# 1 S.C.R. 3 73 UNION OF INDIA & ORS v. SALEENA

- **Citation:** [2016] 1 S.C.R. 373
- **Court:** Supreme Court of India
- **Decided:** 2016-01-29
- **Case number:** Criminal Appeal No. 1251 OF 2015
- **Bench:** Dipak Misra, Prafulla C. Pant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-s-c-r-3-73-union-of-india-ors-v-saleena-30929
- **Pages:** 32

## Headnote

Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974: s.3(1) - Order of detention - Writ
of habeas corpus on the ground that the decision of competent
authority was not communicated to the dete1111 - High Court held
that the decision of the competent authority was not communicated
to the detenu and the right of detenu u!Art.22(5) of the Constitution
was violated - Whether non-commu11icatio11 of order of the
competent authority or absence of effective communication would
vitiate the order of detention - Held: It is incorrect to treat issue of
communication of rejection of representation by competent authority
or incorporation of order passed by competent authority in the order
of communication as a constitutional safeguard - The duty of the
Court in this regard is to see whether the representation submilled
by the detenu was rejected in a mechanical manner without
application of mind - Jn the instant case, the competent authority
passed an order on the basis of the material produced before it - It
cannot be said that there was no subjective satisfaction - When the
material, the file, the representation and the comments on the
representation were produced before the authority and he had
mentioned in the order that he had gone through the representation
and not found siif.ficient ground for exercising the power u!s.11 of
the COFEPOSA Act. it cannot be said that there was no subjective
satisfaction - The impugned order granting writ of habeas corpus
and directing the detenu ta be set at liberty was totally vulnerable
and is set aside - Constitution of India, 1950 - Art.22(5).
Allowing the appeal, the Court
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HELD: 1. When there is allegation that there has been nonapplication of mind and the representation has been rejected in a
laconic or mechanical manner by the competent authority, the
Court can always call for the file and peruse the notes and the
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374
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[ 2016] I S.C.R.
proceedings whether there has been application of mind by the
competent authority or not. Liberty of an individual is sacred.
But such liberty can be controlled by taking recourse to law.
Preventive detention is constitutionally permissible. The Courts
can interfere where such detention has taken place in violation
of constitutional or statutory safeguards. Treating the issue of
communication of rejection of the representation by the competent
authority or incorporation of the order passed by the competent
authority in the order of communication as a constitutional
safeguard, would not be correct.
The duty of the Court in this
regard is to see whether the representation submitted by the
detenu has been rejected in a mechanical manner without
application of mind. All the assertions made in the representation
were commented by the Under Secretary and every aspect has
been stated in detail. The order that has been communicated to
hin. by the Under Secretary indicates that the ·representation
submitted uy the detenu had been carefully considered by the
competent authority. A scrutiny of the file showed that the entire
file relating to the detention was produced before the competent
authority alongwith detailed comments. The said authority has
clearly stated that he has gone through the representation and
docs not find any sufficient ground to exercise the jurisdiction
under the COFEPOSA Act. This would tantamount to real and
proper consideration, for the competent authority is not required
to pass an adj ndicatory order. There bas heen subjective
satisfaction on the basis of the materials placed before the
competent authority along with the representation. [Paras 22,
23, 25, 26, 30) [393-E-H; 394-A,G; 395-A-F; 398-A)
2. If the order is communicated by another authority and
eventually the order is affirmed by the Advisory Board and the
same is challenged, the constitutional courts have ample power
to call for the records and verify how the representation has been
rejected. Jurisdicti

## Text

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(2016] 1 S.C.R. 3 73
UNION OF INDIA & ORS.
v.
SALEENA
(Criminal Appeal No. 1251 OF 2015)
JANUARY 29, 2016
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974: s.3(1) - Order of detention - Writ
of habeas corpus on the ground that the decision of competent
authority was not communicated to the dete1111 - High Court held
that the decision of the competent authority was not communicated
to the detenu and the right of detenu u!Art.22(5) of the Constitution
was violated - Whether non-commu11icatio11 of order of the
competent authority or absence of effective communication would
vitiate the order of detention - Held: It is incorrect to treat issue of
communication of rejection of representation by competent authority
or incorporation of order passed by competent authority in the order
of communication as a constitutional safeguard - The duty of the
Court in this regard is to see whether the representation submilled
by the detenu was rejected in a mechanical manner without
application of mind - Jn the instant case, the competent authority
passed an order on the basis of the material produced before it - It
cannot be said that there was no subjective satisfaction - When the
material, the file, the representation and the comments on the
representation were produced before the authority and he had
mentioned in the order that he had gone through the representation
and not found siif.ficient ground for exercising the power u!s.11 of
the COFEPOSA Act. it cannot be said that there was no subjective
satisfaction - The impugned order granting writ of habeas corpus
and directing the detenu ta be set at liberty was totally vulnerable
and is set aside - Constitution of India, 1950 - Art.22(5).
