Saleena v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 24TH DAY OF OCTOBER 2013/2ND KARTHIKA, 1935** ## **WP(Crl.).No. 406 of 2013 (S)** **-----------------------------** ## **PETITIONER(S):** **--------------------------** **SALEENA** **W/O ABDU RAHIMAN@ ATHEEQ, KARUMBARA, KUNDATHIL HOUSE P.O, AVILORA, KODUVALLY KOZHIKODE DISTRICT, 673572** **BY ADVS.SRI.SHAJIN S.HAMEED SRI.BIJU VARGHESE ABRAHAM** **RESPONDENT(S):** - **----------------------------** ## **1. UNION OF INDIA** - **REPRESENTED BY THE SECRETARY TO THE MINISTRY OF FINANCE JANAPATH BHAWAN, JANAPATH, NEW DELHI 110001** **2. JOINT SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE CENTRAL ECONOMIC INTELLIGENCE BUREAU, COFEPSOA UNIT 6TH FLOOR, B WING, JANAPATH BHAVAN JANAPATH, NEW DELHI 110001** **3. DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE CERNTRAL ECONOMOC INTELLIGENCE BUREAU, 6TH FLOOR B WING, JANAPATH BHAVAN, JANAPATH NEW DELHI 110001** **4. THE DEPUTY DIRECTOR OF ENFORCEMENT, SUB- ZONAL OFFICE, ENFORCEMENT DIRECTORATE, 5/2145 WAFA BHAWAN, MAVOOR RAOD, CALICUT 673004** **5. THE SUPERINTENDENT OF PRISON, CENTRAL PRISON, POOJAPPURA THIRUVANANTHAPURAM KERALA 695012** **R1-R4 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R BY ADV. SRI. K.I. ABDUL RASHEED - ADDL.DIRECTOR GENERAL OF** **PROSECUTION** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 24-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(Crl.).No. 406 of 2013 (S)** ## **-----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXHIBIT P1 PHOTOCOPY OF THE ORDER NO F. NO 673/21/2012 CUS VIII DATED 08-02-2013 ALONG WITH THE LIST OF DOCUMENTS RELIED UPON BY THE 2ND RESPONDENT** **EXHIBIT P2 PHOTOCOPY OF THE GROUNDS OF DETENTION IN F. NO 673/21/2012 CUS VIII DATED 08-02-2013 ALONG WITH THE LIST OF DOCUMENTS RELIED UPON BY THE 2ND RESPONDENT** **EXHIBIT P3 PHOTOCOPY OF THE REPRESENTATION DATED 11-04-2013 SUBMITTED BY THE DETENUE** **EXHIBIT P4 PHOTOCOPY OF THE MEMORANDUM DATED 29-04-2013 ISSUED BY THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA EXHIBIT P4(A) PHOTOCOPY OF THE MALAYALAM TRANSLATION OF EXT P4** **EXHIBIT P5 PHOTOCOPY OF THE MEMORANDUM DATED 23-04-2013 ISSUED BY THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA** **EXHIBIT P6 PHOTOCOPY OF THE ORDER F. NO NO 673/21/2012 CUS VIII DATED 21-05-2013 OF THE 3RD RESPONDENT** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **EXT.R1(a): COPY OF ORDER F.NO.673/21/2012 CUS VIII DATED 21.05.2013 ISSUED BY THE DEPUTY SECRETARY, CENTRAL ECONOMIC INTELLIGENCE BUREAU.** **EXT.R1(b): COPY OF THE CHRONOLOGICAL EVENT IN THE MATTER OF DETENTION OF SHRI ABDU RAHIMAN@ATHEEQ, UNDER THE CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT.** **EXT.R4(a): COPY OF THE CHRONOLOGICAL EVENT IN THE MATTER OF DETENTION OF SHRI ABDU RAHIMAN@ ATHEEQ, UNDER THE CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT.** _TRUE COPY_ _PA TO JUDGE._ _acd_ **ANTONY DOMINIC & P.D. RAJAN, JJ.** ------------------------------------------W.P.(Crl)No.406 of 2013 ---------------------------------------------Dated this the 24[th] day of October, 2013 ## **JUDGMENT** ## **ANTONY DOMINIC,J.** The petitioner is the wife of one Abdu Rahiman @ Atheeq. (hereinafter referred to as the detenu for short). 2. Ext.P1 is an order issued under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the 'COFEPOSA' for short). That order is dated 8.2.2013. The order was executed on 25.2.2013 by arresting and detaining the detenu. He was thereupon served Ext.P1 order along with Ext.P2, the grounds of detention. Ext.P3 is a representation made by the detenu from the Central Prison, Thiruvananthapuram. That representation is dated 11.4.2013. That was received by the Government of India on 18.4.2013 and the Special Secretary and Director General, Central Economic Intelligence Bureau, Ministry of Finance, Department of Revenue considered the representation and W.P.(Crl)No.406/13 2 rejected the same by his order dated 26.4.2013. 3. Thereafter, Under Secretary to the Government of India issued Ext.P4 memorandum dated 29.4.2013, which reads thus: “With reference to his representation dated 11.04.2013 (in regional language) received through the Jail Superintendent, Central Prison, Thiruvananthapuram on 18.04.2013 in the Ministry, Shri Abdu Rahiman @ Atheeq, a COFEPOSA detenu is hereby informed that the aforesaid representation has been carefully 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, but it is regretted that the same has been rejected.” 