the representation under Article 22(5) and the Government must consider and dispose it of. The failure to do so and its rejection on receipt of the opinion of the Advisory Board was held to be in breach of the constitutional mandate under Article 22(5). Accordingly this Court declared that the detention was illegal and set them at liberty.
(10) It is seen that though the representation was received by the State Government on February 20, 1993 the State Government decided to keep it pending awaiting the opinion of the Board and on receipt of the report on March 23, 1993, considered the case and the representation was rejected on the even date, namely, March 23, 1993. In view of this consistent settled law the action of the State Government in keeping the representation without it being considered and disposed of expeditiously, awaiting the decision of the Board till March 23, 1993 and consideration of the representation thereafter and rejection are illegal. In addition, we have on record that the Detaining Authority had not filed its counter as to how the representation of the second Appellant was dealt with or rejected. That apart, there is no material placed before the Court that the State Government has approved within 12 days after execution of the detention order, i.e. February 5, 1993.
On expiry of 12 days the order of detention becomes non est and the subsequent confirmation by the Board or by the State Government does not blow life into the corpse. In either case the order of detention became illegal.
As a matter of fact, in Navalshankar I. Dave''s case (1993 (Crl) SCC 1126) the Supreme Court has referred to its earlier pronouncement in K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, and in effect, reiterated the very same principle, that representations relate to liberty of an individual and that stood enshrined under Article 21. Therefore, under Clause (5) of Article 22, a legal obligation was cast on the Government to consider the representation as early as possible and it should be expeditiously considered and disposed of with a sense of urgency without an unavoidable delay. Unexplained delay in disposing of the representation will be a breach of the constitutional mandate rendering the detention impermissible and illegal. In K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, , the Supreme Court stated as hereunder:
We agree with the observations in Frances Coralie Mullin Vs. W.C. Khambra and Others, The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the Government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the Government is bound to revoke the order of detention, Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The Constitution of the Board shows that it consists of eminent persons who are Judges or persons qualified to be Judges of the High Court. It is, therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the Government after the Advisory Board has made its report, there could, then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the Government as early as possible.
Ultimately, in conclusion, the Supreme Court observed as follows:
It seems to us therefore, that so long as the representation is independently considered by the Government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention, makes little difference on the validity of the detention or confirmation of the detention. The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention. Nor it could be presumed that such consideration is not an independent consideration.
These observations do indicate, the need to consider representations by two different authorities independently with a sense of urgency and further highlight that factual constituent in every case would ultimately be the criterion to decide about the independence in disposal of representations, before or after confirmation, for no uniform formula for rigid application can be laid down on confirmation, sans independent consideration. We are satisfied that on facts and in law, the detenus are entitled to succeed on the first ground of challenge.
As far as the second ground of challenge is concerned, though it may not be necessary to go into it in detail for irrespective of our decision on this question, the detenus are still bound to succeed, we deem it necessary to touch upon this question, though not in very great detail, but to a limited extent. It cannot be overlooked, that in recent times, the Supreme Court has let into the arena of preventive law, the concept of prejudice that would result to the detenus due to non-following of certain procedural aspects. In a few of its pronouncements, it is fairly clear, that on the fact situation, if the Courts were to arrive at a conclusion that there was no prejudice, for detenus were supplied with material on which preventive orders stood passed, that would be perfectly justifiable. In another set of pronouncements, the Supreme Court has verdict, that if there was divergence between the grounds of detention and the order of detention supplied to the detenu in the language known to him, it may have to be held that the detenu stood prevented from making an effective and purposeful representation. It is not as though the pronouncements of the Supreme Court, in either set of cases, are not reconcilable, for, in every decision rendered by its, detailed facts have been narrated and application of law was apparently made on those set of facts. If the concept of prejudice cannot seek an entry into preventive law, then the position may be totally different. Once the theory of prejudice has already its foundation in preventive law, the exercise the court will be called upon to perform would certainly centre around the possible prejudice the detenus would have suffered due to violation of procedural mandates. Without indulging in verbiage it will be better to scrutinise a few of the decisions of the Supreme Court on this point.
In Vijay Kumar Dharna alias Koka Vs. Union of India and others, where the question to be considered centred around the Gurmukhi version of detention order and the grounds supplied to the detenu, the Supreme Court chose to make the following observations:
In the Gurmukhi version of the detention order, it was stated that the detention order had become necessary ''with a view to preventing him from smuggling goods and from abetting the smuggling of goods''. It is, therefore, clear that according to the Gurmukhi version the detenu was taken in detention under Clauses (i) and (ii) of Section 3(1) of the Act, However, when we turn to the grounds of detention, the Detaining Authority records his satisfaction as under:
I am satisfied it is necessary to detain you under COFEPOSA Act, 1974 with a view to preventing you from concealing, transporting smuggled goods as well as dealing in smuggled goods.
