(2012) 249 KLR 367 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 30TH DAY OF MARCH 2012/10TH CHAITHRA 1934 WP(C).No. 2641 of 2012 (E) -------------------------- PETITIONER(S): ------------- ABRAHAM C.JOSEPH, AGED 39 YEARS S/O. SRI C.A. JOSEPH R/O. CHEKKATTU HOUSE, THADIYOOR PATHANAMTITTA DISTRICT-689545 BY ADVS.SRI.B.KUMAR (SR) SRI.V.K.SATHYANATHAN SMT.V.VIJITHA SRI.P.A.AUGUSTIAN RESPONDENT(S): -------------- 1. UNION OF INDIA REP.BY SECRETARY TO GOVT. OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE NEW DELHI-110001 2. JOINT SECRETARY, GOVT. OF INDIA DEPARTMENT OF REVENUE MINISTRY OF FINANCE 6TH FLOOR, 'B' WING JANPATH BHAWAN, JANPATH NEW DELHI 110001 3. THE SUPERINTENDENT, CENTRAL PRISON, TRIVANDRUM, KERALA-695001 *4. ADDITIONAL DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE, KOCHI REPRESENTED BY THE PRESENT ADDL.DIRECTOR DR.T.TIJU, AGED 39 YEARS S/O DR.K.J.THOMAS, RESIDING AT 4B-SKYLINE MELTROSE APARTMENTS, CHEMBUMUKKU, KAKKANADU. *( ADDL.R4 IMPLEADED AS PER ORDER DATED 30.3.2012 IN I.A.NO.4564 OF 2012) BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA-R1 &2 BY SENIOR GOVERNMENT PLEADER T.RAMAPRASAD UNNI-R3 BY ADV. SRI.C.P.UDAYABHANU-ADDL.R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:
RESPONDENTS' EXHIBITS:
//TRUE COPY// P.A.TO JUDGE "C.R" THOTTATHIL B. RADHAKRISHNAN & C.T. RAVIKUMAR, JJ. -------------------------------------------- W.P.(C). No.2641 OF 2012 -------------------------------------------- Dated this the 30th day of March, 2012 Head Note:- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 8 - Writ of habeas corpus - Whether the continued detention after the proceedings before the Advisory Board in terms of section 8 of the Act is lawful? - Held, Advisory Board was being given only a bunch of papers which are copies of materials already relied on. There is no material on record that the Advisory Board had given any time for the detenu or his advocate to consider the materials placed by or on behalf of the detaining authority or sponsoring authority before the Advisory Board. Requirement of rule of hearing in the context under consideration has not been duly applied. Situational justice is the core theory. Rule of hearing, including fairness in hearing, are relevant considerations in all situations where rule of hearing becomes an issue for resolution. That can never be ignored. The proceedings before the Advisory Board were not in consonance with the requirement of the Constitution and laws. Therefore, the continued detention of the person concerned, on and after the date of the Advisory Board's sitting on 14.1.2012 is unsustainable in terms of the Constitution and the laws. JUDGMENT Thottathil B. Radhakrishnan, J. This writ petition is filed seeking issuance of a writ of habeas corpus in re Alex C. Joseph, detained in terms of an order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter, the 'Act'. That order of detention passed on 13.4.2000 was executed on 8.11.2011 after apprehending him on 6.11.2011. The petitioner says that he is the brother of the detenu. 2.The modus operandi attributed to the detenu and the different proceedings under the Customs Act and other provisions, as also the allegation that he had used different passports, are not matters for consideration by us, now. We say this because, hearing the learned Senior Advocate for the petitioner, the learned Assistant Solicitor General on behalf of the Union of India and the learned Advocate appearing for the Directorate of Revenue Intelligence, the sponsoring authority, in the light of the materials and affidavits on record, we are of the view that what is of prominence, with the passage of time, is to see whether the continued detention after the proceedings before the Advisory Board in terms of section 8 of the Act is lawful. 3.In the writ petition, the petitioner specifically contends that a bunch of 253 pages was produced before the Advisory Board, on 14.1.2012, the only date of hearing, at Thiruvananthapuram, and though the detenu, assisted by an advocate, had sought adjournment to look into those materials, no opportunity to represent against those documents was given by the Advisory Board. Grounds F and G of the writ petition are relevant in this context. They read as follows:- "F. The petitioner says and submits that the procedure before the Advisory Board is also unfair and violative of Article 21 of the Constitution of India. The advisory board meeting was held at Customs House at Thiruvanathapuram on 14.1.2012. The respondents were represented by their advocate besides Additional and senior intelligence officers and a host of others were also there. At the commencement of the hearing they have produced documents running to 253 