# AHAMED NASSAR v. STATE OF TAMIL NADU AND ORS

- **Citation:** [1999] Supp. 3 S.C.R. 657
- **Court:** Supreme Court of India
- **Decided:** 1999-10-14
- **Bench:** Kt. Thomas, A.P. Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ahamed-nassar-v-state-of-tamil-nadu-and-ors-16995
- **Pages:** 27

## Headnote

Criminal Law:
Conservation of Foreign Exchange and Prevention of Smuggling Activities" Act, 1974:
Section 3:
Preventive Detention-Appropriate authority-Representation before--
Disposal of-Delay in-Sponsoring authority took two days' time in sending
A
B
c
his comments-'-Held : Delay not to be assessed on the yardstick of number D
of days-ln a given case even a few days' delay may be fatal while in another
set of circumstances a longer delay may still be held to be for valid
reasons-'-However, there should be no unexplained delay or delay through
carelessness-ln the circumstances of the case, two days' delay is not undue
delay.
Preventive Deten~ion-Appropriate authority-Representation beforeCommunication-Mode of-Speed post-Delay in-Sponsoring authority's
comments .took three days' time in reaching Central Government-Held :
Speed post is a reasonable mode of communication-Delay is attributable to
vagaries or inefficiency of postal or communication agencies and not due to
Government apathy or negligence-Constitution of India, 1950, Art. 22(5).
Preventive Detention-Appropriate authority-Representation beforeCommunication-Delay in-Held: Detenu has no right to force representation
to be sent through special messenger by air.
E
F
Preventive Detention-Detention orde~Relevant material-Non-placeG
• ment of-Before detaining authority---Subjective satisfaction of-Effect-Held:
... Every conceivable material which is relevant must be placed before the
detaining authority---Such materials must be considered by the detaining
,·
authority-Non- consideratrion of the same vitiates the detention orde~The
date of issuance of fonnal order of detention is the relevant date upto which H
657
658
SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
A relevant material has to be placed before the detaining authority.
Preventive Detention-Detention order-Relevant material-Non-placement of-Before detaining authority-Subjective satisfaction of-Two letters,
one written by detenu awl the other by his advocate, not placed before the
detaining autho1ity-Detenu 's letter related to retraction of his confession
B which was also recorded in his bail application-Detenu 's letter also mentioned that the seized goods were 11on-p10hibited goods for which he offered
to pay the duty but still he was arrested-Effect-Held : Non-consideration of
the first part of detenu's letter is acceptabl~But second pmt is detenu's stand
011 men'ts which is relevant-Hence, non-placement of the two letters before
C the detaining authority vitiates the detention order.
Preventive Detention-Detention order-Detenu in jail-Bail application rejected-Likelihood of detenu being released on bail---Detaining
authority-Subjective satisfaction of~Held : Can be arrived at by looking to
the contents of the bail application, although rejected, and also the ConstituD tional Scheme, Preamble, Objects and Reasons of the Act.
Preventive Detention LaYir-lnterpretation of-Held : Should be strictly
construed since it takes away one's liberty-But it should also be seen that no
person who acts against the national interest is allowed to escap~Where two
E -interpretations are possible, the one which subserves the objects of the preventive detention statute should be preferred-More so, when the credibility of the
statutory acts performed by statutory functionaries are to be scrntinized and
tested.
F
Interpretation of Statutes:
Interpretation-Basic Principl&-lf there are two possible interpretations, the one which subserves the objective of the statute should be accepted.
Words and Phrases :
G
"Expeditious disposal" and "likely to be releqsed"-Meaning of
The petitioner-detenu was detained under Section 3(1)(i) of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974. The detenu sent his representation on 21.5.1999 which was
received by the Central Government on 25.5.1999 and on the same day
H comments were called from the sponsoring authority. The sponsoring
AHAMED NASSAR v. STATE
659
auth

## Text

_Characters 0–39,870 of 64,319. This is a partial read: ask again with offset=39870 for what follows._

AHAMED NASSAR
v.
STATE OF TAMIL NADU AND ORS.
OCTOBER 14, 1999
(KT. THOMAS AND A.P. MISRA, JJ.]
Criminal Law:
Conservation of Foreign Exchange and Prevention of Smuggling Activities" Act, 1974:
Section 3:
Preventive Detention-Appropriate authority-Representation before--
Disposal of-Delay in-Sponsoring authority took two days' time in sending
A
B
c
his comments-'-Held : Delay not to be assessed on the yardstick of number D
of days-ln a given case even a few days' delay may be fatal while in another
set of circumstances a longer delay may still be held to be for valid
reasons-'-However, there should be no unexplained delay or delay through
carelessness-ln the circumstances of the case, two days' delay is not undue
delay.
