Vs.
Email(Arising out of SLP (Crl.) No. 153 of 2003)
(From the Judgment and Order dated 29.11.2002 of the Kerala High Court in O.P. No.21952 of 2002(S))
(Arising out of SLP (Crl.) No. 153 of 2003)
(From the Judgment and Order dated 29.11.2002 of the Kerala High Court in O.P. No.21952 of 2002(S))
Sections 11, 3 – Constitution – Articles 22, 21, 226 – Representation of detenu – Right to make – If an integral part of Article 22(5) or merely a statutory safe guard – Powers under – If can be exercised casually. Held (Per majority) (Sinha, J. dissenting) that power cannot be exercised casually. Powers are wider. Right to make representation is a guaranteed right under Article 22(5). Case law discussed.
Whether the right to make a representation to the State or the Central government under section 11 becomes an integral part of Article 22(5) or it remains to be a statutory safeguard only is the aspect which merits discussion. (Para 13)
The principle is well settled that the government in exercise of the power under section 11 does not consider the question of sufficiency or adequacy of the grounds but it would only see whether the detention order is within the parameters of the power conferred under the statute. In other words, it will not review the case as if it is an original or appellate authority. That is why the power under section 11 has been described as supervisory in nature. This supervisory power cannot be equated to the subjective satisfaction of the detaining authority or the power of the Advisory Board to examine whether there is sufficient material for detention. The range of consideration by the Advisory Board is thus wider. (Para 21)
The proposition that the power conferred under section 11 is supervisory does not however mean that the exercise of power is purely discretionary or that the process of consideration could be casual and superficial. The government has a duty to consider the representation in proper perspective in order to see whether the order of detention is in conformity with law.
The opportunity afforded to the detenu to submit such representations thus becomes a part of the guaranteed right under Article 22(5). (Para 19)
Held (Per Sinha, J,)
The right to make a representation in terms of section 11 of the Act is a constitutional safeguard provided for under Article 22(5) of the Constitution of India. In terms of section 3(2) of the Act, the State government is required to submit a report whereupon the Central government is required to pass an order. The power of the Central government to pass an order of revocation of the order of detention on the basis of the representation made by a detenu or on his behalf, however, stands on a different footing. The jurisdiction of the Central government in the latter case is not as limited as in the former one wherein merely upon consideration of the report of the detaining authority or the State government, it is required to apply its mind for the purpose of taking a decision as to whether it is necessary to interfere with the order of detention by way of affirmation or modification thereof. (Para 28)
The documents on the basis whereof the detaining authority arrived at his subjective satisfaction must be supplied to the detenu as on the basis thereof opinion has been formed to the effect that the order of preventive detention is required to be passed against the detenu. The detaining authority is, thus, required to supply all documents as a part of the ground or pari passu with the ground. (Para 35)
If the documents so supplied are in a language which is unknown to the detenu, the correct translated copies thereof must be made available to him. Even the copies of the documents supplied must be legible and complete. (Para 36)
The formalities are not empty ones. (Para 37)
1. International Transport Roth GmbH v. Secretary of State for the Home Department (2002 (3) WLR 344) (Para 65)
2. McNobb v. US (318 US 332, 347: 87 L Ed. 819, 827) (Para 37)
S.B. SINHA, J.
27. The nature of power of the Central government while disposing of a representation made by a detenu or on his behalf is the question involved herein which arises out of a difference of opinion between two Hon’ble judges of this court.
28. The power of the Central government to revoke an order of detention is contained in section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as ‘the Act’, for the sake of brevity). Concededly, the right to make a representation in terms of section 11 of the Act is a constitutional safeguard provided for under Article 22(5) of the Constitution of India. In terms of the said provision, the Central government gets two opportunities to consider the question as to whether the order of detention passed under the Act is in accordance with law and consequently should be confirmed or revoked. In terms of section 3(2) of the Act, the State government is required to submit a report whereupon the Central government is required to pass an order. The power of the Central government to pass an order of revocation of the order of detention on the basis of the representation made by a detenu or on his behalf, however, stands on a different footing. The jurisdiction of the Central government in the latter case is not as limited as in the former one wherein merely upon consideration of the report of the detaining authority or the State government, it is required to apply its mind for the purpose of taking a decision as to whether it is necessary to interfere with the order of detention by way of affirmation or modification thereof.
The larger jurisdiction of the Central government must be exercised having regard to : (1) whether the order of detention has been legally passed; (2) whether the grounds of detention are adequate; and (3) whether in the facts and circumstances, the same was justifiable.
