Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 520 OF 2013
[Arising out of Special Leave Petition (Crl.) No.1359 of 2013]
ABDUL NASAR ADAM ISMAIL
Through Abdul Basheer Adam Ismail … APPELLANT
Versus
THE STATE OF MAHARASHTRA
& ORS. … RESPONDENTS
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. In this appeal, by special leave, the appellant has
challenged judgment and order dated 23/01/2013 passed by
the Division Bench of the Bombay High Court dismissing the
writ petition filed by him challenging order of detention
dated 16/4/2012 issued by the detaining authority i.e. the
Principal Secretary (Appeals and Security), Government ofPage 2
Maharashtra, Home Department under the provisions of
Section 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (for short, “the
said Act”). The order of detention directed his detention
with a view to preventing him in future from smuggling
goods.
3. From the grounds of detention, it appears to be the
case of detaining authority that on 12/8/2011, the appellant
Abdul Nasar Adam Ismail (“detenu” for convenience)
arrived from Dubai by Air India flight No.AI-984. He was
carrying one trolley hand bag. After he was cleared through
green channel, he was stopped by the Assistant
Commissioner of Customs on duty. When his personal
search was conducted, it was noticed that he had concealed
two packets in his undergarments near his groin area and
two packets under the knee caps worn on calves. On
removal of his pants, four plastic packets wrapped with cello
tape, which were kept inside his cycling shorts and knee
caps worn by him on his calves were recovered. Detailed
2Page 3
examination of these four packets resulted in recovery of
3086 gms. of 22 kt. and 1004 gms. of 18 kt. gold chains.
The total seized gold was valued at Rs.95,35,932/-. The
detenu’s statements under Section 108 of the Customs Act,
1962 were recorded. On perusal of the proposal and
accompanying documents sent by the sponsoring authority,
the detaining authority passed the aforementioned detention
order.
4. We have heard, at some length, Mr. K.K. Mani, learned
counsel appearing for the detenu. He assailed the detention
order on two counts. Firstly, he contended that the detenu
through his lawyer submitted his representation dated
23/6/2012 to the jail authority for forwarding it to the State
Government. The said representation was rejected by the
State Government and the rejection was communicated to
the detenu by the Under Secretary to the Government of
Maharashtra vide letter dated 24/7/2012. Counsel submitted
that thus there is an inordinate delay in considering the
representation of the detenu which has violated his right
3Page 4
under Article 22(5) of the Constitution of India. Counsel
submitted that there is delay at every stage, which indicates
the casual approach of the State Government. So far as
unexplained delay in transmitting the representation to the
State Government by the jail authority is concerned, he
relied on the judgments of this Court in Rattan Singh etc.
v. State of Punjab and others 1
, Aslam Ahmed Zahire
Ahmed Shaik v. Union of India and others2
and B.
Alamelu v. State of Tamil Nadu and others3
. Counsel
submitted that in a long line of judgments, remissness or
casual approach shown by the authorities in considering the
representation of the detenu is severely criticized by this
Court because it breaches the mandate of Article 22(5) of
the Constitution of India. In such a situation, the order of
detention is liable to be set aside. In this connection, he
relied on judgments of this Court in Smt. Khatoon Begum
etc. etc. v. Union of India and others4
, Harish Pahwa
v. State of U.P. & Ors.5
, K.M. Abdulla Kunhi and B.L.
1
(1981) 4 SCC 481
2
(1989) 3 SCC 277
3
(1995) 1 SCC 306
4
(1981) 2 SCC 480
5
(1981) 2 SCC 710
4Page 5
Abdul Khader v. Union of India and others6
,
Kundanbhai Dulabhai Shaikh etc. v. Distt.
Magistrate, Ahmedabad and others etc.7
, Venmathi
Selvam (Mrs.) v. State of Tamil Nadu and another8
,
Rajammal v. State of Tamil Nadu and another9
,
Harshala Santosh Patil v. State of Maharashtra and
others10
, Pebam Ningol Mikoi Devi v. State of
Manipur & Ors.11 and Ummu Sabeena v. State of
Kerala & Ors.12. Counsel submitted that the gravity of
offence is irrelevant in preventive detention matters.
Preventive detention is a serious inroad on the liberty of a
person. The procedural safeguards are the only protection
available to him and, therefore, their strict compliance is
necessary. In this connection, counsel relied on the
judgments of this Court in Smt. Icchu Devi Choraria v.