Preventive Deten~ion-Appropriate authority-Representation beforeCommunication-Mode of-Speed post-Delay in-Sponsoring authority's
comments .took three days' time in reaching Central Government-Held :
Speed post is a reasonable mode of communication-Delay is attributable to
vagaries or inefficiency of postal or communication agencies and not due to
Government apathy or negligence-Constitution of India, 1950, Art. 22(5).
Preventive Detention-Appropriate authority-Representation beforeCommunication-Delay in-Held: Detenu has no right to force representation
to be sent through special messenger by air.
E
F
Preventive Detention-Detention orde~Relevant material-Non-placeG
• ment of-Before detaining authority---Subjective satisfaction of-Effect-Held:
... Every conceivable material which is relevant must be placed before the
detaining authority---Such materials must be considered by the detaining
,·
authority-Non- consideratrion of the same vitiates the detention orde~The
date of issuance of fonnal order of detention is the relevant date upto which H
657
658
SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
A relevant material has to be placed before the detaining authority.
Preventive Detention-Detention order-Relevant material-Non-placement of-Before detaining authority-Subjective satisfaction of-Two letters,
one written by detenu awl the other by his advocate, not placed before the
detaining autho1ity-Detenu 's letter related to retraction of his confession
B which was also recorded in his bail application-Detenu 's letter also mentioned that the seized goods were 11on-p10hibited goods for which he offered
to pay the duty but still he was arrested-Effect-Held : Non-consideration of
the first part of detenu's letter is acceptabl~But second pmt is detenu's stand
011 men'ts which is relevant-Hence, non-placement of the two letters before
C the detaining authority vitiates the detention order.
Preventive Detention-Detention order-Detenu in jail-Bail application rejected-Likelihood of detenu being released on bail---Detaining
authority-Subjective satisfaction of~Held : Can be arrived at by looking to
the contents of the bail application, although rejected, and also the ConstituD tional Scheme, Preamble, Objects and Reasons of the Act.
Preventive Detention LaYir-lnterpretation of-Held : Should be strictly
construed since it takes away one's liberty-But it should also be seen that no
person who acts against the national interest is allowed to escap~Where two
E -interpretations are possible, the one which subserves the objects of the preventive detention statute should be preferred-More so, when the credibility of the
statutory acts performed by statutory functionaries are to be scrntinized and
tested.
F
Interpretation of Statutes:
Interpretation-Basic Principl&-lf there are two possible interpretations, the one which subserves the objective of the statute should be accepted.
Words and Phrases :
G
"Expeditious disposal" and "likely to be releqsed"-Meaning of
The petitioner-detenu was detained under Section 3(1)(i) of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974. The detenu sent his representation on 21.5.1999 which was
received by the Central Government on 25.5.1999 and on the same day
H comments were called from the sponsoring authority. The sponsoring
AHAMED NASSAR v. STATE
659
authority sent reply on 28.5.1999, which was received by the Central A
Government on 1.6.1999, which called for the comments of the detaining
authority. The detaining authority sent the comments on 10.6.1999, which
was received by the Central Government on 14.6.1999. On 15.6.1999 it was
s11bmitted to the Special Secretary and on the same day it was rejected and
information was sent to the Detenu also on the same day.
In this petition it was contended on behalf of the petitioner • Detenu
that there was a delay of two days, namely, 25.5.1999 and 26.5.1999 in·
considering the representation of the Detenu; that two letters, one written
by the Detenu and the other written by his advocate, were not placed before
B
the sponsoring authority; that the letters contained factual assertions like · C
retraction of the detenu's earlier alleged confossion and the detenu's stand
that the seized goods were not prohibited goods for which Detenu offered
to pay the duty but the officer concerned without listening to him arrested
him and that the recording of the detaining authority that there was
likelihood. of the detenu being released on bail was not based on any factual
basis which showed non-application of mind by the detaining authority.
D
On behalf of the respondent it was contended that the retraction of
the confession was also recorded in the bail application which was placed
and considered by the detaining authority.
Allowing the appeal, this Court.
HELD : 1. The alleged delay of two days, viz., 25.5.1999 and 26.5.1999
the time taken by the sponsoring authority to send its comment. Though
both the authorities were in the same city it cannot be held that this delay
E
is attributable for the delay in disposal of detenu's representation. In a
F
given case even few days' delay may be fatal while in another set of
circumstances a longer delay may still be held to be for valid reasons.
Expeditious disposal of any representation only means which could be
expeditiously disposed of by the concerned authority but should not be
with any unexplained delay of delay through carelessness. This would G
depend on the facts and circumstances of each case. [668-B; CJ
Mst. L.M.S. Ummu Sa/eema v. Shri B.B. Gujarat, [1981) 3 SCC 317
and KM. Abdulla Kunhi v. Union of india, [1991) 1 SCC 47.6, relied on.
