S MOHAMMED ALI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS writ petition is to quash the impugned order dated 27.11.2002 of the first respondent herein, rejecting the petitioner's representations dated 17.6.2002, 7.7.2002, 9.8.2002, 25.9.2002 and 22.10.2002. Through the said representations, the petitioner sought for the revocation of the detention order passed against him under the COFEPOSA Act, 1974. 2.When an order of detention passed by the first respondent was sought to be enforced against the petitioner, he filed a writ petition W.P.3212 of 2001 before this court for the issue of a writ of mandamus, forbearing the respondents therein from in any manner implementing by arresting or detaining the petitioner pursuant to the order of detention passed by the first respondent under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act in connection with the incident that took place on 10.12.2000 at Anna International Airport, Chennai. 3.The said writ petition was disposed of by this court on 5.6.2002, after hearing the respective counsel for all the parties. In view of the earlier proceedings, there is no need for us to traverse the facts and the rival contentions in detail. 4.In the earlier writ petition, after referring to various judgments of the Apex Court, this court held that the said writ petition was filed for the relief of mandamus under the guise of challenging the validity of the impugned order of detention, which cannot be entertained and consequently the writ petition was dismissed by order dated 5.6.2002. However, this court also gave liberty to the petitioner to make a representation and directed the authorities to consider the same on merits in the following terms: "As held by the Apex Court in UNION OF INDIA v. MUNEESH SUNEJA (2001) 3 SCC 92) and in UNION OF INDIA v. PARASMAL RAMPURIA (1998) 8 SCC 402), it is open to the petitioner to make a representation, after the receipt of this order to the authority which the authorities are bound to consider on merits. Equally it is for the detaining authority to consider as to whether the order of detention has to be implemented in view of the lapse of time by taking into consideration of the subsequent conduct of the petitioner coupled with his explanation offered for possession of Foreign and Indian Currencies while he was about to leave India." 5.It is the case of the petitioner that pursuant to the orders of this court in W.P.3212 of 2001 he made representations to the first respondent herein on 17.6.2002, 7.7.2002, 9.8.2002, 25.9.2002 and 22.10.2002. 6.Under the impugned order dated 27.11.2002 the first respondent rejected those representations, without assigning any reason. As against the same, the present writ petition has been filed. 7.It is the contention of the learned senior counsel for the petitioner that the petitioner made representations on the basis of the liberty given to him under the orders of this court in W.P.3212 of 2001. Under the same order, this court directed the first respondent to consider as to whether the order of detention has to be implemented in view of the lapse of time, by taking into consideration of the subsequent conduct of the petitioner, coupled with his explanation offered for possession of Foreign and Indian Currencies while he was about to leave India. In such circumstances, the first respondent not only failed to consider the representations of the petitioner but also failed to consider as to whether the order of detention has to be implemented or not, as directed by this court. 8.It is further contended by the learned senior counsel for the petitioner that when this court directed the detaining authority to consider a particular issue, then it is for the first respondent to consider the same and pass orders suitably. In order to comply the direction issued by this court, the first respondent is expected to give the reasons for the implementation of the detention order; otherwise it may not be possible for this court to assess the validity and the legality of the impugned order. Virtually the failure on the part of the first respondent to give any reason in the impugned order or to discuss anything on merits with regard to the aspect specified by this court in the earlier order amounts to the non-application of mind. When the impugned order is affected by non-application of mind, then the disposal of the representations of the petitioner and the non-consideration of the issues, as directed by this court will amount to arbitrariness on the part of the first respondent. In view of the non-application of mind as well as the arbitrariness, it is contended that the impugned order is vitiated. 9.The learned Public Prosecutor, defending the impugned order, contended that the representations of the petitioner were considered and after careful consideration, the same were rejected. The direction issued by this court also carried out and the file contains the particulars. 10.In the counter affidavit filed by the Secretary to Government, Public and Rehabilitation Department, Government of Tamil Nadu, it is stated that the representations of the petitioner were considered with the facts and the materials available on record and after careful consideration of the representations on merits, the same were rejected. The representations of the petitioner were rejected only after considering the same with the relevant materials available on record. Hence the impugned order is not vitiated in any manner. His further contention is that the first respondent might have passed the impugned order without assigning any reason on the basis of the Apex Court judgment in ABDULLA KUNHI v. ABDUL KHADER (AIR 1991 SC 574) where the learned Judges held that there need not be a speaking order in disposing of the representation of the aggrieved persons. On that ground also the impugned order of detention is not vitiated. 11.Though the learned senior counsel for the petitioner challenged the impugned order of detention on merits to some extent, we are not inclined to deal with the same, as it is covered by the decision rendered in the earlier writ petition W.P.3212 of 2001 and hence it is not open to the learned senior counsel for the petitioner to reopen the same. We confine ourselves with regard to the validity and legality of the impugned order alone. 