Union of India and others13
, Kamleshkumar Ishwardas
6
(1991) 1 SCC 476
7
(1996) 3 SCC 194
8
1998 (5) SCC 510
9
(1999) 1 SCC 417
10 (2006) 12 SCC 211
11 (2010) 9 SCC 618
12 (2011) 10 SCC 781
13 (1980) 4 SCC 531
5Page 6
Patel etc. etc. v. Union of India and others14
,
Kundanbhai Dulabhai Shaikh (supra) and Rekha v.
State of Tamil Nadu15
.
5. So far as the second point urged by the counsel viz.
that there is no independent consideration of the
representation by the detaining authority is concerned, we
must mention that this point was not raised in the petition
nor urged before the High Court. It is not even raised in the
present appeal. Ordinarily, we would not have allowed the
counsel to raise any point in this court, which was not urged
before the High Court. However, we are mindful of the
decision of this Court in Mohinuddin @ Moin Master v.
District Magistrate, Beed & Ors.16, where this Court has
held that the habeas corpus petition cannot be dismissed on
the ground of imperfect pleadings. We have, therefore,
allowed learned counsel to canvass this point. In support of
his submission that the detention order is liable to be set
aside if the detaining authority does not consider the
14 (1995) 4 SCC 51
15 (2011) 5 SCC 244
16 (1987) 4 SCC 58
6Page 7
detenu’s representation independently, counsel relied on the
judgments of this Court in K.M. Abdulla Kunhi (supra),
Kamleshkumar Ishwardas Patel, Venmathi Selvam
(supra) and Harshala Santosh Patil (supra). Counsel
submitted that in the circumstances, this Court should set
aside the impugned judgment and quash the order of
detention dated 16/04/2012.
6. We must make it clear that these were the only points
urged by learned counsel for the detenu in this Court. While
closing the hearing, we directed learned counsel to submit a
list of authorities on the above points urged by him. Learned
counsel for the State was to submit his reply to the above
points. We are surprised to note that in the note submitted
by learned counsel for the detenu, he has cited four
decisions of this Court under the caption “New Points”.
These points are not formulated. Thus, an opportunity has
been denied to learned counsel for the State to reply to
those new points. We are also at a loss to understand which
are those ‘New Points’. We are unhappy about this conduct.
7Page 8
But, in any case, as already noted, since we are dealing with
a preventive detention order, we would look into those four
decisions.
7. Mr. Arun R. Pednekar, learned counsel for the State of
Maharashtra, on the other hand, submitted that the
representation has been considered with utmost
promptitude and the explanation offered by the State is
reasonable and satisfactory. Counsel submitted that if the
delay is properly explained, there is no breach of the
constitutional imperative. If there is no indifference or
slackness shown by the State Government, the order of
detention cannot be set aside on the ground of delay in
considering the representation. In this connection, he relied
on judgments of the Constitution Bench in K.M. Abdulla
Kunhi (supra) and Sayed Abdul Ala v. Union of
India17
. Counsel submitted that in any event if this Court
comes to the conclusion that there is unexplained delay in
considering the representation of the detenu, the order or
detention cannot be set aside on that ground. Only the
17 (2007) 15 SCC 208
8Page 9
continued detention becomes invalid. In this connection, he
relied on judgments of this Court Union of India v.
Harish Kumar18 and Union of India v. Manish Bahal
alias Nishu19. So far as the submission that the
representation was not considered independently by the
detaining authority is concerned, counsel submitted that no
such ground was raised before the High Court nor was it
taken in the petition and, therefore, the detenu should not
be allowed to raise it at this stage. Counsel submitted that
in any case, the affidavit of the detaining authority clearly
establishes that there is independent consideration of the
representation by the detaining authority. The appeal,
therefore, deserves to be dismissed.
8. At the outset, we must note that on a query made by
this Court as to whether the detenu wants to press this
appeal in case the detenu is already released from
detention, counsel for the detenu submitted that he has
instructions to press the appeal because if the detention
18 (2008) 1 SCC 195
19 (2001) 6 SCC 36
9Page 10
order is set aside by this Court, the proceedings initiated
against the detenu under the provisions of the Smugglers
and Foreign Exchange Manipulators Act, 1976 will
automatically lapse. We, therefore, proceed to deal with his
submissions.
9. Learned counsel urged that the gravity of the offence is
irrelevant in a preventive detention matter. We entirely
agree with this submission and, hence, it is not necessary to
refer to the judgments cited by him on this point.
10. We shall first deal with the submission that the
detaining authority has not considered the detenu’s
representation independently. As we have already noted,
this point was not raised in the petition and admittedly, not
urged before the High Court. Whether a representation is
considered by the detaining authority independently or not is
for the detaining authority to say on affidavit. This fact is
within the exclusive personal knowledge of the detaining
authority. Had this point been raised in the writ petition, the
detaining authority would have dealt with it in her affidavit.
