Allowed

S.Zahir Hussain v. Secretary to Government

Madras HC19 Sept 2023HCP/1333/2023

Case brief

AI extract

What is this about?

The Madras High Court allowed a habeas corpus petition and set aside a 2010 COFEPOSA detention order. The court held the order was vitiated due to a snapped 'live and proximate link' caused by unexplained delay between proposal and arrest, non-application of mind regarding bail status, and violation of Article 22(5) via delayed consideration of representation.

What did the court decide?

The impugned preventive detention order dated 30.12.2010 was set aside and the petitioner is directed to be set at liberty forthwith.

S.Zahir Hussain Vs Secretary to… — Constitutional and Fundamental Rights | Madras HC (2023)

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HCP No.1333 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 19.09.2023

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CORAM

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THE HONOURABLE MR.JUSTICE M.SUNDAR

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and

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THE HONOURABLE MR.JUSTICE R.SAKTHIVEL

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H.C.P.No.1333 of 2023

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S.Zahir Hussain S/o.Sahul Hameed .. Petitioner

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Vs.

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The State rep. by Secretary to Government Public (S.C.) Department Chennai-600 009.

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The Directorate of Revenue Intelligence Represented by Additional Director General Department of Revenue Ministry of Finance Government of India No.25, Gopalakrishna Iyer Street T.Nagar, Chennai-600 017.

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The Superintendent Central Prison-II Puzhal, Chennai-600 066. ..Respondents

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Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to direct the respondents to produce the petitioner, now detained at Central Prison, Puzhal, before this Hon'ble Court,

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HCP No.1333 of 2023

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call for the records of detention order passed by the 1st respondent vide COFEPOSA detention order vide G.O.No.SR.1/723-5/2010 Public (S.C.) Department dated 30.12.2020 and set aside the same and set him at liberty.

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For Petitioner : Mr.Abdul Hameed Senior counsel for Mr.S.Elambharathi For Respondents : Mr.A.Gokulakrishnan Additional Public Prosecutor for R1 & R3 Mr.R.Rajesh Vivekananthan, Deputy Solicitor General of India for R2

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O R D E R

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[Order of the Court was made by M.SUNDAR, J.,]

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This order will now dispose of the captioned 'Habeas Corpus Petition'

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[hereinafter 'HCP' for the sake of brevity, convenience and clarity].

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When the captioned HCP was listed for Admission on 24.07.2023,

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the following proceedings / orders were made:

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'H.CP.No.1333 of 2023

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M.SUNDAR. J., AND R.SAKTHIVEL. J.,

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Captioned 'Habeas Corpus Petition' ['HCP' for the sake of brevity] has been filed assailing a 'preventive detention order dated 30.12.2010 bearing reference G.O.No.SR.1/723-5/2010

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Public (S.C.) Department made by the first respondent' [hereinafter 'impugned preventive detention order' for the sake of brevity, convenience and clarity].

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2. Mr.Abdul Hameed, learned Senior counsel instructed by counsel on record Mr.S.Elambharathi, is before this Court in the Admission Board.

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3. Short facts are that impugned preventive detention order has been made by the 'first respondent' [hereinafter 'Detaining Authority' for the sake of convenience and clarity]; that impugned preventive detention order has been made by the Detaining Authority under Section 3(1) 'The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974)' [hereinafter 'COFEPOSA Act' for the sake of convenience]; that after the impugned preventive detention order was made, petitioner moved this Court by of a writ petition being W.P.No.25319 of 2011 together with W.M.P.No.3943 of 2020 thereat with a prayer to forbear arrest and execution pursuant to impugned preventive detention order; that in the writ petition an interim order was granted on 08.11.2011; that the writ petition ultimately came to be dismissed on 03.01.2023; that the dismissal of writ petition was carried to Hon'ble Supreme Court vide Special Leave to Appeal (Crl.) No.933 of 2023; that this SLP came to be dismissed at the SLP stage itself (pre-leave stage) on 30.01.2023 by the Hon'ble Supreme Court; that thereafter the detenu (to be noted, the detenu himself is the habeas corpus petitioner before us) was arrested on 30.05.2023; that according to learned Senior

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counsel detenu sent a representation dated 24.06.2023; that the Advisory Board met on 05.07.2023 but the detenu is not aware of the outcome; that the captioned HCP has not been filed in this Court on 17.07.2023 post Advisory Board meeting on 05.07.2023; that it is submitted that in the earlier writ petition, the impugned preventive detention order was not assailed and only a mandamus restraining arrest and detention pursuant to impugned preventive detention order was sought is learned Senior counsel's say; that while earlier writ was prior to detention, it has now become necessary to assail the impugned preventive detention order by way of a writ of habeas corpus as the detenu has been arrested (pursuant to impugned preventive detention order) and is now incarcerated.

