Somasundaram v Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 04TH DAY OF AUGUST 2020 / 13TH SRAVANA, 1942 WP(Crl.).No.126 OF 2020** ## **PETITIONER:** **SOMASUNDARAM AGED 71 YEARS S/O. R. DIVAKARA PANICKER, T.C 19/131-14, CHANDRA LEKHA SREE MANTHRA GARDEN, D. AMBEDKAR ROAD, THIRUMALA P.O, THIRUVANANTHAPURAM 695 036** **BY ADVS.** **SRI.B.RAMAN PILLAI (SR.) SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SHRI.MAHESH BHANU S. SRI.R.ANIL** ## **RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 6TH FLOOR, B WING, JANPATH BHAVAN, JANPATH, NEW DELHI 110 001 2 JOINT SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 6TH FLOOR, B WING, JANPATH BHAVAN, JANPATH, NEW DELHI 110 001** **W.P.(Crl).126/2020** 2 **3 DIRECTOR GENERAL, CENTRAL BOARD OF ECONOMIC INTELLIGENCE, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 6TH FLOOR, B WING, JANPATH BHAVAN, JANPATH, NEW DELHI 110 001** **4 THE JOINT DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE, COCHIN ZONAL UNIT, BUILDING NO. 32/64 A1, VYLOPPILLY ROAD, ST. THOMAS LANE, PALLINADA, ERNAKULAM, COCHIN 682 025** - **5 THE SUPERINTENDENT, CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM PIN 695 012** **6 THE COFEPOSA ADVISORY BOARD(DELETED), HIGH COURT OF KEERALA, REPRESENTED BY THE SECRETARY, (COFEPOSA) HIGH COURT BUILDING, ERNAKULAM 682 031** **(DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 07-07-2020 IN IA 01/2020** - **7 THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY, OFFICE OF THE COMMISSIONER OF POLICE, THYCAUD P.O, THIRUVANANTHAPURAM, PIN 695 014** **R1-3 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R4 BY SRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE R5, R7-GOVT.PLEADER SRI.K.A.ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(Crl).126/2020** 3 ## **JUDGMENT** _Ravikumar, J._ This Habeas Corpus Writ Petition is filed in relation to one Vishnu Somasundaram, who was preventively detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, 'COFEPOSA Act'), as per Ext.P1 order dated 27.09.2019. The said order was executed on 27.01.2020 and it was confirmed on 15.04.2020 as per Ext.P7 order. Earlier, the case of the detenu was forwarded for consideration of the Advisory Board and the Advisory Board gave its opinion on 26.3.2020. The confirmation order was passed on 15.4.2020 after the receipt of opinion of the Advisory Board. While the case of the alleged detenu was pending consideration before the Advisory Board, he moved Ext.P4 representation dated 26.2.2020 availing the right under Article 22(5) of the Constitution of India and admittedly, it was received by the Central Government on 02.03.2020. The same was disposed of only on 24.06.2020. It is narrating all the aforesaid factual circumstances and raising contentions founded on them that **W.P.(Crl).126/2020** 4 the writ petition has been filed challenging Ext.P1 order of detention and Ext.P7 order of its confirmation and also seeking issuance of a writ of habeas corpus commanding the respondents to cause production of the detenu Vishnu Somasundaram and to set him at liberty. 2. Heard the learned counsel for the petitioner, the learned Assistant Solicitor General appearing for respondents 1 to 3, Sri.S.Manu, the learned Central Government Counsel appearing for respondent No.4 and the learned Government Pleader. Earlier, as per order dated 7.7.2020 in I.A.No.1 of 2020, the sixth respondent was deleted from the array of parties. 3. The petitioner has raised various grounds to mount challenge against Exts.P1 and P7 orders. However, we propose to consider firstly one of the contentions, which if upheld would compel the release of the detenu forthwith. The ground which requires such consideration at the first instance is whether there occurred unexplained delay on the part of the Central Government in the matter **W.P.(Crl).126/2020** 5 of consideration of Ext.P4 representation submitted by the detenu under Article 22(5) of the Constitution of India. If delay had occurred and it was not properly explained, necessarily, in the light of the settled position of law, the detenu is entitled to be released and in which event, further consideration of the other grounds may not be necessary. Ergo, we will firstly consider the question whether there occurred delay in the matter of consideration of Ext.P4 representation and if so, whether it was properly explained. We have already taken note of the fact that Ext.P4 representation was submitted by the detenu on 26.2.2020. Admittedly, the same was received by the Central Government on 02.03.2020. On 03.03.2020, the comments of the sponsoring authority on the said representation was called for and the same was received on 12.03.2020. In the light of the decision of the Apex Court in **Ankit Ashok Jalan v. Union of India and ors** . reported in **AIR 2020 SC 1936,** the Central Government was bound to wait for the opinion of the Advisory Board on receipt of such a representation when the case of the detenu is pending before the **W.P.