TMI Blog2020 (3) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... ake representation to the appropriate Governments against his detention. With the judgment of the Constitution Bench of this Court in KAMLESHKUMAR ISHWARDAS PATEL VERSUS UOI [1995 (4) TMI 283 - SUPREME COURT ], 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 that purpose either by the Central Government or the State Government, the person detained has a right to make a representation to the said officer; and the said officer is obliged to consider the said representation; and the failure on his part to do so would result in denial of the right conferred on the person detained to make a representation. Further, such right of the detenue has been taken to be in addition to the right to make the representation to the State Government and the Central Government. It must be stated that para 12 of the grounds of detention in the instant case, as quoted hereinabove, is in tune with the law so declared by this Court. 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 speciall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the report nor does the statute contemplate any role for such specially empowered officer at the stage of consideration of the opinion of the Advisory Board. The report of the Advisory Board may provide some qualitative inputs for the appropriate Government but none to the specially empowered officer who acted as the Detaining Authority. Once the detention order has been 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 consideration for revocation of a detention order is limited to examining whether the order conforms with the provisions of law whereas the recommendation of the Advisory Board is on the sufficiency of material for detention, which alone is either confirmed or not accepted by the appropriate Government. Petition dismissed. - WRIT PETITION (CRIMINAL) NO.362 OF 2019 - - - Dated:- 4-3-2020 - Justice Uday Umesh Lalit, Justice Indu Malhotra And Justice Hemant Gupta JUDGMENT U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments. (d) On 22.07.2019 representation dated 17.07.2019 made on behalf of both the detenues, addressed to the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue was received through the Presidency Correctional Home, Alipore, Kolkata. The representation stated inter alia:- 9 .(iii) To enable me to make an effective representation at the earliest opportunity, I may please be forthwith provided with a) a copy of the Retraction Petition of Shri Anand stated to be relied upon in the grounds of detention; b) a copy of the pen-drive or CD/DVD of the CCTV footage directed by the CMM to be submitted on 18th June, 2019 may please be provided to me and may please be shown to me on a laptop or any other device. 10. Kindly note that unless the aforesaid prayers are considered expeditiously, I am unable to make my final representation to the Central Government and the Advisory Board, etc. Therefore, the instant representation may please be considered as expeditiously as possible in true spirit of Article 22(5) read with Articles 14 21 of the Constitution of India. (e) On 24.07.2019, the representation was forwarded to the Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the representation would be considered only after the receipt of the opinion of the Central Advisory Board. It was submitted that the representation ought to be considered independently by the Detaining Authority and without waiting for the report of the Central Advisory Board; and that the delay in consideration of such representation violated the rights of the detenues guaranteed by the Constitution of India. Soon thereafter, another representation reiterating the stand as aforesaid was made by the Advocate for the detenues on 18.12.2019. 4. On 18.12.2019 notice was issued by this Court, whereafter, an affidavit in reply was filed on behalf of the respondents stating inter alia:- (a) On 06.01.2020 a report was submitted by the Central Advisory Board that there was sufficient cause for the detention of the detenues. (b) After considering the report of the Central Advisory Board and the other material on record, the Central Government confirmed the Detention Orders vide proceedings dated 14.01.2020. (c) On the same date i.e. 14.01.2020 the Detaining Authority, namely, Joint Secretary (COFEPOSA) rejected the representations dated 17.07.2019 and 18.12.2019 made on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of the Central Advisory Board. 8. In the instant case, the facts are clear that:- a) The Detaining Authority received a letter on 27.11.2019 that the detenues were received in custody. Thereafter the matter was again referred by the Central Government to the Central Advisory Board on 05.12.2019. The communication shows that it was decided that the representations would be considered only after receipt of the opinion of the Central Advisory Board. b) The opinion of the Central Advisory Board was submitted on 06.01.2020. On 14.01.2020 the Central Government confirmed the Detention Orders and on the same date the Detaining Authority rejected the representations. 