Jayan D s/o Damodaran v Union of India and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 5[TH] DAY OF JUNE 2020 / 15TH JYAISHTA, 1942 WP(CRL.) NO. 56 OF 2020** **PETITIONER:** **JAYAN.D,S/O.DAMODARAN, RESIDING AT MANAKATTUVILAKOM, KARIYIL KAZHAKUTTOM P.O., THIRUVANANTHAPURAM, PIN-695582.** **BY ADV. M.AJAY** ## **RESPONDENTS:** **1 THE UNION OF INDIA (REPRESENTED BY ITS SPECIAL SECRETARY AND DIRECTOR GENERAL), CENTRAL ECONOMIC INTELLIGENCE BUREAU, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 5TH FLOOR, B WING, JANPATH BHAVAN, JANPATH, NEW DELHI, PIN-110001.** **2 * MR. RAVI PRATAP SINGH, JOINT SECRETARY (COFEPOSA), GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL ECONOMIC INTELLIGENCE BUREAU, 5TH FLOOR, B WING, JANPATH BHAVAN, JANPATH, NEW DELHI, PIN-110001. (NAME OF RESPONDENT NO.2(MR. RAVI PRATAP SINGH,IRS) ALONE IS DELETED FROM CAUSE TITLE AS PER ORDER DATED 19-02-2020 IN WP(CRL.) 56 OF 2020)** - **3 THE DIRECTORATE OF REVENUE INTELLIGENCE, (REPRESENTED HEREIN BY IT'S PRINCIPAL ADDITIONAL DIRECTOR GENERAL), ZONAL UNIT, 32/641A, VYLOPPILLI ROAD, ST. THOMAS LANE, PALLINADA, PALARIVATTOM, KOCHI, PIN-682025.** W.P.(Crl.)No.56.2020 2 **4 THE COFEPOSA ADVISORY BOARD, HIGH COURT OF KERALA, (REPRESENTED BY THE SECRETARY, (COFEPOSA)), REGISTRAR (JUDICIAL), HIGH COURT BUILDINGS, ERNAKULAM, PIN-682031.** - **5 THE SUPERINTENDENT , CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM, PIN-695012.** **BY ADVS.SRI.SUVIN R.MENON, CGC SRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA REGIONAL UNIT P.P.SRI.K.A.ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 05.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl.)No.56.2020 3 ## **JUDGMENT** ## **Ravikumar, J.** The petitioner is the step brother of Sri.Biju Mohan who is detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the COFEPOSA Act') pursuant to Ext.P1 order dated 27.9.2019. Ext.P2 carries the grounds of detention. Ext.P1 order of detention was executed on 11.10.2019. On obtaining the opinion of the Advisory Board in the case of the detenu the first respondent as per Ext.P11 order confirmed Ext.P1 order for a period of one year from 11.10.2019. This habeas corpus writ petition has been filed seeking quashment of Exts.P1 and P11 and for a declaration that the continued detention of the detenu Sri.Biju Mohan is unconstitutional, illegal and ab initio void on account of the procedural infractions on the part of each of the respondents jointly and separately. 2. Heard the learned counsel appearing for the petitioner, the learned Public Prosecutor, the learned Standing Counsel for Directorate of Revenue Intelligence and also the learned Central Government Counsel. 3. Upon considering the rival contentions with reference to the factual matters and perusing the materials on record we are of the W.P.(Crl.)No.56.2020 4 considered view that we need to consider only the following points viz., whether there occurred undue and unexplained delay in the matter of consideration and disposal of Ext.P4 representation by the 1[st] respondent as per Ext.P11 order and Ext.P5 representation by the 2[nd] respondent as per Ext.P12 order. If the answers to the said questions are in the affirmative it would vitiate the detention order and in such eventuality the continued detention of the detenu would become illegal and unconstitutional. So also, the question whether the 2[nd] respondent had erred in treating Ext.P15 carrying requests for information, document and materials as a prelude for filing more effective representations, as a representation and its impact may also become necessary, subject of course, the consideration of the earlier points. We are also of the view that the various other contentions raised by the petitioner to mount challenge against Exts.P1 and P11 need be considered only if it is essential. In this context, the decisions of the Hon'ble Apex Court in **K.M.Abdulla Kunhi and B.L.Abdul Khader** v. **Union of India and others [(1991) 1 SCC 476], Harish Pashwa** v. **State of U.P. & Ors. (AIR 1981 SC 1126)** and **Union of India (UOI)** v. **Yumnam Anand M. and Ors. (Crl.A.546 of 2007)** . 4. In **K.M.Abdulla Kunhi and B.L.Abdul Khader's** case (supra) the Hon'ble Apex Court held that there are two constitutional safeguards with respect to detention of persons under preventive W.P.