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4. In his campaign against the impugned preventive detention order, learned Senior counsel submits that a) statements given in 2010 by two importers who imported decorative items (glass) is the substratum qua impugned preventive detention order but the importers have not been detained; b) the habeas corpus petitioner is a practising Advocate and the impugned preventive detention order is an attempt to interfere with the professional work of the petitioner and c) it is vitiated by non-application of mind.

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5.To be noted, the above are some of the points projected in the Admission Board and several other points have been raised / urged in the support affidavit qua captioned HCP.

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6. Admit. Issue notice returnable by a fortnight i.e., returnable by 07.08.2023.

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7. Applying second limb sub-rule (3) of Rule 19 of ' Madras High Court Writ Rules, 2021' [hereinafter 'MHC Writ Rules' for the sake of convenience] which provides for issue of Rule Nisi returnable earlier than four weeks, we have issued notice returnable in a fortnight considering the peculiar facts and circumstances of this case making it clear that this will not serve as a precedent in all cases. In other words, resorting to Rule 19(3) of MHC Writ Rules will not be a routine and it will be in exceptional cases and the discretion of the Hon'ble Court concerned, if the need arises. To be noted, the issue of shorter Rule Nisi notice has been referred to Hon'ble Rule Committee in another matter.

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8. Mr.A.Gokulakrishnan, learned Additional Public Prosecutor accepts notice for Respondents 1 and 3. As regards Respondent No.2, besides notice, counsel on record for habeas corpus petitioner is permitted to serve on Mr.R.Rajesh Vivekananthan, learned Deputy Solicitor General of India, clearly mentioning the returnable date.

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List on 07.08.2023.'

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3. Post Admission in the listing on 31.08.2023, captioned HCP was

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heard for some time and proceedings made on that day are as follows:

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'H.C.P.No.1333 of 2023

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M.SUNDAR, J., and R.SAKTHIVEL, J.

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HCP No.1333 of 2023

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(Order of the Court was made by M.SUNDAR, J.,)

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Read this in conjunction with and in continuation of earlier proceedings made in the previous listings.

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2. Today, Mr.Abdul Hameed, learned Senior counsel instructed by Mr.S.Elambharathi, learned counsel on record for the petitioner, Mr.A.Gokulakrishnan, learned State Additional Public Prosecutor for Respondents 1 & 3 and Mr.R.Rajesh Vivekananthan, learned Deputy Solicitor General of India for the second respondent (Sponsoring Authority) were before us.

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3. Learned Senior counsel in his campaign against the impugned preventive detention order inter alia raised three points and they are as follows:

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i) in Sub-paragraph (xvii) of the opening paragraph of the grounds of impugned preventive detention order, the Detaining Authority has recorded that anticipatory bail petitions filed by the detenu and another in which a common counter dated 14.12.2010 had been filed by the Sponsoring Authority is pending whereas the anticipatory bail plea was dismissed on 23.12.2010 by a Hon'ble single Judge of this Court. To be noted, the impugned preventive detention order is dated 30.12.2010. According to learned Senior counsel, this is a) non-application of mind; and b) impairment of subjective satisfaction regarding imminent possibility of detenu being enlarged on bail;

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ii) Adverting to paragraph 11 of the counter affidavit filed by the Detaining Authority, it was submitted that there was delay in considering the 24.06.2023 representation of the petitioner. It was

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submitted that there is leap in certain dates in the chronicle /chronology recorded there;

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iii) 'Live and proximate link' between grounds of detention and purpose of detention has snapped for two reasons:

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a) the writ petition (mandamus writ petition) being W.P.No.25319 of 2011 was dismissed on 03.01.2023 and thereafter there was no arrest though SLP came to be dismissed only on 30.01.2023;

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b) Post 30.01.2023, (SLP dismissal also), the arrest was only on 30.05.2023;

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4. Learned State Additional Public Prosecutor adverting to Section 5A of 'The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974)' [hereinafter 'COFEPOSA Act' for the sake of convenience] submitted that the 'grounds' on which a preventive detention order is made are not severable. The neat question that falls for consideration is whether this would be 'grounds' adumbrated in Section 3(1) of COFEPOSA Act and as to whether Section 5A will come in the way when Banik principle [ Sushanta Kumar Banik Vs. State of Tripura & others reported in 2022 LiveLaw (SC) 813 : 2022 SCC OnLine SC 1333 ] or impairment of subjective satisfaction across the Board principle are canvassed.

