We -vs- Carona = Who is the winner ?

         
         We   -vs-  Carona = Who is the winner ?


Our PM & CM called us to donate

                                            just  21 days 

Can not we give our 21 days 

like Ayappa , Ramazan , Velanginima Dikshas 



We do nothing 

           just playing a hide & seek game at home 

With out going  to the notice of Carona Smartly


Allow our PM & CM to give a beautiful world 
         
                                              for our belongnings

                        --------------------------
                 మనమా ?      -Vs -       కరోనా ?


కరాళ గంటికలు మ్రోగిస్తూ  

                                       

                                   వస్తోంది కరోనా 



దాని కంటికి కనపడకుండా



                                      దాక్కోండి తెలివిగా 



చిన్న సత్యం తెలిసి 



                                తెలివిగా మసలుకోండి                



మనమంటేనే -- జనమంటారు  

జనమంటేనే --- జగమంటారు  


జగముంటేనే ---  మనముంటాము 

మనములేని --------- జగము శూన్యం 










                     


                           

Please observe Janatha Curfew on 22/03/2020 in response to the call of our beloved PM & CM with Regards

Please observe Janatha Curfew on 22/03/2020 in response to the call of our beloved PM & CM 


                                                     with Regards

whether a construction worker who is registered under the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 19961 and is a beneficiary of the Scheme made under the Rules framed pursuant to the enactment, is a ‘consumer’ within the meaning of Section 2(d) of the Consumer Protection Act 1986.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 2014 of 2020
(Arising out of SLP(C) No 2150 of 2020)
The Joint Labour Commissioner and
Registering Officer and Anr Appellants
Versus
Kesar Lal Respondent
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1 The neat issue which has to be adjudicated upon in this appeal is whether a
construction worker who is registered under the Building and Other Construction
Workers’ (Regulation of Employment and Conditions of Service) Act, 19961 and is a
beneficiary of the Scheme made under the Rules framed pursuant to the enactment, is a
‘consumer’ within the meaning of Section 2(d) of the Consumer Protection Act 1986. The
issue assumes significance because the answer will determine whether a beneficiary of
a statutory welfare scheme is entitled to exact accountability by invoking the remedies
under the Consumer Protection Act 1986.
1 Act of 1996
2
2 Parliament enacted the Act of 1996 “to regulate the employment and conditions of
service of building and other construction workers and to provide for their safety, health
and welfare measures and for other matters connected therewith or with incidental
thereto”. In pursuance of the rule-making powers conferred by Sections 40 and 62, the
Union Government has framed the Building and Other Construction Workers’ (Regulation
of Employment and Conditions of Service) Rules, 1998. The State of Rajasthan has also
framed the Rajasthan Building and Other Construction Workers (Regulation of
Employment and Conditions of Service) Rules in 20092
. In pursuance of the provisions
contained in Section 18, the State government constituted the Rajasthan Building and
Other Construction Workers Welfare Board. The Welfare Board has formulated several
schemes for beneficiaries registered under the Act. One of the schemes which was
formulated on 1 August 2011 is for rendering financial assistance on the occasion of the
marriage of a daughter of a beneficiary. The scheme envisages that financial assistance
of Rs 51,000 is provided on the occasion of marriage, subject to a limit of assistance on
two occasions.
3 The respondent obtained a Labour Beneficiary Identity Card on 29 December 2011
under the Welfare Board from the appellants after depositing the registration fee of Rs 25
and an annual contribution of Rs 60. The identity card was valid for a period of one year,
from 29 December 2011 to 28 December 2012. Seeking to avail financial aid under the
scheme, the respondent submitted an application on 6 November 2012 in anticipation of
2 Rules of 2009
3
the marriage of his daughter which was to take place on 24 November 2012. Nine months
after the application was submitted, the Joint Commissioner of Labour, Jaipur issued an
order of rejection covering 327 such applications, finding technical defects as a ground
for the decision. The order reads thus:
“Upon scrutiny of applications received in this office, following
points are found to be incomplete like incomplete application
form, incompleteness of certificate of the planner in Form ‘B’,
non-correctness of birth certificate, submission of application
after solemnization of marriage and non-submission of affidavit
or absence of some information in application and letter was
issued reminding to complete the details, and upon nonsubmission of any answer to that in the office, it is not possible
to grant the marriage assistance amount hence in following
matters (list of 327 cases is annexed) the application for the
marriage assistance are rejected.”
4 The respondent instituted a consumer complaint before the District Consumer
Disputes Redressal Forum3
. The complaint was dismissed on 6 October 2016. In appeal,
the State Consumer Disputes Redressal Commission4 set aside the order of the District
Forum on 20 August 2019 and directed the appellants to pay an amount of Rs 51,000 to
the respondent together with Rs 10,000 as compensation, Rs 5,000 for expenses and
interest of 18 per cent per annum from the date of the institution of the complaint. The
National Consumer Disputes Redressal Commission5 by its judgment and order dated
25 October 2019 affirmed the decision, overruling the objection that the respondent is not
