LAW FOR ALL : quashing of the Detention Orders Since there was complete inaction on part of the Detaining Authority in the present case, to whom a representation was addressed in dealing with the representation as stated above, we hold that the constitutional rights of the detenues were violated and the detenues are entitled to redressal on that count. We, therefore, allow this Writ Petition and hold the continued detention of the detenues in terms of the Detention Orders to be illegal, invalid and unconstitutional. -it would be proper for the appropriate Government to wait till the report was received from the Advisory Board, while at the same time the Writ Petition (Criminal) No.362 of 2019 Ankit Ashok Jalan vs. Union of India & Ors. 62 specially empowered officer who had acted as the Detaining Authority would be obliged to consider the representation with utmost expedition.

Saturday, March 14, 2020

quashing of the Detention Orders Since there was complete inaction on part of the Detaining Authority in the present case, to whom a representation was addressed in dealing with the representation as stated above, we hold that the constitutional rights of the detenues were violated and the detenues are entitled to redressal on that count. We, therefore, allow this Writ Petition and hold the continued detention of the detenues in terms of the Detention Orders to be illegal, invalid and unconstitutional. -it would be proper for the appropriate Government to wait till the report was received from the Advisory Board, while at the same time the Writ Petition (Criminal) No.362 of 2019 Ankit Ashok Jalan vs. Union of India & Ors. 62 specially empowered officer who had acted as the Detaining Authority would be obliged to consider the representation with utmost expedition.

quashing of the Detention Orders
Since there was complete inaction on part of the Detaining Authority in the present case, to whom a representation was addressed in dealing with the representation as stated above, we hold that the constitutional rights of the detenues were violated and the detenues are entitled to redressal on that count. We, therefore, allow this Writ Petition and hold the continued detention of the detenues in terms of the Detention Orders to be illegal, invalid and unconstitutional. -it would be proper for the appropriate Government to wait till the report was received from the Advisory Board, while at the same time the Writ Petition (Criminal) No.362 of 2019 Ankit Ashok Jalan vs. Union of India & Ors. 62 specially empowered officer who had acted as the Detaining Authority would be obliged to consider the representation with utmost expedition.

Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO.362 OF 2019
ANKIT ASHOK JALAN …Petitioner
Versus
UNION OF IDNIA AND ORS. …Respondents
J U D G M E N T
Uday Umesh Lalit, J.
1. This petition under Article 32 of the Constitution of India prays for
quashing of the Detention Orders1
dated 01.07.2019 and for a direction that
the detenues be set at liberty.
2. The facts leading to the filing of this petition, in brief, are as under:
(a) On 01.07.2019, Joint Secretary to the Government of India,
specially empowered under Section 3(1) of the COFEPOSA Act2
passed
the Detention Orders after being satisfied that with a view to prevent the
1Nos.PD-12001/34/2019-COFEPOSA and PD-12001/35/2019-COFEPOSA, both dated
01.07.2019, issued by the Respondent No.2 against Shri Ashok Kumar Jalan and Shri Amit
Jalan respectively
2The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
2
detenues from smuggling goods, abetting the smuggling of goods, and
dealing in smuggled goods otherwise than by engaging in transporting or
concealing or keeping smuggled goods, in future, it was necessary to make
the said Detentions Orders.
b) The detenues were served with the Detention Orders, the grounds
of detention and the relied upon documents on 02.07.2019. The grounds of
detention, in para 12, recited as under:-
“You ……….. have the right to represent against your detention
to the Detaining Authority, to the Central Government as well as
to the Advisory Board. If you wish to avail this right, you should
send your representation through the Jail Authorities where you
are detained, in the manner indicated below:
(a) Representation meant for the Detaining Authority should be
addressed to the Joint Secretary (COFEPOSA), Government
of India, Ministry of Finance, Department of Revenue,
Central Economic Intelligence Bureau, 6th Floor, B-Wing,
Janpath Bhawan, New Delhi-110001.
(b) Representation meant for the Central Government should be
addressed to the Director General, Central Economic
Intelligence Bureau, Government of India, Ministry of
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
3
Finance, Department of Revenue, 6th Floor, B-Wing, Janpath
Bhawan, New Delhi-110001.
(c) Representation meant for the Advisory Board should be
addressed to the Chairman, COFEPOSA Advisory Board,
Delhi High Court, Sher Shah Road, New Delhi-110002.
(c) On 18.07.2019 the cases of the detenues were referred to the
Central Advisory Board3
along with the grounds of detention and relied
upon documents.
(d) On 22.07.2019 representation dated 17.07.2019 made on behalf of
both the detenues, addressed to the Joint Secretary (COFEPOSA),
Government of India, Ministry of Finance, Department of Revenue was
received through the Presidency Correctional Home, Alipore, Kolkata.
The representation stated inter alia:-
“9….(iii) To enable me to make an effective representation at
the earliest opportunity, I may please be forthwith provided witha) a copy of the Retraction Petition of Shri Anand stated
to be relied upon in the grounds of detention;
b) a copy of the pen-drive or CD/DVD of the CCTV
footage directed by the CMM to be submitted on 18th
3 The Central Advisory Board, Delhi High Court, New Delhi
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
4
June, 2019 may please be provided to me and may
please be shown to me on a laptop or any other device.
10. Kindly note that unless the aforesaid prayers are considered
expeditiously, I am unable to make my final representation to the
Central Government and the Advisory Board, etc. Therefore,
the instant representation may please be considered as
expeditiously as possible in true spirit of Article 22(5) read with
Articles 14 & 21 of the Constitution of India.”
(e) On 24.07.2019, the representation was forwarded to the Sponsoring
Authority, namely, DRI, Kolkata for its comments which were received on
29.07.2019. Said representation as well as the para-wise comments
received from the Sponsoring Authority were forwarded on 31.07.2019 to
the Central Advisory Board. The meeting of the Central Advisory Board
was scheduled to be held on 02.08.2019.
(f) On 02.08.2019 itself, Writ Petition No.1840 of 2019 preferred on
behalf of the detenues was allowed by the High Court4
on the grounds that
when the detenues were in judicial custody and there was no imminent
possibility of their release on bail and when not even a bail application was
preferred by them, the power of preventive detention ought not to have
4The High Court of Delhi at New Delhi
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
5
been exercised; and, that non-placement of relevant material in the form of
retraction petition of one Shri Anand and its non-consideration by the
Detaining Authority vitiated the Detention Orders. The High Court thus
quashed the Detention Orders and directed that the detenues be released
forthwith.
(g) In its Meeting dated 02.08.2019, the Central Advisory Board
recorded that since the Detention Orders were quashed, there was no
possibility of proceeding further in the matter.
(h) The decision of the High Court was challenged in Criminal Appeal
No.1746 of 2019 in this Court, which by its Judgment and order dated
22.11.2019 set aside the view taken by the High Court. While allowing the
appeal, the detenues were directed to be taken into custody forthwith. The
Detaining Authority was thereafter informed by the Jail Superintendent on
27.11.2019 that the detenues were received in custody in pursuance of the
decision of this Court.
(i) On 02.12.2019 a direction was issued to process the files of the
detenues for reference to the Central Advisory Board. After obtaining
appropriate approval, the case was referred to the Central Advisory Board
on 05.12.2019 stating inter alia:-
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
6
“Keeping in view the judgment dated 03.06.2015 of
the Apex Court delivered in Crl.Appeal No.829 of
2015 arising out of SLP(Crl) No.2489 of 2015 –
Golam Biswas v. Union of India, the said
representations will be considered for disposal by the
competent authority only after receipt of opinion of
the Hon’ble Board.”
3. The instant writ petition was filed on or about 16th December,
2019 challenging the stand taken in the communication dated 05.12.2019
that the representation would be considered only after the receipt of the
opinion of the Central Advisory Board. It was submitted that the
representation ought to be considered independently by the Detaining
Authority and without waiting for the report of the Central Advisory
Board; and that the delay in consideration of such representation violated
the rights of the detenues guaranteed by the Constitution of India. Soon
thereafter, another representation reiterating the stand as aforesaid was
made by the Advocate for the detenues on 18.12.2019.
4. On 18.12.2019 notice was issued by this Court, whereafter, an
affidavit in reply was filed on behalf of the respondents stating inter alia:-
(a) On 06.01.2020 a report was submitted by the Central
Advisory Board that there was sufficient cause for the detention of
the detenues.
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
7
(b) After considering the report of the Central Advisory Board
and the other material on record, the Central Government
confirmed the Detention Orders vide proceedings dated
14.01.2020.
(c) On the same date i.e. 14.01.2020 the Detaining Authority,
namely, Joint Secretary (COFEPOSA) rejected the representations
dated 17.07.2019 and 18.12.2019 made on behalf of the detenues.
After referring to the decisions of this court in Golam Biswas v.
Union of India and Another5
and K.M. Abdulla Kunhi and B.L. Abdul
Khader v. Union of India and others6
it was stated that the
representations were considered only after the receipt of the opinion of the
Central Advisory Board dated 06.01.2020.
5. We heard Mr. Mukul Rohatgi and Mr. Neeraj Kishan Kaul, learned
Senior Advocates in support of the petition and Mr. K.M. Nataraj, learned
Advocate Solicitor General for the respondents.
6. The learned Counsel for the petitioner accepted that by the time
representation dated 17.07.2019 was received by the Detaining Authority,
the matter was referred to the Central Advisory Board and since the
5 (2015) 16 SCC 177
6 (1991) 1 SCC 476
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
8
Detention Orders were set aside by the High Court on 02.08.2019, the nonconsideration of the representation till 02.08.2019, in the facts of the
instant case, would not be of any significance. However, in their
submission, after the decision of the High Court was set aside by this Court
and the detenues were taken back in custody in November, 2019, the nonconsideration of and delay in disposal of said representation was more
pronounced and relevant. It was submitted:-
(a) A representation against an order of detention can be made
to the Detaining Authority where the detention order has been passed
by a specially empowered officer of the Central Government as well
as to the Central Government and the Central Advisory Board. Para
12 of the grounds of detention, as extracted earlier, was in keeping
with this well accepted principle.
(b) The representation made to the Detaining Authority had to
be considered by the Detaining Authority independently. The
Detaining Authority was not right in waiting till the receipt of the
report of the Central Advisory Board.
(c) The consequential delay on part of the Detaining Authority
in considering the representation thus violated the constitutional rights
of the detenues.
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
9
7. On the other hand, Mr. K.M. Nataraj, learned Additional Solicitor
General, for the respondents relied upon the decisions of this Court in
Golam Biswas5
and in K.M. Abdulla Kunhi6
to submit that while the
matter was pending consideration before the Central Advisory Board, the
representation in question could not be considered and it could be
considered only after the receipt of the report of the Central Advisory
Board.
8. In the instant case, the facts are clear that:-
a) The Detaining Authority received a letter on 27.11.2019 that
the detenues were received in custody. Thereafter the matter
was again referred by the Central Government to the Central
Advisory Board on 05.12.2019. The communication shows
that it was decided that the representations would be
considered only after receipt of the opinion of the Central
Advisory Board.
b) The opinion of the Central Advisory Board was submitted on
06.01.2020. On 14.01.2020 the Central Government
confirmed the Detention Orders and on the same date the
Detaining Authority rejected the representations.
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
10
9. Following questions therefore arise:-
i) Whether the Detaining Authority was justified in deferring the
consideration of the representation till the receipt of the
opinion of the Central Advisory Board?
ii) Whether the Detaining Authority ought to have considered the
representation independently and without waiting for the
report of the Central Advisory Board?
iii) If the answer to the second question is yes, whether the time
taken by the Detaining Authority from 27.11.2019 till
14.01.2020 could be characterised as undue and avoidable
delay violating the constitutional rights of the detenues?
10. The learned counsel appearing for the parties placed for our
consideration various decisions of this Court touching upon the aforesaid
first two questions. We may broadly consider those decisions for
answering the questions from two perspectives:-
First, on the issue whether a representation can independently be
made to and must be considered by the Detaining Authority, who is a
specially empowered officer of the concerned Government.
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
11
Secondly, whether, in certain circumstances, the Detaining
Authority ought to defer consideration of such representation till the
report is received from the Advisory Board.
11. As regards the first issue, following decisions are noteworthy:-
A) In Ibrahim Bachu Bafan vs. State of Gujarat and others7
a
Bench of three Judges of this Court, while considering the scope
of Section 11 of the COFEPOSA Act and Section 21 of 1897
Act8
, made following observations:-
“7. … …. The heading of Section 11 is “Revocation
of Detention Orders”. Sub-section (1) authorises
revocation by two authorities, namely, — (a) if the
order has been made by an officer of a State
Government, the State Government or the Central
Government may revoke the order; and (b) if the
order has been made by an officer of the Central
Government or by a State Government, revocation is
permissible by the Central Government. Sub-section
(1) of Section 11 indicates that the power conferred
under it in the situations envisaged in Clauses (a) and
(b) is exercisable without prejudice to the provisions
of Section 21 of the General Clauses Act. That section
provides that a power to issue orders includes a power
exercisable in the like manner and subject to the like
sanction and conditions, if any, to add, to amend, vary
or rescind such orders. Under Section 21 of the
General Clauses Act, therefore, the authority making
an order of detention would be entitled to revoke that
order by rescinding it. We agree with the submission
of Mr Jethmalani that the words “without prejudice to
the provisions of Section 21 of the General clauses
Act 1897” used in Section 11(1) of the Act give
7 (1985) 2 SCC 24
8 The General Clauses Act, 1897
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
12
expression to the legislative intention that without
affecting that right which the authority making the
order enjoys under Section 21 of the General Clauses
Act, an order of detention is also available to be
revoked or modified by authorities named in clauses
(a) and (b) of Section 11(1) of the Act. Power
conferred under clauses (a) and (b) of Section 11(1)
of the Act could not be exercised by the named
authorities under Section 21 of the General Clauses
Act as these authorities on whom such power has
been conferred under the Act are different from those
who made the orders. Therefore, conferment of such
power was necessary as Parliament rightly found that
Section 21 of the General Clauses Act was not
adequate to meet the situation. Thus, while not
affecting in any manner and expressly preserving the
power under Section 21 of the General Clauses Act of
the original authority making the order, power to
revoke or modify has been conferred on the named
authorities.”