29. In other words, the consideration of the matter on the basis of a report made in terms of section 3(2) and on a representation made by a detenu or on his behalf, bears a fundamental difference. While exercising its jurisdiction under section 11(1)(b) of the Act, on a representation of the detenu, having regard to the fundamental right of a detenu under Article 22(5) of the Constitution of India, the probe must be deeper. The government is required to determine whether the order of detention is permissible under law or not; whereas at the first stage, the correctness of the order of detention per se would not fall for decision but only the legality or the duration thereof would.
30. It is beyond any cavil that the obligations of the State or the detaining authority in terms of clause (5) of Article 22 are : (1) to communicate to the detenu the grounds on which the order of detention has been made; (2) to afford the detenu the earliest opportunity of making a representation against the detention order.
31. Article 22 does not state that the representation is to be made before whom. Whether a representation can be made before one or the other authority including the detaining authority would depend upon the nature of the legislation whereby and whereunder, the order of detention has been passed. Whereas under one enactment it may not be permissible for the detenu to make a representation before the Central government, it may be so permissible under another.
32. Violation of the provisions of foreign exchange regulations necessitating passing of an order of detention under the Act has not only nationwide repercussion but also trans-national. The Central government has a great role to play in the matter although the order of detention may be passed by an authority of the State government specified therefor. The Central government in that view of the matter has to apply its mind independently. A distinction must be borne in mind that whereas the power of supervision is conferred on the Central government while passing an order on the basis of a report made under section 3(2) of the Act, its function under section 11(1)(b) while considering a representation is wider. While determining the merit or otherwise of such a representation no order of the State government or the Advisory Board or any other authority entitled to dispose of such representation made by a detenu to them may or may not be before it.
33. Having regard to the federal structure of our Constitution, the Central government exercises its supervisory power only while considering a report in terms of section 3(2) of the Act although the power of detention is concurrent. The expressions ‘at any time’ are significant in terms whereof the Central government can exercise its power at different times that is to say if and when an occasion arises therefor. The right of a detenu to make representation is a fundamental right under Article 22 of the Constitution; whereas the forums therefor are provided under the statute involved for issuing the order of detention.
34. A right of the detenu to make representation has to be construed in the light of the constitutional mandate that ordinarily no person can be detained without trial. This Court of India in several decisions categorically held that the detenus can make representations before the detaining authority and the Central government besides the Advisory Board and the said authorities are obligated to pass an effective order thereupon.
35. It is well-settled that the documents on the basis whereof the detaining authority arrived at his subjective satisfaction must be supplied to the detenu as on the basis thereof opinion has been formed to the effect that the order of preventive detention is required to be passed against the detenu. The detaining authority is, thus, required to supply all documents as a part of the ground or pari passu with the ground. The detenu, there cannot be any doubt whatsoever, has a right to demand copies of the documents which have not been supplied to him. Such documents can be sub-divided into two parts, namely (a) the documents which had been relied upon by the detaining authority as forming the basis of detention; and (b) additional documents which may be required by the detenu to show that such order of preventive detention was unwarranted.
36. If the documents so supplied are in a language which is unknown to the detenu, the correct translated copies thereof must be made available to him. Even the copies of the documents supplied must be legible and complete.
37. The formalities are not empty ones. ‘The history of liberty’, said Frankfurter, J. in McNobb v. US1 ‘has largely been the history of observance of procedural safeguards’. (See also Mohinuddin Alias Moin Master v. District Magistrate, Beed and Others2. All procedural safeguards provided to a detenu being constitutionally imperative must be scrupulously followed.
38. In Sat Pal v. State of Punjab and Others (supra), it is stated :
“9. Although it was earlier thought that section 14 of the Maintenance of Internal Security Act, 1971, which was in pari materia with section 11 of the Act, did not confer any right or privilege on the detenu, there is a general consensus of opinion that the power of revocation conferred on the Central government under section 11 of the Act is a supervisory power, and is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State government.
10. The power under section 11 (1) (b) may either be exercised on information received by the Central government from its own sources including that supplied by the State government under section 3 (2), or, from the detenu in the form of a petition or representation. It is for the Central government to decide whether or not, it should revoke the order of detention in a particular case. The use of the words “at any time” in section 11, gives the power of revocation an overriding effect on the power of detention under section 3. Ordinarily, the Central government would in a case like the present under the Act, like to await the report of the Advisory Board under section 8 (c), before taking any action under section 11 (1) (b) but the circumstances may differ, and there may be a case where the Central government finds that the order of detention passed under section 3 is mala fide or constitutes an abuse of power on the part of the State government or an officer of the State government specially empowered in that behalf, it may “at any time” revoke the order of detention. The detenu has therefore the right to approach the Central government by a representation for revocation of his order of detention under section 11 (1) (b) and when such a representation is made, the State government has the corresponding duty to forward it to the Central government for necessary action.”