Allowing the appeal, the Court
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HELD: 1. When there is allegation that there has been nonapplication of mind and the representation has been rejected in a
laconic or mechanical manner by the competent authority, the
Court can always call for the file and peruse the notes and the
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[ 2016] I S.C.R.
proceedings whether there has been application of mind by the
competent authority or not. Liberty of an individual is sacred.
But such liberty can be controlled by taking recourse to law.
Preventive detention is constitutionally permissible. The Courts
can interfere where such detention has taken place in violation
of constitutional or statutory safeguards. Treating the issue of
communication of rejection of the representation by the competent
authority or incorporation of the order passed by the competent
authority in the order of communication as a constitutional
safeguard, would not be correct.
The duty of the Court in this
regard is to see whether the representation submitted by the
detenu has been rejected in a mechanical manner without
application of mind. All the assertions made in the representation
were commented by the Under Secretary and every aspect has
been stated in detail. The order that has been communicated to
hin. by the Under Secretary indicates that the ·representation
submitted uy the detenu had been carefully considered by the
competent authority. A scrutiny of the file showed that the entire
file relating to the detention was produced before the competent
authority alongwith detailed comments. The said authority has
clearly stated that he has gone through the representation and
docs not find any sufficient ground to exercise the jurisdiction
under the COFEPOSA Act. This would tantamount to real and
proper consideration, for the competent authority is not required
to pass an adj ndicatory order. There bas heen subjective
satisfaction on the basis of the materials placed before the
competent authority along with the representation. [Paras 22,
23, 25, 26, 30) [393-E-H; 394-A,G; 395-A-F; 398-A)
2. If the order is communicated by another authority and
eventually the order is affirmed by the Advisory Board and the
same is challenged, the constitutional courts have ample power
to call for the records and verify how the representation has been
rejected. Jurisdiction of the court is only to see whether there
has been any subjective satisfaction that the proper law had been
applied at the time of detention of the detenu. There is no need
on the part of the competent authority to pass a speaking order
and to give reasons on any facet. The Government has to follow
the safeguards provided under Article 22(5) and the provisions
of the statute. It is because without a trial a person is deprived
UNION OF INDIA & ORS. v. SALEENA
of his liberty. Promptitude of action within the statutory scheme
is imperative. In the case at hand, these aspects which have
been raised before the High Court have been negatived, and
rightly so. The competent authority of the appropriate
government has passed an order on the basis of the material
produced before it. It cannot be said that there is no subjective
satisfaction. When the material, the file, the representation and
the comments on the representation were produced before the
authority and he .had mentioned in the order that he had gone
through the representation and not found sufficient ground for
exercising the power under Section 11 of the COFEPOSA Act, it
cannot be said that there has been no subjective satisfaction.
The impugned order granting the writ of habeas corpus and
directing the detenu to be set at liberty is totally vulnerable and
accordingly is set aside the same.
It is urged by the respondent
that the 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, for there
exists no proximate temporal nexus between the period of
detention indicated in the order for which the detcnu was required
to be detained and the date when the detenu is required to be
detained if the order is set aside. In the present case, 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 be bas been set at liberty. The appropriate
course would be that the detaining authority should re-examine
the matter keeping in view the principle stated in Simi/ F11/c/11111d
Sli11/i and C/11111tlr11k(l11/ Bmltli within two months. (Paras 31, 36,
37, 41) [398-D-F; 401-E-H; 402-C-E; 404-E-GJ
Sunil Fulchand Shah v. Union of India (2000) 3 SCC
409:2000 (1) SCR 945; State of Tamil Nadu v. Kethiyan
Perumal (2004) 8 SCC 780: 2004 (5) Suppl. SCR 322;
S~ate of Tamil Nadu v. A/agar (2006) 7 SCC 540: 2006
(3) Suppl.SCR 310; Chandrakant Baddi" ADM &
Police Commr (2008) 17 SCC 290:2008 (7) SCR163;
Haradhan Saha v. State of We.I'/ Bengal (1975) 3 SCC
198: 1975 (1) SCR 778; John Martin v. State of West
Bengal (1975) 3 SCC 836: 1975 (3) SCR 211;
Khudiram Das v. The State of West Bengal and others
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(1975) 2 SCC 81: 1975 (2) SCR 832; State ofGzljarat
v. Adam Kasam Bhaya (1981) 4 SCC 216:1982 (1) SCR
7 40 - relied on.