pages, all photo copies. The counsel for the detenu objected to the production of the documents running to 253 pages on the ground that he had no opportunity of perusing the documents or getting instructions from his client relating to the same. In fact the representative of the detaining authority who was also present was not even willing to give a copy of the documents handed over to the board. It was only later during the course of hearing, at the instance of the Hon'ble Members, a copy of the document was given to the detenu. The submission is made on behalf of the sponsoring authority based on these documents. The petitioner says and submits that the whole of the procedure is unfair and violation of the Act as well as the Constitution. Firstly by giving documents running to 253 pages at the time of hearing of the advisory board and relying upon the same to sustain the order of detention is perforce unfair procedure and violative of Article 21 of the Constitution of India. It is as good as the detenu not being given a copy of the document as giving the document during the course of arguments without any time to study or to get instructions thereon. Therefore, the proceedings are violative of natural justice. Secondly, by relying upon 253 pages of documents to support an order of detention is also against the scheme of the Act and the Constitution. Subjective satisfaction of the detaining authority cannot be supported by any document that was not before the detaining authority when it made the order of detention. The right of making a representation guaranteed under Article 22(5) of the Constitution is therefore violated. The detenu has had no opportunity to represent against the documents produced before the advisory board. Any such act makes the detention and continued detention illegal. That the detenu's case has been prejudiced appears to be obvious the maxim being "a pinch of prejudice will outweigh tones of agruments". G. The petitioner says and submits thirdly that the proceedings before the advisory board must afford equal opportunity to the detenu and the detaining authority by permitting the detaining authority to rely upon fresh and additional material, such equal opportunity has been denied to the detenu. Such unequal representation itself makes the detention illegal and bad in law being violative of Article 22(4) and 22(5) of the Constitution of India." 4. All that we have in answer by the detaining authority to the aforesaid plea on behalf of the detenu, is in paragraph 11(g) of the counter affidavit sworn to on 2.3.2012, on behalf of the Union of India and Joint Secretary, Government of India, Department of Revenue, who are respondents 1 and 2 in the writ petition. That reads as follows: "Contrary to the allegation leveled by the petitioner that only 253 pages of documents have been relied upon by the Detaining Authority for issuance of the detention order, in fact, 185 documents comprising 826 pages relied upon by the Detaining Authority while passing the detention order against the detenu and all these documents have been served on the detenu on 12.11.2011, after execution of the detention order." 5.There is no assertion in the counter affidavit on behalf of respondents 1 and 2 that the documents presented before the Advisory Board on the date of hearing were only copies of those documents which were already served on the detenu and whether he was apprised of the fact that they were only such copies. 6.With this, we see the additional counter affidavit filed by the Assistant Director of Directorate of Revenue Intelligence (sworn to on 28.3.2012) producing therewith Ext.R4(3), what according to that Officer, is a list of documents which were produced before the Advisory Board. While that additional counter affidavit proceeds to say that the list would indicate that all the documents were already available to the detenu and there were no new or fresh revelations, an examination of Ext.R4(3) list categorically shows that all those documents came into being only after the detention order. Though it could be said that he would have been in the knowledge of the availability, and probably, the contents of those documents, we cannot in law, attribute the detenu with knowledge of all those orders, to the satisfaction of the conscience of the writ court while dealing a writ petition concerning liberty issues and seeking relief by way of a writ, order or direction in the nature of habeas corpus. 