Abdul Vakkil vs The Union of India

David Annoussamy, J.—This is a petition under Article 226 of the Constitution of India by the detenu for the issuance of a writ of habeas

corpus quashing the order of detention passed against him and setting him at liberty.

The petitioner along with three others was intercepted on 22nd August, 1986 at the Madras Airport before they could board the aircraft to

Singapore. After search, the customs authorities found foreign currencies, namely, U.S. Dollars hidden in their rectum. A criminal case was

instituted against them. The petitioner pleaded guilty and he was accordingly convicted and sentenced to pay a fine of Rs. 1,000, in default to suffer

rigorous imprisonment for three weeks on 8th December, 1987.

Parallel steps were taken by the Customs authorities to have the petitioner detained under the COFEPOSA Act. An order of detention was

passed against him on 25th March, 1987. He is actually detained from 14th April, 1987. The order of detention was passed by the Joint Secretary

to the Government of India under S. 3(1) of the COFEPOSA Act with a view to preventing the petitioner from smuggling goods. The ground for

such detention is the fact that he was found in possession of foreign currencies inside his body while he was about to board an aircraft in a foreign

country, namely Singapore.

The learned counsel for the petitioner raised in this case three contentions-(1) There is unexplained delay in considering the representation of the

detenu; (2) There is no application of mind in as much as the entire grounds of detention would speak of the petitioner''s attempt to take foreign

currencies out of India whereas the concluding paragraph of the grounds of detention would disclose that the detaining authority was satisfied that

the petitioner was attempting to bring foreign goods into India. (3) Many documents relied upon by the detaining authority and referred to by the

detaining authority in the grounds of detention were not available to the detaining authority, nor were they furnished to the detenu along with the

grounds of detention.

We shall first consider the first point. The case of the petitioner detenu is that his representation is dated 22nd April, 1987 and that it was

ultimately rejected only on 20th May, 1987, i.e., after about one month. He would contend that the representation has to be considered with

utmost celerity and promptitude and the fact that it was not done so constituted an infringement of the right of the petitioner as a citizen guaranteed

under Article 22(5) of the Constitution.

Learned counsel for the petitioner brought to our notice the decision of a Division Bench of this Court in Vinoo v. State of Tamil Nadu 1987

L.W. Cri. 245, in which, after quoting the decision of the Supreme Court in Harish Pahwa Vs. State of U. P. and Others, and Raj Kishore Prasad

Vs. State of Bihar and Others, , the Bench of this Court held that when there is no active and continuous consideration of the representation of the

detenu, the order would be vitiated. In fact, an order of detention is passed against a citizen before he has been given any opportunity to show

cause against such an order. But a very important and useful right of representation is given to him under Article 22(5) of the Constitution, If that

representation contained any reason which would prompt the detaining authority to rescind the order, it will not be proper to keep the order in life,

because such an order would be without any justification. That is why it is imperative on the part of the detaining authority to consider the

representation of the detenu with utmost promptitude and this has been again and again repeated by the Supreme Court on several occasions. In

the present case, in reply to the ground challenging the order of detention for the absence of quick consideration of the representation, the detaining

authority in his counter affidavit has stated as follows:

With regard to averments in para 7 of the affidavit, it is submitted that his representation dated 22nd April, 1987 and not 20th April, 1987 was

received in the COFEPOSA UNIT on 28th April, 1987 and the same was forwarded to Custom House, Madras, under cover of this Ministry''s

letter No. F.686/150/87-Cist VIII dt. 29th April, 1987. The parawise comments were forwarded by the Madras Custom House letter No.

CPSA/NSA/36/87 dt. 15th May, 1987 which was received in the Ministry on 18th May, 1987 and the said representation was put up to Central

Government for consideration, on 19th May, 1987. The Central Government considered and rejected the said representation on 20th May, 1987.

The file was received back from the Ministry on 20th May, 1987 and the Memorandum of rejection was issued on 22nd May, 1987.

The learned counsel for the petitioner-detenu would point out that there is no explanation forthcoming for the non-consideration of the matter

between 19th April, 1987, the date on which the representation was forwarded to the Madras authorities and 15th May, 1987 the date on which

the Madras authorities sent their reply.

The learned counsel appearing for the Government of India drew our attention to a case decided by the Supreme Court in Prakash Chandra

Mehta v. Commissioner and Secretary, Govt, of Kerala and others 1985 Suppl. S.C.C. 144 , in which the Supreme Court has sounded a note of

caution and observed that in dealing with matters of detention while applying the constitutional safeguards strictly, courts should take a pragmatic

approach and use their commonsense. He also stated that in many cases, when the delay was explained and justified, the Supreme Court has

condoned the delay. After hearing the learned counsel for the Government we come clearly to the opinion that as far as the matter of delay is

concerned, there is no hard and fast rule regarding the number of days and that the decision would have to depend upon the facts and

circumstances of each case. But, the fact remains that the representation should receive at the end of the detaining authority a continuous attention

and while ascertaining whether such an attention was present, a pragmatic approach has necessarily to be adopted. In the present case, there is

delay of about 16 days regarding which no explanation whatsoever was given in the counter affidavit.

The learned counsel appearing for the Government of India would say that out of those 16 days, there were four or five holidays. This does not

make any change because such holidays would occur necessarily during such a period of time. He then pointed out that the file was on the table of

several officers in the hierarchy of the Customs department, and that therefore the delay is explainable. But he did not come forward in his counter

affidavit with a clear statement regarding the details of the moving of the file in the department. Therefore, it is clear that the delay of 16 days

remains unexplained and it has not been properly and satisfactorily shown to us that the representation of the detenu received continuous and active

consideration of the detaining authority. For that reason, the order of detention has become vitiated and has to be set aside. In view of the

conclusion arrived at in respect of this first point, the other two points raised by the learned counsel for the petitioner need not be gone into.

In the result, the petition is allowed, the order of detention is set aside, and it is ordered that the petitioner be set at liberty forthwith.