Apex Court On Constitutional Safeguards In The Matters Of Preventive Detention: Article 22(5) Of The Constitution Of India Author : Mr.

Manish Shrivastava

Manish Shrivastava* In an appeal directed against the Judgment passed by the High Court of Delhi whereby, a petition seeking issuance of writ of Habeas Corpus to release the detenu was dismissed along with direction to department to initiate criminal proceedings against the detenu under Sections 199, 420, 468 and 471 of the Indian Penal Code in exercise of its power under Section 482 of the Code of Criminal Procedure. The Detaining Authority in the referred case issued detention Order against the detenu, the husband of the Appellant, on being satisfied with the facts on records that the detenu has propensity and potentiality to indulge in smuggling activities in future. Factual Summary The detenu was stated to be mastermind for import of the goods covered in one Bill of Entry. The goods covered under the said Bill of Entry was not only misdeclared in respect of quantity but also there were certain goods concealed in the container. The detenu allegedly had indulged in repeated offences since 2006, as he was not the actual owner of the Importer Exporter Code. The grounds based on the eight Bills of Entry which were filed by the detenu through his Customs House Agent and also on the basis of the statements tendered by an employee of CHA, who also confirmed the relationship between the last consignment and the earlier eight consignments imported by the detenu. The detenu had fraudulently used IEC number and PAN number of the actual owner who was not even aware of the fact that his IEC was being misused by the detenu. Wife of the detenu i.e. Appellant vide Writ Petition sought quashing of detention Order was dismissed leading to present appeal. Contention of the Parties Appellant contended that: (a) The detention Order was liable to be quashed on the ground of non-application of mind and non-supply of materials relied on and acted upon by the Detaining Authority while passing the detention Order. (b) The Detaining Authority relied on extraneous and irrelevant materials. (c) The offences alleged are not "smuggling" under the Customs Act, hence, there is no question of violation of any Act including the Customs Act, therefore, detention under COFEPOSA Act is not sustainable.

(d) Delay in passing the detention Order as well as in disposal of the representation of the detenu. Respondent i.e. Union of India, on the other hand, submitted that the detention Order was passed on the basis of the relevant materials and after subjective satisfaction by the Detaining Authority and there was no illegality or violation of any of the statutory provision including that of Article 22(5) of the Court's Verdict (a and b) non-application of mind on the part of the Detaining Authority and consideration of extraneous and irrelevant materials. The grounds of detention order as well as the counter-affidavit sworn to by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue amply demonstrate that the Detaining Authority based its conclusion not only with reference to last bill of entry but also eight such bills of entry/consignments which were cleared earlier. Detaining Authority adverted to and relied upon the clearance of eight consignments. The department though is free to reopen the issue but on the date of passing the detention Order, it was only at the stage of notice and no final decision/conclusion was taken for violation of the provisions of the Customs Act. In such circumstances, reliance on those materials clearly demonstrate that detaining authority considered irrelevant materials while formulating the grounds of detention. (c) Offences alleged since not "smuggling" under the Customs Act, detention under COFEPOSA Act not sustainable. Department alleged detenu of violating Customs Act, in respect of import of consignments and charged of having the propensity and potentiality to indulge in smuggling activities in future. It was held that unless there is proper enquiry and conclusion based thereon in terms of Section 111 or Section 113 of the Customs Act, 1962, it cannot be concluded that smuggling had taken place. In the instant case, there was nothing to indicate that any of the earlier imports were effected in contravention of any of the provisions of the Customs Act, 1962, or that they could have been regarded as having been smuggled into the country within the meaning of Section 2(39) of the Act. Except notice for reopening the Order clearing eight consignments prior to Bills of Entry there was no adjudication and final Order by the authority concerned. Alleged violation was only at the pre-mature stage and considering extraneous materials, which are inconclusive cannot be a valid ground for clamping detention under COFEPOSA Act. (d) Delay in passing of the detention Order and delay in disposal of representation Based on facts and circumstances, it was held there was no undue delay so as to snap the link between the incident and the alleged potentiality of the detenu in indulging in smuggling

Constitution of India.

