UNION OF INDIAversusPAUL MANICKAM AND ANR.

A                             UNION OF INDIA
                                        v.
                       PAUL MANICKAM AND ANR.

                              OCTOBER 13, 2003

B           [ARIJIT PASAYAT AND DORAISWAMY RAJU, JJ.]

         Constitution of India, 1950:

          Article 22 (5)-Preventive detention- Representation made to
    President ofIndia instead ofauthorities mentioned in the detention order-
C   Habeas Corpus petition filed concealing correct facts about the
    representation-High Court dismissed petition-Review Petition filed
    mentioning for first time that representation was actually made to the
    President-Review Petition allowed quashing the detention order due to
    inordinate delay in considering the representation-On Appeal Held,
D   compliance ofall requirements and safeguards mandatory even ifdetention
    is for a briefperiod-Preventive detention is an anticipatory measure and
    does not relate to an offence-It is an action to prevent apprehended
    objectionable activities-Authorities receiving representations should deal
    with them with utmost expedition keeping in view the fact that detention
    is based on subjective satisfaction of the authority concerned-While
E   passing detention orders against persons already in jail, authorities to
    consider that fact and also chances of release on bail-Detenu suffered
    detention for the whole period of detention-Hence not a fit case for
    interference-Conservation of Foreign Exchange and Prevention r.,f
    Smuggling Activities Act, 1974-Section 3 (1) (i)-Customs Act, 1962-
F   Section 108-Foreign Trade (Development and Regulation) Act, 1992.

         Article 22 (5)-Representation against preventive detention-
    Representation was not made to authorities mentioned in the detention
    order but to the President of India-Held, representation made to the
G   President of India or the Governor would amount to a representation to
    the Central Government and the State Government-Although this cannot
    be allowed to be misused as a smoke screen by an unscrupulous detenu
    with ulterior motive.

         Article 226-Habeas Corpus petition-Review Petition filed against
H order ofdismissal, stating totally different facts-Review Petition allowed-
                                        618
                 UNION OF INDIA v. PAUL MANICKAM                     619

Held, High Court transgressed its jurisdiction in entertaining review A
petition with entirely new substratum of issues-High Court ought not to
have taken into account factual aspects not disclosed or concealed in writ
petition.

      Articles 226 and 32-Challenge to orders of detention by means of B
writ petitions-Unless satisfact01y reasons indicated, filing ofsuch petitions
directly under Article 32 ought to be discouraged.

      A woman was detained under Section 3 (1) (i) the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 C
(COFEPOSA) by an order dated 26.4.2000 of the State Government.
She had been found in possession of a huge quantity of contraband
articles on 26.2.2000. The articles were seized under the provisions of
Customs Act, 1962 read with Foreign, Trade (Development ·and
Regulation) Act, 1992. The order of detention was passed purportedly
with an idea of preventing her from carrying out similar activities in D
the future. The detenu's father, the respondent, made a representation
on her behalf to the President of India on 11.5.2000 and later filed a
habeas corpus petition in the High Court on 15.5.2000. The said
petition indicated that representations were made to the Government
and the Union of India through proper channel. It was also submitted E
that there was no material to support the order of detention, relevant
documents were not furnished and whatever supplied were illegible,
violating the protection guaranteed under Article 22 (5) of the
Constitution of India.

     The respondents, denied the receipt of any sucli representation
                                                                           F
and eventually the habeas corpus petition was dismissed. In an
application for review, it was for the first time brought on record that
the representation was actually made to the President of India. The
High Court took into consideration the long unexplained delay on the
part of the Government since the representation was made on 11.5.2000, G
irrespective of the fact that it was not made before the authorities
where it ought to have been made and quashed the order of detention.
Hence this appeal.

     Dismissing the appeal, the Court                                      H
    620                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A         HELD: 1.1. Preventive detention is an anticipatory measure and
    does not relate to an offence while criminal proceedings are to punish
    a person for an offence committed by him. They are not parallel
    proceedings. The object of the law of preventive detention is not
    punitive but only preventive. It is resorted to when the Executive is
B   convinced on the materials available and placed before it that such
    detention is necessary in order to prevent the person detained from
    acting in a matter prejudicial to certain objects which are specified by
    the law. The action of Executive in detaining a person being only
    precautionary, the matter has necessarily to be left to the discretion
    of the Executive Authority. It is not practicable to lay down objective
C   rules· of conduct, the failure to conform to which alone should lead to
    detention. In case of preventive detention of a citizen, Article 22 (5) of
    the constitution enjoins the obligation of the appropriate Government
    or the Detaining Authority to accord the detenu the earliest opportunity
    to make a representation and to consider that representation speedily.
D   The right to make a representation implies right of making an effective
    representation. It is the constitutional right of the detenu to get all the
    grounds on which the order has been made. The concept of grounds
    in the context of detention in Articles 22 (5) has to receive an
    interpretation which will keep it meaningful in tune with contemporary
    notions of the realities of the society, and the purposes of the Act in
E   the light of concepts of liberty; and fundamental freedoms. While the
    expression "grounds" for that matter includes not only conclusions of
    fact but also all the basic facts on which those conclusions were
    founded; they are different from subsidiary facts or further particulan:
    of the basic facts. The detenu is entitled to obtain particulars as to the
F   grounds which will enable him to make an effective representation
    against the order of detention. (629-E-H, 630-A-C]

