Ummu Sabeena v. State of Kerala & Ors.
A GANGULY, J. 1. Leave granted.
2. All these four appeals have been filed impugning an
order dated 30th September, 2011 of the High Court of Kerala
whereby the writ petitions filed for issuance of writs of Habeas
B 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.
C 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
D 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
E 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
F rejected by the State Government on 8th April, 2011. But the
Central Government took time till 6th 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
G 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
H Section, New Delhi. The purported explanation has been given
UMMU SABEENA v. STATE OF KERALA & ORS. 191
[ASOK KUMAR GANGULY, J.]
in para 3 of the said affidavit. A perusal of para 3 of the A
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, B
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 c
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 file along with all
the relevant files and documents to the Deputy Secretary,
COFEPOSA on 18th May, 2011 for examination. After detailed D
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 E
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 F
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 G
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 & H
A Ors., State of Karnataka & Ors. (1991) 1 SCC 476. The
unanimous Constitution Bench, speaking through Justice K.
Jagannatha Shelly, 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
B statutory provision, any lime 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
c 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.
D 10. Considering the aforesaid provision, the Constitution
Bench held that "there shpuld 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
E 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.
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
G case of Ra}ammal, 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].
UMMU SABEENA v. STATE OF KERALA & ORS. 193
[ASOK KUMAR GANGULY, J.]
13. In another subsequent judgment of this Court in the A
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 B
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 c
taking up the representation for six days is unexplained and the
mere ground was that there were 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. D
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. E
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 F
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 G
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 hal(e been so prayed for as the
writ petition was filed prior to the rejection of the representation
by the detenus. H
A 17. Learned counsel for the Union of India further 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
B 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
C 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,
D 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 Law of
G 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
H under a written Constitution and which has a chapter on
UMMU ::>Al:lc.f:NA v. STATE OF KERALA & ORS. 195
[ASOK KUMAR GANGULY, J.)
Fundamental Rights, to protect individual liberty, the Judges A
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 lndia-1960 by M.C. Setalvad, page 38).
23. Following the aforesaid time-honoured principles, we 0 make it very clear that if we uphold such technical objection in
this proceeding and send the matter back 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 E
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. F
25. The appeals are accordingly allowed.
B.B.B. Appeals allowed