V.K. Anusree 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 BECHU KURIAN THOMAS** **TUESDAY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941 WP(Crl.).No.45 OF 2020** ## **PETITIONER:** **V.K.ANUSREE, AGED 32 YEARS W/O.PRAKASH THAMPI.P.L. (DETENU), R/O. TC 17/1206, SRA 104, SASTHA NAGAR, PANGODU, TRIVANDRUM-695 006. BY ADV. SRI.P.A.AUGUSTIAN** ## **RESPONDENTS:** **1 UNION OF INDIA, REPRESENTED BY DIRECTOR GENERAL, CENTRAL ECONOMIC INTELLIGENCE BUREAU, 6TH FLOOR, 'B' WING, JANPATH BHAWAN, JANPATH, NEW DELHI-110 001. 2 JOINT SECRETARY(COFEPOSA), GOVERNMENT OF INDIA, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, 6TH FLOOR, 'B' WING, JANPATH BHAWAN, JANPATH, NEW DELHI-110 001. 3 THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM-695 012. 4 SENIOR INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, COCHIN ZONAL UNIT, PALARIVATTOM, COCHIN-682 025. R1-2 BY ASGI SRI.P.VIJAYAKUMAR R3 BY ADDL.DIRECTOR GENERAL OF PROSECUTION R4 BY CGC SRI.S.MANU** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl.)No.45 of 2020 2 **“C.R.”** ## **JUDGMENT** ## **Ravikumar, J.** This habeas corpus writ petition _in re_ one Prakash Thampi.P.L. is filed by his wife Smt.V.K.Anusree seeking to set aside Ext.P1 order of detention dated 27.9.2019 and to set the detenu at liberty. 2. Heard the learned counsel for the petitioner, the learned ASGI Sri.P.Vijayakumar appearing for respondents 1 and 2, the learned Public Prosecutor appearing for the 3[rd] respondent and the learned CGC Sri.S.Manu appearing for the 4[th] respondent. 3. In view of the arguments advanced by the learned counsel for the petitioner relying on the decision of the Hon'ble Apex Court 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) we do not think it necessary to delve into the facts in detail or to deal with each and every contentions. However, we will refer to the basic facts as hereunder:- 4. Sri.Prakash Thampi.P.L., the husband of the petitioner was ordered to be detained under Section 3(1) of the Conservation of W.P.(Crl.)No.45 of 2020 3 Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for brevity 'COFEPOSA Act'). It would reveal that it was so ordered with a view to prevent him from smuggling goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future. Ext.P2 is the grounds of detention on which the order of detention is passed. Ext.P1 order was executed on 11.10.2019. Under Section 8(b) of the 'COFEPOSA Act' the case of the detenu was referred to the COFEPOSA Advisory Board, for its opinion. Pending its consideration the detenu filed Ext.P3 representation dated 1.11.2019 before the Central Government viz., 'the appropriate Government' under the said Act, Ext.P4 representation dated 1.11.2019 before the Detaining Authority and Ext.P5 representation dated 1.11.2019 before the Chairman of the Advisory Board. Taking note of the fact that prior to the receipt of Ext.P3 representation the case of the detenu was referred to the Advisory Board and was pending, the representation was not taken up for consideration by the Central Government. For the same reason the Detaining Authority also did not consider the representation. Subsequently, the Advisory Board gave its opinion to the effect that there are sufficient grounds for continued detention of Sri.Prakash Thampi.P.L. and thereupon, the Central Government, exercising the power conferred under Section 8(f) of the COFEPOSA Act W.P.(Crl.)No.45 of 2020 4 confirmed Ext.P1 order of detention and directed under Section 10 thereof that he be detained for a period of one year from the date of his detention i.e., from 11.10.2019, as per Ext.P7 dated 31.12.2019. It was only thereafter that the Detaining Authority took up Ext.P4 representation and rejected it as per Ext.P8 on 8.1.2020 i.e., after 68 days in filing of Ext.P4. In the said circumstances the petitioner took up the contention that though the appropriate Government was legally bound to comply with the decision of the Apex Court in **Golam Biswas** v. **Union of India and Another** reported in **(2015) 16 SCC 177** and to await the opinion of the Advisory Board there was no reason for the Detaining Authority for not taking up Ext.P4 for consideration awaiting the opinion of the Advisory Board and it ought to have considered the same within a reasonable time. At any rate, there was no justification in delaying the consideration of it by 68 days and rejecting the application on 8.1.2020. Now, the learned counsel for the petitioner contended that the petitioner is fortified in her contention that the order of detention is liable to be interfered by the decision in **Ankit Ashok Jalan's** case (supra). 5. The learned Central Government Counsel appearing for the 4[th] respondent submitted that the action on the part of the first and second respondents viz., respectively the 'appropriate Government' and W.P.(Crl.)No.45 of 2020 5 the 'Detaining Authority' in not considering Exts.P3 and P4, pending consideration of the case of the detenu by the Advisory Board cannot make Ext.P1 order invalid. To buttress the said contention the learned CGC relied on the decision of the Hon'ble Apex Court in **Golam Biswas'** case (supra) **.