2.1. The liberty of an individual under the Constitution is very . H
660
SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
A sacrosanct and there is a constitutional obligation ca~t on the concerned
authorities but this liberty should not be SO stretched to such an UR·
reasonable extent to force communications to. be sent through special
messenger by air. [669-G; H]
2.2. The mode of communication for the statutory authorities has to
B be in the mode prescribed which has to be reasonable. In the present case,
the mode of these communications was through speed post. This could not
'be construed as callous, slack or casual disposition of the detenu's representation. [670-A]
C
2.3. The delay attributed was caused in postal communications. So
such a short delay may -not have much bearing. What is relevant is, there
should be reasonable explanation for such a delay. How the authorities
have . dealt with the matter? If it was casual, neglect, keeping relevant
papers immobile without any reasonable cause they are attributable to
assess delay. But delay on account of vagaries of or on account of inef'·
D ficiency of postal or communicating agencies cannot in normal circumstances be taken as inexcusable delay either on the part the sponsoring
or detaining authority or the concerned State authorities in disposal of the
detenu's representation. [671-A; B; CJ
E
2.4. The stated delay was on account of vagaries of the postal
department. It is not attributable to the States. Hence, on the facts and
circumstan, · of this case, it is not possible to hold that there was any
delay in the disposal of the detenu's representation by the Central Government. [670-B; C]
F
Venmathi Selvam (Mrs.) v. State of T.N., [1998] 5 SCC 510 and
Rajammal v. State of T.N., [1999] 1 SCC 417, held inapplicable.
3. A man is to be ddained in prison based on the subjective satisfaction of the detaining authority. Every conceivable material, which is
relevant and vital, which may have a bearing on the issue, should be placed
G before the detaining authority. Sponsoring authority should not keep it
back, based on his interpretation that it would not be of any help to a
prospective detenu. Decision is not to be made by the sponsoring authority.
The law on this subject is well settled; a detention order vitiates 'if any
relevant document is not placed before the detaining authority, which
H reasonably could affect his decision. (672-G; H; 673-A]
AHAMED NASSAR v. STATE
661
Ashadevi v. K Shivraj, [1979] 1SCC222;Ayya v, State of U.P., [19891
A
l SCC 374 and Sita Ram Somani v. State of Rajasthan, [1986] 2 SCC 86,
.relied on.
4~1. The two letters, one written by the detenu and the other \l<Titten by
his advocate, contain factual assertions not only retraction of his earlier
alleged· confession but also other matters. As far as retraction of the confesB
sion by the detenu is concerned the stand of the respondent that the same
was also recorded in the bail application of the detenu, which was placed and
considered by the detaining authority. But in these letters the stand of the
detenu was that the seized goods are not prohibited goods for which the
detenu offered to pay the duty but instead; the officer concerned without
C
listening, proceeded to arrest him. But this stand is on merits. It is not
necessary in these proceedings to go into its merits and demerits.
[674-C; D; El
4.2. The question is not whether the second part of the contents of
those letters was relevant or not but whether they were placed before the D
detaining authority for his consideration. There could be no two ~pinions on
it. It contains the very stand of the detenu ofwhateverworth. This is relevant.
It may be that the detaining authority might have come to the same con-..
clusion as the sponsoring authority but its contents are relefant which the ·
sponsoring authority could not withhold. One of the letters written by the
deteim's advocate reached the sponsoring authority and reached well within
E
time for it being placed before the detaining authority. There is an obligation
cast on the sponsoring authority to place it before the detaining authority,
which has not been done. There should' be consideration of all relevant
materials in case such materials were within the reach of the detaining
authority till formal detention order was issued. [674-E; F; G; 675-B]
4.3. The issuance of the formal order of detention is the relevant date
upto which if any relevant material comes in possession of the concerned
authority it has to be placed before the detaining authority. Since in the
present case the letter of the detenu was also received before the issuance
F
of the formal detention order, it was incumbent for the Secretary conG
cerned to have it placed before the detaining authority. Therefore, nonplacement of the two letters, which were relevant before the detaining
authority, vitiates the impugned detention order. [676-8; C; DJ
Mohd. Shakeel Wahid Ahmed v. State of Maharashtra, [1983) 2 SCC
392, relied on.