10Page 11
In the circumstances, if there is no categorical statement in
the affidavit of the detaining authority that she had
independently considered the representation, she cannot be
faulted for it. No inference can be drawn that the detaining
authority did not consider the representation independently.
In the affidavit, she has stated that the representation was
processed through the concerned Assistant, the Under
Secretary and the Deputy Secretary and then placed before
her. She rejected it on 24/7/2012. No objection can be
taken to this procedure unless there is any slackness shown
in processing the representation. Here the entire procedure
was completed within four days. We have seen the record.
The concerned Assistant, the Under Secretary and the
Deputy Secretary have merely put their signatures on the
file. They have expressed no opinion. Therefore, the
submission that the detaining authority has not considered
the representation independently and she could have been
swayed by the endorsements made by the subordinate
officers is without any basis. It is necessary to note here
that this point is not raised even in the present appeal. Had
11Page 12
it been raised, we would have called upon the detaining
authority to file affidavit in this Court. In view of the above,
we reject this submission.
11. We shall now deal with the judgments mentioned in the
Note under the caption “New Points”. So far as
Mohinuddin is concerned, we have already discussed this
judgment. It is, therefore, not necessary to refer to it again.
So far as Harish Pahwa is concerned, we find that there is
no new point discussed in this judgment. It also states that
the representation of the detenu must be dealt with
continuously until the final decision is taken and
communicated to the detenu. The second judgment is Baby
Devassy Chully @ Bobby v. Union of India & Ors.20
. In
this case, this Court has stated that if a person is in custody
and, there is no imminent possibility of his being released,
the rule is that power of preventive detention should not be
exercised. In this case, the detenu was released on bail on
20/8/2011 and the detention order was passed on
16/4/2012. Thus, when the detention order was passed the
20 2012 (10) SCALE 176
12Page 13
detenu was not in custody. Therefore, this judgment has no
application to the present case. The fourth judgment, which
is stated to contain a new point, is Saeed Zakir Hussain
Malik v. State of Maharashtra21. In that case, the
detention order was set aside on the ground of delay in
passing of the detention order and delay in execution of the
detention order. We have carefully perused the affidavit of
the detaining authority. The detaining authority has stated
what steps were taken and how the proposal submitted by
the sponsoring authority was processed till the detention
order was passed. The sponsoring authority has also filed
affidavit explaining steps taken by it till the proposal was
submitted. The High Court has rightly held that the said
explanation is satisfactory. In this connection, reliance
placed by the High Court on the judgment of this Court in
Rajendrakumar Natvarlal Shah v. State of Gujarat22 is
apt. We deem it appropriate to quote the relevant
paragraph.
21 (2012) 8 SCC 233
22 (1988) 3 SCC 153
13Page 14
“10. Viewed from this perspective, we wish to emphasise
and make it clear for the guidance of the different High
Courts that a distinction must be drawn between the delay
in making of an order of detention under a law relating to
preventive detention like the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
and the delay in complying with the procedural safeguards
of Article 22(5) of the Constitution. It has been laid down
by this Court in a series of decisions that the rule as to
unexplained delay in taking action is not inflexible. Quite
obviously, in cases of mere delay in making of an order of
detention under a law like the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
enacted for the purpose of dealing effectively with persons
engaged in smuggling and foreign exchange racketeering
who, owing to their large resources and influence have
been posing a serious threat to the economy and thereby
to the security of the nation, the courts should not merely
on account of delay in making of an order of detention
assume that such delay, if not satisfactorily explained,
must necessarily give rise to an inference that there was
no sufficient material for the subjective satisfaction of the
detaining authority or that such subjective satisfaction was
not genuinely reached. Taking of such a view would not be
warranted unless the court finds that the grounds are
“stale” or illusory or that there is no real nexus between
the grounds and the impugned order of detention. The
decisions to the contrary by the Delhi High Court in Anil
Kumar Bhasin v. Union of India & Ors., Crl. W.No.410/86
dated 2.2.1987, Bhupinder Singh v. Union of India &
Ors., Crl. W. No.375/86 dated 11.12.1986, Surinder Pal
Singh v. M.L. Wadhawan & Ors., Crl. W. No.444/86 dated
9.3.1987 and Ramesh Lal v. Delhi Administration, Crl. W.
No.43/84 dated 16.4.1984 and other cases taking the
same view do not lay down good law and are accordingly
overruled.”
In light of the above observations of this Court in our
opinion, the order of detention cannot be quashed on the
ground that there is delay in issuance of the detention order.