** The position that going by the dictum laid down in **Golam Biswas'** case, consideration of representation by the 'Central Government' pending consideration of the case of the detenu by the COFEPOSA Advisory Board would make the order of detention constitutionally invalid is not disputed by the petitioner. The indubitable position is that the law laid down on the aforesaid lines, in other words, that the Central Government which referred the case of the detenu concerned for opinion of the Advisory Board regarding the sufficiency or otherwise of the grounds of detention, must await its opinion which the Board has to give within the statutorily prescribed time limit, in **Golam Biswas'** case (supra) was virtually affirmed by the Apex Court in **Ankit Ashok Jalan's** case (supra). At the same time, it is to be noted that the Hon'ble Apex Court in **Ankit Ashok Jalan's** case (surpa) after considering its earlier decision in **Golam Biswas'** case held that the said decision is applicable only in a case where a representation is submitted before the appropriate Government and made it clear that there is no question of consideration of a representation received before W.P.(Crl.)No.45 of 2020 6 the case is referred to the Advisory Board, but where there may not be time to dispose of the same before referring the case to the Advisory Board as also a representation received after the case of the detenu is referred to the Advisory Board. In both the situations there is no question of consideration of the representation by the appropriate Government before the receipt of the report of the Advisory Board. Needless to say that in such circumstances consideration and the consequential rejection of the representation by the 'appropriate Government', pending consideration of the case of the detenu before the Advisory Board would make the order of the 'appropriate Government' constitutionally invalid. 6. A careful scanning of the decision of the Apex Court in **Ankit Ashok Jalan's** case (surpa) would reveal that the question as to whether a representation submitted before the Detaining Authority pending consideration of the case of the detenu before the Advisory Board would be considered by the Detaining Authority was the pointed question considered by the Apex Court. A scanning of the decision in **Ankit Ashok Jalan's** case (supra) would reveal that in that case, the representation from the detenues was received by the Detaining Authority on 27.11.2019 and the detenues had also submitted representations before the Central Government, the appropriate W.P.(Crl.)No.45 of 2020 7 Government under the COFEPOSA Act. The Central Government referred the case of the detenues to the Advisory Board on 5.12.2019 and on the ground of pendency of their case before the Advisory Board the representations received from the detenues were not taken up for consideration by the Central Government. Ultimately, the opinion of the Advisory Board was received on 6.1.2020 and thereafter on 14.1.2020 the Central Government confirmed the detention orders and rejected the representations. On the same day itself the Detaining Authority rejected the representations. Thus, it is obvious that in that case, as in the case on hand, the detenues submitted representation before the Central Government as also before the Detaining Authority and the action on the part of the Central Government in not taking up the representation submitted by the detenues therein till opinion of the Central Advisory Board is received was upheld. At the same time, the Apex Court formulated the following questions for consideration:- - “i) Whether the Detaining Authority was justified in deferring the consideration of the representation till the receipt of the opinion of the Central Advisory Board ? - ii) Whether the Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board ? W.P.(Crl.)No.45 of 2020 8 iii) If the answer to the second question is yes, whether the time taken by the Detaining Authority from 27.11.2019 till 14.01.2020 could be characterised as undue and avoidable delay violating the constitutional rights of the detenues ?” 7. In the context of the aforesaid questions posed for consideration the following paragraphs in the judgment of the Hon'ble Apex Court in **Ankit Ashok Jalan's** case (supra) assume relevance:- - “21. It must also be borne in mind that in all cases, the appropriate Government would be acting in two capacities; one while considering the representation and the other while taking appropriate decision after a report is received from the Advisory Board that there is sufficient cause for detention. Since the decision would be required to be taken in these two capacities, it was observed in **K.M. Abdulla Kunhi ((1991) 1 SCC 476)** that it would be proper for the appropriate Government to wait till the report is received from the Advisory Board in cases dealt with in paragraph 16 of the decision. But such may not be the case with the Detaining Authority who is a specially empowered officer. 22. A specially empowered officer who passes the order of detention, in exercise of special empowerment, has no statutory role to play at the stage when the report is received from the Advisory Board. The report is to be considered by the appropriate Government and not by the specially empowered officer. It may also be relevant at this stage to consider the element of confidentiality associated with the report of the Advisory Board. Section 8 of the COFEPOSA Act states:- - "8. Advisory Board.