H
662
SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
. A
5.1. The cnurts must find the extent of individual right deciphering
with the degree of trespass he makes on the public right, on which there
is embargo. Where an individual acts clandestinely for his personal gain
against national interest deleteriously affecting national economy or
security the drastk curtailment of his right should be kept in mind to see
that no such person escapes from the clutches of law. On the one hand, as
B it takes away one's liberty it should be strictly construed; on the other hand
to subserve the objective of the Act, in the national interest it should be
seen that no such person escapes. [678-H; 679-A-B]
5.2. In this backdrop of the Constitutional scheme, the Preamble and
C the Objects and Reasons of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 197 4, the justifiability of the acts
of every statutory functionary performing statutory obligations under the
Act has to be scrutinized and tested. It is well settled that whenever there
are two possible interpretations of a statute, the one that subserves the
D objective of an enactment is to be accepted. The same principle shall with
equal force apply in testing the credibility of the acts of a statutory
functionary performing their statutory obligations. Such authorities, while
performing their obligations under the preventive detention law must
perform it .on one hand with promptness, as not to further lengthen
detenu's detention through their casual conduct, neglect, lethargy, etc; on
E the other hand all what is required to be done by it is if it has been done
then in construing its conduct, conclusions etc. If there be two possible
interpretations then the one that subserves the objective of the statute
should be accepted. [679-B; C; DJ
F
5.3. Even for judging as to what should be the measure to test.the
legality of the subjective satisfaction of the detaining authority when he
records "there is likelihood of the detenu being :-eleased on bail", the court
has to keep in mind the aforesaid conspertus of the Constitution,
Preamble, Objects and Reasons of the Act. When one's liberty is to be
curtailed, on the subjective satisfaction of the detaining authority, with the
G area of interference by the court being limited, then within this limitation,
the Court must see, in the authority's privileged area that the detaining
authority does not stretch itself illegitimately in the exercise of its jurisdiction. [679-F; G]
H
Dharmendra Suganchand Che/awat v. Union of India, [1990] 1 SCC
' /
..
AHAMED NASSAR v. STATE
663
746 and Binod Singh v. District Magistrate, Dhanbad, [1986) 4 SCC 416, A
relied on.
Rivadeneyta Ricardo Agustin v. Govemment of the National Capital
Territory of Delhi, [1994) 1 Supp. SCC 597, held inapplicable.
Kamarwmissa v. Union of India, [1991) 1 SCC 128, cited.
6.1. In the present case, before the detaining authority, there existed
B
not only the order rejecting the detenu's bail application but also the
contents of the bail application. The averments made therein are relevant
material on which the subjective satisfaction could legitimately be drawn C
either way. Thus inspite of rejection of the bail application by a court, it
is open to the detaining authority to come to his own satisfaction based on
the contents of the bail application keeping in mind the circumstances that
there is likelihood of the detenu being released on bail. Merely because no
bail application was then pending is no premise to hold that there was no D
likelih(lod of his being released on bail. The words "likely to be released"
connotes chances of being bailed out, in case there be pending bail application or in case if it is moved in future is decided. The word "likely" shows
it can be either way. So without taking any such risk if on the facts and
circumstances of each case, the type of crime to be dealt with under the
criminal law, including contents of the bail application, each separately or
all this compositely, all would constitute to be relevant material for arriving at any conclusion. The contents of bail application would vary from
E
one case to the other, coupled with t~e different set of circumstances in
each case, it may be legitimately possible in a given case for the detaining
authority to draw an inference that there is likelihood of the detenu being
F
released on bail. Therefore, the conclusion of the detaining authority on
the facts of the present case that "there is likelihood of his being released
on bail" cannot be said to be based on no relevant material.
[682-B; C; D; E; 683-A]
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Cr!.) No.
166 of 1999.
Under Article 32 of the Constitution of India .
K.K. Mani for the Petitioner.
G
H
664
SUPREME COURT REPORTS [1999] SUPP: 3 S.C.R.
A
T.C. Sharma, P. Parmeshwaran for the Respondent in Union of
B
India.
R. Mohan, V.G. Pragasam for the Respondent No. 1.
The Judgment of the Court was delivered by
MISRA, J. The petitioner has challenged the detention order dated
28th April, 1999 under Section 3(1)(i) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 197 4 (hereinafter
referred to as the 'COFEPOSA'). The detention order was passed by Shri
C M.F. Farooqui, Secretary to the Government of Tamil Nadu Public (SC)
Department, Chennai which reads as under :
D
E
"ORDER - Whereas the Government of Tamil Nadu are satisfied
with respect to the person known as Thiru Ahamed Nassar son of
Thiru Ahamed, No.10, Mariamman Koil Street, Pudsupattinam,
Ramanathapuram District now a remand pryoner in the Central
Prison, Chennai that with a view of preventing him from smuggling
goods in further, it is necessary to make the following order :
"Now, therefore, in exereise of the powers conferred by Section
3(1)(i) of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 (Central Act 52 of 1974),..the
Governor of Tamil Nadu hereby directs that the said· Thiru
Ahamed Nassar, son of Thiru Ahamed, be detained and kept in
custody in the Central Prison, Chennai."