It was, thus, accepted that by virtue of Section 21 of 1897 Act, the
authority making an order of detention would be entitled to revoke that
order by rescinding it and that conferment of power under Section 11 of
the COFEPOSA Act was done without affecting in any manner and
expressly preserving the power under Section 21 of 1897 Act of the
original authority making the order.
B) A Bench of two Judges of this Court in State of Maharashtra
and another vs. Smt. Sushila Mafatlal Shah and others9
took
9 (1988) 4 SCC 490
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
13
a slightly different view. This Court framed following questions
in para 11:-
“11. ………
(1) Does an order passed by an officer of the State
Government or the Central Government, specially
empowered for the purposes of Section 3(1) by
the respective government, make him the
detaining authority and not the State Government
or the Central Government as the case may be,
and obligate him to inform the detenu that he has
a threefold opportunity to make his
representations i.e. the first to himself and the
other two to the State Government and the Central
Government.
(2) Whether for the purposes of the Act, there is any
difference between an order of detention passed
by an officer of the State Government or the
Central Government, solely in exercise of the
powers conferred on him under Section 3 by the
respective government and an order of detention
passed by the State Government or the Central
Government as the case may be through an officer
who in addition to conferment of powers under
Section 3 is also empowered under the Standing
Rules framed under the Rules of Business of the
government, to act on behalf of the government.
(3) Whether by reason of the fact that an order of
detention is passed by an officer of the State
Government or the Central Government specially
empowered to act under Section 3 of the Act, a
detenu acquires a constitutional right to have his
representation first considered by the very officer
issuing the detention order before making a
representation to the State Government and the
Central Government.”
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
14
While considering the scheme of the COFEPOSA Act, including
the ambit of Section 11, it was observed:-
“19. We may now examine the scheme of the Act and
have a closer look at the provisions set out above to
find out whether the Act provides for a differentiation
being made between detention orders made by the
government and those made by specially empowered
officers so as to confer an additional right of
representation to detenus subjected to detention under
detention orders falling in the latter category. At the
outset, it needs no saying, that any government, be it
Central or State, has to function only through human
agencies viz. its officers and functionaries and that it
cannot function by itself as an abstract body. Such
being the case, even though Section 3(1) provides for
an order of detention being made either by the Central
Government or one of its officers or the State
Government or by one of its officers, an order of
detention has necessarily to be made in either of the
situations only by an officer of the concerned
government. It is in acceptance of this position we
have to see whether an order of detention, if passed by
an officer of the government specially empowered
under Section 3(1) but not further empowered under
Rules of Business of the government to act would
have the effect of making the concerned officer the
detaining authority and not the concerned government
itself. The answer to the question has to be necessarily
in the negative for the following reasons. It has been
specifically provided in Section 2 (a) that irrespective
of whether an order of detention is made by the
Central Government or one of its duly authorised
officers, the “appropriate government” as regard the
detention order and the detenu will be the Central
Government only and likewise whether an order of
detention is made by a State Government or one of its
duly authorised officers the “appropriate government”
would be the State Government only as regards the
detention order and the detenu concerned. Secondly,
irrespective of whether an order of detention is made
by the State Government or by one of its officers, the
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
15
obligation to forward, within ten days a report to the
Central Government in respect of the order is cast
only upon the State Government. Thirdly, in the
matter of making a reference of the case of a detenu to
the Advisory Board under Section 8(b), the duty of
making the reference is cast only on the Central
Government or the State Government as the case may
be, and not on the officer of the Central Government
or the State Government if he makes the order of
detention in exercise of the powers conferred on him
under Section 3(1). Lastly, Section 11, which deals
with the powers of revocation of the State
Government and the Central Government provides
that notwithstanding that an order of detention had
been made by an officer of a State Government, the
concerned State Government as well as the Central
Government are entitled to revoke or modify the order
of detention. Similarly, as per clause (b)
notwithstanding that an order of detention has been
made by an officer of the Central Government or by a
State Government, the Central Government has been
empowered to revoke or modify an order of detention.
The section does not confer any power of revocation
on an officer of the Central or State Government nor
does it empower the Central or State Government to
delegate the power of revocation to any of its officers.
We may further add that even though Section 11
specifies that the powers of revocation conferred on
the Central Government/State Government are
without prejudice to the provisions of Section 21 of
the General clauses Act, this reservation will not
entitle a specially empowered officer to revoke an
order of detention passed by him because the order of
the specially empowered officer acquires “deemed
approval” of the State or Central Government, as the
case may be, automatically and by reason of such
deemed approval the powers of revocation, even in
terms of Section 21 of the General clauses Act will
fall only within the domain of the State Government
and/or Central Government. In Sat Pal v. State of
Punjab10 the nature of the power of revocation
conferred on the State and the Central Government
came to be construed and the court held that “(t)he
10 (1982) 1 SCC 12
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
16
power of revocation conferred on the appropriate
government under Section 11 of the Act is
independent of the power of confirming or setting
aside an order of detention under Section 8(f)”. It was
further adumbrated as follows: (SCC p. 17, para 10)
“The power under Section 11(1)(b) may either
be exercised on information received by the
Central Government from its own sources
including that supplied by the State Government
under Section 3(2), or, from the detenu in the
form of a petition or representation. It is for the
Central Government to decide whether or not, it
should revoke the order of detention in a
particular case. The use of the words ‘at any
time’ under Section 11, gives the power of
revocation an overriding effect on the power of
detention under Section 3.”
These observations were made by the court when
considering the question whether a detenu was
entitled to concurrently make representations to the
State Government and the Central Government
against an order of detention passed by the State
Government and whether in such circumstances the
State Government could contend that the question of
the Central Government considering the
representation would arise only after the State
Government had considered the representation and
rejected it.
20. Consequently, the resultant position emerging
from the Act is that even if an order of detention is
made by a specially empowered officer of the Central
Government or the State Government as the case may
be, the said order will give rise to obligations to be
fulfilled by the government to the same degree and
extent to which it will stand obligated if the detention
order had been made by the government itself. If that
be so, then it is the concerned government that would
constitute the detaining authority under the Act and
not the officer concerned who made the order of
detention, and it is to that government the detenu
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
17
should be afforded opportunity to make representation
against the detention order at the earliest opportunity,
as envisaged under Article 22(5) and not to the officer
making the order of detention in order to provide the
detenu an opportunity to make a further representation
to the State Government and thereafter to the Central
Government if the need arises for doing so. Though
by reason of Section 3(1) a specially empowered
officer is entitled to pass an order of detention, his
constitutional obligation is only to communicate
expeditiously to the detenu the grounds of detention
and also afford him opportunity to make
representation to the appropriate governments against
his detention. The only further duty to be performed
thereafter is to place the representation made by the
detenu before the concerned officer or the Minister
empowered under the Rules of Business of the
government to deal with such representation if the
detenu addresses his representation to the officer
himself.”
It was thus held that the constitutional obligation of a specially
empowered officer entitled to pass an order of detention would only be to
communicate expeditiously to the detenue the grounds of detention and
also to afford him opportunity to make representation to the appropriate
Governments against his detention. All the aforesaid three questions as
posed in Para 11 were answered in the negative.
C) In Amir Shad Khan vs. L. Hmingliana and others11, a Bench
of Three Judges of this Court observed:-
“3. ……... There can be no doubt that the
representation must be made to the authority which
has the power to rescind or revoke the decision, if
11 (1991) 4 SCC 39
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
18
need be. Our search for the authority must, therefore,
take us to the statute since the answer cannot be found
from Article 22(5) of the Constitution read in
isolation. As pointed out earlier that clause casts an
obligation on the authority making the detention order
to afford to the detenu an earliest opportunity to make
a representation against the detention order. If we are
to go by the statement in the grounds of detention our
search for that authority would end since the grounds
of detention themselves state the authorities to which
the representation must be made. The question must
be answered in the context of the relevant provisions
of the law. Now as stated earlier by clause (5) of
Article 22 a dual obligation is cast on the authority
making the detention order one of which is to afford
to the detenu an earliest opportunity of making a
representation against the order which obligation has
been met by informing the detenu in the grounds of
detention to whom his representation should be
addressed. But the authority to which the
representation is addressed must have statutory
backing. In order to trace the source for the statutory
backing it would be advantageous to notice the
scheme of the Act providing for preventive detention.
Section 2(b) defines a detention order to mean an
order made under Section 3. Sub-section (1) of
Section 3 empowers the Central Government or the
State Government or any officer of the Central
Government, not below the rank of a Joint Secretary
to that government, specially empowered for the
purposes of this section by that government, or any
officer of a State Government, not below the rank of a
Secretary to that government, specially empowered
for the purposes of this section by that government, to
make an order of detention with respect to any person
with a view to preventing him from acting in any
manner prejudicial to the conservation or
augmentation of foreign exchange or with a view to
preventing him from doing any one of the five
prejudicial acts enumerated thereunder. Sub-section
(2) of that section provides that when any order of
detention is made by a State Government or by an
officer empowered by a State Government, the State
Government shall, within ten days, forward to the
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
19
Central Government a report in respect of the order. It
is evident from this provision that whenever a
detention order is made by the State Government or
its officer specially empowered for that purpose an
obligation is cast on the State Government to forward
a report to the Central Government in respect of that
order within ten days. The purpose of this provision is
clearly to enable the Central Government to keep an
eye on the exercise of power under Section 3(1) by
the State Government or its officer. Then comes subsection (3) which reads as under:
3. (3) For the purposes of clause (5) of
Article 22 of the Constitution, the
communication to a person detained in
pursuance of a detention order of the
grounds on which the order has been made
shall be made as soon as may be after the
detention, but ordinarily not later than five
days, and in exceptional circumstances and
for reasons to be recorded in writing, not
later than fifteen days, from the date of
detention.”
This provision is clearly intended to meet the
obligation cast by Article 22(5) that the grounds of
detention shall be communicated ‘as soon as may be’.
The legislation has, therefore, fixed the outer limit
within which the grounds of detention must be
communicated to the detenu. Thus the first part of the
obligation cast by Article 22(5) is met by Section 3(3)
of the Act. Section 8 provides for the Constitution of
Advisory Boards. This section is clearly to meet the
obligation of sub-clause (a) of clause (4) and subclause (c) of clause (7) of Article 22 of the
Constitution. Section 8(f) which has some relevance
provides that in every case where the Advisory Board
has reported that there is in its opinion sufficient
cause for the detention of a person, the appropriate
government may confirm the detention order and
continue the detention of the person concerned for
such period as it thinks fit and in every case where the
Advisory Board has reported that there is in its
opinion no sufficient cause for the detention of the
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20
person concerned, the appropriate government shall
revoke the detention order and cause the person to be
released forthwith. This provision clearly obliges the
appropriate government to order revocation of the
detention order if the Advisory Board reports want of
sufficient cause for detention of that person. Then
comes Section 11 which reads as under:
“11. Revocation of detention orders.— (1)
Without prejudice to the provisions of
Section 21 of the General Clauses Act,
1897, a detention order may, at any time, be
revoked or modified —
(a) notwithstanding that the order
has been made by an officer of a
State Government, by that State
Government or by the Central
Government;
(b) notwithstanding that the order
has been made by an officer of the
Central Government or by a State
Government, by the Central
Government.”
Sub-section (2) is not relevant for our purpose. It is
obvious from a plain reading of the two clauses of
sub-section (1) of Section 11 that where an order is
made by an officer of the State Government, the State
Government as well as the Central Government are
empowered to revoke the detention order. Where,
however, the detention order is passed by an officer of
the Central Government or a State Government, the
Central Government is empowered to revoke the
detention order. Now this provision is clearly without
prejudice to Section 21 of the General Clauses Act
which lays down that where by any Central Act a
power to issue orders is conferred, then that power
includes a power, exercisable in the like manner and
subject to the like sanction and conditions, if any, to
rescind any order so issued. Plainly the authority
which has passed the order under any Central Act is
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21
empowered by this provision to rescind the order in
like manner. This provision when read in the context
of Section 11 of the Act makes it clear that the power
to rescind conferred on the authority making the
detention order by Section 21 of the General Clauses
Act is saved and is not taken away. Under Section 11
an officer of the State Government or that of the
Central Government specially empowered under
Section 3(1) of the Act to make a detention order is
not conferred the power to revoke it; that power for
those officers has to be traced to Section 21 of the
General Clauses Act. Therefore, where an officer of
the State Government or the Central Government has
passed any detention order and on receipt of a
representation he is convinced that the detention order
needs to be revoked he can do so by virtue of Section
21 of the General Clauses Act since Section 11 of the
Act does not entitle him to do so. If the State
Government passes an order of detention and later
desires to revoke it, whether upon receipt of a
representation from the detenu or otherwise, it would
be entitled to do so under Section 21 of the General
Clauses Act but if the Central Government desires to
revoke any order passed by the State Government or
its officer it can do so only under clause (b) of Section
11(1) of the Act and not under Section 21 of the
General Clauses Act. This clarifies why the power
under Section 11 is conferred without prejudice to the
provisions of Section 21 of the General Clauses Act.