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Devji Val/abhbhai Tande! v. The Administrator of Goa,
Daman and Diu and Anr. AIR 1982 SC 1029: 1982 (3)
SCR 553; Lekha Nandakumar v. Government of India
2004 (2) KLT 1094; A.C. Razia ic Government of Kera/a
and others AIR 2004 SC 2504:2004 (I) SCR 437;
Saliyal Beevi and others v. State of Kera/a und others
2011 (4) KHC 422; Babu v. State of Kera/a 2010 (1)
KLT 23; Ashok Narain v. Union of India (1982) 2
SCC 437; Gurdev Singh v. Union of India (2002) l SCC
545: 2001 (5) Suppl. SCR105; Ujagar Singh v. State
of Punjab 1952 SCR 756; K.M Abdulla Kunhi v. Union
of India (1991) I SCC 476: 1991 (I) SCR I 02; Bhut Nath
Mete v. State of West Bengal (1974) 1 SCC 645: 1974
(3) SCR 315; A. S01(•kath Ali v. Union of India (2000)
7 SCC 148: 2000 (2) Suppl. SCR 48; Ahamed Nassar
v. State of T.N. (1999) 8SCC 473: 1999 (3) Suppl.
SCR 657; Sanjay Kumar Aggarll'al 1·. Union of India
(1990) 3 SCC 309: 1990 (2) SCR 318; Ashadevi v. K
Shivraj, Addi. Chief Secretary to the Govt. of Gzljarat
(1979) 1 SCC 222: 1979 (2) SCR 215; Union of India
v. Arvind Shergi!I (2000) 7 SCC 601; Raj Ki shore
Prasad 1: State of Bihar and others (1982) 3 SCC 10;
Vijay Kumar v. State of Jammu & Kashmir and others
1982 (2) SCC 43: 1982 (3) SCR 522 - referred to.
Case Law Reference
1?82 (3) SCR 553
referred to.
Para6
2904 (2) KLT 1094
referred to.
Para6
2004 (1) SCR 437
referred to.
Para6
2011 (4) KHC 422
referred to.
Para6
2010 (1) KLT 23
referred to.
Para 7
1975 (1) SCR 778
relied on.
Para 7
(1982) 2 sec 437
referred to.
Para 7
UNION OF INDIA & ORS. v. SALEENA
377
2001 (5) Suppl. SCR 105
referred to.
Par\) 7
A
1952 SCR 756
referred to.
Para 7
1991 (1) SCR 102
referred to.
Paras
1974 (3) SCR315
referred to.
Para S
2000 (1) SCR 945
relied on.
Paras
B
2004 (5) Suppl. SCR322
relied on.
Paras
2006 (3) Suppl. SCR 310
relied on.
Paras
200S (7) SCR 163
relied on.
Paras
2000 ( 2) Suppl. SCR 4S
referred to.
Para 19
c
1999 (3) Suppl. SCR 657
referred to.
Para 19
1990 (2) SCR 31S
referred to.
Para 19
1979 (2) SCR 215
referred to.
Para 19
D
(2QOO) 1 sec 601
referred to.
Para 21
1975 (3) SCR 211
relied on.
Para 2S
1975 (2) SCR S32
relied on.
Para32
(19S2) 3 sec 10
referred to.
Para 34
E
19!:1:Z (3) SCR 522
referred to.
Para35
19S2 (1) SCR 740
relied on.
Para 37
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1251of2015
F
From the Judgment and Order dated 24.10.2013 of the High Court
ofKerala at Emakulam in W. P. (Cr!.) No. 406 of2013
N. K. Kaul, ASG, Ranjana Narain, Sadhana Sandhu, Bhuvan
Mishra, B. Krishna Prasad for the Appellants.