4. Ext.P5 is another communication issued by the Under Secretary to the Government of India informing the detenu that a reference under Section 8(b) of the COFEPOSA was made to the Advisory Board on 25.3.2013 and that the detenu will be heard by the Board on 4.5.2013 at the venue specified therein. Accordingly, the detenue was heard and was, thereafter, issued Ext.P6 order dated 21.5.2013 informing him that the Board was of the opinion that there is sufficient cause for his detention and that the Central Government thereby confirmed the order. It was further directed that the detenu be detained for a period of one year from 25.2.2013. It is thereafter that this writ petition has filed by his wife seeking to quash order of detention and to issue a writ of 3 W.P.(Crl)No.406/13 Habeas Corpus to set the detenu at liberty. 5. We heard the learned counsel for the petitioner and also the learned standing counsel appearing for the respondents. 6. First contention raised by the learned counsel for the petitioner was that there was inordinate and unexplained delay in passing Ext.P1 order of detention. According to the learned counsel, the offence which led to the detention was detected on 21.5.2012, but, however, the detention order was passed only on 8.2.2013. The learned counsel contended that the long interval resulted in snapping of a live link between the offence and the purpose of preventive detention, rendering the order of detention illegal and unconstitutional. However, in Ext.P2, the grounds of detention, the detaining authority considered this aspect and stated thus: “21. Considering the magnitude of the operation, the chronological sequence of events, the well organised manner in which such prejudicial activities have been carried on, the nature and gravity of the offence, the consequential extent of investigation involved including scanning/examination of papers, translation, formulation of grounds, collection and verification of the material relied upon from various sources for a judicious application of mind and arriving at subjective satisfaction, I am satisfied that the nexus between the date of incident and passing of this detention order as well as object of your detention has been well maintained.” 7. Along with the counter affidavit filed by the 4 W.P.(Crl)No.406/13 respondents 1 to 3, they have also produced Ext.R1(b), a detailed chronological list of events. In our view, the aforesaid averments in Ext.P1 and the details furnished in Ext.R1(b) would amply explain and demonstrate that there has not been any culpable unexplained delay and in our view, even if there is any delay, that has been satisfactorily explained. 8. The second contention raised by the learned counsel was that the report submitted by the sponsoring authority was not served on the detenu and that as a result, the detenu was prejudicially affected in the exercise of his right to make representation as provided in Article 22(5) of the Constitution of India. 9. We have considered this submission. If as stated due to non-supply of the report of the sponsoring authority, the detenu was actually prejudiced in his right to make representation against the detention order and the earliest opportunity that he had to raise a complaint was when he made Ext.P3 representation. Reading of Ext.P3 representation shows that every conceivable ground available to the detenu has been taken in that representation. That apart, the language of the representation would also show that this has been drafted with professional assistance. In this W.P.(Crl)No.406/13 5 representation, the detenu has not raised such a complaint and therefore, we are not persuaded to think that it is open to the detenu to rake up this grievance at this distance of time. 10. The third contention raised by the learned counsel was that there was delay in considering Ext.P3 representation. Ext.P3 representation is dated 11.4.2013. Ext.P4 memorandum shows that this was received by the Government of India through the Superintendent of the Jail on 18.4.2013. That was considered by the competent authority and rejected by order dated 26.4.2013. Since 27.4.2013 and 28.4.2013 were Saturday and Sunday, Ext.P4 memorandum was issued on 29.4.2013. These facts would bely the contention of the learned counsel that there was delay in considering the representation. 11. Yet another contention raised by the learned counsel for the petitioner was that translated copy of the order of the detention was not served on the detenu. The learned counsel also made reference to the various statements in Ext.P3 representation, where the detenu has raised his grievance on this aspect of the matter. 