Case BriefsSupreme Court

Supreme Court: In a case where the Government caused unreasonable delay in considering the representation and thereafter failed to communicate the rejection to a person detained under Section 3(2) of National Security Act 1980 (NSA), the 3-judge bench of Dr. DY Chandrachud, Vikram Seth and BV Nagarathna, JJ has held that the procedural rights of the detenu emanating from Article 22 of the Constitution and Section 8 of the NSA were not sufficiently protected in the present case.

“The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.”

Case Timeline 

  • The order of detention was passed on 11 May 2021 and the appellant was detained on 12 May 2021.
  • The order of detention was approved by the State Government on 13 May 2021, upon which the State Government submitted the order of detention to the Central Government on the same day.
  • On 18 May 2021, the detenu submitted a simultaneous representation before the District Magistrate, State Government and the Central Government.
  • The representation was communicated by the District Magistrate to the State Government and the Central Government on 20 May 2021.
  • Representation was rejected by the Advisory Board on 15 June 2021.
  • The State Government rejected the representation, after the decision of the Advisory Board. While the affidavit filed before the High Court, did not specify the date on which the representation was rejected by the State Government, but leaves no manner of doubt that until the representation was rejected by the Advisory Board on15 June 2021, no steps had been taken by the State Government to deal with the appellant’s representation dated 18 May 2021. However, the counter-affidavit of the District Magistrate showed that the representation was rejected by the State Government on 15 July 2021.
  • The Supreme Court was neither provided with a copy of such rejection or proof of communication of this rejection to the detenu, nor an explanation for the almost 60 day delay in considering the appellant’s representation.

Analysis of the Law

Article 22(5) of the Constitution

Article 22(5) of the Constitution mandates that

  • the authority making the order shall “as soon as may be” communicate the grounds on which the order has been made to the person detained; and
  • the detaining authority shall afford to the person detained “the earliest opportunity of making a representation against the order”.

Clause 5 of Article 22 incorporates a dual requirement: first, of requiring the detaining authority to communicate the grounds of detention as soon as may be; and second, of affording to the detenu “an earliest opportunity” of making a representation. Both these procedural requirements are mutually reinforcing. The communication, as soon as may be, of the grounds of detention is intended to inform the detenu of the basis on which the order of detention has been made. The expression “as soon as may be” imports a requirement of immediacy.

In the absence of the grounds being communicated, the detenu would be left in the dark in regard to the reasons which have led to the order of detention. The importance which the constitutional provision ascribes to the communication of the grounds as well as the affording of an opportunity to make a representation is evident from the use of the expression “as soon as may be” in the first part in relation to communicating the grounds and allowing the detenu “the earliest opportunity” of availing of the right to submit a representation. .

“The significance of Article 22 is that the representation which has been submitted by the detenu must be disposed of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition.”

National Security Act, 1980

The provisions of the National Security Act 1980 subscribe to the mandate of Article 22(5). Section 3(4) contains a requirement that once an order of detention has been made, the officer making the order must forthwith report the fact to the State Government, together with the grounds on which the order has been made and other particulars which have a bearing on the matter. No such order should remain in force for more than twelve days, unless it has been approved by the State Government. In the meantime, this period is subject to the proviso which stipulates that where the grounds of detention are communicated by the officer after five days (under Section 8) but not later than ten days from the date of the detention, sub-section (4) will apply as if the words fifteen days stands substituted for twelve days. Upon the State Government either making or approving the order under Section 3, it is under a mandate under Section 3(5) to report the fact to the Central Government within seven days, together with the grounds on which the order has been made and other necessary particulars.

Article 22(5) of the Constitution provides for the communication of the grounds on which the order of detention has been made by the detaining authority “as soon as may be”. Section 8(1) uses the expression “as soon as may be”, qualifying it with the requirement that the communication of grounds should ordinarily not be later than five days and, in exceptional circumstances, for reasons to be recorded in writing not later than ten days from the date of detention. Section 8(1) also embodies the second requirement of Article 22(5) of affording to the detenu the earliest opportunity of making a representation against the order to the appropriate government.

Under Section 10, the appropriate government has to place the grounds on which the order of detention has been made within three days from the date of detention of the person together with a representation, if any, made by the person affected by the order. The Advisory Board, under the provisions of Section 11, has to submit its report to the appropriate government within seven weeks from the date of detention order after considering the relevant materials. It may call for further information from the appropriate government, or any person, or even the person concerned if they desire an opportunity to be heard in person.

Under Section 12, when the Advisory Board has reported that in its opinion there is a sufficient cause for the detention of a person, the appropriate government may approve an order of detention and continue the detention of the person for such period as it thinks fit. On the other hand, where the Advisory Board reports that in its opinion there is insufficient cause for detention, the appropriate government shall revoke the detention order and cause the person to be released forthwith.

In terms of clause (a) and (b) of sub-section (1) of Section 14, both the State Government and the Central Government have the power to revoke an order of detention.

Ruling on Facts

The Court noticed that there was absolutely no reasonable basis for explaining the circumstances in which the representation dated 18 May 2021 was not considered by the State Government until after the Advisory Board had submitted its report on 15 June 2021.

