|Citation||AIR 2013 SC 1376|
|Court||Supreme Court of India|
|Bench||Chief Justice T.S Thakur, Justice Ranjana Prakash Desai|
|Case No.||Criminal Appeal No. 520 of 2013|
|Appellant||Abdul Nasar Adam Ismile|
|Respondent||The State of Maharashtra|
|Reference||(i) Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act|
(ii) Section 108 of the Customs Act
(iii) Article 22 and Article 22(5) of the Constitution of India
(iv) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Act
On August 12, 2011, Abdul Nasar Adam Ismail arrived from Dubai by Air India flight with one trolley handbag. He was cleared through the green channel, and then Assistant Commissioner of Customs duty stopped him. He was personally checked by the authority. Two packets in his undergarments and two packets under the knee caps were found. Four plastic packets wrapped with cello tape kept inside his cycling shorts worn by him were recovered. The detailed examination resulted in 3086 grams. of 22 k.t and 1004 grams. of 18 k.t gold chains. The total gold recovered was of amount Rs. 95, 35,932.
On April 16, 2012, Detaining Authority i.e. Principal Secretary, Government of Maharashtra and Home Department issued detaining order against Abdul Nasar Adam Ismail to prevent him from smuggling more goods. He filed a writ petition against this detention in Bombay High Court. On January 23, 2013, Division Bench of the Bombay High Court dismissed his writ petition and gave an order of detention under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
Learned counsel from the appellant side criticized the detention of Abdul Nasar Adam Ismail on two grounds. Firstly, Article 22(5) of the Constitution of India was violated as he submitted his representation to the jail authority to forward it to the State Government. The said representation was denied by the Under Secretary of the Maharashtra Government. So, there was a delay in transmitting the representation to the State Government by the authority and there is the breach of Article 22(5). The gravity of the offence is irrelevant in preventive detention matters. Preventive detention is a serious irruption on the liberty of a person. Secondly, there was no independent consideration of the representation by the detaining authority. Hence, the Court set aside the impugned judgement of detention dated 16/04/2012.
On the contrary, learned counsel for the State of Maharashtra stated that the representation has been accepted by the State Government. And there was no breach of Article 22(5) of the Constitution of India. The delay in the process does not lead to the breach of the said article. Only based on delay in the process, the Court cannot set aside the detention order of the appellant. Also if the appellant’s detention order is set aside, then all the proceedings under the provisions of Smugglers and Foreign Exchange Manipulators Act, 1976 will automatically lapse.
The principles which have been laid down by the Constitution Bench and the other judgments which we have referred to earlier can be summarized. Article 22(5) of the Constitution of India, casts a legal obligation on the Government to consider the appellant’s representation as early as possible.
The question arises here is how the State Government has disposed of the appellant’s representation in this case. In this connection, relevant dates are available from the affidavit of Shivaji S. Patankar, Deputy Secretary to the Government of Maharashtra, Home Department (Special), affidavit of Medha Gadgil, Principal Secretary (Appeals & Security), Government of Maharashtra, Home Department, Mantralaya, Mumbai and affidavit of Ravindra Kumar Das, Deputy Commissioner of Customs, COFEPOSA Cell, CSI Airport, Mumbai. The High Court has correctly located the important dates from the three affidavits.
In the opinion of counsel from appellant’s side, the detaining authority and the sponsoring authority have properly explained the time lag between 6/7/2012 i.e. the date when the representation was received by the detaining authority and the date of communication of rejection to the detenu i.e. on 30/7/2012. The explanation offered by them is reasonable and acceptable.
It was found that the delay in transmitting the representation to the detaining authority by the jail authority is not explained. Superintendent of the jail had received the representation on 23rd June 2012 and the detaining authority had received it on 6th July 2012. It should have been immediately transferred by the Superintendent. This gap from 23rd June to 6th July is not explained by the learned counsel. Therefore, this delay renders continued detention of the appellant, illegal.
- The issue arises, in this case, is whether preventive detention is relevant for this offence?
- Does delay in delivering the appellant’s representation by Superintendent of the jail violates Article 22(5) of the Constitution of India?
- Article 22(5) of the Constitution of India
This article states that if any person is detained in implementing an order made under any law providing for preventive detention, the authority should communicate to such person the grounds on which the order has been made and shall allow him the earliest opportunity of making a representation against the order.
- Article 22 of the Constitution of India
This article gives protection against arrest and detention in certain cases:
- Without being informed, no person who is arrested should be kept detained in the custody and should be allowed to consult a legal practitioner for his/her defence.
- Within 24 hours, every person who is arrested should be produced before the nearest magistrate.
- These above-mentioned clauses do not apply to the person who is an enemy or is detained under any law providing for preventive detention.
- No person shall be detained for more than three months under preventive detention unless there is a sufficient cause for the detention provided the permission of the authority is needed.
- any person is detained in implementing an order made under any law providing for preventive detention, the authority should communicate to such person the grounds on which the order has been made and shall allow him the earliest opportunity of making a representation against the order.
- Nothing in the above clause shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
- The procedure should be followed by an Advisory Board in an inquiry under sub-clauses of Right against Exploitation.
- Section 3(1) in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
This section states that the State Government or the Central Government or any officer from this authority can detain a person with a view of preventing him/her from :
- Smuggling goods
- Abetting smuggling of goods
- Keeping those smuggled goods
- Dealing in smuggled goods or transporting them.
- Harbouring persons engaged in smuggling goods.
- Section 108 of the Customs Act, 1962
This section provides power to summon persons to give evidence and produce documents. All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct. Every such inquiry taken place shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860.
- Harish Pahwa vs. State Of Uttar Pradesh & Ors
The appellant, Harish Pahwa was by an order dated on 16th May 1980. He made a representation on 3rd June 1980 from the jail that was received on 4th June 1980 by the State Government. The State Government referred the representation to its law department for an opinion on 17th June 1980. So, the appellant raised an argument that the representation made by him against the detention order to the State Government was not decided within a reasonable time. Due to this time gap, the Court allowed the appeal and declared the detention unconstitutional.
- Ummu Sabeena v. State of Kerala and ors.
In this case Ummu Sabeena, the appellant was detained by the authority. The detenu made representations on 30th March 2011 and the same was rejected by the State Government on 8th April 2011. But the Central Government took time till 6th June 2011 to reject the same. This delay on the part of Central Government in the rejection of representation was not explained by the counsel. The Court stated that the rights of the detenu were deprived by delay in the process. Therefore, the appeal was allowed.
- Union of India and Anr. v. Harish Kumar
In this case, it was stated by the respondent that Article 22(5) of the Constitution of India was violated as there was non-consideration of representation made by the detenu by Central Government in the reasonable time. For the aforesaid reason, the Court declared that the detention order should be taken back due to the breach of Article 22(5) of the Constitution of India.
Considering all the above facts and principles, the Court declared that the order of detention dated 16/4/2012 is valid. However, on account of delay in disposal of the representation of the detenu by the State Government, the continued detention of the detenu is rendered illegal. Therefore, the Court directed that the detenu – Abdul Nasar Adam Ismail be released from detention forthwith if he is not already released from detention. The appeal was disposed of accordingly.
William Shakespeare, in one of his play, observed that ‘a man is master of his liberty’. In India, the utmost importance is given to the life and personal liberty of an individual. The Constitution of India provides personal liberty in Article 21. The same follows for the criminals and prisoners. They are also given the right to personal liberty in Article 22 of the Constitution of India. Personal liberty is essential to human dignity for everyone including criminals and prisoners.
(v) Section 108 of the Customs Act