Supreme Court of India
STATE OF TAMIL NADU AND ANR.versusR. SASIKUMAR
- Citation
- 2008 INSC 784
- Decided
- 9 July 2008
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
A representation to the Advisory Board under the Act may be made only after the order of detention is passed and served, and the High Court erred in quashing the detention order on a presumption that the DGP had received the pre‑detention representation.
Summary
The respondent R. Sasikumar was detained under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982. His mother filed a representation to the Chief Minister, copying the Director General of Police, the Advisory Board and the Chief Justice before the detention order was issued, alleging that the authority failed to consider it. The Madras High Court quashed the detention order, presuming that the DGP had received the representation and holding that this violated Article 22(5) of the Constitution. On appeal, the Supreme Court held that the High Court’s presumption was unfounded, that a representation to the Advisory Board can be made only after the detention order is passed and served, and that the incidents cited in the order were not stale. Consequently, the High Court’s order was set aside and the detention order reinstated. The appeal was partly allowed.
Issues considered
- Whether the High Court erred in presuming that the Director General of Police had received the representation sent by the mother of the detenu.
- Whether a representation to the Advisory Board under the Act can be made before the order of detention is passed and served.
- Whether the incidents relied upon in the detention order were stale, warranting quashing of the order.
Legislation cited
Subjects
preventive detentionrepresentationArticle 22(5)High Court presumptionAdvisory Boardstale incidentshabeas corpus
Judgment
[2008) 10 S.C.R. 599
- -\
(
STATE OF TAMIL NADU AND ANR. A
V.
R. SASIKUMAR
(Criminal Appeal No. 465 of 2001)
JULY 9, 2008
B
[DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB
ALAM, JJ.]
Tamil Nadu Prevention of Dangerous Activities of Boot-
leggers, Drug Offenders, Forest Offenders, Goondas, Immoral c
Traffic Offenders and Slum Grabbers Act, 1982; S.3(1):
Order of detention - Challenge to, on ground of non-con-
r
sideration of representation by Commissioner of Police - Al-
... -;. lowed by High Court - Correctness of - Held: High Court or-
der proceeds on presumption - Merely because two of the D
addressees received the representation, it cannot be pre-
sumed that Director General of Police a/so received it - Rep-
resentation to Advisory Board could be made only after order
of detention had been passed and served on deteni.J and not
before as claimed by the mother of detenu - Hence, High Court E
committed an error in quashing order of detention.
Respondent was allegedly detained under s.3(1) of
the Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Drug Offenders, Forest Offenders, Goondas,
Immoral Traffic Offenders and Slum Grabbers Act, 1982. F
Mother of the detenu challenged the order on the ground
that before passing of the order of detention by the au-
thorities, a representation had been filed by her and a
copy thereof was marked to the Director General of Po-
Uice and other authorities which was not considered by G
he detaining authority. The High Court allowec= the peti-
fon quashing the order of the detention. Hence, the
~resent appeal.
599 H
600 SUPREME COURT REPORTS [2008] 10 S.C.R.
A Appellant-State contended that there was no ques-
tion of any representation even before the order of deten-
tion was passed and there was no question of sending it
to the Advisory Board.
Partly allowing the appeal, the Court +-
B
HELD: 1.1 The High Court's order proceeds on pre-
sumption. Merely because two of the addressees had re-
ceived the representations that in no way shows that the
Director General of Police had received the representa-
C tion. [Para 4] [602-G]
Sri Anand Hanumathsa Katar v. Additional District Mag-·
istrate and Ors. 2006 (10) sec 725 - relied on.
1.2 The question of making a representation to the
Advisory Board arises only after the order of detention
0
had been passed and served on the detenu. The High
Court therefore, was clearly in error in quashing the or-
der of detention. [Para 5] [607-F,G] ·
1.3 Several incidents have been referred to in the
E order of detention and the last of such instances was of
22.6.1999. The detention order was passed on 9.7.1999
and, therefore, it cannot be said to be relatable to stale
incidents. The impugned order of the High Court is there-
fore quashed. Since the impugned order of the High Court
F was passed more than 8 years back, considering the na-
ture of the order of detention which is essentially preven-
tive in character, it is appropriate for the State Govern-
ment and the detaining authority to consider whether
there is any need to take the detenu back to detention for
G serving the remainder of the period of detention which
was indicated in the order of detention. However, this.
