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two months delay in disposal of representation of detenu is illegal and as such the detention order are not correct = an order of detention under Section 3 of the COFEPOSA was served on all the detenus on 10th March, 2011 on whose behalf petitions were filed before the High Court and therefore, their detention under the COFEPOSA commenced on and from 10th March, 2011. In these proceedings, we are not going into the merits of the grounds or the recitals thereof. 4. Before us, the detention of the appellants has been assailed on the question that the representations filed on behalf of the detenus were not disposed of in accordance with the mandate of Article 22(5) of the Constitution.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2136 OF 2011
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL.) NO. 7953 OF 2011

UMMU SABEENA … APPELLANT
VERSUS

STATE OF KERALA & ORS. … RESPONDENTS
WITH

CRIMINAL APPEAL NO. 2137 OF 2011
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL.) NO. 7964 OF 2011

SALIYAL BEEVI … APPELLANT
VERSUS

STATE OF KERALA & ORS. … RESPONDENTS

CRIMINAL APPEAL NO. 2138 OF 2011
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL.) NO. 7983 OF 2011

SALUKAL BEEVI … APPELLANT
VERSUS

STATE OF KERALA & ORS. … RESPONDENTS

CRIMINAL APPEAL NO. 2139 OF 2011
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL.) NO. 8176 OF 2011

M. PARIMALA … APPELLANT
VERSUS

STATE OF KERALA & ORS. … RESPONDENTS
JUDGMENT

GANGULY, J.

1. Leave granted.
2. All these four appeals have been filed impugning
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an order dated 30th September, 2011 of the High Court of

Kerala whereby the writ petitions filed for issuance of

writs of Habeas Corpus, assailing the orders of

detention dated 26th February, 2011 passed under the

provisions of Conservation of Foreign Exchange and

prevention of Smuggling Activities Act, 1974

(hereinafter referred to as ‘the COFEPOSA’) were

rejected by the High Court.

3. It is not in dispute that the facts in all the

cases are the same. Common ground is that an order of

detention under Section 3 of the COFEPOSA was served on

all the detenus on 10th March, 2011 on whose behalf

petitions were filed before the High Court and

therefore, their detention under the COFEPOSA

commenced on and from 10th March, 2011. In these

proceedings, we are not going into the merits of the

grounds or the recitals thereof.

4. Before us, the detention of the appellants has

been assailed on the question that the representations

filed on behalf of the detenus were not disposed of in

accordance with the mandate of Article 22(5) of the

Constitution.

5. The admitted facts are that representations were

made by the detenus on the 30th March, 2011 and the same

were rejected by the State Government on 8th April,

2011. But the Central Government took time till 6th
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June, 2011 to reject the same. This delay on the part

of the Central Government in the rejection of the

detention representation has been sought to be

explained on the basis of an affidavit filed on behalf

of the Central Government.

6. Our attention has been drawn to the said affidavit

which has been filed by one A.K. Sharma, Under

Secretary to the Government of India in the Ministry of

Finance, Department of Revenue, Central Economic

Intelligence Bureau, COFEPOSA Section, New Delhi. The

purported explanation has been given in para 3 of the

said affidavit. A perusal of para 3 of the affidavit

reveals that the representation dated 30th March, 2011

was forwarded by the State Government of Kerala to the

Central Government by their letter dated 16th April,

2011 and the same was received in the COFEPOSA Unit of

the Ministry of Finance, Department of Revenue, New

Delhi on 21st April, 2011. It has been observed that

22nd April, 2011 to 24th April, 2011 were holidays.

Thereafter parawise comments on the representation were

called for from the Additional Director General,

Directorate of Revenue Intelligence and the detaining

authority i.e. Government of Kerala on 25th April, 2011.

The comments were received on 10th May, 2011. The

comments of the detaining authority were received on

18th May, 2011. Then the COFEPOSA Section submitted the
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file along with all the relevant files and documents to

the Deputy Secretary, COFEPOSA on 18th May, 2011 for

examination. After detailed examination of the issues

raised in the representations and comments of the

Sponsoring Authority and the detaining authority, the

Deputy Secretary submitted the file with comprehensive

note to the Joint Secretary, COFEPOSA on 3rd June, 2011.

4th and 5th June, 2011 were Saturday and Sunday and

ultimately, the said representations were considered

and rejected by the Central Government on 6th June, 2011

as being devoid of merit.

7. Now the question is whether the aforesaid manner

of consideration and rejection of representation by the

Central Government is in accord with the principles

laid down by this Court on this aspect in several

cases?

8. It is clear in this case that the Central

Government took about more than two months i.e. whole

of April and May and ultimately rejected the

representations only on 6th June, 2011 whereas

representations were made on 30th March, 2011.

9. Reference in this connection may be made to the

Constitution Bench decision of this Court in the case

of K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union

of India & Ors., State of Karnataka & Ors. (1991) 1 SCC
476. The unanimous Constitution Bench, speaking through
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Justice K. Jagannatha Shetty, after noting the

Constitutional provisions under sub-clauses (4) and (5)

of Article 22, was pleased to hold that neither under

the Constitution nor under the relevant statutory

provision, any time limit has been fixed for

consideration of representation made by a detenu. The

time limit, according to the Constitution Bench, has

been deliberately kept elastic. But the Constitution

Bench laid emphasis on the expression ‘as soon as may

be’ in sub-clause (5) of Article 22 and held that the

said expression sufficiently makes clear the concern of

the framers of the Constitution that the representation

should be very expeditiously considered and disposed of

with a sense of urgency and without any avoidable

delay.