Thus on a conjoint reading of Section 21 of the
General Clauses Act and Section 11 of the Act it
becomes clear that the power of revocation can be
exercised by three authorities, namely, the officer of
the State Government or the Central Government, the
State Government as well as the Central Government.
The power of revocation conferred by Section 8(f) on
the appropriate Government is clearly independent of
this power. It is thus clear that Section 8(f) of the Act
satisfies the requirement of Article 22(4) whereas
Section 11 of the Act satisfies the requirement of the
latter part of Article 22(5) of the Constitution. The
statutory provisions, therefore, when read in the
context of the relevant clauses of Article 22, make it
clear that they are intended to satisfy the
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22
constitutional requirements and provide for
enforcement of the right conferred on the detenu to
represent against his detention order. Viewed in this
perspective it cannot be said that the power conferred
by Section 11 of the Act has no relation whatsoever
with the constitutional obligation cast by Article
22(5).”
D. The apparent conflict between the decisions of this Court in
Sushila Mafatlal Shah9
and Amir Shad Khan11 came up for
consideration before a Constitution Bench of this Court in
Kamleshkumar Ishwardas Patel vs. Union of India and others12
and the question was posed as under:-
“2. When an order for preventive detention is passed
by an officer especially empowered to do so by the
Central Government or the State Government, is the
said officer required to consider the representation
submitted by the detenu?”
The matter was considered as under:-
“6. This provision has the same force and sanctity as
any other provision relating to fundamental rights.
(See: State of Bombay v. Atma Ram Shridhar
Vaidya13
.) Article 22(5) imposes a dual obligation on
the authority making the order of preventive
detention: (i) to communicate to the person detained
as soon as may be the grounds on which the order of
detention has been made; and (ii) to afford the person
detained the earliest opportunity of making a
representation against the order of detention. Article
22(5) thus proceeds on the basis that the person
detained has a right to make a representation against
the order of detention and the aforementioned two
12 (1995) 4 SCC 51
13 1951 SCR 167 = AIR 1951 SC 157
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23
obligations are imposed on the authority making the
order of detention with a view to ensure that right of
the person detained to make a representation is a real
right and he is able to take steps for redress of a
wrong which he thinks has been committed. Article
22(5) does not, however, indicate the authority to
whom the representation is to be made. Since the
object and purpose of the representation that is to be
made by the person detained is to enable him to
obtain relief at the earliest opportunity, the said
representation has to be made to the authority which
can grant such relief, i.e., the authority which can
revoke the order of detention and set him at liberty.
The authority that has made the order of detention can
also revoke it. This right is inherent in the power to
make the order. It is recognised by Section 21 of the
General Clauses Act, 1897 though it does not flow
from it. It can, therefore, be said that Article 22(5)
postulates that the person detained has a right to make
a representation against the order of detention to the
authority making the order. In addition, such a
representation can be made to any other authority
which is empowered by law to revoke the order of
detention.
… … …
14. Article 22(5) must, therefore, be construed to
mean that the person detained has a right to make a
representation against the order of detention which
can be made not only to the Advisory Board but also
to the detaining authority, i.e., the authority that has
made the order of detention or the order for
continuance of such detention, which is competent to
give immediate relief by revoking the said order as
well as to any other authority which is competent
under law to revoke the order for detention and
thereby give relief to the person detained. The right to
make a representation carries within it a
corresponding obligation on the authority making the
order of detention to inform the person detained of his
right to make a representation against the order of
detention to the authorities who are required to
consider such a representation.
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24
… … …
23. If the power of revocation is to be treated as the
criterion for ascertaining the authority to whom
representation can be made, then the representation
against an order of detention made by an officer
specially empowered by the State Government can be
made to the officer who has made the order as well as
to the State Government and the Central Government
who are competent to revoke the order. Similarly, the
representation against an order made by the State
Government can be made to the State Government as
well as to the Central Government and the
representation against an order made by an officer
specially empowered by the Central Government can
be made to the officer who has made the order as well
as to the Central Government.”
After considering relevant decisions, this Court did not accept the
law laid down in Sushila Mafatlal Shah9
and observed:-
“30. The decision in Sushila Mafatlal Shah9
proceeds
on two premises: (i) Article 22(5) does not confer a
right to make a representation to the officer specially
empowered to make the order; and (ii) under the
provisions of the COFEPOSA Act when the order of
detention is made by the officer specially empowered
to do so, the detaining authority is the appropriate
Government, namely, the Government which has
empowered the officer to make the order, since such
order acquires “deemed approval” by the Government
from the time of its issue.
31. With due respect, we find it difficult to agree with
both the premises. Construing the provisions of
Article 22(5) we have explained that the right of the
person detained to make a representation against the
order of detention comprehends the right to make
such a representation to the authority which can grant
such relief i.e. the authority which can revoke the
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25
order of detention and set him at liberty and since the
officer who has made the order of detention is
competent to revoke it, the person detained has the
right to make a representation to the officer who made
the order of detention. The first premise that such
right does not flow from Article 22(5) cannot,
therefore, be accepted.
32. The learned Judges, while relying upon the
observations in Abdul Karim14 and the decisions in
Jayanarayan Sukul15
, Haradhan Saha16 and John
Martin17 have failed to notice that in these cases the
Court was considering the matter in the light of the
provisions contained in Section 7(1) of the Preventive
Detention Act, 1950, whereby it was prescribed that
the representation was to be made to the appropriate
Government. The observations regarding
consideration of the representation by the State
Government in the said decisions have, therefore, to
be construed in the light of the said provision in the
Preventive Detention Act and on that basis it cannot
be said that Article 22(5) does not postulate that the
person detained has no right to make a representation
to the authority making the order of detention.
33. The second premise that the Central Government
becomes the detaining authority since there is deemed
approval by the Government of the order made by the
officer specially empowered in that regard from the
time of its issue, runs counter to the scheme of the
COFEPOSA Act and the PIT NDPS Act which differs
from that of other preventive detention laws, namely,
the National Security Act, 1980, the Maintenance of
Internal Security Act, 1971, and the Preventive
Detention Act, 1950.
34. In the National Security Act there is an express
provision [Section 3(4)] in respect of orders made by
the District Magistrate or the Commissioner of Police
14 (1969) 1 SCC 433
15 (1970) 1 SCC 219 [Jayanarayan Sukul vs. State of West Bengal]
16 (1975) 3 SCC 198 [Haradhan Saha vs. The State of West Bengal and others]
17 (1975) 3 SCC 836
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26
under Section 3(3) and the District Magistrate or the
Commissioner of Police who has made the order is
required to forthwith report the fact to the State
Government to which he is subordinate. The said
provision further prescribes that no such order shall
remain in force for more than twelve days after the
making thereof, unless, in the meantime, it has been
approved by the State Government. This would show
that it is the approval of the State Government which
gives further life to the order which would otherwise
die its natural death on the expiry of twelve days after
its making. It is also the requirement of Section 3(4)
that the report should be accompanied by the grounds
on which the order has been made and such other
particulars as, in the opinion of the said officer, have a
bearing on the matter which means that the State
Government has to take into consideration the
grounds and the said material while giving its
approval to the order of detention. The effect of the
approval by the State Government is that from the
date of such approval the detention is authorised by
the order of the State Government approving the order
of detention and the State Government is the
detaining authority from the date of the order of
approval. That appears to be the reason why Section
8(1) envisages that the representation against the
order of detention is to be made to the State
Government. The COFEPOSA Act and the PIT NDPS
Act do not require the approval of an order made by
the officer specially empowered by the State
Government or by the Central Government. The order
passed by such an officer operates on its own force.
All that is required by Section 3(2) of the COFEPOSA
Act and the PIT NDPS Act is that the State
Government shall within 10 days forward to the
Central Government a report in respect of an order
that is made by the State Government or an officer
specially empowered by the State Government. An
order made by the officer specially empowered by the
State Government is placed on the same footing as an
order made by the State Government because the
report has to be forwarded to the Central Government
in respect of both such orders. No such report is
required to be forwarded to the Central Government
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27
in respect of an order made by an officer specially
empowered by the Central Government. Requirement
regarding forwarding of the report contained in
Section 3(2) of the COFEPOSA Act and the PIT
NDPS Act cannot, therefore, afford the basis for
holding that an order made by an officer specially
empowered by the Central Government or the State
Government acquires deemed approval of that
Government from the date of its issue. Approval,
actual or deemed, postulates application of mind to
the action being approved by the authority giving
approval. Approval of an order of detention would
require consideration by the approving authority of
the grounds and the supporting material on the basis
of which the officer making the order had arrived at
the requisite satisfaction for the purpose of making
the order of detention. Unlike Section 3(4) of the
National Security Act there is no requirement in the
COFEPOSA Act and the PIT NDPS Act that the
officer specially empowered for the purpose of
making of an order of detention must forthwith send
to the Government concerned the grounds and the
supporting material on the basis of which the order of
detention has been made. Nor is it prescribed in the
said enactments that after the order of detention has
been made by the officer specially empowered for that
purpose the Government concerned is required to
apply its mind to the grounds and the supporting
material on the basis of which the order of detention
was made. The only circumstance from which
inference about deemed approval is sought to be
drawn is that the order is made by the officer specially
empowered for that purpose by the Government
concerned. Merely because the order of detention has
been made by the officer who has been specially
empowered for that purpose would not, in our
opinion, justify the inference that the said order
acquires deemed approval of the Government that has
so empowered him, from the date of the issue of the
order so as to make the said Government the detaining
authority. By specially empowering a particular
officer under Section 3(2) of the COFEPOSA Act and
the PIT NDPS Act the Central Government or the
State Government confers an independent power on
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28
the said officer to make an order of detention after
arriving at his own satisfaction about the activities of
the person sought to be detained. Since the detention
of the person detained draws its legal sanction from
the order passed by such officer, the officer is the
detaining authority in respect of the said person. He
continues to be the detaining authority so long as the
order of detention remains operative. He ceases to be
the detaining authority only when the order of
detention ceases to operate. This would be on the
expiry of the period of detention as prescribed by law
or on the order being revoked by the officer himself or
by the authority mentioned in Section 11 of the
COFEPOSA Act and Section 12 of the PIT NDPS
Act. There is nothing in the provisions of these
enactments to show that the role of the officer comes
to an end after he has made the order of detention and
that thereafter he ceases to be the detaining authority
and the Government concerned which had
empowered him assumes the role of the detaining
authority. We are unable to construe the provisions of
the said enactments as providing for such a limited
entrustment of power on the officer who is specially
empowered to pass the order. An indication to the
contrary is given in Section 11 of the COFEPOSA Act
and Section 12 of the PIT NDPS Act which preserve
the power of such officer to revoke the order that was
made by him. This means that the officer does not go
out of the picture after he has passed the order of
detention. It must, therefore, be held that the officer
specially empowered for that purpose continues to be
the detaining authority and is not displaced by the
Government concerned after he has made the order of
detention. Therefore, by virtue of his being the
detaining authority he is required to consider the
representation of the person detained against the order
of detention.
… … …
36. It appears that the decision in Ibrahim Bachu
Bafan7, a decision of a Bench of three Judges, was
not brought to the notice of the learned Judges
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29
deciding Sushila Mafatlal Shah9. For the reasons
aforementioned we are of the view that the decision in
Sushila Mafatlal Shah9 insofar as it holds that where
an order of detention made by an officer specially
empowered for the purpose, representation against the
order of detention is not required to be considered by
such officer and it is only to be considered by the
appropriate Government empowering such officer,
does not lay down the correct law.
… … …
38. Having regard to the provisions of Article 22(5) of
the Constitution and the provisions of the
COFEPOSA Act and the PIT NDPS Act the question
posed is thus answered: Where the detention order has
been made under Section 3 of the COFEPOSA Act
and the PIT NDPS Act by an officer specially
empowered for that purpose either by the Central
Government or the State Government the person
detained has a right to make a representation to the
said officer and the said officer is obliged to consider
the said representation and the failure on his part to do
so results in denial of the right conferred on the
person detained to make a representation against the
order of detention. This right of the detenu is in
addition to his right to make the representation to the
State Government and the Central Government where
the detention order has been made by an officer
specially authorised by a State Government and to the
Central Government where the detention order has
been made by an officer specially empowered by the
Central Government, and to have the same duly
considered. This right to make a representation
necessarily implies that the person detained must be
informed of his right to make a representation to the
authority that has made the order of detention at the
time when he is served with the grounds of detention
so as to enable him to make such a representation and
the failure to do so results in denial of the right of the
person detained to make a representation.
