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2023 (4) TMI 651 - SC - Indian LawsDetention order - Smuggling - Gold - incongruity between the Pankaj Kumar case [1969 (5) TMI 56 - SUPREME COURT] and the Abdullah Kunhi Case [1991 (1) TMI 244 - SUPREME COURT], and if such a friction exists should the point of law be referred to a Larger Bench - friction between the two Constitutional judgments of this Court - illegible documents written in Chinese submitted to the appellant - grounds enough for quashing the impugned detention order or not? Whether there exists an incongruity between the Pankaj Kumar case and the Abdullah Kunhi Case and if such a friction exists should the point of law be referred to a Larger Bench? - HELD THAT:- The detention order under both laws can be passed either by the Government, or by the specially empowered officer. However, under Section 3 of the Preventive Detention Act, the specially empowered officer, within 12 days of the detention, has to seek for an approval from the Government for continued detention, and only if the Government approves the same can the detention be continued. This process of seeking an approval from the Government is essentially a transfer of power from the empowered officer to the Government, making the Government the detaining authority after the initial lapse of 12 days. In the COFEPOSA Act however, no such approval is required from the Government, and hence the detaining authority and the Government remain to be two separate bodies independent of each other. In the COFEPOSA Act, since the detaining authority is separate from the Government, both, the Pankaj Kumar Judgment [1969 (5) TMI 56 - SUPREME COURT] and the Abdullah Kunhi Judgment [1991 (1) TMI 244 - SUPREME COURT] would apply, but in different spheres - it can be clearly seen that any apparent conflict, as contended by the appellant, stands resolved, and both sets of judgments operate symbiotically and harmoniously within the said Act, without there existing any tension between them. The mandate to wait for the decision of the Advisory Board, as per the Pankaj Kumar Judgment [1969 (5) TMI 56 - SUPREME COURT], would apply to the central Government, however, the detaining authority, being independent of the Government, can pass its decision without the decision of he Advisory Board. Since no conflict exists, the need to refer the point of law to a Larger Bench also ceases, and hence we hold issue No.1 in favour of the Respondents. If there exists no friction between the two Constitutional judgments of this Court, can the impugned detention order be quashed on grounds of the 60-day delay in consideration of the representation made by the appellant? - HELD THAT:- In the present case at hand, the appellant-detenue, availing his rights sent a representation to both, the specially empowered officer and the Government. The detaining authority in the present case decided on the representation expeditiously and without waiting for the decision of the Advisory Board - the detaining authority, and the Government, have worked precisely within the procedure established by law, and hence the impugned detention order is not liable to be struck down on this ground - this Issue is held in favour of the respondent. Whether the illegible documents written in Chinese submitted to the appellant herein are grounds enough for quashing the impugned detention order? - HELD THAT:- In cases where illegible documents have been supplied to the detenue, a grave prejudice is caused to the detenue in availing his right to send a representation to the relevant authorities, because the detenue, while submitting his representation, does not have clarity on the grounds of his or her detention. In such a circumstance, the relief under Article 22(5) of the Constitution of India and the relevant statutory provisions allowing for submitting a representation are vitiated, since no man can defend himself against an unknown threat. The principle of parity is squarely applicable in this case, since another co-detenue with identical circumstances, has already been granted the relief of quashing the detention order against him. In the case of Gian Chand v. Union Of India & Anr, this Court while deciding on a quashing of a detention order, categorically held that in cases where a similarly placed co-detenue has already been granted the relief of a quashing of the detention order, the principle of parity must apply, and the same relief should be extended to other similarly placed detenues - issue decided in favour of the appellant. The preventive detention laws in India are a colonial legacy, and as such, are extremely powerful laws that have the ability to confer arbitrary power to the state. In such a circumstance, where there is a possibility of an unfettered discretion of power by the Government, this Court must analyze cases arising from such laws with extreme caution and excruciating detail, to ensure that there are checks and balances on the power of the Government - the impugned detention order is liable to be set aside - appeal allowed.
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