The Judgment of the Court was delivered by

Koshy, J.:— By this Habeas Corpus petition, the petitioner, wife of the detinue, approached this court against the detention of her husband, on the basis of preventive detention order dated 20-11-2003, issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short ‘COFEPOSA’). It is true that whether a person has to be detained without trial as a preventive measure to prevent him from indulging in commission of economic offence as mentioned in the Act depends on the subjective satisfaction of the authorities concerned. The above subjective satisfaction is outside the purview of judicial review. Preventive detention is different from punitive detention after offences are proved according to the procedure prescribed by law. Article 21 of the Constitution provides that no person shall be deprived for his life or personal liberty except according to the procedure established by law. Article 22 which authorises preventive detention, lays down statutory limitations and procedural safeguards. The preventive detention is not intended as punishment for commission of economic offence. We are not considering correctness of application of mind regarding the satisfaction of the authority in issuing the order or merits of the case, but whether constitutional safeguards prescribed by law are complied with or not. As held by the Apex Court in Narendra Purshotam Umrao v. B.B Guiral ((1979) 2 SCC 637 : AIR 1979 SC 420) when the liberty of the citizen is involved and he is put in prison without trial as a preventive measure, it is the bounden duty of the court to satisfy itself that all the safeguards provided by law have been scrupulously observed. This is so even if one is detained for preventing economic offences under COFEPOS A as held by the Apex Court in Icchu Devi v. Union of India ((1980) 4 SCC 531 : AIR 1980 SC 1983) and in Rattan Singh v. State of Punjab (1981 SCC (Cri) 853).

2. The contentions of the petitioner are four in number. (1) There is delay in issuing the preventive detention order, accepting the dates mentioned in the order. (2) There is delay in disposal of the representations filed against the order. (3) The representations were not properly disposed of by the appropriate authority and those orders were not sent on him. But only the rejection order was communicated by another authority without stating any reason. (4) There is delay in execution of the detention order. To understand the nature of the contentions, before dealing with the contentions, we may come to the allegations against the detinue as contained in paragraph 6 of the order that:

“6. It was seen that amounts totalling Rs. 2,07,50,000/- were credited into the A/c. No. 423 with Federal Bank, Thrissur and Current A/c. No. 274 with Catholic Syrian Bank, Thrissur, of Shri B. Nandakumar of Guruvayoor (i.e you) by means of Telegraphic Transfers from Shri. C. Surendra Kumar's bank accounts at Mumbai. Therefore, your residential premises at Guruvayoor and Ernakulam were searched on 29-05-2000, but nothing incriminating was found in either of the premises. You were not present during the said searches. Subsequently, your statements were recorded on 14-08-2000, 23-08-2000, 07-01-2000 and 16-03-2001, in which you admitted, inter alia, having been instrumental in introducing Shri. C. Surendra Kumar to various banks in Kerala either by yourself or through your contacts and also having accompanied him many times to banks in Ernakulam and Thrissur. You further stated, interalia, that the said two accounts in your name were opened and operated at his instance and that you had received a remuneration from him by means of a cheque for Rs. 52,000/-.”

3. These are the only acts said to have been done by the detinue in this case. That shows that there is no transaction concerning the case done by the detinue after 16-03-2001. There is no case for the respondents also that after March 2001, he has opened or operated the accounts connected with the case. He was also questioned in 2001. His house was searched in 2001. No incriminating documents were also found. But it is the contention of the respondents that several persons were involved in the transaction and that caused the delay. But we note that all other involved persons were questioned and their premises were searched before August 9, 2002. Sri. Surendra Kumar's house was searched on 11-04-2000. In response to the summons he appeared before the authority on 17-08-2002. In fact, on 04-03-2003 the screening committee also met. After that, no further materials were elicited. But detention order was issued on 20-11-2003 and there is delay in issuing the detention order. If it is to prevent the activities and not as punitive it should be issued at the earliest. But here there is unexplained delay in issuing the detention order. As far as the detinue is concerned, no allegation against him is raised for the period after March 2001, and the delay is more than 2 ½ years and nexus itself is lost for detaining him as a preventive measure. (See Lakshman Khatik v. State Of West Bengal (1974 Crl. L.J 936); Sk. Abdul Munnaf v. State Of West Bengal. (1974 Crl. LJ. 1233); T.A Abdul Rahman v. State of Kerala (1990 Crl. L.J 578); K.P.M Basheer v. State of Karnataka (1992 Crl. L.J 1927). In Golam Hussai Alias Gama v. Commissioner of Police, Calcutta ((1974) 4 SCC 530 : AIR 1974 SC 1336) it was held that a writ of habeas corpus can be issued if there is wide time gap between the offence and the order of detention. The unexplained delay of three months was held to be unjustifiable in Malwa Shaw v. State Of West Bengal, (1974) 4 SCC 127.

