Holding

The Supreme Court held that the representation was dealt with expeditiously, the co‑accused's statement was merely referenced and its non‑supply does not vitiate the detention, and the authority's subjective satisfaction regarding possible bail is not reviewable, thus the High Court's dismissal stands.

Summary

The appellant, the mother of a detainee, challenged his preventive detention on three grounds: alleged delay in disposing of his representation, the detaining authority's inference that he might be released on bail despite no bail application, and the non‑supply of a co‑accused's confessional statement that was referenced in the detention order. The Supreme Court examined the timeline of the representation and found it was dealt with within a few days, indicating no unreasonable delay. It distinguished between a document relied upon and one merely referenced, holding that the co‑accused's statement was only referred to and its non‑supply did not invalidate the detention. The Court also held that the authority’s subjective satisfaction that the detainee might obtain bail, based on material before it, is not a ground for interference. Consequently, the High Court’s dismissal of the habeas corpus petition was upheld.

Issues considered

Whether there was unreasonable delay in the disposal of the detainee's representation under preventive detention law.
Whether the detaining authority erred in inferring a likelihood of the detainee's release on bail without a bail application.
Whether the non‑supply of a copy of the co‑accused's confessional statement, which was only referenced and not relied upon, violates the detainee's right to make an effective representation.
Whether the High Court's order dismissing the habeas corpus petition should be set aside.

Subjects

preventive detentionhabeas corpusrepresentation delayconfessional statementbail inferenceprocedural fairness

Judgment

A SENTHAMILSEL VI
v.
STATE OF TAMIL NADU AND ANR.

JUNE 9, 2006

B [ARIJIT PASAYAT AND C.K. THAKKER, JJ.]

Preventive Detention-Detention order, challenged to on the ground
that there was delay in disposal of representation; non-supply of copy of
confessional statement of co-accused relied upon by the Detaining Authority;
• '
c and that the Authority erred in inferring the possibility ofdetenu being released
on bail, when no application was filed-Dismissed by High Court-Correctness
of-Held: Representation was dealt with, with utmost expedition, there was no
remissness, indifference or avoidable delay on the part of the Authority--
Confessional statement ofca-accused merely finds a reference in the detention
D order; and the likelihood of the detenu being released on bail was subjective
satisfaction olthe Authority based on materials-Hence, order of High Court
does not call for interference.

G was arrested on the ground of suspicion and thereafter, detention
order was passed. Appellant-detenue's mother challenged the detention
E order on the ground that there was delay in disposal of representation;
that since the detenu had not filed any bail application, the detaining
authority could not have inferred that there was possibility of his being
released on bail; and that the copy of the confessional statement of co-
accused relied upon by the Detaining Authority was not supplied to the
detenu. High Court dismissed the petition. Hence the present appeal.
F
Dismissing the appeal, the Court

HELD: l.l. There can be no hard and fast rule as to the measure of
reasonable time and f'ach case has to be considered from the facts of the
case and if there is no negligence or callous inaction or avoidable red-
G

-
tapism on the facts of a case, the Court would not interfere. It is the duty
of the Court to see th.at the efficacy of the limited, yet crucial, safeguards
provided in the law of preventive detention is not lost in mechanical
routine, dull casualness and chill indifference, on the part of the authorities

H 24 .....
SENTHAMILSELVI v. STATE OF TAMIL NADU 25
<
entrusted with their application. When there is remissness, indifference A
or avoidable delay on the part of the authority, the detention becomes

-
vulnerable. In the instant case, the factual scenario indicates that the
representation was dealt with, with utmost expedition. The writ petition
was filed even before the order of rejection was served. That being so the
detenu cannot make grievance that the State had not explained the position
as to how his representation was dealt with. (27-C-E) B

1.2. There is distinction between a relied upon document and a
, .. document which has been referred to without being relied upon. A bare
reading of the grounds of detention in the instant case shows that the
detenu was not arrested on the basis of the co-accused's statement. The
grounds of detention merely refer to the confession by the co-accused. That
c
does not form foundation for the detention. On the contrary, it has been
clearly stated in the ground of detention the detenu was arrested on
suspicion. It appears that the detenu himself made a confession and that
was the main factor on which the order of detention was founded. It is
not disputed that the confessional statement of the detenu was supplied D
to him. Thus, the High Court was justified in coming to the conclusion
that though reference was made to co-accused's statement that was not
relied upon for the purpose of detention. (27-F-H; 28-C; 28-F-G)

