Holding

The COFEPOSA detention order is valid, but the unexplained delay by the jail authority in forwarding the representation makes the continued detention illegal, necessitating the detenu’s release.

Summary

Abdul Nasar Adam Ismail was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) to prevent future smuggling. He challenged the detention on two grounds: that the detaining authority had not independently considered his representation and that there was an inordinate, unexplained delay in disposing of his representation, including a delay by the jail authority in forwarding the representation to the detaining authority, allegedly violating Article 22(5) of the Constitution. The Supreme Court held that the detaining authority had indeed considered the representation independently and that the delay in the detaining and sponsoring authorities’ consideration was reasonably explained, but the unexplained seven‑day delay by the Superintendent of Jail in transmitting the representation rendered the continued detention illegal. The Court affirmed the validity of the original detention order but ordered the detenu’s release, disposing of the appeal.

Issues considered

The detaining authority’s independent consideration of the detenu’s representation
Whether the delay in considering and disposing of the representation violates Article 22(5) of the Constitution
Whether the delay in transmitting the representation from the jail authority to the detaining authority vitiates the detention
Whether delay in issuance or execution of the COFEPOSA detention order invalidates the order
The permissibility of raising a new plea at the appellate stage

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)
Constitution of Indias. Article 22(5)

Subjects

preventive detentionArticle 22(5)COFEPOSArepresentation delayindependent considerationjail authority delayconstitutional mandaterelease order

Judgment

. [2013] 6 S.C.R. 86
,. • • l - ./ '. ;·

A · ABDUL NASAR ADAM !SMAIL THROUGH ABDUL
BASHEER ADAM ISMAIL · ' ·
v. ~ \
THE STATE OF MAHARASHTRA & ORS:
{Criminal Appeal No. 520 of 2013)
' _,,. ) . - ': . ~ • - ' ' l •'

B APRIL 2,.2013 ,,.

· [T.S. THAKUR AND RANJANA PRAl(A.SH DESAI, JJ.]
. ' '
Preventive Detention - Detention u/s. 3(1) of.
c · COFEPOSA - Detention order assailed on two grounds (1)
there was no independent consideration of the representation
of the detenu, ·and (2) delay in disposal of the representation
and delay in transmitting the representation to. the detaining
authority' by the jail authority - Held: The plea· of lack of
D independent consideration is without any basis - Any
unexplained 'delay would be breach of constitutional
impera'tive provided tinder Art. 22(5) ;- But it does not mean
that everyday's delay has to be explained:... Explanation must
be reasonable indicating that there was no slackness or I
indifference - The detaining.authority, and the sponsoring· 1
E authority in the present case, have properly explained the· time .
lag betWeen. receipt of the' representation and the date. of i
communication of rejection to the·detenu:... However, the delay . ;
in transmitting the representation to the detaining authority by 1
. the}ail authority is not'explained- Therefore, the continued'' "
F detention of detenu is' illegal ...:. However, the delay has not·
vitiated the detention order ~ co·nservation of Foreign
Exchange and Pr~'vention of Smuggfing Activities Act, 1974
- s.3(1) - Constitution oflndia, 1950- Art. 22(5). . "· -
' • '1 ···- • ;

G Practice and Procedure ...: New· plea -·Permissibility to·
raise before Supreme Court - Held: New plea in the case of
preventive detention is permissible. ·
I · The appellant-accused was detained u/s. 3(1) of
H °'· 86
t
II
!
-
ABDUL NASAR ADAM ISMAIL THROUGH ABDUL BASHEER ADAM 87
ISMAIL v. STATE OF MAHARASHTRA

Conservation of Foreign Exchange and Prevention of A
Smuggling Activities Act, 1974 with a view to prevent him
in future for smuggling goods. The Writ Petition filed by
the detenu, against the detention order was dismissed
by High Court.
B
In appeal to this Court appellant-detenu contended
that his detention was wrong because there was no
independent consideration of the representation by the
detaining authority and because there was inordinate
delay in considering the representation of the detenu C
which has violated his right under Article 22(5) of the
Constitution and there was also delay in transmitting the
representation to the detaining authority from the jail
authority.

Disposing of the appeal, the Court D

HELD: 1.1. The plea that there was no independent
consideration of the representation by the detaining
authority was raised for the first time before this Court at
the time of arguments. Ordinarily such plea would not have E
been allowed. But in view of the law laid down by Supreme
Court that the habeas corpus cannot be dismissed on the
ground of imperfect pleadings, this point is being
permitted to be canvassed. [Para 5] [97-A-C]

Mohinuddin @ Moin Master vs. District Magistrate, Beed F
and Ors.(1987) 4 SCC 58: 1987 (3) SCR 668 - relied on.

1.2. Whether a representation is considered by the
detaining authority independently or not, is for the
detaining authority to say on affidavit. This fact is within G
the exclusive personal knowledge of the detaining
authority. Had this point been raised in the writ petition,
the detaining authority would have dealt with it in her
affidavit. In the circumstances, if there is no categorical
statement in the affidavit of the detaining auth"ority that H
88 SUPREME COURT REPORTS [2013] 6 S.C.R.