- For the purposes of subclause (a) of clause (4), and sub-clause (c) of clause (7) of article 22 of the Constitution,- - (a) The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards W.P.(Crl.)No.45 of 2020 9 each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub-clause (a) of clause (4) of article 22 of the Constitution; - (b) Save as otherwise provided in section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of article 22 of the Constitution; - (c) The Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary for the appropriate Government or from any person called for the purpose through the appropriate Government, or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned; - (d) When there is a difference of opinion among the members forming the Advisory Board the opinion of the majority of such members shall be deemed to be the opinion of the majority of such members shall be deemed to be the opinion of the Board; - (e) a person against whom an order of detention has been made under this Act shall not be W.P.(Crl.)No.45 of 2020 10 entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential; - (f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith." 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 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 W.P.(Crl.)No.45 of 2020 11 without waiting for the report of the Central Advisory ” Board. (underline supplied) From the afore-extracted paragraphs from the judgment in **Ankit Ashok Jalan's** case (supra) it is evident that the Apex Court held that the principle laid down by the Apex Court in paragraph 16 of the decision in **K.M.Abdulla Kunhi and B.L.Abdul Khader** v. **Union of** **India and others** reported in **(1991) 1 SCC 476** virtually to the effect that the appropriate Government should wait till the opinion of the Central Advisory Board is received, has to be understood in the light of the subsequent decision rendered by another Constitution Bench of the Apex Court in **Kamalesh Kumar** v. **Union of India and Others** reported in **(1995) 4 SCC 51** . Thus, it is evident that the Apex Court has laid down the law that despite the pendency of the case of the detenu before the Advisory Board, the Detaining Authority receiving a representation is bound to consider that representation independently and to pass orders thereon, within a reasonable time, without waiting for the report of the Advisory Board. Thus, in the light of the decision of the Apex Court in **Ankit Ashok Jalan's** case (supra) the position is that the Detaining Authority ought not to have waited for the report of the Advisory Board and it ought to have considered Ext.P4 W.P.(Crl.)No.45 of 2020 12 representation independently, within a reasonable time. 8. Now, we will consider the question whether the time taken by the Detaining Authority in considering Ext.P4 representation dated 1.11.2019 till 8.1.2020 could be described as undue and avoidable delay resulting in violation of the constitutional right of the detenu. While considering the said question it is only worthwhile to take note the question as to whether the fundamental right available to a person detained preventively, under Article 22(5) of the Constitution of India, takes in its disposal without avoidable delay ? Article 22(5) reads thus:- ## “ **22. Protection against arrest and detention in certain cases.-** …............................................. (5) 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.” ## In **Rama Dhondu Borade** v. **V.K.Saraf, Commissioner of Police** ## **and others (AIR 1989 SC 1861)** the Supreme Court observed thus:- “The detenu has an independent constitutional right to make his representation under Art.22(5) of the Constitution. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the W.P.(Crl.)No.45 of 2020 13 detention order clamped upon him and requesting for his release to consider the said representation within reasonable dispatch and to dispose of the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty. The use of the words 'as soon as may be' occurring in Art.22(5) of the Constitution reflect that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard.” ## 9. In **Ram Sukrya Mhatre** v. **R.D.Thyagi (AIR 1994 SC** **1134)** the Hon'ble Apex Court held that the right to representation under Article 22(5) of the Constitution includes the right to expeditious disposal not only by the State Government under the relevant provision of the statute, but also by the Central Government. Expedition is the rule and delay defeats mandate of Article 22(5). So the authority is obligated to explain the delay by either filing a counter affidavit by the officer concerned on behalf of the appropriate Government or by producing the record dealing with the case. 10. Now, we will revert to the question as to whether the delay occurred in the case on hand, mentioned hereinbefore, can be W.P.