TMI Blog1991 (1) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... s not an independent consideration. - 508 of 1989 , 2009 of 1989 , 542 of 1989 , 2117 of 1989 - - - Dated:- 23-1-1991 - B.C. Ray, M.H. Kania, K. Jagannatha Shetty, L.M. Sharma and J.S. Verma, JJ. REPRESENTED BY: S/Shri Harjinder Singh, R.N. Joshi, A. Acharjee, Navin Malhotra, Jagan M. Rao and Raju Ramchandran, Advocates, for the Petitioners. S/Shri V.C. Mahajan, Sr. Adv. with B. Parthasarathy, P. Parmeswaran and M. Veerapha, Advocates, for the Respondents. [Judgment per: K. Jagannatha Shetty,J.]. A Division Bench of this Court while expressing the view that the decisions in V.J. Jain v. Shri Pradhan and Ors. -1979 (4) SCC 401 and Om Prakash Bahl v. Union of India and Ors. - W.P, No. 845 of 1979 decided on 15-10-1979 (Unreported) require re-consideration 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 Adviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations to the Government. The representations could not be immediately considered since they required translation and collection of information and comments from different authorities. In the meantime, the case was referred to the Advisory Board which had its meeting on 20 April 1989. The Board considered the case of the detenus and reported that there was sufficient cause for their detention. On 27 April 1989, the Government after accepting the report confirmed the detention orders of both the persons. On 7 May 1989, the Government considered and rejected the representation of Abdulla Kunhi and the same was communicated to him on 9 May 1989. The representation of Mohammed All was likewise considered and rejected on 6 May 1989. It appears he has made a similar representation to the Central Government which was also rejected on 23 May 1989. 4. The detention orders were challenged before the High Court of Karnataka by means of Writ Petitions under Article 226 of the Constitution. The High Court after examining all the contentions dismissed the writ petitions. SLP (Cri.) Nos. 2009 and 2117 of 1989 have been preferred against the judgment of the High Court questioning the correctness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional requirements. Section 3 of the Act provides power to make detention orders. Sub-section (1) speaks of authorities who are competent to make detention orders. Sub-section (2) states that when an order of detention is made by the State Government or by an officer empowered by the State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of that order. Sub-section (3) thereof provides that a person detained in pursuance of a detention order shall be furnished with the grounds of detention order as soon as may be, but ordinarily not later than five days after the detention. But in exceptional circumstances and for reasons to be recorded in writing, the grounds shall be furnished not later than fifteen days from the date of detention. 9. Section 8 of the Act provides for reference of the detenu s case to the Advisory Board, the Chairman and members of which shall possess the qualification specified in sub-clause (a) of Clause (4) of Article 22 of the Constitution. They must be persons who are, or have been, or are qualified to be appointed as Judges of a High Court. Clause (b) of Section 8 makes it obligatory for the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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, 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 Cl. (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 Art. 22 read with Section 8(c) of the Act. (See Sk. Abdul Karim Ors. v. State of West Bengal - 1969 (1) SCC 433; Pankaj Kumar Chakrabarty Ors. v. State of West Bengal - 1970 (1) SCR 543; Shayamal Chakraborty v. The Commissioner of Police, Calcutta and Anr. - 1969 (2) SCC 426; B. Sundar Rao and Ors. v. State of Orissa; - 1972 (3) SCC 11; John Martin v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 raised 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. 14. In Frances Cora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 through examination in consultation with investigation agencies and advisers on law. 16. We agree with the observations in Frances Coralie Mullin case - 1980 (2) SCC 275. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The decision in Khairul Haque case - W.P. No. 246/69 decided on 10-9-1969 (unreported) is, however, relevant. It is also unreported decision. The facts of the case and the principles stated therein may be furnished. There the petitioner was detained by an order dated 5 June 1969 of the District Magistrate, 24 Parganas, West Bengal, under Section 3(2) of the Preventive Detention Act, 1950. He was arrested and detained in Dum Dum Central Jail on 6 June 1969. The District Magistrate informed the State Government of his said order on 9 June 1969. On 14 June 1969, the Governor gave his approval and reported the case to the Central Government. On or about 23 June 1969, the Government received the representation of the petitioner. On 30 June 1969 the Governor referred the case of the petitioner to the Advisory Board. The Advisory Board made its report on 11 August 1969 to the effect that there was sufficient cause for the detention of the petitioner. Thereafter, on 12 August 1969, the Governor confirmed the order of detention. On 29 August 1969, the Governor rejected the petitioner s representation. The Court while referring these facts said that there was unaccounted delay of little m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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