activity and hence, the contention was rejected. On delay in disposal of the representation whenever a representation is made either by the representative of the detenu or by the detenu himself, it is incumbent on the part of the named authority to consider, dispose of the same and pass appropriate Orders and communicate it without any unreasonable delay. However, it depends upon the facts and circumstances of each case. In the instant case, based on details furnished in the counter-affidavit, no substance was held to be present in the contention as to there was any delay much more than the bare minimum time required to obtain the comments of the sponsoring authority accordingly, this contention was rejected. Analysis: Apex Court while disposing of the above appeal challenging the Order of detention discussed important aspect of Preventive Detention and Constitutional validity of detention under Article 22(5) of the Constitution of India and Power of Judicial Review of the Courts while acting under Section 482 of the Code of Criminal Procedure on quashing of detention Order. Article 22(5) of the Constitution reads as under: When any person is detained in pursuance of an Order made under any law providing for preventive detention, the authority making the Order shall, as soon as may be, communicate to such person the grounds on which the Order has been made and shall afford him the earliest opportunity of making a representation against the Order. Article 22(5) of the Constitution can be broadly classified into two categories- (i) the grounds on which the detention Order is passed must be communicated to the detenu as expeditiously as possible and (ii) proper opportunity of making representation against the detention Order is provided. Thus, as can be seen, Constitution provides adequate safeguards under Clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the Order made under any law providing for preventive detention. He has right to be supplied copies of all documents; statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention. On proper construction of Clause (5) of Article 22 read with Section 3(3) of COFEPOSA Act, it is imperative for valid continuance of detention that the detenu must be supplied all documents, statements and other materials relied upon in the grounds of detention (Thahira Haris etc. v. Government of Karnataka and Ors. MANU/SC/0562/2009). In Dr. Ram Krishan Bhardwaj v. The State of Delhi and Ors. MANU/SC/0011/1953,

Constitution Bench of the Apex Court interpreted Article 22(5) of the Constitution as

under: Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In Shalini Soni (Smt.) and Ors. v. Union of India and Ors. MANU/SC/0227/1980, the Hon'ble Apex Court observed as under: The Article has two facets- (1) communication of the grounds on which the Order of detention has been made; (2) opportunity of making a representation against the Order of detention. Communication of the grounds pre-supposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded. It is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the subjective satisfaction of the detaining authority. The detenu. An opportunity to make a representation against the Order of detention necessarily implies, that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material 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 and the statute

cast a duty on the detaining authority to communicate the grounds of detention to the

Constitution becomes reduced to an

exercise in futility. Whatever angle from which the question is looked at, it is dear that "grounds" in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The "grounds"

must be self-sufficient and self-explanatory. In Smt. Icchu Devi Choraria v. Union of India and Ors. MANU/SC/0086/1980, the Apex Court observed as under: If the grounds of detention are not furnished to the detenu within five or fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the ground of violation of Clause (5) of Article 22 as also on the ground of breach of requirement of Section 3, Sub-section (3) of the COFEPOSA Act. Now, it is obvious that when Clause (5) of Article 22 and Subsection (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore, be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to Clause (6) of Article 22 in order to constitute compliance with Clause (5) of Article 22 and Section 3, Sub-section (3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. There can therefore, be no doubt that on a proper construction of Clause (5) of Article 22 read with Section 3, Sub-section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to Clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. If this requirement of Clause (5) of Article 22 read with Section 3, Sub-section (3) is not satisfied the continued detention of the detenu would be illegal and void. In Khudiram Das v. State of West Bengal and Ors. MANU/SC/0423/1974, while interpreting Article 22(5) observed as under: Where the liberty of the subject is involved, it is the bounden duty of the Court to

satisfy itself that all the safeguards provided by the law have been scrupulously observed and the subject is not deprived of his personal liberty otherwise than in accordance with law. Section 8(1) of the Act, which merely re-enacts the

Constitutional requirements of Article 22(5), insists that all basic facts and
particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to the making of the Order of detention must be communicated to the detenu, so that the detenu may have an opportunity of making an effective representation against the Order of detention. It is, therefore, not only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority. In Ganga Ramchand Bharvani v. Under Secretary to the Government of Maharashtra and Ors. MANU/SC/0121/1980, following observation was made by the Hon'ble Apex Court: The mere fact that the grounds of detention served on the detenu are elaborate, does not absolve the detaining authority from its

constitutional responsibility to supply

all the basic facts and materials relied upon in the grounds to the detenu. The Apex Court made following observation in Sophia Gulam Mohd. Bham v. State of Maharashtra and Ors. MANU/SC/0470/1999 The words "grounds" used in Clause (5) of Article 22 means not only the narration or conclusions of facts, but also all materials on which those facts or conclusions which constitute "grounds" are based. In the case hand on Preventive Detention, the Hon'ble Apex Court held as under: In the matter of preventive detention, what is required to be seen is that it could reasonably be said to indicate any organized act or manifestation of organized activity or give room for an inference that the detenu would continue to indulge in similar prejudicial activity warranting or necessitating the detention of the person to ensure that he does not repeat this activity in future. In other words, while a single act of

smuggling can also constitute the basis for issuing an Order of detention under the COFEPOSA Act, highest standards of proof are required to exist. In the absence of any specific and authenticated material to indicate that he had the propensity and potentiality to continue to indulge in such activities in future, the mere fact that on one occasion person smuggled goods into the country would not constitute a legitimate basis for detaining him under the COFEPOSA Act. This can be gathered from the past or future activities of the said person. Conclusion The above observations focuses on the

constitutional safeguards provided to detenu,

which however, is not only just to be observed and followed by Courts while disposing any challenge to Order of detention but also by the detaining authority.

____________________________ * The author is a graduate in Political Science and LL.B from University of Delhi and is currently a legal practitioner in Courts at Delhi primarily into Civil and Corporate Laws. He can be reached at advocatemanish@yahoo.com

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