4. The detinue has got a constitutional right under Article 22(5) and statutory right (section 11 of COFEPOS A) for making representation. In the order this right was spelt out to make a representation (1) to the Detaining Authority addressed to the Joint Secretary, (2) to the Central Government addressed to the Secretary, and (3) to the Advisory Board. In the preventive detention order it is stated as follows:

“……… If you wish to avail your right of making representation, you may submit your representation through the Jail Authorities, where you are detained, in the manner indicated below:

(1) Representation meant for the Detaining Authority should be addressed to the undersigned i.e Joint Secretary, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance, 6th Floor, ‘B’ Wing, Janpath Bhawan, Janpath, New Delhi - 110 001;

(2) Representation meant for the Central Government should be addressed to the Secretary, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance, 6th Floor, ‘B’ Wing, Janpath Bhawan, Janpath, New Delhi - 110 001;

(3) Representation meant for the Advisory Board should be addressed to the Chairman, COFEPOS A Advisory Board, Delhi High Court, Sher Shah Road, New Delhi. You are further informed that you shall be heard by the Advisory Board in due course, if the Board considers it essential to do so or if you so desire”.

5. Accordingly, the detinue sent a detailed representation to the Joint Secretary (Detaining Authority), dated 12-04-2004, which was rejected and that fact was intimated to the detinue by communication dated 30-04-2004 which reads as follows:

“With reference to the representation dated 12-04-2004 made by Shri. B. Nandakumar, a COFEPOSA detinue, he is hereby informed that the aforesaid representation has been carefully considered by the Joint Secretary, Central Economic Intelligence Bureau, Deptt. of Revenue, Ministry of Finance, New Delhi being the Detaining Authority but it is regretted that the same has been rejected.

(N. Rajagopalan)

Under Secretary to the Government of India”

6. The Joint Secretary's order as such rejecting the representation was not sent, but the Under Secretary to the Government of India informed him that the above representation was rejected. Even after filing the writ petition, the order of the Joint Secretary was not produced. Therefore, we are unable to find out whether the Joint Secretary (detaining authority) has applied his mind while disposing of the statutory representation. There is also eighteen days delay in disposing of the representation which was not explained in the counter affidavit. The Supreme Court in Union of India v. Paul Manickam ((2003) 8 SCC 342) held that a constitutional protection is given to every detinue which mandates the grant of liberty to the detinue to make a representation against detention, as imperated in Article 22(5) of the Constitution and section 11 of the COFEPOSA Act. It also imperates the authority to whom the representation is addressed to deal with the same with utmost expedition as held by the Supreme Court in Prof. Khaidem Ibocha Singh, Etc. v. State Of Manipur ((1972) 2 SCC 576 : AIR 1972 SC 438). The Apex Court in a number of cases decided that representations should be considered and disposed of as expeditiously as possible and unexplained delay in considering the representation amount to violation of article 22(5) resulting in the detention being declared illegal. In the background of constitutional mandate under article 22(5) and statutory compulsion under section 11 of COFEPOSA, the representations should be considered in the right perspective every relevant points raised in the representation should be considered by the authority. Application of mind by the authority while disposing of the representation is a sine qua non of the statutory obligation. In John Martin v. State Of West Bengal ((1975) 3 SCC 836 : AIR 1975 SC 775) it was held that representation cannot be rejected in a casual or mechanical manner. The representation is to be considered with proper application of mind keeping in view the fact that the detention of the detinue is based on the subjective satisfaction of the authority concerned, and infringement of the constitutional right conferred under Article 22(5) invalidates the detention order. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. Therefore, we are of the opinion that disposal of the representation is a constitutional mandate and it should be disposed of by applying mind without any delay. Ext. P4 will not show that the Authority had applied its mind while disposing of the representation. Delay was also not explained.

7. Ext. P5 representation was made to the Central Government and it was addressed to the Secretary to Government of India as directed in the detention order. It is a very detailed representation. That was also rejected and it was informed by Ext. P6, dated 28-05-2004, despatched on 31-05-2004, as follows

“With reference to the representation darted 04-05-2004 made by Shri. B. Nandakumar, a COFEPOSA detinue, he is hereby informed that the aforesaid representation has been carefully considered by the Joint Secretary, Central Economic Intelligence Bureau, Deptt. of Revenue, Ministry of Finance, New Delhi being the Detaining Authority but it is regretted that the same has been rejected.

(N. Rajagopalan)

Under Secretary to the Government of India”

8. This shows that the representation addressed to the Secretary was considered only by the Joint Secretary, that the representation was disposed of after more than three weeks and was not disposed of applying mind by the competent authority. Delay of 16 days was held to be unexplained by the Apex Court in Pabitra N. Rana v. Union of India ((1980) 2 SCC 338 : AIR 1980 SC 798) and in Khaidem Ibocha Singh v. State of Manipur ((1972) 2 SCC 576 : AIR 1972 SC 438). It is pointed out by the learned Central Government Standing Counsel that another communication was also sent to him on 31-05-2003 by the Under Secretary informing that Secretary has disposed of the representation. The learned Senior Standing Counsel was also handed over the file. It shows that on receipt of the representation the Under Secretary has prepared a note. Behind the note, the Secretary has made an endorsement as follows:

“I have gone through the representation and all relevant papers. The representation does not merit acceptance”.