        1.2. In case of preventive detentfon no offence is proved, nor any
  charge is formulated and the justification of such detention is suspicion
G or reasonability and there is no criminal conviction which can only be
  warranted by legal evidence. Preventive justice requires an action to
  be taken to prevent apprehended objectionable activities. But at the
  same time, a person's greatest of human freedoms, i.e., personal liberty
  is deprived, and, therefore, the laws of preventive detention are strictly
  construed, and a meticulous compliance with the procedural safeguard,
H however, technical is mandatory. The compulsions of the primordial
                    UNION OF INDIA v. PAUL MANICKAM                    621

    need to maintain order in society, without which, enjoyment of all A
    rights, including the right of personal liberty' would lose all their
    meanings, are the true justifications for the laws of preventive detention.
    This jurisdiction has been described "as a "jurisdiction of suspicion",
    and the compulsions to preserve the values of freedom of a democratic
    society and social order sometimes merit the curtailment of the B
    individual liberty. [633-H, 634-A-C]

         Mr. Kubic Darisz v. Union of India and Others, A.I.R. (1990) SC
    605 and Ayya alias Ayub v. State of UP. and Anr., AIR (1989) SC 364,
    relied on.
                                                                             c
         Cox v. Hakes, (1890) 15 AC 506; Rex v. Nallidev, (1917) AC 260,
    referred to.

         2. The history of liberty has largely been the history of observance
    of procedural safeguards. The procedural sine was strengthening the D
    substance of the right to move the Court against executive invasion of
    personal liberty and the due dispatch of judicial business touching
    violations of this great right has been stressed. The constitutional
    philosophy of personal liberty is an idealistic view, the curtailment of
    liberty for reasons of States' security, public order, disruption of
    national economic discipline etc. being envisaged as a necessary evil to E
    be administered under strict constitutional restrictions. [630-D-G)

        Smt. Jchhu Devi v. Union of India, A.I.R. (1980) SC 1983; Vijay
    Narain Singh v. State of Bihar, AIR (1984) SC 1334 and Hem Lall
    Bhandari v. State of Sikkim, A.I.R. (1987) SC 762, relied on.       F
         Lord Denning, Freedom under the Law, Hamlyn Lectures, 1949,
    referred to.

         3. A constitutional protection is given to every detenu which
    mandates the grant of liberty to the detenu to make a representation 6
    against detention, as imperated in Article 22(5) of the Constitution. It
    also imperates the authority to whom the representation is addressed



-
    to deal with the same with utmost expedition. The representation is to
    be considered in its right perspective keeping in view the fact that the
    detention of the detenu is based on subjective satisfaction of the H
    622               SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.

A   authority concerned, and infringement of the constitutional right
    conferred under Article 22(5) invalidates the detention order. Personal
    liberty protected under Article 21 is so sacrosanct and so high in the
    scale of constitutional values that it is the obligation of the detaining
    authority to show that the impugned detention meticulously accords
B   with the proceedure established by law and .the stringency and concern
    of the judicial vigilance is needed. [631-H, 632-A-C]

          Thomas Pacham Dales' case, (1881) 6 QBD 376, referred to.

          4. Where detention orders are passed in relation to persons who
C are already in Jail under' some other laws, the detaining authorities
    should apply their mind and show their awareness in this regard in the
    grounds of detention, the chances of release of such persons on bail.
    The necessity of keeping such persons in detention under the preventive
    detention .laws has to be clearly indicated. Subsisting custody of the
D   detenu by itself does not invalidate an order of his preventive detention,
    and decision in this regard must depend on the facts of the particular
    case. Preventive detention being necessary to prevent the detenu from
    acting in any manner prejudicial to the security of the State or to the
    maintenance of public order or economic stability, etc. ordinarily, it
E   is not needed when detenu is already in custody. If the detaining
    authority is reasonably satisfied on cogent materials that there is
    likelihood of his release and in view of his antecedent activities which
    are proximate in point of time, he must be detained in order to prevent
    him from indulging such prejudicial activities the detention order can
F    be validly made. Where the detention order in respect of a person
    already in custody does not indicate that the detenu was likely to be
    released on bail, the order would be vitiated. In the case at hand the
    order of detention and grounds of detention show awareness of custody
    and/or possibility of release on bail. (632-F-H, 633-A-E]

G       N Meera Rani v. Govt. of Tamil Nadu, A.LR. (1989) SC 2027;
    Dharmendra Suganchand v. Union of India, A.l.R. (1990) SC 1196 and
    Kamarunnissa v. Union of India, A.I.R. (1991) SC 1640, relied on.