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30
12. With the judgment of the Constitution Bench of this Court in
Kamleshkumar12
, the law on the first issue is well settled that where the
detention order is made inter alia under Section 3 of the COFEPOSA Act
by an officer specially empowered for that purpose either by the Central
Government or the State Government, the person detained has a right to
make a representation to the said officer; and the said officer is obliged to
consider the said representation; and the failure on his part to do so
would result in denial of the right conferred on the person detained to
make a representation. Further, such right of the detenue has been taken
to be in addition to the right to make the representation to the State
Government and the Central Government. It must be stated that para 12
of the grounds of detention in the instant case, as quoted hereinabove, is in
tune with the law so declared by this Court.
13. We now move to the second issue and consider the decisions of
this Court on the point:-
A) In Pankaj Kumar Chakrabarty and others vs. The State of West
Bengal18 a Constitution Bench of this Court considered the matter where
orders of detention were passed by the District Magistrates under Section
3(1)(a)(ii) and (iii) read with Section 3(2) of 1950 Act19. As stated in
18 (1969) 3 SCC 400 = (1970) 1 SCR 543
19 The Preventive Detention Act, 1950
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31
paragraph 2 of the decision, the case of the detenue was placed before the
Advisory Board on 21.09.1968. A representation against the order of
detention was made to the State Government on 21.10.1968. An opinion
was given by the Advisory Board on 06.11.1968 that there was sufficient
cause for detention of the person concerned, whereafter the order was
confirmed on 11.11.1968. While in the case considered in paragraph 4,
the representation was made after the case was referred to the Advisory
Board. In the light of these facts, following two questions were framed:-
“6. On these contentions two questions arise: (i)
whether there is on the appropriate Government the
obligation to consider the representation made by a
detenue, and (2) if there is, whether it makes any
difference where such a representation is made after
the detenu’s case is referred to the Advisory Board.”
The matter was, thereafter, considered and it was observed:-
“10. It is true that clause 5 does not in positive
language provide as to whom the representation is to
be made and by whom, when made, it is to be
considered. But the expressions “as soon as may be”
and “the earliest opportunity” in that clause clearly
indicate that the grounds are to be served and the
opportunity to make a representation are provided for
to enable the detenu to show that his detention is
unwarranted and since no other authority who should
consider such representation is mentioned it can only
be the detaining authority to whom it is to be made
which has to consider it. Though clause 5 does not in
express terms say so it follows from its provisions that
it is the detaining authority which has to give to the
detenu the earliest opportunity to make a
representation and to consider it when so made
whether its order is wrongful or contrary to the law
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32
enabling it to detain him. The illustrations given in
Sk. Abdul Karim case show that clause 5 of Article 22
not only contains the obligation of the appropriate
Government to furnish the grounds and to give the
earliest opportunity to make a representation but also
by necessary implication the obligation to consider
that representation. Such an obligation is evidently
provided for to give an opportunity to the detenu to
show and a corresponding opportunity to the
appropriate Government to consider any objections
against the order which the detenu may raise so that
no person is, through error or otherwise, wrongly
arrested and detained. If it was intended that such a
representation need not be considered by the
Government where an Advisory Board is constituted
and that representation in such cases is to be
considered by the Board and not by the appropriate
Government, clause 5 would not have directed the
detaining authority to afford the earliest opportunity
to the detenu. In that case the words would more
appropriately have been that the authority should
obtain the opinion of the Board after giving an
opportunity to the detenu to make a representation
and communicate the same to the Board. But what
would happen in cases where the detention is for less
than 3 months and there is no necessity of having the
opinion of the Board? If Counsel’s contention were to
be right the representation in such cases would not
have to be considered either by the appropriate
Government or by the Board and the right of
representation and the corresponding obligation of the
appropriate Government to give the earliest
opportunity to make such representation would be
rendered nugatory. In imposing the obligation to
afford the opportunity to make a representation,
clause 5 does not make any distinction between orders
of detention for only 3 months or less and those for a
longer duration. The obligation applies to both kinds
of orders. The clause does not say that the
representation is to be considered by the appropriate
Government in the former class of cases and by the
Board in the latter class of cases. In our view it is
clear from clauses 4 and 5 of Article 22 that there is a
dual obligation on the appropriate Government and a
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33
dual right in favour of the detenu, namely, (1) to have
his representation irrespective of the length of
detention considered by the appropriate Government
and (2) to have once again that representation in the
light of the circumstances of the case considered by
the Board before it gives its opinion. If in the light of
that representation the Board finds that there is no
sufficient cause for detention the Government has to
revoke the order of detention and set at liberty the
detenu. Thus, whereas the Government considers the
representation to ascertain whether the order is in
conformity with its power under the relevant law, the
Board considers such representation from the point of
view of arriving at its opinion whether there is
sufficient cause for detention. The obligation of the
appropriate Government to afford to the detenu the
opportunity to make a representation and to consider
that representation is distinct from the Government’s
obligation to constitute a Board and to communicate
the representation amongst other materials to the
Board to enable it to form its opinion and to obtain
such opinion.
11. This conclusion is strengthened by the other
provisions of the Act. In conformity with clauses 4
and 5 of Article 22, Section 7 of the Act enjoins upon
the detaining authority to furnish to the detenu
grounds of detention within five days from the date of
his detention and to afford to the detenu the earliest
opportunity to make his representation to the
appropriate Government. Sections 8 and 9 enjoin
upon the appropriate Government to constitute an
Advisory Board and to place within 30 days from the
date of the detention the grounds for detention, the
detenu’s representation and also the report of the
officer where the order of detention is made by an
officer and not by the Government. The obligation
under Section 7 is quite distinct from that under
Sections 8 and 9. If the representation was for the
consideration not by the Government but by the
Board only as contended, there was no necessity to
provide that it should be addressed to the Government
and not directly to the Board. The Government could
not have been intended to be only a transmitting
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34
authority nor could it have been contemplated that it
should sit tight on that representation and remit it to
the Board after it is constituted. The peremptory
language in clause 5 of Article 22 and Section 7 of the
Act would not have been necessary if the Board and
not the Government had to consider the
representation. Section 13 also furnishes an answer to
the argument of Counsel for the State. Under that
section the State Government and the Central
Government are empowered to revoke or modify an
order of dentention. That power is evidently provided
for to enable the Government to take appropriate
action where on a representation made to it, it finds
that the order in question should be modified or even
revoked. Obviously, the intention of Parliament could
not have been that the appropriate Government should
pass an order under Section 13 without considering
the representation which has under Section 7 been
addressed to it.
12. For the reasons aforesaid we are in agreement
with the decision in Sk. Abdul Karim case.
Consequently, the petitioners had a constitutional
right and there was on the State Government a
corresponding constitutional obligation to consider
their representations irrespective of whether they were
made before or after their cases were referred to the
Advisory Board and that not having been done the
order of detention against them cannot be sustained.
In this view it is not necessary for us to examine the
other objections raised against these orders. The
petition is therefore allowed, the orders of detention
against Petitioners 15 and 36 are set aside and we
direct that they should be set at liberty forthwith.”
(Emphasis added)
B. In Jayanarayan Sukul15
, considered by another Constitution
Bench of this Court, the order of detention was passed by the District
Magistrate under the relevant provisions of 1950 Act. A representation
was made by the detenue to the State Government on 23.06.1969. The
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35
case of the detenue was placed before the Advisory Board on 01.07.1969
which reported on 13.08.1969 that there was sufficient cause for the
detention. It was only thereafter that the representation was considered
and rejected on 19.08.1969. In the context of these facts, it was
observed:-
“13. It, therefore, follows that the appropriate
authority is to consider the representation of the
detenu uninfluenced by any opinion or consideration
of the Advisory Board. In the case of Khairul Haque
v. State of W.B.20 this Court observed that “it is
implicit in the language of Article 22 that the
appropriate Government, while discharging its duty to
consider the representation cannot depend upon the
views of the Board on such representation”. The logic
behind this proposition is that the Government should
immediately consider the representation of the detenu
before sending the matter to the Advisory Board and
further that such action will then have the real flavour
of independent judgment.
… … …
18. It is established beyond any measure of doubt that
the appropriate authority is bound to consider the
representation of the detenu as early as possible. The
appropriate Government itself is bound to consider
the representation as expeditiously as possible. The
reason for immediate consideration of the
representation is too obvious to be stressed. The
personal liberty of a person is at stake. Any delay
would not only be an irresponsible act on the part of
the appropriate authority but also unconstitutional
because the Constitution enshrines the fundamental
right of a detenu to have his representation considered
and it is imperative that when the liberty of a person is
20 W.P. No.246 of 1969, decided on 10-9-69
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in peril immediate action should be taken by the
relevant authorities. (Emphasis added)
19. No definite time can be laid down within which a
representation of a detenu should be dealt with save
and except that it is a constitutional right of detenu to
have his representation considered as expeditiously as
possible. It will depend upon the facts and
circumstances of each case whether the appropriate
Government has disposed of the case as expeditiously
as possible for otherwise in the words of Shelat, J.,
who spoke for this Court in the case of Khairul
Haque20 “It is obvious that the obligation to furnish
the earliest opportunity to make a representation loses
both its purpose and meaning”.
20. Broadly stated, four principles are to be followed
in regard to representation of detenus. First, the
appropriate authority is bound to give an opportunity
to the detenu to make a representation and to consider
the representation of the detenu as early as possible.
Secondly, the consideration of the representation of
the detenu by the appropriate authority is entirely
independent of any action by the Advisory Board
including the consideration of the representation of
the detenu by the Advisory Board. Thirdly, there
should not be any delay in the matter of consideration.
It is true that no hard and fast rule can be laid down as
to the measure of time taken by the appropriate
authority for consideration but it has to be
remembered that the Government has to be vigilant in
the governance of the citizens. A citizen’s right raises
a correlative duty of the State. Fourthly, the
appropriate Government is to exercise its opinion and
judgment on the representation before sending the
case along with the detenu’s representation to the
Advisory Board. If the appropriate Government will
release the detenu the Government will not send the
matter to the Advisory Board. If however the
Government will not release the detenu the
Government will send the case along with the
detenu’s representation to the Advisory Board. If
thereafter the Advisory Board will express an opinion
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in favour of release of the detenu the Government will
release the detenu. If the Advisory Board will express
any opinion against the release of the detenu the
Government may still exercise the power to release
the detenu. (Emphasis Added)
21. In the present case, the State of West Bengal is
guilty of infraction of the constitutional provisions not
only by inordinate delay of the consideration of the
representation but also by putting of the consideration
till after the receipt of the opinion of the Advisory
Board. As we have already observed there is no
explanation for this inordinate delay. The
Superintendent who made the enquiry did not affirm
an affidavit. The State has given no information as to
why this long delay occurred. The inescapable
conclusion in the present case is that the appropriate
authority failed to discharge its constitutional
obligation by inactivity and lack of independent
judgment.”
C) In Haradhan Saha16 yet another Constitution Bench of this Court
considered the distinction between the consideration of representation by
the Government and by the Advisory Board as under.
“24. The representation of a detenu is to be
considered. There is an obligation on the State to
consider the representation. The Advisory Board has
adequate power to examine the entire material. The
Board can also call for more materials. The Board
may call the detenu at his request. The constitution of
the Board shows that it is to consist of Judges or
persons qualified to be Judges of the High Court. The
constitution of the Board observes the fundamental of
fair play and principles of natural justice. It is not the
requirement of principles of natural justice that there
must be an oral hearing. Section 8 of the Act which
casts an obligation on the State to consider the
representation affords the detenu all the rights which
are guaranteed by Article 22(5). The Government
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considers the representation to ascertain essentially
whether the order is in conformity with the power
under the law. The Board, on the other hand,
considers whether in the light of the representation
there is sufficient cause for detention. (Emphasis
Added)
… … …

29. Principles of natural justice are an element in
considering the reasonableness of a restriction where
Article 19 is applicable. At the stage of consideration
of representation by the State Government, the
obligation of the State Government is such as Article
22(5) implies. Section 8 of the Act is in complete
conformity with Article 22(5) because this section
follows the provisions of the Constitution. If the
representation of the detenu is received before the
matter is referred to the Advisory Board, the detaining
authority considers the representation. If a
representation is made after the matter has been
referred to the Advisory Board, the detaining
authority will consider it before it will send
representation to the Advisory Board.” (Emphasis
Added)
It was, thus, clarified that if the representation is received before the
matter is referred to the Advisory Board, the Detaining Authority ought to
consider such representation; and if the representation is made after the
matter is referred to the Advisory Board, the Detaining Authority would
first consider it and then send the representation to the Advisory Board.