39. It is not in dispute that in the instant case the grounds of detention served upon the detenu were based on certain documents; some of them being: (1) the statement of Shri Anodiyil Mammu purported to be made under section 108 of the Customs Act, 1962 (2) the statement of the detenu before the senior intelligence officer on 24.12.2000 (3) the statement of Shri Mujeeb V. @ Mujeeb Rahman purported to be made under section 108 of the Customs Act on 25.12.2000; (4) the statement of Shri Rafeeq K. yet made under section 108 of the Customs Act on 25.12.2000.
40. All those documents were in Malayalam script. The representation of the petitioner was also in Malayalam. The purported retraction of the confession made by the detenu in his bail application was also in Malayalam. Anodiyil Mammu also at a later stage claimed the ownership of foreign currency in his representation dated 15.1.2001 retracting from his earlier statement.
41. It is not in dispute that the authorities of the Central government empowered to deal with the representation of the detenu did not have any knowledge in Malayalam and no assistance had been obtained from any Malayalam knowing person.
42. In paragraph 18 of the order of detention not only the statements of the witnesses were relied upon but also the alleged confession of the detenu.
43. Such purported confession has been retracted in the bail application filed by the detenu which was also in Malayalam. It is not in dispute that the correct translated copies of such documents were not available before the authorities.
44. The question which arises for consideration is whether non-availability of the translated copies of the basic documents would vitiate the order of detention?
45. In Amir Shad Khan etc. v. L. Hmingliana and Others (supra), a three-judge bench of this Court while referring to the decision of this Court in Razia Umar Bakshi (Smt.) v. Union of India & Others1 and distinguishing Smt. Gracy v. State of Kerala and Another2 observed that a request made by the detenu to the State government to forward his representation to the Central government cannot be refused as such a right emanates from Article 22 (5) of the Constitution of India read with section 11 of the Act. The said decision is, therefore, an authority for the proposition that a right of making representation for revocation of the order of detention in terms of section 11 of the Act is a constitutional right under clause (5) of Article 22 of the Constitution of India.
46. The said decision has been affirmed by a constitution bench in Kamlesh Kumar Ishwardas Patel etc. etc. v. Union of India and Others (supra) stating:
“38. Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered : Where the detention order has been made under section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central government or the State government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State government and the Central government where the detention order has been made by an officer specially authorised by a State government and to the Central government where the detention order has been made by an officer specially empowered by the Central government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation.”
47. This Court in John Martin v. State of West Bengal1 observed :
“3. The first contention urged by Mr. R. K. Jain on behalf of the petitioner was that the representation of the petitioner ought to have been considered by an impartial tribunal constituted by the State government and it was not sufficient compliance with the requirement of Article 22, clause (5) that it should have been considered only by the State government. This contention was sought to be supported by reference to certain observations of Fazl Ali, J., and Mahajan, J., in A. K. Gopalan v. State of Madras ((1950) SCR 88). Now it is true that Fazl Ali, J. observed in this case that :
the right to make a representation which has been granted under the Constitution must carry with it the right to the representation being properly considered by an impartial person or persons . . . the constitution of an Advisory Board for the purpose of reporting whether a person should be detained for more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man should be detained for a single day,
and Mahajan, J. also said :
the right has been conferred to enable a detained person to prove his innocence and to secure justice, and no justice can be said to be secured unless the representation is considered by some impartial person . . . . it follows that no justice can be held secured to him unless an unbiased person considers the merits of his representation and gives his opinion on the guilt or innocence of the person detained. In my opinion the right cannot be defeated or made elusive by presuming that the detaining authority itself will consider the representation with an unbiased mind and will render justice. That would in a way make the prosecutor a judge in the case and such a procedure is repugnant to all notions of justice.
But we do not think that these observations made by two out of six learned judges can be regarded as laying down the law on the point. Since A. K. Gopalan’s case there has been a long catena of decisions of this Court where the view has consistently been taken that the representation of the detenu must be considered by the State government. Article 22, clause (5) provides inter alia that the authority making the order of detention shall afford the detenu the earliest opportunity of making a representation against the order of detention. It does not say as to which is the authority to which the representation shall be made or which authority shall consider it. But section 8, sub-section (1) of the Act lays down in the clearest terms which admit of no doubt that the opportunity which is to be afforded to the detenu is to make a representation against the order of detention to the appropriate government. Therefore, it is indisputable on a plain reading of section 8, sub-section (1) that the representation that may be made by the detenu is to the appropriate government and it is the appropriate government which has to consider the representation.”