Cour.t express no opinion on that aspect. [608-A,B,C]
State of TN. and Another v. A/agar 2006 (7) SCC 540
relied on.
H
STATE OF TAMIL NADU & ANR. v. R. 601
SASIKUMAR [DR. ARIJIT PASAYAT, J.]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal A
No. 465 of 2001
From the final Order dated 24.3.2000 of the High Court of
Judicature at Madras in Habeas Corpus Petition No. 1262 of
1999
B
R. Sundaravaradan, VG. Pragasam, S.J. Aristotle and
Prabu Ramasubramanian for the Appellants.
K.K. Mani (A.C.) C.K.R. Lenin Sekar and Mayur R. Shah
for the Respondents.
c
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of a Division Bench of the Madras High Court al-
lowing the Habeas Corpus Petition filed by the respondent ques-
tioning the order of detention i.e. Detention Order 519/BDFGIS/ D
99 dated 9.7.1999 passed·by the Commissioner of Police,
Chennai.
2. Background facts in a nutshell are as follows:
The respondent (hereinafter referred to as the 'detenu') E
was detained under sub-section (1) of Section 3 of Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Drug Of-
-
fenders, Forest Offenders, Goondas, Immoral Traffic Offenders
and Slum Grabbers Act, 1982 (in short the 'Act')." The only point
urged before the High Court was that an order of detention was F
passed on 9.7.1999 and on 6.7.1999 the mother of the detenu
had sent a representation to the Chief Minister of Tamil Na du. A
copy of the representation was marked to the Director General
of Police, Chennai, the Advisory Board under the Act as well as
the Chief Justice of the High Court. It was, therefore, submitted G
that there was evidence of dispatch of the representation and
since it was not considered by the detaining authority the order
of detention was bad.
The stand of the detaining authority was that the represen-
tation was not sent to the detaining authority and, therefore. there H
602 SUPREME COURT REPORTS [2008] 10 S.C.R.
A was no question of considering the same before passing the
order of detention.
The High Court found that since two of the authorities
had received the representation it must be presumed that the
Director Generalof Police would have received the represen-
B tation in the usual course. A presumption was drawn that the 1
Director General of Police had been served the representation
and accordingly it was held that the Director General of Police
must have received the representation and since that was not
taken note of, there was violation of Article 22(5) of the Consti-
c tution of India, 1950 (in short the 'Constitut!on'). Accordingly,
the order of dete::ntion was quashed.
The. State of Tamil Nadu and the detaining authority have
challenged the correctness ofthe order of the High Court. No-
tice was issued by this Court on 4.9.2000. When the matter
D
was taken up subsequently on 11.12.2000, it was noted that the
detenu was not represented and there was no appearance on
behalf of the detenu, though he was served. The Bench also
noted that the period of detention was also over and the detenu
hag been released. The Court further noted that it would be
E proper to appoint Mr. K.K. Mani, Advocate as Amicus Curiae.
3. Learned counsel for the appellants submitted that the
approach of the High Court is clearly wrong. There was no ques-
tion of any representation even before the order of detention
F was passed and there was no question of sending it to the Ad-
~
visory Board.
4. Learned Am.icus Curiae submitted that since the repre-
sentations sent to the Chief Minister and the Advisory Board
amongst others ha.d been received,.the High Court found that
G the Director General of Police is presumed to have received
the notice. Therefore, impugned order cannot be faulted. We
find that the High Court's order proceeds on presumption. Merely y·
because two of the addressees had received the representa-
tions that in no way shows that the Director General cf Police
1-1 had received the representation. Additionally, as rightly submit-
STATE OF TAMIL NADU & ANR. v. R. 603
SASIKUMAR [DR. ARIJIT PASAYAT, J.]
ted by learned counsel for the appellant-State, before the order -. A
of detention was passed there is no question of sending a rep- .
resentation to the Advisory Board. This appears to be clever.