In Ankit Ashok Jalan v. Union of India, (2020) 16 SCC 127 had held that in State Government is not bound to wait on the Advisory Board’s report before deciding the representation and must do so, as expeditiously as possible.

However, in spite of awaiting the receipt of the report of the Advisory Board which was eventually issued on 15 June 2021, the State Government took another one month in arriving at a decision on the appellant’s representation dated 18 May 2021. The State Government did not furnish any valid reasons for either of the two courses of action.

The Court hence, held that by delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously.

It was, hence, held that,

“The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA.”

[Sarabjeet Singh Mokha v. District Magistrate, Jabalpur, 2021 SCC OnLine SC 1019, decided on 29.10.2021]


Counsels

For appellant: Senior Advocate Sidharth Luthra

For State: Saurabh Mishra, Additional Advocate General


*Judgment by: Justice Dr. DY Chandrachud

 

Op EdsOP. ED.

Prelude

Preventing and curbing smuggling activities is one of such objectives which is shared by both Customs Act, 19621 and Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act)2. So much so that COFEPOSA Act, 1974 defines the “smuggling” under Section 2(e)3 as “‘smuggling’ has the same meaning as in clause (39) of Section 2 of the Customs Act, 1962, and all its grammatical variations and cognate expressions shall be construed accordingly”. Thus, from this it is evident that insomuch as understanding of smuggling activities is concerned, the meaning of this term under both these Acts are identical. Keeping this background in mind, it is nothing but natural to wonder whether the provisions of the Customs Act, 1962 can be relied on by the Authority under the COFEPOSA Act, 1974. It is in this backdrop that this article will attempt to explore and expound on one of the most mooted questions on the applicability of provisions of Customs Act on proceedings under COFEPOSA i.e., whether or not authority under Section 34 of the COFEPOSA Act, 1974 can rely on Section 1235 of the Customs Act, 1962 to cast the burden of proof on the detenu while passing detention order under Section 3 of the Act.

Understanding the term “smuggling” under Customs Act, 1962

As discussed above, COFEPOSA defines the term “smuggling” in terms of Customs Act. Therefore, it becomes paramount to first understand as to what this term means under Customs Act. As per Section 2(39) of the Customs Act, 1962 — “Smuggling” in relation to any goods means “any act or omission which will render such goods liable to confiscation under Section 1116 or Section 1137. Section 111 of the Act elucidates about “confiscation of improperly imported goods, etc.” This provision delineates sixteen situations (in the form of sixteen sub-clauses) wherein the goods brought from a place outside India shall become liable for confiscation. Whereas Section 113 of the Act elucidates about “confiscation of goods attempted to be improperly exported, etc.” This provision delineates thirteen situations (in the form of thirteen sub-clauses) wherein goods attempted to be exported become liable for confiscation.

Out of these sixteen sub-clauses stipulated in Section 111, clause (d) is of particular importance. As per this clause “any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force” shall be liable for confiscation. As can be seen from the words used in this clause, this clause makes the term “smuggling” of widest amplitude. And, in case any good is either imported or even attempted to be imported contrary to any law in force, like Foreign Exchange Management Act, 1999 (FEMA)8, Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS)9, Food Safety and Standards Act, 2006 (FSS)10, Environment (Protection) Act, 198611, Bureau of Indian Standards Act, (BIS Act)12, Foreign Trade (Development and Regulation) Act, 199213, etc., such a good will be considered as a smuggled item and will become liable for confiscation. Similarly, as per clause (d) of Section 113 of the Act “any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force” shall be liable for confiscation. Thus, in case any goods which are imported/attempted to be imported or attempted to be exported contrary to any law in force, such a good will be considered as a smuggled item and will become liable for confiscation.

In view of the above, it will not be wrong to infer that where any person is either indulging or attempting to indulge in import-export of a good contrary to prohibition under Customs Act or any other law in effect and which has an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State (refer to the Preamble of the COFEPOSA Act, 1974), the provisions of the COFEPOSA Act can be invoked to prevent such person from undertaking said activity and such person(s) can be detained under Section 3 of the Act.

Understanding Section 123 of the Customs Act

Section 123 of the Customs Act carves out an exception to the normal rule of evidence whereby in case where goods, to which this provision applies, are seized by the proper officer in the reasonable belief that they are smuggled goods, the burden of proving (for brevity “BOP”) that they are not smuggled goods shall be on the person from whose possession such goods were seized and in any other case BOP shall be on the person who claims to be the owner thereof. It is for this reason that this provision is said to encompass the legal principle which is generally referred to as “reverse burden of proof”. Here, the point that needs an emphasis is that this provision will only apply to gold and manufactures thereof, watches and any other class of goods notified by the Central Government in the Official Gazette.14 Recently, in exercise of power under Section 123(2) of the Act, Central Government vide Notification No.103/2016-Customs (NT) dated 25-7-201615 specified the following classes of goods, for the purposes of the said section, namely:

  1. Silver bullion.
  2. Cigarettes.

Thus, it is patently clear that barring gold and manufactures thereof, watches, silver bullion and cigarettes, this provision cannot be invoked so as to cast reverse burden of proof so as to prove non-smuggled nature of the goods.