10. Considering the aforesaid provision, the

Constitution Bench held that “there should not be any

supine indifference, slackness or callous attitude in

considering the representation. Any unexplained delay

in the disposal of representation would be a breach of

the constitutional imperative and it would render the

continued detention impermissible and illegal”.

11. In support of the said conclusion, the learned

Judges of the Constitution Bench relied on various

other judgments mentioned in Para 12 at page 484 of the

report.
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12. In a subsequent judgment in the case of Rajammal

Vs. State of T.N. & Anr. (1999) 1 SCC 417, a three
Judge Bench of this Court, relying on the ratio of the

Constitution Bench decision in Abdulla Kunhi,

reiterated the same principles. From Para 9 at page 421

of the report, it would appear that in the case of

Rajammal, the concerned Minister, while on tour,

received the file after 9.2.1998 and then passed the

order on 14.2.1998. No explanation was offered for this

delay of about five days. This Court held that such

delay has vitiated further detention of the detenu [see

para 11 at page 422].

13. In another subsequent judgment of this Court in

the case of Kundanbhai Dulabhai Shaikh Vs. Distt.

Magistrate, Ahmedabad & Ors., (1996) 3 SCC 194, this
Court while reiterating the aforesaid principles, found

that representation was received by the Central

Government on 21st September, 1995 and then comments

were called for from the State Government and the same

were received by the Central Government on 18th October,

1995 and the representation was rejected on 19th

October, 1995. This Court held in para 22 of the

judgment at page 204 that the internal movement of the

file thus took four days and this Court found that this

inaction in taking up the representation for six days

is unexplained and the mere ground was that there were
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forty or fifty representations pending for disposal is

not a valid justification. This Court found that such

delay voids the continued detention of the detenus and

the detention order was quashed.

14. Going by the aforesaid precedents, as we must, we

hold that the procedural safeguards given for

protection of personal liberty must be strictly

followed. The history of personal liberty, as is well

known, is a history of insistence on procedural

safeguards.

15. Following the said principle, we find that delay

in these cases is for a much longer period and there is

hardly any explanation. We, therefore, have no

hesitation in quashing the orders of detention on the

ground of delay on the part of the Central Government

in disposing of the representation of the detenus.

16. Learned counsel for the respondents has however

urged that he is not disputing the principles laid down

by this Court in the aforesaid judgments but he

submitted that in the instant case, the Habeas Corpus

petition filed before the High Court was not to quash

the detention on the ground of delay and inasmuch as it

could not have been so prayed for as the writ petition

was filed prior to the rejection of the representation

by the detenus.

17. Learned counsel for the Union of India further
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argued that the question of delay has not been urged

before the High Court.

18. Taking up the second objection first, we find that

the question of delay was urged before the High Court

as it appears from Pages 6 and 7 of the impugned

judgment. But, insofar as the question of technical

plea which has been raised by the learned counsel on

the question of prayer in the Habeas Corpus petition is

concerned, we are constrained to observe that in

dealing with writs of Habeas Corpus, such technical

objections cannot be entertained by this Court.

19. Reference in this connection may be made to the

Law of Habeas Corpus by James A. Scott and Charles C.

Roe of the Chicago Bar [T.H. Flood & Company,

Publishers, Chicago, Illinois, 1923] where the learned

authors have dealt with this aspect in a manner which

we should reproduce as we are of the view that the same

is the correct position in law:

“A writ of habeas corpus is a writ of right
of very ancient origin, and the preservation
of its benefit is a matter of the highest
importance to the people, and the
regulations provided for its employment
against an alleged unlawful restraint are
not to be construed or applied with
overtechnical nicety, and when ambiguous or
doubtful should be interpreted liberally to
promote the effectiveness of the proceeding.
[Ware v. Sanders, 146 Iowa, 233, 124 N.W.
958]”.
20. In this connection, if we may say so, the writ of

Habeas Corpus is the oldest writ evolved by the Common
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Law of England to protect the individual liberty

against its invasion in the hands of the Executive or

may be also at the instance of private persons. This

principle of Habeas Corpus has been incorporated in

our Constitutional law and we are of the opinion that

in a democratic republic like India where Judges

function under a written Constitution and which has a

chapter on Fundamental Rights, to protect individual

liberty, the Judges owe a duty to safeguard the

liberty not only of the citizens but also of all

persons within the territory of India. The most

effective way of doing the same is by way of exercise

of power by the Court by issuing a writ of Habeas

Corpus.

21. This facet of the writ of Habeas Corpus makes it

a writ of the highest Constitutional importance being

a remedy available to the lowliest citizen against the

most powerful authority [see Halsbury, Laws of

England, Fourth Edition, Volume 11, para 1454].

22. That is why it has been said that the writ of

Habeas Corpus is the key that unlocks the door to

freedom [see The Common Law in India-1960 by M.C.

Setalvad, page 38].

23. Following the aforesaid time-honoured principles,

we make it very clear that if we uphold such technical

objection in this proceeding and send the matter back
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to the High Court for reagitation of this question,

the same would deprive the detenus of their precious

liberty, which we find, has been invaded in view of

the manner in which their representations were unduly

kept pending. We, therefore, overrule the aforesaid

technical objection and allow these appeals.

24. We direct that the detenus should be set at

liberty forthwith unless they are required to be

detained in connection with any other case.

25. The appeals are accordingly allowed.
………………….J.
(ASOK KUMAR GANGULY)

………………….J.
(JAGDISH SINGH KHEHAR)

New Delhi,
17-11-2011

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