IMPORTANT POINTS
1. Where the Court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings the Court has to take serious note of unclean approach.
2. In preventive detention cases, it should be indicated as to whom the representation has been made specifically and whenever a representation is made to the President or the Governor and not the indicated authorities, the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities.

Headnote:(i) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1)(i)-Constitution of India-Article 22 (5)-Order of detention under-Detenue, a female found to be in possession of huge quantity of contraband articles-She was carrying gold in addition to other articles-Representation made by her father to President of India-Representation not made to authorities indicated in order (grounds) of detention-For the first time in review petition a stand was taken that representation was filed before President of India-High Court held that there was an unexplained delay from stage of dispatch from President s Secretariat till it reached Government of Tamil Nadu and Union of India-Whether High Court was justified in quashing order of detention by substituting its order with fresh order-(No).
       Held : 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. (Para 15)
       For the first time in the review application it was disclosed that the representation was made to the President of India and no representation was made to the State of Tamil Nadu or the Union of India who were arrayed in the writ petition as parties. This appears to be a deliberate attempt to create confusion and reap an undeserved benefit by adopting such dubious device. The High Court also transgressed its jurisdiction in entertaining the review petition with an entirely a new substratum of issues. Considering the limited scope for review the High Court ought not to have taken into account factual aspects which were not disclosed or were concealed in the writ petition. While dealing with a habeas corpus application undue importance is not to be attached to technicalities, but at the same time where the court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings the Court has to take serious note of unclean approach. Whenever a representation is made to the President and the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically, and not in the manner done in the case at hand. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but day to day administration at respective levels are carried on by the Heads of the Department-Ministries concerned and designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in a given case. It really the citizen concerned genuinely 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. 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. (Paras 17 and 18)
       (ii) Constitution of India-Article 32-COFEPOSA Act, 1974-Section 3 (1)(i)-Order of detention-Writ petition-It is appropriate that concerned High Court under whose jurisdiction the order of detention has been passed by State Government or Union Territory should be approached first-In order to invoke jurisdiction under Article 32 of the Constitution, to approach this Court directly, it has to be shown as to why the High Court has not been approached.
       Held : Many unscrupulous petitioners are approaching this Court under Article 32 of the Constitution challenging the order of detention directly without first approaching the concerned High Courts. It is appropriate that the concerned High Court under whose jurisdiction the order of detention has been passed by the State Government or Union Territory should be approached first. In order to invoke jurisdiction under Article 32 of the Constitution to approach this Court directly, it has to be shown by the petitioner as to why the High Court has not been approached, could not be approached or it is futile to approach the High Court. Unless satisfactory reasons are indicated in this regard, filing of petition on such matters, directly under Article 32 of the Constitution is to be discouraged. (Para 20)

JUDGMENT

Arijit Pasayat, J.-An order of detention under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short the Act ) was passed on 26.4.2000 by the Secretary to Government of Tamil Nadu, Public (Law and Order) Department. As a consequence of such mittimus, Smt. Ratnamala (hereinafter referred to as the detenue ) was interned in Special Jail for Women, Vellore. In the grounds of detention it was, inter alia, stated that on 26.2.2000 she was found to be in possession of huge quantity of contraband articles. On her personal search as well as search of her baggages it was found that she was carrying gold in addition to the other articles like cellular phones etc. without any valid permission or documents for importation of goods and she was attempting 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 petition. A grievance was made in the writ petition that the said respondents were duty bound to explain to the Court that the representation had been considered without any delay and in accordance with the constitutional requirements. It was also indicated that though in the representation a request was made to supply various documents and details, nothing had in fact been furnished. The delay and the failure indicated above constituted violation of constitutional safeguards. It was brought to the notice of the High Court by the respondents before it that there was no representation made as claimed when the matter was taken up on 28.9.2000. Only three grounds were urged by the present respondent before the High Court. It was first contended that there was no material to support the conclusion that the detenu is a remand prisoner as was contended by the present appellant. Secondly, the materials/documents furnished to the detenu were illegible and this disabled the detenu from making an effective representation resulting in violation of the protection guaranteed under Article 22(5) of the Constitution of India, 1950 (in short the Constitution ). Finally, it was contended that the documents supplied were illegible and, therefore, the detention order was vitiated and there was no necessity of going into the question whether the documents were relied upon or material documents or otherwise. The High Court did not find any merit in the aforesaid three contentions and since no other point was pressed, the writ petition was dismissed. An application for review was filed on 8.12.2000. Notice was issued in the review application. For the first time it was stated by the respondent in the review petition that in fact no representation was filed before the concerned State Government i.e. State of Tamil Nadu or the Union of India. In fact the representation was made to the President of India. The Court considered the periods spent from the date the representation r

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2003 Supreme(SC) 1006

Cases Referred (11)