Situations wherein detention order under Section 3 of COFEPOSA Act can be passed

Under COFEPOSA Act, an authority as stipulated under Section 3 of the Act can pass detention order [under the sub-section (1) of the said provision] with a view to preventing any person (including a foreign person) 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 transporting or concealing or keeping smuggled goods, or

(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods.

Further, as per sub-section (3) of the Act the grounds on which such detention order has been made shall be made “as soon as may be” after the detention, but ordinarily not later than 5 days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days, from the date of detention.

Here, it may also be worthwhile to note that as per Section 5-A16 of the Act, detention order may be passed on any one of the grounds mentioned under Section 3(1) singly or in conjunction with one or more grounds.

Whether authority under Section 3 of the COFEPOSA Act can rely on Section 123 of the Customs Act to cast the burden of proof on the detenu?

Before we deal with this issue, the decision of the Supreme Court in Shalini Soni v. Union of India17, merits attention. In this case it was held by the Supreme Court that the Constitution and the statute (COFEPOSA) cast a duty on the detaining authority to communicate the grounds of detention to the detenu. The grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of fact arrived at by the detaining authority. It also means that the detenu is to be informed not merely of the inferences of fact but all the factual materials which have led to the inferences of fact. If the detenu is not to be so informed, the opportunity so solemnly guaranteed by the Constitution gets reduced to an exercise in futility. The inference drawn by the seizing officer cannot be imported to that of the detaining authority and the burden of proof will not be available and cannot be invoked while passing the order of detention without any materials whatsoever.

From the above decision of the Supreme Court, it is clear that the detaining authority must form its own mind (i.e. reasonable belief) vis-à-vis   Sections 3(1)(i) to (v) of the Act based on concrete information and positive evidence. Otherwise, the detention order will suffer from the “vice of non-application independent mind” and thus, will be liable to be set aside. Further, no inference can be drawn by such authority by resorting to the reverse burden of proof.

Relying upon the above decision of the Supreme Court, Madras High Court in Gunasundari v. State of T.N.18, held that:

“It might be that the entirety of the evidence which conceivably, in several cases, consists of information communicated by informers, might not be made available to the person affected, but still the adjudicating officer would have to satisfy himself that the requirement of Section 178-A had been complied with before invoking the presumption laid down by that section. Therefore, the seizing officer’s reasonable belief has to be tested before the adjudicating officer or even at the stage of appeal or revision. The detaining authority, while subjectively satisfying himself on invoking the power of COFEPOSA, cannot be permitted to say that the detenu failed to discharge the burden and that he cannot avail of the presumption drawn by the customs officer in his favour.

  1. The said provision has not been incorporated in the COFEPOSA so as to invoke the jurisdiction for detention by applying the provisions of Section 123 of the Customs Act, 1962. Therefore, on the failure of the detenu to discharge his burden that the goods seized are not smuggled goods or that the seizing officer had a reasonable belief that they were smuggled goods are matters that cannot be applied in the case of preventive detention. The detaining authority cannot import the reasonable belief of the seizing officer for the purpose of holding the detenu liable. The finding of the detaining authority by invoking Section 123 of the Customs Act, 1962 and proceeding on that basis for passing the detention order without even giving an opportunity to the detenu is in violation of Articles 2120 and 22(5)21 of the Constitution of India.”

Again, in Mohd. Haneefa v. State of T.N.22, and Rabiyathul Basharia v. Govt. of T.N.23,  Madras High Court relying upon the above decision of the Supreme Court in Shalini Soni case24  and Gunasundari case25  concluded and held:

(i) That the presumption under Section 123 of the Customs Act cannot be applied to preventive detention under COFEPOSA.

(ii) That the detaining authority while subjectively satisfying himself on invoking the power of COFEPOSA cannot be permitted to do so when the detenu failed to discharge the burden and that he cannot avail of the presumption drawn by the customs officer in his favour.

(iii) That the inference drawn by the seizing officer cannot be imported to that of the detaining authority, and the burden of proof will not be available and cannot be invoked while passing the order of detention without any materials whatsoever.

(VI) Parting remark

From the discussion as transpired above, it is clear that for passing an order of detention under COFEPOSA Act, the detaining authority must form reasonable belief based on concrete and positive evidence. In this regard, said authority cannot rely on Section 123 of the Customs Act, 1962 and cannot avail of the presumption as drawn by the Customs Officer under the said provision while passing the order of detention.

*****


Advocate, e-mail: vsj180594@gmail.com.

1 <http://www.scconline.com/DocumentLink/Mmgu10uo>.

2 <http://www.scconline.com/DocumentLink/0QmPsjuw>.

3 <http://www.scconline.com/DocumentLink/Ut672J4q>.

4 <http://www.scconline.com/DocumentLink/s6Fsk3TJ>.

5 <http://www.scconline.com/DocumentLink/opbd2M25>.

6 <http://www.scconline.com/DocumentLink/dLpIK97g>.

7 <http://www.scconline.com/DocumentLink/G3fjrw0j>.

8 <http://www.scconline.com/DocumentLink/pIrl0KB8>.