(Crl.)No.56.2020 5 detention laws. The first among them enshrined under Clause (4) of Article 22 of the Constitution of India which mandates that if a detenu is liable to be detained for a longer period than three months, his case shall be referred to the Advisory Board which must report before the expiration of the said period of three months as to whether in its opinion there is sufficient cause for such detention. Section 9 of the KAA(P)A provides for reference of the detenu's case to the Advisory Board, within three weeks from the date of detention of that person and Section 10 provides that the Board must report within nine weeks from the date of detention of the person concerned as to whether or not there is sufficient cause for his detention. The second safeguard embodied in clause (5) of Article 22 requires that when any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The Apex Court went on to hold, in paragraph 7, thus:- “The detenu has two rights under clause (5) of Article 22 of the Constitution: (i) to be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (ii) to be afforded the earliest opportunity of making a representation against the order of detention.” W.P.(Crl.)No.56.2020 6 Section 7 of KAA(P)A provides that the grounds of detention shall be furnished to the detenu and he shall also be informed in writing under acknowledgment, of his right to represent to the Government and before the Advisory Board against his detention. 5. Paragraph 11 of the decision in **K.M.Abdulla Kunhi and B.L.Abdul Khader's** case (supra) is also worthy to refer and it runs as follows:- “11. It is now beyond the pale of controversy that the constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. W.P.(Crl.)No.56.2020 7 The right to have the representation considered by the Government, is, safeguarded by cl. (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under cl. (4) of Art. 22 read with section 8(c) of the Act. (See: Sk.Abdul Karim v. State of West Bengal [1969] 1 SCC 433; Pankaj Kumar Chakrabarty v. State of west Bengal, [1970] 1 SCR 543; Shayamal Chakraborty v. The Commissioner of Police Calcutta [1969] 2 SCC 426; B. Sundar Rao v. State of Orissa, [1972] 3 SCC 11; John Matrin v. State of West Bengal, [1975] 3 SCR 211; S.K. Sekawat v. State of West Bengal, [1975] 2 SCR 161 and Haradhan Saha v. State of West Bengal, [1975] 1 SCR 778.” The afore-quoted text from the decision in **K.M.Abdulla Kunhi and B.L.Abdul Khader's** case (supra) would reveal that the constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to proper consideration of the representation. It would also reveal that the nature of consideration of a representation by the Government and by the Advisory Board is found to be different and distinct as Government considers the representation for ascertaining, essentially, whether the detention order is in conformity with the power under the law and whereas the Advisory Board considers the representation and the case of the detenu for examining whether there is sufficient cause for detention. 6. In **Harish Pashwa's** case (supra) the Apex Court held that the representation made by the detenu must be considered within W.P.(Crl.)No.56.2020 8 a reasonable time and that the delay would invalidate the detention. Ext.P4 representation is dated 1.11.2019. It was disposed of by the first respondent as per Ext.P11 dated 31.12.2019. As relates Ext.P5 representation dated 1.11.2019 it was disposed of by the 2[nd] respondent as per Ext.P12 order dated 8.01.2020. When the detention period is one year from the date of detention a period of one month cannot be treated as a short one. The contention of the petitioner is that there is no justification in law for the first and second respondents to await the opinion of the Advisory Board before considering and disposing of Exts.P4 and P5. In **Ankit Ashok Jalan** v. **Union of India & Ors.** (Judgment dated 4.3.2020 in W.P.(Crl.)No.362 of 2019 reported in **(2020 (0) Supreme (SC) 232)** ) the Apex Court considered the question as to the impact and consequences of delay in consideration of representation independently and without waiting for the report of the Central Advisory Board, with reference to paragraph 16 in **K.M.Abdulla** ## **Kunhi and B.L.Abdul Khader's** case and held:- “25. Thus, if the law is now settled that a representation can be made to the specially empowered officer who had passed the order of detention in accordance with the power vested in him and the representation has to be independently considered by such Detaining Authority, the concerned principles adverted to in paragraph 16 of the decision in **K.M. Abdulla Kunhi ((1991) 1 SCC 476)** would not be the governing principles for such specially empowered officer. It must be stated that the discussion in **K.M. Abdulla Kunhi ((1991) 1 SCC 476)** was purely in the context where the order of detention was passed by the appropriate Government W.P.(Crl.)No.56.2020 9 and not by the specially empowered officer. The principle laid down in said paragraph 16 has therefore to be understood in the light of the subsequent decision rendered by another Constitution Bench of this Court in **Kamleshkumar ((1995) 4 SCC 51)** . 