F
The detenu (Petitioner) arrived at Anna International Airport, Chennai on 12th March, 1999 by Indian Airlines flight from Singapore alung
with three pieces of baggage, viz., one card board carton marked by Sony
VCD MHC-V 818, one card board carton marked Sony VCD SS-V 818
and one green colour 'VENO' zipper shoulder bag and one transparent
plastic duty free shop bag as hand luggage. He after completing his
G ·immigration formality collected his checked-in-baggage consisting of·three
pieces from conveyer belt No.2 and proceeded to Table No. 11, where he
declared to the Superintendent in charge that he was in possession of one
. Video CD System, five cellular phone, 10 carton cigarettes and that the
value of goods imported by him was Rs. 60,000. On suspicion the Custom
H officer intercepted the detenu as he suspected the detenu might be carrying
' '
-,
AHAMED NASSAR v. STATE [MISRA, J.j
665
contraband or electronic goods in huge quantities. On questioning, whether
he was carrying any such contraband or electronic goods, he ,.replied in
negative. The custom officer not being satisfied took him to the air intelligence unit room along with the said baggage for detailed examination.
Even in the presence of witnesses on being questioned he confirmed his
name and that he owns three check-in-baggage and one hand bag. On
examination of Sony Video CD MHC-V 818 carton, the officer found that
A
B
it contained one Sony Video CD player model, the second carton Soni
Video CD SS-V 818 contained one pair of speakers. The third green colour
zipper shoulder bag "VENO" contained 10 cartons of State Express 555
cigarette, each containing 400 sticks and on examining one carton it was
found within, it contained two cartons of State Express 555 cigarettes each C
containing 200 cigarettes. He further opened and examined both the State
Express 555 cigarette cartons and recovered six cellular phone all with
transparent polythene cover wrapped in black carbon paper and secured
with black cellophone tape from one carton and ten packets of State
Express 555 cigarettes each containing 20 cigarettes from the other carton. D
Similarly he opened and examined the remaining nine State Express 555
cigarette cartons 400/20 capacity and recovered 10 packets of State Express
555 cigarette with 20 sticks in each and six cellular phones from each of
the four above said nine State Express 555 cigarette cartons. The said
officer then examined the balance of State Express 555 cigarette cartons
of 400/20 capacity and recovered ten packets of State Express 555 cigarette
E
with 20 sticks in each and seven cellular phones from each of the said five
cartons. Thereafter the said officer cut open all the cellular phone wrapper
and found 23 numbers Samsung SGH cellular phones, 31 numbers Bosch
GSM 908 cellular phones and 11 numbers Nokia 6110 cellular phones.
Then his hand bag was also opened which contained transparent polythene
F
duty free shop bag containing 14 numbers AIWA HSGS 183 walkmen and
his personal effects. So in all total goods in baggage found were 65 cellular
phones, 14 AIWA walkmen, 10 cartons of State Express 555 cigarette and
one Soni Video CD player.
The case of the respondent is that the goods brought in were in trade G
and they were not bona fide baggage goods and the petitioner grossly
misdeclared the type and quantity of goods brought by him. In fact he
ingeniously concealed the cellular phones in cigarette cartons to evade
detection by custom authorities and attempted to clear the goods without
payment of appropriate custom duty. The aforesaid 65 assorted cellular H
666
SUPREME COURT REPORTS [1999) SUPP. 3 S.C.R.
A phones, 14 AIWA walkmen, 10 cartons of State Express cigarette and one
Soni video MHC-V CD system were seized under a mahazar for action
under the Customs Act, 1962. The total value of goods seized is Rs.
·'
7,16,200 (CIF) and Rs. 10,74,300 (market value) on the day of seizure. The
further case is on the same day, on 12th March, 1999 he made voluntary
B
statement before custom officers at Anna International Airport, Chennai
that since his income was not sufficient so lo earn, he took a passport with
the help of his friend to import goods to Chennai and to sell them in Burma
Bazar. On 7th March, 1999 he went to Singapore and from the income
earned there bought some walkmen and one VCD and when he was about
to leave Singapore one Seeni Mohamed met and introduced himself and
c gave some cigarette cartons and five cellular phones at Kualampur to be
carried to India and for which in turn he was paid his air ticket. These
goods were contained in a green colour VENO zipper bag. The said friend
informed the detenu that on his arrival at Chennai he should carry the said
green colour VENO zipper bag outside the air port where it should be
D handed over to the person identifying him who shall pay him Rs. 15,000.
The case of the respondent as disclosed in the counter affidavit is, under
Section 11(2)(u) of the Customs Act, 1962 read with Section 3{3) of the
....
