Kerala High Court
Chanthu Sainaba vs State Of Kerala And Ors. on 15 September, 1998
Equivalent citations: 1998CRILJ4692
Author: J.B. Koshy
Bench: J.B. Koshy
JUDGMENT J.B. Koshy, J.
1. Petitioner is the wife of Shri Kalalhingal Musthafa (hereinafter referred to as "the detenu") who has been detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the Act"). In the grounds of detention (Ext.P2) served along with the detention order dated 14-12-1997 it is stated that at about 6-30 p.m. on 30-7-1997 at Trivandrum International Airport one Mohammed Ali Abdullah was intercepted by officers of the Directorate of Revenue Intelligence, Kozhikode when he was waiting to board the Air India Flight AI 913 to Abudhabi and examination of his suit-case led to recovery and seizure of foreign currencies kept concealed with the linings of the suit-case. On questioning he stated that the said suit case was handed over to him by one N.P. Zakkariah who had come to see him off and waiting outside the Airport. It was further stated that the above suit-case was entrusted to the above Zakkariah by one Kader Kurikkal. On questioning Shri Zakkariah it was stated that he worked as carrier for some gangs for delivering foreign currencies entrusted by Kurikkal Musthafa and one Ashraf of Chemmad and he used to get Rs. 1,500/- per trip. On the basis of the statements made by the passenger Mohammed Abdullah and N.P. Zakkariah and on the basis of the information received, the Assistant Director, DRI, Kozhikode, on 4-8-1997, issued summons under Section 108 of the Customs Act to Musthafa Kurikkal and to Ashraf asking them to appear before him on 14-8-1997. A telegram was sent by Musthafa Kurikkal pointing out that he was under medical treatment. Again on 22-8-1997 summons was issued by affixture. Summons was issued again on 10-9-1997. But, Musthafa Kurikkal did not appear. Thereafter, Ext. P1 order and Ext. P2 grounds of detention were served on 27-12-1997 and the detenu was arrested and detained in the Central Prison, Trivandrum. He made a representation (Ext.P3) on 14-1 -1998 addressed to the 1 st respondent, State of Kerala. Similar representation was addressed to the Chairman, COFEPOSA Advisory Board as well as to the Union of India. By Ext. P4 dated 6-2-1998 his representation was rejected by the 1st respondent-Government of Kerala. After considering the representation, the Advisory Board came to the opinion that detention of the detenu Shri Kalathil Musthafa alias Kurikkal Musthafa under Section 3(1)(i) and 3(1)(iii) of the Act is necessary and held that there is sufficient causes for the detention and the detention shall continue for a period of one year and the detention was confirmed under Section 8 of the Act for a period of one year with effect from 27-12-1997. By Ext. P5, representation of the detenu dated 14-1-1998 was disposed of by the Government of India on 4-3-1998.
2. It is contended on behalf of the detenu that there is a mistake in identity. His name was not Kalathil Musthafa. Musthafa Kurikkal or Kurikkal Musthafa stated by Zakkariah is not the detenu. The detention order was addressed in the name of Kalathil Musthafa. In fact, he is Kalathingal Musthafa. He has absolutely no connection with the activities and his name was involved in the same due to a mistaken identity. Even though this fact was pleaded there is total non-application of mind. It was contended that his representation dated 14-1 -1998 was disposed of by Ext. P5 order by the 2nd respondent after long delay. Various other grounds are also stated in the O.P. First we will deal with the delay in disposal of the representation.
3. In ground 'L' of the O.P. it is stated as follows :
It is submitted that there has been inordinate delay in the matter of considering Ext. P3 representation. Ext. P3 representation dated 14-1-1998 was disposed of by Ext. P5 communication dated 4-3-1998. No explanation worth the name has forthcome from the 2nd respondent as to why such inordinate delay had occurred in considering the said representation lt is submitted that the detention of the detenu is vitiated for this reason.
Not even a single word is mentioned in the counter-affidavit filed by the 2nd respondent. Even though notice was served on 20-5-1998 counter-affidavit was filed after three adjournments and in the counter-affidavit not even a single sentence was mentioned explaining the delay in disposal of the representation. No reason at all is offered for the delay in the disposal of the representation.