7.The mandate of law in terms of Article 22(5) of the Constitution as enunciated by the Apex Court in different decisions, including A.K.Roy v. Union of India (AIR 1982 SC 710), Harbans Lal v M.L.Wadhawan (AIR 1987 SC 217), State of T.N v. Senthil Kumar [1999 SCC (Criminal) 299] and Rajammal v. State of T.N [1999 SCC (Criminal) 93] is law declared by the Apex Court and binding in terms of Article 141 of the Constitution. Hence, though the right to make a representation in terms of Article 22(5) of the Constitution is not incorporated into the Act by amendments, that right has to be read as an intricate statutory component. Further, any event during the continuance of detention has to be considered to examine whether there is any breach of law which calls for interference, if such event makes the continued detention illegal and unconstitutional from that event. The right to represent and to lead rebuttal evidence is an inbuilt component of the constitutional rights of the detenu under Article 22(5) and is recognised as an intricate part of the right to liberty in terms of the Constitution and the laws. 8.The Advisory Board is entitled to follow its own procedure and framework, having regard to the time frame fixed by the statute for deliverance of its opinion and recommendation. This prescription and availability of authority with the Advisory Board to reasonably regulate its proceedings has to be exercised in no manner hurting the liberty of the individual who is undergoing or covered by the detention order, in terms of the statutes and the Constitution, including its vision. Therefore, when materials are produced before the Advisory Board, either by or on behalf of the detaining authority or the sponsoring authority, it is the bounden duty of the authorities concerned, including the Advisory Board, to ensure that the copies thereof are given to the detenu and that he is given sufficient opportunity to examine those materials and also to adduce rebuttal evidence, if he desires to do so as regards those materials which are brought before the Advisory Board. 9.In the case in hand, even if the Advisory Board was being given only a bunch of papers which are copies of materials already relied on, the detenu had to be clearly and categorically told through the competent officer that they are nothing but copies of documents which are identifiable among those already given to him. Otherwise, the continuity of the transition of information from the authority considering the situation would not reach the detenu's mind, enabling to answer the materials against him. This exercise cannot be a long drawn process, as noticed in Rajammal (supra). It has to be within the reasonable framework of the statutory limitation as to time. There is no material on record, by counter affidavit by or on behalf of the detaining authority or sponsoring authority, that the Advisory Board had given any time for the detenu or his advocate to consider the materials placed by or on behalf of the detaining authority or sponsoring authority before the Advisory Board. There is nothing on record to show that the Advisory Board sat on any date after 14.1.2012 to consider the case of the detenu. Also, there is no such plea on behalf of the departments. Therefore, even if we were to assume that the Advisory Board, in its wisdom, would have granted some time during the course of the day for the detenu's advocate to look into the papers which were produced, that does not satisfy the rule of hearing as enunciated by the Apex Court and applicable to such matters. We are of the firm view that requirement of rule of hearing in the context under consideration has not been duly applied. Situational justice is the core theory. Rule of hearing, including fairness in hearing, are relevant considerations in all situations where rule of hearing becomes an issue for resolution. That can never be ignored. In all fours, that applies to the case in hand. On the facts and circumstances of the case in hand, as noticed above, we cannot, but hold that the proceedings before the Advisory Board were not in consonance with the requirement of the Constitution and laws. They fail. Therefore, the continued detention of the person concerned, on and after the date of the Advisory Board's sitting on 14.1.2012 is unsustainable in terms of the Constitution and the laws. In the result, we hold that the continued detention of the person in relation to whom this writ petition is filed is violative of the Constitution and the laws, and, accordingly, we allow this writ petition, issuing a writ in the nature of habeas corpus and ordering that Alex C.Joseph, who is detained in Central Jail, Thiruvananthapuram pursuant to Ext.P1 order, shall be released and set at liberty forthwith unless his detention is wanted in connection with any other case. Registry will communicate this direction to the concerned prison authorities, forthwith. THOTTATHIL B. RADHAKRISHNAN (Judge) C.T. RAVIKUMAR (Judge) spc/ 30.3. |