11-A.We carefully considered the above contentions of the respective counsel. As extracted above, the order of this court dated 5.6.2002 in W.P.3212 of 2001 gave liberty to the petitioner to make a representation after the receipt of the order in the writ petition to the authority and the authorities are to consider the same on merits. While doing so, this court further directed the detaining authority to consider as to whether the order of detention has to be implemented in view of the lapse of time, by taking into consideration of the subsequent conduct of the petitioner, coupled with his explanation offered for possession of the Foreign and Indian Currencies, while he was about to leave India. 12.From the above order, two things are clear: (i)the petitioner is entitled to make 'a' representation and the respondent is to consider the same on merits. (ii)while doing so, it is for the authority to consider as to whether the order of detention has to be implemented in view of the lapse of time. 13.Admittedly the petitioner made representations on 17.6.2002, 7.7.2002, 9.8.2002, 25.9.2002 and 22.10.2002. When those representations are to be disposed of on merits, it would be too much on the part of this court to expect the first respondent to state the issues raised or the pleas put forth in all the representations of the petitioner and dispose of the same, by assigning the reasons therefor. But still the court expects the detaining authority to assign some reason in order to reveal his application of mind in respect of the representations of the petitioner. The absence of any reason in the impugned order compel us to come to the conclusion that the impugned order is affected by arbitrariness, as there is nothing on record to show that the same was passed after due consideration. When once it is established that the order is affected by non application of mind, then naturally the arbitrariness comes in. In the absence of any reason or discussion, it is not possible for this court to decide the reasonableness of the conclusion arrived at by the first respondent in passing the impugned order. On this ground we are of the view that the impugned order is liable to be set aside. 14.But, however, since the learned Public Prosecutor defended the action that the first respondent might have passed this order on the basis of the principles laid down by the Supreme Court in the case of ABDULLA KUNHI v. ABDUL KHADER (AIR 1991 SC 574). It is for us to consider how far his contention can be accepted. 15.When the first respondent filed the counter affidavit, he ought to have stated as to on what basis he passed the order. Having failed to do so, it is not open to the counsel to contend under what impression his client could have passed the order. The first respondent alone could have expressed what passed on in his mind at the time of passing the order. Otherwise, there should be something on record to show what passed on in his mind at the time of passing the order. In the absence of both, it is not known as to how the counsel could read the mind of his client and contend as to what emboldened the authority to pass the non-speaking order. 16.Even with reference to the judgment relied upon by the learned Public Prosecutor, the Apex Court held that there need not be a speaking order in disposing of the representation on the basis that there is no constitutional mandate under Clause 5 of Article 22 of the Constitution of India much less any statutory requirement to consider the representation before confirming the order of detention. In the said case, the Apex Court dealt with the representation made by the detenu before the order of confirmation. 17.In this case, we are not concerned with such representation of the detenu. The petitioner was given liberty to make a representation on the principles laid down by the Apex Court in UNION OF INDIA v. MUNEESH SUNEJA (2001 (3) SCC 92) and UNION OF INDIA v. PARASMAL RAMPURIA (1998 (8) SCC 402. Further this court also directed the first respondent to consider as to whether the order of detention need be implemented in view of the lapse of time. In such circumstance, it is for the first respondent to assign the reason to satisfy this court that the first respondent virtually considered the representations of the petitioner in accordance with the direction issued by this court. The absence of any discussion or reason in the impugned order vitiates the impugned order as the first respondent failed to carry out the direction issued by this court. Hence the contention of the learned Public Prosecutor cannot be sustained. 18.We will be failing in our duty, if we do not make any observation with regard to the conduct of the petitioner in sending the repeated representations. The order in the earlier writ petition W.P.3212 of 2001 is dated 5.6.2002. In the said order, this court gave liberty to the petitioner to make a representation after the receipt of the order in the writ petition. When it is made clear that the petitioner can make 'a' representation, it is not open to the petitioner to send repeated representations. Why we are making this comment is that in all the cases of detention, the parties are trying to trap the officials by sending repeated representations to mislead the officials and tempt them to pass wrong orders. Further taking advantage of those orders, the detenus would challenge the order of detention. THIS conduct of the detenus or those who are facing the order of detention like the petitioner cannot be allowed to stand. 19.In this case, after the disposal of the writ petition W.P.3212 of 2001 the petitioner made the representations on the following dates: 17.6.2002, 7.7.2002, 9.8.2002, 25.9.2002 and 22.10.2002 He has no business to send so many representations and on this misconduct alone this court can dismiss the writ petition because the authorities cannot be forced or compelled to consider so many representations, as if they have no other administrative work. But, however, as the right of the petitioner's freedom is involved and in conformity with the order in the writ petition W.P.3212 of 2001, we direct the first respondent to consider the first representation of the petitioner dated 17.6.2002 alone and dispose of the same on merits. The other representations of the petitioner dated 7.7.2002, 9.8.2002, 25.9.2002 and 22.10.2002 are concerned this court holds that there is no need for the first respondent to consider the same on merits and those representations shall stand rejected. 20.Accordingly the writ petition is allowed and the impugned order is set aside to the extent stated above. Consequently W.P.M.P.65062/2002 is closed.