         5. A representation in the President of India or the Governor, as
H   the case may be, would amount to representation to the Central
                    UNION OF INDIA v. PAUL MANICKAM                    623
    Government and the State Government respectively. Therefore, the A
    representation made to the President of India or the Governor would
    amount to representation to the Central Government and the State
    Government. But this cannot be allowed to create a smokescreen by
    an unscrupulous detenu to take the authorities by surprise, acting
    surreptitiously or with ulterior motives. In the present case, the order B
    (grounds) of detention specifically indicated the authority to whom the
    representation was to be made. Such indication is also part of the move
    to facilitate an expeditious consideration of the representations actually
    made. (634-F-H, 635-A]

         Raghavendra Singh v. Superintendent, District Jail, Kanpur and Ors., C
    [1986) 1 SCC 650 and Rumana Begum v. State of Andhra Pradesh and
    Anr., (1993) Supp. 2 SCC 341, relied on.

         6.1. The respondent did not appear to have come with clean hands
    to the Court. In the writ petition there was no mention that the D
    representation was made to the President; instead it was specifically
    stated in paragraph 23 that the representation was made by registered
    post to the first respondent, State of Tamil Nadu, on 11.5.2000 and a
    similar representation was made to the second respondent, Union of
    India. In the review application it was disclosed for the first time that E
    the representation was made !o the President of India and no
    representation was made to the State of Tamil Nadu or the Union of
    India who were arrayed in the writ petition as parties. This appears
    to be a deliberate attempt to create confusion and reap an undeserved
    benefit by adopting such dubious device. [635-B-F]
                                                                             F
         6.2. The High Court also transgressed its jurisdiction in entertaining
    the review petition with an entirely new substratum of issues.
    Considering the limited scope for review the High Court ought not to
    have taken into account factual aspects which were not disclosed or
    were concealed in the writ petition. While dealing with a habeas corpus G
    application undue importance is not to be attached to technicalities, but
    at the same time where the court is satisfied that an attempt has been
    made to deflect the course of justice by letting loose red herrings the
    Court has to take serious note of unclean approach. Whenever a
    representation is made to the President and the Governor instead of H




'
    624               SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A   the indicated authorities, it is but natural that the representation
    should indicate as to why the representation was made to the President
    or the Governor and not the indicated authorities. It should also be
    clearly. indicated as to whom the representation has been made
    specifically, and not in the manner done in the case at hand. The
B   President as well as the Governor, no doubt are constitutional Heads
    of the respective Governments but day to day administration at
    respective levels are carried on by the Heads of the Department-
    Ministries concerned and designated officers who alone are ultimately
    responsible and accountable for the action taken or to be taken in a
    given case. If really the citizen concerned genuinely and honestly felt
C   or interested in getting an expeditious consideration or disposal of his
    grievance, he would and should honestly approach the really concerned
    authorities and would not adopt any dubious devices with the sole aim
    of deliberately creating a situation for delay in consideration and cry
    for relief on his owri manipulated ground, by directing his representation
D   to an authority which is not directly immediately concerned with such
    consideration. (635-G, H, 636-A-D]

          6.3. When howe'(er a person alleging infraction of personal liberty
    tries to act in a manner which is more aimed at deflecting the course
E   of justice than for protection of his personal right, a deliberate
    balancing of the fact situation is ,required to ensure that the mere
    factum of some delay alone is made use of to grant relief. If a fraud
    has been practiced or perpetrated that may in a given case nullify the
    cherished goal of protecting personal liberty, which obligated this
    Court to device guidelines to ensure such protection by balancing
F   individual rights and the interests of the nation, as well. (636-E-G]

          R. Keshava v. MB. Prakash and Ors., [2001) 2 SCC 145, relied on.

          7. Many unscrupulous petitioners are challenging orders of
G detention directly under Article 32 of the Constitution without first
   approaching the ~oncerned High Courts. It is appropriate that the
   concerned High Court under whose jurisdiction the order of detention
   has been passed by the State Government or Union Territory should be
   approached first. In order to invoke jurisdiction under Article 32 of the
H' Constitution directly, it has to be shown by the petitioner as to why the
         UNIONOFINDIAv. PAULMANICKAM[PASAYAT J.]                    625

High Court has not been approached, could not be approached or it is A
futile to approach the High Court. Unless satisfactory reasons are
indicated in this regard, filing of petition on such matters, directly under
Article 32 of the Constitution ought to be discouraged. [637-D-Ej

     8. Since the detenu has suffered detention for about the whole B
period of detention, it is not a fit case for interference. f637-F]

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
21 of 2002.

     From the Judgment and Order dated 13.2.200 I of the Madras High      C
Court in H.C.M.P. No. 264/2000 in H.C.P. No. 860 of 2000.

     L. Nageshwara Rao, Additional Solicitor General, C.V. Subba R«o,
Rajeev Sharma and B.K. Prasad, for the Appellant.

     P.B Suresh, Vipin Nair, Nikilesh R., for Mis. Temple Law Firm and D
P.N. Ramalingam for the Respondents.