A she had independently considered the representation,
she cannot be faulted for it. No inference can be drawn
that the detaining authority did not consider the
representation independently. In the affidavit, she has
stated that the representation was processed through the
B concerned Assistant, the Under Secretary and the Deputy
Secretary and then placed before her. No objection can
be taken to this procedure unless there is any slackness
shown in processing the representation. In the present
case, the entire procedure was completed within four
c days. Therefore, the submission that the detaining
authority has not considered the representation
independently and she could have been swayed by the
endorsements made by the subordinate officers, is
without any basis. [Para 10] [99-E-H; 100-A-B]
D K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of
India and Ors. (1991) 1 SCC 476: 1991 (1) SCR 102;
Kamleshkumar lshwardas Patel etc. etc. vs. Union of India
and Ors. (1995) 4 SCC 51: 1995 (3) SCR 279; Venmathi
Se/vam (Mrs.) vs. State of Tamil Nadu and Anr. 1998 (5) SCC
E 510: 1998 (3) SCR 526; Harsha/a Santosh Patil vs. State
of Maharashtra and Ors. (2006) 12 SCC 211 ; Union of India
vs. Harish Kumar (2008) 1 SCC 195: 2007 (3) SCR 994;
Union of India vs. Manish Baha/ alias Nishu . (2001) 6 SCC
36: 2001 (3) SCR 810 - referred to.
F 2.1. Article 22(5) of the Constitution casts a legal
obligation on the Government to consider the detenu's
representation as early as possible. Though no time limit
is prescribed for disposal of the representation, the
constitutional imperative is that it must be disposed of as
G soon as possible. There should be no supine
indifference, slackness or callous attitude. Any
unexplained delay would be a breach of constitutional
imperative and it would render the continued detention
of the d~tenu illegal. That does not, however, mean that
H every day's delay indealing with the representation of the
ABDUL NASAR ADAM ISMAIL THROUGH ABDUL BASHEER ADAM 89
ISMAIL v. STATE OF MAHARASHTRA

detenu has to be explained. The explanation offered must A
be reasonable indicating that there was no slackness or
indifference. Though the delay itself is not fatal, the delay
which remains unexplained becomes unreasonable. The
court can certainly consider whether the delay was
occasioned due to permissible reasons or unavoidable B
causes. It is not enough to say that the delay was very
short. Even longer delay can as well be explained. So the
test is not the duration or the range of delay, but how it
is explained by the authority concerned. If the inter
departmental consultative procedures are such that the c
delay becomes inevitable, such procedures will
contravene the constitutional mandate. Any authority
obliged to make order of detention should adopt
procedure calculated towards expeditious consideration
of the representation. The representation must be taken D
up for consideration as soon as such representation is
received and dealt with continuously (unless it is
absolutely necessary to wait for some assistance in
connection with it) until a final decision is taken and
communicated to the detenu. [Para 14] [104-B-F]
E
K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of
India andOrs. (1991) 1 SCC 476: 1991 (1) SCR 102 -
followed.

2.2. The detaining authority and the sponsoring F
authority have properly explained the time lag between
61712012 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 3017/2012.
The explanation offered by them is reasonable and G
acceptable. The representation was taken up for
consideration as soon as it was received and dealt with
continuously until a final decision was taken and
communicated to the detenu. Undoubtedly, time was
taken to obtain para-wise comments from the sponsoring
H
90 SUPREME COURT REPORTS [2013] 6 S.C.R.

A authority. But, seeking views of the sponsoring authority
cannot be said to be a futile exercise. Thus, the time lag
between receipt of the representation till its
consideration and communication of rejection to the
detenu is properly explained. [Para 15] [150-B-D]
B
Francis Coralie Mullin vs. WC. Khambra AIR 1980 SC
849: 1980 (2) SCR 1095; Kamarunnissa vs. Union of India
(1991) 1 SCC 128: 1990 (1) Suppl. SCR 457 - relied on.

2.3. The affidavit of the detaining authority stated
C what steps were taken and how the proposal submitted
by the sponsoring authority was processed till the
detention order was passed. The sponsoring authority
has also filed affidavit explaining steps taken by it till the
proposal was submitted. The High Court has rightly held
D that the said explanation is satisfactory. Therefore, the
order of detention cannot be quashed on the ground that
there was delay in issuance of the detention order.
[Paras 10 and 11] [100-G; 101-A; 102-C]

E Rajendrakumar Natvarlal Shah vs. State of Gujarat
(1988) 3 SCC153:1988 (1) Suppl. SCR 287 - relied on.