12. It is true that translated copy of Ext.P1 order of detention was not served on the detenu. But the argument of 6 W.P.(Crl)No.406/13 the learned counsel for the respondents was that the detention will not be rendered illegal, even if there is substance in what is contended. She took us through the contents of Ext.P1 order, which, as rightly contended by her, is only a reiteration of Section 3(1) of the Act and it further provides that the detenu be detained and kept in custody in the Central Prison. 13. The question is whether non-service of such an order would render the order of detention unconstitutional. As pointed by the respondents, this question is covered by the principles laid down by the Apex Court in _**Devji Vallabhabhai**_ _**Tandel**_ v. _**The Administrator of Goa, Daman and Diu and another**_ [AIR 1982 SC 1029], where it has been held thus: “8. xxx xxx xxx So far as the non supply of the Gujarati version of the ORDER as per Annexure 'A' is concerned, in our opinion, there has been no violation of Art.22(5) or any other law. The ORDER as per Annexure 'A' was a mere formal recital of S.3 (1) of the COFEPOSA, showing the provision of law under which the order of detention has been made. Although, the section of the COFEPOSA has not been mentioned in the last but two paragraphs of the “grounds”, it has been stated that the detenu engaged himself “in smuggling goods and that there is sufficient cause to pass detention order against you with a view to preventing you from smuggling goods”, which was in Gujarati. It cannot, therefore, be said that the detenu was in any way handicapped in submitting his representation, or there has been any violation of Art.22 (5) of the Constitution.” 14. The last contention raised by the learned counsel for the petitioner was that the detenu was not served the order W.P.(Crl)No.406/13 7 rejecting Ext.P3 representation made by him. According to the learned counsel for the petitioner, Ext.P3 representation was considered by the Central Government and the only communication issued to the petitioner is Ext.P4, a memorandum issued by the Under Secretary to the Government informing him that his representation is rejected. The learned counsel then contended that this order did not contain the grounds on which the representation was rejected nor did it reflect the nature of consideration that his representation is received. The learned counsel in this context also placed reliance on the judgment of this Court in _**Lekha Nandakumar**_ v. _**Government of India**_ [2004(2) KLT 1094]. 15. On the other hand, the learned counsel for the respondents contended that since the detenu had already been informed that his representation is rejected, such a communication would satisfy the requirements of law. The learned counsel also place reliance on the Apex Court decision in _**A.C. Razia**_ v. _**Government of Kerala**_ [AIR 2004 SC 2504] and this Court in _**Saliyal Beevi and others**_ v. _**State of Kerala and others**_ [2011 (4) KHC 422]. 16. We have considered the submissions made. Admittedly, Ext.P3 representation made by the detenu was 8 W.P.(Crl)No.406/13 considered by the Special Secretary and Director General, Central Economic Intelligence Bureau, Ministry of Finance. It is that authority, which, even according to the respondents, passed the order dated 26.4.2013 rejecting the representation. Even the respondents have no case that any communication except Ext.P4 by the Under Secretary has been issued to the detenu, informing of the decision taken on Ext.P3 made by him. This is clear from the averments in paragraph 19 of the counter affidavit filed by respondents 1 to 3, where it has been stated thus: “19...... However, the same was considered by the Special Secretary & Director General, Central Economic Intelligence Bureau, Department of Revenue Ministry of Finance and the decision on the representation had been communicated to the detenu through the Superintendent of Central Prison, Thiruvananthapuram by the Under Secretary. Thus, the contention that the detaining authority did not serve the order rejecting the representation and that the authorities have not applied mind and there is no proper disposal of the representation etc. are without any merit. The rejection of the representation was after considering all the averments therein. Further, within a few days after the rejection of the Exhibit P3 representation, the Central Advisory Board meeting was held at Thiruvananthapuram where the detenu and his counsel was heard.” 