It was observed :
“It may be pointed out that both the decisions in Jayanarayan Sukul’s case and Haradhan Saha’s case were decisions rendered by a bench of five judges. We must, therefore, hold that under section 8(1) of the Act, it is the appropriate government that is required to consider the representation of the detenu. This, however, does not mean that the appropriate government can reject the representation of the detenu in a casual or mechanical manner. The appropriate government must bring to bear on the consideration of the representation an unbiased mind. There should be, as pointed out by this Court in Haradhan Saha’s case, “a real and proper consideration” of the representation by the appropriate government. We cannot over-emphasise the need for the closest and most zealous scrutiny of the representation for the purpose of deciding whether the detention of the petitioner is justified.”
48. Yet again in Kundanbhai Dulabhai Shaikh etc. v. Distt. Magistrate, Ahmedabad and Others etc.1, this court held :
“13. Apart from the above, section 14 of the Act provides that order of detention may be revoked either by the State government or by the Central government. The Central government can revoke even those orders which have been made by the State government. The Act also provides that within seven days of the making of an order of detention, copy of the order as also the grounds on which the order was passed shall be sent to the Central government.”
49. It is, therefore, trite that all facts which are relevant for the purpose of giving relief to the detenu are required to be considered. In that view of the matter, the quality of an order passed by the Central government in terms of section 11(1)(b) of the Act cannot be different from that of the authority which had passed the order.
50. In Kamleshkumar Ishwardas Patel (supra), this Court held :
“7. The learned additional solicitor general has urged that the representation envisaged by Article 22(5) has to be made to the Advisory Board referred to in Article 22(4) since the only right that has been conferred on the person detained is to have the matter of his detention considered by the Advisory board. The learned additional solicitor general drew support from the words “making a representation against the order” in Article 22(5) for this submission and contended that the use of the word ‘a’ in singular indicates that only one representation is to be made and that representation has to be made to the Advisory Board because that is the only authority contemplated under the Constitution which is required to consider such representation. We are unable to give such a restricted meaning to the words “making a representation against the order” in Article 22(5) which is in the nature of a fundamental right affording protection to the person detained. As stated earlier, the object underlying the right to make a representation that is envisaged by Article 22(5) is to enable the person detained to obtain immediate relief. If the construction placed by the learned additional solicitor general is accepted relief may not be available to the detenu till the matter is considered by the Advisory Board and that would depend upon the time taken by the appropriate government in referring the matter to the Advisory Board. Moreover reference is required to be made to the Advisory Board only in cases where the period of detention is going to be longer than three months and it is not obligatory to make a reference to the Advisory Board if the period of detention is less than three months. In such a case the right to make a representation under clause (5) of Article 22 would be rendered nugatory. A construction which leads to such a result must be eschewed.”
51. In deducing the aforementioned principles, it is not necessary to expand the meaning of clause (5) of Article 22 of the Constitution of India but what is necessary is to grant the benefit to which a detenu is entitled to under the law. The statute confers power upon the statutory authorities to consider representations for the purpose of grant of relief and as such there cannot be any justification for placing any limitation thereupon. It, therefore, must be held that while exercising such a power the Central government must have before it the basic, primary and material documents which are necessary for the purpose of grant of relief to the detenu.
52. I may, however, hasten to add that the documents which are not material need not be considered. (See Abdul Sathar Ibrahim Manik etc. v. Union of India and Others1.
53. While considering a representation of the detenu, the Central government obtains para-wise comments of the sponsoring authority. The order of detention and the grounds in support thereof may not be sufficient to consider the issues raised in the representation. The Central government in its affidavit itself stated that if situation so warrants, the assistance of an official/person conversant with the language of the representation is obtained in order to get any point of doubt, if any, clarified vis-a-vis the plea raised in the representation.
54. The contention that the jurisdiction of an authority dealing with liberty of a citizen and the jurisdiction of an authority in administrative matter would be on the same footing may not be correct. Liberty of a citizen must be protected with deeper consideration than an administrative order. Any order passed without application of mind would be a nullity.
55. In my opinion, thus, the Central government must be possessed of correct translated copies of the basic documents at the time of disposal of a representation under the said Act.
56. How to ascertain as to whether the order of the Central government suffers from the vice of non-application of mind is the next question.
