UNION OF INDIA AND ANR. versus SHRIMATI CHAYA GHOSHAL AND ANR.

Citation: [2004] SUPP. 6 S.C.R. 869 · Decided: 13-12-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

Judgment (excerpt)

UNION OF INDIA AND ANR. 
v. 
SHRIMA TI CHAY A GHOSHAL AND ANR. 
DECEMBER 13, 2004 
[ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] 
Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974-Sections 3(1) and 11-Detenu indulging in objection-
able activity-Detention order-Quashed by High Court-Legality of-Held 
: Order of High Court unsustainable since there was no unusual delay in 
passing detention order, in executing it and in disposing of the represen-
tations-Central Government applied its mind to the representation inde-
pendently-Even solitary incident of objectionable activity warrants deten-
tion since the impact of the act enormous-Constitution of India, 1950-
Articles 22 and 22(5). 
Constitution of India, 1950 : 
A 
B 
c 
D 
Articles 226, 32 and 21-Writ of Habeas Corpus-Nature and issuance 
of-Held : Habeas Corpus is writ of right-It is issued when prima facie 
case of illegal detention is made out-Technicalities are not to be given E 
undue importance when there is an attempt to defeat course of justice. 
Article 22(5)-Preventive detention : 
Nature and purpose of-When to be resorted to-Procedural safe-
F 
guards-Compliance of-Discussed 
Representation to the Appropriate Authority by detenu-ls a consti-
. tutional protection and the Authorities are under obligation to dispose of 
the representation expeditiously. 
Representation to the President of India or the Governor-Effect of-
Held : Such representation amounts to representation to Central Govern-
ment and State Government respectively-Jn such cases reasons should be 
indicated for making representation to President or Governor instead of 
G 
the indicated authorities-Further, the President or the Governor not H 
869 
., 
870 
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R. 
A required to give explanation as to what happened after representation was 
received by their office-Also Central Government or Detaining Authority 
to explain the action taken by the said authority after receipt of 
the representation by it and also when the representation is kept 
unattended after its receipt-Representation should be received by 
B authorized person and non authorised person cannot be held responsible 
for any delay on account of inaction--Therefore, detenue seeking expeditious 
consideration should approach authorities concerned and not adopt any 
dubious devices by creating a situation for delay in consideration of his 
representation. 
C 
An. exporter was detained for indulging in objectionable activity 
and was later released on bail. Thereafter, on the basis of the materials 
collected, detention order was passed against the exporter under section 
3(1) of the Conservation of Foreign Exchange and Prevention of Smug-
gling Activities Act, 1974 to prevent him for continuing the illegal 
D activities. He was arrested a month later. Detenu made representations 
but the same were rejected. Respondent No. 1-wife of detenu filed 
Habeas Corpus writ petition challenging the detention order. High 
Court quashed the detention order. It held that there was undue delay 
in initiating the process of detention, unusual and unexplained delay in 
E 
passing detention order and also in executing the same; that there was 
only one incident to justify the detention and none after his release on 
bail; that there was unexplained delay in disposing of the representa-
tions; and that the Central Government rejected the representation 
without application of mind. Hence the present appeal. 
F 
Appellant- Union oflndia contended that the High Court did not 
take note of the various relevant factors and on presumptions drew 
adverse inferences and surmises. 
Respondents contended that the judgment of the High Court is 
G based on appreciation of the factual position by applying correct law; 
that even representation to the President is sufficient; and that the 
detenu had suffered detention for more than eight months and more 
than one year has passed since then, as such it would not be proper to 
send him back. 
H 
Disposing of the appeal, the Court 
U.O.I. v. SHRIMA TI CHAY A GHOSHAL 
871 
HELD : 1.1. Preventive detention is an anticipatory measure and A 
does not relate to an offence. They are not parallel proceeding~. The 
object of the law of preventive detention is not punitive but only preven-
tive, requiring an action to be taken prevent apprehended objectionable 
activities. It is resorted to when the Executive is convinced that such 
detention is necessary in 

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