IMPORTANT POINTS
In the communication to the detenue, it is not necessary to give reasons for rejection of representation.
Inordinate delay in communicating order of detention and consideration of representation invalidates the detention order.

Headnote:(a) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3(1) r/w Article 22(5), Constitution of India – Detention – Necessity of communication to detenue– Not necessary to give reasons for rejection of representation – However, it must indicate application of mind by the authority – If not, court will be entitled to call for files and satisfy itself – In case of no application of mind, detention will be vitiated. (Para 22)
       (1982) 2 SCC 437; (2002) 1 SCC 545; (2000) 7 SCC 601; (1975) 3 SCC 198; (1975) 3 SCC 836 – Relied upon
       2004 (2) KLT 1094 – Cited with approval
       (2000) 7 SCC 148; (1999) 8SCC 473; (1990) 3 SCC 309; (1979) 1 SCC 222 – Referred
       (2000) 3 SCC 409 – Distinguished
       2010 (1) KLT 230 – Not correct law
       (b) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3(1) and 11 r/w Article 22(5), Constitution of India – Detention – Preventive Detention – Order of detention should be communicated within a fixed time – Similarly representation should be considered with promptitude – Inordinate delay makes detention order unsustainable – Instantly authorities arriving at subjective satisfaction on basis of material on record and rejecting appellant’s representation – No infirmity. (Para 36)
       (1975) 2 SCC 81; (1982) 3 SCC 10; (1982) 2 SCC 43 – Relied upon
       (c) Preventive detention – Detenue initially detained for one year – Remained in incarceration for 8 months – Thereafter High Court quashing detention order – Whether detenue should serve out remaining period – Detaining authority directed to re-examine the matter in consonance with the principle stated in Sunil Fulchand Shah and Chandrakant Baddi. (Para 41)
       (2000) 3 SCC 409; (2004) 8 SCC 780; (2006) 7 SCC 540; (2008) 17 SCC 290; (1981) 4 SCC 216 – Relied upon
       AIR 1982 SC 1029; 2011 (4) KHC 422; 1952 SCR 756; (1991) 1 SCC 476 – Referred
       Facts of the case:
       Husband of the respondent was detained on 25.02.2013 and lodged in the Central Prison, Thiruvananthapuram.
       The detenu made a representation on 11.04.2013 which was rejected.
       The detention was confirmed by the Advisory Board.
       Division Bench of the High Court has quashed the order of detention.
       Finding of the Court:
       Impugned judgment is not sustainable.
       Result: Appeal allowed.

JUDGMENT :

Dipak Misra, J.

Calling in question the defensibility of the judgment and order dated 24.10.2015 passed by the High Court of Kerala by which the Division Bench has quashed the order of detention passed against Abdu Rahiman (detenu), the husband of the respondent, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for brevity, ‘the COFEPOSA Act’), the instant appeal, by special leave, has been preferred.

2. Shorn of unnecessary details, the facts which are essential to be stated for adjudication of this appeal are that an order of detention was issued on 08.02.2013 under Section 3(1) of the COFEPOSA Act. The said order, as the facts would uncurtain, came into existence on the basis of proposal of the Sponsoring Authority (Directorate of Enforcement) and the Empowered Officer of the Central Government (the Detaining Authority). The grounds of detention were communicated to the detenu vide communication dated 08.02.2013. By the said communication in compliance with Article 22(5) of the Constitution and Section 3(3) of the COFEPOSA Act, the detenu was informed of his right to make a representation against his detention to the Detaining Authority. Be it stated, pursuant to the order of detention, the detenu was detained on 25.02.2013 and lodged in the Central Prison, Thiruvananthapuram.

3. The detenu made a representation on 11.04.2013 which was received on 18.04.2013 by the Jail Superintendent which was forwarded to the competent authority and thereafter the Special Secretary-cum-Director General, Central Economic Intelligence Bureau, Ministry of Finance, Department of Revenue, rejected the representation on behalf of the Central Government on 26.04.2013 after due consideration. The order of rejection was communicated to the detenu vide memorandum dated 29.04.2013 by the Under Secretary, Government of India. Keeping in view the prescription enshrined under Section 8(1) of the COFEPOSA Act, reference was made to the Advisory Board and the detenu was heard by the Advisory Board on 04.05.2013, and thereafter vide order dated 21.05.2013, he was informed that the Advisory Board was of the opinion that sufficient reasons existed for his detention. On the basis of the opinion of the Advisory Board, the Central Government confirmed the order of detention and directed that the detention of the detenu would remain in force for a period of one year commencing from the date of his detention.

4. Aggrieved by the aforesaid order, the wife of the detenu filed Writ Petition (Criminal) No. 406 of 2013 before the High Court seeking a writ of habeas corpus. It was urged before the High Court that the decision of the competent authority was not communicated to the detenu; that there was inordinate and unexplained delay in passing the order of detention; that the report submitted by the sponsoring authority was not served on the detenu; that there was delay in considering his representation; that the translated copy of the order of detention was not served on him; that he was not served the order rejecting his representation; and that the order of rejection passed by the competent authority indicating the reasons was not communicated to the detenu.

5. Counter affidavit was filed by the respondents putting forth the stand that before rejecting the representation of the detenu, the requisite process was adhered to, and in support of the same it was asserted that after receipt of the representation of the detenu from the Jail Superintendent by the Deputy Director, Calicut, the same was sent to the Ministry with para-wise comments on 25.4.2013. On 26.4.2013, after examining the issue raised in the representation, the Under Secretary put up the file before the Joint Secretary who is the Competent Authority under Section 3(1) of the COFEPOSA Act. The said Authority recorded its comments and submitted the file to the Special Secretary and Director General, Central Economic Intelligence Bureau for

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2016 Supreme(SC) 127

SUPREME COURT OF INDIADipak Misra, Prafulla C. Pant, JJ.Union of India & Ors. – AppellantsVersusSaleena – RespondentsCriminal Appeal No. 1251 of 2015 (@ Special Leave Petition (Criminal) No. 5890 of 2014)Decided on : 29-01-2016

IMPORTANT POINTS In the communication to the detenue, it is not necessary to give reasons for rejection of representation.Inordinate delay in communicating order of detention and consideration of representation invalidates the detention order.

Cases Referred (24)

SUPREME COURT OF INDIA
Dipak Misra, Prafulla C. Pant, JJ.
Union of India & Ors. – Appellants
Versus
Saleena – Respondents
Criminal Appeal No. 1251 of 2015 (@ Special Leave Petition (Criminal) No. 5890 of 2014)
Decided on : 29-01-2016

IMPORTANT POINTS
In the communication to the detenue, it is not necessary to give reasons for rejection of representation.
Inordinate delay in communicating order of detention and consideration of representation invalidates the detention order.