UNION OF INDIA Vs. PAUL MANICKAM

JUDGEMENT

(1.) An order of detention under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short the Act) was passed on 26-4-2000 by the Secretary to Government of Tamil Nadu, Public (Law and Order) Department. As a consequence of such mittimus, Smt. Ratnamala (hereinafter referred to as the detenue) was interned in special Jail for Women, Vellore. In the grounds of detention it was, inter alia, stated that on 26-2-2000 she was found to be in possession of huge quantity of contraband articles. On her personal search as well as search of her baggages it was found that she was carrying gold in addition to the other articles like cellular phones etc. without any valid permission or documents for importation of goods and she was attempting to smuggle these articles by concealing them in emergency lamp and by wearing crude gold on her person and there was no declaration made. The articles were seized under the provision of Customs Act, 1962 (in short the Customs Act) read with Foreign Trade (Development and Regulation) Act, 1992. The detenue made voluntary statements on 26-2-2000 which were recorded under Section 108 of the Customs Act. The order of detention was passed purportedly with an idea of preventing her from carrying out smuggling activities in future. On 11-5-2000 the respondent who is the detenues father addressed a representation on behalf of his daughter to the President of India. Four days thereafter i.e. on 15-5-2000 a habeas corpus petition was filed before the Madras High Court challenging the detention order. When the matter was listed on 8-6-2000 notice was issued. It had been indicated in the writ petition filed by the respondent that a representation by registered post was sent to the State of Tamil Nadu and another was sent to the Union of India represented by Secretary to Government, Ministry of Finance (Department of Revenue) by speed post. They were the two respondents in the writ petition. A grievance was made in the writ petition that the said respondents were duty bound to explain to the Court that the representation had been considered without any delay and in accordance with the constitutional requirements. It was also indicated that though in the representation a request was made to supply various documents and details, nothing had in fact been furnished. The delay and the failure indicated above constituted violation of constitutional safeguards. It was brought to the notice of the High Court by the respondents before it that there was no representation made as claimed when the matter was taken up on 28-9-2000. Only three grounds were urged by the present respondent before the High Court. It was first contended that there was no material to support the conclusion that the detenue is a remand prisoner as was contended by the present appellant. Secondly, the materials/documents furnished to the detenue were illegible and this disabled the detenue from making an effective representation resulting in violation of the protection guaranteed under Article 22(5) of the Constitution of India, 1950 (in short the Constitution). Finally, it was contended that the documents supplied were illegible and, therefore, the detention order was vitiated and there was no necessity of going into the question whether the documents were relied upon or material documents or otherwise. The High Court did not find any merit in the aforesaid three contentions and since no other point was pressed, the writ petition was dismissed. An application for review was filed on 8-12-2000. Notice was issued in the review application. For the first time it was stated by the respondent in the review petition that in fact no representation was filed before the concerned State Government i.e. State of Tamil Nadu or the Union of India. In fact the representation was made to the President of India. The Court considered the periods spent from the date the representation reached the Presidents Secretariat till its final disposal, and held that there was an unexplained delay from the stage of dispatch from the Presidents Secretariat till it reached the Government of Tamil Nadu and the Union of India. This according to the High Court constituted violation of the imperative requirement of dealing with the representation with utmost expedition. Accordingly, the order of detention was quashed.

(2.) In the present appeal the Union of India has raised several issues which need to be carefully considered. Firstly it is submitted that in the order (grounds) of detention it was specifically indicated to the detenu that she had a right to make a representation to the detaining authority/State Government and also to the Government of India, if she so desired, in writing against the order under which she was kept in detention. It was also indicated that in case she wanted to make a representation the same was to be addressed to the Secretary to the Government of Tamil Nadu, Public (Law and Order) Department, Secretariat, Chennai or to the Government of India, Ministry of Finance, Department of Revenue, (COFEPOSA Unit), Central Economic Intelligence Bureau, New Delhi, as the case may be, and it should be forwarded through Superintendent of Prison, Special Prison for Women, Vellore in which she was confined.

(3.) Strangely, the representation was not made to the authorities clearly indicated in the order (grounds) of detention. For the first time in review petition a stand was taken that representation was filed before the President of India, though in the writ petition it was stated representations were made to the Government of Tamil Nadu as well as to the Union of India. This clearly constituted a suppression of fact and the High Court was not approached with clean hands and fraud was practised. Secondly, it was not open to the High Court to substitute its original order by a fresh order which is impermissible in a review application particularly on such grounds. Thirdly, the High Court having accepted that there was no delay in dealing with the representation by the State Government and the Union of India after it reached them, it ought not to have held that there was unexplained delay in dealing with the representation. A person should not be allowed to take advantage of the concern shown by the Courts to protect personal liberty resorting to dubious and fraudulent methods to gain undeserved benefits by such manipulations. He should not be permitted to gain any advantage from such acts. It was further submitted that renegades who disturb peace and tranquillity of citizens are like termites which corrode financial stability of the country with vicious designs file petitions full of falsehood and at times approach this Court under Art. 32 even without approaching the jurisdictional High Court. It was in essence submitted that prerogative writs should not be issued in such cases to encourage the deceiters from gaining any advantage.