This satisfaction clearly reflects the grounds contained in Clauses (iii) and (iv) of Section 3(l) of the Act. The above satisfaction does not speak of smuggling of goods or abetting the smuggling of goods which are the grounds found in the Gurmukhi version of the detention order. There is, therefore, considerable force in the contention urged by the learned Counsel for the Appellant that on account of this variance the detenu was not able to effectively represent his case before the concerned authorities. In fact, according to him the Appellant was confused whether he should represent against his detention for smuggling of goods and/or abetting the smuggling of goods or for engaging in transporting and concealing smuggled goods and/or dealing in smuggled goods. Besides the English version of the detention order was only for abetting the smuggling of goods. The satisfaction recorded in the Gurmukhi version of the grounds for detention is not consistent with the purpose for detention found in the detention order. It left the detenu confused whether he should represent against the grounds in the detention order or the satisfaction recorded in the grounds of detention. We are, therefore, of the opinion that because of this variance the detenu was unable to make an effective representation against his detention and was thereby denied his right under Art. 22(5) of the Constitution.
To be specific, Supreme Court stated therein, that the satisfaction recorded in the Gurmukhi version of grounds of detention was not consistent with the purpose, for detention, found in the detention order. If those observations are taken literally, the contention of Mr. B. Kumar in the instant Habeas Corpus Petition may have to be upheld.
In Union of India v. Shantaram Gajanan Kanekar, (1994 Supp (2) SCC 571) in a short order, the Supreme Court stated that the High Court, on facts, found that the two versions of declaration, one in English and the other in Marathi, did not tally with each other. Further, the High Court found that the translated version of the declaration was defective and opined that it was not possible for the detenu to make an effective representation. In that view, the order of detention was quashed. Again, it is relevant to note, that only in the event of the Courts arriving at a conclusion that it was not possible for the detenu to have made an effective representation, this aspect of divergence, in one or the other of the same set of papers, supplied in two different language, can arise for serious consideration.
A Division Bench of Karnataka High Court in W.P. No. 107 of 1988 (Suresh Sriranga Shiridhe v. State of Karnataka & two others) by its order dated 8.3.1989 found that there was a vital defect in the translated order of detention and under such circumstances, they were bound to hold that the detention order with which they were concerned, was illegal. In the case considered by the Karnataka High Court, in the Marathi version, the words "engaging in" were found to be absent in the translated orders of detention. This again shows that the Courts have always weighed in every case, if the possibility of the detenu''s right to make an effective representation stood thwarted.
In A. Alangarasamy Vs. State of Tamil Nadu and Another, while considering the question raised before it, that there was a variation between Tamil and English versions of grounds of detention served on the detenu therein, the Supreme Court stated that the learned Judges who knew Tamil well had considered this submission made, on the difference of two versions. They had also made reference to Law Lexicon issued by the Government of Tamil Nadu. After considering the meaning of the words used in the English version and Tamil version, the High Court held that the submissions based on this ground were insufficient to quash the order of detention. The writ petition was dismissed by the High Court since no other contentions were advanced before it. The Supreme Court stated, that the alleged difference, between the two versions, in its opinion as well, was not consequential. The order of detention and the grounds accompanied, clearly spelt out why the detenu was being detained. They were not prepared to hold that the two grounds were so different as to cause any prejudice to the detenu. This decision is an authority for the proposition that concept of prejudice is so interlinked, while scrutiny is made, about the alleged difference between the two versions, which get pointed out, while praying for Viking of preventive orders.
In Kamarunnissa and Others Vs. Union of India and another, , while answering a similar contention as to whether non-mention of the clause u/s 3(1) of the Act, would invalidate a preventive order, the Supreme Court held that it found it difficult to comprehend that the detenu stood prejudiced. We are referring to all these cases, only to highlight that the fabric of prejudice, almost forms an integral part, in preventive detention law.
In Hawahi Sayed Arif Sayed Hanif v. L. Hmingliana (1993 (Cri) SCC 304), while considering an order of declaration made u/s 9(1) of the COFEPOSA Act, on the ground that the detenu was likely to smuggle goods into and through the Indian coastal waters, contiguous to the State of Karnataka, observed that the continued detention in pursuance of a declaration had to be read with the original order of detention. In that case, the impugned order was passed to prevent smuggling activities of the detenu, which may take place in the State of Maharashtra, while the declaration was made appending thereto Indian coastal waters contiguous to the State of Karnataka, which was highly vulnerable to smuggling. Another submission was made for the first time before the Supreme Court about the order of detention having been made u/s 3(1) (i) and not u/s 3(l)(ii), without much of seriousness, for it was not pressed later. However, on a perusal of the entire documents, no force was seen in that submission, for the impugned order stood passed u/s 3(1) in general. We do not intend multiplying authorities on this aspect, for in these Habeas Corpus Petitions we are not laying down any principle, for we have only attempted to focus all that could be the rationale, behind these decisions. We do not also want to render a verdict about the words "augmentation" and "conservation" either being complementary or mutually exclusive, for that can be reserved for decision in an appropriate case. The detenus, in view of our holding in favour of them, on the first ground, are entitled to succeed.
Impugned orders of detention shall stand set aside. The detenus are directed to be set at liberty forthwith unless their detentions are otherwise required. These two Habeas Corpus Petitions are allowed.