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D) In Frances Coralie Mullin vs. W.C. Khambra21, a bench of two
Judges of this Court considered the principles laid down in Jayanarayan
Sukul15 and made following observations:-
“5. We have no doubt in our minds about the role of
the court in cases of preventive detention: it has to be
one of eternal vigilance. No freedom is higher than
personal freedom and no duty higher than to maintain
it unimpaired. The Court’s writ is the ultimate
insurance against illegal detention. The Constitution
enjoins conformance with the provisions of Article 22
and the Court exacts compliance. Article 22(5) vests
in the detenu the right to be provided with an
opportunity to make a representation. Here the Law
Reports tell a story and teach a lesson. It is that the
principal enemy of the detenu and his right to make a
representation is neither high-handedness nor meanmindedness but the casual indifference, the mindless
insensibility, the routine and the red tape of the
bureaucratic machine. The four principles enunciated
by the Court in Jayanarayan Sukul v. State of W.B. 15
as well as other principles enunciated in other cases,
an analysis will show, are aimed at shielding personal
freedom against indifference, insensibility, routine
and red tape and thus to secure to the detenu the right
to make an effective representation. We agree: (1) the
detaining authority must provide the detenu a very
early opportunity to make a representation, (2) the
detaining authority must consider the representation
as soon as possible, and this, preferably, must be
before the representation is forwarded to the Advisory
Board, (3) the representation must be forwarded to the
Advisory Board before the Board makes its report,
and (4) the consideration by the detaining authority of
the representation must be entirely independent of the
hearing by the Board or its report, expedition being
essential at every stage. We, however, hasten to add
that the time-imperative can never be absolute or
obsessive. The Court’s observations are not to be so
understood. There has to be lee-way, depending on the
21 (1980) 2 SCC 275
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necessities (we refrain from using the word
“circumstances”) of the case. One may well imagine a
case where a detenu does not make a representation
before the Board makes its report making it
impossible for the detaining authority either to
consider it or to forward it to the Board in time or a
case. where a detenu makes a representation to the
detaining authority so shortly before the Advisory
Board takes up the reference that the detaining
authority cannot consider the representation before
then but may merely forward it to the Board without
himself considering it. Several such situations may
arise compelling departure from the time-imperative.
But no allowance can be made for lethargic
indifference. No allowance can be made for needless
procrastination. But, allowance must surely be made
for necessary consultation where legal intricacies and
factual ramifications are involved. The burden of
explaining the necessity for the slightest departure
from the time-imperative is on the detaining authority.
… … …
7. We have already expressed our agreement with the
four principles enunciated in Jayanarayan Sukul v.
State of W.B.15. We would make one observation.
When it was said there that the Government should
come to its decision on the representation before the
Government forwarded the representation to the
Advisory Board, the emphasis was not on the point of
time but on the requirement that the Government
should consider the representation independently of
the Board. This was explained in Nagendra Nath
Mondal v. State of W.B22
. In Sukul case15 the court also
made certain pertinent observations at pp. 231-232:
(SCC p. 224, para 19)
“No definite time can be laid down within
which a representation of a detenu should be
dealt with save and except that it is a
constitutional right of a detenu to have his
representation considered as expeditiously as
possible. It will depend upon the facts and
22 (1972) 1 SCC 498
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circumstances of each case whether the
appropriate Government has disposed of the
case as expeditiously as possible....”
E) In K.M. Abdullah Kunhi6
, in view of the conflict between two
decisions of this Court the matter was referred to the Constitution Bench
as is clear from paragraphs 1 and 2 of said decision:-
“1. A Division Bench of this Court while expressing
the view that the decisions in V.J. Jain v. Shri
Pradhan23and Om Prakash Bahl v. Union of India24
require reconsideration has referred these matters to
the Constitution Bench.
2. It is convenient at this point to refer to the
statement of law laid down in the aforesaid two cases.
In both the cases, as in the present case, the persons
were detained under the Conservation of Foreign
Exchange and Prevention of Smuggling Activities
Act, 1974 (‘the Act’). The detenu made representation
to the appropriate government. By then the Advisory
Board was already constituted and it was scheduled to
meet to consider the case of the detenu. The
government forwarded the detenu’s representation to
the Advisory Board. The Advisory Board considered
the case of the detenu and also the representation and
submitted report expressing the opinion that there was
sufficient cause for the detention of the person. The
government after considering that report confirmed
the order of detention. It appears that the
representation of the detenu was not considered
before confirming the detention order and it came to
be considered and rejected only thereafter. In V.J. Jain
case23 this Court observed that the representation of
the detenu should be considered by the detaining
authority as early as possible before any order is made
confirming the detention. The confirmation of the
detention order without the consideration of
23 (1979) 4 SCC 401
24 W.P. No.845 of 1979, decided on October 15, 1979
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42
representation would be invalid and the subsequent
consideration of the representation would not cure the
invalidity of the order of confirmation. This view has
been reiterated in the unreported judgment in Om
Prakash Bahl case24.”
In that case the detention orders were passed by the State
Government under Section 3(1)(iv) of the COFEPOSA Act. The
representations were made by the detenues on 17.04.1989 which,
however, could not be considered immediately as certain information and
comments were required. In the meantime, the case was referred to the
Advisory Board which in its report dated 20.04.1989 found that there was
sufficient cause for the detention. On 27.04.1989, the detention was
confirmed by the State Government. Thereafter, the representations were
considered on 6th and 7th May, 1989 by the State Government and by the
Central Government on 23.05.1989. In the backdrop of these facts, the
question that arose was:-
“5. The principal question for consideration is
whether the confirmation of detention order upon
accepting the report of the Advisory Board renders
itself invalid solely on the ground that the
representation of the detenu was not considered and
the subsequent consideration of the representation
would not cure that invalidity. At the outset it may be
made clear that there is no argument addressed before
us that there was unexplained delay in considering the
representation of the detenu. Indeed, counsel for the
petitioners very fairly submitted that they are not
raising the question of delay. They also did not argue
that the rejection of the representation after the
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confirmation of detention was not an independent
consideration.”
After considering the relevant decisions on the point, including
Pankaj Kumar Chakrabarty18
, Jayanarayan Sukul15, Haradhan Saha16
and Frances Coralie Mullin21 this Court observed:-
“15. In Frances Coralie Mullin case, the detenu’s
representation was received by the detaining authority
on December 26, 1979. Without any loss of time copy
of the representation was sent to the customs
authorities for their remarks which was obviously
necessary because the information leading to the order
of detention was collected by the customs authorities.
The facts were undoubtedly complex since the
allegations against the detenu revealed an
involvement with an international gang of dope
smugglers. The comments of the customs authorities
were received on January 4, 1980. The Advisory
Board was meeting on January 4, 1980 and so there
could be no question of the detaining authority
considering the representation of the detenu before the
Board met, unless it was done in a great and undue
haste. After obtaining the comments of the customs
authorities, it was found necessary to take legal advice
as the representation posed many legal and
constitutional questions, so, after consultation with
the Secretary (Law and Judicial) Delhi
Administration, the representation was finally rejected
by the Administrator on January 15, 1980. It was held
that if there appeared to be any delay it was not due to
any want of care but because the representation
required a thorough examination in consultation with
investigation agencies and advisers on law.
16. We agree with the observations in Frances
Coralie Mullin case. The time imperative for
consideration of representation can never be absolute
or obsessive. It depends upon the necessities and the
time at which the representation is made. The
representation may be received before the case is
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referred to the Advisory Board, but there may not be
time to dispose of the representation before referring
the case to the Advisory Board. In that situation the
representation must also be forwarded to the Advisory
Board along with the case of the detenu. The
representation may be received after the case of the
detenu is referred to the Board. Even in this situation
the representation should be forwarded to the
Advisory Board provided the Board has not
concluded the proceedings. In both the situations
there is no question of consideration of the
representation before the receipt of report of the
Advisory Board. Nor it could be said that the
government has delayed consideration of the
representation, unnecessarily awaiting the report of
the Board. It is proper for the government in such
situations to await the report of the Board. If the
Board finds no material for detention on the merits
and reports accordingly, the government is bound to
revoke the order of detention. Secondly, even if the
Board expresses the view that there is sufficient cause
for detention, the government after considering the
representation could revoke the detention. The Board
has to submit its report within eleven weeks from the
date of detention. The Advisory Board may hear the
detenu at his request. The constitution of the Board
shows that it consists of eminent persons who are
Judges or persons qualified to be Judges of the High
Court. It is therefore, proper that the government
considers the representation in the aforesaid two
situations only after the receipt of the report of the
Board. If the representation is received by the
government after the Advisory Board has made its
report, there could then of course be no question of
sending the representation to the Advisory Board. It
will have to be dealt with and disposed of by the
government as early as possible. (Emphasis added)
… … …
19. There is no constitutional mandate under clause
(5) of Article 22, much less any statutory requirement
to consider the representation before confirming the
order of detention. As long as the government without
delay considers the representation with an unbiased
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mind there is no basis for concluding that the absence
of independent consideration is the obvious result if
the representation is not considered before the
confirmation of detention. Indeed, there is no
justification for imposing this restriction on the power
of the government. As observed earlier, the
government’s consideration of the representation is
for a different purpose, namely, to find out whether
the detention is in conformity with the power under
the statute. This has been explained in Haradhan
Saha case, where Ray, C.J., speaking for the
Constitution Bench observed that the consideration of
the representation by the government is only to
ascertain whether the detention order is in conformity
with the power under the law. There need not be a
speaking order in disposing of such representation.
There is also no failure of justice by the order not
being a speaking order. All that is necessary is that
there should be real and proper consideration by the
government.
20. It is necessary to mention that with regard to
liberty of citizens the court stands guard over the facts
and requirements of law, but court cannot draw
presumption against any authority without material. It
may be borne in mind that the confirmation of
detention does not preclude the government from
revoking the order of detention upon considering the
representation. Secondly, there may be cases where
the government has to consider the representation
only after confirmation of detention. Clause (5) of
Article 22 suggests that the representation could be
received even after confirmation of the order of
detention. The words ‘shall afford him the earliest
opportunity of making a representation against the
order’ in clause (5) of Article 22 suggest that the
obligation of the government is to offer the detenu an
opportunity of making a representation against the
order, before it is confirmed according to the
procedure laid down under Section 8 of the Act. But if
the detenu does not exercise his right to make
representation at that stage, but presents it to the
government after the government has confirmed the
order of detention, the government still has to
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consider such representation and release the detenu if
the detention is not within the power conferred under
the statute. The confirmation of the order of detention
is not conclusive as against the detenu. It can be
revoked suo motu under Section 11 or upon a
representation of the detenu. It seems to us therefore,
that so long as the representation is independently
considered by the government and if there is no delay
in considering the representation, the fact that it is
considered after the confirmation of detention makes
little difference on the validity of the detention or
confirmation of the detention. The confirmation
cannot be invalidated solely on the ground that the
representation is considered subsequent to
confirmation of the detention. Nor it could be
presumed that such consideration is not an
independent consideration. With all respect, we are
not inclined to subscribe to the views expressed in
V.J. Jain, Om Prakash Bahl and Khairul Haque cases.
They cannot be considered to be good law and hence
stand overruled.”
Two situations were considered in paragraph 16 by this Court.
One, where the representation is received just before the case is referred to
the Advisory Board and there is no time to dispose of the representation
before such reference; and second, where the representation is received
after such reference to the Advisory Board. It was observed that, “……In
both the situations there is no question of consideration of the
representation before the receipt of report of the Advisory Board…. It is
proper for the government in such situations to await the report of the
Board.” The reasons for such observations were given in the latter part of
paragraph 16 and in paragraphs 19 and 20.
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F) In Golam Biswas5
, the order of detention under the COFEPOSA
Act was passed on 27.05.2014. A representation was made to the Central
Government on 08.07.2014. The reference was made to the Advisory
Board on 18.07.2014 which reported on 27.08.2014 that there was
sufficient cause for detention. Thereafter, the detention was confirmed on
05.09.2014. In the meantime, the representation which was pending with
the Central Government, was rejected on 21.07.2014. A bench of two
Judges of this Court considered the submission in paragraph 11 and 15 as
under:-
“11. To start with the dates setting out the intervening
events are not in dispute. To repeat, the detenu had
submitted his representation on 8-7-2014 and the
same was pending consideration on merit before the
Central Government on 18-7-2014, the date on which
the matter was remitted to the Advisory Board under
the Act. The representation was rejected on 21-7-2014
when the matter was pending before the Advisory
Board. The Advisory Board concluded its proceedings
and gave a finding sustaining the order of detention
on 27-8-2014. Unmistakably, thus, the detenu’s
representation which was pending at the time of
remittance of the matter to the Advisory Board was
not forwarded to it and instead was rejected by the
Central Government during the pendency of the
proceedings before the Advisory Board.
… … …
15. As admittedly, the detenu’s representation dated 8-
7-2014, pending with the Central Government, the
appropriate Government in the case, was not
forwarded to the Advisory Board and was instead
rejected during the pendency of the proceedings
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before the Advisory Board, we are constrained to hold
that the detention of the detenu is constitutionally
invalid. The rejection of the representation by the
Central Government later on 21-7-2014 during the
pendency of the proceedings before the Advisory
Board is of no consequence to sustain the detention.
Consequently, the order of confirmation as well is
rendered non est by this vitiation. In view of the
determination made on the above aspect of the debate,
we do not consider it necessary to dilate on the other
pleas raised on behalf of the detenu. In the result, the
appeal succeeds. The impugned judgment and order is
set aside. The orders of detention as well as the order
of confirmation are hereby annulled. The detenu is
directed to be set at liberty, if not wanted in any other
case.”
Thus, failure on part of the appropriate Government to forward the
representation to the Advisory Board and rejection thereof while the
proceedings were pending before the Advisory Board, were the points on
which the relief was granted to the detenue.
