Prayer:- Habeas Corpus Petition filed under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus calling for the records relating to the detention order in G.O.No.S.R.I/815-6/2011 dated 06.02.2012 passed by the 1st respondent herein and quash the same and direct the respondent to produce the body of the person of the detenu namely Mohamed Kassime aged about 33 years son of Abdoul Lattif before this Court, now detained under section 3[1] of the COFEPOSA Act in the Central Prison, Cuddalore and set him at liberty.
O R D E R
(Order of the Court was made by K.N.BASHA,J. & P.DEVADASS, J.)
1. The petitioner who is the brother-in-law of the detenu, viz., Mohamed Kassime, S/o.Abdoul Lattif, has come forward with this petition challenging the detention order passed by the first respondent dated 06.02.2012 slapped on the detenu under the provision of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
2. Mr.Palanikumar, learned counsel for the petitioner though raised several grounds, would mainly contend that there is an inordinate and unexplained delay in considering the representation of the detenu's wife, Shaheetha Banu, dated 02.03.2012 and thereby infringed the fundamental rights to detenu under Article 25(5) of the Constitution of India. It is contended that in the counter affidavit filed by the 2nd respondent, it is stated that the representation dated 02.03.2012 was received on 12.03.2012 and thereafter, parawar remarks and comments along with its English translation and other relevant informations were called for from the Sponsoring Authority and the Detaining Authority on 13.03.2012 and the said informations and records were received by the 2nd respondent on 20.03.2012. It is pointed out by the learned counsel for the petitioner that even after the receipt of such information and documents as early as on 20.03.2012 from the Sponsoring Authority, the 2nd respondent waited for the receipt of the comments from the Detaining Authority and even the said comments from the Detaining Authority were received by the 2nd respondent on 26.03.2012. It is contended that in spite of receiving all the required documents, the 2nd respondent sought for furnishing complete information and even the said complete information was received by him on 28.03.2012. It is further contended that in spite of getting all the required documents and informations, it is stated in the counter that after conducting a detailed examination of the issues raised in the representation, the file was submitted to the Joint Secretary [COFEPOSA], who in turn, desired to seek for some additional information and the said additional information was also received by him on 19.04.2012 and ultimately, the representation was rejected on 25.04.2012.
3. Learned counsel for the petitioner would contend that there is no reason for seeking of further information or additional details after receiving full particulars, documents, comments and information from the Sponsoring Authority and the Detaining Authority on 26.03.2012. There is no need for requiring any further complete information. But in spite of the same, they have sought for further complete information and the same was also received on 28.03.2012. It is pointed out by the learned counsel for the petitioner that after receiving the entire documents on 26.03.2012, they have sought for the complete information only with a view to cover up the further delay. It is submitted that from the date of receiving the complete information, there is no impediment for the 2nd respondent to consider the representation of the wife of the detenu. But, with a view to cover up the further delay, the Joint Secretary [COFEPOSA] has sought for the additional information. Therefore, it is submitted that there is no explanation for the delay in considering the representation after receiving the full particulars, documents, comments and information as early as on 26.03.2012 from the Sponsoring Authority and the detaining Authority. But, the representation was ultimately considered and rejected only on 25.04.2012 and as a result, there is a delay of 30 days and there is absolutely no explanation for such delay from the 2nd respondent and as such, the impugned detention order is vitiated on the grounds of violation of fundamental right under Article 22[5] of the Constitution of India and the same is liable to be set aside.
4. Per contra, Mr.N.Senthilkumar, learned Senior Central Government Standing Counsel [for Customs and Central Excise] appearing for the 2nd respondent would contend that there is no delay in considering the representation of the wife of the detenu dated 02.03.2012. It is contended that sequence of events are clearly stated in the counter affidavit filed by the 2nd respondent. Learned Senior Central Government Standing Counsel would contend that the 2nd respondent took time for seeking the required information and documents and received the same from the Sponsoring Authority and the detaining Authority. It is contended that after receiving the said information, the Joint Secretary [COFEPOSA], on examination of the representation and other documents, desired to get some additional information and as such, the same were called for through the Ministry's Letter dated 30.03.2012 and the said additional information was received on 23.04.202 and accordingly, the rejection order was passed on 25.04.2012 and as such, there is no delay on the part of the 2nd respondent in considering the representation.
5. Heard Mr.K.P.Ananthakrishna, learned Additional Public Prosecutor appearing for the respondents 1 and 3 on the submissions made by the learned counsel for the petitioner and the learned Senior Central Government Standing Counsel [for Customs and Central Excise] appearing for the 2nd respondent. It is contended that there is no lapse on the part of the State Government and the State Government has furnished the required documents, comments and other particulars sought for by the 2nd respondent herein.
