TaxTMI 
TaxTMI 
2003 (10) TMI 61
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....pting to smuggle these articles by concealing them in emergency lamp and by wearing crude gold on her person and there was no declaration made. The articles were seized under the provision of Customs Act, 1962 (in short the "Customs Act") read with Foreign Trade (Development and Regulation) Act, 1992. The detenu made voluntary statements on 26-2-2000 which were recorded under Section 108 of the Customs Act. The order of detention was passed purportedly with an idea of preventing her from carrying out smuggling activities in future. On 11-5-2000 the respondent who is the detenu's father addressed a representation on behalf of his daughter to the President of India. Four days thereafter i.e. on 15-5-2000 a habeas corpus petition was filed before the Madras High Court challenging the detention order. When the matter was listed on 8-6-2000 notice was issued. It had been indicated in the writ petition filed by the respondent that a representation by registered post was sent to the State of Tamil Nadu and another was sent to the Union of India represented by Secretary to Government, Ministry of Finance (Department of Revenue) by speed post. They were the two respondents in the writ petit....
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....s quashed. 2.In the present appeal the Union of India has raised several issues which need to be carefully considered. Firstly, it is submitted that in the order (grounds) of detention it was specifically indicated to the detenu that she had a right to make a representation to the detaining authority/State Government and also to the Government of India, if she so desired, in writing against the order under which she was kept in detention. It was also indicated that in case she wanted to make a representation the same was to be addressed to the Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Secretariat, Chennai or to the Government of India, Ministry of Finance, Department of Revenue, (COFEPOSA Unit), Central Economic Intelligence Bureau, New Delhi, as the case may be, and it should be forwarded through Superintendent of Prison, Special Prison for Women, Vellore in which she was confined. 3.Strangely, the representation was not made to the authorities clearly indicated in the order (grounds) of detention. For the first time in review petition a stand was taken that representation was filed before the President of India, though in the writ petition it....
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....rected to detained, yet considering the several important issues which have been raised by the parties we think it appropriate to deal with them. 7.The writ of habeas corpus called by Blackstone as the great and efficacious writ in all manner of illegal confinement, really represents another aspect of due process of law. As early as 1839 it was proclaimed by Lord Denman that it had been for ages effectual to an extent never known in any other country. Lord Halsbury L.C. stated in Cox v. Hakes, (1890) 15 AC 506, that the right to an instant determination as to the lawfulness of an existing imprisonment is the substantial right made available by this writ. Article 22 of the Constitution confers four fundamental rights on every person, except in two cases mentioned in Clause (3), as essential requirements and safeguards to be followed when it is necessary to deprive any person, for any cause whatsoever and for, however brief a period of his personal liberty by placing him under arrest or keeping him in detention. Those are (i) to be informed, as soon as may be, of grounds of such arrest; (ii) not to be denied the right to consult and to be defended by a legal practitioner of his choi....
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....It is the constitutional right of the detenu to get all the ground on which the order has been made. As has been said by Benjamin Cardozo, "A Constitution states or ought to state not rules for the passing hour but the principles for an expanding future". The concept of grounds used in the context of detention in Article 22(5) has to receive an interpretation which will keep it meaningful in tune with contemporary notions of the realities of the society, and the purpose of the Act in the light of concepts of liberty; and fundamental freedoms. While the expression "grounds" for that matter includes not only conclusions of fact but also all the basic facts on which those conclusions were founded; they are different from subsidiary facts or further particulars of the basic facts. The detenu is entitled to obtain particulars as to the grounds which will enable him to make an effective representation against the order of detention. 8.It has been said that the history of liberty has largely been the history of observance of procedural safeguards. The procedural sinews strengthening the substance of the right to move the Court against executive invasion of personal liberty and the due di....
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....gislature have been transgressed....." In Hem Lall Bhandari v. State of Sikkim (AIR 1987 SC 762 at page 766), it was observed : "It is not permissible in matters relating to the personal liberty and freedom of a citizen to take either a liberal or a generous view of the lapses on the part of the officers.....". 10.So far as the pivotal question whether there was delay in disposal of the representation is concerned, same has to be considered in the background of Article 22(5) of the Constitution. A constitutional protection is given to every detenu which mandates the grant of liberty to the detenu to make a representation against detention, as imperated in Article 22(5) of the Constitution. It also imperates the authority to whom the representation is addressed to deal with the same with utmost expedition. The representation is to be considered in its right perspective Keeping in view the fact that the detention of the detenu is based on subjective satisfaction of the authority concerned, and infringement of the constitutional right conferred under Article 22(5) invalidates the detention order. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale ....
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....in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of Tamil Nadu : AIR 1989 SC 2027 : Dharmendra Suganchand v. Union of India : 1990 (47) E.L.T. 181 (S.C.) = AIR 1990 SC 1196). The point was gone into detail in Kamarunnissa v. Union of India (AIR 1991 SC 1640). The principles were set out as follows. Even in the case of a person in custody, a detention order can be validly passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him; (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities, and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show awareness of custody and/or possibility of release on bail. 13.Article 21 of the Constitution having declared that no person shall be deprived of life and ....
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.... whether the representation to the President of India meets with the requirement of law it has to be noted that in Raghavendra Singh v. Superintendent, District Jail, Kanpur and Ors. [1986 (1) SCC 650] and Rumana Begum v. State of Andhra Pradesh and Anr. [1993 Supp. (2) SCC 341] it was held that a representation to the President of India or the Governor, as the case may be, would amount to representation to the Central Government and the State Government respectively. Therefore, the representation made to the President of India or the Governor would amount to representation to the Central Government and the State Government. But, this cannot be allowed to create a smokescreen by an unscrupulous detenu to take the authorities by surprise, acting surreptitiously or with ulterior motives. In the present case, the order (grounds) of detention specifically indicated the authority to whom the representation was to be made. Such indication is also part of the move to facilitate an expeditious consideration of the representations actually made. 16.The respondent does not appear to have come with clean hands to the Court. In the writ petition there was no mention that the representation wa....
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....y and honestly felt or interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the really concerned authorities and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry for relief on his own manipulated ground, by directing his representation to an authority which is not directly immediately concerned with such consideration. 18.It was nowhere indicated in the representation by the respondent as to why the representation was not being made to the indicated authorities and instead was being made to the President of India. This appears to be a deliberate view to take advantage of the concern shown by this Court in protecting personal liberty of citizens. Where however a person alleging infraction of personal liberty tries to act in a manner which is more aimed at deflecting the course of justice than for protection of his personal right, the Court has to make a deliberate balancing of the fact situation to ensure that the mere factum of some delay alone is made use of to grant relief. If a fraud has been practised or perpetrated that may in a given ....