TaxTMI 
TaxTMI 
2016 (4) TMI 54
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....s would uncurtain, came into existence on the basis of proposal of the Sponsoring Authority (Directorate of Enforcement) and the Empowered Officer of the Central Government (the Detaining Authority). The grounds of detention were communicated to the detenu vide communication dated 08.02.2013. By the said communication in compliance with Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act, the detenu was informed of his right to make a representation against his detention to the Detaining Authority. Be it stated, pursuant to the order of detention, the detenu was detained on 25.02.2013 and lodged in the Central Prison, Thiruvananthapuram. 3. The detenu made a representation on 11.04.2013 which was received on 18.04.2013 by the Jail Superintendent which was forwarded to the competent authority and thereafter the Special Secretary-cum-Director General, Central Economic Intelligence Bureau, Ministry of Finance, Department of Revenue, rejected the representation on behalf of the Central Government on 26.04.2013 after due consideration. The order of rejection was communicated to the detenu vide memorandum dated 29.04.2013 by the Under Secretary, Government of India.....
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.... Government of India 2004 (2) KLT 1094, A.C. Razia v. Government of Kerala and others AIR 2004 SC 2504, Saliyal Beevi and others v. State of Kerala and others 2011 (4) KHC 422 and some other authorities and eventually came to hold as follows:- "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 canvasse....
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....n Saha v. State of West Bengal (1975) 3 SCC 198, Ashok Narain v. Union of India (1982) 2 SCC 437, Gurdev Singh v. Union of India (2002) 1 SCC 545 and Ujagar Singh v. State of Punjab1952 SCR 756. 8. Mr. R. Basant, learned senior counsel appearing for the respondent, per contra, would contend that right to represent as provided under Article 22(5) includes the right to fair and proper consideration and the said position in law has been settled by the Constitution Bench in K.M. Abdulla Kunhi v. Union of India (1991) 1 SCC 476. It is urged by him that the right for proper consideration, has been taken a step forward by the High Court of Kerala in Lekha Nandakumar (supra) by holding that detenu has a right to be communicated the order rejecting his representation and the non-compliance explicitly shows non- application of mind. It is put forth by the learned senior counsel that when the order passed rejecting the representation is communicated, the detenu would have been apprised of the fact that there had been a consideration of his representation in a fair and impartial manner indicating application of mind, but when the communication, as the fact situation in the present case woul....
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....hority may not be sufficient. The portions emphasized above might create confusion as to whether that is the law. But we find it difficult to accept such understanding of the law based on the above observations. The order passed by the authority may be extracted in extensor or completely by a subordinate officer and that may be communicated to the detenu. In such a case it cannot possibly be contended that there is no communication for the reason that the order was not communicated by the authority which passed the order or that the order as such has not been communicated. The observations extracted above understood properly in the context, according to us, can only means and insist that the order must be communicated effectively and not that the order as such must be communicated or that the authority which passed the order must himself communicate the order." Mr. Basant, learned senior counsel, explaining the aforesaid judgment, submitted that effective communication of the order would tantamount to substantial compliance and in the said case the order passed by the competent authority was extracted. Mr. Kaul, learned Additional Solicitor General, submitted that the orde....
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....certain persons.- (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of the State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from12 (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained: &nbs....
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....ents 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 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.....
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.... non-extraction of the order of the competent authority by the communicating authority would straightaway invalidate the order of detention. In this regard, we may usefully refer to the authority in Haradhan Saha (supra). In the said case, the Constitution Bench was dealing with the constitutional validity of the Maintenance of Internal Security Act, 1971. While dealing with the consideration of representation, the larger Bench opined thus:- "24. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire material. The Board can also call for more materials. The Board may call the detenu at his request. The constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. The constitution of the Board observes the fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenu all the rights which are guaran....
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....an be brought before the court of law." [Emphasis supplied] 18. From the aforesaid authority, it is clear as day that while rejecting the representation, a speaking order need not be passed and what is necessary is that there should be real and proper consideration by the Government and the Advisory Board. The Constitution Bench has limited the application of principles of natural justice to the sphere of deliberation. It has confined it to real and proper consideration; application of mind. Dealing with the concept of fairness, it has been observed that fairness denotes abstention from abuse of discretion. Understanding the said principle correctly, it can be said that the use of discretion has to be based on fairness of approach. The authority concerned may not give reasons but there has to be application of mind. Mr. Kaul, learned Additional Solicitor General would submit that even if the order itself does not indicate application of mind by the competent authority or it has been communicated by another authority not indicating the approach of the competent authority the Court has ample power to call for the file and satisfy itself. In this regard, he has drawn our attenti....
