[Preventive Detention] When Liberty Is Involved, Officers Are Expected To Show Sensitivity In Dealing With Representations: Madras High Court

The bench of Justice AD Jagadish Chandira and Justice K Rajasekar noted that since preventive detention was a serious encroachment of one's personal liberty, it was necessary to ensure certain minimum safeguards for the protection of the person sought to be preventively detained.

“The preventive detention, being the one involving a serious encroachment on the right to personal liberty, this court feels that certain minimum safeguards for the protection of person sought to be preventively detained have to be ensured. The holidays, either closed holidays or restricted ones, would have been intimated well in advance and thereby, when liberty of a citizen under preventive detention was involved, it is incumbent on the part of the officers concerned to show some sensitivity with conscience in dealing with timely disposal of the representation without resorting to avail their regular entitlement of leave, especially the restricted holidays,” the court observed.

The court was hearing a petition filed by Sabeena Beevi challenging the detention order passed against her husband Mohamed Sathik Ali by the Joint Secretary to the Government of India, Ministry of Finance. The order was passed after he attempted to smuggle gold from Srilanka.

Sabeena argued that though her husband was arrested on 27^th September 2023, based on a detention order passed on 21^st September, the order and the grounds of detention were served on her only on 30^th September after making a representation. Thus, it was argued that the detenu was prevented from making effective representation before the Advisory Board.

She further contended that the Tamil version supplied to them later had improperly mentioned the address because of which the detenu's right to send the representation was defeated. She also informed the court that though she had sent a representation in 29^th September, the Advisory Committee, in its communication to the sponsoring authority had mentioned that there was no representation.

On the other hand, the respondent authority submitted that the detention order and the reasons were served within a reasonable period of three days. With respect to the address issue, the authority said that it was not at fault and the mistake was on the part of the postal department in perceiving the address. Regarding the delay in forwarding representation to the sponsoring authority, the detaining authority submitted that there was no ordinate delay and that the only delay was due to Saturday, Sunday, and a restricted holiday coming in between.

Though the court agreed that there was no delay in furnishing the grounds of detention, the court added that the authority could not shift the burden entirely on the postal department for defective addresses as it was the authority's bounden duty to provide proper and correct materials. The court thus concluded that the issue was a clear case of defective translation on the part of the authority.

The court further noted that though there was no hard and fast rule fixing a time limit for considering representations, the authorities could not have a supine indifference, slackness, or callous attitude. The court noted that an unexplained delay would render the continued detention impermissible.

“Having considered the contentions raised by both sides, this court is of the view that though there there is no hard and fast rule fixing any time limit for considering the representation, there should not be 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 the continued detention impermissible and illegal,” the court said.

Thus, noting that the detaining authority had not properly explained the delay in forwarding representation, the court deemed it fit to allow the habeas corpus petition and set aside the detention.

Counsel for the Petitioner: Mr.R.Alagumani

Counsel for the Respondent: Mr.AR.L.Sundaresan, Additional Solicitor General assisted by Mr. K. Govindarajan, Deputy Solicitor General of India, Mr. A.Thiruvadikumar, Additional Public Prosecutor

Citation: 2024 LiveLaw (Mad) 252

Case Title: Tmt. Sabeena Beevi v The Joint Secretary to Government of India and Others

Case No: H.C.P.(MD) No.1353 of 2023