Foreign Trade (Development and Regulation) Act, 1992, import of cellular
phones and electronic goods by way of concealment and misdeclaration of
its value with an attempt to evade duty, renders such goods liable for
E confiscation under Section lll(d), (1) and (m) of the Customs Act. The
'
petitioner was arrested on 13th March, 1999 and produced before the
Additional Chief Metropolitan Magistrate, E.0.-II, Chennai, who
remanded him to judicial custody till 26th March, 1999. The aforesaid
detention order was served on the detenu while he was in the Central
F Prison, Chennai on 28th April, 1999.
On the other hand, case of the detenu is that the Customs officers
illegally seized the above goods by obtaining involuntary and false statement from the petitioner by the use of threat, force and intimidation.
G
The learned counsel for the petitioner Shri K.K. Mani, submits that
the material documents which have bearing effect on the subjective satisfaction of the detaining authority were neither placed nor considered
.,
before passing of the impugned detention order. He refers to the following
H documents:
AHAMED NASSAR v. STATE [MISRA, J.]
667
(a) Detenu's letter dated 23rd April, 1999 addressed to the A
detaining authority which was given to the Jail authorities on
the same day at 1745 hrs.
·
(b) The letter dated 19th April, 1999 sent by his advocate to the
customs authority was also not placed before the detaining
authority.
Next he submits, on account of delay in considering detenu's representation dated 21st May, 1999 both by the State Government and the
Central Government, the detention order is liable to be set aside. For this
B
he submits the following dates :
C
(a) Representation of the detenu to the State Government is
dated 21st may 1999 which was received by the State Government on 22nd May, 1999. After receiving it, remarks were
called for on 24th May, 1999 from the sponsoring authority
which was received only on 27th May, 1999. The delay pointed D
out is two days for the dates 25th and 26th May, 1999.
(b) Representation dated 21st May, 1999 to the Central Government was received on 25th May, 1999 and Central Gmnnment called for comments from detaining authority only on
the 1st June, 1999. Submission is, this delay could have been
eliminated if the same were called through 'FAX' or by
'E-Mail'.
E
The next submission is, the subjective satisfaction recorded by the
detaining authority, that there was likelihood of detenu being released on
F
bail is not based on any factual basis, which shows non-applying of mind
by the detaining authority. He submits, the bail application of the petitioner
dated 1st April, 1999 was dismissed by the Addi. Chief Metropolitan
Magistrate on 12th April, 1999, and no other bail petition was either
pending or brought to the notice of the detaining authority when it passed
the detention order on 28th April, 1999. Finally, he. submits that the G
detaining authority failed to take note that the petitioner was arrested
under Section 104 of the Customs Act for an offence under Section 135 of
the same Act and the conviction for which is only seven years' imprisonment. Hence, there was no compelling reason to detain the detenu under
the COFEPOSA.
H
668
SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
A
The first submission for the detenu is that there was delay in
considering the representation of the detenu by the State Government.. It
arises out of the following facts. Detenu's representation dated 21st May,
1999 was received by the State on 22nd May, 1999, remarks was called from
the sponsoring authority on 24th May, 1999 which was received back on
B 27th May, 1999. The delay is said to be for these two days, namely 25th
and 26th May, 1999. The alleged delay of two days, viz., 25th and 26th May,
1999 which is the time taken by the sponsoring authority to send its
comment. Though both the authorities were in the same city it cannot be
held that this delay is attributable for the delay in disposal of detenu's
representation. In a given case, even few days delay may be fatal while in
C another set of circumstances a longer delay may still be held to be for valid
reasons. Expeditious disposal of any representation only means which
could be expeditiously disposed of by the concerned authority but should
not be with any unexplained delay or delay through carelessness. This
would depend on the facts and circumstances of each case. In Mst. L.M.S.
D Ummu Saleema v. Shri B.B. Gujarat and another, [1981] 3 SCC 317 (para
7), the Court held that the explanation of each day delay is not a magical
formula. It only means it should be done with utmost expedition :
E
F
"The time imperative can never be absolute or obsessive. The
occasional observation made by the Supreme Court that each day's
delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the
representation must be considered and not that it is a magical
formula, the slightest breach of which must result in the release of
the detenu." (Para 7)
In KM. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and
Others & State of Karnataka and others, [1991] 1 SCC 476, the court held :
"The words 'as soon as may be' occurring in Clause (5) of
G
Article 22 reflects the concern of the framers that the representation should be expeditiously considered and disposed of with
a sense of urgency without an avoidable delay. However, there can
be no hard and fast rule in this regard. It depends upon the facts
and circustances of each case. There is no period prescribed either
H
under the Constitution or under the concerned detention law,
....
