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TMI Blog2004 (12) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... en Ghosal(hereinafter referred to as the 'detenu'). A Habeas Corpus Writ Petition under Article 226 of the Constitution of India, 1950 (in short the 'Constitution') was filed by the respondent No. 1, the wife of the detenu. The order of detention was primarily based on the ground that on the basis of information received on 8.1.2002 by the Special Investigation Branch, Kolkata Customs, seven containers of (7 x 20') and one container of (1 x 40') were offloaded, from the vessel of Vishakapatnam Port were detained and examined. The allegation was that few Kolkata based exporters have exported on 5.1.2002 readymade garments, ball pens and side rubber wheels grossly mis-declaring the quantity, description and value with an ulterior motive to avail undue drawback worth crores of rupees. Detenu who was the proprietor of M/s. Shyam Sunder Enterprises had exported some of the containers. After opening the consignments, substantial shortage in quantities were detected. It appeared that the goods were highly over invoiced and even mis-declared in respect of description of certain items. There was grave difference in the actual quantity and the quantity of garments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant materials were taken into consideration. Materials which were in the possession of the sponsoring authority were not placed before the Detaining Authority. In any event there was unusual delay in disposing of the representations and there was no independent consideration by the Central Govt. as required under Section 11 of the COFEPOSA. The stand was opposed by the Detaining Authority. The counter affidavit was filed. A rejoinder was filed by the writ petitioner purportedly with a view to clarify some of the statements made in the counter affidavit. The High Court found that there was no unusual delay in passing the order of detention. But it was held that there was undue delay in initiating the process i.e. the proposal for detention by the sponsoring authority. It was held that there was unexplained delay in passing the order of detention. It was also held that there was unusual delay in executing the order of detention. While the other pleas of the detenu were rejected, it was observed that there was unexplained delay in disposing of the representations and the solitary instance highlighted by the Detaining Authority was not sufficient to justify the order of detention. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary. Section 11(1) of COFEPOSA reads as follows: 11. Revocation of detention orders - (1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified - (a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government; (b) notwithstanding that the order has been made by an officer of the Central Government, or by a State Government by the Central Government. In any event, it was submitted, the detenu was released on 23.8.2003 and more than one year has passed, the detenu had suffered detention for more than eight months and after considerable length of time it would not be proper to send him back. Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention. Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other. The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of States' security, public order, disruption of national economic discipline etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions. In Smt. Ichhu Devi v. Union of India (AIR 1980 SC 1983), this judicial commitment was highlighted in the following words: The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade . This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirement of the law and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention . 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 Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to show that the impugned detention meticulously accords with the procedure established by law. The stringency and concern of the judicial vigilance that is needed was aptly described in the following words in Thomas Pacham Dales' case: (1881 (6) QBD 376: Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the Court will not allow the imprisonment to continue. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it the great and efficacious writ in all manner of illegal confinement . The writ has been described as a writ of right which is grantable ex dobito justitae. Though a writ of right, it is not a wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely. But this cannot be allowed to create a smokescreen by an unscrupulous detenu to take the authorities by surprise, acting surreptitiously or with ulterior motives. Where the order (grounds) of detention specifically indicate the authority to whom the representation is to be made, such indication is also part of the move to facilitate an expeditious consideration of the representations actually made. While dealing with a habeas corpus application undue importance is not to be attached to technicalities, but at the same time where the court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings the Court has to take serious note of unclean approach. Whenever a representation is made to the President or the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but day to day admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rendered unconstitutional nor illegal . Aforesaid aspects were highlighted in Union of India v. Paul Manickam (2003 (8) SCC 342). On bare perusal of the High Court's judgment it appears that the High Court had not properly appreciated the factual scenario. It had in fact noted that there was some delay in passing the order of detention. It referred to the Writ Petitions filed before the Calcutta High Court and the orders passed in those cases. It also noted that the proposal was sent on 4.7.2002 and the statement of the detenu was recorded on 16.7.2002. The proposal for detention was considered by the Central Screening Committee on 18.9.2002 and after consideration of all relevant materials, the order of detention was passed on 20.11.2002. The details of the various steps taken were filed before the High Court. It appears that after the process of investigation started in January, 2002 consequent upon seizure of goods was on 24.1.2002. Writ Petition No. 145 of 2002 was filed in the Calcutta High Court and an interim order was passed staying further effect on the summons and maintenance of status quo of examination of goods. Reply was filed on 12.2.2002. Another Writ Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der was sent to the office of the Commissioner of Police Lal Bazar Police Head Quarters on 20.11.2002. Identification particulars including photographs of the detenu as required by the police for execution of the order were sent to the Commissioner of Police on 26.11.2002. In spite of keeping the house under surveillance by the concerned officers and the police officers, he could not be traced. Finally he was arrested on 27.12.2002. It is not a case where there is unusual gap between the date of the order of detention and the actual arrest. The various steps taken by the authorities as noted above clearly indicate that all possible efforts were being taken to arrest the detenu, but he successfully evaded arrest. The High Court was not justified in coming to the conclusion that there was unusual delay in executing the order of detention. So far as the finding of the High Court that there was only one incident is really a conclusion based on erroneous premises. It is not number of acts which determine the question as to whether detention is warranted. It is the impact of the act, the factual position as highlighted goes to show that the financial consequences were enormous and ran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er its receipt. It has to be noted that the Detaining Authority and/or the Central Government and/or the State Government, as the case may be, have to explain the action taken on the representation after it had reached the concerned authority. The representation should be received by a person authorized to receive it. The Detaining Authority or the concerned authority of the Central Government may have authorized some members of the staff to receive representation or any official document. If the representation is handed over to or served on a person who is not authorized to receive it the concerned authority cannot be held responsible if any delay is occasioned on account of inaction by such unauthorized person. If any dispute is raised about the authority of the person to whom the representation is claimed to have been handed over or served, the person making the representation on behalf of the detenu or the detenu, as the case may be, has to establish as to on whom the service was effected and he had authority to receive the document in question. The residual plea about the desirability to continue the detention and whether there is any live link between the alleged act which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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