Saeed Zakir Hussain Malik v. State of Maharashtra
(2012) 8 SCC233: 2012 (7) SCR 235 - referred to

F 2.4. So far as delay in execution of the detention
order is concerned, it appears from the affidavit of the
detaining authority that the dotenu is a resident of
Mangalore in the State of Karnataka. The affidavit of the
Deputy Commissioner of Customs, COFEPOSA Cell,
G indicates that because the detenu was a resident of
Mangalore in the State of Karnataka, the order of
detention, grounds of detention and the accon'ipanying
documents were forwarded to the State of Karnataka
and the order of detention, therefore, could be served on
H the detenu only on 101512012. Thus in the peculiar facts
ABDUL NASAR ADAM ISMAIL THROUGH ABDUL BASHEER ADAM 91
ISMAIL v. STATE OF MAHARASHTRA

of the present case, the High Court has rightly rejected A
the submission that there was delay in execution of the
detention order. [Para 11] [102-C-F]

2.5. However, the delay in transmitting the
representation to the detaining authority by the jail
8
authority is not explained. If the representation was
received by the Superintendent of Jail on 23/6/2012, he
should have immediately sent it to the detaining authority.
The detaining authority has received it on 617/2012. The
time lag between 23/6/2012 and 617/2012 is not explained
at all. It was only stated by the detaining authority that C
23/6/2012 and 117/2012 were public holidays. There is no
explanation for the inaction on the part of the
Superintendent of Jail. He has not cared to file any
affidavit explaining why the representation which was
received by him on 23/6/2012 was not sent to the D
detaining authority immediately. Since the
Superintendent of Jail has not filed any affidavit
explaining delay, this delay renders continued detention
of the detenu, illegal. [Para 16] [102-D-F]
E
As/am Ahmed Zahire Ahmed Shaik vs. Union of India
and Ors. (1989)3 SCC 277: 1989 (2) SCR 415; Pebam
Ningol Mikoi Devi vs. State of Manipur and Ors. (2010) 9
SCC 618: 2010 (12) SCR 429; Vijay Kumar vs. State of
J.and K. (1982) 2 SCC 43: 1982 (3) SCR 522 - relied on.
F
2.6. It is clarified that the delay in disposal of the
representation of the detenu has vitiated only the
continued detention of the detenu and not the detention
order. Thus the order of detention dated 16/4/2012 is
valid. However, on account of delay in disposal of the G
representation of the detenu by the State Government,
the continued detention of the detenu is rendered illegal.
The detenu is directed to be released from detention.
[Para 18] [107-E-F]
H
92 SUPREME COURT REPORTS [2013] 6 S.C.R.

A K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of
India andOrs. (1991) 1 SCC 476: '1991 (1) SCR 102 -
followed.

Sayed Abdul Ala vs. Union of lnriia (2007) 15 SCC 208:
2007 (10) SCR 631; Meena Jayendra Thakur vs. Union of
8
India (1999) 8 SCC 177: 1999 (3) Suppl. SCR 98; Union
of India vs. Harish Kumar (2008) 1 SCC 195: 2007 (3) SCR
994 - relied on.
Baby Devassy Chully @ Bobby vs. Union of India and
C Ors. 2012 (10) SCALE 176 - held inapplicable.

Harish Pahwa vs. State of U.P. and Ors. (1981) 2 SCC
710: 1981 (3) SCR 276 - referred to.
Rattan Singh etc. vs. State of Punjab and Ors. (1981) 4
D SCC 481: 1982 (1) SCR 1010; B. Alame/u vs. State of Tamil
Nadu and Ors. (1995) 1 SCC 306; Smt. Khatoon Begum etc.
etc. vs. Union of India and Ors. (198'1) 2 SCC 480: 1981 (3)
SCR 137; Kundanbhai Dulabhai Shaikh etc. vs. Distt.
Magistrate, Ahmedabad and Ors. (1'996) 3 SCC 194: 1996
E (2) SCR 479; Rajammal vs. State of Tamil Nadu and Anr.
(1999) 1 SCC 417: 1998 (3) Sup1pl. SCR 551; Ummu
Sabeena vs. State of Kera/a and Ors. (2011) 10 SCC 781 :
2011 (13) SCR 185; Smt. /cchu De1vi Choraria v. Union of
India and Ors. (1980) 4 SCC 531: 1981 (1) SCR 640; Rekha
F vs. State of Tamil Nadu (2011) 5 SCC 244: 2011 (4)
SCR 740 - cited.
Case Law Reference:
1982 (1) SCR 1010 cited Para 4
G
(1995) 1 sec 306 cited Para 4
1981 (3) SCR 137 cited Para 4
1996 (2) SCR 479 cited Para 4
H
ABDUL NASAR ADAM !SMAIL THROUGH ABDUL BASHEER ADAM 93
!SMAIL v. STATE OF MAHARASHTRA