(Crl.)No.45 of 2020 14 described as undue and avoidable delay resulting in violation of the constitutional right of the detenu ? We have already noted that similar question was considered by the Hon'ble Apex Court in **Ankit Ashok Jalan's** case (supra) with reference to the time taken to dispose of the representation by the Detaining Authority in that case. The third question, extracted earlier, was formulated by the Apex Court in that regard. In paragraph 26 therein it was considered by the Apex Court thus:- “We now come to the 3rd question. The facts in the instant case indicate that the comments of the Sponsoring Authority in respect of the representation were already received by the Detaining Authority. After receipt of letter on 27.11.2019 that the detenues were received in custody, the time for considering the representation started ticking for the Detaining Authority. But the representation was considered only on 14.01.2020 and the reason for such delayed consideration is that the report of the Central Advisory Board was awaited. We have already found that the Detaining Authority was obliged to consider the representation without waiting for the opinion of the Central Advisory Board. Thus, there was no valid - explanation for non consideration of the representation from 27.11.2019 till 14.01.2020. We must, therefore, hold that complete inaction on part of the Detaining Authority in considering the representation caused prejudice to the detenues ” and violated their constitutional rights. (underline supplied) Thus, obviously, due to complete inaction on the part of the Detaining W.P.(Crl.)No.45 of 2020 15 Authority on the representation received pending consideration of the case of the detenues before the Central Advisory Board, it can only be held that the constitutional rights of the detenues were violated. In such circumstances, it was held that the continued detention of the detenues in terms of the detention order would be illegal, invalid and unconstitutional. The same situation is obtained in this case. In the light of the indisputable facts obtained from the counter affidavits filed in this case, it can be seen that pendency of the case of the detenu before the Advisory Board was the reason for the Detaining Authority to withhold consideration of the representation. Once the Advisory Board's opinion was obtained the Detaining Authority considered the representation and then rejected it and in between there occurred a delay of more that 60 days in consideration of the representation. It is to be noted that in **Ankit Ashok Jalan's** case (supra) the delay occurred in such consideration was only 47 days. Nonetheless, after laying down the law, as mentioned hereinbefore, the Apex Court allowed the writ petition, held the continued detention of the detenues concerned in terms of the detention orders challenged before the Apex Court, to be illegal, invalid and unconstitutional and thereupon quashed the detention orders. W.P.(Crl.)No.45 of 2020 16 11. In such circumstances, taking into account the time taken for consideration of Ext.P4 representation, it has to be held that the constitutional right of the detenu was violated and therefore, continued detention of the detenu in the light of Ext.P1 detention order and Ext.P7 order of confirmation would be illegal, invalid and unconstitutional and the writ petition is liable to be allowed and Exts.P1 and P7 orders are liable to be quashed. The learned counsel appearing for respondent Nos.1 and 2 contended that in such circumstances, though the detenu is entitled to be set at liberty forthwith the quashment of Exts.P1 and P7 orders is not required. We are afraid the said contention cannot be upheld. The decision in **Ankit Ashok Jalan's** case (supra) is binding on us in view of Article 141 of the Constitution of India. When identical circumstances arise in the case on hand we do not find any reason to refrain from quashing the said orders. Applying the law laid down by the Apex Court in **Ankit Ashok Jalan's** case (supra) it has to be held that the constitutional right of the detenu was violated and therefore, continued detention of the detenu in the light of Ext.P1 detention order would be 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 W.P.(Crl.)No.45 of 2020 17 which was confirmed by Ext.P7, to be illegal, invalid and unconstitutional and consequently, Ext.P1 detention order as also Ext.P7 order of confirmation are quashed. The detenu, Prakash Thampi.P.L shall be set at liberty forthwith unless his custody is required in connection with any other case. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **BECHU KURIAN THOMAS Judge** TKS W.P.(Crl.)No.45 of 2020 18 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF IMPUGNED ORDER PASSED UNDER SECTION 3(1) OF THE COFEPOSA AGAINST DETENU.** **EXHIBIT P2 TRUE COPIES OF GROUND OF DETENTION AND LIST OF DOCUMENTS.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 01.11.19 TO THE DIRECTOR GENERAL, CENTRAL ECONOMIC INTELLIGENCE BUREAU.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION BEFORE THE HON'BLE JOINT SECRETARY (COFEPOSA) DATED 01.11.2019.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 01.11.2019 TO THE ADVISORY BOARD.** **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 08.11.2019.** **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 31.12.2019.** **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 08.01.2020.** **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 09.01.2020.** TKS