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5. Both sides requested for some time to examine the position and revert to this Court. Request of both sides acceded to. List on Tuesday. List on 05.09.2023.'

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4. Aforementioned Admission Board proceedings dated 24.07.2023 and proceedings made in the listing on 31.08.2023 shall now be read as an integral part and parcel of this final order. This means that short forms, abbreviations and short references used in the aforementioned earlier proceedings / orders shall continue to be used in this final order also for the sake of brevity, convenience and clarity. Be that as it may, as the aforementioned orders / proceedings capture all essentials i.e., factual matrix in a nutshell that is imperative for appreciating this final order as well as the trajectory the matter has taken thus far and grounds that have been urged by Mr.Abdul Hameed, learned Senior counsel in his campaign against the impugned preventive detention order, we are not setting out the same again in this final order. In the 24.07.2023 Admission Board order, in paragraph No.3, a typographical error has crept in '......captioned HCP has not been filed in this Court on 17.07.2023.........' should read as '...............captioned HCP has now been filed in this Court on 17.07.2023...............'. This has to be read as an Errata. As regards paragraph No.7 of same Admission Board order, reference to Rule Committee is the question of providing shorter Rule Nisi (less than 4 weeks) across the Board for HCPs.

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5. As regards the point turning on Section 5-A of COFEPOSA Act, learned Senior counsel drew our attention to paragraph No.5 of grounds of the impugned preventive detention order which reads as follows:

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5. The State Government are satisfied that on the facts and material mentioned above, if you remain at large, you will indulge in such prejudicial activities again. The State Government are also satisfied that further recourse to normal criminal law would not have the desired effect of effectively preventing you from indulging in such activities. The State Government, therefore, consider that, it is necessary to detain you under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing you from smuggling of goods in future.'

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{underlining made by this Court is for ease of reference and for emphasis}

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6. Adverting to aforementioned paragraph No.5 of grounds of

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impugned preventive detention order and taking us through Section 3 of COFEPOSA Act, it was submitted that preventive detention orders under COFEPOSA Act can be clamped on as many as 5 'grounds' and in the case on hand, it is clamped on only one ground vide Section 3(1)(i) of COFEPOSA Act namely, 'smuggling goods'. Learned Senior counsel submitted that only

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when a preventive detention order is clamped on a detenu on two or more

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grounds adumbrated in under Section 3(1) of COFEPOSA Act, Section 5-A of COFEPOSA Act would kick in. On a careful perusal of Section 5-A of COFEPOSA Act and some of the case laws {to be noted as regards case laws,

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one of the case laws for an illustration is Madan Lal Anand case [Madan Lal Anand Vs. Union of India and others reported in 1990 1 SCC 81] } we are convinced that in a case where preventive detention order under COFEPOSA Act is clamped on only one of the grounds adumbrated in Section 3(1) of COFEPOSA Act, Section 5-A of COFEPOSA Act will not apply. To be noted, as regards Madan Lal Anand case, preventive detention order was clamped on two grounds under Section 3(1) of COFEPOSA Act namely, (i) smuggling goods and (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. This is evident from paragraph No.2 of Madan Lal Anand case which reads

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as follows:

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'2. This appeal is directed against the judgment of the High Court of Punjab & Haryana, dismissing the writ petition filed by three detenues including one Madan Lal Anand, the husband of the appellant, challenging the validity of the orders of detention, all dated September 30, 1988, passed by the Joint Secretary to the Government of India, the detaining authority,

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under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as the 'COFEPOSA Act'. So far as the detenu Madan Lal Anand is concerned, the order of detention was passed 'with a view to preventing the detenu from abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods'. The order of detention along with the grounds of such detention was served on the detenu on October 18, 1988 and a declaration under section 9 of the COFEPOSA Act was made on November 2, 1988 and served on him on November 3, 1988.'