R. Basant, K. P. Rajgopal, V. S. Lakshmi, A. Venayagam Balan
G
for the Respondent.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Calling in question the defensibility of the
judgment and order dated 24.10.2013 passed by the High Court ofKerala
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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 vi de 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 or 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-cumDirector 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 oflndia. Keeping
in view the prescription enshrined under Section 8( I) 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 vi de 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. 406of2013 before the High Court seeking
UNION OF INDIA & ORS. v. SALEENA
fDIPAK MISRA, J.l
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( I) of the COFEPOSAAct. The said Authority recorded
its comments and submitted the file to the Special Secretary and Director
General, Central Economic Intelligence Bureau for consideration, who
vide order dated 26.4.2013 rejected the same.
6. The High Court noting the submissions of the learned counsel
for the parties adverted to the decisions in Devji Vallahllblwi Tande/ v.
The Admi11istrator of Goa, Daman mu! Diu a11d A11r. 1, Lek fut
Nandakumar v. Government of India', A.C. Razia v. Govemmenl
of Kerala amt otfters3, Saliyal Beevi mu! otfters v. State of Keraf(I
and otfter~~ and some other authorities and eventually came to hold as
follows:-
" As we have already stated, a detenu, who makes a representation
availing of his constitutional rights under Article 22(5) of the
Constitution oflndia is entitled to have proper consideration of his
representation and that process of consideration is completed, only
when a decision on his representation is also communicated to
1 AIR 1982 SC 1029
2 2004 (2) KLT I 094
' AIR 2004 SC 2504
' 2011 (4) KHC 422
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him.That constitutional requirement will not be satisfied if an
authority subordinate to the competent authority informs the detenu
that his representation is rejected. Admittedly, in this case, the
decision of the competent authority was not communicated to the
detenu and on the other hand, the only communication that was
issued to the detenu is that of the Under Secretary to the
Government of India, where, it was laconically stated that his
representation is rejected. In our view, this is a case where the
right of the detenu under Article 22(5) of the Constitution oflndia
is violated and the issue canvassed by the petitioner is fully covered
in her favour by the principles laid down by the Division Bench of
this Court in Lekha Nandakumar's case (supra)."
Be it stated, all other grounds urged before the High Court did
not find favour and were regarded as unacceptable. Thus, the only
ground that impressed the High Court is the one that is mentioned in the
aforequoted passage.
7. Criticizing the aforesaid analysis and the ultimate view expressed
by the High Court, Mr. N.K. Kaul, learned Additional Solicitor General
appearing for the Union of India has submitted that the High Court has
fallen into error by opining that in the obtaining factual matrix, Article
22(5) of the Constitution of India has been violated. It is urged by him
that the decision of the Division Bench of the High Court in Leklia
Na11dakumar (supra) had already been diluted in B11bu v. State of
Kera/a', but the High Court by the impugned order placed reliance on
the earlier view. It is his further submission that the dc:tenu has no
vested right neither under Article 22(5) of the Constitution nor under
Section 3( I) and (3) of the COFEPOSA Act to assert that unless the
order rejecting the representation itself is communicated there is a
procedural irregularity which invalidates the detention. It has been further
canvassed by him that there has been no abuse of discretion but on the
contrary a complete application of mind, for all relevant materials have
been taken into consideration which is reflective from the file and in
such a situation, the order of detention is not vulnerable in law. Elaborating
further, it is put forth by him that once a subjective satisfaction has been
arrived at on consideration of the relevant materials placed before the
detaining authority by the sponsoring authority, the order is absolutely
20 I 0 (I) KLT 230
UNION OF INDIA & ORS. v. SALEENA
[DIPAK MISRA, J.l
legally sustainable and there was no warrant for any interference by the
High Court. It is argued by him that the High Court has been wholly
misguided by the aspect that the order rejecting the representation was
not communicated by the detaining authority, for there is no requirement
in law that it has to be communicated by the said authority. Emphasis
has to be on the satisfaction of the competent authority which is
dem.onstrable from the file and that would suffice the legal requirement.
To bolster the aforesaid submissions, Mr. Kaul has placed reliance on
Haradlian Saha v. State of West Bengaf', Asl10k Narain v. Union of
lndia7, Gurdev Si11f(li v. Unio11 (Jf lmlia' and Ujaf(ar Sillg/1 v. State
of Punjab'.