a ‘consumer’ within the meaning of the Consumer Protection Act 1986. The National
Commission, however, reduced the rate of interest from 18 percent per annum to 9
3 District Forum
4 State Commission
5 National Commission
4
percent per annum. The present appeal has arisen from the order of the National
Commission.
5 On 27 January 2000, the appellants stated before this Court that the amount which
was awarded to the respondent would be paid. The appellants, however, pressed the
question of law. Instead of saddling the respondent who is a construction worker with the
insuperable burden of defending the proceedings before this Court, we requested Mr PV
Dinesh, learned counsel to assist the Court as amicus curiae. We wish to record our
appreciation of the able and objective assistance which has been rendered to the Court
by Mr PV Dinesh.
6 Dr Manish Singhvi, learned Senior Counsel appearing on behalf of the appellants,
urged the following submissions:
(i) Parliament enacted the Building and Other Construction Workers Welfare
Cess Act, 19966
. The cess which is collected under the Act is contributed to the
fund. The fund is defined both under the Cess Act of 1996 as well as the Act of
1996. The cess which is collected forms a part of the Welfare Board constituted
under Section 24(1). The collection of the cess which runs into thousands of crores
becomes part of the fund which is generated from the compulsory exaction from
employers who engage construction workers;
(ii) A circular was issued on 25 January 2011 by the State of Rajasthan for the
registration of construction workers. Under the circular, at the relevant point of
6 The Cess Act
5
time, an amount of Rs 25 was to be deposited as subscription fee for the
preparation of an identification card while Rs 60 per year was charged as a
contribution under Section 16(1) of the Act of 1996. On 24 November 2015 the
subscription was reduced to Re 1 per month (Rs 12 per annum) so as to comprise
of a payment of Rs 60 for a period of five years. This contribution is in the nature
of a token amount to ensure registration and identification of building workers who
can avail of the benefits under the Act of 1996 and even this contribution can be
relaxed under the proviso to Section 16(1) upon the satisfaction of the Board that
the beneficiary is unable to pay the contribution;
(iii) About 22,46,904 workers have been registered under the Act of 1996, out
of which about 64,678 have benefited under the scheme between 2010-11 and
2019-20. Out of a cess of Rs 2,671 crores which has been collected, about Rs
1,488 crores is expended for the welfare schemes. The welfare schemes are
funded by the cess and not by the contributions made under Section 16(1).
Between 2010 and 2020, the contribution of the workers is Rs 27.92 crores which
is meagre in comparison to the expenditure on the welfare schemes;
(iv) The welfare schemes initiated by the State government are to keep up with
the rapid expansion of welfare activities. The cess which is collected under the
Cess Act is for a specific purpose. The cess is nothing but a tax under Article
366(28) of the Constitution;
6
(v) Undoubtedly, where the state for its multifarious functions, charges a fee
and services are rendered on a quid pro quo basis, the activities of the State would
be amenable to the jurisdiction of a consumer forum when a complaint of
deficiency of service is made;
(vi) On the other hand, where the State commits itself to welfare schemes and
a negligible amount is charged in token of the services which are rendered, the
beneficiary of a service is not a ‘consumer’ within the meaning of Section 2(d) of
the Consumer Protection Act 1986. Such services are primarily financed out of
budgetary allocations. In the present case, though a service is rendered by the
Board, the expenditure on the welfare scheme is defrayed from the cess which is
collected and hence, is not a ‘service’ within the meaning of Consumer Protection
Act 1986;
(vii) In Bihar School Examination Board v Suresh Prasad Sinha7
(“Bihar
School Examination Board”) this Court held that where a statutory function was
being discharged by a public examination authority, a student aggrieved by the
evaluation of the answer was not a ‘consumer’ nor was the Board a ‘service
provider’. On a parity of reasoning, the Welfare Board is not a service provider
under the Consumer Protection Act 1986;
(viii) In the two decisions of this Court in Regional Provident Commissioner v
Shiv Kumar Joshi8
(“Shiv Kumar Joshi”) and Regional Provident Fund
7
(2009) 8 SCC 483
8
(2000) 1 SCC 98
7
Commissioner v Bhawani9
, it was held that the Regional Provident Fund
Commissioner is a service provider within the meaning of Section 2(1)(o) of the
Consumer Protection Act 1986. These decisions are sought to be distinguished on
the ground that the corpus of the EPF scheme is contributed by the employers and
the employees, there being no contribution by the State out of the tax revenues. In
a recent judgment of this Court in Ministry of Water Resources v Shreepat Rao
Kamde10 (“Shreepat Rao Kamde”) decided on 6 November 2019, it has been held
that a government servant who makes a contribution to the General Provident
Fund lies outside the purview of the Consumer Protection Act 1986; and
(ix) The edifice of the Consumer Protection Act 1986 is to codify a remedy for a
contractual or commercial transaction in substitution of the remedy of filing a civil
suit. The enactment of the Consumer Protection Act 1986 does not cover a
redressal mechanism for an injury which is caused absent a commercial or
business transaction. The Act will not cover the services provided by the State in
the discharge of its welfare functions which are highly subsidized or free.