Powanammal v. State of T.ty. and Anr., (1999] 2 SCC 413, relied on.
E
1.3. Whether prayer for bail would be accepted depends on
circumstances of each case and no hard and fast rule can be applied. The
only requirement is that the detaining authority should be aware that the
~'...-
detenu is already in custody and is likely to be released on bail. The
conclusion that the detenu may be released on bail cannot be ipsi-dixit of
F
the detaining authority. On the basis of materials before him, the detaining
authority came to the conclusion that there is likelihood of detenu being
released on bail. That is his subjective satisfaction based on materials.
Normally, such satisfaction is not to be interfered with. The detaining
authority also indicated as to why he was of the opinion that there is
likelihood of detenu being released on bail. Therefore, order of High Court G
does not warrant interference. (29-A-E]

Rajesh Gulati v. Govt. of NCT of Delhi and Anr., (2002] 7 SCC 129,
distinguished.

--~ H
26 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Civil Appeal No. 691 of
2006.

From the Judgment and Order dated 20.3.2006 of the High Court of
Judicature at Madras in H.C.P. No. 1357 of 2005.
...
B WITH

Criminal Appeal No. 692 of 2006. Arising out of SLP (Crl.) No. 1811
of 2006.
1 '
K.K. Mani for the Petitioner.
c V. Krishnamurthy for the Respondents.

The Judgment of the Court was delivered by

ARIJIT PASAY AT J. Leave granted.
D "
The order of detention ]passed in respect of Ganapathy @ Undakkuli @
Selva Ganapathy (hereinafter referred to as the "detenue') was questioned by
his mother the appellant by filing a Habeas Corpus Petition before the Madras
High Court. The same was dismissed by the impugned judgment.

E Mainly three grounds were urged in support of the Habeas Corpus
Petition. It was submitted that there was delay in disposal of the representation.
Further that the detenue had not filed any application for bail, therefore, the
detaining authority had committed error in holding that there was imminent
possibility of his coming out on bail. Further the detaining authority had
relied upon the confessional statement of a co-accused without supplying
F copy thereof. That denied detenu the opportunity of making an effective
representation. The High Court did not find any substance in the aforesaid
submission and dismissed the petition.

Jn support of the appeal, learned counsel for the appellant submitted
that there was delay in disposal of the representation. It was further submitted
G that the document which was relied upon has not been supplied to the appellant.

Learned counsel for the respondent-State, in response, submitted that
these stands were specifically dealt with and the High Court has discussed
the factual and legal position positions to reject them.
H Coming to the plea that there was delay in disposal of the representation
... .
SENTHAMILSELVI v. ST ATE OFTAMIL NADU [PASAYA T, J.] 27
-<" it is to be noted that the order of detention is dated I. I 2.2005. The A
representation was sent on 1I.12.2005 which was received by the respondents
on 15.12.2005. The details were called for on 16.12.2005 which were received
on 20. I 2.2005. The file was submitted on 21.12.2005 and dealt with by the
Under Secretary and Deputy Secretary on 22.12.2005. The concerned Minister
pa!;sed order on 22.12.2005 and. the order of rejection which was passed on
27.12.2005 was issued on 28.12.2005 which was sent to the Superintendent
B
of the Jail where the detenue was incarcerated, which was communicated to
the detenue. It was received by the prison authorities and it was served on the
detenue on the day it was received by the Jail authority. The factual scenario
F indicated above indicates that the representation was dealt with, with utmost
expedition. There can be no hard and fast rule as to the measure of reasonable c
time and each case has to be considered from the facts of the case and if there
is no negligence or callous inaction or avoidable red-tapism on the facts of
a case, the Court would not interfere. It needs no reiteration that it is the duty
of the Court to see that the efficacy of the limited, yet crucial, safeguards
provided in the law of preventive detention is not lost in mechanical routine,
dull casualness and chill indifference, on the part of the authorities entrusted D
with their application. When there is remissness, indifference or avoidable
delay on the part of the authority, the detention becomes vulnerable. That is
not the case at hand. It may be noted that that writ petition was filed on
.J 22.12.2005, even before the order of rejection was served. That being so the

- detenue cannot make grievance that the State had not explained the position E
as to how his representation was dealt with.