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7. It is in this context that Hon'ble Supreme Court in paragraph No.29

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of Madan Lal Anand case has held as follows:

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29. In the instant case, even assuming that the ground relating to the confessional statement made by t he detenu under section 108 of the Customs Act was an inadmissible ground as the subsequent retraction of the confessional statement was not considered by the detaining authority, still then that would not make the detention order bad, for in the view of this Court, such order of detention shall be deemed to have been made separately on each of such grounds. Therefore, even excluding the inadmissible ground, the order of detention can be justified. The High Court has also overruled the contention of the detenu in this regard and, in our opinion, rightly.'

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8. To be noted, aforementioned Madan Lal Anand case is cited only

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as an illustration to say that Section 5-A of COFEPOSA Act would kick in and operate only in cases where preventive detention order is made on two or more grounds. In other words, preventive detention order should have been made on atleast two out of five grounds, for Section 5-A of COFEPOSA Act to be attracted. In the case on hand, paragraph No.5 of grounds of impugned preventive detention order (extracted and reproduced supra and alluded to supra) makes it clear that impugned preventive detention order has been made only on one ground and therefore, Section 5-A of COFEPOSA Act does not apply. This clears the clutter or in other words this clears Section 5-A of COFEPOSA Act point that was urged and that has been captured in our proceedings made in the listing on 31.08.2023.

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9. This Court, now proceeds to consider the three points that were urged by learned Senior counsel in his campaign against the impugned preventive detention order. To be noted, these three points are captured in our earlier proceedings dated 31.08.2023. We take Banik's principle point first i.e., 'live and proximate link' between the grounds of detention and

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purpose of detention having snapped. In this regard, our attention was drawn

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to a tabulation in sub-paragraph (i) of paragraph No.29 of counter affidavit of

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first respondent (Detaining Authority) which reads as follows:

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10. In the aforementioned tabulation, S.Nos.4 and 7 are of relevance.

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This means that while proposal has been made by Sponsoring Authority i.e., second respondent on 06.11.2010, impugned preventive detention order has

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been made only on 30.12.2010 by the Detaining Authority (first respondent).

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As would be evident from the tabulation, the period between 06.11.2010 and 30.12.2010 (nearly eight weeks) talks only about queries and replies as between the Sponsoring Authority and Detaining Authority. As regards Banik's principle, which arises under 'Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988' [hereinafter 'PIT NDPS Act' for the sake of brevity], the same is reiteration of time honoured Bhawarlal Ganeshmalji case [ Bhawarlal Ganeshmalji v. State of Tamil Nadu reported in (1979) 1 SCC 465 ] principle. The delay in making of impugned preventive detention order i.e., time consumed between the date of proposal for detention by Sponsoring Authority and the actual date of making of impugned preventive detention order was considered, it relied on Bhawarlal Ganeshmalji ratio and it was held that 'live and proximate link' between the grounds of detention and purpose of detention has snapped. Relevant paragraphs in Banik's principle as reported in LiveLaw are paragraph Nos.18, 20 and 21 which read as follows:

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'18. Chinnappa Reddy, J. speaking for the Bench in Bhawarlal Ganeshmalji v. State of Tamil Nadu , (1979) 1 SCC 465, has explained as follow:

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“It is further true that there must be a “live and proximate

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link” between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is “snapped” if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case, we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the “link” not snapped but strengthened.”

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(Emphasis supplied)

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20. It is manifestly clear from a conspectus of the above decisions of this Court, that the underlying principle is that if there is unreasonable delay between the date of the order of detention & actual arrest of the detenu and in the same manner from the date of the proposal and passing of the order of detention, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the “live and proximate link” between the grounds of detention and the purpose of detention is snapped in arresting the detenu. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case.

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21. In the present case, the circumstances indicate that the

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detaining authority after the receipt of the proposal from the sponsoring authority was indifferent in passing the order of detention with greater promptitude. The “live and proximate link” between the grounds of detention and the purpose of detention stood snapped in arresting the detenu. More importantly the delay has not been explained in any manner & though this point of delay was specifically raised & argued before the High Court as evident from Para 14 of the impugned judgment yet the High Court has not recorded any finding on the same.'

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11. In the case on hand, from the tabulation supra, more particularly S.Nos.4 and 7 thereat, we have no hesitation in saying that Banik's principle applies, impugned preventive detention order is vitiated as 'live and proximate link' between the grounds of detention and purpose of detention has snapped.