-
AHAMED NASSAR v. STATE [MISRA, J.]
669
within which the representation should be dealt with. The requireA
ment, however, is that there should not be supine indifference,,
slackness or callous attitude in considering the representation."
Within this sphere of legal premise we do not find th,tit there was any
callousness or undue delay caused by the State Gov~rnment in disposing
of detenu's representation. So far consideration of the detenu representation by the Central Government the relevant facts are, that the detenu
sent his representation on 21st May, 1999 from Chennai which was received
in Delhi on 25th May, 1999 and on the same day comments were called
from the sponsoring authority at Chennai. Reply was sent by the sponsoring
authority on 28th May, 1999 which was received in Delhi on 31st May, 1999.
The same was placed before the Deputy Secretary, Central Government
on 1st June, 1999 who called for the comment of the detaining authority.
B
c
This comment was sent by the detaining authority on the 10th June, 1999
which was received by the Central government on 14th June, 1999. On 15th
June, 1999 it was submitted to the Special Secretary and on the same day D
it was rejected and information was sent to the detenu also on the same
day. The detenu on these facts presses that there is delay in considering
his representation. The first is between 25th May, 1999 and 28th May, 1999
and then two days delay in receipt of the same by the Central Government
which is on 31st May, 1999. Next the delay is of nine days between 1st June
and 10th June. On the 1st June, 1999, the Central Government (Deputy
Secretary, COFEPOSA) called for the comment from the detaining
authority and on 10th June, 1999 reply was sent by the State Government.
Similarly three days delay is said to be when the same was received by the
Central Government on 14th June, 1999. In considering this delay it has to
be kept in mind this is the communication period as the two authorities
are placed at long distance in two different cities, one is in New Delhi and
the other is in Chennai. The delay is defended to be on account of delay
E
F
by the postal authorities in communicating the letters. The submission is,
when liberty of an individual is affected, faster mode of communication
should have been adopted, if necessary, it should have been sent by Air or
through a special messenger by flight. This in our considered opinion is too G
far fetched to be accepted. The liberty of an individual under Constitution
is very sacrosanct and there is constitutional obligation cast on the concerned authorities but this liberty should not be so stretched to such
unreasonable extent to force communications to be sent through special
messenger by air.
H
670
SUPREME COURT REPORTS (1999) SUPP. 3 S.C.R.
A
We have to keep in mind that mode of communication for the
statutory authorities has lo be in the mode prescribed which has to be
reasonable. It has been stated and we have also found from the file placed
before us that the mode of these communications were through speed post.
This could not be construed as callous, slack or casual disposition of his
B representation. For the respondent it was stated from the records that the
communication between the Central Government at New Delhi and sponsoring authority and detaining authority at Chennai was through speed
post. The stated delay was on account of vagaries of the postal department.
It is not attributable to the States. Hence on the facts and circumstances
of this case, it is not possible to hold, there was any delay in the disposal
C of detenue's representation by the Central Government. In our considered
opinion there was no delay in consideration of detenu's representation both
by the State and the Central Government.
Reliance has been placed on behalf of the detenu in Venmathi
Selvam (Mrs.) v. State of T.N. and Anr., (1998) 5 SCC 510. In this case the
D Court held :
"Though the delay is not long, it has remained unexplained.
Though the delay by itself is not fatal, the delay which remains
unexplained becomes unreasonable. In spite of this well settled
E
legal position the .State Government has failed to explain satisfactorily that it had dealt with the representation of the detenu as
promptly as possible."
F
G
H
In this case even after an opportunity was given by the Court, the
State did not file any counter affidavit.
In Rajammal V. State of T.N. and Anr., (1999) 1 sec 417, the Court
held:
"The position, therefore, now is that if delay was caused on
account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the
prisoner. In other words, it is for the authority concerned to explain
the delay. if any, in disposing of the representation. It is not enough
to say that the delay was very short. Even longer delay can as well
be explained. So the test is not the duration or range of delay, but
how it is explained by the authority concerned."
....
AHAMED NASSAR v. STATE [MISRA, J.]
671
In this case, the Court held that though there is explanation for delay A
till 9th February, 1998 but no explanation had been given for the delay
which occurred thereafter that is to say till 14th February, 1998. These
decisions render no help to the detenu. The present case is not such a case.
The delay attributed was caused in postal communications. So such a short.
delay may not have much bearing. What is relevant is, there should be
reasonable explanation for such delay. How the authorities has dealt with
the matter? If it was casual, neglect, keeping relevant papers immobile
without any reasonable cause are attributable to assess delay. But delay on
account of vagaries of or on account of inefficiency of postal or communicating agencies cannot in normal circumstances be taken as inexcusable delay either by the sponsoring or detaining authority or the concerned State authorities in disposal of detenu's representation.
