ABDUL NASAR ADAM ISMAIL THROUGH ABDUL BASHEER ADAM ISMAIL versus THE STATE OF MAHARASHTRA & ORS

Citation: [2013] 6 S.C.R. 86 · Decided: 02-04-2013 · Supreme Court of India · Bench: T.S. THAKUR · Disposal: Disposed off

Judgment (excerpt)

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. [2013] 6 S.C.R. 86 
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· ABDUL NASAR ADAM !SMAIL THROUGH ABDUL 
BASHEER ADAM ISMAIL 
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v. 
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THE STATE OF MAHARASHTRA & ORS: 
{Criminal Appeal No. 520 of 2013) 
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APRIL 2,.2013 
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· [T.S. THAKUR AND RANJANA PRAl(A.SH DESAI, JJ.] 
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Preventive Detention -
Detention u/s. 3(1) of. 
c · COFEPOSA - Detention order assailed on two grounds (1) 
there was no independent consideration of the representation 
of the detenu, ·and (2) delay in disposal of the representation 
and delay in transmitting the representation to. the detaining 
authority' by the jail authority - Held: The plea· of lack of 
D independent consideration is without any basis - Any 
unexplained 'delay would be breach of constitutional 
impera'tive provided tinder Art. 22(5) ;-But it does not mean 
that everyday's delay has to be explained:... Explanation must 
be reasonable indicating that there was no slackness or I 
indifference - The detaining.authority, and the sponsoring· 1 
E authority in the present case, have properly explained the· time . 
lag betWeen. receipt of the' representation and the date. of i 
communication of rejection to the· detenu:... However, the delay .. ; 
in transmitting the representation to the detaining authority by 1 
. the}ail authority is not'explained- Therefore, the continued'' 
F detention of detenu is' illegal ...:. However, the delay has not· 
vitiated the detention order ~ co·nservation of Foreign 
Exchange and Pr~'vention of Smuggfing Activities Act, 1974 
- s.3(1) - Constitution oflndia, 1950- Art. 22(5). 
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Practice and Procedure ...: New· plea -·Permissibility to· 
raise before Supreme Court - Held: New plea in the case of 
preventive detention is permissible. 
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· The appellant-accused was detained u/s. 3(1) of 
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86 
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ABDUL NASAR ADAM ISMAIL THROUGH ABDUL BASHEER ADAM 
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ISMAIL v. STATE OF MAHARASHTRA 
Conservation of Foreign Exchange and Prevention of A 
Smuggling Activities Act, 1974 with a view to prevent him 
in future for smuggling goods. The Writ Petition filed by 
the detenu, against the detention order was dismissed 
by High Court. 
In appeal to this Court appellant-detenu contended B 
that his detention was wrong because there was no 
independent consideration of the representation by the 
detaining authority and because there was inordinate 
delay in considering the representation of the detenu C 
which has violated his right under Article 22(5) of the 
Constitution and there was also delay in transmitting the 
representation to the detaining authority from the jail 
authority. 
Disposing of the appeal, the Court 
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HELD: 1.1. The plea that there was no independent 
consideration of the representation by the detaining 
authority was raised for the first time before this Court at 
the time of arguments. Ordinarily such plea would not have 
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been allowed. But in view of the law laid down by Supreme 
Court that the habeas corpus cannot be dismissed on the 
ground of imperfect pleadings, this point is being 
permitted to be canvassed. [Para 5] [97-A-C] 
Mohinuddin @ Moin Master vs. District Magistrate, Beed 
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and Ors.(1987) 4 SCC 58: 1987 (3) SCR 668 - relied on. 
1.2. Whether a representation is considered by the 
detaining authority independently or not, is for the 
detaining authority to say on affidavit. This fact is within G 
the exclusive personal knowledge of the detaining 
authority. Had this point been raised in the writ petition, 
the detaining authority would have dealt with it in her 
affidavit. In the circumstances, if there is no categorical 
statement in the affidavit of the detaining auth"ority that H 
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SUPREME COURT REPORTS 
[2013] 6 S.C.R. 
A 
she had independently considered the representation, 
she cannot be faulted for it. No inference can be drawn 
that the detaining authority did not consider the 
representation independently. In the affidavit, she has 
stated that the representation was processed through the 
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concerned Assistant, the Under Secretary and the Deputy 
Secretary and then placed before her. No objection can 
be taken to this procedure unless there is any slackness 
shown in processing the representation. In the present 
case, the entire procedure was completed within four 
c days. Therefore, the submission that the detaining 
authority has not considered the representation 
independently and she could have been swayed by the 
en

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