7 Mr PV Dinesh, learned amicus curiae has, in his detailed written submissions,
controverted the logic of the approach which has been adopted by the appellants. Mr
Dinesh submits that the salient features of the Act and the Rules are as follows:
(i) A construction worker is a ‘beneficiary’ under the Act, Rules and the
Schemes which have been framed;
9
(2008) 7 SCC 111
10 Civil Appeal No 8472 of 2019
8
(ii) Under Section 12, every worker should be registered as a beneficiary.
Section 12(3) provides that an application must be submitted with documents
together with a fee not exceeding Rs 50 as may be prescribed;
(iii) Section 18 deals with the constitution of the State Welfare Board which is a
body corporate having perpetual succession and a common seal;
(iv) Section 24 requires the constitution of a Workers Welfare Fund into which
the contribution of the beneficiaries is credited. The provisions of Rules 28 and 43
implement Section 24.
(v) Under Rule 43(b), the contribution paid by a beneficiary forms a part of the
fund together with grants, loans, sums received by the Board and advances from
the Union or State Governments, local authorities and other resources as decided
by the Central or State Governments;
(vi) Rule 45 deals with the contribution to be made by each beneficiary and the
consequence of non-contribution;
(vii) Rules 58, 59 and 60 deal with the notification of various welfare schemes.
8 Based on the above provisions of the Act and the Rules, Mr PV Dinesh submitted
that:
(i) Every construction worker who is a beneficiary under the Act and the Rules
is a contributor to the workers’ welfare fund, and the service which is provided is
not gratuitous;
(ii) The welfare schemes which are implemented by the Board cannot be
construed as a sovereign function. The State Welfare Board is a body corporate
9
which is capable of suing and being sued;
(iii) Though the claims of benefits provided under the scheme are higher than
the contribution by the worker – beneficiary, this cannot be a reason to hold that it
is not a contribution;
(iv) In the context of the denial of insurance claims, this Court while construing
the provisions of Section 2(d) of the Consumer Protection Act 1986, has held in
Canara Bank v United India Insurance Company Limited11 (“Canara Bank”)
that even a beneficiary who is not a party to the contract is a ‘consumer’ under the
Act;
(v) In the present case, there was a gross deficiency of service on the part of
the appellants and the denial of benefits under the welfare scheme was casual and
mechanical. A poor construction worker was constrained to approach the
consumer court, faced with the rejection of his application on the specious ground
that it was not accompanied by an application for exemption from the procedural
requirement of submitting it 90 days before the marriage of his daughter. The
defect, if any, was curable and not fatal; and
(vi) The remedy under the Consumer Protection Act 1986 is a valuable provision
made by the Parliament to provide access to justice and the purpose embedded
in the Consumer Protection Act 1986 will be defeated if a construction worker is
required to approach a civil court or the writ jurisdiction under Article 226 to seek
relief of a small claim.
11 2020 SCC Online SC 132
10
In this context, reliance has been placed on the decisions in Lucknow Development
Authority v M.K. Gupta12 (“Lucknow Development Authority”), Shiv Kumar Joshi
and Punjab Urban Planning and Development Authority (now GLADA) v Vidya
Chetal13 (“Vidya Chetal”).
9 The rival submissions will now be analysed.
10 Before we deal with the specific issues of law which have been raised in these
proceedings, we begin with a reference to a judgment of a two Judge bench of this Court
in National Campaign Committee for the Central Legislation on Construction
Labour v Union of India14. The judgment of this Court took note of the status of the
implementation of the Act of 1996 and the Cess Act. Reviewing the status of
implementation across the country, Justice Madan B Lokur prefaced the judgment with
the following observations:
“Symbolic justice—there is nothing more to offer to
several millions of construction workers in the
unorganised sector—not social justice, not economic
justice. The reason is quite simple. No State Government
and no Union Territory Administration (UTA) seems
willing to fully adhere to and abide by (or is perhaps even
capable of fully adhering to and abiding by) two laws
solemnly enacted by Parliament, namely, the Building and
Other Construction Workers' (Regulation of Employment and
Conditions of Service) Act, 1996 (the BOCW Act) and the
Building and Other Construction Workers' Welfare Cess Act,
1996 (the Cess Act). Directions given by this Court from
time to time to implement the two laws have been flouted
with impunity. What is equally tragic is that multiple
directions issued even by the Government of India under
12 (1994) 1 SCC 243
13 (2019) 9 SCC 83
14 (2018) 5 SCC 607
11
Section 60 of the BOCW Act have been disregarded by State
Governments and UTAs — and this is candidly admitted in a
statement made by the learned Additional Solicitor General in
this Court and also by the Union of India on affidavit.
Hopefully, the gravity of the situation in the constitutional
and federal context, the human rights and social justice
context will be realised by someone, somewhere and at
some time.” (emphasis supplied)
The Court noted that more than Rs 37,400 crores has been collected for the benefit of
construction workers under the Cess Act of which only an amount of Rs 9,500 crores has
been utilized, ostensibly for their benefit. The Court emphasised that these laws were
enacted to implement the Directive Principles of State Policy contained in Articles 39 and