17. In our view, non-service of an order passed by the competent authority rejecting a representation made by a detenu in a preventive detention case is unconstitutional and that issue has already been considered and has been decided in favour of the petitioner in _**Lekha Nandakumar's case** (supra)_ W.P.(Crl)No.406/13 9 ## where it has been held thus: “5. Ext.P5 representation was made to the Central Government and it was addressed to the Secretary to Government of India ad directed in the detention order. It is a very detailed representation. That was also rejected and it was informed by Ext.P6, dated 28.5.2004, dispatched on 31.5.2004, as follows: 'With reference to the representation dated 4.5.2004 made by Shri. B. Nandakumar, a COFEPOSA detenu, he is hereby informed that the aforesaid representation has been carefully considered by the Joint Secretary, Central Economic Intelligence Bureau, Deptt. of Revenue, Ministry of Finance, New Delhi being the Detaining Authority but it is regretted that the same has been rejected. Sd/- (N. RAJAGOPALAN) Under Secretary to the Government of India' This shows that the representation addressed to the Secretary was considered only by the Joint Secretary, that the representation was disposed of after more than three weeks and was not disposed of applying mind by the competent authority. Delay of 16 days was held to be unexplained by the Apex Court in Pabitra N. Rana v. Union of India, AIR 1980 SC 798, and in Khaidem Ibocha Singh v. State of Manipur, AIR 1972 SC 438. It is pointed out by the learned Central Government Standing Counsel that another communication was also sent to him on 31.5.2003 by the Under Secretary informing that Secretary has disposed of the representation. The learned Senior Standing Counsel has also handed over the file. It shows that on receipt of the representation the Under Secretary has prepared a note. Behind the note, the Secretary has made an endorsement as follows: “I have gone through the representation and all relevant papers. The representation does not merit acceptance.” Even though various contentions including non-supply of necessary documents etc. were mentioned in the representation, there is no application of mind by the Secretary to Government. The Secretary has just rejected the representation. It does not show that he has applied his mind. When the Authority disposes a representation, which is a constitutional right of the detenu, it cannot be disposed of like this in a casual manner. Further, the Secretary has not communicated his order to the detenu, but only the Under Secretary has communicated the order. It is true that even W.P.(Crl)No.406/13 10 though making of representation is a constitutional right, there is no obligation for the Central Government to grant a hearing. It is also not necessary that an elaborate speaking order should be passed. But from the order it should appear that the authority has applied its mind while disposing of the representation. The order should be sent to the detenu. Here the order passed by the Secretary was not sent to the detenu, but only the factum of rejection of his representation was intimated by the Under Secretary keeping the detenu in dark regarding the way in which his representation was disposed of. There is nothing on record to show that the concerned authority has applied its mind. Even if the the Under Secretary informed him that Secretary has disposed of his representation, this is not the way a constitutional obligation is to be discharged by the Government Secretary. Therefore, there is no proper disposal of the representation. We are of view that on this ground alone the detention order will not stand as there is procedural violation.” 18. Insofar as the judgments that are relied on by learned counsel for the respondents is concerned, in _**A.C. Razia's case (supra)**_ the Apex Court has laid down the principles governing the consideration that a representation made by a detenu should receive and also dealt with the validity of the order passed without translated copies of the documents that were relied on by the authority concerned. In other words, in this judgment the Apex Court did not consider the legality of a detention order, where, the order rejecting the representation made by the detenu was not communicated to the detenu. 