9. Even though various contentions including non-supply of necessary documents etc. were mentioned in the representation, there is no application of mind by the Secretary to Government. The Secretary has just rejected the representation. It does not show that he has applied his mind. When the Authority disposes a representation, which is a constitutional right of the detinue, it cannot be disposed of like this in a casual manner. Further, the Secretary has not communicated his order to the detinue, but only the Under Secretary has communicated the order. It is true that even though making of representation is a constitutional right, there is no obligation for the Central Government to grant a hearing. It is also not necessary that an elaborate speaking order should be passed. But from the order it should appear that the authority has applied its mind while disposing of the representation. The order should be sent to the detinue. Here the order passed by the Secretary was not sent to the detinue, but only the factum of rejection of his representation was intimated by the Under Secretary keeping the detinue in dark regarding the way in which his representation was disposed of. There is nothing on record to show that the concerned authority has applied its mind. Even if the Under Secretary informed him that Secretary has disposed of his representation, this is not the way a constitutional obligation is to be discharged by the Government Secretary. Therefore, there is no proper disposal of the representation. We are of the view that on this ground alone the detention order will not stand as there is procedural violation.

10. The last ground is that there is unexplained delay in execution of the detention order. The preventive detention order is dated 20-11-2003. But the order was executed only on 27-03-2004, after more than four months delay. The reason stated in the counter affidavit is that the detinue was absconding. But mere statement that he was absconding is not enough to explain the delay in execution of the order. Letter of the Superintendent of Police was shown to us by the learned Standing Counsel for the Central Government. Mere Statement that on three occasions when police searched his residential house the detinue was not there is not a sufficient explanation. Affidavits were filed showing that the detinue was residing in his house through out this period. He has appeared on 28-11-2003 before the Income Tax Officer, Ward No. 1(1), Trichur as can be seen from Ext. P7. He approached the Chief Judicial Magistrate, Coimbatore on 3-11-2003 and sought permission to obtain the signature of Mr. Surendran on affidavits to prove that the detinue had nothing to do with the transactions. Ext. P10 proved the same. On 20-11-2003 the Magistrate Court passed an order granting permission. Pursuant to that order, the detinue appeared before the Superintendent, Central Jail, Coimbatore on 24-11-2003, as can be seen from Ext. P11 letter of the Superintendent of Central Jail, Coimbatore. After several visits he obtained the signature of Mr. Surendran only on 26-12-2003. The detinue appeared before the Income Tax Officer on 26-12-2003 also and again appeared on 29-12-2003 to substantiate his case. Ext. P15 would show that he appeared before the Commissioner of Income Tax, Cochin on 18-3-2004. All these exhibits would show that the detinue was available at his place of residence and he was not absconding. Delay in execution of the order of detention itself shows that nexus is lost as held by the Apex Court in P.V Iqbal v. Union of India (1992 Cr. L.J 2924 (SC)). Delay of 40 days in execution of the detention order was held sufficient to set aside the detention order, by the Apex Court in A. Mohammed Farook v. Jt. Secy. to G.O.I, (2000) 2 SCC 360). Three months delay was held to be justifiable by the Apex Court in Adbul Rahman v. State of Kerala ((1989) 4 SCC 741 : AIR 1990 SC 225). In Assai v. State of Kerala (2000 (1) KLT 673) a Division Bench of this court held that one month's delay in execution of the detention order vitiates the order of detention (judgment by Mr. Arijit Pasayat, CJ. as he then was). The delay of more than four months in execution of the order is not properly explained in the counter and on this ground also the preventive detention order will stand vitiated. This writ petition was filed on 13-04-2004 and Senior Standing Counsel for the respondent took notice on 24-04-2004. Several posting dates were given for filing counter affidavit. Counter affidavit dated 16-06-2004 was filed by the Joint Secretary to the Government of India on 21-06-2004 only. One reason stated is that a transfer petition is filed before the Supreme Court as in connection with the same transaction several persons were detained and writ petitions are filed in Bombay as well as in Madras High Courts. But no orders were passed on the transfer petition. On behalf of the detinue no other writ petitions were filed in any other High Court. But the question whether is delay in execution of the detention order on the detinue and whether there is proper disposal of the detinue's representation in this case etc. cannot be the subject matter with regard to the other detinue even though they were also detained in connection with the allegations levelled against this detinue. We are only concerned with procedural formalities and not merits of the matter. By setting aside the preventive detention order, liability of the detinue in criminal or departmental proceedings as per the provisions of law will not be affected.

11. In the above circumstances, the preventive detention order is set aside on all the four grounds urged by the petitioner. Hence we allow the writ petition. We direct that the husband of the petitioner. Shri. B. Nandakumar, should be set free forthwith.