1999 Supreme(SC) 1219

1999(9) Supreme 198
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
K.T. Thomas and A.P. Misra, JJ.
Ahamed Nassar -Petitioner
versus
The State of Tamil Nadu & Ors. -Respondents
Writ Petition (Criminal) No. 166 of 1999
Decided on 14-10-1999
Counsel for the Parties :
For the Appellant : K.K. Mani, Advocate.
For the Respondent in Union of India : T.C. Sharma, P. Parmeshwaran, Advocates.
For the Respondent No. 1 : R. Mohan, V.G. Pragasan, Advocates.

IMPORTANT POINTS
1. Issuance of the formal order preventive detention order is relevant date upto which if any relevant material comes in possession of the concerned authority has to be placed before the detaining authority.
2. Non-placement of representation of detenue, before detaining authority, which was received after signing of detention order but before issuance of formal order of detention vitiated detention order.
3. Letter send by detenu s Advocate to sponsoring authority cannot be kept out of consideration of detaining authority merely on technical plea that it was not accompanied by a vakalatnama.
4. In spite of rejection of the bail application by a court, it is open to the detaining authority to come to his own satisfaction based on the contents of the bail application keeping in mind the circumstance that there is likelihood of detenu being released on bail.

Headnote:(i) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1)(i) - Preventive detention -Legality of-Delay in consideration of detenu s representation-Two days delay-Delay attributable to time taken by sponsoring authority to send its comments-Though authorities were in same city delay could not be branded undue delay or callousness in considering representation-Detention order not vitiated on ground of delay in considering representation. (Paras 8, 9 & 10)

       (ii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1)(i) - Preventive detention -Legality of order-Delay in considering detenu s representation by Central Government-Two day s delay - Communications through Speed Post-Delay due to vagaries of postal department-Detenu s plea that faster mode of communication i.e. by Air or a messenger by flight should have been adopted-Contention far fetched-On facts and circumstances there was no delay in considering representation of detenu by Central Govt.-Detention order not vitiated on that score.

       Held : The submission is, when liberty of an individual is affected, faster mode of communication should have been adopted, if necessary, it should have been sent by Air or through a special messenger by flight. This in our considered opinion is too far fetched to be accepted. The liberty of an individual under Constitution is very sacroscant and there is constitutional obligation cast on the concerned authorities but this liberty should not be so stretched to such unreasonable extent to force communications to be sent through special messenger by air. We have to keep in mind that mode of communication for the statutory authorities has to be in the mode prescribed which has to be reasonable. It has been stated and we have also found from the file placed before us that the mode of these communications were through speed post. This could not be construed as callous, slack or casual disposition of his representation. For the respondent it was stated from the records that the communication between the Central Government at New Delhi and sponsoring authority and detaining authority at Chennai was through speed post. The stated delay was on account of vagaries of the postal department. It is not attributable to the States. Hence on the facts and circumstances of this case, it is not possible to hold, there was any delay in the disposal of detenue s representation by the Central Government. In our considered opinion there was no delay in consideration of detenu s representation both by the State and the Central Government. (Paras 10 & 11)

       What is relevant is, there should be reasonable explanation for such delay. How the authorities has dealt with the matter? If it was casual, neglect, keeping relevant papers immobile without any reasonable cause are attributable to assess delay. But delay on account of vagaries of or on account of inefficiency of postal or communicating agencies cannot in normal circumstances be taken as inexcusable delay either by the sponsoring or detaining authority or the concerned State authorities in disposal of detenu s representation. (Para 13)

       (iii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1)(i) - Preventive detention -Legality of order-Non-placement of material documents before detaining authority - Representation of detenue, wherein he retracted earlier alleged confessional statement and offering to pay duty on goods seized from him, reached sponsoring authority after signing detention order but before issuing formal detention order-Non-placement of representation before detaining authority vitiated detention order.

       Issuance of the formal order preventive detention order is relevant date upto which if any relevant material comes in possession of the concerned authority has to be placed before the detaining authority. (Para 27)

       In the present case, the letter of detenu dated 23rd April, 1999 was received on 26th April, 1999, i.e., before issuance of formal detention order dated 28th April, 1999. It was incumbent for the Secretary concerned to have placed it before the detaining authority. So non-placement of those two letters which were relevant, vitiates the impugned detention order. (Para 27)

       (iv) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1)(i) - Preventive detention -Consideration of representation of detenue-Detenu s Advocate sending letter to sponsoring authority-Non-placing if before detaining authority-Reason that it was not accompanied with vakalatnama and further the letter merely reiterated what was stated in bail application which was rejected by Court-Stand of Government unjustified-Technical objections must be shun.

       Held : These technical objections must be shun where a detenu is being dealt under the preventive detention law. A man is to be detained in the prison based on subjective satisfaction of the detaining authority. Every conceivable material which is relevant and vital which may have bearing on the issue should be placed before the detaining authority. Sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. Decision is not to be made by the sponsoring authority. The law on this subject is well settled, a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision. (Para 18)

       (v) Preventive Detention-Interpretation of Provisions of preventive detention law-Duty of Court-If there be two possible interpretations then the one that subserve the object of the statute should be accepted.

