UMMU SABEENAversusSTATE OF KERALA & ORS.

                         '
              [2011] 13 (ADDL.) S.C.R. 185

                    UMMU SABEENA                              A
                             v.
               STATE OF KERALA & ORS.
           (Criminal Appeal No. 2136 of 2011)
                  NOVEMBER 17, 2011
                                                              B
   [ASOK KUMAR GANGULY AND JAGDISH SINGH
                KHEHAR, JJ.]

     Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (COFEPOSA) - s.3 - Order C
of detention under - Representation made by detenus -
Central Government took two months to dispose of the
detention representation - Held: Orders of detention quashed
on the ground of delay on the part of the Central Government
in disposing of the representation of the detenus - D
Expression 'as soon as may be' in sub-clause (5) of Article
22 of the Constitution sufficiently makes clear the concern of
the framers of the Constitution that the representation should
be very expeditiously considered and disposed of with a
sense of urgency and without any avoidable delay - E
Constitution of India, 1950 - Article 22(5).

     Constitution of India, 1950 - Article 226 - Writs - Writ of
Habeas Corpus -Technical objection of respondents on
question of prayer in the Habeas Corpus Petition filed by the F
appel/ants-detenus - Held: In dealing with writs of Habeas
Corpus, such technical objections cannot be entertained -
The writ of Habeas Corpus is the oldest writ evolved by the
Common Law of England to protect the individual liberty
against its invasion in the hands of the Executive or may be
a/so at the instance of private persons - This principle of G
Habeas· Corpus has been incorporated in the Indian
Constitutional law - The writ of Habeas Corpus is a writ of the
highest Constitutional importance being a remedy available
to the lowliest citizen against the most powerful authority - In
                             185                              H
    186   SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R


A the instant case, if the technical objection made by the
  respondent in this proceeding is upheld and the matter is sent
  back to the High Court for re-agitation of this question, the
  same would deprive the detenus of their precious liberty, which
  has been invaded in view of the manner in which their
B representations were unduly kept pending - Such technical
  objection accordingly over-ruled.

       An order of detention under Section 3 of the
  Conservation of Foreign Exchange and Prevention of
C Smuggling Activities Act, 1974 (COFEPOSA) was served
  on the appellants-detenus on 10th March, 2011 who filed
  writ petitions before the High Court for issuance of writs
  of Habeas Corpus.

       Representations made by the detenus on the 30th
D March, 2011 were rejected by the State Government on
  8th April, 2011 and thereafter forwarded to the Central
  Government. The Central Government took time till 6th
  June, 2011 to reject the same. This oelay on the part of
  the Central Government in the rejection of the detention
E representation was questioned and the detention of the
  appellants was assailed on the ground that the
  representations filed on their behalf were not disposed
  of in accordance with the mandate of Article 22(5) of the
  Constitution.
F       The question which arose for consideration in the
    present appeal was whether the manner of consideration
    and rejection of detention representation by the Central
    Government was in accord with the principles laid down
    by this Court on this aspect in several earlier cases.
G
        Allowing the appeals, the Court
      HELD: 1.1. In the Constitution Bench decision of this
  Court in the case of Abdulla Kunhi*, the Court, after
H noting the Constitutional provisions under sub-clauses
 UMMU SABEENA v. STATE OF KERALA & ORS.                  187

(4) and (5) of Article 22 of the Constitution, held that A
neither under the Constitution nor under the relevant
statutory provision, any time limit has been fixed for
consideration of representation made by a detenu. The
time limit, according to the Constitution Bench, has been
deliberately kept elastic. But the Constitution Bench laid B
emphasis on the expression 'as soon as may be' in sub·
 Clause (5) of Article 22 and held that the said expression
 sufficiently makes clear the concern of the framers of the
 Constitution that the representation should be very
 expeditiously considered and disposed of with a sense c
 of urgency and without any avoidable delay. Considering
 the aforesaid provision, the Constitution Bench held that
 "there should not be any supine indifference, slackness
 or callous attitude in considering the representation. Any
 unexplained delay in the disposal of representation 0
 would be a breach of the constitutional imperative and it
 would render the continued detention impermissible and
  illegal". The same principles were re-iterated in two
  subsequent judgments of this Court in the case of
  Rajammal and in the case of Kundanbhai Dulabhai
  Shaikh. Going by the aforesaid precedents, it must be E
  held that the procedural safeguards given for protection
  of personal liberty must be strictly followed. The history
  of personal liberty, as is well known, is a history of
  insistence on procedural safeguards. [Paras 9, 10, 12, 13
  & 14] [191-H; 192-A·H; 193-A·E]                            F

      1.2. Following the said principle, it is clear that delay
 in these cases is for a much longer period and there is
 hardly any explanation. This Court, therefore, has no
 hesitation in quashing the orders of detention on the            G
 ground of delay on the part of the Central Government
  in disposing of the representation of the detenus. [Para
  15] [193-F]

     K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of H
     188 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


 A India & Ors., State of Karnataka & Ors. (1991) 1 SCC 476:
   1991 (1) SCR 102 - followed.