9 <http://www.scconline.com/DocumentLink/206RMMRJ>.

10 <http://www.scconline.com/DocumentLink/G1k49V8b>.

11 <http://www.scconline.com/DocumentLink/2jg3Vl9S>.

12 <http://www.scconline.com/DocumentLink/KQ9l8uuN>.

13 <http://www.scconline.com/DocumentLink/st3DZ6i0>.

14 Pascoal Dias v. Collector of Customs, 2002 SCC OnLine Bom 1474.

15 <http://www.scconline.com/DocumentLink/B5X0Foo9>.

16 <http://www.scconline.com/DocumentLink/e1bsPjw0>.

17 (1980) 4 SCC 544.

18 2003 SCC OnLine Mad 1210

20 <http://www.scconline.com/DocumentLink/VN1u87S9>.

21 <http://www.scconline.com/DocumentLink/AlPu1dRB>.

22 2005 SCC OnLine Mad 968.

23 2005 SCC OnLine Mad 729.

24 (1980) 4 SCC 544.

25 2003 SCC OnLine Mad 1210

Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan, J., while dismissing a criminal writ petition seeking to challenge the grounds preferred for detention, said, “A Court is not a proper forum to scrutinize the merits of administrative decision to detain a person.”

Brief Facts

Petitioner in the instant case was arrested in the first week of October, 2018, detained illegally for several days and thereafter was implicated in FIR No. 22 of 2018 under Sections 307 Ranbir Penal Code (“RPC”), Sections 7/27 of Arms Act, Sections 3/4 Explosive Substances Act and FIR No. 25 of 2018 under Sections 307 RPC, Sections 7/27 Arms Act by the Police Station, Pulwama. Subsequently, the petitioner was placed under preventive detention following the detention order of the District Magistrate, Pulwama. Aggrieved by the impugned order, and alleging that the said detention was devoid of any procedural safeguards under the Constitution of India as well as the J&K Public Safety Act, the petitioner has moved before this Court.

Contentions

The Counsel for the petitioner made the following contentions;

  1. That the grounds of detention are vague, equivocal, obscure, indefinite, not connected or not proximately with the detenu and are mere assertions of detaining
  2. That the case mentioned in grounds of detention has no nexus with detenu and has been fabricated by police in order to justify its illegal action of detaining the detenu.
  3. That the detaining authority has mentioned two FIRs in the grounds of detention, however, no specific details have been put on records mentioning date, month or place of occurrence.
  4. That the respondents have not provided copies of the documents referred to in the grounds of detention and relied upon by the detaining authority, enabling the detenu to make an effective representation.
  5. That the detenu, who was already in custody of police in respect of aforesaid FIRs, reflected no immediate possibility of being released on bail and that there was no compelling reasons given in grounds of detention for passing such order.

Observation

The Court made noticeable remarks, while citing settled precedents and related legislations on the said subject matter. It reiterated that the Right to personal liberty is most cherished right guaranteed under our Constitution and has been transcendental, inalienable to a person independent of the Constitution and further explained the objective, administrative limits & checks while exercising the Preventive Detention Laws.

  1. Maneka Gandhi v. Union of India, (1978) 1 SCC 248; A person is not to be deprived of his personal liberty except in accordance with the procedure established by law and such procedure must be just, fair and reasonable.
  2. Sasthi Chowdhary v. State of W.B., (1972) 3 SCC 826; “It is pertinent to mention here that preventive detention means detention of a person without trial in such circumstances that the evidence in possession of the authority is not sufficient to make a legal charge or to secure conviction of detenu by legal proof, but may still be sufficient to justify his detention.”
  3. Haradhan Saha v. State of W.B., (1975) 3 SCC 198; “While the object to punitive detention is to punish a person for what he has done, the object of preventive detention is not to punish an individual for any wrong done by him but curtailing his liberty with a view to preventing him from committing certain injurious activities in future. Punitive incarceration is after trial on the allegations made against a person whereas preventive detention is without trial into the allegations made against him.”
  4. State of Maharashtra v. Bhaurao Punjabrao, (2008) 3 SCC 613; “Preventive justice requires an action to be taken to prevent apprehended objectionable activities. The compulsions of primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose their entire meaning, are the true justifications for the laws of preventive detention. This justification has been described as a jurisdiction of suspicion and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of individual liberty.”
  5. Abdul Latif v. B.K. Jha, (1987) 2 SCC 22; “Under Article 22(4)(a), preventive detention for over three months is possible only when an Advisory Board holds that, in its opinion, there is sufficient cause for such detention. The Advisory Board must report before the expiry of three months. If the report is not made within three months of the date of detention, the detention would become illegal.” In the present case, Advisory Board has furnished its Report disclosing sufficient cause for detention of detenu with a view to preventing him from acting in any manner prejudicial to the State Interest.

With respect to legislative safeguards, the Court referred and stated,

  1. Article 22(4) & 22(5) of the Constitution of India; detenu to be informed, as soon as may be, the grounds on which the order of detention is so made and further ensure the earliest opportunity of making representation by him against such order.
  2. Sections 8,9,10, 13 of the Public Safety Act, 1978.