57. The order dated 25.7.2002 has been placed before us. The note-sheet shows that the representation of the petitioner was received on 13.7.2002. The para-wise comments were called for on 18.7.2002 which were received on 25.7.2002. The D.S., Shri Vijay K. Sharma on the same day prepared a note stating briefly the main points raised by the representationist stating :
“The main points raised by the representationist are as under :
that the detenu does not know English but the grounds of detention were not given to him in the language known to him i.e. Malayalam;
that the detenu was made to write statement dictated by the customs officials;
that at the relevant time the detenu was not in Trivandrum when Shri Anodiyil Mammu, the other co-accused was intercepted;
that the order dated 16.5.2002 of the Customs Department consisting of 19 pages was given to the detenu which was in English language; and
that the reasons for detention in the detention order and in the grounds of detention are different.”
58. Thereafter, the para-wise comments of the sponsoring authority were noted which are in the following terms :
“(i) The sponsoring authority have clarified that Malayalam translation of grounds of detention and all the documents generated by/from the Department as also other correspondence in connection with the case has been served on the detenu.
The detenu gave his statement in his own handwriting and in his own free will. Moreover, the sponsoring authority have further clarified that the statements of other co-accused corroborate the statement of the detenu. Further neither of the two employees of the detenu have retracted their statement.
The sponsoring authority have clarified that there is no relevance to the contention of the representationist that the detenu was not present at Trivandrum at the time of interception of Shri Anodiyil Mammu as the detention of the detenu is for his activities prior to the smuggling of foreign currencies like arranging the carrier passenger, giving foreign currencies for concealing and smuggling the same out of India.
The sponsoring authority have clarified that the order dated 16.5.2002 is an adjudication order in original of the Commissioner of Central Excise & Customs, Cochin Commission-erate in the seizure of foreign currencies in which the detenu is one of the accused. Since the order has been issued at a later date i.e., after the passing of the detention order, a copy of the same was not served on the detenu.
The sponsoring authority have clarified that both the grounds of detention and the detention order make it explicitly clear that the detenu is detained under section 3(1)(i), 3(1)(ii), 3(1)(iii) and 3(1)(v) of the COFEPOSA Act, 1974.”
59. Shri Sharma observed :
“In view of the above, it is seen that the points raised by the representationist, are baseless. Her representation, therefore, deserves to be rejected.”
60. The Joint Secretary, COFEPOSA who was competent to pass the order on behalf of the Central government by a non-speaking order agreed therewith stating :
“I agree with D.S. (C)’s analysis above, There is no merit in the representation and the same merits rejection. Considered. May be rejected.”
61. It, therefore, does not appear that the appropriate authorities of the Central government considered the representation and the documents referred to therein as also the necessity of such documents requiring regional language to be translated and the effect thereof. The said authority evidently had not considered the fact that the purported statements made by the witnesses under section 108 of the Customs Act and the alleged confession of the detenu had been retracted as well as the effect thereof.
62. The grounds of detention may contain the summary of the statements of the witnesses or the detenu; but despite the same entire statements are required to be supplied to the detenu. In the representation made by the detenu or on his behalf, it may be pointed out that the statements made by any person linking him with the alleged violation are factually incorrect or such statements have been misconstrued or misapplied by the detaining authority. A plea is also possible to be raised that the statement of a witness was misread by the detaining authority. The statements extracted in the ground of detention may contain some other lacuna and thus it would be no answer to the procedural safeguards contained in Article 22(5) of the Constitution.
63. If such a factor is taken into consideration, we would be bringing in indirectly the “prejudice doctrine” in a preventive detention matter. Even such a contention has not been raised by the learned counsel appearing on behalf of the Central government or the State of Kerala.
64. In a matter of this nature only one question is required to be asked i.e. ‘whether translated copies of the primary documents were before the Central government, and if the answer is in the negative; the order of detention must be quashed. The court exercising its power of judicial review would not embark into any other question nor would it itself examine the matter for the purpose of ascertaining as to whether there has been substantial compliance of constitutional requirements.
65. A judicial review of a matter dealing with liberty of a citizen must receive stricter consideration keeping in view the human right aspect in mind. (See International Transport Roth GmbH v. Secretary of State for the Home Department1).
66. The contention raised that by calling for the translated documents relied on by the detenu, a delay would be caused is of no moment (?). Such delay, if reasonable, is always condoned by the courts while exercising their jurisdiction of judicial review.
67. For the reasons aforementioned, I respectfully dissent with the opinion of P.V. Reddi, J and I am of the opinion that the opinion of Rajendra Babu, J. laid down the law correctly in the facts and circumstances of the present case.
68. In view of the majority opinion delivered by Hon’ble Mr. Justice P. Venkatarama Reddi, on behalf of himself, and Hon’ble the Chief Justice, the criminal appeal and writ petition are dismissed.