9. Following questions therefore arise:- i) Whether 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 21 of the General Clauses Act, an order of detention is also available to be revoked or modified by authorities named in clauses (a) and (b) of Section 11(1) of the Act. Power conferred under clauses (a) and (b) of Section 11(1) of the Act could not be exercised by the named authorities under Section 21 of the General Clauses Act as these authorities on whom such power has been conferred under the Act are different from those who made the orders. Therefore, conferment of such power was necessary as Parliament rightly found that Section 21 of the General Clauses Act was not adequate to meet the situation. Thus, while not affecting in any manner and expressly preserving the power under Section 21 of the General Clauses Act of the original authority making the order, power to revoke or modify has been conferred on the named authorities. It was, thus, accepted that by virtue of Section 21 of 1897 Act, the authority making an order of detention would be entitled to revoke that order by rescinding it and that conferment of power under Section 11 of the COFEPOSA Act was done without affecting in any manner and expressly preserving the power under Section 21 of 1897 Act of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts officers and functionaries and that it cannot function by itself as an abstract body. Such being the case, even though Section 3(1) provides for an order of detention being made either by the Central Government or one of its officers or the State Government or by one of its officers, an order of detention has necessarily to be made in either of the situations only by an officer of the concerned government. It is in acceptance of this position we have to see whether an order of detention, if passed by an officer of the government specially empowered under Section 3(1) but not further empowered under Rules of Business of the government to act would have the effect of making the concerned officer the detaining authority and not the concerned government itself. The answer to the question has to be necessarily in the negative for the following reasons. It has been specifically provided in Section 2 (a) that irrespective of whether an order of detention is made by the Central Government or one of its duly authorised officers, the appropriate government as regard the detention order and the detenu will be the Central Government only and likewise whether an order of detention is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred on the State and the Central Government came to be construed and the court held that the power of revocation conferred on the appropriate government under Section 11 of the Act is independent of the power of confirming or setting aside an order of detention under Section 8(f) . It was further adumbrated as follows: (SCC p. 17, para 10) The power under Section 11(1)(b) may either be exercised on information received by the Central Government from its own sources including that supplied by the State Government under Section 3(2), or, from the detenu in the form of a petition or representation. It is for the Central Government to decide whether or not, it should revoke the order of detention in a particular case. The use of the words at any time under Section 11, gives the power of revocation an overriding effect on the power of detention under Section 3. These observations were made by the court when considering the question whether a detenu was entitled to concurrently make representations to the State Government and the Central Government against an order of detention passed by the State Government and whether in such circumstances the State Government co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion must be made to the authority which has the power to rescind or revoke the decision, if need be. Our search for the authority must, therefore, take us to the statute since the answer cannot be found from Article 22(5) of the Constitution read in isolation. As pointed out earlier that clause casts an obligation on the authority making the detention order to afford to the detenu an earliest opportunity to make a representation against the detention order. If we are to go by the statement in the grounds of detention our search for that authority would end since the grounds of detention themselves state the authorities to which the representation must be made. The question must be answered in the context of the relevant provisions of the law. Now as stated earlier by clause (5) of Article 22 a dual obligation is cast on the authority making the detention order one of which is to afford to the detenu an earliest opportunity of making a representation against the order which obligation has been met by informing the detenu in the grounds of detention to whom his representation should be addressed. But the authority to which the representation is addressed must have statutory backing. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unicated to the detenu. Thus the first part of the obligation cast by Article 22(5) is met by Section 3(3) of the Act. Section 8 provides for the Constitution of Advisory Boards. This section is clearly to meet the obligation of sub-clause (a) of clause (4) and subclause (c) of clause (7) of Article 22 of the Constitution. Section 8(f) which has some relevance provides that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate government shall revoke the detention order and cause the person to be released forthwith. This provision clearly obliges the appropriate government to order revocation of the detention order if the Advisory Board reports want of sufficient cause for detention of that person. Then comes Section 11 which reads as under: 11. Revocation of detention orders.- (1) Without prejudice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to do so under Section 21 of the General Clauses Act but if the Central Government desires to revoke any order passed by the State Government or its officer it can do so only under clause (b) of Section 11(1) of the Act and not under Section 21 of the General Clauses Act. This clarifies why the power under Section 11 is conferred without prejudice to the provisions of Section 21 of the General Clauses Act. Thus on a conjoint reading of Section 21 of the General Clauses Act and Section 11 of the Act it becomes clear that the power of revocation can be exercised by three authorities, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government. The power of revocation conferred by Section 8(f) on the appropriate Government is clearly independent of this power. It is thus clear that Section 8(f) of the Act satisfies the requirement of Article 22(4) whereas Section 11 of the Act satisfies the requirement of the latter part of Article 22(5) of the Constitution. The statutory provisions, therefore, when read in the context of the relevant clauses of Article 22, make it clear that they are intended to satisfy the constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention. 