use to create evidence to contend non-application of mind. This
is a classic case, (such cases are increasing by leaps and
/--~ bounds) where red-hearings are intentionally drawn to deflect B
the course of justice. In Sri Anand Hanumathsa Katar v. Addi-
tional District Magistrate and Ors. (2006 (1 O) sec 725) it was
observed by this Court as follows:
"11. At this juncture it would be relevant to .take note of
paras 17 to 19 of Union of India v. Paul Manickam (2003 C
(8) sec 342) They read as follows: (SCC pp. 354-
55)
"17. Coming to the question whether the
representation to the President of India meets with
0
the requirement of law, it has to be noted that in
Raghavendra Singh v. Supdt., District Jail, Kanpur
(1986 (1) SCC 650) and Rumana Begum v. State
of A.P (1993 Supp. (2) sec 341) it was held that a
representation to the President of India or the
Governor, as the case may be, would amou1"1t to E ·
representation to the Central Government and the
State Government respectively. Therefore, the
representation made to the President of India or the
Governor would amount to representation to the
Central Government and the State Government. But F
this cannot be allowed to create a smokescreen by
an unscrupulous detenu to take the authorities by
surprise, acting surreptitiously or with ulterior motives.
In the present case, the order (grounds) of detention
specifically indicated the authority to whom the G
representation was to be made. Such indication is
also a part of the move to facilitate an expeditious
consfderation of the representations actually made.
18. The respondent does not appear to have come H
604 SUPREME COURT REPORTS [2008] 10 S.C.R.
A with clean hands to the court. In the wrifpetition there
was no mention thatthe representation was made to
the Preside~t; inst~ad it wa~ ·spedfically ·stated· in
paragraph 23 that the representation was made by
registered poslto the ffrst respondent on 11-5-2000
B .anq a similar representation was made to the second
respondent.Before the High Court in the writ petition
the first and the second respondents were described
as follows: ' ' · · ·
'1. State of Tamil Nadu,
c
rep. by· its Secretary,
Government of Tamil Nadu,
Public (SC) Department,
D Fort St. George,
Chennai, 600 .009.
2. Union of India,
,.
rep. by its Secretary,
E
Ministry of Finance,
Department of Revenue,
New Delhi.'
F 19. _As noted· supra, for the first time in the review
application it was disclosed that the representation
was made to the President of India and no
representation was made to lhe State of Tamil Nadu
or the Union of India who were arrayeq, in the writ
G petition as parties. This appears to be a deliberate
attempt to create confusion and reap an undeserved .,, .
. benefit by adopting such dubious device. The High
Court also transgressed its jurisdiction in entertaining
the review petition with an entirely new substratum of
H issues. Considering the limited scope for review, the
STATE OF TAMIL NADU & ANR. v. R. 605
SASIKUMAR [DR. ARIJIT PASAYAT, J.]
High Court ought not to have taken into account factual A
aspects which were not disclosed or were concealed
in ·the writ petition. While dealing with a habeas
corpus application undue importance is not to be
·attached to technicalities, but at the same time where
the court is satisfied that an attempt has been made 8
to deflect the course of justice by letting loose red
herrings the court has to take serious note of unclean
approach. Whenever a representation is made to
the President and the Governor instead of the
indicated authorities, ·it is but natural that the
representation should indicate as to why the C
representation was made to .the President or the
Governor and not the indicated authorities. It should
also be clearly indicated as to whom the
representation has been made specifica!ly, and not
in the mann~r done in ttie case at hand. The President D
as well as the Governor, no doubt are constitutional
Heads of the respective Governments but the day-
to-day administ.ration at· respective levels is carried
on by the Heads of the Departments/Ministries
concerned and designated officers who alone are
uitimately responsible and accountabie for the action E
taken or to be takeri in a given case. If _really the
citizen concerned genuinely and honestly f~ltor was
interested in getting an expeditious consideration or
disposal of his grievance, he would and should
honestly approach the real authorities concerned and F
would not adopt any dubious devices with the sole
aim of deliberately creating a situation for delay in
consideration and cry for relief on his own
manipulated ground, by directing hjs representation
to an authority which is not directly/immediately G.
concerned with such c·onsideration."
12. Paras 17 to 19 of Union of India v. Chaya Ghoshal
(2005 (10) sec 97) are also relevant: They read as follows:
(SCC pp. 106-07')
H
606 SUPREME COURT REPORTS [2008] 10 S.C.R.
fl;-
A "17. While dealing with a habeas corpus application, '
undue importance is not to be attached to
technicalities, but at the same time where the court
is satisfied that an attempt has been made to deflect
the course of justice by letting loose red herrings, the
B court has to take serious note of unclean approach.
Whenever a representation is made to the President
or the Governor instead of the indicated authorities,
it is but natural that the representation should indicate
as to why the representation was made to the
c President or the Governor and not to the indicated
authorities. It should also be clearly indicated as to
whom the representation has been made specifically.