14. In the context of the second issue stated earlier, the principles that
emerge from the decisions referred to above are:-
A) In Pankaj Kumar Chakrabarty18, it was laid down:-
“the petitioners had a constitutional right and there
was on the State Government a corresponding
constitutional obligation to consider their
representations irrespective of whether they were
made before or after their cases were referred to the
Advisory Board”
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According to this decision it was immaterial whether the
representations were made before or after the cases were referred to the
Advisory Board.
B) In Jayanarayan Sukul15
, the reason for immediate consideration
of the representation was stressed in para 18 as under:-
“The reason for immediate consideration of the
representation is too obvious to be stressed. The
personal liberty of a person is at stake. Any delay
would not only be an irresponsible act on the part of
the appropriate authority but also unconstitutional
because the Constitution enshrines the fundamental
right of a detenu to have his representation
considered and it is imperative that when the liberty
of a person is in peril immediate action should be
taken by the relevant authorities.”
Thereafter four principles that must be followed in regard to
consideration of the representation of a detenue were dealt with in
paragraph 20; the second principle being:-
“Secondly, the consideration of the representation of
the detenu by the appropriate authority is entirely
independent of any action by the Advisory Board
including the consideration of the representation of
the detenu by the Advisory Board.”
It was thus stated that the consideration of the representation must
be entirely independent of the action by the Advisory Board.
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The 4th principle put the obligation upon the appropriate
Government to consider the representation as :-
“the appropriate Government is to exercise its
opinion and judgment on the representation before
sending the case along with the detenu’s
representation to the Advisory Board.”
C) In Haradhan Saha16
, the qualitative difference between
consideration of the representation by the Government on one hand and
by the Advisory Board on the other, was clarified in para 24 as:-
“The Government considers the representation to
ascertain essentially whether the order is in
conformity with the power under the law. The Board,
on the other hand, considers whether in the light of
the representation there is sufficient cause for
detention.”
The cases where the representations were received before the
reference and after the reference were also dealt with in para 29 as :-
“If the representation of the detenu is received before
the matter is referred to the Advisory Board, the
detaining authority considers the representation. If a
representation is made after the matter has been
referred to the Advisory Board, the detaining
authority will consider it before it will send
representation to the Advisory Board.”
D) In Frances Coralie Mullin21, the principle that the consideration
by the Detaining Authority of the representation must be entirely
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independent of the hearing by the Board or its report was again stressed
with emphasis on “expedition being essential at every stage”
Para 7 of the decision explained the principles in Jayanarayan
Sukul15 as:-
“when it was said there that the Government
should come to its decision on the representation
before the Government forwarded the representation
to the Advisory Board, the emphasis was not on the
point of time but on the requirement that the
Government should consider the representation
independently of the Board.”
15. These decisions clearly laid down that the consideration of
representations by the appropriate Government by the Board would
always be qualitatively different and the power of consideration by the
appropriate Government must be completely independent of any action by
the Advisory Board. In para 12 of the decision in Pankaj Kumar
Chakrabarty18 it was stated that the obligation on part of the Government
to consider representation would be irrespective whether the
representation was made before or after the case was referred to the
Advisory Board. As stated in paragraph 18, this was stated so, as any
delay in consideration of the representation would not only be an
irresponsible act on part of the appropriate authority but also
unconstitutional. The contingency whether the representations were
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received before or after was again considered in para 29 of the decision in
Haradhan Saha16
. In terms of these principles, the matter of
consideration of representation in the context of reference to the Advisory
Board, can be put in following four categories:-
A) If the representation is received well before the reference is made
to the Advisory Board and can be considered by the appropriate
Government, the representation must be considered with expedition.
Thereafter the representation along with the decision taken on the
representation shall be forwarded to and must form part of the documents
to be placed before the Advisory Board.
B) If the representation is received just before the reference is made
to the Advisory Board and there is no sufficient time to decide the
representation, in terms of law laid down in Jayanarayan Sukul15 and
Haradhan Saha16 the representation must be decided first and thereafter
the representation and the decision must be sent to the Advisory Board.
This is premised on the principle that the consideration by the appropriate
Government is completely independent and also that there ought not to be
any delay in consideration of the representation.
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C) If the representation is received after the reference is made but
before the matter is decided by the Advisory Board, according to the
principles laid down in Haradhan Saha16, the representation must be
decided. The decision as well as the representation must thereafter be
immediately sent to the Advisory Board.
D) If the representation is received after the decision of the Advisory
Board, the decisions are clear that in such cases there is no requirement to
send the representation to the Advisory Board. The representation in such
cases must be considered with expedition.
16. There can be no difficulty with regard to the applicability of the
principles in the 1st and the 4th stage of the aforesaid categories. The
difficulty may arise as regards the application of principles at the 2nd and
the 3rd stage. But that difficulty was dealt with sufficient clarity in
Jayanarayan Sukul15 and Haradhan Saha16 as stated hereinabove. If it is
well accepted that the representation must be considered with utmost
expedition; and the power of the Government is completely independent
of the power of the Advisory Board; and the scope of consideration is also
qualitatively different, there is no reason why the consideration by the
Government must await the decision by the Advisory Board. None of the
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aforesaid cases even remotely suggested that the consideration must await
till the report was received from the Advisory Board.
17. However, it was for the first time that the decision in K.M.
Abdulla Kunhi6
laid down in paragraph 16 that it would be proper for the
Government in the two situations dealt with in said paragraph to await the
report of the Board; those two situations being:-
a) where the representation is received before the matter is referred
to the Advisory Board and where there may not be sufficient time to
dispose of the representation before referring the case to the Advisory
Board, and
b) where the representation is received after the case is referred to
the Advisory Board.
It was also laid down:-
“In both the situations there is no question of
consideration of the representation before the receipt of
report of the Advisory Board.”
18. Since the decision of this Court in K.M. Abdulla Kunhi6 was
rendered by the Constitution Bench of this Court after considering all the
earlier decisions on the point including those in Pankaj Kumar
Chakrabarty18
, Jayanarayan Sukul15 and Haradhan Saha16
, we are bound
by the principles laid down therein. When the learned counsel for the
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55
petitioner were so confronted, it was submitted by them that the decision in
K.M. Abdulla Kunhi6 dealt with the matter relating to the consideration of
representation by the appropriate Government and not in the context where
power of detention was exercised by a specially empowered officer as the
Detaining Authority. According to them, that would make a huge
difference and put the matter in a qualitatively different compass.
19. We now proceed to deal with these submissions.
20. At the outset it must be stated that in Pankaj Kumar
Chakrabarty18 and in Jayanarayan Sukul15 the orders of detention were
passed by the District Magistrates under Section 3(ii) of 1950 Act. The
relevant statutory provisions contemplated the concept of approval within
12 days of the passing of such orders of detention passed by the District
Magistrates. In Haradhan Saha16 power was exercised by the District
Magistrates under the provisions of the MISA, wherein similar concept of
approval on part of the State Government within 12 days of the passing of
the order of detention by the District Magistrate was contemplated. The
distinction on that count was noted by this Court in para 34 of the decision
in Kamleshkumar12
. The orders of detention in these decisions were not
passed by a specially empowered officer but by the concerned
Government. The same logic regarding deemed approval was extended
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
56
initially in Sushila Mafatlal Shah9
to cases where the orders of detention
were passed not by the concerned Government but by a specially
empowered officer. The matter was, however, corrected and the distinction
in that behalf was succinctly dealt with in Kamleshkumar12
.
21. It must also be borne in mind that in all cases, the appropriate
Government would be acting in two capacities; one while considering the
representation and the other while taking appropriate decision after a report
is received from the Advisory Board that there is sufficient cause for
detention. Since the decision would be required to be taken in these two
capacities, it was observed in K.M. Abdulla Kunhi6
that it would be proper
for the appropriate Government to wait till the report is received from the
Advisory Board in cases dealt with in paragraph 16 of the decision. But
such may not be the case with the Detaining Authority who is a specially
empowered officer.
22. A specially empowered officer who passes the order of detention,
in exercise of special empowerment, has no statutory role to play at the
stage when the report is received from the Advisory Board. The report is
to be considered by the appropriate Government and not by the specially
empowered officer. It may also be relevant at this stage to consider the
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
57
element of confidentiality associated with the report of the Advisory
Board. Section 8 of the COFEPOSA Act states:-
“8. Advisory Board.- For the purposes of sub-clause
(a) of clause (4), and sub-clause (c) of clause (7) of
article 22 of the Constitution,-
(a) The Central Government and each State
Government shall, whenever necessary, constitute
one or more Advisory Boards each of which shall
consist of a Chairman and two other persons
possessing the qualifications specified in subclause (a) of clause (4) of article 22 of the
Constitution;
(b) Save as otherwise provided in section 9, the
appropriate Government shall, within five weeks
from the date of detention of a person under a
detention order make a reference in respect thereof
to the Advisory Board constituted under clause (a)
to enable the Advisory Board to make the report
under sub-clause (a) of clause (4) of article 22 of
the Constitution;
(c) The Advisory Board to which a reference is made
under clause (b) shall after considering the
reference and the materials placed before it and
after calling for such further information as it may
deem necessary for the appropriate Government or
from any person called for the purpose through the
appropriate Government, or from the person
concerned, and if, in any particular case, it
considers it essential so to do or if the person
concerned desires to be heard in person, after
hearing him in person, prepare its report
specifying in a separate paragraph thereof its
opinion as to whether or not there is sufficient
cause for the detention of the person concerned
and submit the same within eleven weeks from the
date of detention of the person concerned;
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
58
(d) When there is a difference of opinion among the
members forming the Advisory Board the opinion
of the majority of such members shall be deemed
to be the opinion of the majority of such members
shall be deemed to be the opinion of the Board;
(e) a person against whom an order of detention has
been made under this Act shall not be entitled to
appear by any legal practitioner in any matter
connected with the reference to the Advisory
Board, and the proceedings of the Advisory Board
and its report, excepting that part of the report in
which the opinion of the Advisory Board is
specified, shall be confidential;
(f) in every case where the Advisory Board has
reported that there is in its opinion sufficient cause
for the detention of a person, the appropriate
Government may confirm the detention order and
continue the detention of the person concerned for
such period as it thinks fit and in every case where
the Advisory Board has reported that there is in its
opinion no sufficient cause for the detention of the
person concerned, the appropriate Government
shall revoke the detention order and cause the
person to be released forthwith.”
23. In terms of Section 8, the report of the Advisory Board is meant
only for the consumption of the appropriate Government and apart from
the operative part of the report which is to be specified in a separate
paragraph as per sub-section (c), the mandate in terms of sub-section (e) is
to keep the report of the Advisory Board completely confidential. Thus, a
specially empowered officer who may have passed the order of detention,
by statutory intent is not to be privy to the report nor does the statute
contemplate any role for such specially empowered officer at the stage of
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
59
consideration of the opinion of the Advisory Board. The report of the
Advisory Board may provide some qualitative inputs for the appropriate
Government but none to the specially empowered officer who acted as the
Detaining Authority. If that be so, would a specially empowered officer
who had passed the order of detention be bound by what has been laid
down by this Court in paragraph 16 of the decision in K.M. Abdulla
Kunhi6
in the context of the appropriate Government?
24. It must also be stated here that when K.M. Abdulla Kunhi6 was
decided on 23.01.1991, the decision that was holding the field as to the
role of a specially empowered officer who had passed an order of
detention, was one rendered in Sushila Mafatlal Shah9
. The law that was
holding the field was the concept of deemed approval as was explained in
Sushila Mafatlal Shah9 and any representation made to such specially
empowered officer who had passed the order of detention, in terms of the
decision in Sushila Mafatlal Shah9, could be considered by the appropriate
Government itself and not separately by such specially empowered officer.
The subsequent decision in Amir Shad Khan11 was rendered by a Bench of
three Judges on 09.08.1991 and the apparent conflict in the decisions
between Sushila Mafatlal Shah9 and Amir Shad Khan11 was resolved by
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
60
the Constitution Bench of this Court in Kamleshkumar12 rendered on
17.04.1995, i.e. well after the decision in K.M. Abdulla Kunhi6
.
25. Thus, if the law is now settled that a representation can be made to
the specially empowered officer who had passed the order of detention in
accordance with the power vested in him and the representation has to be
independently considered by such Detaining Authority, the concerned
principles adverted to in paragraph 16 of the decision in K.M. Abdulla
Kunhi6 would not be the governing principles for such specially
empowered officer. It must be stated that the discussion in K.M. Abdulla
Kunhi6 was purely in the context where the order of detention was passed
by the appropriate Government and not by the specially empowered
officer. The principle laid down in said paragraph 16 has therefore to be
understood in the light of the subsequent decision rendered by another
Constitution Bench of this Court in Kamleshkumar12
.
26. In the light of the aforesaid discussion, our answer to first two
questions is that the Detaining Authority ought to have considered the
representation independently and without waiting for the report of the
Central Advisory Board.