1998 (3) Suppl. SCR 551 cited Para 4 A

2011 (13) SCR 185 cited Para 4
1981 (1) SCR640 cited Para 4
2011 (4) SCR 740 cited Para 4 B
1991 (1) SCR 102 referred to Para 5
followed Paras 13
and 17
1998 (3) SCR 526 referred to Para 5 c
(2006) 12 sec 211 referred to Para 5
1995 (3) SCR 279 referred to Para 5
1987 (3) SCR 668 relied on Para 5
D
2007 (10) SCR 631 referred to Para 5
2007 (3) SCR994 referred to Para 7
2001 (3) SCR 810 referred to Para 7
E
1981 (3) SCR 276 referred to Para 11
2012 (10) SCALE 176 held inapplicable Para 11
2012 (7) SCR 235 referred to Para 11
1988 (1) Suppl. SCR 287 relied on Para 11 F

1980 (2) SCR 1095 relied on Para 12
1991 (1) SCR 102 followed Para 13
1989 (2) SCR 415 relied on Para 16 G
2010 (12) SCR 429 relied on Para 16
1981 (3) SCR 276 relied on Para 17
2012 (7) SCR235 relied on Para 17
H
94 SUPREME COURT REPORTS [2013] 6 S.C.R.

A 1990 (1) Suppl. SCR 457 relied on Para 15

1982 (3) SCR 522 relied on Para 16
2007 (10) SCR 631 relied on Para17
1999 (3) Suppl. SCR 98 relied on Para 17
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 520 of 2013.

From the Judgment & Order dated 23.01.2013 of the High
c Court of Judicature at Bombay in Writ Petition No. 2613 of
2012.

K.K. Mani, Abhishek Krishnan for the Appellant.

Arun R. Pednekar, Sanjay V. K:harde, Asha Gopalan Nair
D for the Respondents.

The Judgment of the Court was delivered by

(SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
granted.
E
2. In this appeal, by special leave, the appellant has
challenged judgment and order dated 23/01/2013 passed by
the Division Bench of the Bombay High Court dismissing the
writ petition filed by him challenging order of detention dated
F 16/4/2012 issued by the detaining authority i.e. the Principal
Secretary (Appeals and Security), Government of Maharashtra,
Home Department under the provisions of Section 3(1) of the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (for short, "the said Act"). The
G order of detention directed his detention with a view to
preventing him in future from smuggling goods.

3. From the grounds of detention, it appears to be the
case of detaining authority that on 12/8/2011, the appellant
Abdul Nasar Adam Ismail ("detenu" for convenience) arrived
H
ABDUL NASAR ADAM !SMAIL THROUGH ABDUL BASHEER ADAM 95
!SMAIL v. STATE OF MAHARASHTRA [RANJANA PRAKASH DESAI, J.]

from Dubai by Air India flight No.Al-984. He was carrying one A
trolley hand bag. After he was cleared through green channel,
he was stopped by the Assistant Commissioner of Customs
on duty. When his personal search was conducted, it was
noticed that he had concealed two packets in his
undergarments near his groin area and two packets under the B
knee caps worn on calves. On removal of his pants, four plastic
packets wrapped with cello tape, which were kept inside his
cycling shorts and knee caps worn by him on his calves were
recovered. Detailed examination of these four packets resulted
in recovery of 3086 gms. of 22 kt. and 1004 gms. of 18 kt. gold c
chains. The total seized gold was valued at Rs.95,35,932/-. The
detenu's statements under Section 108 of the Customs Act,
1962 were recorded. On perusal of the proposal and
accompanying documents sent by the sponsoring authority, the
detaining authority passed the aforementioned detention order.
D
4. We have heard, at some length, Mr. K.K. Mani, learned
counsel appearing for the detenu. He assailed the detention
order on two counts. Firstly, he contended that the detenu
through his lawyer submitted his representation dated 23/6/
2012 to the jail authority for forwarding it to the State E
Government. The said representation was rejected by the State
Government and the rejection was communicated to the detenu
by the Under Secretary to the Government of Maharashtra vide
letter dated 24/7/2012. Counsel submitted that thus there is an
inordinate delay in considering the representation of the detenu F
which has violated his right under Article 22(5) of the
Constitution of India. Counsel submitted that there is delay at
every stage, which indicates the casual approach of the State
Government. So far as unexplained delay in transmitting the
representation to the State Government by the jail authority is G
concerned, he relied on the judgments of this Court in Rattan
Singh etc. v. State of Punjab and others', Aslam Ahmed
Zahire Ahmed Shaik v. Union of India and others2 and B.
1. (1981) 4 sec 481.
2. (1989> a sec 211. H
96 SUPREME COURT REPORTS [2013] 6 S.C.R.