B
c
Mr. R. Mohan learned counsel for the detenu submitted that
material and vital documents which have bearing on this subjective satisfaction of the detaining authority were not placed before him. Reference D
was made to the detenu's letter dated 23rd April, 1999, addressed to the
detaining authority, delivered to the jail authorities on the same day at 1745
hrs., and letter dated 19th April, 1999 of his advocate, addressed to the
sponsoring authority. Both these letters were not placed before the detaining authority. These letters refer, apart from detenu's retraction from his
earlier confession dated 12.3.1999, the infonnation which detenu gave to E
the custom officers that he was in possession of non-prohibited and dutiable goods for which he is ready to pay its duty. Respondent's reply with
reference to letter dated 23rd April, 1999 is that this letter was given to
the jail authority late in the evening on the 23rd April, which was dispatched the very next day by speed post, to the Secretary Public, which is
F
prescribed and acknowledged mode for sending letters from jail. 25th
April, 1999 being Sunday, the letter reached the Secretariat on 26th April,
1999 which after its segregation and processing reached the concerned
Secretary at about 3.00 P.M. on the same day. This receipt was after the
concerned Secretary signed his proposal for the detention on the 24th
April, after it was sent to the Minister concerned, who bt<ing the detaining G
authority signed the same on the 26th April, 1999. Thereafter the grounds .
of detention were sent for translation to the Department of Culture which
returned them back on 28th April, 1999 on which date the formal order of
detention was signed. Hence, the said representation letter could not be
placed before the detaining authority. It is also submitted that after its H .
672
SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
A receipt the Secretary found it containing retraction of the confession but it
was only repetition of which was contained in detenu's bail application
dated 1st April, 1999, which was placed before the detaining authority and
was considered by him.
With reference to the letter of the advocate dated 19th April, 1999,
B two reasons are stated for it not being placed before the detaining
authority. Firstly, it refers to the retraction of confession made by the
detcnu which is referred to in the detenu's bail application dated 1st April,
1999 and secondly since this was sent to a quasi-judicial authority, it should
have accompanied with either a vakalatnama or an authorisation signed by
C from the detenu. Further it is said that the retraction could not be considered as it was not sent by the detenu himself. As a legal submission it
is submitted, Article 22(5) of the Constitution of India guarantees earliest
opportunity to make a representation and its disposal but a detenu has no
pre-existing right for expeditious consideration of his representation by the
detaining authority prior even to his detention order.
D
Submissions so far made are misconceived and hence we have no
hesitation to reject the same. The question here is not any consideration
of any representation of the detenu expeditiously by the detaining authority
prior to his detention order but non-placement of the aforesaid two
E relevant letters before the detaining authority. What is relevant must be
placed before the detaining authority for its consideration.
About sending the letter to the detaining authority it was submitted
that the Secretariat to which the letter was sent, was situated at a short
distance and hence it should have been sent through a special messenger.
F Reply is that the same was dispatched through speed post which is the
prescribed and acknowledged mode for sending such letters. It is true in a
given circumstance, where urgency is spelt out an officer may opt for such
a recourse, but where dispatch is through a prescribed mode, which is more
expeditious than normal mode, it cannot be attributed that the authorities
G were either callous or careless or causal in its dealing.
So far stand of the respondent with reference to the advocate's letter
dated 19th April, 1999 it cannot be held to be a justifiable stand. These
technical objections must be shun where a detenu is being dealt under the .
preventive detention !aw. A man is to be detained in the prison based on
H subjective satisfaction of the detaining authority. Every conceivable
...
AHAMED NASSAR v. STATE [MISRA, J.]
673
material which is relevant and vital which may have bearing on the issue
should be placed before the detaining authority. Sponsoring authority
should not keep it back, based on his interpretation that it would not be
of any help to a prospective detenu. Decision is not to be made by the
sponsoring authority. The law on this subject is well settled, a detention
order vitiates if any relevant \focument is not placed before the detaining
authority which reasonably could affect his decision.
In Ashadevi wife of Gopal Ghenna/ Mehta (Detenu) v. K. Shivraj,
Addi. Chief Secretary to the Govt. of Gujarat and Anr., [1979) 1 SCC 222,
the Court held :
A
B
"If material or vital facts which would influence the mind of C
the detaining authority one way or the other on the question
whether or not to make the detention order are not placed before
or are not considered by the detaining authority, it would vitiate
its subjective satisfaction. rendering the detention order illegal."
This is a case of preventive detention under Section 3(1) of the
COFEPOSA, where confessional statement retracted by the detenu was
not placed before the detaining authority.
In A;ya alias Ayub v. State of UP.