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12. As the impugned preventive detention order has been made o n only one of three grounds vide Section 3(1) of COFEPOSA Act, the aforementioned one point will suffice to dislodge the impugned preventive detention order in a habeas legal drill. However, as we have captured other two points also, we deem it appropriate to deal with the same. Before we deal with the same, we make it clear that we had recorded the time consumed between the date of dismissal of writ petition on 03.01.2023 and the date of

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dismissal of SLP on 30.01.2023 besides the time consumed between

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30.01.2023, (SLP dismissal date) and the actual date of arrest i.e., on 30.05.2023 but without going into the same as there is delay in making of the impugned preventive detention order, we have proceeded to sustain the Banik's principle argument on the basis of what has been delineated supra.

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13. The next point that was urged is, representation dated 24.06.2023 and delay in considering the same. As regards the delay point, counter affidavit filed by Detaining Authority (first respondent) and paragraph No.11 thereat is of relevance. The chronology set out therein i.e., in paragraph No.11 of counter affidavit of Detaining Authority (counter affidavit dated 21.08.2023) is as follows:

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14. Adverting to the above, learned Senior counsel submitted that as regards S.No.2, 30.06.2023 (Friday) was a working day but that remains unexplained. Likewise, 03.07.2023 and 04.07.2023 (Monday and Tuesday) were working days but this remain unexplained. Adverting to S.No.7, learned Senior counsel submitted that 11.07.2023 (Tuesday) was a working day and that remains unexplained. These leaps i.e., unexplained leaps are good enough to say that there has been delay in considering the representation sent qua impugned preventive detention order. Considering the representation qua any preventive detention order is a sanctus/sacrosanct constitutional safeguard ingrained in Article 22(5) of Constitution of India and violation of the same leads to vitiation of the impugned preventive detention order, leaving it liable for being dislodged in a habeas legal drill. In the light of the narrative thus far, we have no difficulty in sustaining the

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second point also and saying that there is a delay in considering the

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representation and consequent breach of Article 22(5) of the Constitution of

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India safeguard and therefore, impugned preventive detention order deserves to be dislodged on this ground also.

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15. As regards the first point urged, we find that dates are indisputable and therefore there is no difficulty in accepting the submission that Detaining

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Authority has proceeded on the basis that anticipatory bail petition is pending

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even as on 30.12.2010 (date of impugned preventive detention order) though

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it was dismissed by Hon'ble single Judge of this Court on 23.12.2010.

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This is non-application of mind which is more than obvious.

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16. As would be evident from the narrative, discussion and dispositive

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reasoning supra, we have copiously extracted from counter affidavit of Detaining Authority as well as Sponsoring Authority. Therefore, as regards the stand of Mr.R.Rajesh Vivekananthan, learned Deputy Solicitor General of India for second respondent and Mr.A.Gokulakrishnan, learned State Additional Public Prosecutor for respondents 1 and 3, the matter turns heavily on records and therefore, we have gone only by counter affidavits that

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have been placed before us. Suffice to say that the points turning on Section

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5-A of COFEPOSA Act raised by learned Prosecutor and learned Deputy

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Solicitor General captured in our earlier proceedings dated 31.08.2023 have now remain answered.

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17. For the sake of completion of facts, we deem it appropriate to record that proceedings of the State Advisory Board under COFEPOSA Act being proceedings dated 05.07.2023 bearing reference No.01/2023 has been placed before us and the Advisory Board has sustained the order of detention but that really does not have any impact qua habeas legal drill on hand which has been tested on the aforementioned points.

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18. The sum sequitur of the narrative, discussion and dispositive reasoning thus far is, impugned preventive detention order is vitiated and the same is liable to be dislodged in this habeas legal drill.

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19. Ergo, sequitur is captioned HCP is allowed. Impugned preventive detention order dated 30.12.2010 bearing reference G.O.No.SR.1/723-5/2010 Public (S.C.) Department made by the first respondent is set aside and the

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detenu Thiru.Zahir Hussain, male, aged 41 years, son of Thiru.Sahul

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Hameed, is directed to be set at liberty forthwith, if not required in connection

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with any other case / cases. There shall be no order as to costs.

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(M.S.,J.) (R.S.V.,J.) 19.09.2023

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Index : Yes Speaking Neutral Citation : Yes mk

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P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Chennai.

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The State rep. by Secretary to Government Public (S.C.) Department Chennai-600 009.

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The Directorate of Revenue Intelligence Represented by Additional Director General Department of Revenue Ministry of Finance Government of India No.25, Gopalakrishna Iyer Street T.Nagar, Chennai-600 017.

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