42 of the Constitution and for enforcing the right to life under Article 21. The Court
observed that monies which have been earmarked for construction workers had not been
spent, and a clear picture emerges about the shocking state of affairs in regard to the
welfare boards across the country. The Court noted:
“…Overall, the affidavits gave a clear picture of a shocking
state of affairs inasmuch as some Welfare Boards had
expenditure out of the collected cess for payment of entry
tax/value added tax, purchase of washing machines for
construction workers and purchase of laptops for
construction workers. This Court found that rather
astonishing since it appeared that there was no rationale in
providing washing machines and laptops to construction
workers who were by and large poor and uneducated as well
as migrant labour…” (emphasis supplied)
Adverting to the vulnerabilities of the construction workers, the Court noted:
“What makes the situation even worse is that many of the
construction workers are believed to be women and at least
some of them have small children to look after. That even they
12
are victims of official apathy truly reflects a very sad state of
affairs, and the loss already caused to them and other
construction workers cannot be remedied. The reason for this
is that it is not known which construction worker is entitled to
get how much in terms of money or what benefit and under
which scheme. Some of these construction workers from the
1990s and even later, may perhaps have unfortunately passed
away or might be untraceable or old enough to deserve a
pension. The question therefore is: what should be done with
the thousands of crores that have been collected for the benefit
of construction workers but cannot be utilised for their benefit?
Can the State Governments and the UTAs or the Welfare
Boards unjustly benefit and fill their coffers at the expense of
unknown and helpless construction workers, some of whom
are women and some having small children? These are
questions for which we have not been provided any answers
at all — it is entirely for the Government of India and Parliament
to decide how to legally appropriate these thousands of crores
of rupees and then utilise the amounts for the benefit of
construction workers, at least for the future, assuming nothing
can be done for the past. It is a mammoth task for which the
powers that be must brace themselves, if they are serious in
assisting people with multiple vulnerabilities.”
The position in the State of Rajasthan was specifically mentioned in the judgment with
regard to the failure to utilize the cess which was collected. The judgment noted that
though in 2011-12, an amount of Rs 154.01 crores was collected, no figures for
expenditure were submitted. For 2012-13, an amount of Rs 173.83 crores was collected
while the expenditure incurred for various schemes was only Rs 11.95 crores. In 2013-
14, an amount of Rs 251.95 crores was collected, of which only Rs 25.93 crores was
spent.
11 The appellants have been entrusted with the solemn duty of enforcing and
implementing the provisions of the welfare legislation which has been enacted by
Parliament specifically to ameliorate the plight of construction workers. Construction
13
workers belong to the unorganized sector of the economy. Many among them are
women. Child labour is rampant. Their vulnerabilities have been attempted to be
safeguarded by a law which unfortunately has not been implemented either in letter, or
in spirit. Yet, we have in the present case, the spectacle of a statutory welfare board
seeking to exempt itself from being held accountable to the remedies provided under the
Consumer Protection Act 1986. The submission which has been urged before the Court,
simply put, boils down to this: the beneficiaries of the service pay such a meagre amount
as contributions that they cannot be regarded as ‘consumers’ within the meaning of
Section 2(d) of the Consumer Protection Act 1986. That is the submission which now
falls for consideration.
12 Section 2(d) of the Consumer Protection Act 1986 provides as follows:
“(d) “consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or
promised or partly paid and partly promised, or under any
system of deferred payment and includes any user of such
goods other than the person who buys such goods for
consideration paid or promised or partly paid or partly
promised, or under any system of deferred payment when
such use is made with the approval of such person, but does
not include a person who obtains such goods for resale or for
any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which
has been paid or promised or partly paid and partly promised,
or under any system of deferred payment and includes any
beneficiary of such services other than the person who 8[hires
or avails of] the services for consideration paid or promised,
or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the
approval of the first mentioned person [but does not include a
person who avails of such services for any commercial
purpose];
[Explanation.—For the purposes of this clause, “commercial
purpose” does not include use by a person of goods bought
14
and used by him and services availed by him exclusively for
the purposes of earning his livelihood by means of selfemployment; ]”
In relation to a service, the definition of the expression incorporates in the first part any
person who hires or avails of any service for a consideration which has been paid or
promised (wholly or in part). In its latter component, the definition includes the beneficiary
of such a service other than the person who actually avails of the service for consideration
paid or promised, so long as such services are availed of with the approval of the person