We now come to the 3rd question. The facts in the instant case
indicate that the comments of the Sponsoring Authority in respect of the
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
61
representation were already received by the Detaining Authority. After
receipt of letter on 27.11.2019 that the detenues were received in custody,
the time for considering the representation started ticking for the
Detaining Authority. But the representation was considered only on
14.01.2020 and the reason for such delayed consideration is that the report
of the Central Advisory Board was awaited. We have already found that
the Detaining Authority was obliged to consider the representation
without waiting for the opinion of the Central Advisory Board. Thus,
there was no valid explanation for non-consideration of the representation
from 27.11.2019 till 14.01.2020. We must, therefore, hold that complete
inaction on part of the Detaining Authority in considering the
representation caused prejudice to the detenues and violated their
constitutional rights.
27. We are conscious that the view that we are taking, may lead to
some incongruity and there could be clear dichotomy when the
representations are made simultaneously to such specially empowered
officer who had passed the order of detention and to the appropriate
Government. If we go by the principle in paragraph 16 in K.M. Abdulla
Kunhi6
it would be proper for the appropriate Government to wait till the
report was received from the Advisory Board, while at the same time the
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
62
specially empowered officer who had acted as the Detaining Authority
would be obliged to consider the representation with utmost expedition.
At times a single representation is prepared with copies to the Detaining
Authority namely the specially empowered officer and to the appropriate
Government as well as to the Advisory Board. In such situations there
will be incongruity as stated above, which may be required to be corrected
at some stage. However, such difficulty or inconsistency cannot be the
basis for holding that a specially empowered officer while acting as a
Detaining Authority would also be governed by the same principles as laid
down in paragraph 16 of K.M. Abdulla Kunhi6
.
28. Since there was complete inaction on part of the Detaining
Authority in the present case, to whom a representation was addressed in
dealing with the representation as stated above, we hold that the
constitutional rights of the detenues were violated and the detenues are
entitled to redressal on that count. We, therefore, allow this Writ Petition
and hold the continued detention of the detenues in terms of the Detention
Orders to be illegal, invalid and unconstitutional.
29. This Writ Petition is therefore allowed. The Detention Orders are
quashed and the detenues are directed to be set at liberty forthwith, unless
Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
63
their custody is required in connection with any other proceedings or
crime.
……………………….J.
[Uday Umesh Lalit]
……………………….J.
[Indu Malhotra]
New Delhi;
March 04, 2020.
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 362 OF 2019
ANKIT ASHOK JALAN .....APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. I have gone through the detailed judgment authored by Brother Justice
Lalit, but am unable to persuade myself to agree with the views
expressed by him. For the sake of brevity the facts are not repeated
here.
2. In my view, the decision in K. M. Abdulla Kunhi and B.L. Abdul
Khader v. Union of India and Others
1
covers the issue raised, as
once the matter has been sent to the Advisory Board, the
representation received thereafter is required to be forwarded to it as
well. However, the Detaining Authority retains its right to revoke this
detention order dehors the opinion of the Central Advisory Board.
1 (1991) 1 SCC 476
1
3. Section 3 of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 19742
empowers the Central Government, the
State Government or the specially empowered Officer of the rank not
below the rank of the Joint Secretary of the Central Government or
Secretary of the State Government, to make an order, directing a
person to be detained. The Detaining Authority has jurisdiction to
revoke the detention order in view of Section 21 of the General Clauses
Act, 18973
, whereas, an appropriate Government passes an order of
revocation of detention or confirmation of the order of detention on
receipt of the report of the Advisory Board. The consideration for the
Detaining Authority for revocation, is to see whether the detention
order is in conformity with the power under law whereas, the Advisory
Board considers the representation to examine whether there is
sufficient cause for detention. The consideration of the Advisory Board
is an additional safeguard and not a substitute for the consideration of
the representation by the appropriate Government.
4. The first part of the consideration of representation, as to whether the
order of detention is in conformity with power under the law, does not
make a distinction as to whether the Detaining Authority is the Central
or State Government or a specially empowered Officer in that behalf.
The consideration for detention by the Detaining Authority is confined
to examining whether the order of detention is in conformity with the
2 for short “COFEPOSA Act”
3 for short “1897 Act”
2
power under the law. On the other hand, the Advisory Board examines
if there is sufficient cause for detention. Therefore, once the
Government as a Detaining Authority is examining the representation
of the detenu for revocation of the detention order, it is only required
to examine whether such detention order is in conformity with power
under law, whereas, after the recommendation of the Advisory Board,
the Government would be examining whether there is sufficient cause
for detention. The exercise of jurisdiction by the Government, whilst
dealing with the representation as a detaining authority and whilst
considering the Advisory Board’s recommendation, is in two separate
and distinct spheres.
5. The Constitution Bench in Jayanarayan Sukul v. State of West
Bengal
4 considered the detention order under the Preventive
Detention Act, 1950. This Court in the aforesaid case, culled out four
principles to be followed with regard to the representation of detenu.
Such four principles have been recapitulated in the order passed by
the Hon’ble Justice Lalit. The power of detention under the aforesaid
Act was not vested under the State or Central Government but on the
District Magistrate or Additional District Magistrate specially
empowered by the State Government. The opinion of the Advisory
Board was required to be considered by the appropriate Government
who may either confirm the detention order or if in the opinion of the
Advisory Board, no sufficient cause for detention is found, then revoke
4 (1970) 1 SCC 219
3
the detention order. In this factual background, this Court held as
under:
“20. Broadly stated, four principles are to be followed in
regard to representation of detenus. First, the
appropriate authority is bound to give an opportunity to
the detenu to make a representation and to consider the
representation of the detenu as early as possible.
Secondly, the consideration of the representation of the
detenu by the appropriate authority is entirely
independent of any action by the Advisory Board
including the consideration of the representation of the
detenu by the Advisory Board. Thirdly, there should not
be any delay in the matter of consideration. It is true that
no hard and fast rule can be laid down as to the measure
of time taken by the appropriate authority for
consideration but it has to be remembered that the
Government has to be vigilant in the governance of the
citizens. A citizen’s right raises a correlative duty of the
State. Fourthly, ‘the appropriate Government is to
exercise its opinion and judgment on the representation
before sending the case along with the detenu’s
representation to the Advisory Board. If the appropriate
Government will release the detenu the Government will
not send the matter to the Advisory Board. If however
the Government will not release the detenu the
Government will send the case along with the detenu’s
representation to the Advisory Board. If thereafter the
Advisory Board will express an opinion in favour of
release of the detenu the Government will release the
detenu. If the Advisory Board will express any opinion
against the release of the detenu the Government may
still exercise the power to release the detenu.”
(Emphasis supplied)
6. The second part of the consideration of representation of the detenu
by the appropriate authority i.e. the Detaining Authority is entirely
independent and has no connection to the consideration by the
Advisory Board. It has been held that there should not be any delay in
4
the matter of consideration, but at the same time it has been stated
that there is no hard and fast rule that can be laid down as to the
time taken by the appropriate authority for consideration, however
the Government has to be vigilant with regard to the rights of the
citizens. Such rights raise a corelative duty on the State.
7. A two Judge Bench of this Court, in Vimalchand Jawantraj Jain v.
Shri Pradhan and Others
5
, examined a case where a specially
empowered officer of the State Government had passed a detention
order. The representation to seek revocation of the detention was
sent to such Officer as the Detaining Authority. The order confirming
the detention of the detenu was passed after considering the report
of the Advisory Board, by the detaining authority. The Advisory Board
reported that there were sufficient causes for the detention of the
detenu and after considering such report the order of detention was
confirmed. In these circumstances, it was argued that the order of
detention had been confirmed by the specially empowered Officer
without considering the representation of the detenu. The Bench
approved the earlier judgment of this Court in Khairul Haque v.
The State of W.B.
6
, wherein it was held as under:
“3……The fact that Article 22(5) enjoins upon the
Detaining Authority to afford to the detenu the earliest
opportunity to make a representation must implicitly
mean that such representation, must, when made, be
5 (1979) 4 SCC 401
6 W.P. No. 246 of 1969 decided on 10-9-69
5
considered and disposed of as expeditiously as possible,
otherwise, it is obvious that the obligation to furnish the
earliest opportunity to make a representation loses both
its purpose and meaning.”
8. This Court in Vimalchand Jawantraj Jain after quoting from Khairul
Haque’s case, held as under:
“4. There are thus two distinct safeguards provided to a
detenu; one is that his case must be referred to an
Advisory Board for its opinion if it is sought to detain him
for a longer period than three months and the other is he
should be afforded the earliest opportunity of making a
representation against the order of detention and such
representation should be considered by the Detaining
Authority as early as possible before any order is made
confirming the detention. Neither safeguard is dependent
on the other and both have to be observed by the
Detaining Authority. It is no answer for the Detaining
Authority to say that the representation of the detenu
was sent by it to the Advisory Board and the Advisory
Board has considered the representation and then made
a report expressing itself in favour of detention. Even if
the Advisory Board has glade a report stating that in its
opinion there is sufficient cause for the detention, the
State Government is not bound by such opinion and it
may still on considering the representation of the detenu
or otherwise, decline to confirm the order of detention
and release the detenu. The Detaining Authority is,
therefore, bound to consider the representation of the
detenu on its own and keeping in view all the facts and
circumstances relating to the case, come to its own
decision whether to confirm the order of detention or to
release the detenu.”
(Emphasis supplied)
9. In these circumstances, this Court held that the representation of the
detenu was not considered by the Detaining Authority before the
Advisory Board recommended confirmation of the order of the
6
detention, thus the Detaining Authority had failed to complete the
constitutional obligation imposed upon him in terms of Clause (5) of
Article 22.
10. In Frances Coralie Mullin v. W.C. Khambra and Others
7
an order
of detention was passed by the Administrator, Union Territory of Delhi.
It was found that the representation submitted by the detenu was
forwarded to the Advisory Board. Considering the case of
Jayanarayan Sukul, the two Judge Bench of this Court held as under:
“5…… We agree : (1) the Detaining Authority must
provide the detenu a very early opportunity to make a
representation, (2) the Detaining Authority must consider
the representation as soon as possible, and this,
preferably, must be before the representation is
forwarded to the Advisory Board, (3) the representation
must be forwarded to the Advisory Board before the
Board makes its report, and (4) the consideration by the
Detaining Authority of the representation must be
entirely independent of the hearing by the Board or its
report, expedition being essential at every stage. We,
however, hasten to add that the time-imperative can
never be absolute or obsessive. The Court's observations
are not to be so understood. There has to be lee-way,
depending on the necessities (we refrain from using the
word “circumstances”) of the case. One may well
imagine, a case where a detenu does not make a
representation before the Board makes its report making
it impossible for the Detaining Authority either to
consider it or to forward it to the Board in time or a case
where a detenu makes a representation to the Detaining
Authority so shortly before the Advisory Board takes up
the reference that the Detaining Authority cannot
consider the representation before then but may merely
forward it to the Board without himself considering it.
Several such situations may arise compelling departure
from the time-imperative. But no allowance can be made
7 (1980) 2 SCC 275
7
for lethargic indifference. No allowance can be made for
needless procrastination. But, allowance must surely be
made for necessary consultation where legal intricacies
and factual ramifications are involved. The burden of
explaining the necessity for the slightest departure from
the time- imperative is on the Detaining Authority.”
(Emphasis supplied)
11. The judgments of this Court in Vimalchand Jawantraj Jain and
Frances Coralie Mullin were considered by the Constitution Bench in
K. M. Abdulla Kunhi wherein, the judgment in Vimalchand
Jawantraj Jain, Khairul Haque and Om Prakash Bahl v. Union of
India
8 were overruled and that of Frances Coralie Mullin was
approved. The Constitution Bench held as under:
“11. It is now beyond the pale of controversy that the
constitutional right to make representation under Clause
(5) of Article 22 by necessary implication guarantees the
constitutional right to a proper consideration of the
representation. Secondly, the obligation of the
Government to afford to the detenu an opportunity to
make representation and to consider such representation
is distinct from the Government's obligation to refer the
case of detenu along with the representation to the
Advisory Board to enable it to form its opinion and send a
report to the Government. It is implicit in Clauses (4) and
(5) of Article 22 that the Government while discharging
its duty to consider the representation, cannot depend
upon the views of the Board on such representation. It
has to consider the representation on its own without
being influenced by any such view of the Board. The
obligation of the Government to consider the
representation is different from the obligation of the
Board to consider the representation at the time of
hearing the references. The Government considers the
representation to ascertain essentially whether the order
is in conformity with the power under the law. The Board,
8 W.P. NO. 845 of 1979 decided on October 15, 1979
8
on the other hand, considers the representation and the
case of the detenu to examine whether there is sufficient
case for detention. The consideration by the Board is an
additional safeguard and not a substitute for
consideration of the representation by the Government.
The right to have the representation considered by the
Government, is, safeguarded by Clause (5) of Article 22
and it is independent of the consideration of the detenu's
case and his representation by the Advisory Board under
cl. (4) of Article 22 read with Section 8(c) of the Act…..”
(Emphasis supplied)
12. Later, while considering the Frances Coralie Mullin case, the
Constitution Bench held that the time-imperative for consideration of
the representation of a detenu can never be absolute or obsessive, it
depends upon the necessities under which the representation is made.