A Alamelu v. State of Tamil Nadu and others 3 • Counsel
submitted that in a long line of judgments, remissness or casual
approach shown by the authorities in considering the
representation of the detenu is severely criticized by this Court
because it breaches the mandate of Article 22(5) of the
B Constitution of India. In such a situation, the order of detention
is liable to be set aside. In thi:; connection, he relied on
judgments of this Court in Smt. .l(hatoon Begum etc. etc. v.
Union of India and others", Harish Pahwa v. State of UP. &
Ors., 5 K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of
c India and others6, Kundanbhai Dulabhai Shaikh etc. v. Distt.
Magistrate, Ahmedabad and others etc. 7 , Venmathi Selvam
(Mrs.) v. State of Tamil Nadu and another8, Rajammal v. State
of Tamil Nadu and another8, Harsha/a Santosh Patil v. State
of Maharashtra and others' 0 , Pebam Ningol Mikoi Devi v.
State of Manipur & Ors. 11 and Ummu Sabeena v. State of
0
Kera/a & Ors. 12 • Counsel submitted that the gravity of offence
is irrelevant in preventive detention matters. Preventive
detention is a serious inroad on the liberty of a person. The
procedural safeguards are the on!1y protection available to him
and, therefore, their strict compliance is necessary. In this
E connection, counsel relied on the judgments of this Court in Smt.
lcchu Devi Choraria v. Union of India and others 13 ,
Kamleshkumar lshwardas Patel etc. etc. v. Union of India and

3 (1995) 1 sec 306.
F 4. (1981) 2 sec 480.
5 (1981) 2 sec 110.
6. (1991)1 sec 476.
7. (1996) 3 SCC194.
8. 1008 (5) sec s10.
G 9. (1999) 1 sec 417.
10. (2006) 12 sec 211.
11. (2010) s sec 681.
12. (2011) 10 sec 781.
13. (1980) 4 sec 531.
H
ABDUL NASAR ADAM !SMAIL THROUGH ABDUL BASHEER ADAM 97
!SMAIL v. STATE OF MAHARASHTRA [RANJANA PRAKASH DESAI, J.]

others14 , Kundanbhai Dulabhai Shaikh (supra) and Rekha v. A
State of Tamil Nadu 15 .

5. So far as the second point urged by the counsel viz. that
there is no independent consideration of the representation by
the detaining authority is concerned, we must mention that this 8
point was not raised in the petition nor urged before the High
Court. It is not even raised in the present appeal. Ordinarily, we
would not have allowed the counsel to raise any point in this
court, which was not urged before the High Court. However, we
are mindful of the decision of this Court in Mohinuddin @ Moin C
Master v. District Magistrate, Beed & Ors., 16 where this Court
has held that the habeas corpus petition cannot be dismissed
on the ground of imperfect pleadings. We have, therefore,
allowed learned counsel to canvass this point. In support of his
submission that the detention order is liable to be set aside if
the detaining authority does not consider the detenu's D
representation independently, counsel relied on the judgments
of this Court in KM. Abdulla Kunhi (supra), Kam/eshkumar
/shwardas Patel, Venmathi Selvam (supra) and Harsha/a
Santosh Patil (supra). Counsel submitted that in the
· circumstances, this Court should set aside the impugned E
judgment and quash the order of detention dated 16/04/2012.

6. We must make it clear that these were the only points
· urged by learned counsel for the detenu in this Court. While
closing the hearing, we directed learned counsel to submit a F
list of authorities on the above points urged by him. Learned
counsel for the State was to submit his reply to the above points.
We are surprised to note that in the note submitted by learned
counsel for the detenu, he has cited four decisions of this Court
under the caption "New Points". These points are not G
formulated. Thus, an opportunity has been denied to learned
counsel for the State to reply to those new points. We are also
14. (1995) 4 sec 51.
15. (2011) 5 sec 244.
1s. (1987) 4 sec 58. H
98 SUPREME COURT REPORTS [2013] 6 S.C.R.

A at a loss to understand which are those 'New Points'. We are
unhappy about this conduct. But, in any case, as already noted,
since we are dealing with a preventive detention order, we
would look into those four decisions.

B 7. Mr. Arun R. Pednekar, learned counsel for the State of
Maharashtra, on the other hand, submitted that the
representation has been considered with utmost promptitude
and the explanation offered by the State is reasonable and
satisfactory. Counsel submitted that if the delay is properly
C explained, there is no breach of the constitutional imperative.
If there is no indifference or sl;;1ckness shown by the State
Government, the order of detention cannot be set aside on the
ground of delay in considering the representation. In this
connection, he relied on judgments of the Constitution Bench
in K.M. Abdulla Kunhi (supra) and Sayed Abdul Ala v. Union
D of India"- Counsel submitted that in any event if this Court
comes to the conclusion that there is unexplained delay in
considering the representation of the detenu, the order or
detention cannot be set asidei on that ground. Only the
continued detention becomes invalid. In this connection, he
E relied on judgments of this Court Union of India v. Harish
Kumar18 and Union of India v. Manish Bahal alias Nishu1•. So
far as the submission that the representation was not
considered independently by the detaining authority is
concerned, counsel submitted that no such ground was raised
F before the High Court nor was it taken in the petition and,
therefore, the detenu should not be allowed to raise it at this
stage. Counsel submitted that in any case, the affidavit of the
detaining authority clearly establishes that there is independent
consideration of the representation by the detaining authority.
G The appeal, therefore, deserves to be dismissed.

11. (2001) 15 sec 208.
18. (2008) 1 sec 195.
H 19. (2001) 6 sec 36.
ABDUL NASAR ADAM !SMAIL THROUGH ABDUL BASHEER ADAM 99
!SMAIL v. STATE OF MAHARASHTRA [RANJANA PRAKASH DESAI, J.]

