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TMI Blog2001 (5) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... n the allegations on being in illicit possession of US $ 37,500, equivalent Rs. 16,08,750 in Indian currency found in the checked-in-package when he was going to Nepal from New Delhi on 2-5-2000. Though the petitioner took the stand that the money was not contraband as he had brought the same at the time of his arrival from Nepal in April 2000 in connection with his business activities of woollen garments and was taking back the amount as the deal had not materialised, and he had declared it before the Customs officials, he was apprehended and the amount was seized. Though a statement is purported to have been recorded confessing guilt same was allegedly obtained under duress. He was arrested and produced before ACJM on 3-5-2000. The petitioner was in judicial custody at the time when order of detention was passed by the LG and it was served on 5-8-2000. The petitioner made representations to the authorities on 21-8-2000. Those were rejected by both the LG and the Central Government on 29-8-2000 and 30-10-2000 respectively. Thereafter this habeas corpus petition has been filed. 3. Several points have been urged in support of the writ petition. Counter affidavit has been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention order under COFEPOSA Act, 1974 there is no question of detention orders being approved by the Lt. Governor. The approval of detention orders is done by the Lt. Governor in cases of detention orders passed under the National Security Act, 1980 as under the National Security Act, 1980 the powers to pass the detention order are delegated by the Lt. Governor to Commissioner of Police." 4. Since there were marked variations in the stand taken by the detaining authority, we had directed original record to be produced, which were submitted by the learned counsel for detaining authority. It is to be noted that the LG is the competent authority to pass detention order under the Act. There is no question of it being approved by the LG but the position is different under the National Security Act, 1980 (NSA) where approval of detention order is done by the LG. The provisions of section 3 and section 3 of NSA are contextually different on this aspect. There is no provision similar to section 3(4) of NSA under the Act. In the aforesaid background, it has to be seen as to whether the procedural safeguards mandated under article 22 have been followed. 5. Before dealing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is heard first." ( Freedom under the Law, Hamlyn Lectures, 1949) 6. Personal liberty, is by every reckoning the greatest of human free- doms and the laws of preventive detention are strictly constructed and a meticulous compliance with the procedural safeguards, however technical, is strictly insisted upon by the Courts. The law on the matter did not start on a clean slate. The powers of Courts against the harsh incongrui-ties and unpredictabilities of preventive detention are not embodied in merely a page of history, but a whole volume. The compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty would lose all their meaning are the true justifications for the laws of preventive detention. Laws that provide for preventive detention posit that an individual s conduct prejudicial to the maintenance of public order or to the security of State or financial stability of the State, national economic discipline provides grounds for satisfaction for a reasonable prognostication of a possible future manifestations of similar propensities on the part of the offender. This jurisdiction has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of detention. . . ." (p. 1988) In Vijay Narain Singh v. State of Bihar AIR 1984 SC 1334 : Justice Chinnappa Reddy in his concurring majority view said: ". . . I do not agree with the view that those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires . It is too perilous a proposition. Our Constitution does not give as carte blanche to any organ of the State to be the sole arbiter in such matters. . . ." (p. 1336) ". . . There are two sentinels, one at either end. The Legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set by the Constitution and the Legislature have been transgressed. . . ." (p. 1336) In Hem Lall Bhandari v. State of Sikkim AIR 1987 SC 762 it was observed: ". . . It is not permissible, in matters relating to the personal liberty and freedom of a citizen, to take either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. The action of executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct, the failure to conform to which should lead to detention. The satisfaction of the detaining authority, therefore is a purely subjective affair. The detaining authority may act on any material and on any information which may merely afford basis for a sufficiently strong suspicion to take action but may not satisfy the test of legal proof on which alone a conviction for offence will be tenable. It is the Constitutional right of the detenu to get all the grounds on which the order has been made. As has been said by Benjamin Cordozo, A constitution states or ought to state not rules for the passing hour, but the principles for an expanding future . The concept of grounds used in the context of detention in article 22(5) has to receive an interpretation which will keep it meaningfully in tune with contemporary notions of the realities of the society and the purpose of the Act in the light of concepts of liberty and fundamental freedoms. While the expression grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt order passed by the empowered officer is placed on the same footing, as an order made by the State Government. In Kamlesh Kumar Ishwar Das Patel v. Union of India 1995 (4) SCC 51, it was held that requirement regarding forwarding of a report contained under the Act cannot afford the basis for holding that the order made by an officer especially empowered by the Central Government or the State Government requires deemed approval. An approval actual or deemed, postulates application of mind to the action being approved by the authority giving approval. 11. The word approval is nowhere defined in the enactment. But it is an official terminology concerned between subordinate official and higher authority who sanctions or confirms something which was proposed by the subordinate. The dictionary meaning of the expression approval is an act of approving or a formal permission or sanction to an intended act to be carried out by a subordinate who seeks permission. The word approve is derived from Latin word approbare which connotes to give one s sanction or confirmation. Approved in terms of approval connotes authority therefor. An authority to which power has been given ..... X X X X Extracts X X X X X X X X Extracts X X X X
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