14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in Jayanarayan Sukul (1970) 1 SCC 219 [Jayanarayan Sukul vs. State of West Bengal] , Haradhan Saha (1975) 3 SCC 198 [Haradhan Saha vs. The State of West Bengal and others] and John Martin (1975) 3 SCC 836 have failed to notice that in these cases the Court was considering the matter in the light of the provisions contained in Section 7(1) of the Preventive Detention Act, 1950, whereby it was prescribed that the representation was to be made to the appropriate Government. The observations regarding consideration of the representation by the State Government in the said decisions have, therefore, to be construed in the light of the said provision in the Preventive Detention Act and on that basis it cannot be said that Article 22(5) does not postulate that the person detained has no right to make a representation to the authority making the order of detention. 33. The second premise that the Central Government becomes the detaining authority since there is deemed approval by the Government of the order made by the officer specially empowered in that regard from the time of its issue, runs counter to the scheme of the COFEPOSA Act and the PIT NDPS Act which differs from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment because the report has to be forwarded to the Central Government in respect of both such orders. No such report is required to be forwarded to the Central Government in respect of an order made by an officer specially empowered by the Central Government. Requirement regarding forwarding of the report contained in Section 3(2) of the COFEPOSA Act and the PIT NDPS Act cannot, therefore, afford the basis for holding that an order made by an officer specially empowered by the Central Government or the State Government acquires deemed approval of that Government from the date of its issue. Approval, actual or deemed, postulates application of mind to the action being approved by the authority giving approval. Approval of an order of detention would require consideration by the approving authority of the grounds and the supporting material on the basis of which the officer making the order had arrived at the requisite satisfaction for the purpose of making the order of detention. Unlike Section 3(4) of the National Security Act there is no requirement in the COFEPOSA Act and the PIT NDPS Act that the officer specially empowered for the purpose of making of an order of detention mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indication to the contrary is given in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act which preserve the power of such officer to revoke the order that was made by him. This means that the officer does not go out of the picture after he has passed the order of detention. It must, therefore, be held that the officer specially empowered for that purpose continues to be the detaining authority and is not displaced by the Government concerned after he has made the order of detention. Therefore, by virtue of his being the detaining authority he is required to consider the representation of the person detained against the order of detention. 36. It appears that the decision in Ibrahim Bachu Bafan (1985) 2 SCC 24 , a decision of a Bench of three Judges, was not brought to the notice of the learned Judges deciding Sushila Mafatlal Shah (1988) 4 SCC 490 . For the reasons aforementioned we are of the view that the decision in Sushila Mafatlal Shah (1988) 4 SCC 490 insofar as it holds that where an order of detention made by an officer specially empowered for the purpose, representation against the order of detention is not required to be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government. It must be stated that para 12 of the grounds of detention in the instant case, as quoted hereinabove, is in tune with the law so declared by this Court. 13. We now move to the second issue and consider the decisions of this Court on the point:- A) In Pankaj Kumar Chakrabarty and others vs. The State of West Bengal (1969) 3 SCC 400 = (1970) 1 SCR 543 a Constitution Bench of this Court considered the matter where orders of detention were passed by the District Magistrates under Section 3(1)(a)(ii) and (iii) read with Section 3(2) of 1950 Act - The Preventive Detention Act, 1950. As stated in paragraph 2 of the decision, the case of the detenue was placed before the Advisory Board on 21.09.1968. A representation against the order of detention was made to the State Government on 21.10.1968. An opinion was given by the Advisory Board on 06.11.1968 that there was sufficient cause for detention of the person concerned, whereafter the order was confirmed on 11.11.1968. While in the case considered in paragraph 4, the representation was made after the case was referred to the Advisory Board. In the light of these facts, following two questions were framed:- 6. