TMI Blog2020 (6) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Detention Order dated 21st February, 2018 is hereby quashed and the detenue is directed to set at liberty forthwith - Petition allowed. - W.P.(CRL.) 3034/2019 - - - Dated:- 29-6-2020 - HON'BLE MR. JUSTICE J.R. MIDHA AND HON'BLE MR. JUSTICE BRIJESH SETHI Petitioner Through: Mr. Vikram Chaudhri, Senior Advocate with Mr. Harshit Sethi, Mr. Shubhankar Jha, Mr. Rahil Mahajan and Mr. Tushan Rawal, Advocates Respondents Through: Mr. Amit Mahajan, CGSC with Mr. Gitesh Chopra and Mr. Dhruv Pande, Advocates JUDGMENT (ORAL) 1. The petitioner has challenged the Detention Order dated 21st February, 2018 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act, 1974 ) on various grounds inter alia that the delay of 43 days by the Detainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner and the comments on his representation prepared in consultation with the Sponsoring Authority were sent to the Central Advisory Board on 28th November, 2019. 2.5 On 28th November, 2019, the respondents intimated the petitioner that his representation will be considered only after the receipt of the opinion of the Central Advisory Board in view of the judgment of the Supreme Court in Golam Biswas v. Union of India, (2015) 16 SCC 177. 2.6 On 05th December, 2019, the Central Advisory Board opined that there were sufficient grounds for detention of the petitioner. Based on the opinion of the Advisory Board, the Ministry confirmed the detention order on 16th December, 2019. 2.7 On 18th December, 2019, the Detaining Authority considered and rejected the representation of the petitioner dated 05th November, 2019. 3. Mr. Vikram Chaudhari, learned senior counsel for the petitioner urged at the time of the hearing that there was delay of 43 days on the part of the Detaining Authority to consider the petitioner s representation on the ground of awaiting the opinion of the Central Advisory Board which is violative of the fundamental rights of the petitioner under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Ashok Jalan (supra), it is submitted that the principles laid down by the Supreme Court fall in the category of Prospective Overruling i.e. the decision would not have retrospective operation. Reliance is placed on I.C.Golaknath v. State of Punjab, AIR 1967 SC 1643 and Baburam v. C.C. Jacob, (1999) 3 SCC 362. 5. Mr. Vikram Chaudhari, learned senior counsel for the petitioner refuted the submissions of the respondent. Learned senior counsel submits that the position of law is well settled ever since the judgment of the Constitution Bench in Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51 in which it was held that the Detaining Authority is bound to consider the representation without any delay. Both Golam Biswas (supra) as well as K.M. Abdullah Kunhi (supra) dealt with the power of the Government to defer the consideration of representation of the detenue to await the opinion of the Advisory Board. It is submitted that no judgment of the Supreme Court held that the Detaining Authority can defer the consideration of representation of the detenue to await the report of the Advisory Board. It is further submitted that the principles laid down by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether 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 Supreme Court held that the law on the first issue was well settled by the Constitution Bench judgment in Kamleshkumar (supra) that the Detaining Authority is obliged to consider the representation and the failure of the Detaining Authority to consider the same would violate the constitutional rights of the detenue. Para 18 of the judgment is reproduced hereunder: 18. With the judgment of the Constitution Bench of this Court in Kamleshkumar, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 received before or after was again considered in para 29 of the decision in Haradhan Saha. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 Kunhi would not be the governing principles for such specially empowered officer. It must be stated that the discussion in K.M. Abdulla Kunhi 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 Kamleshkumar. 43. 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. (Emphasis supplied) 16. Applying the aforesaid principles, the Supreme Court quashed the Detention Order on the ground that there was no valid explanation for awaiting the report of the Central Advisory Board and not considering the representation from 27th November, 2019 to 14th Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng rules can supposedly be laid down by different High Courts regarding the applicability of the law laid down by this Court in Gian Devi Anand's case (supra) or any other case. Such a situation cannot be permitted to arise. In the absence of any direction by this Court that the rule laid down by this Court would be prospective in operation the finding recorded by the High Court that the rule laid down in Gian Devi Anand's case (supra) by this Court would be applicable to the cases arising from the date of the judgment of this Court cannot be accepted being erroneous. 22. The petitioner has raised various other grounds to challenge the Detention Order. Since this case is squarely covered by Ankit Ashok Jalan (supra), it is not necessary to decide the other grounds urged by the petitioner. Conclusion 23. The petition is allowed, the Detention Order dated 21st February, 2018 is hereby quashed and the detenue is directed to set at liberty forthwith. 24. This Court appreciates the assistance rendered by learned counsels for both the parties who filed brief note of submissions and video clips of their oral arguments in terms of the order dated 01st June, 2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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