     The Judgment of the Court was delivered by

      ARIJIT PASA Y AT, J.: An order of detention under Section 3 (l)(i) E
of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (in short the 'Act') was passed on 26.4.2000 by the
Secretary to Government of Tamil Nadu, Public (Law and Order)
Department. As a consequence of such mittimus, Smt. Ratnamala •:hereinafter
referred to as 'the detenue') was interned in Special Jail for Women, F
Vellore. In the grounds of detention it was, inter alia, stated that on
26.2.2000 she was found to be in possession of huge quantity of contraband
articles. On her personal search as well as search of her baggages it was
found that she was carrying gold in addition to the other articles like
cellular phones etc. without any valid permission or documents for
importation of goods and she was attempting to smuggle these articles by G
concealing them in emergency lamp and by wearing crude gold on her
person and there was no declaration made. The articles were seized under
the provision of Customs Act, 1962 (in short the 'Customs Act') read with
Foreign Trade (Development and Regulation) Act, 1992. The detenu made
                                                                          H
    626                SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.
A voluntary statements on 26.2.2000 which were recorded under Section 108
  of the Customs Act. The order of detention was passed purportedly with
  an idea of preventing her from carrying out smuggling activities in future.
  On 11.5.2000 the respondent who is the detenu's father addressed a
  representation on behalf of his daughter to the President oflndia. Four days
B thereafter i.e. on 15.5.2000 a habeas corpus petition was filed before th~
  Madras High Court challenging the detention order. When the matter was
  listed on 8.6.2000 notice was issued. It had been indicated in the writ
  petition filed by the respondent that a representation by registered post was
  sent to the State of Tamil Nadu and another was sent to the Union of India
C represented by Secretary to Government, Ministry of Finance (Department
  of Revenue) by speed post. They were the two respondents in the writ
  petition. A grievance was made in the writ petition that the said respondents
  were duty bound to explain to the Court that the representation had been
  considered without any delay and in accordance with the -constitutional
  requirements. It was also indicated that though in the representation a
D request was made to supply various documents and details, nothing had
  in fact been furnished. The delay and the failure indicated above constituted
  violation of constitutional safeguards. It was brought to the notice of the
  High Court by the respondents before it that there was no representation
  made as claimed when the matter was taken up on 28.9.2000. Only three
E grounds were urged by the present respondent before the High Court. It
  was first contended that there was no material to support the conclusion
  that the detenu is a remand prisoner as was contended by the present
  appellant. Secondly, the materials/documents furnished to the detenu were
  illegible and this disabled the detenu from making an effective representation
F resulting in violation of the protection guaranteed under Article 22(5) of
  the Constitution oflndia, 1950 (in short 'the Constitution'). Finally, it was
  contended that the documents supplied \\'ere illegible and, therefore, the
  detention order was vitiated and there was no necessity of going into the
  question whether the documents were relied upon or material documents
  or otherwise. The High Court did not find any merit in the aforesaid three
G contentions and since no other point was pressed, the writ petition was
  dismissed. An application for review was filed on 8.12.2000. Notice was
  issued in the review application. For the first time it was stated by the
  respondent in the review petition that in fact no representation was filed
  before the concerned State Government i.e. State of Tamil Nadu or the
H Union of India. In fact the representation was made to the President of
             UNIONOFINDIAv.PAULMANICKAM[PASAYAT. J.]                        627
/

    India. The Court considered the periods spent from the date the representation A
    reached the President's Secretariat till its final disposal, and held tha~ there
    was an unexplaine·d delay from the stage of dispatch from the President's
    Secretariat till it reached the Government of Tamil Nadu and the Union
    of India. This according to the High Court constituted violation of the
    imperative requirement of dealing with the representation with utmost B
    expedition. Accordingly, the order of detention was quashed.

           In the present appeal the Union of India has raised several issues
    which need to be carefully considered. Firstly it is submitted that in the
    order (grounds) of detention it was specifically indicated to the detenu that C
    she had a right to make a representation to the detaining authority/State
    Government and also to the Government of India, if she so desired, in
    writing against the order under which she was kept in detention. It was also
    indicated that in case she wanted to make a representation the same was
    to be addressed to the Secretary to the Government of Tamil Nadu, Public
    (Law and Order) Department, Secretariat, Chennai or to the Government D
    oflndia, Ministry ofFinance, Department of Revenue, (COFEPOSA Unit),
    Central Economic Intelligence Bureau, New Delhi, as the case may be, and
     it should be forwarded through Superintendent of Prison, Special Prison
    for Women, Vellore in which she was confined.
                                                                                  E
           Strangely, the representation was not made to the authorities clearly
    indicated in the order (grounds) of detention. For the first time in review
    petition a stand was taken that representation was filed before the President
    of India, though in the writ petition it was stated representations were made
    to the Government of Tamil Nadu as well as to the Union of India. This F
    clearly constituted a suppression of fact and the High Court was not
    approached with clean hands and fraud was practised. Secondly, it was not
    open to the High Court to substitute its original order by a fresh order which
    is impermissible in a review application particularly on such grounds.
    Thirdly, the High Court having accepted that there was no delay in dealing
    with the representation by the State Government and the Union of India G
    after it reached them, it ought not to have held that there was unexplained
    delay in dealing with the representation. A person should not be allowed
    to take advantage of the concern shown by the courts to protect personal
     liberty resorting to dubious and fraudulent methods to gain undeserved
    benefits by such manipulations. He should not be permitted to gain any H
    628                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A advantage from such acts. It was further submitted that renegades who·
    disturb peace and tranquility of citizens are like termites which corrode
    financial stability of the country with vicious designs file petitions full of
    falsehood and at times approach this Court under Article 32 even without
    approaching the jurisdictional High Court. It was in essence submitted that
B   prefogative writs should not be issued in such cases to encourage the
    deceiters from gaining any advantage.