26. In the light of the aforesaid discussion, our answer to first two questions is that the Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory ” Board. 27. We are conscious that the view that we are taking, may lead to some incongruity and there could be clear dishotomy when the representations are made simultaneously to such specially expowered officer who had passed the order of detention and to the appropriate Government. If we go by the principle in paragraph 16 in **K.M.Abdulla Kunhi** it would be proper for the appropriate Government to wait till the report was received from the Advisory Board, while at the same time the specially empowered officer who had acted as the Detaining Authority would be obliged to consider the representation with utmost expedition. At times a single representation is prepared with copies to the Detaining Authority namely the specially empowered officer and to the appropriate Government as well as to the Advisory Board. In such situations there will be incongruity as stated above, which may be required to be corrected at some stage. However, such difficulty or inconsistency cannot be the basis for holding that a specially empowered officer while acting as Detaining Authority would also be governed by the same principles as laid down in paragraph 16 of _**K.M.Abdulla Kunhi**_ . 28. Since there was complete inaction on part of the Detaining Authority in the present case, to whom a representation was addressed in dealing with the representation as stated above, we hold that the constitutional rights of the detenues were violated and the detenues are entitled to redressal on that count. We, therefore, allow this Writ Petition and hold the continued detention of the detenues in terms of the Detention Orders to be illegal, invalid and unconstitutional. W.P.(Crl.)No.56.2020 10 29. This Writ Petition is therefore allowed. The Detention Orders are quashed and the detenues are directed to be set at liberty forthwith, unless their custody is required in connection with any other proceedings or crime.“ - (underline supplied) Thus, in **Ankit Ashok Jalan's case** (supra) the Apex Court laid the law that without awaiting the opinion of the Advisory Board and independent of it the detaining authority has to consider the representation within a reasonable time. In the counter affidavit filed by respondents 1 and 2 it is stated in paragraph 23 that the representation received by the detaining authority was kept pending awaiting the report of the Advisory Board, in terms of the decision of Apex Court in **Golam Biswas v. Union of India [(2015) 16 SCC 177]** . The relevant portion reads thus: “The Hon'ble Advisory Board duly considered the said representations. The opinion dated 12.12.2019 of the Advisory Advisory Board was received on 16.12.2019 in the office of the Detaining Authority. In its opinion dated 12.12.2019, the Advisory Board opined that there are sufficient grounds for the continued detention of the petitioner's step brother i.e. Mr.Biju under Section 3(1) of the COFEPOSA Act, 1974. The opinion of the Advisory Board was confirmed by the Central Government vide order dated 31.12.2019. Again in terms of the Judgement in Golam Biswas v. Union of India [(2015) 16 SCC 177, the request/representation dated 01.11.2019 addressed to the Detaining Authority was disposed of by the detaining authority vide Order dated 09.1.2020. Exhibit P5 request has been received at the office of the detaining authority on 06.11.2019. Exhibit P5 request/representation was aso forwarded by the detaining authority to the advisory board along with the comments on the averments made in the request/representation. It is pertinent to note that it was specifically pointed out that all the relied upon documents were submitted to the detenue. On the receipt of the opinion W.P.(Crl.)No.56.2020 11 of the advisory board, Joint Secretary (COFEPOSA) vide his Order dated 08.01.2020 rejected the request/representation. Hence, the representation of the detenue has been properly disposed by the Appropriate Authority. Similarly, the other representations had also been disposed of by the appropriate authority as indicated in the table herein above. Hence, the representations of the detenues have been properly disposed by the Appropriate Authorities.” From the above extracted recitals from the counter affidavit it is clear that the detaining authority was awaiting the report of the Advisory Board and passed Ext.P12 order only on 8.1.2020 after its receipt. In the light of the decision in **Ankit Ashok Jalan's** case (supra) the said explanation that