who hires or avails of the service for consideration. The ambit of the first component of
the expression in Section 2(d)(ii) is expanded by the inclusive definition in the latter
component. This was noticed in the judgment of a two Judge bench of this Court in
Lucknow Development Authority where Justice RM Sahai, speaking for the Court,
explained the ambit of Section 2(d):
“It is in two parts. The first deals with goods and the other with
services. Both parts first declare the meaning of goods and
services by use of wide expressions. Their ambit is further
enlarged by use of inclusive clause. For instance, it is not only
purchaser of goods or hirer of services but even those who use
the goods or who are beneficiaries of services with approval of
the person who purchased the goods or who hired services are
included in it..”
Emphasising the accountability of public authorities, the Court observed:
“Under our Constitution sovereignty vests in the people. Every
limb of the constitutional machinery is obliged to be people
oriented. No functionary in exercise of statutory power can
claim immunity, except to the extent protected by the statute
itself. Public authorities acting in violation of constitutional or
statutory provisions oppressively are accountable for their
behavior before authorities created under the statute like the
commission or the courts entrusted with responsibility of
15
maintaining the rule of law. Each hierarchy in the Act is
empowered to entertain a complaint by the consumer for value
of the goods or services and compensation…”
In Shiv Kumar Joshi, a Bench of two learned Judges of this Court held that the
invocation of the remedies under the Consumer Protection Act 1986 is permissible
against the Provident Fund Commissioner by a member of the Employees’ Provident
Fund Scheme. The Court held that the Regional Provident Fund Commissioner
discharges a statutory function and is not delegated with any of the sovereign powers of
the State. In that context, the Court held:
“…The definition of “consumer” under the Act includes not only
the person who hires the “services” for consideration but also
the beneficiary, for whose benefits such services are hired.
Even if it is held that administrative charges are paid by the
Central Government and no part of it is paid by the employee,
the services of the Provident Fund Commissioner in running
the Scheme shall be deemed to have been availed of for
consideration by the Central Government for the benefit of
employees who would be treated as beneficiaries within the
meaning of that word used in the definition of “consumer”...”
The Court rejected the submission that the services which are provided under the EPF
Scheme are rendered free of charge and therefore, would not qualify as a service under
the Consumer Protection Act 1986. The same view has been reiterated by a Bench of
three learned Judges of this Court in Vidya Chetal. The reference before the three Judge
Bench arose upon a doubt having been expressed in regard to the correctness of the
decision of a two Judge Bench in HUDA v Sunita15
. The issue was whether the National
Commission lacks the jurisdiction to decide the legitimacy of a demand for a composition
15 (2005) 2 SCC 479
16
fee and an extension fee on a challenge that there was a deficiency in service. Referring
to the definition of the expression ‘service’ in Section 2(1)(o)16
, the Court held:
“This definition is not exhaustive, rather the legislature has left
the task to expound the provision on a case-to-case basis to
the judiciary. The purpose of leaving this provision open ended,
without providing an exhaustive list indicates the requirement
for a liberal interpretation. Broadly speaking, it is inclusive of all
those services performed for a consideration, except gratuitous
services and contract of personal services. Moreover, the
aforesaid provision reflects the legislative intent of providing
impetus to “consumerism”. It may be noted that such a
phenomenon has had a benevolent effect on the government
undertakings, wherein a new dynamism of innovation,
accountability and transparency are imbibed.”
Justice NV Ramana, speaking for the three Judge Bench, noted that all statutory
obligations are not sovereign functions. Although sovereign functions/services are
regulated and performed under a constitutional/statutory framework, yet there are other
functions, which may be statutory, but cannot be called as sovereign functions. The Court
held:
“..if the statutory authority, other than the core sovereign
duties, is providing service, which is encompassed under the
Act, then, unless any statute exempts, or provides for
immunity, for deficiency in service, or specifically provides for
an alternative forum, the consumer forums would continue to
have the jurisdiction to deal with the same. We need to caution
against over-inclusivity and the tribunals need to satisfy the
ingredients under Consumer Protection Laws, before
exercising the jurisdiction.”
16 2. (1)(o) “service” means service of any description which is made available to potential users and includes, but not
limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of
electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of
news or other information, but does not include the rendering of any service free of charge or under a contract of personal
service;”
17
In the view of the Court:
“Therefore, it is a clearly established principle that certain
statutory dues, such as fees, can arise out of a specific
relation. Such statutory dues might be charged as a quid pro
quo for a privilege conferred or for a service rendered by the
authority. As noted above, there are exactions which are for
the common burden, like taxes, there are dues for a specific
purpose, like cess, and there are dues in lieu of a specific