(Crl).126/2020** 6 Board and the representation could be disposed of only after the receipt of opinion of the Board. The report of the Advisory Board is dated 26.3.2020 and it was admittedly received by the Government on 27.3.2020. Ext.P4 representation was considered on 24.6.2020 and it was disposed of as per Ext.P9 only on 25.6.2020. The fact that Ext.P4 representation was received on 02.03.2020 is admitted in the counter affidavit filed by respondents 1 and 2. In the light of the decision in **Ankit Ashok Jalan** 's case (supra), the representation could not have been disposed of before the receipt of opinion of the Advisory Board. But then, the opinion of the Advisory Board was received on 26.3.2020 and even then, the representation was disposed of only on 25.6.2020. Thus, there occurred a delay of about three months, to be precise, one day short of three months in the matter of consideration of Ext.P4 since the receipt of the opinion of the Advisory Board. In such circumstances, the question is whether the said delay was properly explained? In that context, it is relevant to refer to paragraph 26 of the counter affidavit filed by respondents 1 and 2. The delay in **W.P.(Crl).126/2020** 7 the matter of disposal of Ext.P4 after its receipt on 2.3.2020 was explained thereunder thus:- “It is humbly submitted that the detenue (sic.detenu) also submitted a representation dated 26.02.2020 addressed to the Director General, CEIB. The said representation was received on 02.03.2020 and comments of the S.A. on the said representation sought on 03.03.2020 and the same were received on 12.03.2020. However, as per the judgment dated 04.03.2020 passed by Hon'ble Supreme Court in W.P.(Crl.) No.362 of 2019 in the matter of Ankit Ashok Jalan vs. UOI, the said representation was kept pending till the receipt of opinion of Advisory Board. Further, due to nationwide lockdown declared by the Government of India due COVID-19 pandemic, the Government offices were closed except to attend the essential services. Therefore, the said representation could be considered only on 24.06.2020 and after duly considering the representation the Director General, CEIB disposed it on 25.06.2020 and a communication to this effect was sent to the detenue on the same day. Hence, the alleged delay in considering the said representation was only due the application of the ratio of the Ankit Ashok Jalan case (supra) and also the extraordinary situation caused by spread of COVID 19 in the country. Hence, there is no delay which can be fatal to the detention order.” **W.P.(Crl).126/2020** 8 4. Thus, a scanning of the afore-extracted recital would reveal that three reasons have been assigned for the delay in considering the representation. According to respondents 1 and 2, on receipt of the representation on 2.3.2020, comments were called for from the Sponsoring Authority on 3.3.2020 and the same was received on 12.3.2020. Even then, in the light of the dictum laid down by the Apex Court in **Ankit Ashok Jalan** 's case (supra), the contention that the said representation could not have been disposed of before receipt of the opinion of the Advisory Board by the Central Government has only to be accepted. But then, the opinion of the Board was received on 26.3.2020. In such circumstances, the delay from 27.3.2020 till 24.6.2020 is exponible by the Central Government. The second limb of the afore-extracted portion from paragraph 26 of the counter affidavit is the explanation forthcoming in this regard. Extra ordinary situation caused by spread of COVID-19 in the country is the reason assigned for the said delay. At the first blush, it appears to be apt and acceptable. However, its close scrutiny, taking into account other **W.P.