8. At the outset, we must note that on a query made by A
this Court as to whether the detenu wants to press this appeal
in case the detenu is already released from detention, counsel
for the detenu submitted that he has instructions to press the
appeal because if the detention order is set aside by this Court,
the proceedings initiated against the detenu under the B
provisions of the Smugglers and Foreign Exchange
Manipulators Act, 1976 will automatically lapse. We, therefore,
proceed to deal with his submissions.

9. Learned counsel urged that the gravity of the offence is
irrelevant in a preventive detention ·matter. We entirely agree C
with this submission and, hence, it is not necessary to refer to
the judgments cited by him on this poi_nt.

10. We shall first deal with the submission that the detaining
authority has not considered the detenu's representation D
independently. As we have already noted, this point was not
raised in the petition and admittedly, not urged before the High
Court. Whether a representation is considered by the detaining
authority independently or not is for the detaining authority to
say on affidavit. This fact is within the exclusive personal E
knowledge of the detaining authority. Had this point been
raised in the writ petition, the detaining authority would have
dealt with it in her affidavit. In the circumstances, if there is no
categorical statement in the affidavit of the detaining authority
that she had independently considered the representation, she F
cannot be faulted for it. No inference can be drawn that the
detaining authority did not consider the representation
independently. In the affidavit, she has stated that the
representation was processed through the concerned Assistant,
the Under Secretary and the Deputy Secretary and then placed G
before her. She rejected it on 24/7/2012. No objection can be
taken to this procedure unless there is any slackness shown in
processing the representation. Here the entire procedure was
completed within four days. We have seen the record. The
concerned Assistant, the Under Secretary and the Deputy
H
100 SUPREME COURT REPORTS [2013) 6 S.C.R.

A Secretary have merely put their signatures on the file. They have
expressed no opinion. Therefore, the submission that the
detaining authority has not considered the representation
independently and she could have been swayed by the
endorsements made by the subordinate officers is without any
B basis. It i~ necessary to note here that this point is not raised
even in the present appeal. Had it been raised, we would have
called upon the detaining authority to filJ
affidavit in this Court.
In view of the above, we reject this submission.

11. We shall now deal with the judgments mentioned in the
C Note under the caption "New Points". So far as Mohinuddin is
concerned, we have already discussed this judgment. It is,
therefore, not necessary to refer to it again. So far as Harish
Pahwa is concerned, we find that there is no new point
discussed in this judgment. It also states that the representation
D of the detenu must be dealt with continuously until the final
decision is taken and communicated to the detenu. The second
judgment is Baby Devassy Chully @ Bobby v. Union of India
& Ors.2°. In this case, this Court has Siated that if a person is
in custody and, there is no immimmi possibility of his being
E released, the rule is that power of preventive detention should
not be exercised. In this case, the detenu was released on bail
on 20/8/2011 and the detention order was passed on 16/4/
2012. Thus, when the detention order was passed the detenu
was not in custody. Therefore, this judgment has no application
F to the present case. The fourth judgment, which is stated to
contain a new point, is Saeed Zakir Hussain Malik v. State of
Maharashtra 21 • In that case, the detention order was set aside
on the ground of delay in passing of the detention order and
delay in execution of the detention order. We have carefully
G perused the affidavit of the detaining authority. The detaining
authority has stated what steps were taken and how the
proposal submitted by the sponsoring authority was processed

20. 2012 (1 O)sec 176.
H 21. (20123) s sec 233.
ABDUL NASAR ADAM ISMAIL THROUGH ABDUL BASHEER ADAM 101
ISMAIL v. STATE OF MAHARASHTRA [RANJANA PRAKASH DESAI, J.]

till the detention order was passed. The sponsoring authority A
has also filed 'affidavit explaining steps taken by it till the
proposal was submitted. The High Court has rightly held that
the said explanation is satisfactory. In this connection, reliance
placed by the High Court on the judgment of this Court in
Rajendrakumar Natvarlal Shah v. State of Gujarat22 is apt. We B
deem it appropriate to quote the relevant paragraph.

"10. Viewed from this perspective, we wish to emphasise
and make it clear for the guidance of the different High
Courts that a distinction must be drawn between the delay C
in making of an order of detention under a law relating
to preventive detention like the ConseNation of Foreign
Exchange and Prevention of Smuggling Activities Act,
1974 and the delay in complying with the procedural
safeguards of Article 22(5) of the Constitution. It has been
laid down by this Court in a series of decisions that the D
rule as to unexplained delay in taking action is not
inflexible. Quite. obviously, in cases of mere delay in
making of an order of detention under a law like the
ConseNation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 enacted for the purpose E
of dealing effectively with persons engaged in smuggling
and foreign exchange racketeering who, owing to their
large resources and influence have been posing a
serious threat to the economy and thereby to the security
of the nation, the courts should not merely on account F
of delay in making of an order of detention assume that
such delay, if not satisfactorily explained, must
necessarily give rise to an inference that there was no
sufficient material for the subjective satisfaction of the
detaining authority or that such subjective satisfaction G
was not genuinely reached. Taking of such a view would
not be warranted unless the court finds that the grounds
are "stale" or illusory or that there is no real nexus

22. (1988) 3 sec 153.
H
102 SUPREME COURT REPORTS [2013] 6 S.C.R.