         In response; learned counsel for the respondent submitted that the
    detenu was really arrested on 27.2.2000 and the order of detention was
C   passed after two months :.e. on 26.4.2000 and the High Court's order on
    review is date4 13.2.2001. Therefore, the detenu has undergone the
    detention for about the whole period. On that score alone, the appeal has
    practically become infructuous and no decision should be rendered on
    academic issues. It was submitted with emphasis that representation to the
    President oflndia was sufficient and merely because the representation was
D   not sent to any of the indicated authorities that cannot alter the position
    in law.

         It was further submitted that detenu was already in custody and on
    presumption and surmises that she may be released on bail the order of
E   detention was passed without proper application of mind regarding her
    incarceration in custody.

          Though technically speaking the detenu has suffered detention for
    almost the . whole period for which she was directed to detained, yet
F   considering the several important issues which have been raised by the
    parties we think it appropriate to deal with them.

          The writ of habeas corpus called by Blackstone as the great and
    efficacious writ in all manner of illegal confinement, really represents
    another aspect of due process of law. As early as 1839 it was proclaimed
G   by Lord Denman that it had been for ages effectual to an extent never
    known in any other country. Lord Halsbury L.C. stated in Cox v. Hakes,
    (1890) 15 AC 506, that the right to an instant determination as to the
    lawfulness of an existing imprisonment is the substantial right made
    available by this writ. Article 22 of the Constitution confers four
H   fundamental rights on every person, except in two cases mentioned in
         UNION OF INDIA v. PAUL MANICKAM [PASAYAT, J.]                629

Clause (3), as essential requirements and safeguards to be followed when A
it is necessary to deprive any person, for any cause whatsoever and for,
however brief a period of his personal liberty by placing him under arrest
or keeping him in detention. Those are (i) to be informed, as soon as may
be, of grounds of such arrest; (ii) not to be denied the right to consult and
to be defended by a legal practitioner of his choice; (iii) to be produced B
before the nearest Magistrate within a period of twenty-four hours of such
arrest excluding the time necessary for the journey from the place of arrest
to the Court of the Magistrate, (iv) not to be detained in custody beyond
the said period of twenty-four hours without the authority of a Magistrate,
Clauses (I) and (2) contain the guarantee of the four fundamental rights C
enumerated above, Clause (3) contains two ex~eptions and provides that
the constitutional guarantees do not apply to (a) enemy aliens, and (b)
persons arrested or detained under any law providing for preventive
detention. Clauses (4) and (7) are devoted to laying down certain fundamental
principles as to preventive detention and guaranteeing certain fundamental
rights to persons who are arrested under any law for preventive detention. D
The fundamental rights guaranteed by Clauses (4) to (7) to persons
detained under any law for preventive detention relate to the maximum
period of detention, the provision of an Advisory Board to consider and
report on the sufficiency of the cause for detention and the right to have
the earliest opportunity of making a representation against the order of E
detention. Preventive detention is an anticipatory measure and does not
relate to an offence while the criminal proceedings are to punish a person
for an offence committed by him. They are not parallel proceedings. The
object of the law of preventive detention is not punitive but only
preve?tive. .It is resorted to when ~~e Ex~c~~ive is .con~inced on t~e. F
matenals available and placed befor~ 1t that such detent10n 1s necessary m
order to prevent the person detained from acting in a matter prejudicial to
certain objects which are specified by the law. The action of Executive
in detaining a person being only precautionary, the matter has necessarily
to be left to the discretion of the Executive Authority. It is not practicable
to lay down objective rules of conduct, the failure to conform to which G
alone should lead to detention. In case of preventive detention of a citizen;
Article 22(5} of the Constitution enjoins the obligation of the appropriate
Government of the Detaining Authority to accord the detenu the earliest
opportunity to make a representation and to consider that representation
speedily: The·right to make a representation implies right of making an H
    630                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A effective representation. It is the constitutional right of the detenu to get
    all the ground on which the order has been made. As has been said by
    Benjamin Cardozo, "A Constitution states or ought to state not rules for
    the passing hour but the principles for an expanding future". The concept
    of grounds used in the context of detention in Article 22(5) has to receive
B   an interpretation which will keep it meaningful in tune with contemporary
    notions of the realities of the society, and the purposes of the Act in the
    light of concepts of liberty; and fundamental freedoms. While the expression
    "grounds" for that matter includes not only conclusions of fact but also
    all the basic facts on which those conclusions were founded; they
    are different from subsidiary facts or further particulars of the basic facts.
C   The detenu is entitled to obtain particulars as to the grounds which will
    enable him to make an effective representation against the order of
                                                                                       (
    detention.
                                                                                       )
                                                                                       '
          It has been said that the history of liberty has largely been the history
D   of observance of procedural safeguards. The procedural sinews strengthening
    the substance of the right to move the Court against executive invasion of
    personal liberty and the due dispatch ofjudicial business touching vio-JatiOns
    of this great right is stressed in the words of Lord Denning as follows:


E            "Whenever one of the King's Judges takes his seat; there is one
             application which by long tradition has priority ·over all.other,
             Counsel has but to say: My Lord, T have an appiicatio-n which·
             concerns the liberty of the subject and forthwith the Judge will
             put all other matter aside and hear it. It may be  an application for
             a writ of habeas corpus, or an application for bail but whatever
F            form it takes, it is heard first." (Freedoni uhder the Law, Hamlyn
             Lectures, 1949).

         The constitutional philosophy of personal liberty is an idealistit view,
    the curtailment of liberty for reasons of States' securicy, public order,
G   disruption of national economic discipline etc. being envisaged as a
    necessary evil to be administered under strict constitutfonal restrictions. In .
    Smt. lchhu Devi v. Union of India, AIR (1980)SC 1983, thisjudicial .
    commitment was highlighted in the following words.: .

H            "The Court has always regarded personal liberty as the most
        UNION OF INDIA v. PAUL MANICKAM [PASAYAT, J.]                  631
        precious possession of mankind and refused to tolerate illegal A
        detention, regardless of the social cost involved in the release of
        a possible renegade".

        "This is an area where the Court has been most strict and
        scrupulous in ensuring observance with the requirement of the law B
        and even where a requirement of the law is breached in the
        slightest measure, the Court has not hesitated to strike down the
        order of detention".

In Vijay Narain Singh v. State of Bihar, AIR (1984) SC 1334, Justice
Chinnappa Reddy in his concurring majority view said:                        c
        " .... .I do not agree with the view that those who are responsible
        for the national security or for the maintenance of public order
        must be the sole Judges of what the national security or public
        requires. It is too perilous a proposition. Our Constitution does D
        not give as carte blanche to any organ of the State to be the sole
        arbiter in such matter ...... "

        [Page 1336 (of AIR)]

        " ..... There are two sentinels, one at.either end. The legislature is E
        required to mark the law circumscribing the limits within which
        persons may be preventively detained and pr~viding for safeguards
        prescribed by the Constitution and the Courts are required to
        examine, when demanded, whether there has been any excessive
        detention, that is whether the limits set by the Constitution and F
        the legislature have been transgressed ..... ".

In Hem Lall Bhandari v. State o/Sikkim, AIR (1987) SC 762 at page 766,
it was observed:

        "It is not permissible in matters relating to the personal liberty and G
        freedom of a citizen to take either a liberal or a generous view
        of the lapses on the part of the officers ..... ".

      So far as the pivotal question whether there was delay in disposal of
the representation is concerned, same has to be considered in the background H
    632                SUPREME COURT REPORTS [2003)SUPP. 4 S.C.R.

A of Article 22(5) of the Constitution. A constitutional protection is given
    to every detenu which mandates the grant of liberty to the detenu to make
    a representation against detention, as imperated in Article 22(5) of the
    Constitution. It also imperates the authority to whom the representation is
    addressed to deal with the same with utmost expedition. The representation
B   is to be considered in its right perspective keeping in view the fact that the
    detention of the detenu is based on subjective satisfaction of the authority
    concerned, and infringement of the constitutional right confored under
    Article 22(5) invalidates the detention order. Persona') liberty protected
    under Article 21 is so sacrosanct and so high in the scale of constitutional
C   values that it is the obligation of the detaining authority to show that the
    impugned detention meticulously accords with the procedure established
    by law .~nd the. stringency a~d,concem of the judicial .Yigilan~ that is.,
    needed was aptly described in the following words in Thomas Pacham
    Dales' case: [1881] 6 QBD 376:

D            "Then comes the question upon the habeas corpus. It is a general
             rule, which has always been acted upon by the Courts of England,
             that if any person procures the imprisonment of another he must .
             take care to do so by steps, all of which are entirely regular, and
             that if he fails to follow every step in the process with extreme
E            regularity the Court will not allow the impri5onment to continue."

        One of the points raised by the respondent was that detenu being
    in custody, the anticipated and apprehended acts were practical
    impossibilities.
                                                       .    .·   .
F                                                  .                 .