         Rajammal v. State of T.N. & Anr. (1999) 1 SCC 417:
   1998 (3) Suppl. SCR 551; Kundanbhai Du/abhai Shaikh v.
 B Distt. Magistrate, Ahmedabad & Ors. (1996) 3 SCC 194: 1996
   (2) SCR 479 - relied on.

       2.1. Insofar as the plea of the respondents on the
  question of prayer in the Habeas Corpus Petition filed by
  the appellants-detenus is concerned, i.e. that the Habeas
C Corpus petition was not to quash the detention on the
  ground of delay and it could not have been so prayed for
  as the writ petition was filed prior to the rejection of the
  representation by the detenus, this Court is constrained
  to observe that in dealing with writs of Habeas Corpus,
D such technical objections cannot be entertained. [Paras
  17, 18] [194-A-C]

       2.2. The writ of Habeas Corpus is the oldest writ
   evolved by the Common Law of England to protect the
E individual liberty against its invasion in the hands of the
   Executive or may be also at the instance of private
   persons. This principle of Habeas Corpus has been
   incorporated in our Constitutional law and in a
   democratic republic like India where Judges function
  under a written Constitution and which has a chapter on
F Fundamental Rights, to protect individual liberty, the
  Judges owe a duty to safeguard the liberty not only of
  the citizens but also of all persons within the territory of
  India. The most effective way of doing the same is by way
  of exercise of power by the Court by issuing a writ of
G Habeas Corpus. This facet of the writ of Habeas Corpus
  makes it a writ of the highest Constitutional importance
  being a remedy available to the lowliest citizen against
  the most powerful authority. [Paras 20, 21 and 22) [194-
  G-H; 195-A-C]
H
  UMMU SABEENA v. STATE OF KERALA & ORS.               189


     2.3. If the technical objection made by the respondent A
in this proceeding is upheld and the matter is sent back
to the High Court for re-agitation of this question, the
same would deprive the detenus of their precious liberty,
which has been invaded in view of the manner in which
their representations were unduly kept pending. This B
Court, therefore, overrules the aforesaid technical
objection. The detenus are directed to be set at liberty
 forthwith unless they are required to be detained in
 connection with any other case. [Paras 23, 24] (195-D-F]

    Law of Habeas Corpus by James A. Scott and Charles C
C. Roe of the Chicago Bar [T.H. Flood & Company,
Publishers, Chicago, Illinois, 1923]; Halsbury, Laws of
England, Fourth Edition, Volume 11, para 1454 and The
Common Law in lndia-1960 by M.C. Setalvad, page 38-
referred to.                                                   D
                    Case Law Reference:
     1991 (1) SCR 102           followed           Para 9
     1998 (3) Suppl. SCR 551 relied on             Para 12     E
     1996 (2) SCR 479           relied on          Para 13
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
 No. 2136 of 2011.
                                                               F
     From the Judgment & Order dated 30.09.2011 of the High
 Court of Kerala at Ernakulam in WP No. 194 of 2011.
                             WITH
 Crl. A. Nos. 2137, 2138 & 2139 of 2011.
                                                               G
     V. Shekhar, K.K. Mani, Abhishek Krishna, B. Sunita Rao,
 Vishal Saxena, B. Krishna Prasad, M.T. George for the
 appearing parties.

      The Judgment of the Court was delivered by               H
      190     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C R