8. Mr. R. Basant, learned senior counsel appearing for the
respondent, per contra, would contend that right to represent as provided
under Article 22(5) includes the right to fair and proper consideration
. and the said position in law has been settled by the Constitution Bench in
K.M. Abdulla Kun/ii v. Union of lndia 10• It is urged by him that the
right for proper consideration, has been taken a step forward by the
High Court of Kerala in Lek/U1 NaiulakunUlr (supra) by holding that
detenu has a right to be communicated the order rejecting his
representation and the non-compliance explicitly shows non- application
of mind. It is put forth by the learned senior counsel that when the order
passed rejecting the representation is communicated, the detenu would
have been apprised of the fact that there had been a consideration of his
representation in a fair and impartial manner indicating application of
mind, but when the communication, as the fact situation in the present
case would show, is fundamentally a non-communication to sustain an
order of such nature, would be contrary to high values relating to life,
freedom and liberty, inasmuch as such procedural violation vitiates the
order of detention. Learned senior counsel would argue with vehemence
that the order must be self-evident that the representation has been
considered in an impartial and dispassionate manner and, therefore, the
communication of the order passed by the competent authority is
'(1975) 3 sec 198
'(1982)2SCC437
'(2002) 1 sec 545
' 1952 SCR 756
"'(1991) I SCC476
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imperative, for it would clearly convey that there has been real and
proper consideration. Lastly it is propounded by Mr. Basant that if this
Coult would be inclined to set aside the judgment of the High Court, it
may not send back the accused to undergo the remaining period of
detentioi1 as there exists no pro xi mate temporal nexus between the period
of detention and today. That apart, submits the learned senior counsel,
nothing has been brought on record to indicate the desirability offurther
or continued detention. In support of the orderofthe High Court, learned
senior counsel has placed reliance on llaradlum Salta (supra), leklw
Namlllkumllr (supra), K.M. Abdulla Kun/ti (supra) and B/1111 Nlltlt
Mete v. Slllte o.f West Benf{al" and for the second limb of submission,
he has drawn inspiration from Su11il Fu/cluuul Slwlt v. Union of Imlia".
Stale of Tamil Nadu v. Ketlt(Vl/11 Perttmlll". Stllte of Tamil Nadu v.
Alag,,r" and C/u1111/rakt111t Btu/di v. ADM & Police Commr';·
9.When the matter was taken up for hearing on 12.3.2015, Mr.
Basant, learned senior counsel appearing forthe respondent had pleaded
for sustenance of the order impugned on the foundation of the principles
stated in llllradlum Salta (supra) and leklw Nl/lu/akumar (supra).
His singular submission was that unless the order itself is communicated.
there is a procedural illegality which invalidates the detention. When the
matter was taken up on 26.3.2015, the following order came to be passed:-
"Mr. Neeraj Kishan Kaul, learned Additional Solicitor General
commended us to the Division Bench decision of the Kera la High
Court in Babu Vs. State of Kera la [(20 I 0) (I) KLT 230] wherein
paragraph 13 it has been held thus:
"Of course a reading of the po1tions emphasized above in the
passage might suggest that communication by another of the order
passed by the authority may not be sufficient. The portions
emphasized above might create confusion as to whether that is
the law. But we find it d_ifficult to accept such understanding of
the Jaw based on the above observations. The order passed by
the authority may be extracted in extensor or completely by a
" ( 1974) 1 sec M5
" (2000J 3 sec 409
" (2004) s sec no
11 (2006) 7 sec 540
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" t2008J 11 sec 290
UNION OF INDIA & ORS. v. SALEENA
rDIPAK MISRA, J.l
subordinate officer and that may be communicated to the detenu.
In such a case it cannot possibly be contended that there is no
communication for the reason that the order was not communicated
by the authority which passed the order or that the order as such
has not been communicated. The observations extracted above
understood properly in the context, according to us, can only means
and insist that the order must be communicated effectively and
not that the order as such must be communicated or that the
authority which passed the order must himself communicate the
order."
Mr. Basant, learned senior counsel, explaining the aforesaid
judgment, submitted that effective communication of the order
would tantamount to substantial compliance and in the said case
the order passed by the competent authority was extracted. Mr.