          So far as this question relating to procedure to be adopted in case the
    detenu is already in custody is concepied, the matter: has beefi' dealt with
    in several cases. Where detention orders are passed in .relation fo .persons
    who are already in Jail under. some other laws, the.detaining illl,thorities
    should· apply their mind and show their awareness· in this regard hi°the
G   grounds of detention, the chances of release of such p~rsons on bail: The
    necessity of keeping such persons in detentio~. und~r · tl}e preventive·
    detention laws has to be clearly indicated. Subsisting custody of the detenu
    by itself does not invalidate an order of his preventive detention, and
    decision in this regard must depend on the facts of the particular case.
H   Preventive detention being necessary to prevent the detenu from actingin
              UNION OF INDIA v. PAUL MANICKAM [PASAYAT, J.]                  633

    any manner prejudicial to the security of the State or to the maintenance A
    of public order or economic stability, etc. ordinarily, it is not needed when
    detenu is already in custody. The detaining authority must show its
    awareness to the fact of subsisting custody of the detenu and take that factor
    into account while making the order. If the detaining authority is
    reasonably satisfied on cogent materials that there is likelihood of his B
    release and in view ofhis antecedent activities which are proximate in point
    of time, he must be detained in order to prevent him from indulging such
    prejudicial activities the detention order can be validly made. Where the
    detention order in respect of a person already in custody does not indicate
    that the detenu was likely to be released on bail, the order would be vitiated. C
    (See N. Meera Rani v. Govt. of Tamil Nadu, AIR (1989) SC 2027 :
    Dharmendra Suganchand v. Union of India, AIR (1990) SC 1196. The
    point was gone into detail in Kamarunnissa v. Union of India, AIR (1991)
    SC 1640. The principles were set out as follows. Even in the case of a
    person in custody, a detention order can be validly passed. (I) If the
    authority passing the order is aware of the fact that he is actually in custody; D
    (2) ifhe has reason to believe on the basis ofreliable material placed before
    him; (a) that there is a real possibility of his release on bail, and (b) that
    on being released, he would in all probability indulge in prejudicial
    activities, and (3) if it is felt essential to detain him to prevent him from
    so doing. If an order is passed after recording satisfaction in that regard, E
    the order would be valid. In the case at hand the order of detention and
    grounds of detention show awareness of custody and/or possibility of
    release on bail.

           Article 21 of the Constitution having declared that no person shall be F
     deprived of life and liberty except in accordance with the procedure
    established by laW, a niachinery was definitely needed to examine the
    question of illegal detention with utmost promptitude. The writ of habeas
    corpus is a device of this nature. Blackstone called it "the great and



-
    efficacious writ in all manner of illegal confinement". The writ has been
    described as a writ of right which is grantable ex dobito justitae. Though G
     a writ of right, it is not a writ of course. The applicant must show a prima
    facie case of his unlawful detention. Once, however, he shows such a cause
    and the return is not good and sufficient, he is entitled to this writ as of
    right.
                                                                                   H
    634                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A         In case of preventive detention no offence is proved, nor any charge
    is fonnulated and the justification of such detention is suspicion or
    reasonability and there is no criminal conviction which can only be
    warranted by legal evidence. Preventive justice requires an action to be
    taken to prevent apprehended objectionable activities. (See Rex v. Nallidev,
B   (1917) AC 260 and Mr. Kubic Dariusz v. Union ofIndia and Others, AIR
    (1990) SC 605. But at the same time, a person's greatest of human
    freedoms, i.e., personal liberty is deprived, and, therefore, the laws of
    preventive detention are strictly construed, and a meticulous compliance
    with the procedural safeguard, however, technical is mandatory. The
    compulsions of the primordial need to maintain order in society, without
C   which enjoyment of all rights, including the right of personal liberty would
    lose all their meanings, are the true justifications for the laws of preventive
    detention. This jurisdiction has been described as a "jurisdiction of
    suspicion", and the compulsions to preserve the values of freedom of a
    democratic society and social order sometimes merit the curtailment of the
D   individual liberty. (See Awa alias Ayub v. State of UP. and Another, AIR
    (1989) SC 364. To lose our country by a scrupulous adherence to the
    written law, said Thomas Jafferson, would be to lose the law, absurdly
    sacrificing the end to the means. No law is an end itself and the curtailment
    of liberty for reasons of State's security and national economic discipline
E   as a necessary evil has to be administered under strict constitutional
    restrictions. No carte blanche is given to any organ of the State to be the
    sole arbiter in such matters.
                                                                                      .
          Coming to the question whether the representation to the President
    of India meets with the requirement of law it has to be noted that in
F   Raghavendra Singh v. Superintendent, District Jail, Kanpur and Ors.,
    [1986] 1 SCC 650 and Rumana Begum v. State of Andhra Pradesh and
    Anr.: [1993] Supp 2 SCC 341 it was held that a representation to the
    President of India or the Governor, as the case may be, would amount to



                                                                                      -
    represen!ation to the Central Government and the State Government
G   respectively. Therefore, the representation made to the President of India
    or the Governor would amount to representation to the Central Government
    and the State Government. But this cannot be allowed to create a
    smokescreen by an unscrupulous detenu to take the authorities by surprise,
    acting surreptitiously or with ulterior motives. In the present case, the order
H   (grounds) of detention specifically indicated the authority to whom the
          UNION OF INDIA v. PAUL MANICKAM [PASAYAT, J.]                 635

 representation was to be made. Such indication is also part of the move A
 to facilitate an expeditious consideration of the representations actually
 made.