19. Insofar as the judgment in _**Saliyal Beevi's case (supra)**_ [2011 (4) KHC 422] is concerned, the sentence that is relied on by the learned counsel for the respondents reads W.P.(Crl)No.406/13 11 thus: “...... The plea that the order rejecting the representation was not issued by the authority which made it and has not been explicit in independent grounds and that they do not reflect subjective consideration of the grounds of objections raised by the detenues, do not stand.” 20. Reading of the above sentences would show that the issue that was dealt with by a Division Bench of this Court was the plea that the order rejecting the representation was not issued by the authority which made it. Such an issue is absolutely incomparable to the issue that is raised before us. 21. Counsel for the Union of India, placed reliance on judgments of the Apex Court in [AIR 1974 SC 2154] where, in paragraph 26, it was held thus: “26. The opinion of the Board as well as the order of the Government rejecting the representation of the detenu must be after proper consideration. There need not be a speaking order. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be a real and proper consideration by the Government and the Advisory Board.” 22.She also placed reliance on paragraph 19 of the judgment of the Apex Court in **K.M. Abdulla Kunhi and B.L. Abdul Khader** v. **Union of India and others** [AIR 1991 SC 574] which reads thus: W.P.(Crl)No.406/13 12 “19. 'There is no constitutional mandate under Cl, (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of' independent consideration is the obvious result if the representation is not considered before the confirmation of detention. Indeed, there is no justification for imposing this restriction on, the power of the Government.As observed earlier, the Government's consideration of the representation is for a different purpose, namely, to find out whether the detention is in conformity with the power under the statute. This has been explained in Haradhan Saha case, AIR 1974 SC 2154, where Ray, C. J., speaking for the Constitution Bench observed that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking order in disposing such representation. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government.” According to the counsel, the Government of India does not have an obligation to pass a speaking order while rejecting a representation made by the detenu and that its liability to communicate the order stands discharged by Ext.P4 communication issued by the Under Secretary to the Government. We are unable to agree. Both the judgments relied by the counsel for the Government of India only deal with the manner in which the representation made by a detenu should be dealt with and in these judgments, the Apex Court did not deal with the right of the detenu to be communicated the decision on his representation or the consequence of 13 W.P.(Crl)No.406/13 failure to communicate such decision. Therefore, these judgments do not, in any manner, improve the case of the Government of India. 23. As we have already stated, a detenu, who makes a representation availing of his constitutional rights under Article 22(5) of the Constitution of India is entitled to have proper consideration of his representation and that process of consideration is completed, only when a decision on his representation is also communicated to him. That constitutional requirement will not be satisfied if an authority subordinate to the competent authority informs the detenu that his representation is rejected. Admittedly, in this case, the decision of the competent authority was not communicated to the detenu and on the other hand, the only communication that was issued to the detenu is that of the Under secretary to the Government of India, where, it was laconically stated that his representation is rejected. In our view, this is a case where the right of the detenu under Article 22(5) of the Constitution of India is violated and the issue canvassed by the petitioner is fully covered in her favour by the principles laid down by the Division Bench of this Court in _**Lekha**_ **Nandakumar's case** ( _supra_ ). W.P.(Crl)No.406/13 14 In the light of the above, the only course open to this Court is to set aside Ext.P1 order of detention. Accordingly, Ext.P1 order of detention passed against the detenu, Abdu Rahiman @ Atheeq will stand quashed. The 5[th] respondent is directed to set the detenu at liberty forthwith unless he is required to be detained in some other case. **ANTONY DOMINIC, JUDGE** **P.D. RAJAN, JUDGE** acd W.P.(Crl)No.406/13 15