Decision

While dismissing the petition on lack of merit, the Court said, “The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not.” It further said that the grounds of detention in the present matter are definite and free from any ambiguity as pleaded by the petitioners. Furthermore, the records placed for the Court’s perusal show that detenu has been informed with sufficient clarity, about the facts and figures of what actually convinced the detaining authority while passing such order.[Riyaz Ahmad Bhat v. State of J&K, 2020 SCC OnLine J&K 507, decided on 30-09-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. quashed the detention order and allowed the petition as the Detaining Authority had failed to mention in the detention order about the petitioner’s right to make representation.

In the present appeal, Wajid Haseeb, counsel for petitioner vehemently opposed the detention order passed against him. The detenu is who is already facing trial before a competent court of law detenu was enlarged on bail by the competent court of law but despite such order, he was not released. It was further contended that owing to this, the possibility of the detenu to be implicated in anti-national protests, such as stone-pelting seems farfetched and grounds taken in the detention order and the material referred to and relied upon has no relevance as he wasn’t actually released. Furthermore, it was submitted that the absence of material the detention order is passed on mere ipsi dixit of detaining authority, therefore, the detention order is bad in law.

The Court relied on certain decisions of the Supreme Court to reach its verdict:

Khudiram Das v. State of W. B., (1975) 2 SCR 81 — the Supreme Court explained what is meant by ‘grounds on which the order is made’ in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5).

Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 — the Supreme Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference. The right of the detenu to be supplied copies of such documents, statements and other materials flow directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised.

The Court opined that the only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material was not supplied to the detenu, the right of the detenu to file such representation was clearly impinged upon and the detention order stood resultantly vitiated. [Junaid Ahmad Dar v. State, 2020 SCC OnLine J&K 408, decided on 18-08-2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and V. Velumani, JJ., while addressing the present petition observed that,

“Indian Democracy should not be tainted by criminals.”

“…it is seen that some of the criminal elements are floating political parties on their own with the support of their religion or communities and the same is required to be prohibited.”

The instant petition has been filed by the wife of the detenu against the detention order passed against her husband as he got about 19 cases pending registered against him for various offences.

Amongst the 19 pending cases, one has been registered under Section 102 of Penal Code, 1860, another for the offence under Section 307 of IPC, three cases for the offence of dacoity and 1 under NDPS Act and so on.

In view of the above-stated facts, Court questioned the respondent as to why the investigation has not been properly done and charge sheets are not filed even for the case pending from the year 2009 and directed to file a report regarding the stages of investigation in the cases registered against the detenu as well as the details of pending trial cases.

Respondents stated that out of the 19 cases, detenu has been acquitted only in one case.

Criminal Elements in Puducherry |Political Parties

The media reports make it evident that criminal elements in Puducherry have a close connection and support of political parties.

Political parties are having criminals as their members and also office-bearers.

It is brought to the notice of this Court that many cases are relating to inter-gang rivalries and country-made bombs are used to murder the opposite gang members. In total 5 cases, country-made bombs were hurled by the detenu and his associated.

Further, the court noted that charge sheets have been filed only in two cases in which offences under the Explosives Substances Act, 1908 have been invoked.

The case wherein double-barrel country made gun was used, no charge sheet has been filed.

Detenu and his associates are said to have used country-made bombs for murdering “Velazhagan” on 19-04-2017 and a case was registered under Section 302 IPC and 3 of Explosive Substances Act, 1908 and thereafter the case was transferred to CBCID, Puducherry.

The case for the above-said offence was registered in the year 2017, the sanction for prosecution under the Explosives Substances Act was not granted by the Government.  Only after this Court questioned the attitude of the respondents, the government had granted the sanction last week.

In view of the above-stated position, Court is justified to observe that three years delay in granting sanction for the case registered in the year 2017 is only due to political support enjoyed by the accused.

Even in the 2015 case, the investigation has not gotten over for the past 5 years.

Clout with Political Parties

The above stated would speak about the accused’s clout with political parties, especially ruling parties and police.

Lethargic attitude of the Police

Not filing charge sheet would only show how the police has been lethargic even in the cases involving heinous criminals that too murders by using country-made bombs.

It is reported in media that even some of the Ministers and Legislators are being given security by rowdy gangs.

Safety of people jeopardised

There seems to be a syndicate between the police force, political leaders and rowdy gangs and hence, the safety and security of the people are jeopardised.

Decriminalization of Politics

It has also been reported by media that persons with criminal background are becoming policymakers and the same has to be prevented alongwith cleansing of the system.

The leaders should have a vision for decriminalization of politics.

In view of the above-stated vision, Central Government should come out with comprehensive legislation to prohibit persons with criminal background from contesting elections to Parliament, State legislature and Local Bodies as was observed by the Supreme Court’s Constitution Bench in Public Interest Foundation v. Union of India,(2019) 3 SCC 224.