A between the grounds and the impugned order of
detention. The decisions to the contrary by the Delhi High
Court in Anil Kumar Bhasin v. Union of India & Ors., Cr/.
W.No.410186 dated 2.2.1987, Bhupinder Singh v. Union
of India & Ors., Cr/. W. No.375186 dated 11.12.1986,
B Surinder Pal Singh v. M.L. V\ladhawan & Ors., Cr/. W.
No.444186 dated 9.3.1987 and Ramesh Lal v. Delhi
Administration, Cr/. W. No.43184 dated 16.4.1984 and
other cases taking the same ~·iew do not lay down good
law and are accordingly overruled."
c In light of the above observc:1tions of this Court in our
opinion, the order of detention cannot be quashed on the ground
that there is delay in issuance of the detention order. So far as
delay in execution of the detention order is concerned, it
appears from the affidavit of the detaining authority that the
D detenu is a resident of Mangalore in the State of Karnataka.
The affidavit of Ravindra Kumar Das, Deputy Commissioner
of Customs, COFEPOSA Cell, CSI Airport, Mumbai, indicates
that because the detenu was a resident of Mangalore in the
State of Karnataka, the order of detention, grounds of detention
E and the accompanying documents were forwarded to the State
of Karnataka and the order of detention, therefore, could be
served on the detenu only on 10/5/2012. In the peculiar facts
of this case, in our opinion, the High Court has rightly rejected
this submission. We endorse the High Court's view on this
F point.

12. We shall now turn to the submission that there is delay
in disposal of the detenu's representation by the State
Government. Several judgments have been cited by learned
G counsel for the appellant. It is not necessary to refer to all of
them because they reiterate the same principles. We may
begin with the observations of this Court in Francis Coralie
Mullin v. W. C. Khambra. 23 The relevant portion of the said
judgment reads thus:
H 23. AIR 1980 SC 849.
ABDUL NASAR ADAM ISMAIL THROUGH ABDUL BASHEER ADAM 103
ISMAIL v. STATE OF MAHARASHTRA [RANJANA PRAKASH DESAI, J.]

"The time imperative can never be absolute or A
obsessive".
In L.M.S. umma Saleem v. 8.8. Gujra, (1981) 3 SCC 317, it
was held:
"The occasional observations made by this Court that 8
each day's delay in dealing with the representation must
be adequately explained are meant to emphasise the
expedition with which the representation must be
considered and not that it is a magical formula, the
slightest breach of which must result in the release of the
detenu. Law deals with the facts of life. In law, as in life, C
there are no invariable absolutes. Neither life nor law can
be reduced to mere but despotic formulae."
13.lt is also necessary to refer to the observations of the
Constitution Bench of this Court in K.M. Abdulla Kunhi which
D
read thus:
"12. 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 E
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
F
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 G
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 H
104 SUPREME COURT REPORTS [2013] 6 S.C.R.

A render the continued detention impermissible and illegal."
14. 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 casts a legal obligation on the Government to
B consider the detenu's representation as early as possible.
Though no time limit is prescribed for disposal of the
representation, the constitutional imperative is that it must be
disposed of as soon as possible. There should be no supine
indifference, slackness or callous attitude. Any unexplained
C delay would be a breach of constitutional imperative and it
would render the continued detention of the detenu illegal. That
does not, however, mean that every day's delay in dealing with
the representation of the detenu has to be explained. The
explanation offered must be reasonable indicating that there
o was no slackness or indifference. Though the delay itself is not
fatal, the delay which remains unexplained becomes
unreasonable. The court can certainly consider whether the
delay was occasioned due to permissible reasons or
unavoidable causes. It is not enough to say that the delay was
E very short. Even longer delay can as well be explained. So the
test is not the duration or the range of delay, but how it is
explained by the authority concerned. If the inter departmental
consultative procedures are such that the delay becomes
inevitable, such procedures will contravene the constitutional
mandate. Any authority obliged to make order of detention
F should adopt procedure calculated towards expeditious
consideration of the representation. The representation must
be taken up for consideration as soon as such representation
is received and dealt with continuously (unless it is absolutely
necessary to wait for some assistance in connection with it)
G until a final decision is taken and communicated to the detenu.
15. In light of above principles, it is now necessary to see
how the State Government has disposed of the detenu's
representation in this case. In this connection, relevant dates
H are available from the affidavit of Shivaji S. Patankar, Deputy
ABDUL NASAR ADAM !SMAIL THROUGH ABDUL BASHEER ADAM 105
!SMAIL v. STATE OF MAHARASHTRA [RANJANA PRAKASH DESAI, J.]