Kaul, learned Additional Solicitor General, submitted that the order
need not be a speaking one and what is to be seen is that there is
recording of subjective satisfaction by the competent authority.
The communication by the lower authority putting the order in
indirect speech would not affect the orderof detention. In addition,
he would submit that the court can, for its own satisfaction, peruse
the record to find out whether procedural safeguards have been
taken care of or not."
I 0. The purpose ofreferring to the aforesaid order is that the sole
contention raised in the case, whether non-communication of the order
rejecting the representation in an effective manner would invalidate or
vitiate the order of detention. To appreciate the said submission, we had
permitted the learned Additional Solicitor General to produce the file for
our perusal.
11. We have already stated about the date of detention, date of
submission of representation and rejection of representation. There is
no dispute that the order of rejecting the representation has been
communicated by the Under Secretary on 29.4.2013. The said order
reads as follows:-
"With reference to his representation dated 11.04.2013 (in regional
language) received through the Jail Superintendent, Central Prison,
Thiruvananthapuram on 18.04.2013 in the Ministry, Shri Abdu
Rahiman @ Atheeq, a COFEPOSA detenu is hereby informed
that the aforesaid representation has been carefully considered
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by the Special Secretary & Director General, Central Economic
Intelligence Bureau, Ministry of Finance, Department of Revenue,
New Delhi on behalf of the Central Government, but it is regretted
that the same has been rejected."
12. The gravamen of the submission is whether nonB
communication of the order by the competent authority or absence of an
effective communication would vitiate the order of detention. To
appreciate the controversy in proper perspective, we may refer to Article
22(5) of the Constitution which reads as follows:-
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"When any person is detained in pursuance of an order made
under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to such
person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation
against the order."
13. Section 3 of the COFEPOSA Act reads as follows:-
"Section 3. Power to make orders detaining certain
persons.- ( l) The Central Government or the State Government
or any officer of the Central Government, not below the rank ofa
Joint Secretary to that Government, specially empowered for the
purposes of this section by that Government, or any officer of the
State Government, not below the rank of a Secretary to that
Government, specially empowered forthe purposes of this section
by that Government, may, if satisfied, with respect to any person
(including a foreigner), that, with a view to preventing him from
acting in any manner prejudicial to the conservation or
augmentation of foreign exchange or with a view to preventing
him from-
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping smuggled
goods, or
(iv) dealing in smuggled goods otherwise than by engaging in
transp011ing or concealing or keeping smuggled goods,
or
(v) harbouring persons engaged in smuggling goods or in
abetting tlie smuggling of goods,
UNION OF INDIA & ORS. v. SALEENA
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it is necessary so to do, make an order directing that such person
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be detained:
Provided that no order of detention shall be made on any of the
grounds specified in this sub-section on which an order of detention
may be made under section 3 of the Prevention oflllicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988 or under
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section 3 of the Jammu and Kashmir Prevention of Illicit Traffic
in Narcotic Drugs and Psychotropic Substances Ordinance, 1988
(J&K Ordinance I of 1988).
(2) When any order of detention is made by a State Government
or by an officer empowered by a State Government, the State
Government shall, within ten days, forward to the Central
Government a report in respect of the order.
(3) For the purposes of clause (5) of Article 22 of the Constitution,
the communication to a person detained in pursuance of a detention
order of the grounds on which-the order has been made shall be
made as soon as may be after the detention, but ordinarily not
later than five days, and in exceptional circumstances and for
reasons to be recorded in writing,_ not later than fifteen days, from
the date of detention."
· 14. We shall analyse what the Division Bench of the High Court
ofKerala in Leklra Nmulakunwr (supra) has laid down in the backdrop
of the constitutional mandate, the statutory command and the view
expressed by this Court. In the said case the Division Bench stated that
it was not considering the correctness ofapplication of mind pertaining
to the satisfaction of the authority or merits of the case, but addressing
to the aspect whether constitutional safeguards prescribed by law were
complied with or not. It noted the four contentions raised by the petitioner
therein. One of the contention was that the representation was not
properly disposed of by the appropriate authority and it was not sent to
him by the competent authority but the rejection or~er was comrnunicated
by another authority without stating any reason. The High Court referred
to the nature ofallegations, the protection granted under Article 22(5) of
the Constitution and Section 11 of the COFEPOSAAct, the duty of the
authority who deals with the representation, took note of the fact that
the representation addressed to the Secretary was considered by the
Joint Secretary and in that context proceeded to state as follows:-
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'"Even though various contentions including non-supply of
necessary documents etc. were mentioned in the representation,
there is no application of mind hy the Secretary to Government.