In view of the above, the High Court directed the respondent to answer the following queries:

  • How many rowdy gangs are active in Puducherry as well as in other States?
  • How many persons with criminal background are accommodated by various political parties as top office bearers and District Secretaries and the details of the criminal cases registered against those persons and their position in the respective political party?
  • How many History sheets have been opened for the past ten years in Puducherry?
  • How many murders have been committed by Rowdy Gangs in Puducherry as well as in other states?
  • How many cases have been registered so far against the rowdies and what are all the stages of the said cases in Puducherry?
  • Whether witnesses in the said cases are threatened to turn hostile so as to get an acquittal in Puducherry?
  • How many years does it take for a criminal case, especially a murder case to get disposed of in Puducherry?
  • How many persons have been so far detained under the Goondas Act for the past ten years in Puducherry?
  • Whether Rowdy gangs are using illegal arms like Pistols etc., apart from using Explosive Substances?
  • Why not the Central Government enacted a law to prohibit candidates with criminal background contesting the elections to the Parliament as well as State legislatures as suggested by the Constitution Bench of the Supreme Court?
  • Why not the Puducherry Government enact a law like Maharashtra Control of Organized Crime Act, 1999 to control the criminal activities in Puducherry?

The matter is to be listed in 2 weeks. [Jamuna v. Government of India, 2020 SCC OnLine Mad 1828, decided on 13-08-2020]


Also Read:

Candidates with criminal antecedents| Parliament has exclusive jurisdiction to lay down disqualification for membership; Court cannot legislate: SC

Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan J., in a matter relating to preventive detention declined to provide opinion over that of detaining authority and reiterated that the object of preventive detention is not to punish a man but to prevent from any further acts.

The present case relates to the detenu, Mian Abdul Qayoom who is a renowned Practising Senior Advocate in the Jammu and Kashmir High Court and is also the President of the High Court Bar Association. The detenu had been placed under preventive detention in the year 2010 and after several confinements in various Sub Jails of the state, the detention order was withdrawn. The detenu was said to have been arrested during August 2019 and has been lodged into police custody under preventive detention. Upon several enquires as to the grounds of detention the close relatives of the detenu received an order and it was reported that the detenu was suffering from various ailments.

Advocates, Z.A. Shah, with Manzoor A. Dar, representing the petitioner submitted that the impugned order of detention issued by the respondent had not been communicated nor provided to detenu, which deprived the petitioner of making an effective representation before detaining authority. It was also submitted that the grounds of detention were signed by the respondents without any application of mind and without going through the grounds of detention. It was pointed out that the respondents had relied upon the FIRs registered in the year 2008 and 2010 for detaining the detenu, for which the petitioner had already served the required detention.

Senior Additional Advocate General representing the state,  B. A. Dar contended that the detenu was detained legally under the J&K Public Safety Act, 1978 (“Act of 1978”) and all statutory requirements have complied. It was contended that the contents of detention order/warrant and grounds of detention are stated to have been read over and explained to detenu. Grounds of detention have been framed by detaining authority with a complete application of mind after carefully examining the material/record furnished to it by sponsoring agency and only after deriving subjective satisfaction

The Court upon perusal of the facts and circumstances of the case reiterated the purpose of the Act of 1978 that “the purpose of the J&K Public Safety Act, 1978, is to prevent the acts and activities prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level consequences….it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention.” The Court on examining the records stated that the grounds for detention are definite, proximate and free from any ambiguity. The Court placed reliance on State of Gujarat v. Adam Kasam Bhaya, (1981) 4 SCC 216 and observed that it is a settled law that the High Court in the proceedings under Article 226 of the Constitution has limited scope to scrutinizing whether detention order has been passed on the material placed before it, it cannot go further and examine sufficiency of material. It also relied on State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35 and stated that the High Court does not sit in appeal over the decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant. Upon reliance to various Supreme Court decisions the Court concluded that the present matter lies within the competence of Advisory Board since preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects that the law of preventive detention seeks to prescribe. [Mian Abdul Qayoom v. State of J&K, 2020 SCC OnLine J&K 96, decided on 07-02-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. quashed the detention order of Masood Ahmad Bhat while directing for his release from the preventive custody.

Denetu, Masood Ahmad Bhat, sought quashing of detention order dated 22-01-2019.

The grounds of which the detention order was challenged were as follows:

  • No compelling reason or circumstance was disclosed in the order; more so on the date of the passing of the order of detention, the detenu was already in custody.
  • Material forming detenu’s order of detention not provided in order to make representation
  • Detaining authority did not prepare grounds of detention itself; which is a pre-requisite before passing any order.

On receiving the notice passed to the respondents they submitted that the order was in consonance to fact and law and they further sought the dismissal of Habeas Corpus Petition.

Counsel for the petition submitted that in light of the above-stated grounds and the fact that the detenu was already in custody leaves no possibility of detenu being implicated in the activities prejudicial to the security, sovereignty and integrity of the State. Detention Order has been passed in absence of any material and the same is therefore bad in law. He also referred to the Supreme Court case, T.V. Sravanan v. State, (2006) 2 SCC 664.

Observations of the Court

Bench stated that the only precious and valuable right guaranteed to a detenu is of making an effective representation and the same can be done only when the relevant material and grounds of the detention are made available to the detenu.