(Crl).126/2020** 9 indisputable crucial circumstances and materials would reveal its hollowness and untenability. In paragraph 35 of the counter affidavit filed by respondents 1 and 2, it is stated thus:- “.........And after taking into consideration all the material facts pleadings made by the detenue, the Advisory Board opined in its report dated 26.3.2020 that there exists sufficient cause for detaining the detenue in pursuance to the Detention Order dated 27.9.2019 and based on the opinion and other material facts, the Detention Order was confirmed by the Central Government vide Order dated 15.4.2020.” The recital therein would reveal that within 20 days from the receipt of the opinion of the Advisory Board, the Central Government confirmed Ext.P1 order of detention based on the opinion of the Advisory Board and other material facts as per order dated 15.4.2020 viz., Ext.P7. If after considering the Advisory Board's opinion and other material facts order of detention can be confirmed amidst the pandemic situation, how can the respondents be permitted to assign the situation created by COVID-19 as the reason for the delay in considering the representation. At least on 15.4.2020 or at least within **W.P.(Crl).126/2020** 10 a reasonable period since the receipt of the opinion on 27.3.2020, the representation under Article 22(5) of the Constitution of India against the order of detention should have been considered and disposed of. True that in the light of the decision in **K.M.Abdullah Kunhi & B.L.Abdul Khader v. Union of India and others** reported in **AIR 1991 SC 574,** non-consideration of the representation on the day on which the order of detention was confirmed by itself will not and cannot invalidate the order of detention. At the same time, none can dispute the position that unexplained long delay in the matter of consideration of representation under Article 22(5) of the Constitution of India must entail immediate release of the detenu concerned. 5. A delay of about three months, since the the receipt of opinion of the Advisory Board, in the matter of consideration of a representation under Article 22(5) of the Constitution of India cannot be taken lightly, in the absence of acceptable explanation for the delay. It is also relevant to note that for disposal of such a representation, no hearing is to be conducted. What was required was only application **W.P.(Crl).126/2020** 11 of mind while passing orders thereon. Taking three months time for passing such orders in a case where a person is preventively detained cannot be accepted at all. We have already held reasoning in the counter affidavit as unacceptable. The upshot of the discussions is that the delay of about three months occurred after the receipt of opinion of the Advisory Board for passing orders on Ext.P4 violates the right available under Article 22(5) of the Constitution of India and hence, it must entail the immediate release of the detenu. The learned counsel for the petitioner submitted that since Ext.P1 order could be challenged on other grounds also, the right to raise such challenge against Ext.P1, in case it has become necessary at later point of time, may be reserved. The fourth respondent raised no objection with respect to the said submission. In such circumstances, the said liberty is reserved with the detenu. In the result, this Writ Petition (Crl.) is disposed of with a direction to the respondents to set Sri.Vishnu Somasundaram at liberty forthwith, in case his custody is not required in connection with any **W.P.(Crl).126/2020** 12 other case. Registry is directed to send the gist of this judgment forthwith to the Central Prison, Poojappura. **Sd/C.T.RAVIKUMAR JUDGE Sd/K.HARIPAL JUDGE** **W.P.(Crl).126/2020** 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE ORDER OF THE JOINT SECRETARY TO GOVERNMENT OF INDIA, UNDER SECTION 3(1) OF CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT.** - **EXHIBIT P2 THE TRUE COPY OF THE GROUNDS OF DETENTION, DATED 27-09-2019.** - **EXHIBIT P3 THE TRUE COPY OF THE LIST OF RELIED UPON DOCUMENTS** - **EXHIBIT P4 THE TRUE COPY OF THE REPRESENTATION TO THE CENTRAL GOVERNMENT.** - **EXHIBIT P5 THE TRUE COPY OF THE REPRESENTATION TO THE DETAINING AUTHORITY.** - **EXHIBIT P6 THE TRUE COPY OF THE DETENU'S REPRESENTATION DATED 17-08-2019 TO THE FIRST RESPONDENT AND TO THE PRINCIPAL DIRECTOR GENERAL FOR DIRECTORATE OF REVENUE INTELLIGENCE, NEW DELHI** - **EXHIBIT P7 THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT CONFIRMING THE ORDER OF DETENTION AND FIXING THE PERIOD OF DETENTION** - **EXHIBIT P8 THE TRUE COPY OF THE MEMORANDUM DATED 13-3-2020 OF THE THIRD RESPONDENT.** - **EXHIBIT P9 THE TRUE COPY OF THE COMMUNICATION DATED 25/6/2020 OF THE DEPUTY SECRETARY TO GOVERNMENT OF INDIA** - **EXHIBIT P10 THE TRUE COPY OF THE NOTICE OF THE 5TH RESPONDENT DATED 17/7/2020** spc/