service rendered. Therefore, it is clear from the above
discussion that not all statutory dues/exactions are amenable
to the jurisdiction of the consumer forum, rather only those
exactions which are exacted for a service rendered, would be
amenable to the jurisdiction of the consumer forum.”
A Bench of two learned judges has in Canara Bank elaborated upon the width of the
definition contained in Section 2(d)(ii) in relation to the availing or hiring of services.
Justice Deepak Gupta, speaking for the Bench, held:
“..As far as the definition of the consumer in relation to hiring
or availing of services is concerned, the definition, in our view,
is much wider. In this part of the section, consumer includes
not only the person who has hired or availed of the services but
also includes any beneficiary of such services. Therefore, an
insured could be a person who hires or avails of the services
of the insurance company but there could be many other
persons who could be the beneficiaries of the services. It is not
necessary that those beneficiaries should be parties to the
contract of insurance. They are the consumers not because
they are parties to the contract of insurance but because they
are the beneficiaries of the policy taken out by the insured.”
The Court consequently came to the conclusion that a beneficiary of a service, in the
context of a contract of insurance, need not be a party to the contract. Beneficiaries fall
within the purview of the expression ‘consumer’.
18
In Bihar School Examination Board, the question before the Court was whether a
statutory School Examination Board falls within the purview of the Consumer Protection
Act 1986 when it performs a statutory function of conducting examinations. A two judge
Bench of this Court held that the fee paid by a student to the Board for the conduct of
examinations does not amount to a ‘consideration’ paid for a service. Justice Markandey
Katju, speaking for the Court observed:
“When the Examination Board conducts an examination in
discharge of its statutory function, it does not offer its “services”
to any candidate. Nor does a student who participates in the
examination conducted by the Board, hire or avail of any
service from the Board for a consideration. On the other hand,
a candidate who participates in the examination conducted by
the Board, is a person who has undergone a course of study
and who requests the Board to test him as to whether he has
imbibed sufficient knowledge to be fit to be declared as having
successfully completed the said course of education; and if so,
determine his position or rank or competence vis-à-vis other
examinees. The process is not, therefore, availment of a
service by a student, but participation in a general
examination conducted by the Board to ascertain whether
he is eligible and fit to be considered as having
successfully completed the secondary education course.
The examination fee paid by the student is not the
consideration for availment of any service, but the charge
paid for the privilege of participation in the examination.”
 (Emphasis supplied)
In Shreepat Rao Kamde, the issue before the Court was whether a subscriber to the
General Provident Fund fulfills the definition of being a ‘consumer’ within the meaning of
the Consumer Protection Act 1986. The issue had been considered in an earlier decision
of this Court in Jagmittar Sain Bhagat v Director, Health Services, Haryana17
, and
17 (2013) 10 SCC 136
19
was answered in the negative, holding that a government servant is entitled to claim
retiral benefits strictly in accordance with the regulations governing the conditions of
service and the statutory rules for which the appropriate forum for redressal would be the
State Administrative Tribunal, if any, or the civil court but not the consumer forum. It was
held thus:
“…it is evident that by no stretch of imagination can a
government servant raise any dispute regarding his
service conditions or for payment of gratuity or GPF or any
of his retiral benefits before any of the forum under the
Act. The government servant does not fall under the
definition of a “consumer” as defined under Section
2(1)(d)(ii) of the Act. Such government servant is entitled to
claim his retiral benefits strictly in accordance with his service
conditions and regulations or statutory rules framed for that
purpose. The appropriate forum, for redressal of any of his
grievance, may be the State Administrative Tribunal, if any, or
the civil court but certainly not a forum under the Act.”
 (Emphasis added)
This decision was followed by the two judge Bench in Shreepat Rao Kamde. Justice
Uday Umesh Lalit noted that in view of the earlier decision, a consumer complaint in
regard to the dues payable under the GPF was not amenable under the Consumer
Protection Act 1986.
13 Now it is in this context that it is necessary to briefly advert to the provisions of the
Act of 1996. The expression ‘beneficiary’ is defined in Section 2(b) to mean ‘a building
worker registered under Section 12’. The expression ‘fund’ is defined in Section 2(k) to
mean ‘the Building and Other Construction Workers Welfare Fund of a Board constituted
under sub-section (1) of Section 24’. Section 11 speaks of the beneficiaries of the fund:
20
“11. Beneficiaries of the Fund:-Subject to the provisions of
this Act, every building worker registered as a beneficiary
under this Act shall be entitled to the benefits provided by the
Board from its Fund under this Act.”
Hence, every building worker who is registered as a beneficiary under the enactment is
entitled to the benefits provided by the Board from the fund. Section 16 requires a building
worker who has been registered as a beneficiary to make a contribution:
“16. Contribution of building workers:- (1) A building worker
