Back
2000 Supreme(SC) 516
SUPREME COURT OF INDIA
K.T.Thomas : M.B.Shah
Rajappa Neelakantan
Versus
State Of Tamil Nadu
Case No. : 227 of 1999
Date of Decision : 3/7/00
A preventive detention order is not vitiated by an explainable delay in disposing of a representation or the omission of a co-detenu's records, provided the detaining authority's subjective satisfaction is based on the detenu's own conduct and activities.
Headnote:(A) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act - Challenge to detention order - Failure to place records of co-traveller before detaining authority - Not a ground for vitiating the order if the detention is based principally on the acts of the detenu in collaboration with others; further, records of others may create apprehension of bias in the detaining authority. (Para 6)
(B) Delay in disposing of representation - The mere existence of delay does not automatically vitiate a detention order - Delay must be unexplainable; if the explanation offered is reasonable and acceptable, the order remains valid - Practicalities of sorting mail and intervening government holidays constitute a reasonable explanation for a short delay in processing a representation. (Paras 7, 8 and 9)
(C) Necessity of preventive detention - The detaining authority is entitled to form a subjective satisfaction as to whether the detenu has the means to continue nefarious activities based on the history of the detenu's conduct and the circumstances of the seizure. (Para 10)
Facts of the case:
A government employee was intercepted at an airport where a large number of mobile phones were detected in his baggage. Following his arrest and subsequent release on bail, a preventive detention order was passed against him for a period of one year. The detenu challenged the order on three grounds: non-disclosure of the co-traveller's detention records to the detaining authority, delay in the Central Government's disposal of his representation, and the lack of compelling necessity for his detention since the co-traveller had already been detained.
Findings of Court:
The court found that the non-inclusion of the co-traveller's records was justified to avoid bias and because the authority was already aware of the co-traveller's detention. The delay in processing the representation was explained by consecutive government holidays and the administrative process of sorting mail, making it reasonable. The court further held that the detaining authority's subjective satisfaction regarding the necessity of detention was justified given the detenu's actions and professional status.
Issues: Whether the detention order was vitiated by the omission of co-traveller's records, whether the delay in disposing of the detenu's representation was unexplainable, and whether there was a compelling necessity for preventive detention.
Ratio Decidendi: A preventive detention order is not invalidated by a reasonable and explainable delay in disposing of a representation. The detaining authority's subjective satisfaction regarding the necessity of detention, based on the detenu's own conduct and potential for continued illegal activity, is entitled to respect and is not diminished by the prior detention of a co-accused.
Result: Writ Petition dismissed.
(1) THIS Writ Petition is filed by a detenu challenging the order of detention passed against him on 2/8/99 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA). The detention actually commenced on 4/8/99 and it is for a period of one year. We are told that presently the detenu is on parole and the parole is being extended by orders of this Court.
(2) THE detention order was passed in the following background. The petitioner arrived at Anna International Airport on 25/4/99 in the company of one Radhakrishnan Prabhakaran. The Petitioner was an Assistant Public Relation Officer attached to the Department of Tourism under the Government of Tamil Nadu. On suspicion, the petitioner and his co-traveller - Radhakrishnan Prabhakaran were intercepted and on search 102 mobile phones were detected from the baggage of the petitioner alone and from the baggage of his co-traveller 92 mobile phones were detected. Both of them were arrested on the next day and their statements were separately recorded. Petitioner was released on bail on 28/6/99.
(3) THE preventive detention order was passed against Radhakrishnan Prabhakaran. We may mention now that the said order was challenged in this Court but we did not interfere with the said order as per the judgment of this Court dated 2/3/2000.
(4) MAINLY three points have been raised by the petitioner in challenge of the detention order passed against him. They are: 1. The sponsoring authority (the Customs Department) did not place relevant and vital documents for consideration before the detaining authority. 2. There was delay in considering and disposing of the representation made by the petitioner before the Central Government. 3. There was no compelling necessity to preventively detain the petitioner.
(5) FOR elaborating the first ground learned counsel contended that records connected with the detention of the co-traveller - Radhakrishnan Prabhakaran were not placed before the detaining authority. Had those records been placed, perhaps, the detaining authority would have come to a different conclusion, contended learned counsel.
(6) WE cannot appreciate the said contention for two reasons. First is that the detention order in respect of the present petitioner should be based principally on the facts centred on what he had done in collaboration with his co-traveller. In other words, if the detention order and the connected records relating to the co-traveller were to be placed before the detaining authority there could possibly be an apprehension that the detaining authority would be biased against the petitioner because of the various allegations contained therein. Second is that the detaining authority cannot be said to be totally ignorant of the fact that Radhakrishnan Prabhakaran was also detained under a separate order, for, the aforesaid detention order against Radhakrishnan Prabhakaran was passed by the same detaining authority just six days prior to the impugned detention order. So we do not see much force in the said grou.nd raised now.
(7) WHILE dealing with the second ground we initially thought that the petitioner has really a case to put forward because at the first blush it may appear that there was delay on the part of the Central Government in disposing of the representation made by the detenu. We may point out that representation to the Central Government was actually made by the detenu on 1/9/99 and the same was disposed of by the Central Government only on 15/9/99. No doubt there is delay. It is not the law that whenever there is any delay the detention order would be vitiated. The law is that the delay should not be unexplainable and that the explanation offered must appear to the court to be reasonable and acceptable.
(8) IN the present case the representation sent by the detenu to the Central Government on 1/9/99 has reached the COFEPOSA Unit of the Fina
