Chettur Sankaran Nair, J.@mdashDetenu, Joseph Paily, through next friend challenges an order of detention Ext. P-5, made under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (shortly called COFEPOSA Act hereinafter). The detenu who was employed outside India, came on leave and landed at Bombay on 9th September 1990. Later, he proceeded to Kochi, by an Indian Airlines flight on 11th September 1990. Customs Officers at Cochin Airport, on suspicion examined his baggage and found four gold biscuits in handbag. The detenu submits that the bag was entrusted with him by his friend and co-passenger Usman. He told so to the Customs Officers, who heedless of his protestations, took him into custody. On 24th January 1991, a preliminary order of detention was made (Ext. P-1). Grounds of detention Ext. P-3, were served on him on 6th February 1991. Upon that, he made Ext. P-4 representation before the COFEPOSA Advisory Board, through the Government of Kerala The said Board considered the representation, but found the detention to be in order. This was followed by Ext. P-5 order, u/s 8 of the COFEPOSA Act.
2. Learned Counsel for Petitioner submits that the detaining authority did not consider Ext. P-4 representation independently, as it was bound to, and that it acted merely on the views of the Advisory Board. He argued further that a duty to consider the validity of detention inheres in the detaining authority, even without a separate representation before it, in that behalf. Reliance was placed on the decision of the Supreme Court in
...The detenu''s right to have the representation considered by the Government under Article 22(5) is independent of the consideration of the detenu''s representation by the Advisory Board...representation of the detenu addressed only to the Central Government and not to the Advisory Board, does not dispense with the requirement of its consideration, also by the Advisory Board...strict compliance is necessary to justify interference with personal liberty.... The mode of address is only a matter of form, which cannot whittle down the requirement of the constitutional mandate in Article 22(5)....
(emphasis supplied)
3. Quality of consideration required of the detaining authority, is not a matter of opinion. The Apex Court has put the requirements in sharp focus. Ext. P-5 order reveals that the detaining authority did not; consider the matter independently. Ext. P-5 states:
...the Advisory Board in its report read as third paper above, has opined that there are good and sufficient grounds for the detention and for the continued detention of the detenu.... Accordingly u/s 8(f) of the Act, Government confirm the detention of Shri Thannikot Joseph Paily....
(emphasis supplied)
The detaining authority abdicated its responsibilities, and merely referred to the views of the Advisory Board and "accordingly" passed Ext. P-5. This cannot do service for the mandatory requirements indicated by the Supreme Court-Application of mind, is much mare than application of pen.
4. Referring to a statement filed on behalf of first Respondent by one A. Nelson, Government Pleader argued that Ext. P-5, order was passed after due consideration. We cannot, assent to this submission. Time was granted to file an affidavit in answer to the allegations in the writ petition. A specific contention was raised in Ground B regarding non-application of mind by the detaining authority, and reference was made to the decision in
5. Liberty is one of the cherished values in our Constitutional perceptions. What took pages of history and philosophy to establish, cannot be consigned to the junk house of inanities. In the words of Dougles, J. concepts like equality and liberty were "not meant to be frozen within the bound aries of the history of its day, but was intended to be a standard maxim for free society". We are not unaware, that the right to liberty is amenable to restrictions, for valid reasons but only for valid reasons. Public interest is indeed, important. But, in the zeal for one, the other cannot be missed.
6. Government Pleader, then argued that the files contain the initials of the Secretary the detaining authority. True, there is an initial under a note made by an official, whose identity is not known. There is also an endorsement by the Additional Secretary that the file may be placed before the Home Secretary. This suggests that the notes made by others were placed for the approval of the Home Secretary, the detaining authority. We do not consider this sufficient.
7. Alternatively, it was argued that Ext. P-5 bears the signature of the Secretary, and that this should satisfy the requirements of law. It bears the signature, but it says that the order of detention is made in view of the advice of the Advisory Board. Ext. P-5 would show, as we have already said, that the order of detention is based solely on the views of the Advisory Board, and not on the basis of independent consideration. The COFEPOSA Act imposes draconian rigours and such guarantees as are envisioned, like independent consideration by the competent authority, cannot be diluted. That is what the apex court has said time and time, again.
8. The Government Pleader argued further, that the detenu is one who indulges in unlawful acts, and that his detention is essential in larger interests. The same law applies to the good and bad alike. For that matter, as Felix Frankfurtur (J) said:
The safeguards of liberty have frequently been forged in controversies, involving not very nice people. The names of the people involved in landmark cases, appear on no hallowed honour of rolls.
(U.S. v. Robin Witz).
Expediency cannot be justification for illegality.
9. For the foregoing reasons, the order of detention is illegal. The order of detention Ext. P-1 dated. 24th January 1991, as well as the order of confirmation Ext. P-5 dated 22nd March 1991 passed by first Respondent, are quashed. This will not affect the prosecution launched against the detenu and shall not be construed as a direction to release him, in case he is in custody by reason of refusal of bail.
Writ Petition is allowed as above. Parties will bear their costs.