  A         GANGULY, J. 1. Leave granted.
        2. All these four appeals have been filed impugning an
    order dated 30th September, 2011 of the High Court of Kerala
   whereby the writ petitions filed for issuance of writs of Habeas
 B Corpus, assailing the orders of detention dated 26th February,
   2011 passed under the provisions of Conservation of Foreign
   Exchange and prevention of Smuggling Activities Act, 1974
   (hereinafter referred to as 'the COFEPOSA') were rejected by
   the High Court.
 C      3. It is not in dispute that the facts in all the cases are the
    same. Common ground is that an order of detention under
   Section 3 of the COFEPOSA was served on all the detenus
   on 10th March, 2011 on whose behalf petitions were filed
   before the High Court and therefore, their detention under the
 D COFEPOSA commenced on and from 10th March, 2011. In
   these proceedings, we are not going into the merits of the
   grounds or the recitals thereof.
       4. Before us, the detention of the appellants has been
  assailed on the question that the representations filed on behalf
E of the detenus were not disposed of in accordance with the
  mandate of Article 22(5) of the Constitution.
       5. The admitted facts are that representations were made
  by the detenus on the 30th March, 2011 and the same were
F 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 the Central Government in the
  rejection of the detention representation has been sought to be
  explained on the basis of an affidavit filed on behalf of the
G Central Government.
       6. Our attention has been drawn to the said affidavit which
  has been filed by one A.K. Sharma, Under Secretary to the
  Government of India in the Ministry of Finance, Department of
  Revenue, Central Economic Intelligence Bureau, COFEPOSA
H Section, New Delhi. The purported explanation has been given
  UMMU SABEENA v. STATE OF KERALA & ORS.                     191
         [ASOK KUMAR GANGULY, J.]
in para 3 of the said affidavit. A perusal of para 3 of the A
affidavit reveals that the representation dated 30th March, 2011
was forwarded by the State Government of Kerala to the
Central Government by their letter dated 16th April, 2011 and
the same was received in the COFEPOSA Unit of the Ministry
of Finance, Department of Revenue, New Delhi on 21st April, B
2011. It has been observed that 22nd April, 2011 to 24th April,
2011 were holidays. Thereafter parawise comments on the
representation were called for from the Additional Director
General, Directorate of Revenue Intelligence and the detaining
authority i.e. Government of Kerala on 25th April, 2011. The c
comments were received on 10th May, 2011. The comments
of the detaining authority were received on 18th May, 2011. ·
Then the COFEPOSA Section submitted the file along with all
the relevant files and documents to the Deputy Secretary,
COFEPOSA on 18th May, 2011 for examination. After detailed D
examination of the issues raised in the representations and
comments of the Sponsoring Authority and the detaining
authority, the Deputy Secretary submitted the file with
comprehensive note to the Joint Secretary, COFEPOSA on 3rd
June, 2011. 4th and 5th June, 2011 were Saturday and Sunday E
and ultimately, the said representations were considered and
rejected by the Central Government on 6th June, 2011 as being
devoid of merit.

    7. Now the question is whether the aforesaid manner of
consideration and rejection of representation by the Central        F
Government is in accord with the principles laid down by this
Court on this aspect in several cases?

     8. It is clear in this case that the Central Government took
about more than two months i.e. whole of April and May and          G
ultimately rejected the representations only on 6th June, 2011
whereas representations were made on 30th March, 2011.

   9. Reference in this connection may be made to the
Constitution Bench decision of this Court in the case of K.M.
Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India & H
    192 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R


A Ors., State of Karnataka & Ors. (1991) 1 SCC 476. The
  unanimous Constitution Bench, speaking through Justice K.
  Jagannatha Shelly, after noting the Constitutional provisions
  under sub-clauses (4) and (5) of Article 22, was pleased to hold
  that neither under the Constitution nor under the relevant
B statutory provision, any lime limit has been fixed for
  consideration of representation made by a detenu. The time
  limit, according to the Constitution Bench. has been deliberately
  kept elastic. But the Constitution Bench laid emphasis on the
  expression 'as soon as may be' in sub-clause (5) of Article 22
c and held that the said expression sufficiently makes clear the
  concern of the framers of the Constitution that the
  representation should be very expeditiously considered and
  disposed of with a sense of urgency and without any avoidable
  delay.
D      10. Considering the aforesaid provision, the Constitution
  Bench held that "there shpuld not be any 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 render
E the continued detention impermissible and illegal".

         11. In support of the said conclusion, the learned Judges
    of the Constitution Bench relied on various other judgments
    mentioned in Para 12 at page 484 of the report.
F      12. In a subsequent judgment in the case of Rajammal Vs.
  State of T.N. & Anr. (1999) 1 SCC 417, a three Judge Bench
  of this Court, relying on the ratio of the Constitution Bench
  decision in Abdulla Kunhi, reiterated the same principles. From
  Para 9 at page 421 of the report, it would appear that in the
G case of Ra}ammal, the concerned Minister, while on tour,
  received the file after 9.2.1998 and then passed the order on
  14.2.1998. No explanation was offered for this delay of about
  five days. This Court held that such delay has vitiated further
  detention of the detenu [see para 11 at page 422].
H
  UMMU SABEENA v. STATE OF KERALA & ORS.                      193
         [ASOK KUMAR GANGULY, J.]
      13. In another subsequent judgment of this Court in the A
case of Kundanbhai Dulabhai Shaikh Vs. Distt. Magistrate,
Ahmedabad & Ors., (1996) 3 SCC 194, this Court while
reiterating the aforesaid principles, found that representation
was received by the Central Government on 21st September,
1995 and then comments were called for from the State B
Government and the same were received by the Central
Government on 18th October, 1995 and the representation was
rejected on 19th October, 1995. This Court held in para 22 of
the judgment at page 204 that the internal movement of the file
thus took four days and this Court found that this inaction in        c
taking up the representation for six days is unexplained and the
mere ground was that there were forty or fifty representations
pending for disposal is not a valid justification. This Court found
that such delay voids the continued detention of the detenus and
the detention order was quashed.                                    D