The Secretary has just rejected the representation. It does not
show that he has applied his mind. When the Authority disposes a
representation, which is a constitutional right of the detenu, it
cannot be disposed of like this in a casual manner. Further. the
Secretary has not communicated his order to the detenu. but only
the 1 lnder Secretary has communicated the order. It is true that
even though making ofrepresentation is a constitutional right, there
is no obligation for the Central Government to grant a hearing. It
is also not necessary that an elaborate speaking order should be
passed. But from the order it should appear that the authority has
applied its mind while disposing of the representation. The order
should be sent to the detenu. Here the order passed by the
Secretary was not sent to the detenu, but only the factum of
rejection of his representation was intimated by the Under
Secretary keeping the detenu in dark regarding the way in which
his representation was disposed of. There is nothing on record to
show that the concerned authority has applied its mind. Even if
the Under Secretary informed him that Secretary has disposed of
his representation. this is not the way a constitutional obligation is
to be discharged by the Government Secretary. Therefore, there
is no proper disposal of the representation. We are of the view
that on this ground alone the detention order will not stand as
there is procedural violation."
·
[underlining is by us]
15. In Babu (supra), a subsequent Division Bench posed the
question which reads as follows:-
"Does the con1n1unication by anyone other than the authority
passing the order of the fate of the representation made by the
detenu (and not the order as such) infringe such fundamental right
of the detenu?:'
16. Dealing with the said issue, the Court opined that the order
must be communicated effectively and not that the order as such must
be communicated or that the authority which passed the order must
himself communicate the order. Thereafter, the Division Bench proceeded
UNION OF INDIA & ORS. v. SALEENA
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to lay down the principle relating to effective communication and in that
regard came to hold as follows:-
...... The order passed by the authority may be extracted in extenso
or completely by a subordinate officer and that may be
communicated to the detenu. In such a case it cannot possibly be
contended that there is no communication for the reason that the
order was not communicated by the authority which passed the
order or that the order as such has not been communicated. The
observations extracted above und_erstood properly in the context,
. according to us, can only mean and insist that the order must be
communicated effectively and not that the order as such must be
communicated or that the authority which passed the order must.
himself communicate the order."
17. Thus, the decision in Lek/w Nmulakumar (supra) lays down ·.
that there has to be a communication by the competent authority failing
which the order of detention is invalid. The second Division Bench
explains the first one and goes by the concept of "effective
communication". It states that the order passed liy the competent
authority should be properly extracted in the order of communication
and it must indicate subjective satisfaction. The question is whether the
principles stated in both the decisions are correct or to put it differently,
whether non-communication of the order by the coinpetent autl1ority or
for that matternon-extraction-ofthe order of the competent authority by
the communicatirig authority would straightaway invalidate the order of
detention. In .this regard, we may usefully refer to the authority in
Haradlwn Saha (supra). In the said case, the Constitution Bench was
. dealing with the constitutional validity of the Maintenance of Internal
Security Act, 1971. While dealing with the consideration of representation,
the larger Bench opined thus:-
"24. The representation of a detenu is to be considered. There is
an obligation on the State to consider the representation. The
Advisory Board has adequate power to examine the entire material.
The Board can also call for more materials. The Board may call
the detenu at his request. The constitution of the Board slfows
that it is to consist of Judges or persons qualified to be Judges of
the High Court. The. constitution of the Board observes the
fundainental of fair play and principles of natural justice. It is not
the requirement of principles of na.tural justice that there must be
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an oral hearing. Section 8 oft he Act \vhich casts an obligation on
the State to consider the representation affords the detenu all the
rights which are guaranteed by A1iicle 22(5). The Government
considers the representation to ascertain essentially whether the
order is in conformity with the power under the law. The Board.
on the other hand_ considers \vheth~r in the ligbt of the
representation there is sufficient cause for detention.
x,xxx.x
26. The opinion of the Board as well as the order of the Government
rejecting the representation of the detenu must be after proper
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consideration. There need not be a speaking order. The1:£_is also
no failure of justice by the order not being a w_eaking order. All
that is necessary is that there should be real and proper
consideration by the Government and the Advisory Board."