Secretary to the Government of Maharashtra, Home A
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 B
correctly located the important dates from the three affidavits.
In our opinion, the detaining authority and the sponsoring
authority have properly explained the time lag between 617/2012
i.e. the date when the representation was received by the
detaining authority and the date of communication of rejection c
to the detenu i.e. on 30/7/2012. The explanation offered by them
is reasonable and acceptable. We find that the representation
was taken up for consideration as soon as it was received and
dealt with continuously until a final decision was taken and
communicated to the detenu. Undoubtedly, time was taken to D
obtain para-wise comments from the sponsoring authority. But,
in Kamarunnissa v. Union of India, 24 this Court has held that
seeking views of the sponsoring authority cannot be said to be
a futile exercise. Thus, the time lag between receipt of the
representation till its consideration and communication of E
rejection to the detenu is properly explained.

16. We, however, find that the delay in transmitting the
representation to the detaining authority by the jail authority is
not explained. If the representation was received by the
Superintendent of Jail on 23/6/2012, he should have F
immediately sent it to the detaining authority. The detaining
authority has received it on 6/7/2012. The time lag between 23/
6/2012 and 6/7/2012 is not explained at all. It is only stated by
the detaining authority that 23/6/2012 and 1/7/2012 were public
holidays. There is no explanation for the inaction on the part of G
the Superintendent of Jail, Nashik Road Central Prison, Nashik.
He has not cared to file any affidavit explaining why the
representation which was received by him on 23/6/2012 was
not sent to the detaining authority immediately. In Pebam Ningol
24. (1991) 1 sec 12a. H
106 SUPREME COURT REPORTS (2013] 6 S.C.R.

A Mikoi Devi, seven days' unexplained delay in forwarding the
representation to the Central Government was held to be fatal.
In As/am Ahmed Zahire Ahmed Shaik, the detenu had handed
over his representation to the Superintendent of Jail on 16/6/
1998 for onward transmission to the Central Government. It was
B kept unattended for a period of seven days and, as a result, it
reached the Government 11 days' after it was handed over to
the Superintendent of Jail. The Superintendent of Jail had not
explained the delay. Relying on Vijay Kumar v. State of J. &
K. 25 , the continued detention of the dEitenu was set aside. At
c the cost of repetition, we must note that in this case, the
Superintendent of Jail has not filed any affidavit explaining
delay. Therefore, this delay, in our opinion renders continued
detention of the detenu, illegal.

17. We would like to make it clear that the delay in disposal
D of the representation of the detenu has vitiated only the
continued detention of the detenu and not the detention order.
In Meena Jayendra Thakur v. Union of lndia, 26 this Court was
considering a case where the detenu was detained under the
provisions of the said Act. This Court held that if the detaining
E authority on the basis of the materials before him did arrive at
his satisfaction with regard to the necessity for passing an order
of detention and the order is passed thereafter, the same
cannot be held to be void because of a subsequent infraction
of the detenu's right or of non-compliance with the procedure
F prescribed under law because that does not get into the
satisfaction of the detaining authority while making an order of
detention under Section 3(1) of the said Act. It does not affect
the validity of the order of detention issued under Section 3(1)
of the said Act. Similar view has been taken by this Court in
G Sayed Abdul Ala. In that case, this Court was concerned with
an order of detention issued under the Prevention of Illicit Traffic
in Narcotic Drugs and Psychotropic Substances Act, 1988. It
was argued that there was delay in considering the
25. (1982) 2 sec 43.
H 2s. (1999) s sec 111.
ABDUL NASAR ADAM !SMAIL THROUGH ABDUL BASHEER ADAM 107
!SMAIL v. STATE OF MAHARASHTRA [RANJANA PRAKASH DESAI, J.]

representation of the detenu. Relying on Meena Jayendra A
Thakur, this Court expressed that even if it is to be assumed
that there was some delay in considering the representation,
the same would not vitiate the original order of detention. By
reason of the delay, only further detention of the detenu will
become illegal. The delay in considering the representation B
does not vitiate the order of detention itself. In Harish Kumar,
this Court was again considering an order of detention issued
under the provisions of the said Act. This Court reiterated the
same view and held that the detention order passed at the
satisfaction of the detaining authority on the basis of the C
material available in no manner gets vitiated for the reason of
non-consideration of the representation made by the detenu to
the Central Government. It was held that initial order of detention
was not rendered void ab initio. It may be noted that even the
Constitution Bench of this Court in KM. Abdulla Kunhi, held
D
that any unexplained delay in disposal of representation of the
detenu would be a breach of the constitutional imperative and
it would render the continued detention impermissible and
illegal and set aside the continued detention of the detenu.

18. In view of this clear legal position, we hold that the order E
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. We, therefore, direct that the detenu - Abdul
Nasar Adam Ismail be released from detention forthwith if he F
is not already released from detention and he is not required
in any other case. The appeal is disposed of accordingly.

K.K.T. Appeal disposed of.