4. In Mohinuddin v. District Magistrate, Beed AIR 1987 SC 1977, no reasonable explanation was submitted for the delay. The representation was placed before the Chief Minister. It was submitted that the Chief Minister was in tour and he returned only on October 28, 1986. But, thereafter, for a period of twentyfive days Chief Minister did not attend the representation. Supreme Court held that no reason was stated why the representation submitted by the. appellant could not be dealt with by the Chief Minister with all reasonable promptitude and diligence. Since no explanation was given, the detenu detained under the National Security Act was ordered to be released by the Court.
5. In Sabir Ahmed v. Union of India (1980) 3 SCC 295, it was held that no hard and fast rule as to the measure of reasonable time can be laid down even though the delay due to negligence, callous inaction, avoidable red-tapism and unduly protracted procrastination cannot be condoned. Considering the above cases in Abdul Salam v. Union of India (1990) 3 SCC 15 : (1990 Cri LJ 1502) the Supreme Court held that it will depend upon the facts of each case and no relief can be laid down. In Aslam Ahmed Zahire Ahmed Shaik v. Union of India AIR 1989 SC 1403 : (1989 Cri LJ 1447) also Supreme Court held that, unreasonable and undue delay in disposal of the representation makes the detention illegal and unconstitutional.
6. In Tata Chand v. State of Rajasthan (1980) 2 SCC 321: (1980 Cri LJ 1015) it was held by the Supreme Court that:
...Once a representation is made to the Central Government, it is duty-bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of Article 22 (5) so as to render the detention unconstitutional and void.
In Shyam Ambalal Siroya v. Union of India (1980) 2 SCC 346: (1980 Cri LJ 555) it was held that (at page 556 of Cri LJ):
The power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power. Any petition for revocation of an order of detention should be dealt with reasonable expedition.... It may be permissible for the Central Government to take reasonable time for disposing any revocation petition. But, it would not be justified in ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Govenment. It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the petition, declining to order for revocation.
7. In K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India (1991) 1 SCC 476 : (1991 Cri LJ 790) a Constitution Bench of the Supreme Court held as follows (at page 795 of Cri LJ) :
The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22, therefore, casts a legal obligation on the Government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in Clause (5) of 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 circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. This has been emphasised and re-emphasised by a series of decisions of this Court. See Jayanarayan Sukul v. State of W.B. (1970) 1 SCC 219 : (1970 Cri LJ 743); Francis Coralie Mullin v. W.C. Khambra (1980) 2 SCC 275 : (1980 Cri LJ 548); Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police (1989) 3 SCC 173 ; (AIR 1989 SC 1861) and Aslam Ahmed Zahire Ahmed Shaik v. Union of India (1989) 3 SCC 277: (1989 Cri LJ 1447).(Para 12) In this case, admittedly, the representation dated 14-1-1998 was disposed of by communication dated 4-3-1998 and there was more than two months' delay in disposal of the representation. No explanation was offered by the 2nd respondent for the delay in spite of the specific contention in the O.P. regarding inordinate delay as raised in Ground 'L' of the O.P. No explanation was offered in the counter-affidavit filed by the 2nd respondent. Therefore, there is no explanation at all. On this ground alone the detention is liable to be set aside. Since there is unexplained inordinate delay in disposal of representation, (here is violation of the constitututional safeguards and on this ground alone we are constrained to set aside the detention order.
8. In view of the above, it is unnecessary to consider other grounds urged by the petitioner. The learned Government Pleader urged that having regard to the nature of the activities no interference is required. In this connection, when a similar plea was raised before the Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, the Supreme Court observed as follows :
We are not unmindful of the harmful consequences of the activities in which the detenus are alleged to be involved. But, while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The Framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "zealously watched and enforced by the Court". Their rigour cannot be modulated on the basis of the nature of the activities of a particular person.
9. In Rattan Singh v. State of Punjab (1981) 4 SCC 481 : (1982 Cri LJ 146) it was held as follows (at page 147 of Cri LJ):
May be that the detenu is a smuggler whose tribe (and how their numbers increased) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our demo-cratic set up, it is essential that at least those safeguards are not denied to the detenus.
Since we have found that there was inordinate delay which was not explained in disposal of the representation by the Central Government, the detention order is liable to be quashed without prejudice to any action that may be taken against the detenu under the Customs Act, Foreign Exchange Regulation Act etc. Therefore, this original petition is allowed and the detenu, namely, Shri Kalathingal Musthafa alias Kurikkal Musthafa, s/o Saidalavi, Kalathil House, Thirurangadi, P.O.,Malappuram district detained as per Ext. P-1 order is ordered to be set free forthwith unless he is liable to be detained in connection with any other cases, including any case in connection with the same incident.