The President as well as the Governor, no doubt are
constitutional Heads of the respective Governments
but·day-to-day administration at respective levels is
'".
D ~
carried on by the Heads of the Department/Ministries
concerned and designated officers who alone are
ultimately responsible and accountable for the action
taken or to be taken in a given case. If reaily the
citizen concerned genuinely and honestly felt or is
E interested in getting an expeditious consideration or
disposal of his grievance, he would and should
. honestly approach the real authorities concerned and
would not adopt any dubious devices with the sole 'I
F
aim of deliberately creating a situation for delay in
consideration and cry for relief on his own ,.
manipulated ground, by directing his representation
to an authority which is not directly/immediately
concerned with such consideration.
18. Where, however, a person alleging infraction of
G
personal liberty tries to act in a manner which is more
aimed at deflecting the course of justice than for !"
protection of his personal right, the court has to make
a deliberate balancing of the fact situation to ensure
that the mere factum of some delay alone is not made
H
STATE OF TAMIL NADU & ANR. v. R. 607
SASIKUMAR [DR ARIJIT PASAYAT, J.]
use of to grant relief. If a fraud has been practised or A
perpetrated, that may in a given case nullify the
cherished goal of protecting personal liberty, which
obligated this Court to devise guidelines to ensure
such protection by balancing individual rights and
the interests of the nation, as well. B
19. In R. Keshava v. M.B. Prakash ((2001 (2) SCC 145)
it was observed by this Court as follows: (SCC p. 154,
para 17)
'17. We are satisfied that the detenu in this case c
was apprised of his right to make representation to
the appropriate Government/ authorities against his
order of detention as mandated in Article 22(5) of
the Constitution. Despite knowledge, the detenu did
not avail of the opportunity. Instead of making a
0
representation to the appropriate Government or the
confirming authority, the detenu chose to address a
representation to the Advisory Board alone even
without a request to send its copy to the authorities
concerned under the Act. In the absence of
representation or the knowledge of the representation E
having been made by the detenu, the appropriate
Government was justified in confirming the order of
detention on perusal of record and documents
excluding the representation made by the detenu to
the Advisory Board. For this alleged failure of the F
appropriate Government, the order of detention of
the appropriate Government is neither rendered
unconstitutional nor illegal. " ·
5. The question of making a representation to the Advi-
sory Board arises only after the order of detention had been O
passed and served on the detenu. The High Court therefore,
was clearly in error in quashing the order of detention.
6. Another point which has been urged is that the incidence
referred to in the order of detention is stale and could not have H
608 SUPREME COURT REPORTS [2008] 10 S.C.R.
. A formed the foundation for the order of detention. We find that sev-
. eral incidents have been referred to in the order of detention and
·the last of such instances was of 22.6.1999. The detention order
was passed on 9.7.1999 and, therefore, itcannot be said to be
relatable to stale incidents. The impugned order of the High Court
B is therefore quashed. Since the impugned order of the High Court
was passed more than 8 years back, considering the nature of
the order of det13ntion which is essentially preventive in charac-
ter, It is appropriate for the State Government and the detaining
authority to consider whether there is any need to take the detenu
c back to detention for serving the remainder of th~ period of de-
tentiqn which was indicated in the order of detention. We ex-
press no opjnion on that aspect. In State of T.N. and Another v.
(
A/agar [2006 (7) sec 540] it was noted as follows:
'"9. The re~idual question is whether it would be appropriate
D to direct the respondent to surrender for serving remaining
period of detention in- view of passage of time. As was noticed
in Sunil Fulchand Shah v. Union of India (2000 (3) SCC
.409) and State of TN v. Kethiyan Perumal .(2004 (8) SCC
780) it is for the appropriate State to consider whether the
E impact of the acts, which led to the order of detention still
survives and whether it would be desirable to send back the
detenu for serving remainder period of detention. Necessary
order in this regard shall be passed within two months by the
appellant State. Passage of time in all cases cannot be a
F · ground not to send the detenu to serve remainder of the
period of detention. It all depends on the facts of the act and
the continuance or otherwise of the effect of the objectionable
·acts. The State shall consider whether there still exists a
.proximate temporal nexus between the period of detention
indicated in the order by which the detenu was required to be
G
detained and the date when the detenu is required to be
detained pursuant to the present order." ·
7. The appeal is allowed to the aforesaid extent.
H S.K.S. Appeal partly allowed.
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