If there is not enough time to dispose of the representation, the
representation may also be forwarded to the Advisory Board along with
the case of the detenu. This Court held as under:
“16. We agree with the observations in Frances Coralie
Mullin case. The time imperative for consideration of
representation can never be absolute or obsessive. it
depends upon the necessities and the time at which the
representation is made. The representation may be
received before the case is referred to the Advisory
Board, but there may not be time to dispose of the
representation before referring the case to the Advisory
Board. In that situation the representation must also be
forwarded to the Advisory Board along with the case of
the detenu. The representation may be received after the
case of the detenu is referred to the Board. Even in this
situation the representation should be forwarded to the
Advisory Board provided the Board has not concluded the
proceedings. In both the situations there is no question
of consideration of the representation before the receipt
9
of report of the Advisory Board. Nor it could be said that
the government has delayed consideration of the
representation, unnecessarily awaiting the report of the
Board. It is proper for the Government in such situations
to await the report of the Board. If the Board finds no
material for detention on the merits and reports
accordingly, the Government is bound to revoke the
order of detention. Secondly, even if the Board expresses
the view that there is sufficient cause for detention, the
Government after considering the representation could
revoke the detention. The Board has to submit its report
within eleven weeks from the date of detention. The
Advisory Board may hear the detenu at his request. The
Constitution of the Board shows that it consists of
eminent persons who are Judges or person qualified to
be Judges of The High Court. It is therefore, proper that
the Government considers the representation in the
aforesaid two situations only after the receipt of the
report of the Board. If the representation is received by
the Government after the Advisory Board has made its
report, there could then of course be no question of
sending the representation to the Advisory Board. It will
have to be dealt with and disposed of by the Government
as early as possible.”
(Emphasis supplied)
13. Later in the same judgment, it was held that there is no constitutional
mandate to consider the representation before confirming the order of
the detention. As long as, the Government i.e. the Detaining Authority
considers the representation without delay and without an unbiased
mind, there is no basis for concluding that there has been an absence
of independent consideration, before the confirmation of detention.
The Court held that there is no justification for imposing the restriction
on the power of the Detaining Authority. It was held as under:
10
“19. There is no constitutional mandate under Clause (5)
of Article 22, much less any statutory requirement to
consider the representation before confirming the order
of detention. As long as the Government without delay
considers the representation with an unbiased mind
there is no basis for concluding that the absence of
independent consideration is the obvious result if the
representation is not considered before the confirmation
of detention. Indeed, there is no justification for imposing
this restriction on the power of the Government. As
observed earlier, the Government's consideration of the
representation is for a different purpose, namely to find
out whether the detention is in conformity with the
power under the statute. This has been explained in
Haradhan Saha case, where Ray, C.J., speaking for the
Constitution Bench observed that the consideration of
the representation by the Government is only to
ascertain whether the detention order is in conformity
with the power under the law. There need not be a
speaking order in disposing such representation. There is
also no failure of justice by the order not being a
speaking order. All that is necessary is that there should
be real and proper consideration by the Government.”
(Emphasis supplied)
14. The Constitution Bench of this Court in K.M. Abdulla Kunhi further
examined the situation that if the detenu makes a representation after
his detention is confirmed according to the procedure laid down under
Section 8 of the COFEPOSA Act, the Government still has to consider
such representation and assess whether the detention is not within the
power conferred under the law. The Court held as under:
“20. The words 'shall afford him the earliest opportunity
of making a representation against the order' in clause
(5) of Article 22 suggest that the obligation of the
Government is to offer the detenu an opportunity of
making a representation against the order, before it is
confirmed according to the procedure laid down
under Section 8 of the Act. But if the detenu does not
11
exercise his right to make representation at that stage,
but presents it to the government after the Government
has confirmed the order of detention, the Government
still has to consider such representation and release the
detenu if the detention is not within the power conferred
under the statute. The confirmation of the order of
detention is not conclusive as against the detenu. It can
be revoked suo motu under Section 11 or upon a
representation of the detenu.”
(Emphasis supplied)
15. The aforesaid judgment arises out of the fact that the detention order
was passed by the Government, however, it will not make any
difference if the detention order had been passed by a specially
empowered Officer. The consideration for revocation of a detention
order is only whether such detention order conforms to the law. Such
consideration is applicable to all detaining authorities, be it the Central
Government or the State Government or any specially empowered
Officer of the two. No distinction can be drawn between a specially
empowered Officer or the State and Central Governments as the
consideration herein for revocation of a detention order is restricted to
whether or not the detention order conforms to the law.
16. Subsequently, the matter was again placed before the Constitution
Bench in Kamleshkumar Ishwardas Patel v. Union of India and
Others
9 on account of the divergent views in the State of
Maharashtra & Anr. v. Sushila Mafatlal Shah and others
10 and
9 (1995) 4 SCC 51
10 (1988) 4 SCC 490
12
Amir Shad Khan v. L. Hmingliana and Others
11
. It was held that
Clause (5) of Article 22 imposes a dual obligation on the authority
making the order of preventive detention. Firstly, to communicate to
the detenu as soon as may be, the grounds on which the order of
detention has been made; and secondly, to afford the detenu the
earliest opportunity of making a representation against the order of
detention. It was held that in terms of Section 21 of the 1897 Act, the
authority which has ordered the detention has the power to revoke the
same. Further, the detenu has the liberty to submit his representation
to the authority which is competent to revoke the detention. This Court
held as under:
“14. Article 22(5) must, therefore, be construed to mean
that the person detained has a right to make a
representation against the order of detention which can
be made not only to the Advisory Board but also to the
Detaining Authority, i.e., the authority that has made the
order of detention or the order for continuance of such
detention, who is competent to give immediate relief by
revoking the said order as well as to any other authority
which is competent under law to revoke the order for
detention and thereby give relief to the person detained.
The right to make a representation carries within it a
corresponding obligation on the authority making the
order of detention to inform the person detained of his
right to make a representation against the order of
detention to the authorities who are required to consider
such a representation.”
17. The Constitution Bench held that when a detention order has been
passed by an Officer specially empowered for that purpose, the detenu
11 (1991) 4 SCC 39
13
has a right to make a representation against the order of detention to
the said Officer. The failure of the Detaining Authority in considering
such representation results in the denial of the right conferred on the
detenu to make a representation against the order of detention. This
right of the detenu is in addition to his right to make a representation
to the State and the Central Government.
18. In Criminal Appeal Nos. 764-765 of 1994, the Constitution Bench of this
Court in Kamleshkumar Ishwardas Patel considered three questions
which were examined by the Full Bench of the Bombay High Court. The
first question was whether a specially empowered officer had an
independent power to revoke the order of detention. The second
question is not relevant for consideration in the present case. The third
question examined was whether the failure to take an independent
decision on the revocation of a detention order by the specially
empowered officer and merely forwarding the same with a
recommendation to reject, results in non-compliance with the
constitutional safeguard under Article 22(5) of the Constitution. The
order of the High Court on first question was confirmed and that on the
third question was set aside.
19. An argument was raised in respect of the third question that failure on
the part of the Detaining Authority to consider the representation of
the detenu results in a denial of the right of detenu to make a
representation recognized under Clause (5) of Article 22, which renders
14
the detention illegal. In the aforesaid case, it was found that the
representation of the detenu was not considered by the Officer making
the order of detention and the High Court erred in holding that the
failure on part of the Detaining Authority to consider and decide the
representation is not vital to the order of detention. Thus, the
aforesaid judgment is to the effect that the Detaining Authority is dutybound to consider the representation of the detenu which is a
constitutional mandate under Clause (5) of Article 22 of the
Constitution. Such representation has to be decided independently to
the recommendation of the Advisory Board and can be accepted
dehors the recommendation of the Advisory Board. Thus, the right of
detenu is to seek consideration of his representation by the Detaining
Authority, including the specially empowered Officer or by State or
Central Government. It is constitutionally mandated by Clause (5) of
Article 22. Further, as mentioned earlier, the Detaining Authority which
includes the State Government or the Central Government, examines
whether the detention order is in conformity with law whereas, the
appropriate government while considering the recommendation of the
Advisory Board examines whether there was sufficient cause for the
detention of the detenu. The appropriate government at that stage
examines the report of the Advisory Board in respect of the sufficiency
of material with regard to detention. The consideration by the
Detaining Authority is separate and distinct to the consideration of the
15
revocation of the detention order and the consideration by the
appropriate Government at the time of assessing the recommendation
of the Advisory Board. Thus, it is immaterial if the detention order was
passed by a specially empowered Officer or the State Government or
the Central Government as all such authorities have similar jurisdiction
to revoke the detention order. Clause (5) of Article 22 protects the right
of the detenu by giving him the right to submit representation, which is
required to be considered by the Detaining Authority, provided it is not
delayed without any reason. On the other hand, the detention of the
detenu beyond three months can be only on the basis of the report of
the Advisory Board in respect of sufficiency of material to detain the
detenu beyond the period of three months. Such right is conferred on
the detenu by clause (4) of Article 22 of the Constitution.
20. The judgment in K. M. Abdulla Kunhi had been examined by another
Division Bench judgment in Golam Biswas v. Union of India and
Another
12
, wherein the specially empowered Officer passed two orders
of detention. A representation was submitted seeking revocation of the
detention order. The consideration of detention of the detenu was
referred to the Advisory Board on 8.7.2014. The order of detention was
confirmed by the Central Government on 5.9.2014 and the
representation was rejected by the Central Government on 21.7.2014.
Thus, referring to K. M. Abdulla Kunhi and reiterating that there is
no time limit to dispose of the representation, this Court held as under:
12 (2015) 16 SCC 177
16
“14. As the quoted text would reveal, in essence, it was
reiterated that if a representation is received by an
appropriate authority and there is no time to dispose of
the same having regard to the time-frame fixed by the
Act for reference of the matter to the Advisory Board, the
representation must also be forwarded to the Advisory
Board along with the records of the detenu. This assumes
significance, in our comprehension, in view of the binding
nature of the opinion of the Advisory Board, in case, on a
consideration of the materials on record it decides to
hold against the detention. In case the Advisory Board
holds that the detention order is invalid, it is not open for
the appropriate Government to continue therewith and it
has to essentially revoke the same though the converse
may not be the same. In other words, if the Advisory
Board upholds the order of detention, it would still be
open to the Central Government, depending on the
merits of each case, to release the detenu. The fact that
the opinion of the Advisory Board against continuance of
the order of detention is final vis-à-vis the appropriate
Government, in our opinion, is the motivating imperative
for requiring the appropriate Government to forward the
pending representation to the Advisory Board so as to
enable it to traverse the entire panorama of grounds
taken against the detention order for an effective, timely
and meaningful consideration of the case of the detenu.
This requirement as has been essentially recognised and
mandated by two decisions of the Constitution Bench of
this Court, does not, in any way, undermine the
appropriate Government's authority to consider and
dispose of such representation of any detenu under the
preventive detention law. The right of the Central
Government or for that matter any appropriate
Government to consider and dispose of a representation
of a detenu, preventively detained, has to be
harmoniously construed with the obligation cast on it to
forward a pending representation to the Advisory Board
as has been consistently held in Jayanarayan Sukul
[Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 :
1970 SCC (Cri) 92] and K.M. Abdulla Kunhi [K.M. Abdulla
Kunhi v. Union of India, (1991) 1 SCC 476 : 1991 SCC
(Cri) 613]”
17
21. This Court held that the representation of the detenu was not
forwarded to the Advisory Board and instead rejected during the
pendency of the proceedings before the Advisory Board. Thus, the
Court was constrained to hold that the detention of the detenu was
constitutionally invalid. It was held as under:
“15. As admittedly, the detenu's representation dated 8-
7-2014, pending with the Central Government, the
appropriate Government in the case, was not forwarded
to the Advisory Board and was instead rejected during
the pendency of the proceedings before the Advisory
Board, we are constrained to hold that the detention of
the detenu is constitutionally invalid. The rejection of the
representation by the Central Government later on 21-7-
2014 during the pendency of the proceedings before the
Advisory Board is of no consequence to sustain the
detention. Consequently, the order of confirmation as
well is rendered non est by this vitiation. In view of the
determination made on the above aspect of the debate,
we do not consider it necessary to dilate on the other
pleas raised on behalf of the detenu. In the result, the
appeal succeeds. The impugned judgment and order is
set aside. The orders of detention as well as the order of
confirmation are hereby annulled. The detenu is directed
to be set at liberty, if not wanted in any other case.”
22. In view of the aforesaid judgment, I am of the opinion that once the
detention order has been made by any of the authorities competent to
detain in terms of Section 3 (1) of the COFEPOSA Act, the
representation to seek revocation of the detention order can be
considered and decided by the Detaining Authority dehors the decision
of the Advisory Board and the acceptance of recommendation by the
appropriate Government. The consideration for revocation of a
18
detention order is limited to examining whether the order conforms
with the provisions of law whereas the recommendation of the Advisory
Board is on the sufficiency of material for detention, which alone is
either confirmed or not accepted by the appropriate Government.
23. It would be a matter of prudence and propriety for the Detaining
Authority to defer the decision on the representation to revoke the
detention order, when the matter is being considered by the Advisory
Board, consisting of three Hon’ble sitting Judges of the High Court. The
consideration of the representation by the Detaining Authority in these
circumstances cannot be said to be delayed as the representation was
received after the matter was referred to the Advisory Board.
24. Thus, I do not find any merit in the present writ petition. The same is
dismissed.
……………………………..J
(HEMANT GUPTA)
NEW DELHI;
MARCH 4, 2020.
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