TMI Blog1979 (5) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... d against the validity of an order of detention dated 31st November, 1978 made by the first respondent who is the Secretary to the Government of Maharashtra, Home Department in exercise of the power conferred under sub-section (I) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act). The petitioner has urged several grounds before us but it is not necessary to refer to theme since there is one ground which is in our opinion sufficient to dispose of the petition in favour of the petitioner. To appreciate this ground, it is necessary to state a few facts. On 13th November, 1978, an order was made by the 1st respondent in exercise of the power conferred on him under sub-section (1) old section 3 of the Act directing the detention of the petitioner. Pursuant to the order of detention, the petitioner was arrested and he was immediately served with the grounds of detention which were embodied in a communication dated 13th November, 1978 addressed by the 1st respondent to the petitioner. The grounds of detention were quite elaborate and they alleged various smuggling activities against the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visory Board was fixed on 20th December, 1978, the representation of the petitioner was forwarded to the Advisory Board for its consideration. The Advisory Board reported to the 1st respondent that in its opinion there was sufficient cause for the detenion of the petitioner and this report was received by the 1st respondent on 6th January, 1979. The 1st respondent, after considering the report of the Advisory Board made an order dated 15th January, 1979 confirming the detention of the petitioner. The petitioner on these facts contended that the order confirming the detention of the petitioner was passed by the 1st respondent without considering the representation of the petitioner and the. detention of the petitioner was, therefore, unlawful as being in con travention of Article 22(S) of the Constitution. This contention has in our opinion great force and it must result in invalidation of the detention of the petitioner. It is now settled law that the power to preventively detain a person cannot be exercised except in accordance with the constitutional safegudards provided in clauses (4) and (S) of Article 22 and if any order of detention is made in violation of such safeguards, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of making a representation against the order of detention but the detaining authority should be free not to consider the representation before confirming the order of detention. That would render the safeguard enacted by he constitution- makers meaningless and futile. There can, therefore, be no doubt that the constitutional imperative enacted in clause (S) of Art. 22 requiring the earliest opportunity to be afforded to the detenu to make a representation carries with it by necessary implication a constitutional obligation on the detaining authority to consider the representation as early as possible before making an order confirming the detention. The detaining authority must consider the representation of the detenu and come to its own conclusion whether it is necessary to detain him. If the detaining authority takes the view, on considering the representation of the detenu, that it is not necessary to detain him, it would be wholly unnecessary for it to place the case of the detenu before the Advisory Board. The requirement of obtaining opinion E; of the Advisory Board is an additional safeguard over and above the safeguard afforded to the, detenu of Making a represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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. Here in the present case, the representation of the petitioner was received by the Home Department on 12th December, 1978 and it was immediately forwarded to the Advisory Board because the meeting of the Advisory Board was fixed on 20th December, 1978. The report of the Advisory Board stating that in its opinion there was sufficient cause for the detention of the petitioner was received by the 1st respondent on 6th January, 1979 and on the basis of this report, the 1st respondent confirmed the order of detention on 15th January, 1979. There is nothing on the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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