UMMU SABEENA vs STATE OF KERALA - 2011 Supreme(UK) 593

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(UK) 593

2012 (1) N.C.C. 175
SUPREME COURT OF INDIA
Hon'ble Mr. Justice Asok Kumar Ganguly and
Hon'ble Mr. Justice Jagdish Singh Khehar
Criminal Appeal No. 2136 of 2011
UMMU SABEENA – Appellant
Versus
STATE OF KERALA & ORS. – Respondents
WITH Criminal Appeal No. 2137 of 2011
SALIYAL BEEVI – Appellant
Versus
STATE OF KERALA & ORS. – Respondents
WITH Criminal Appeal No. 2138 of 2011
SALUKAL BEEVI – Appellant
Versus
STATE OF KERALA & ORS. – Respondents
AND Criminal Appeal No. 2139 of 2011
M. PARIMALA – Appellant
Versus
STATE OF KERALA & ORS. – Respondents
Decided on : 17.11.2011

Appearing Parties :Mr. V. Shekhar, Sr. Adv., Mr. K.K. Mani, Mr. Abhishek Krishna, Ms. B. Sunita Rao, Mr. Vishal Saxena, Mr. B. Krishna Prasad, Mr. M.T. George, Advocates

Headnote:(A) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Sec. 3 and Cnstitution of India, 1950, Art. 22(4) and (5) — Detention of detenus under — Orders passed on 26.2.2011 and Representations were made by detenus on 30.3.2011 — But, consideration and rejection of such representations by Central Government on being devoid of merit — Delay of more than two months in such consideration — And such unexplained delay in disposal of their represenation being a breach of Constitutional imperative and of expression 'as soon as may be' in sub-clauses (4) & (5) of Art. 22 of the Constitution — Continued detention impermissible and illegal — Also, history of personal liberty, as is well known, is a history of insistence on procedural safeguards — Therefore, detention in instant case, quashed. (Paras 4 to 15, 19 to 24)
       (B) Words and expression — Expression 'as soon as may be' in sub-clause (5) of Article 22 of Constitution — Held that the 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.
        (Paras 8, 9)
        ¼v½ fons'kh eqæk laj{k.k vkSj pksjh fNis eky ykus dh xfrfof/k fujks/kd vf/kfu;e 1974] /kkjk 3 vkSj Hkkjrh; lafo/kku] 1950] vuqPNsn 22¼4½ vkSj ¼5½ & ds vUrxZr fu#) O;fDr dks jksdk tkuk & fnukad 26-2-11 dks vkns'k ikfjr fd;s x;s vkSj fu#) O;fDr;ksa }kjk fnukad 30-3-2011 dks vkifÙk;k¡ nk;j dh xbZ Fkh & ijUrq vkifÙk;k¡ cyghu gksus ds dkj.k dsUæh; ljdkj }kjk fopkj.k mijkUr vLohdkj dh xbZ & bl fopkj.k esa nks ekg dk foyEc gks x;k Fkk vkSj ;g vLi"V foyEc] muds vkifÙk i= ds lEcU/k esa] lafo/kku ds vkns'k dk mYya?ku gksus ds dkj.k vkSj ml vfHkO;fDr ßftruh 'kh?kz gks lds mrukÞ tks mi/kkjk ¼4½ vkSj ¼5½] vuqPNsn 22 Hkkjrh; lafo/kku ds fo#) Hkh gS & fujUrj fu#) fd;k tkuk vLohdk;Z vkSj vfu;fer gS & O;fDrxr Lora=rk dk bfrgkl tks loZfofnr gS] og O;ogkfjd lqj{kk ij vkxzg dk bfrgkl gS & blfy,] izLrqr dsl esa fu#) vkns'k jn~n fd;s x;sA
        ¼izLrj 4 ls 15] 19 ls 24½
       ¼c½ 'kCnkoyh vkSj vH;qfDr & vH;qfDr ^ftruk 'kh?kz gks lds mrukÞ tks Hkkjrh; lafo/kku ds vuqPNsn 22 dh mi/kkjk ¼5½ esa fufgr gS & fu.kZ; esa dgk x;k] vH;qfDr] lafo/kku fuekZrkvksa ds er ds fo"k; esa dkQh dqN Li"V djrh gS & fd vkifÙk i= ij rsth ls fopkj fd;k tkuk pkfg, vkSj mls vkikr dkyhu n`f"Vdks.k ls] fcuk laHkkfor foyEc ds] fuLrkfjr fd;k tkuk pkfg,A ¼izLrj 8] 9½

JUDGMENT

Ganguly, J. — 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 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.

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 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 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 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 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 Section, New Delhi. The purported explanation has been given in para 3 of the said affidavit. A perusal of para 3 of the 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, 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 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 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 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 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 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 & Ors., State of Karnataka & Ors. (1991) 1 SCC 476. The unanimous Constitution Bench, speaking through

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2011 Supreme(UK) 593

Cases Referred (3)