      The respondent does not appear to have come with clean hands to
 the Court. In the writ petition there was no mention that the representation B
 was made to the President; instead it was specifically stated in paragraph
 23 that the representation was made · by registered post to the first
 respondent on 11.5.2000 and a similar representation was made to the
 second respondent. Before the High Court in the writ petition the first and
 the second respondent were described as follows:
                                                                              c
               "l.   State of Tamil Nadu
                     Rep. By its Secretary,
                     Government of Tamil Nadu,
                     Public (SC) Department,
                     Fort St. George,                                         D
                     Chennai, 600 009.

               2.    Union of India,
                     Rep. By its Secretary
                     Ministry of Finance,                                     E
                     Department of Revenue,
                     New Delhi."

         As noted supra, for the first time in the review application it was
  disclosed that the representation was made to the President of India and F
  no representation was made to the State of Tamil Nadu or the Union of
  India who were arrayed in the writ petition as parties. This appears to be
   a deliberate attempt to create confusion and reap an undeserved benefit by
  adopting such dubious device. The High Court also transgressed its
  jurisdiction in entertaining the review petition with an entirely a new
   substratum of issues. Considering the limited scope for review the High G
   Court ought not to have taken into account factual aspects which were not
   disc!Osed or were concealed in the writ petition. While dealing with a
.··habeas corpus application undue importance is not to be attached to
   techrticalities, but at the same time where the court is satisfied that an
   attempt has been made to deflect the course of justice by letting loose red H
    636                 SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.
A herrings the Court has to take serious note of unclean approach. Whenever
    a representation is made to the President and the Governor instead of the
    indicated authorities, it is but natural that the representation should indicate
    as to why the representation was made to the President or the Governor
    and not the indicated authorities. It should also be clearly indicated as to
B   whom the representation has been made specifically, and not in the manner
    done in the case at hand. The President as well as the Governor, no doubt
    are constitutional Heads of the respective Governments but day to day
    administration at respective levels are carried on by the Heads of the
    Department-Ministries concerned and designated officers who alone are
    ultimately responsible and accountable for the action taken or to be taken
C   in a given case. It really the citizen concerned genuinely and honestly felt .
    or interested in getting an expeditious consideration or disposal of his
    grievance, he would and should honestly approach the really concerned
    authorities and would not adopt any dubious devices with the sole aim of
    deliberately creating a situation for delay in consideration and cry for relief
D   on his own manipulated ground, by directing his representation to an
    authority which is not directly immediately concerned with such
    consideration.

          It was nowhere indicated in the representation by the respondent as
E to why the representation was not being made to the indicated authorities
    and instead was being made to the President of India. This appears to be           ..
    a deliberate view to take advantage of the concern shown by this Court
    in protecting personal liberty of citizens. Where however a person alleging
    infraction of personal liberty tries to act in a manner which is more aimed
    at deflecting the course of justice than for protection ofhis personal right,
F   the Court has to make a deliberate balancing'ofthe'fa~Pdfuati'Oh%1 tttsure
    that the mere factum of some delay alone is ttiad~~ u's~~'o(fo'~rant' relief.
    If a fraud has been practiced or perpetrated that may in a given case nullify
    the cherished goal of protecting personal liberty, which obligated this Court
    to device guidelines to ensure such protection by .balancing individual
G   rights and the· interests of the nation, ·as well.

         In R. Keshava v. MB. Prakash and Ors., (2001] 2 SCC 145 it was
    observed by this Court as follows:
                                                               .            .   .

H                  "We are satisfied that the detenu in this case was apprised
               UNION OF INDIA v. PAUL MANICKAM [PASAYAT, J.)                 637

              of his right to make representation to the appropriate Government/ A
              authorities against his order of detention as mandated in Article
              22 (5) of the Constitution. Despite knowledge, the detenu did not
              avail of the opportunity. Instead of making a representation to the
              appropriate Government or the confirming authority, the detenu
              chose to address a representation to the Advisory Board alone B
              even without a request to send its copy to the authorities concerned
              under the Act. In the absence of representation or the knowledge
              of the representation having been made by the detenu, the'
              appropriate Government was justified in confirming the order of
              detention on perusal· of record and documents excluding the
              representation made by the detenu to the Advisory Board. For this C
              alleged failure of the appropriate Government, the order of
              detention of the appropriate Government is neither rendered
              unconstitutional nor illegal".

            Another aspect which has been highlighted is that many unscrupulous D
      petitioners are approaching this Court under Article 32 of the Constitution
      challenging the order of detention directly without first approaching the
      concerned High Courts. It is appropriate that the concerned High Court


..-   under whose jurisdiction the order of detention has been passed by the State'
      Government or Union Territory should be approached first. In order to E
      invoke jurisdiction under A1ticle 32 of the Constitution to approach this
      Court directly, it has to be shown by the petitioner as to why the High Court
      has not been approached, could not be approached or it is futile to approach
      the High Court. Unless satisfactory reasons are indicated in this regard,
      filing of petition on such matters, directly under Article 32 of the
      Constitution is to be discouraged.                                            F
            In view of the fact that the detenu has suffered detention for about
      the whole period of detention, we do not consider this a fit case for
      interference. We dismiss it subject to the observations made above.

      A.Q.                                                    Appeal dismissed.