Since the material is not supplied, right of the detenu to file such representation is impinged upon. Bench relied on the following cases for the said point, Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440, Khudiram Das v. State of W.B., (1975) 2 SCC 81 & Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531.

Court examined the present case on the touchstone of the above-settled position of law and perusal for the record, the detenu was not supplied the materials relied upon by the detaining authority. Therefore, the detention of the detenu is vitiated.

Court also added that detenu was involved in the substantive offence and did not apply for bail for the same, thus he can remain in custody for that unless released on bail.[Masood Ahmad Bhat v. State of J&K, 2019 SCC OnLine J&K 791, decided on 25-09-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. set aside the detention order passed by respondent 2-District Magistrate, Baramulla and ordered the detenu to be released from preventive custody.

In the present case, the petitioner had challenged a detention order passed by respondent 2 whereby the petitioner was taken under preventive custody. The respondent had also filed a counter affidavit wherein they resisted the petition by pleading that the detention order was passed by following the procedure under the law.

Learned counsel for the respondent, Asif Maqbool, produced the detention record to lend support to the stand taken in the counter affidavit.

Learned counsel for the petitioner, Mir Shafaqat Hussain, pointed out that the detenu had been shown involved in various FIRs but the fact that he had already been admitted to bail in these FIRs had not been mentioned though the mention of the FIRs was made. This showed that all the circumstances and materials were not examined. A person involved in a criminal case could be detained under the provisions of preventive laws provided there were compelling circumstances to do so. Preventive detention is an invasion to personal liberty which infringes the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, in view of exception to Article 21, has to be reasonable, should not be on the ipse dixit of the detaining authority.

While relying on Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, it was pointed out that the procedural requirement are the only  safeguard available to the detenu, therefore, the procedural requirement should be strictly complied with, it was the duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If the record suggested that there was non-application of mind, which ipso facto meant that subjective satisfaction was missing.

Due to the cumulative effect of the above discussion, it was held that, the impugned order of detention passed by respondent 2 was not valid. The order was set aside directing that the detenu be released from the preventive custody.[Shahid Ahmad Tantray v. State of J&K, 2019 SCC OnLine J&K 422, decided on 08-05-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: In this petition filed before Rashid Ali Dar, J., an order passed by District Magistrate, Baramulla was challenged whereby detenu was ordered to be taken into preventive custody under Section 8 of the J&K Public Safety Act.

Petitioner’s custody in the police for the offences referred in the grounds of detention was converted into the custody under the impugned detention order. Petitioner challenged the order of detention on the ground that detenu was already under custody where an FIR was registered for offences under Section 7 and 25 of the Arms Act, 2013 and thus could not have been detained under the provision aforementioned. Whereas, Asif Maqbool, learned counsel on behalf of respondents contended that order of detention was passed taking into consideration the relevant provisions of the Act and he was well informed of the grounds of his detention thus, no illegality occurred. The question before the Court was, whether an order of detention could have been passed when the detenu was already in the custody of the police.

High Court relied on the case of A.K. Gopalan v. State of Madras, (1950) 51 Cri LJ 1383 where it was held that: “Preventive detention is by its very nature repugnant to democratic ideals and an anathema to the rule of law”. Court mentioned that the mindset of respondents seems to be that if the detention order was passed the petitioner could not apply for bail and if he does he would be prevented by virtue of this order. The above thought of respondents was improper as the authorities in case of bail application could have contested the same thus; the impugned order cuts the very root of the State Act. Hence, this petition was allowed and the impugned order was quashed. [Akhter Rasool Lone v. State of J&K, 2019 SCC OnLine J&K 429, decided on 10-05-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: This Habeas Corpus petition was filed before the Bench of Ali Mohammad Magrey, J., for quashing of a detention order passed by District Magistrate by which detenu was detained.

Mir Shafaqat Hussain, learned counsel on behalf of petitioner submitted that detenu can make a representation to the Detaining Authority, is a valuable constitutional right guaranteed under Article 22(5) of the Constitution of India and is a right under section 13(1) of the Jammu and Kashmir Public Safety Act, 1978 but the same was denied. Mir Suhail, Addl. Advocate General stated that detenu’s activities were prejudicial to the security of the State as well as the public order. Detaining him would prevent him from indulging in such acts was approved by the Government and the State Advisory Board constituted under Section 14 of PS Act.

High Court found substance in the arguments of the petitioner. On the point where detenu was not communicated the ground of detention it was found that grounds of detention were in English language and it was not suggested from the file before the Court if the grounds were explained to the detenu in a language understood by him. Thereby, depriving detenu of the right to make representation against the same. Detenu’s constitutional right was infringed as the Detaining Authority failed to mention in the detention order about petitioner’s right to make representation which renders the impugned order invalid. Therefore, impugned detention order was quashed and direction to release the detenu was passed. [Ajaz Ahmad Sofi v. State of J&K, 2019 SCC OnLine J&K 408, Order dated 03-05-2019]

Case BriefsHigh Courts

Madras High Court: A Division Bench comprising of C.T. Selvam and S. Ramathilagam, JJ. ordered parole of two weeks to a life-convict in light of exercising his conjugal rights.