      14. Going by the aforesaid precedents, as we must, we
hold that the procedural safeguards given for protection of
personal liberty must be strictly followed. The history of personal
liberty, as is well known, is a history of insistence on procedural
safeguards.                                                           E

     15. Following the said principle, we find that delay in these
cases is for a much longer period and there is hardly any
explanation. We, therefore, have no hesitation in quashing the
orders of detention on the ground of delay on the part of the         F
Central Government in disposing of the representation of the
detenus.

      16. Learned counsel for the respondents has however
urged that he is not disputing the principles laid down by this G
Court in the aforesaid judgments but he submitted that in the
instant case, the Habeas Corpus petition filed before the High
Court was not to quash the detention on the ground of delay
and inasmuch as it could not hal(e been so prayed for as the
writ petition was filed prior to the rejection of the representation
by the detenus.                                                      H
    194    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A         17. Learned counsel for the Union of India further argued
    that the question of delay has not been urged before the High
    Court.

       18. Taking up the second objection first, we find that the
B question of delay was urged before the High Court as it
  appears from Pages 6 and 7 of the impugned judgment. But,
  insofar as the question of technical plea which has been raised
  by the learned counsel on the question of prayer in the Habeas
  Corpus petition is concerned, we are constrained to observe
C that in dealing with writs of Habeas Corpus, such technical
  objections cannot be entertained by this Court.

         19. Reference in this connection may be made to the Law
  of Habeas Corpus by James A. Scott and Charles C. Roe of
  the Chicago Bar [T.H. Flood & Company, Publishers, Chicago,
D Illinois, 1923) where the learned authors have dealt with this
  aspect in a manner which we should reproduce as we are of
  the view that the same is the correct position in law:

         "A writ of habeas corpus is a writ of right of very ancient
        origin, and the preservation of its benefit is a matter of the
E
        highest importance to the people, and the regulations
        provided for its employment against an alleged unlawful
        restraint are not to be construed or applied with
        overtechnical nicety, and when ambiguous or doubtful
        should be interpreted liberally to promote the effectiveness
F       of the proceeding. [Ware v. Sanders, 146 Iowa, 233, 124
        N.W. 958)".
       20. In this connection, if we may say so, the writ of Habeas
  Corpus is the oldest writ evolved by the Common Law of
G England to protect the individual liberty against its invasion in
  the hands of the Executive or may be also at the instance of
  private persons. This principle of Habeas Corpus has been
  incorporated in our Constitutional law and we are of the opinion
  that in a democratic republic like India where Judges function
H under a written Constitution and which has a chapter on
  UMMU ::>Al:lc.f:NA v. STATE OF KERALA & ORS.                   195
              [ASOK KUMAR GANGULY, J.)
Fundamental Rights, to protect individual liberty, the Judges           A
owe a duty to safeguard the liberty not only of the citizens but
also of all persons within the territory of India. The most effective
way of doing the same is by way of exercise of power by the
Court by issuing a writ of Habeas Corpus.
                                                                        B
     21. This facet of the writ of Habeas Corpus makes it a writ
of the highest Constitutional importance being a remedy
available to the lowliest citizen against the most powerful
authority [see Halsbury, Laws of England, Fourth Edition,
Volume 11 , para 1454).
                                                                        c
    22. That is why it has been said that the writ of Habeas
Corpus is the key that unlocks the door to freedom (see The
Common Law in lndia-1960 by M.C. Setalvad, page 38).

     23. Following the aforesaid time-honoured principles, we           0
make it very clear that if we uphold such technical objection in
this proceeding and send the matter back to the High Court for
reagitation of this question, the same would deprive the detenus
of their precious liberty, which we find, has been invaded in view
of the manner in which their representations were unduly kept           E
pending. We, therefore, overrule the aforesaid technical
objection and allow these appeals.

     24. We direct that the detenus should be set at liberty
forthwith unless they are required to be detained in connection
with any other case.                                                    F

     25. The appeals are accordingly allowed.

B.B.B.                                            Appeals allowed