9911796707
TMI Blog1991 (8) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... hange and Prevention of Smuggling Activities Act, 1974 (hereinafter called 'the Act'). On the very next day after the receipt of the proposal the first respondent passed the impugned orders of detention against the two appellants. These orders were passed under sub-section (1) of section 3 of the Act with a view to preventing the appellants from smuggling goods and engaging in transporting, keeping and concealing the same. After these detention orders were passed on April 24, 1990 they were served on the appellants along with the grounds of detention and basic documents on which reliance was placed. By clauses (iii), (iv) and (v) of paragraph 43 of the grounds of detention the appellants were informed that they had a right to make a representation to (i) the State Government; (ii) the Central Government; and (iii) the Advisory Board against the detention orders, if they so desired. It was further stated that the representation to the State Government should be addressed to the Minister of State for Home Mantralaya, Bombay. They were informed that to facilitate expeditious consideration thereof the Superintendent of Jails may be requested to forward the same to the detaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default. On the question whether the fundamental right guaranteed by Article 22(5) of the Constitution was violated, the High Court observed as under: "So far we have not come across any authority of this court or of the Supreme Court wherein it has been ruled that despite this express communication to the detenu, if the detenu makes any representation, the Detaining Authority is under obligation under Article 22(5) of the Constitution to take out xerox copies of the same and forward to the State Government or the Central Government. We are afraid, we cannot infer such obligation on the Detaining Authority or the State Government under Article 22(5) of the Constitution. But, however, it is advisable that upon receipt of such representation from the detenu, the Detaining Authority may immediately inform the detenu about the procedure that he has to follow in forwarding representations to the State Government, the Central Government or the Advisory Board against the order of detention." It is this view of the High Court which was vehemently challenged before us by learned counsel for the appellants. In support of his contention counsel placed strong reliance on four decisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earliest opportunity of making a representation against the order." This clause casts a dual obligation on the Detaining Authority, namely, (i) to communicate to the detenu the grounds on which the detention order has been made; and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly violate the constitutional guarantee afforded to the detenu by clause (5) of Article 22 of the Constitution. It is by virtue of this right conferred on the detenu that the Detaining Authority considers it a duty to inform the appellant-detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the constitutional guarantee enshrined in Article 22(5) which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires. The necessity of casting a dual obligation on the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, 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. Subsection (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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacation was concerned with a more or less similar situation. In that case a detention order was passed by the State Government against which the detenu had made a representation to the said Government. By that representation he also prayed that his representation may be forwarded to the Central Government for being considered. That representation was disposed of by the State Government but it was not forwarded to the Central Government, notwithstanding the specific prayer of the detenu. The defence taken was that the detenu had himself sent a copy of his representation to the Central Government and, therefore, the Detaining Authority did not consider it necessary to forward the representation to the Central Government. The defence of the State Government was held to be wholly unacceptable on the following line of reasoning: "Section 11 of the Act confers a constitutional right on the detenu to have his representation considered by the Central Government. It is true that the Central Government has a discretion to revoke or confirm the detention but the detenu has undoubtedly a right that his representation should be considered by the Central Government for whatever worth it is. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as unaccountably deprived of a valuable right to defend and assert his fundamental right to personal liberty. Chandrachud. CJ. who spoke for the three-Judge Bench, observed as under: "But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenus. Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must, therefore, be held illegal and the detenu set free." In taking this view reliance was placed on an earlier decision of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which indicate that the detenu's right for consideration of his representation by the Central Government flows from Article 22(5), irrespective of the fact whether the representation is addressed to the Detaining Authority or to the Advisory Board or both. These observations though made in a different fact situation do support the submission made on behalf of the appellants. But counsel for the respondents argued that the observations were too broadly stated. It is not necessary for us to examine this contention as the earlier decisions are sufficient to uphold the appellants' contention. In the case before us the facts clearly show that the appellants had made a request to the Detaining Authority to take out copies of his representation and forward them to the State Government as well as the Central Government for consideration. Counsel for the Detaining Authority as well as the State Government contended that no such duty was cast on the said respondents to take out copies and forward them to the Central Government for consideration. Counsel for the Union of India contended that since no such representation had reached the Central Government there was no question of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Central Government, would it be just and fair to refuse to do so? In such circumstances refusal to accede to their request would be wholly unreasonable and in total disregard of the right conferred on the detenu by Article 22(5) of the Constitution read with section 11 of the Act. We are, therefore, of the opinion that the Detaining Authority as well as the State Government were not justified in taking a hyper-technical stand that they were under no obligation to take out copies of the representations and forward them to the Central Government. We think that this approach on the part of the Detaining Authority and the State Government has robbed the appellants of their constitutional right under Article 22(5) read with section 11 of the Act to have their representation considered by the Central Government. The request of the detenus was not unreasonable- On the contrary the action of the Detaining Authority and the State Government was unreasonable and resulted in a denial of the appellants' constitutional right. The impugned detention orders are, therefore, liable to be quashed. In the result we allow these appeals, set aside the order of the High Court and quash the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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