2016 (4) TMI 54 - SC - Customs

Whether non-communication of the order rejecting the representation in an effective manner would invalidate or vitiate the order of detention - order of detention passed u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) - Held that - it is clear as day that while rejecting the representation, a speaking order need not be passed and what is necessary is that there should be real and proper consideration by the Government and the Advisory Board. The detaining authority on the basis of certain material passes an order of detention. The same has to be communicated at the earliest as mandated under Article 22(5) of the Constitution. A period has been determined. Non-communication within the said period would be an impediment for sustaining the order of detention. Similarly, if a representation is made and not considered with promptitude and there is inordinate delay that would make the detention order unsustainable. Order of detention - Appellant contended that detenu was detained on 25.2.2013 and released on 24.10.2013 and in this backdrop, the detenu should not be sent back to undergo the remaining period of detention - Held that - there exists no proximate temporal nexus between the period of detention indicated in the order for which the detenu was required to be detained and the date when the detenu is required to be detained if the order is set aside. The detenu was initially detained for one year. He remained in incarceration from 25.2.2013 to 24.10.2013. The High Court has quashed the order of detention and he has been set at liberty. So, by keeping in view the principles stated in the case of Sunil Fulchand Shah v. Union of India 2000 (2) TMI 792 - SUPREME COURT OF INDIA and Chandrakant Baddi v. ADM & Police Commr, the appropriate course for the nature of grounds on which the detention order was passed would be that the detaining authority should re-examine the matter. - Decided in favour of appellant

Issues Involved:
1. Defensibility of the High Court's quashing of the detention order.
2. Communication of the decision rejecting the detenu's representation.
3. Application of mind by the competent authority in rejecting the representation.
4. Whether the detenu should be sent back to complete the remaining period of detention.

Issue-wise Detailed Analysis:

1. Defensibility of the High Court's Quashing of the Detention Order:
The Supreme Court was called upon to examine the defensibility of the High Court of Kerala's judgment which quashed the detention order against the detenu under Section 3(1) of the COFEPOSA Act. The High Court had quashed the detention order on the ground that the constitutional requirement under Article 22(5) of the Constitution was violated, as the decision of the competent authority was not communicated to the detenu, but only a laconic communication from the Under Secretary was issued.

2. Communication of the Decision Rejecting the Detenu's Representation:
The High Court held that the detenu's constitutional right under Article 22(5) was violated because the decision of the competent authority was not communicated to him directly. Instead, the Under Secretary's communication merely stated that the representation was rejected without indicating that the competent authority had duly considered it. The Supreme Court, however, emphasized that the competent authority's satisfaction must be reflected in the file and that the communication need not be from the competent authority itself. The Court stated, "The competent authority while considering the representation is not required to pass a speaking order but it must reflect that there has been real and proper consideration of the representation."

3. Application of Mind by the Competent Authority in Rejecting the Representation:
The Supreme Court examined whether there was real and proper consideration by the competent authority. The Court perused the file and found that the Under Secretary had provided detailed comments on the representation, and the competent authority had stated, "I have gone through the representation. I do not find sufficient ground for exercising powers under Section 11 of the COFEPOSA Act. The representation is rejected." The Court concluded that this indicated real and proper consideration by the competent authority. The Supreme Court clarified that the order need not be a speaking one but must show subjective satisfaction, stating, "The competent authority is not required to pass an adjudicatory order."

4. Whether the Detenu Should Be Sent Back to Complete the Remaining Period of Detention:
The Supreme Court addressed whether the detenu should be sent back to complete the remaining period of detention. The detenu had been detained from 25.02.2013 to 24.10.2013 before being released by the High Court. The Supreme Court referred to precedents, including Sunil Fulchand Shah v. Union of India, which stated that the decision to send the detenu back should depend on whether there still exists a proximate temporal nexus between the period of detention and the date when the detenu is required to be detained. The Court directed the detaining authority to re-examine the matter within two months, considering whether it is desirable for the detenu to serve the remaining period of detention.

Conclusion:
The Supreme Court set aside the High Court's judgment, holding that the non-communication of the order by the competent authority did not invalidate the detention order, provided there was real and proper consideration of the representation. The Court directed the detaining authority to re-examine the necessity of the detenu serving the remaining period of detention.

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