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....ning authority. The Court referred to the decisions in A. Sowkath Ali v. Union of India(2000) 7 SCC 148, Ahamed Nassar v. State of T.N. (1999) 8SCC 473, Sanjay Kumar Aggarwal v. Union of India (1990) 3 SCC 309 and Ashadevi v. K. Shivraj, Addl. Chief Secretary to the Govt. of Gujarat (1979) 1 SCC 222 and came to rule thus:- "Testing the case at hand on the touchstone of the principles laid down in the decisions noted above, we find that the subjective satisfaction arrived at by the detaining authority in the case is based on consideration of all the relevant materials placed before it by the sponsoring authority. It is not the case of the appellant that the sponsoring authority did not place before the detaining authority any material in its possession which is relevant and material for the purpose and such material, if considered by the detaining authority, might have resulted in taking a different view in the matter. All that is contended on behalf of the detenu is that the detaining authority should have taken further steps before being satisfied that a case for detention under the COFEPOSA Act has been made out against the detenu. Whether the detention order suffers fro....
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.... The said decision, as we notice, has engrafted the principle that unless the extract of the original order is communicated, the detention is vitiated, as there is a violation of the constitutional safeguard. We may hasten to state that Babu (supra) clarifies the proposition of law laid down in Lekha Nandakumar (supra) but the base of both the decisions is that unless the detenu is made aware of the order passed by the competent authority, the said order is bound to suffer from legal impropriety. It has been laid down in Haradhan Saha (supra) that there may not be a speaking order but application of mind. In Gurdev Singh (supra), this Court had made it clear that whether the detention orders suffer from non-application of mind by the detaining authority is not a matter to be examined according to any straitjacket formula or set principles and it would depend on the facts and circumstances of the case. Therefore, the stress is on the application of mind. Communication of grounds on which the order of detention has been made cannot be equated with communication of the order rejecting the representation. There is a constitutional command to intimate the grounds on which the order of d....
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.... have indicated in the course of narration of facts. Therefore, the view taken by the High Court in the circumstances of the case cannot be sustained." 22. This being the position of law, when there is allegation that there has been non-application of mind and the representation has been rejected in a laconic or mechanical manner by the competent authority, we are disposed to think, the Court can always call for the file and peruse the notes and the proceedings whether there has been application of mind by the competent authority or not. Our said conclusion gets support from the decision in Ashok Narain (supra). In the said case, this Court on perusal of file has expressed its opinion that there had been no tardiness on behalf of any one and, therefore, the detention in no manner was illegal. 23. We are absolutely conscious that liberty of an individual is sacred. The individual liberty has to be given paramount importance. But such liberty can be controlled by taking recourse to law. Preventive detention is constitutionally permissible. The Courts can interfere where such detention has taken place in violation of constitutional or statutory safeguards. Treating the issue of ....
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....ect has been stated in detail. The competent authority has passed the following order:- "I have gone through the representation. I do not find sufficient ground for exercising powers under Section 11 of the COFEPOSA Act. The representation is rejected." 25. The order that has been communicated to him by the Under Secretary indicates that the representation submitted by the detenu had been carefully considered by the competent authority. 26. We have already referred to the Constitution Bench decision in Haradhan Saha (supra) in the context of duty of the Government while considering the representation; and the power of the Advisory Board. It has been clearly stated that the Government considers the representation to ascertain whether the order has been made within power under the law and the Board, on the other hand, considers whether in the light of the representation, there is sufficient cause for detention. The Court has expressed the view that the order of the Government rejecting the representation of the detenu should show real and proper consideration by the Government. The ratio of the said authority has to be appositely understood. The competent authority whi....
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....and most zealous scrutiny of the representation for the purpose of deciding whether the detention of the petitioner is justified." 29. A contention was raised in the said case that the order passed by the State Government rejecting the representation of the detenu should be a reasoned order. The three-Judge Bench on consideration of the principles laid down in Haradhan Saha (supra), quoted a passage therefrom and observed as follows:- "These observations must give a quietus to the contention that the order of the State Government must be a reasoned order. It is true that in Bhut Nath Mete v. State of W.B. (1974) 1 SCC 645 Krishna Iyer, J., speaking on behalf of a Division Bench of this Court observed that: [SCC p. 659 para 23, SCC (CRI) p. 314] "It must be self-evident from the order that the substance of the charge and the essential answers in the representation have been impartially considered", but if we read the judgment as a whole there can be no doubt that these observations were not meant to lay down a legal requirement that the order of the State Government must be a speaking order but they were intended to convey an admonition to the State Government t....