[Emphasis added]
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The Court elucidating the said aspect in the backdrop of natural
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justice expressed thus:-
"30. Elaborate rules of natural justice arc excluded either expressly
or by necessary implication where procedural provisions are made
in the statute or where disclosure of relevant information to an
interested party would be contra1y to the public interest. If a
statutory provision excludes the application of any or all the
principles of natural justice then the court docs not completely
ignore the mandate of the legislature. The court notices the
distinction between the duty to act fairly and a duty to act judicially
in accordance with natural justice. The detaining authority is under
a duty to give fair consideration to the representation made by the
detenu but it is not under a duty to disclose to the detenu any
evidence or information. The duty to act fairly is discharged even
if there is not an oral hearing. Fairness denotes abstention from
abuse of discrctio11.
3 I. Article 22 which provides for preventive detention Jays down
substantive limitations as well as procedural safeguards. The
principles of natural justice insofar as they are compatible with
detention laws find place in Article 22 itself and also in the Act.
Even if Article I 9 be examined in regard to preventive detention,
it does not increase the content of reasonableness required to be
UNION OF INDIA & ORS. v. SA:LEENA
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observed in respect of orders of preventive detention. The
procednre in the Act provides for fair considerntion to the
representation. Whether in a particular case. a detenu has not
been afforded an opportunity of making a representatioi1 or whether
the detaining authority is abusing the po,vers of detention can be
brought before the court of la,v."
l Emphasis supplied]
18. From the aforesaid authority, 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 l:loard. The Constitution Bench
has limited the application of principles or natural justice to the sphere of
deliberation. It has confined it to real and proper consideration: application
of mind. Dealing with the concept of fairness. it has been observed that
fairness denotes abstention fron1 abuse or discretion. Understanding
the said principle correctly, it can be said that the use of discretion has to
be based on fairness of approach. The authority concerned may not
give reasons but there has to be application of mind. Mr. Kaul, learned
Additional Solicitor General would submit that even if the order itself
does not indicate application ofn1ind by the competent authority or it has
been communicated by another authority not indicating the approach of
the competent authority the Court has ample power to call for the file
and satisfy itself. In this regard, he has drawn our attention to the view
expressed by this Court in As/111k Narui11 (supra). In the said case, one
Santosh Ku1nar Jain \Vas engaged in illegal foreign exchange operations
and he apprehended by the Enforcement Directorate of the Ministry of
Finance. On the basis of ce1tain 111atcrials, he was arrested under Section
35 of.the Foreign Exchange Regulation Act and remanded to judicial
custody and thereafter he was released on bail. After he was enlarged
on bail, an order of detention was passed under COFEPOS/\ Act. The
said detention was challenged under Article 32 of the Constitution before
this Court, and it was contended before this Court that the failure to
launch the prosecution, taken along with the circumstance, that a long
time was allowed to lapse before the order of detention was made, was
sufficient to expose the hollowness of the claim that the order was made
· with a view to prevent the detenu from acting in any manner prejudicial
to the augmentation of foreign exchange. To appreciate the said
submission, the Court called fort he original file and upon perusal of the
file held thus:-
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"In order to satisfy ourselves that there was no undue or
unnecessary delay in making the order of detention, we sent for
the original files and we have perused them. We are satisfied that
the matter was examined thoroughly at various levels and the
detaining authority applied his mind fully and satisfactorily to the
question whether the petitioner should be detained under the
COFEPOSA. The passage of time from the date of initial
apprehension of the detenu and the making of the order of detention
was not occasioned by any laxity on the part of the agencies
concerned, but was the result of a full and detailed consideration
of the facts and circumstances of the case by the various
departments involved. We find from the file that the very question
whether the passage of time had made it unnecessary to order
the detention of the detenu was also considered by the detaining
authority. We are unable to hold in the circumstances of this case
that there was any tardiness on the part of any one or that the
detention is in any manner illegal."
19. In this regard, we may profitably refer to the decision in G11rdev
Singft (supra). In the said case, it was contended by the appellant
ther~ that. the order of detention was vitiated because of nonconsideration ofrelevant materials by the detaining authority. The Court
referred to the decisions in A. Sowkat/1 Ali v. U11io11 of ltu/ia'°, A/tamed
Nassa~ v. State of T.N.