6. We have given our careful and anxious consideration to the rival contentions put forward by either side and perused the entire materials available on record including the affidavit filed by the petitioner, counter affidavit filed by the 2nd respondent and the impugned detention order and its grounds.
7. At the outset, it is to be stated that the 2nd respondent has come forward with a counter affidavit with vague and bald statements and made a feeble attempt to explain the inordinate delay in considering the representation of the wife of the detenu dated 02.03.2012. A perusal of paragraph 2.2 of the counter affidavit filed by the 2nd respondent would demonstrate the indifferent and lethargic attitude of the 2nd respondent in considering the representation dated 02.03.2012. It is relevant to incorporate the said portion of the counter affidavit which reads as here under:-
"2.2.With regard to the averments made in para 18 of the petition insofar as these relate to the respondent No.2, i.e., Union of India, it is respectfully submitted that as per the records maintained in the Cofeposa Unit of Ministry the purported representation dated 02.03.2012 in Tamil Language from Smt. Shaheetha Banu wife of Shri Mohamed Kassime, COFEPOSA detenu was received in the COFEPOSA Unit of the Ministry of Finance, Department of Revenue, New Delhi from the State Government of Tamil Nadu on 12.03.2012. A copy of the said representation was also received in the COFEPOSA unit from the Superintendent, Central Prison, Cuddalore on 13.03.2012. Parawise comments on the representation along with its English translation and other relevant information were called for from the Sponsoring Authority, viz., the Commissioner of Customs, [airport], Chennai and the Detaining Authority viz., the State Government of Tamil Nadu, Chennai on 13.03.2012. The comments of the Sponsoring Authority on the representation, sent vide letter dated 15.03.2012, were received in the COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi on 20.03.2012. The comments of the Detaining Authority on the representation, sent vide letter dated 19.03.2012, were received in the COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi on 26.03.2012. Since, the information furnished by the Sponsoring Authority was incomplete, vide Ministry's letter dated 26.03.2012, it was requested for furnishing the complete information. In the meantime, complete information of the Sponsoring Authority, sent vide letter dated 23.03.2012, was received in the COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi, on 28.03.2012. COFEPOSA section submitted the file along with all the relevant records and documents to the Deputy Secretary [COFEPOSA] on 28.03.2012 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 Joint Secretary [COFEPOSA] on 29.03.2012. For detailed examination of the representation, the Joint Secretary [COFEPOSA] desired for some additional information, which were then called for from the Sponsoring Authority, vide Ministry's letter dated 30.03.2012. Sponsoring Authority was reminded vide Ministry's letter dated 10.04.2012 for sending the additional information desired by Joint Secretary [COFEPOSA]. The requisite information from the Sponsoring Authority, sent vide letter dated 19.04.2012, was received in the COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi on 23.04.2012. COFEPOSA section re-submitted the file to the Deputy Secretary [COFEPOSA] on 24.04.2012 for examination. Analaysing the information received from the Sponsoring Authority, the Deputy Secretary [COFEPOSA] submitted the file to the Joint Secretary [COFEPOSA], in turn, submitted the file same day to 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 the same was rejected by her on 25.04.2012......."
A reading of the above said statements and averments in the counter affidavit of the 2nd respondent would make it abundantly clear that the 2nd respondent has dealt with the representation dated 02.03.2012 in a most, casual, callous and lethargic manner. It is pertinent to note that the representation dated 02.03.2012 was received by the 2nd respondent on 12.03.2012 and the parawise comments on the representation along with the English translation and other relevant information were called for from the Sponsoring Authority as well as from the Detaining Authority on 13.03.2012. It is seen that the said comments and information from the Sponsoring Authority along with other required particulars and documents were received by the 2nd respondent as early as on 20.03.2012 and from the Detaining Authority on 26.03.2012. Therefore, the crucial date of the receipt of the required information and other particulars is 26.03.2012. But, for the reasons best known to the authorities, it is stated that they require further complete information from the Sponsoring Authority and even the said complete information was received on 28.03.2012. At this juncture, it is to be stated that what sort of further complete information they have sought for, is not given. Thereafter, it is seen that the entire documents coupled with the information and comments from the Sponsoring Authority and Detaining Authority stated to have been examined in detail and in spite of the same, once again it is stated that the Joint Secretary [COFEPOSA] desired for some additional information. Here again, it is not stated as to what sort of additional information they have sought for. In our considered opinion, the authorities have come forward with such bald and vague statements. We have no hesitation to hold that such informations have been deliberately called for only with a view to cover up the delay in considering the representation. It is seen from the above said factors that from the crucial date of receiving all the required documents, comments and information, i.e., from 26.03.2012, the Central Government took 30 days for passing the order of rejection on 25.04.2012 finally. We are of the considered view that the 2nd respondent has not come forward with any acceptable and probable explanation for such an inordinate and unexplained delay.