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....thority to reject the representation. As has been held in John Martin (supra), there cannot be zealous scrutiny of the representation for the purpose of deciding whether the detention of the petitioner is justified. In the said case, analyzing the principle stated in Haradhan Saha (supra), it has been reiterated that the order need not be a speaking order and non-speaking order does not amount to failure of justice. The said controversy, as has been observed by the three-Judge Bench, should be given a quietus. That being the legal position, on a careful perusal of the file, we find that there has been subjective satisfaction on the basis of the materials placed before the competent authority along with the representation. It cannot be said that the subjective satisfaction is not discernible from the order passed. In view of the analysis, the decision in Lekha Nandakumar (supra) by the Division Bench of the High Court stating the principle that the order passed by the competent authority should be communicated failing which there will be a violation of the constitutional command engrafted under Article 22(5) is not correct. The Court can always call for the file and peruse whether t....
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....hat no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all; in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Bannerji AIR 1943 FC 75 = 45 CriLJ 341 is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose : such a case would also negative the existence of satisfaction on the part of the authority. The existence of "improper purpose", that is, a purpose not contemplated by the statute, has been recognised as an independent ground of control in several decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and therefore, if, in exercising the power, the authority has acted under the dictation of another body as the Commissionerof Police did in Commissioner of Police v. Gordhandas Bhanji 1952 SCR 135 = AIR 1952 SC 16 and the officer of the Ministry of Labour and National Service did in Simms Motor Units Ltd. v. Minister of Labour and National Service (1946) 2 All ER 201 the exercise of....
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.... the contention that as there was inordinate delay in considering the representation of the detenu and the unexplained delay in considering the representation of the detenu could vitiate the order. The two-Judge Bench referred to Section 3(2) of the 1980 Act and in the backdrop of the statutory scheme proceeded to state that when there has been a long delay of 28 days in disposing of the representation, it would invalidate the order. 35. In Vijay Kumar v. State of Jammu & Kashmir and others (1982) 2 SCC 43 while dealing with the order of detention passed under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, took into consideration the delay in disposal of representation and in that context opined:- "In Khudiram Das v. State of W.B., (1975) 2 SCC 81, this Court held that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must afford the detenu the earliest opportunity of making a representation against the order of detention and this requirement would become illusory unless there is a corresponding obligation on the detaining authority to consider the representation of the detenu as early as possible. T....
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....writ of habeas corpus and directing the detenu to be set at liberty is totally vulnerable and accordingly we set aside the same. 37. Now, we shall proceed to deal with the alternative submission of Mr. Basant, learned senior counsel for the respondent. It is urged by him that the detenu was detained on 25.2.2013 and released on 24.10.2013 and in this backdrop, the detenu should not be sent back to undergo the remaining period of detention, for there exists no proximate temporal nexus between the period of detention indicated in the order for which the detenu was required to be detained and the date when the detenu is required to be detained if the order is set aside. Learned senior counsel would urge that there is a necessity on the part of the authorities to be satisfied whether it is desirable that the detenu should be further detained for the balance period of detention. Mr. Basant has commended us to certain authorities which we shall proceed to deal with it. 38. In Sunil Fulchand Shah (supra), the Constitution Bench was dealing with the issue whether the period of detention under the COFEPOSA Act is a fixed period running from the date specified in the detention order an....
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....of the statute." 39. In Kethiyan Perumal (supra), a two-Judge Bench, after referring to the Constitution Bench decision in Sunil Fulchand Shah (supra), directed as follows:- "... it is for the appropriate State to consider whether the impact of the acts, which led to the order of detention, still survives and whether it would be desirable to send back the detenu for serving the remainder period of detention. Necessary order in this regard shall be passed within two months by the appellant State. Passage of time in all cases cannot be a ground not to send the detenu to serve the remainder of the period of detention. It all depends on the facts of the act and the continuance or otherwise of the effect of the objectionable acts. The State shall consider whether there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the appellate order." 40. In Alagar (supra), similar observations were made. In Chandrakant Baddi (supra), a two-Judge Bench referred to the earlier decisions and opined that:- "A reading of....