       In interpreting any provision of Preventive detention law, its preamble and its objectives has to be kept in mind. COFEPOSA is brought in for the conservation and augmentation of foreign exchange and for the prevention of smuggling. This became necessary as there were large scale violations of foreign exchange regulations and increasing smuggling activities affecting the National economy. In other words, it was brought in to prevent such clandestine activities by detaining such person. In order to achieve this objective, in the national interest an obligation is cast on the State even to curtail the most sacred of the human rights, viz., his personal liberty. The source of power to curtail this, flows from Article 22 of the Constitution of India within the limitation as provided therein. Every right in our Constitution within its widest amplitude is clipped with reasonable restrictions. Right under Article 15 not to be discriminated on grounds of religion, race, caste, sex, etc. is clipped through its sub-clause (3) and (4) while making provisions for women, children, socially and educationally backward classes, Scheduled castes and Schedule Tribes respectively. Article 16 creates right for equality of opportunity in the matter of public employment which is curtailed through its sub-clauses (3), (4), (4A) and (5) by enabling the Parliament to make law confining to a class or classes for employment to an office even prior to such employment, permitting reservation in favour of backward class, Scheduled castes and Scheduled tribes or in the cases of religious denominational institution. Each of the most solemn rights of any citizens is cloaked with reasonable restrictions under various sub-clauses of Article 19. The protection of life and personal liberty enshrined in Article 21 itself contains the restriction which can be curtailed through the procedure established by law, which of course has to be reasonable fair and just. Article 2 confers power to deprive of the very sacrosanct individual right of liberty under very restricted conditions. Sub-clauses (1) and (2) confers right to arrest within the limitations prescribed therein. Sub-clause (3) even erases this residual protective right under sub-clauses (2) and (3) by conferring right on the authority to detain a man without trial under the preventive detention law. This drastic clipping of right is for a national purpose and for the security of the State. (Paras 31 & 32)

       Similarly, Article 301, Chapter XII of the Constitution confers right to trade, commerce and intercourse freely through out the territory of India but succeeding Articles, viz., Articles 302, 303 and 304 slice that absolute freedom in various grades and degrees. Each of such checks and clippings in the absolute right of an individual is made within the sphere of certain reasonableness to give preference, when in conflict with the collective right of and for the gain of the society. Man is a social animal who dedicates his works to enrich the social coffer for enriching social development. On one hand individual rights are well recognised but when it makes dent on society, affecting public right it gives way. This is the pattern of our Constitution. So far as individual rights are concerned they are recognised and fully protected but such right is curtailed when it tramples on community right or right of public at large. It is severely curtailed when it tramples with considerable magnitude for self gain, deleteriously effecting the national interest by dealing such person sternly through preventive detention without trial, for a specified period within the limitation provided therein. So in any organised society there can be no rights in absolute term. (Para 33)

       Thus courts must first find, the extent of individual right deciphering with the degree of trespass he makes on the public right, on which there is embargo. Where an individual acts clandestinely for his personal gain against national interest deleteriously affecting national economy or security the drastic curtailment of his right should be kept in mind to see that no such person escapes from the clutches of law. On the one hand, as it takes away ones liberty it should be strictly construed, on the other hand to subserve the objective of this Act, in the national interest it should be seen that no such person escapes. In this backdrop of the Constitutional scheme, the preamble as also the objects and reasons of COFEPOSA we have to scrutinize and test the justiciability of the acts of every statutory functionary performing statutory obligations under the Act. It is well settled that whenever there are two possible interpretations of a statute, the one that subserves the objective of an enactment is to be accepted. The same principle shall with equal force apply in testing the credibility of the acts of a statutory functionary performing their statutory obligations. Such authorities , while performing their obligations under the preventive detention law must perform it on one hand with promptness, as not to further lengthen detenus detention through their causal conduct, neglect, lethargy, etc. on the other hand all what is required to be done by it is if it has been done then in construing its conduct, conclusions etc., if there be two possible interpretations then the one that subserve the objective of the statute should be accepted. (Paras 34)

       (vi) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1)(i) - Preventive detention- Likely to be released - It connotes changes of being bailed out-Inspite of rejection of bail application by Court, it is open to detaining authority to come to his own satisfaction based on contents of bail application keeping in mind circumstance that there is likelihood of detenu being released on bail.

       In spite of rejection of the bail application by a court, it is open to the detaining authority to come to his own satisfaction based on the contents of the bail application keeping in mind the circumstance that there is likelihood of detenu being released on bail. Merely because no bail application was then pending is no premise to hold that there was no likelihood of his being released on bail. The words "likely to be released" connote chances of being bailed out, in case there be pending bail application or in case if it is moved in future is decided. The word "likely" shows it can be either way. So without taking any such risk if on the facts and circumstances each case, the type of crime to be dealt with under the criminal law, including contents of the bail application, each separately or all this compositely, all would constitute to be relevant material for arriving at any conclusion. The contents of bail application would vary from one case to the other, coupled with the different set of circumstances in each case, it may be legitimately possible in a given case for a detaining authority to draw an inference that there is likelihood of detenu being released on bail. (Para 41)