who has been registered as a beneficiary under this Act shall,
until he attains the age of sixty years, contribute to the Fund at
such rate per mensem, as may be specified by the State
Government, by notification in the Official Gazette and different
rates of contribution may be specified for different classes of
building workers:
Provided that the Board may, if satisfied that a beneficiary is
unable to pay his contribution due to any financial hardship,
waive the payment of contribution for a period not exceeding
three months at a time.
(2) A beneficiary may authorise his employer to deduct his
contribution from his monthly wages and to remit the same,
within fifteen days from such deduction, to the Board.”
The effect of a non-payment of the contribution under sub-section (1) of Section 16 for a
continuous period of not less than one year is that under Section 17 the individual ceases
to be a beneficiary. However, under the proviso, a person who is in default is allowed to
deposit the arrears if there was sufficient ground to satisfy the secretary of the Board in
regard to the non-payment of the contribution, upon which the registration is to stand
restored. Section 18 provides for the constitution of the State Welfare Boards. Section
22 provides for the functions of the Board in the following terms:
“22. Functions of the Boards:-(1) The Board may—
(a) provide immediate assistance to a beneficiary in case of
accident;
21
(b) make payment of pension to the beneficiaries who have
completed the age of sixty years;
(c) sanction loans and advances to a beneficiary for
construction of a house not exceeding such amount and on
such terms and conditions as may be prescribed;
(d) pay such amount in connection with premia for Group
Insurance Scheme of the beneficiaries as may be prescribed;
(e) give such financial assistance for the education of children
of the beneficiaries as may be prescribed;
(f) meet such medical expenses for treatment of major
ailments of a beneficiary or, such dependent, as may be
prescribed;
(g) make payment of maternity benefit to the female
beneficiaries; and
(h) make provision and improvement of such other welfare
measures and facilities as may be prescribed.
(2) The Board may grant loan or subsidy to a local authority
or an employer in aid of any scheme approved by the State
Government for the purpose connected with the welfare of
building workers in any establishment.
(3) The Board may pay annually grants-in-aid to a local
authority or to an employer who provides to the satisfaction of
the Board welfare measures and facilities of the standard
specified by the Board for the benefit of the building workers
and the members of their family, so, however that the amount
payable as grants-in-aid to any local authority or employer
shall not exceed—
(a) the amount spent in providing welfare measures and
facilities as determined by the State Government or any
person specified by it in this behalf, or
(b) such amount as may be prescribed.
whichever is less:
Provided that no grant-in-aid shall be payable in respect of
any such welfare measures and facilities where the amount
spent thereon determined as aforesaid is less than the
amount prescribed in this behalf.”
Under Section 24, the statute has provided for the constitution of a welfare fund into which
are credited (i) grants and loans made to the Board by the Central government; (ii)
contributions made by the beneficiaries; and (iii) sums received by the Board from other
22
sources as decided by the Central government. The fund is applied, under sub-section
(2) of Section 24 to meet the expenses of the Board in the discharge of its statutory
functions; towards payment of salaries, allowances and remuneration and for meeting
the expenses on objects and for purposes authorized by the Act. The Rules of 2009 have
been framed in terms of the provisions governing the rule making power. Rule 43
provides for the constitution of the welfare fund. Rule 44 provides for the registration of
building workers as beneficiaries. Rule 45 provides for contributions to the fund:
“45. Contribution to the Fund.-(1) A beneficiary of the fund
shall contribute to the fund at such rate per mensem as may
be notified by the State Government under section 16 of the
Act. This contribution shall be remitted in advance once in
three months in any of the banks specified by the Board in the
district in which the member resides.
(2) If a beneficiary commits default in the payment of
contribution continuously for a period of one year, he shall
cease to be beneficiary of the Fund. However, with the
permission of the Secretary or an officer authorized by him in
this behalf the membership may be resumed on repayment of
arrears of contribution with a fine of Rs 2 per month subject to
the condition that such resumption shall not be allowed more
than twice.”
Rule 52 provides for the expenditure from the fund. Under Rule 58, the Board is
empowered to notify schemes regarding benefits. The Board has been entrusted with
specific functions which have been defined in Section 22. These functions squarely fall
within the definition of the expression ‘service’ within the meaning of Section 2(1)(o) of
the Consumer Protection Act 1986. The expression ‘service’ has been defined in the
widest possible terms to mean ‘service of any description which is made available to
potential users’. The exception in Section 2(1)(o) is a service which is rendered free of
23
charge. The workers who are registered under the provisions of the Act of 1996 are
beneficiaries of the schemes made by the Board. Upon registration, every worker is
required to make a contribution to the fund at such rate per month as may be prescribed
by the State government. The fund into which the contributions by persons who are