In the present case, the petitioner is the wife of the life convict, who sought leave for her husband for the purpose of the exercise of conjugal rights. Petitioner’s husband is an undertrial prisoner and is a convict under two cases, on the file of Principal District and Sessions Court, Pudukottai, jail authorities are said to be precluded from granting leave to detenu under Section 35 of Tamil Nadu Suspension of Sentence Rules, 1982.

While placing reliance on the decision of Madras High Court, Madurai Bench in Meharaj v. State, 2018 1 HCC (Mad) 150 in which it was stated that:

“Conjugal visit leads to strong family bonds and keep the family functional rather than the family becoming dysfunctional due to prolonged isolation and lack of sexual contact.”;

the High Court considered the above-stated decision to be appropriate and concluded to grant leave to the petitioner’s husband for the purpose of conjugal visit for a period of two weeks subject to certain conditions. [P. Muthumari v. Home Secretary,2018 SCC OnLine Mad 3304, dated 26-11-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of H.K. Hanjura, J., allowed a Writ Petition filed against the order of detention passed by the respondent authorities.

The petitioner was already in custody in connection with a criminal case and this formed the basis for passing of a detention order against the petitioner.

The Court, in this case, observed that the custody of petitioner in the concerned criminal case had been converted into detention as per the impugned order. Such an order was passed on an assumption that if the detenue applies for bail then he might succeed but if it was the case then the detaining authority could have resisted the bail application itself instead of taking the extreme step of passing a detention order. The respondent authorities could have taken recourse to the ordinary law of the land.

The Court held that life and liberty of citizens of the State are of paramount importance and a citizen cannot be deprived of personal liberty, guaranteed to him/her by the Constitution, except in due course of law and for the purposes sanctioned by law. The Court allowed the petition and quashed the order of detention passed by the respondent authorities. [Mohammad Younis Sofi v. State of J&K, 2018 SCC OnLine J&K 669, Order dated 24-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. allowed an appeal filed against the decision of Bombay High Court whereby it had allowed a writ of habeas corpus directing the appellants to produce detenu under lawful custody.

One Mukesh Pandian, a private detective, was arrested by the police on information that he was obtaining and selling call record details of different people. In the course of investigation, Rizwan Alam Siddique (detenu) was also arrested on suspicion of obtaining call records of the wife of bollywood actor Nawazuddin Siddique. The said Rizwan was not cooperating in the investigation and in fact was found destroying evidence, pursuant to which he was arrested and produced before jurisdictional Magistrate who sent him to police custody. The respondent, wife of the detenu, rushed to the High Court and filed a habeas corpus writ  petition for production of her husband before the Court and setting him at liberty. The High Court, vide the order impugned, allowed the petition and set the detenu at liberty. The High Court also made scathing observations against the police officials concerned. Against the said order, the appellants filed the instant appeal.

The Supreme Court perused the record and considered submissions made by the parties. The Court relied on its earlier decisions in Saurabh Kumar v. Jailor, (2014) 13 SCC 436 and Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314 and observed that the question — ‘whether a writ of habeas corpus can be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation?’ — was no more res integra. In Court’s opinion, no writ of habeas corpus could have been issued in such circumstances. When the writ was allowed, the detenu was under lawful custody pursuant to the orders of the Magistrate. The petition was filed without challenging the order of the Magistrate. It was not a case of continued illegal detention. Furthermore, since the petition was not maintainable in the first place, the High Court should have been loath in entering into the merits of arrest and recording scathing observations against the police officials. Therefore, the order impugned was set aside. The detenu had already been released after the order, so the Investigating Officer was directed to proceed strictly in accordance with law. The appeal was disposed of in the terms above. [State of Maharashtra v. Tasneem Rizwan Siddique,2018 SCC OnLine SC 1348, dated 05-09-2018]

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of V. Chitambaresh & K.P. Jyothindranath, JJ., held that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India takes within its sweep, the right of a person to live as a transgender as was also previously held by Hon’ble Apex Court in National Legal Services Authority v. Union of India (2014) 5 SCC 438.

The mother (petitioner) of the person (detenu) had in this habeas Corpus petition alleged that her son was not a Transgender mentally or psychologically and a group of transgender persons has illegally detained him. She had claimed that he had “mental aberration of mood disorder” and lamented his sight in the robes of a woman and his being rechristened as ‘Arundhathi’ by the group.

In the medical examination ordered by the Court, it was revealed that the person suffered from no mental disorder. The Transgender person, who later referred himself as a female also appeared before the Court and told the Court that she was living as per her wishes and had identified herself as a woman from the age of 11. Based on the medical report, the Court noted that though the alleged detenu has normal male genitalia, she fits the label ‘transgender’ on external examination as per the Diagnostic and Statistical Manual 5th Edition (2013).

The Court quoted from William Shakespeare’s play Othello the oft quoted words of Iago the villain in the Shakespeare’s play: ‘I am not what I am.’ Lastly, Court held that the detenu has undoubtedly the right to wander about or associate with likeminded people and cannot be compelled to be at his parental home. The Court, therefore, proceeded to dismiss the petition. [Tessy James v. Director General of Police, 2018 SCC OnLine Ker 2140, order dated 12-06-2018]