8. At this juncture, it is relevant to refer the following decisions:-
[a]The Hon'ble Apex Court, in its yet another decision in S.M.JAHUBAR SATHIK Vs. STATE OF TAMIL NADU reported in 1999 [II] CTC 166, has held as here under:-
"4..............A perusal of the original file placed before us reveals that the clarifications were sought in the usual bureaucratic style only for the sake of clarification without there being any need for it. In these circumstances, it cannot be said that the representation was disposed of with promptitude. On the contrary, even the explanation offered by the respondents in their counter affidavit filed before the High Court indicates the lethargic attitude with which the representation was taken up, dealt with and ultimately disposed of after seeking clarifications thrice on issues which did really not arise nor where there any necessity for seeking clarifications. The representation could have been disposed of without seeking clarification which obviously was sought to cover up the delay in prompt disposal of the representation."
(Emphasis supplied)
[b]The Hon'ble Apex court in RAJAMMAL V. STATE OF TAMILNADU reported in 1999 AIR SCW 139 has held here under:
"It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Art.22 of the Constitution for the decision to be taken on the representation the words "as soon as may be" in cl.(5) of Art.22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. If delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.
(Emphasis supplied)
[c]In K.M.ABDULLA KUNNI AND ANOTHER Vs. UNION OF INDIA AND OTHERS reported in AIR 1991 SUPREME COURT 574 : 1991 (1) SCC 476, the Constitution Bench of the Hon'ble Apex Court has held as here under:-
"............
20.It is necessary to mention that with regard to liberty of citizens the Cout stands guard over the facts and requirements of law. But Court cannot draw presumption against any authority without material. It may be borne in mind that the confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation. Secondly, there may b evidence cases where the Government has to consider the representation only after confirmation of the detention. Clause [5] of Article 22 suggests that the representation could be received even after confirmation of the order of detention. The words 'shall afford him the earliest opportunity of making a representation against the order in clause [5] of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under section 8 of the Act. But if the detenu does not exercise his right to make representation at that stage, but presents it to the Government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the Statute. The confirmation of the order of detention is not conclusive as against the detenu. It can be revoked suo motu under section 11 or upon a representation of the detenu. 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. With all respect, we are not inclined to subscribe to the views expressed in V.J.Jain, Om Prakash Bahal and Khairul Haque cases. They cannot be considered to be good law and hence stand overruled."
[d]In a latest decision in UMMU SABEENA AND OTHERS Vs. STATE OF KERALA AND OTHERS reported in 2012 [2] MLJ [Crl.] 149, the Hon'ble Apex Court has held as here under:-
"..............
13..........This Court found that such delay voids the continued detention of the detenus and the detention order was quashed.................
21.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.
22.That is why it has been said that the writ of Habeas Corpus is the key that unlocks the door of freedom."
9.It is also relevant to refer the other Catena of decisions of the Hon'ble Apex Court which are as follows
(i) The Hon'ble Apex Court in Rashid sk. v. State of West Bengal reported in 1973 (3) SCC 476 has held as follows:
The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion.
(ii) The Honb'le Apex Court in Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65 held that:
"The right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal by the State Government.......
Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India. So the authority is obligated to explain the delay either by filing a counter-affidavit by the officer concerned on behalf of the appropriate Government or by producing the record in dealing with the case."
(iii) In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others reported in 1989 SCC (Crl) 554 has held:
"The supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the government which received the representation 11 days after it was handed over to the jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible......
When it is emphasised and re-emphasised by a series of decisions of the Supreme Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22(5) of the Constitution."
(iv) In Tara Chand v. State of Rajasthan, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, 1986 (1) SCC 650, the Apex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal.
The Principles laid down by the Hon'ble Apex Court in a Catena of decisions cited supra make it crystal clear that the inordinate and unexplained delay in the disposal of the representation would definitely amount to breach of the constitutional imperative and the same would render a continued detention impermissible and illegal. As far as the case on hand is concerned, we have already pointed out that there is inordinate delay of 30 days in considering the representation of the detenu and as such, the same would vitiate the impugned order of detention. In view of the aforesaid reasons, we have come to the irresistible conclusion that the impugned detention order is vitiated and the same is liable to be quashed.
10. In view of the aforesaid reasons, the detention order passed by the first respondent in G.O.No.S.R.I/815-6/2011 dated 06.02.2012 is hereby set aside and the Habeas Corpus Petition is allowed. The detenu, viz., Mohamed Kassime S/o.Abdoul Lattif, is directed to be set at liberty forthwith unless he is required in connection with any other case.