14Page 15
So far as delay in execution of the detention order is
concerned, it appears from the affidavit of the detaining
authority that the detenu is a resident of Mangalore in the
State of Karnataka. The affidavit of Ravindra Kumar Das,
Deputy Commissioner of Customs, COFEPOSA Cell, CSI
Airport, Mumbai, indicates that because the detenu was a
resident of Mangalore in the State of Karnataka, the order of
detention, grounds of detention and the accompanying
documents were forwarded to the State of Karnataka and
the order of detention, therefore, could be served on the
detenu only on 10/5/2012. In the peculiar facts of this case,
in our opinion, the High Court has rightly rejected this
submission. We endorse the High Court’s view on this point.
12. We shall now turn to the submission that there is delay
in disposal of the detenu’s representation by the State
Government. Several judgments have been cited by learned
counsel for the appellant. It is not necessary to refer to all of
them because they reiterate the same principles. We may
begin with the observations of this Court in Francis Coralie
15Page 16
Mullin v. W.C. Khambra23. The relevant portion of the
said judgment reads thus:
““The time imperative can never be absolute or
obsessive”. The occasional observations made by
this Court that each day’s delay in dealing with
the representation must be adequately explained
are meant to emphasise the expedition with which
the representation must be considered and not
that it is a magical formula, the slightest breach of
which must result in the release of the detenu.
Law deals with the facts of life. In law, as in life,
there are no invariable absolutes. Neither life nor
law can be reduced to mere but despotic
formulae.”
13. It is also necessary to refer to the observations of the
Constitution Bench of this Court in K.M. Abdulla Kunhi
which read thus:
“12. Clause (5) of Article 22 therefore, casts a
legal obligation on the government to consider the
representation as early as possible. It is a
constitutional mandate commanding the
concerned authority to whom the detenu submits
his representation to consider the representation
and dispose of the same as expeditiously as
possible. The words “as soon as may be”
occurring in clause (5) of Article 22 reflects the
concern of the Framers that the representation
should be expeditiously considered and disposed
of with a sense of urgency without an avoidable
23 AIR 1980 SC 849
16Page 17
delay. However, there can be no hard and fast rule
in this regard. It depends upon the facts and
circumstances of each case. There is no period
prescribed either under the Constitution or under
the concerned detention law, within which the
representation should be dealt with. The
requirement however, is that there should not be
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.”
14. The principles which have been laid down by the
Constitution Bench and the other judgments which we have
referred to earlier can be summarized. Article 22(5) of the
Constitution casts a legal obligation on the Government to
consider the detenu’s representation as early as possible.
Though no time limit is prescribed for disposal of the
representation, the constitutional imperative is that it must
be disposed of as soon as possible. There should be no
supine indifference, slackness or callous attitude. Any
unexplained delay would be a breach of constitutional
imperative and it would render the continued detention of
the detenu illegal. That does not, however, mean that every
17Page 18
day’s delay in dealing with the representation of the detenu
has to be explained. The explanation offered must be
reasonable indicating that there was no slackness or
indifference. Though the delay itself is not fatal, the delay
which remains unexplained becomes unreasonable. The
court can certainly consider whether the delay was
occasioned due to permissible reasons or unavoidable
causes. It is not enough to say that the delay was very
short. Even longer delay can as well be explained. So the
test is not the duration or the range of delay, but how it is
explained by the authority concerned. If the inter
departmental consultative procedures are such that the
delay becomes inevitable, such procedures will contravene
the constitutional mandate. Any authority obliged to make
order of detention should adopt procedure calculated
towards expeditious consideration of the representation.
The representation must be taken up for consideration as
soon as such representation is received and dealt with
continuously (unless it is absolutely necessary to wait for
18Page 19
some assistance in connection with it) until a final decision is
taken and communicated to the detenu.
15. In light of above principles, it is now necessary to see
how the State Government has disposed of the detenu’s
representation in this case. In this connection, relevant
dates are available from the affidavit of Shivaji S. Patankar,
Deputy Secretary to the Government of Maharashtra, Home
Department (Special), affidavit of Medha Gadgil, Principal
Secretary (Appeals & Security), Government of Maharashtra,
Home Department, Mantralaya, Mumbai and affidavit of
Ravindra Kumar Das, Deputy Commissioner of Customs,
COFEPOSA Cell, CSI Airport, Mumbai. The High Court has
correctly located the important dates from the three
affidavits. In our opinion, the detaining authority and the
sponsoring authority have properly explained the time lag
between 6/7/2012 i.e. the date when the representation was
received by the detaining authority and the date of
communication of rejection to the detenu i.e. on 30/7/2012.