they were awaiting the report of the Advisory Board cannot be accepted. The **Ankit Ashok Jalan's** case was decided on 4.3.2020. True that Ext.P12 was passed earlier than that. However, when Ext.P12 is challenged in the light of the law laid down in **Ankit Ashok Jalan's** case this Court cannot decline to follow the dictum laid down therein on the ground that at the relevant point of time the decision in **Golam Biswas** case was holding the field. We are bound to follow the decision in **Golam Biswas** case. Going by the same, the detaining authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board. Ext.P5 representation, was considered after a month since its receipt. The delay in considering the representaiton occurred in this case, cannot be accepted in the light of the decision in **Ankit Ashok Jalan's** case and in such circumstances, taking the delay of about one W.P.(Crl.)No.56.2020 12 month as undue delay it has to be held that the non-consideration of the representation vitiated Ext.P1 order of detention. It is held so. Consequently, the writ petition is liable to be allowed holding that the continued detention of the detenu in terms of Ext.P1 detention order is illegal, invalid and unconstitutional. In the result, this writ petition is allowed and we hold that the continued detention of the detenu in terms of Ext.P1 order which was confirmed by Ext.P11, to be illegal, invalid and unconstitutional. Consequently, Ext.P1 detention order as also Ext.P11 order of confirmation are quashed. The detenu, Sri.Biju Mohanan shall be set at liberty forthwith unless his custody is required in connection with any other case. ## Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.HARIPAL Judge** TKS W.P.(Crl.)No.56.2020 13 ## **APPENDIX OF WP(CRL.) 56/2020** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE DETENTION ORDER F.NO.PD12001/44/2019-COFEPOSA ISSUED BY THE SECOND RESPONDENT DATED 27.9.19.** **EXHIBIT P2 A TRUE COPY OF THE GROUNDS OF DETENTION ISSUED TO THE DETENU BY THE SECOND RESPONDENT DATED 27.9.19.** **EXHIBIT P3 A TRUE COPY OF THE LIST OF DOCUMENTS ISSUED TO THE DETENU ALONG WITH THE GROUNDS OF DETENTION.** **EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION ADDRESSED TO THE FIRST RESPONDENT DATED 1.11.19.** - **EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION ADDRESSED TO THE SECOND RESPONDENT DATED 1.11.19.** - **EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION ADDRESSED TO THE FOURTH RESPONDENT DATED 1.11.19.** - **EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION NO.PD/13001/ 01/2019-COFEPOSA SENT BY THE FIRST RESPONDENT TO THE FOURTH RESPONDENT DATED 8.11.19.** - **EXHIBIT P8 A TRUE COPY OF THE MEMORANDUM PD13001/01/2019/COFEPOSA SENT BY THE FIRST RESPONDENT TO THE DETENU DATED 29.11.19.** - **EXHIBIT P9 A TRUE COPY OF THE NOTICE CP.11151/COFEPOSA/D.1729/2019 ISSUED BY THE FIFTH RESPONDENT TO THE DETENU DATED 30.11.19.** - **EXHIBIT P10 A TRUE COPY OF THE COMMUNICATION PD13001/01/2019-COFEPOSA SENT BY THE FIRST RESPONDENT TO THE SECRETARY OF THE FOURTH RESPONDENT DATED 2.12.19.** **EXHIBIT P11 A TRUE COPY OF THE ORDER ISSUED BY THE** W.P.(Crl.)No.56.2020 14 **FIRST RESPONDENT F.NO.PD-12001/44/2019COFEPOSA DATED 31.12.19.** **EXHIBIT P12 A TRUE COPY OF THE MEMORANDUM F.PD.NO.15001/58/2019-COFEPOSA ISSUED TO THE DETENU BY THE DEPUTY SECRETARY TO THE FIRST RESPONDENT DATED 8.12.19.** **EXHIBIT P13 A TRUE COPY OF THE MEMORANDUM F.PD.N.15001/59/2019-COFEPOSA ISSUED TO THE DETENU BY THE DEPUTY SECRETARY TO THE FIRST RESPONDENT DATED 9.12.19.** **EXHIBIT P14 A TRUE COPY OF THE REQUEST SUBMITTED BY THE DETENU BEFORE THE SECOND RESPONDENT DATED 15.1.2020.** - **EXHIBIT P15 A TRUE COPY OF THE REQUEST SUBMITTED BY THE DETENU BEFORE THE FIRST RESPONDENT DATED 15.1.2020.** - **EXHIBIT P16 A TRUE COPY OF THE REQUEST FOR INFORMATION UNDER THE RTI ACT, SUBMITTED BY THE PETITIONER BEFORE THE FIFTH RESPONDENT DATED 14.1.2020.** - **EXHIBIT P17 A TRUE COPY OF THE REPLY BY THE STATE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE FIFTH RESPONDENT UNDER THE RTI ACT DATED 31.1.2020.** - **EXHIBIT P18 A TRUE COPY OF THE LETTER ISSUED BY THE SECRETARY OF THE FOURTH RESPONDENT TO THE DG, PRISONS AND CORRECTIONAL SERVICES DATED 5.2.20.** - **EXHIBIT P19 A TRUE COPY OF THE MEMORANDUM F.NO.PD15001/58/2019-COFEPOSA ISSUED BY THE DEPUTY SECRETARY TO THE FIRST RESPONDENT DATED 4.2.20.** **EXHIBIT P20 A TRUE COPY OF THE MEMORANDUM NO.PD15001/59/2019-COFEPOSA ISSUED BY THE DEPUTY SECRETARY TO THE FIRST RESPONDENT DATED** W.P.(Crl.)No.56.2020 15 ## **6.2.2020.** ## **RESPONDENTS' EXHIBITS** **EXHIBIT R1(a) TRUE COPY OF THE RECEIPT DATED 12/10/2019 OF THE SUPERINTENDENT CENTRAL PERSON THIRUVANANTHAPURAM.** ## **TKS**