There is also no substance in the plea that the confessional statement
of the co-accused was relied upon, but the copy thereof was not supplied.
l11e grounds of detention merely refer to the confession by the co-accused.
lliat does not form foundation for the detention. On the other hand it appears F
that the detenue himself made a confession and that was the main factor on
which the order of detention was founded. There is distinction between a
relied upon document and a document which has been referred to without
being relied upon. The distinction has been noticed by this Court in
Powanammal v. State of T.N. and Anr., [1999] 2 sec 413 at para 9. It was G
observed as follows:

-- "However, this Court has maintained a distinction between a document
which has been relied upon by the detaining authority in the grounds
of detention and a document which finds a mere reference in the
grounds of detention. Whereas the non-supply of a copy of the H
28 SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R

A document relied upon in the grounds of detention has been held to be
fatal to continued detention, the detenue need not show that any
prejudice is caused to him. This is because the non-supply of such a

B
document would amount to denial of the right of being communicated
the grounds and of being afforded the opportunity of making an
effective representation against the order. But it would not be so
where the document merely finds a reference in the order of detention
or among the grounds thereof. In such a case, the detenue's complaint
-
of non-supply of document has to be supported by prejudice caused
to him in making an effective representation. What applies to a
document would equally apply to furnishing a translated copy of the
c document in the language known to and understood by the detenu,
should the document be in a different language."

A bare reading of the grnunds of detention m the present case shows
that the detenue was not arrested on the basis of the co-accused's statement.
On the contrary, it has been clearly stated in the ground of detention the
D detenu was arrested on suspicion. It has been stated in paragraph 3(iii) of the
order of detention. The same reads as follows:

"On further investigation on 3.10.2005 at about 1400 hrs. near
Vidayalaya bus stop, Palladam Road, Veerapandi, Timppur. Inspector
•

-
of Police Timppur Rural arrested one Thim. Selva Ganapathy on
E suspicious ground and on enquiry he accepted his participation in
the above occurrence and confessed. He also produced a dagger
used by him in the occurrence from a thorny bush near Vanjipalayam
pirivu in lduvampalayam to lduvai Road, Timpur was seized through
a mahazar in the presence of witnesses. Thim Ganapathy@ Undakuli
@ Selva Ganapathy was produced before Judicial Magistrate No.II
F
Timppur on 3.10.2005 and remanded to judicial custody till 14. I 0.2005
and lodged at Central Prison, Coimbatore."

(Underlined for emphasis)

G It is not disputed that the confessional statement of the detenu was
supplied to him. Above being the factual position the High Court was justified
in coming to the conclusion that though reference was made to co-accused's
statement that was not relied upon for the purpose of detention.

It was also submitted that since the detenu had not filed any bail
H application, the detaining authority could not have inferred that there was
"I '
SENTHAMILSELVI v. STATE OF TAMIL NADU [PASAYAT, J.) 29
possibility of his being released on bail. Strong reliance is placed on several A
decisions of this Court. It has to be noted that whether prayer for bail would
be .accepted depends on circumstances of each case and no ha,rd and fast rule
can be applied. The only requirement that the detaining authority should be
aware that the detenu is already in custody and is likely to be released on
bail. The conclusion that the detenu may be released on bail cannot be ipsi- B
dixit of the detaining authority. On the basis of materials before him, the
detaining authority came to the conclusion that there is likelihood of detenu
being released on bail. That is his subjective satisfaction based on materials.
Normally, such satisfication is not to be interfered with. On the facts of the
case, the detaining authority has indicated as to why he was of the opi'nion
that there is likelihood of detenu being released on bail. It has been clearly C
stat,ed that in similar cases orders granting bail are passed by various courts.
' Appellant has not disputed correctness of this statement. Strong reliance was
-.'
placed by learned counsel for the appellant on Rajesh Gulati v. Govt. of NCT
of Delhi and Anr., [2002] 7 SCC 129. The factual scenario in that case was
entirely different. In fact, five bail applications filed had been already rejected. D
In that background this Court observed that it was not "normal" case. The
High Court was justified in rejecting the stand of the appellant.

Looked from any angle the Judgment of the High Court does not warrant
interference. The appeal is dismissed.

•
'
- Criminal Appeal No. 692/2006 .
E

Arising out of SLP (Crl.) No. 1811/2006.

Leave granted.

Factual position in this case is similar to those involved in Criminal
F
Appeal, arising out of SLP (Crl.) No. 1811 of 2006. For reasons indicated in
the said judgment which are applicable to the present case, this appeal stand
dismissed.

N.J. Appeal dismissed. G