UNION OF INDIA & ORS. versus SALEENA

Citation: [2016] 1 S.C.R. 373 · Decided: 29-01-2016 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

(2016] 1 S.C.R. 3 73 
UNION OF INDIA & ORS. 
v. 
SALEENA 
(Criminal Appeal No. 1251 OF 2015) 
JANUARY 29, 2016 
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.] 
Conservation of Foreign Exchange and Prevention of 
Smuggling Activities Act, 1974: s.3(1) - Order of detention - Writ 
of habeas corpus on the ground that the decision of competent 
authority was not communicated to the dete1111 - High Court held 
that the decision of the competent authority was not communicated 
to the detenu and the right of detenu u!Art.22(5) of the Constitution 
was violated - Whether non-commu11icatio11 of order of the 
competent authority or absence of effective communication would 
vitiate the order of detention - Held: It is incorrect to treat issue of 
communication of rejection of representation by competent authority 
or incorporation of order passed by competent authority in the order 
of communication as a constitutional safeguard - The duty of the 
Court in this regard is to see whether the representation submilled 
by the detenu was rejected in a mechanical manner without 
application of mind - Jn the instant case, the competent authority 
passed an order on the basis of the material produced before it - It 
cannot be said that there was no subjective satisfaction - When the 
material, the file, the representation and the comments on the 
representation were produced before the authority and he had 
mentioned in the order that he had gone through the representation 
and not found siif.ficient ground for exercising the power u!s.11 of 
the COFEPOSA Act. it cannot be said that there was no subjective 
satisfaction - The impugned order granting writ of habeas corpus 
and directing the detenu ta be set at liberty was totally vulnerable 
and is set aside - Constitution of India, 1950 - Art.22(5). 
Allowing the appeal, the Court 
A 
B 
c 
D 
E 
F 
G 
HELD: 1. When there is allegation that there has been non-
application of mind and the representation has been rejected in a 
laconic or mechanical manner by the competent authority, the 
Court can always call for the file and peruse the notes and the 
H 
373 
374 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[ 2016] I S.C.R. 
proceedings whether there has been application of mind by the 
competent authority or not. Liberty of an individual is sacred. 
But such liberty can be controlled by taking recourse to law. 
Preventive detention is constitutionally permissible. The Courts 
can interfere where such detention has taken place in violation 
of constitutional or statutory safeguards. Treating the issue of 
communication of rejection of the representation by the competent 
authority or incorporation of the order passed by the competent 
authority in the order of communication as a constitutional 
safeguard, would not be correct. 
The duty of the Court in this 
regard is to see whether the representation submitted by the 
detenu has been rejected in a mechanical manner without 
application of mind. All the assertions made in the representation 
were commented by the Under Secretary and every aspect has 
been stated in detail. The order that has been communicated to 
hin. by the Under Secretary indicates that the ·representation 
submitted uy the detenu had been carefully considered by the 
competent authority. A scrutiny of the file showed that the entire 
file relating to the detention was produced before the competent 
authority alongwith detailed comments. The said authority has 
clearly stated that he has gone through the representation and 
docs not find any sufficient ground to exercise the jurisdiction 
under the COFEPOSA Act. This would tantamount to real and 
proper consideration, for the competent authority is not required 
to pass an adj ndicatory order. There bas heen subjective 
satisfaction on the basis of the materials placed before the 
competent authority along with the representation. [Paras 22, 
23, 25, 26, 30) [393-E-H; 394-A,G; 395-A-F; 398-A) 
2. If the order is communicated by another authority and 
eventually the order is affirmed by the Advisory Board and the 
same is challenged, the constitutional courts have ample power 
to call for the records and verify how the representation has been 
rejected. Jurisdiction of the court is only to see whether there 
has been any subjective satisfaction that the proper law had been 
applied at the time of detention of the detenu. There is no need 
on the part of the competent authority to pass a speaking order 
and to give reasons 

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