registered under the Act are remitted, comprises among other sources, the contributions
made by the beneficiaries. The fund is applied inter alia for meeting the expenses
incurred to fulfill the objects and purposes authorized by the legislation. In view of the
statutory scheme, the services which are rendered by the Board to the beneficiaries are
not services which are provided free of charge so as to constitute an exclusion from the
statutory definition contained in Section 2(1)(o) and Section 2(d)(ii) of the Consumer
Protection Act 1986. The true test is not whether the amount which has been contributed
by the beneficiary is adequate to defray the entire cost of the expenditure envisaged
under the scheme. So long as the service which has been rendered is not rendered free
of charge, any deficiency of service is amenable to the fora for redressal constituted
under the Consumer Protection Act 1986. The Act does not require an enquiry into
whether the cost of providing the service is entirely defrayed from the price which is paid
for availing of the service. As we have seen from the definition contained in Section
2(1)(d), a ‘consumer’ includes not only a person who has hired or availed of service but
even a beneficiary of a service. The registered workers are clearly beneficiaries of the
service provided by the Board in a statutory capacity.
14 As a matter of interpretation, the provisions contained in the Consumer Protection
Act 1986 must be construed in a purposive manner. Parliament has provided a salutary
24
remedy to consumers of both goods and services. Public authorities such as the
appellants who have been constituted under an enactment of Parliament are entrusted
with a solemn duty of providing welfare services to registered workers. The workers who
are registered with the Board make contributions on the basis of which they are entitled
to avail of the services provided in terms of the schemes notified by the Board. Public
accountability is a significant consideration which underlies the provisions of the
Consumer Protection Act 1986. The evolution of jurisprudence in relation to the
enactment reflects the need to ensure a sense of public accountability by allowing
consumers a redressal in the context of the discharge of non-sovereign functions which
are not rendered free of charge. This test is duly met in the present case.
15 Consequently, and for the reasons that we have indicated, there is no reason to
interfere with the ultimate decision of the State Commission to award the claim, subject
to the modification of the rate of interest by the order of the National Commission. The
appeal shall accordingly stand dismissed. There shall be no order as to costs.

…………...…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
 [Ajay Rastogi]
New Delhi;
March 17, 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
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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
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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
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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
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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
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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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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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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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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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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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40
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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44
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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45
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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48
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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49
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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50
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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51
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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52
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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53
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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54
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
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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
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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;
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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
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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
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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
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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
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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
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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.
19