The explanation offered by them is reasonable and
19Page 20
acceptable. We find that the representation was taken up
for consideration as soon as it was received and dealt with
continuously until a final decision was taken and
communicated to the detenu. Undoubtedly, time was taken
to obtain para-wise comments from the sponsoring
authority. But, in Kamarunnissa v. Union of India24, this
Court has held that seeking views of the sponsoring
authority cannot be said to be a futile exercise. Thus, the
time lag between receipt of the representation till its
consideration and communication of rejection to the detenu
is properly explained.
16. We, however, find that the delay in transmitting the
representation to the detaining authority by the jail authority
is not explained. If the representation was received by the
Superintendent of Jail on 23/6/2012, he should have
immediately sent it to the detaining authority. The detaining
authority has received it on 6/7/2012. The time lag between
23/6/2012 and 6/7/2012 is not explained at all. It is only
stated by the detaining authority that 23/6/2012 and
24 (1991) 1 SCC 128
20Page 21
1/7/2012 were public holidays. There is no explanation for
the inaction on the part of the Superintendent of Jail, Nashik
Road Central Prison, Nashik. He has not cared to file any
affidavit explaining why the representation which was
received by him on 23/6/2012 was not sent to the detaining
authority immediately. In Pebam Ningol Mikoi Devi,
seven days’ unexplained delay in forwarding the
representation to the Central Government was held to be
fatal. In Aslam Ahmed Zahire Ahmed Shaik, the detenu
had handed over his representation to the Superintendent of
Jail on 16/6/1998 for onward transmission to the Central
Government. It was kept unattended for a period of seven
days and, as a result, it reached the Government 11 days’
after it was handed over to the Superintendent of Jail. The
Superintendent of Jail had not explained the delay. Relying
on Vijay Kumar v. State of J. & K.25, the continued
detention of the detenu was set aside. At the cost of
repetition, we must note that in this case, the
Superintendent of Jail has not filed any affidavit explaining
25 (1982) 2 SCC 43
21Page 22
delay. Therefore, this delay, in our opinion renders continued
detention of the detenu, illegal.
17. We would like to make it clear that the delay in disposal
of the representation of the detenu has vitiated only the
continued detention of the detenu and not the detention
order. In Meena Jayendra Thakur v. Union of India26
,
this Court was considering a case where the detenu was
detained under the provisions of the said Act. This Court
held that if the detaining authority on the basis of the
materials before him did arrive at his satisfaction with regard
to the necessity for passing an order of detention and the
order is passed thereafter, the same cannot be held to be
void because of a subsequent infraction of the detenu’s right
or of non-compliance with the procedure prescribed under
law because that does not get into the satisfaction of the
detaining authority while making an order of detention under
Section 3(1) of the said Act. It does not affect the validity of
the order of detention issued under Section 3(1) of the said
Act. Similar view has been taken by this Court in Sayed
26 (1999) 8 SCC 177
22Page 23
Abdul Ala. In that case, this Court was concerned with an
order of detention issued under the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988. It was argued that there was delay in considering the
representation of the detenu. Relying on Meena Jayendra
Thakur, this Court expressed that even if it is to be assumed
that there was some delay in considering the representation,
the same would not vitiate the original order of detention.
By reason of the delay, only further detention of the detenu
will become illegal. The delay in considering the
representation does not vitiate the order of detention itself.
In Harish Kumar, this Court was again considering an order
of detention issued under the provisions of the said Act. This
Court reiterated the same view and held that the detention
order passed at the satisfaction of the detaining authority on
the basis of the material available in no manner gets vitiated
for the reason of non-consideration of the representation
made by the detenu to the Central Government. It was held
that initial order of detention was not rendered void ab initio.
It may be noted that even the Constitution Bench of this
23Page 24
Court in K.M. Abdulla Kunhi, held that any unexplained
delay in disposal of representation of the detenu would be a
breach of the constitutional imperative and it would render
the continued detention impermissible and illegal and set
aside the continued detention of the detenu.
18. In view of this clear legal position, we hold that the
order of detention dated 16/4/2012 is valid. However, on
account of delay in disposal of the representation of the
detenu by the State Government, the continued detention of
the detenu is rendered illegal. We, therefore, direct that the
detenu – Abdul Nasar Adam Ismail be released from
detention forthwith if he is not already released from
detention and he is not required in any other case. The
appeal is disposed of accordingly.
………………………….J.
[T.S. Thakur]
………………………….J.
(Ranjana Prakash Desai)
24Page 25
New Delhi
April 2, 2013
25