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make a representation and communicate the same to the Board. But what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board? If Counsel s contention were to be right the representation in such cases would not have to be considered either by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation, clause 5 does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases. In our view it is clear from clauses 4 and 5 of Article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representation. Section 13 also furnishes an answer to the argument of Counsel for the State. Under that section the State Government and the Central Government are empowered to revoke or modify an order of dentention. That power is evidently provided for to enable the Government to take appropriate action where on a representation made to it, it finds that the order in question should be modified or even revoked. Obviously, the intention of Parliament could not have been that the appropriate Government should pass an order under Section 13 without considering the representation which has under Section 7 been addressed to it. 12. For the reasons aforesaid we are in agreement with the decision in Sk. Abdul Karim case. Consequently, the petitioners had a constitutional right and there was on the State Government a corresponding constitutional obligation to consider their representations irrespective of whether they were made before or after their cases were referred to the Advisory Board and that not having been done the order of detention against them cannot be sustained. In this view it is not necessary for us to examine the other objections raised against these orders. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich a representation of a detenu should be dealt with save and except that it is a constitutional right of detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in the words of Shelat, J., who spoke for this Court in the case of Khairul Haque - W.P. No.246 of 1969, decided on 10-9-69 It is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning . 20. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. The constitution of the Board observes the fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenu all the rights which are guaranteed by Article 22(5). 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 whether in the light of the representation there is sufficient cause for detention. (Emphasis Added) 29. Principles of natural justice are an element in considering the reasonableness of a restriction where Article 19 is applicable. At the stage of consideration of representation by the State Government, the obligation of the State Government is such as Article 22(5) implies. Section 8 of the Act is in complete conformity with Article 22(5) because this section follows the provisions of the Constitution. If the representation of the detenu is received before the matter is referred to the Advisory Board, the detaining authority conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Advisory Board before the Board makes its report, and (4) the consideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage. We, however, hasten to add that the time-imperative can never be absolute or obsessive. The Court s observations are not to be so understood. There has to be lee-way, depending on the necessities (we refrain from using the word circumstances ) of the case. One may well imagine a case where a detenu does not make a representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case. where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before then but may merely forward it to the Board without himself considering it. Several such situations may arise compelling departure from the time-imperative. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etenu. The government forwarded the detenu s representation to the Advisory Board. The Advisory Board considered the case of the detenu and also the representation and submitted report expressing the opinion that there was sufficient cause for the detention of the person. The government after considering that report confirmed the order of detention. It appears that the representation of the detenu was not considered before confirming the detention order and it came to be considered and rejected only thereafter. In V.J. Jain case (1979) 4 SCC 401 this Court observed that the representation of the detenu should be considered by the detaining authority as early as possible before any order is made confirming the detention. The confirmation of the detention order without the consideration of representation would be invalid and the subsequent consideration of the representation would not cure the invalidity of the order of confirmation. This view has been reiterated in the unreported judgment in Om Prakash Bahl case - W.P. No.845 of 1979, decided on October 15, 1979 . In that case the detention orders were passed by the State Government under Section 3(1)(iv) of the COFEPOSA A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board met, unless it was done in a great and undue haste. After obtaining the comments of the customs authorities, it was found necessary to take legal advice as the representation posed many legal and constitutional questions, so, after consultation 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 thorough examination in consultation with investigation agencies and advisers on law. 16. We agree with the observations in Frances Coralie Mullin case. 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 recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, where Ray, C.J., speaking for the Constitution Bench observed that the consideration of the representation by the government is only to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking order in disposing of such representation. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Board on 18.07.2014 which reported on 27.08.2014 that there was sufficient cause for detention. Thereafter, the detention was confirmed on 05.09.2014. In the meantime, the representation which was pending with the Central Government, was rejected on 21.07.2014. A bench of two Judges of this Court considered the submission in paragraph 11 and 15 as under:- 11. To start with the dates setting out the intervening events are not in dispute. To repeat, the detenu had submitted his representation on 8-7-2014 and the same was pending consideration on merit before the Central Government on 18-7-2014, the date on which the matter was remitted to the Advisory Board under the Act. The representation was rejected on 21-7-2014 when the matter was pending before the Advisory Board. The Advisory Board concluded its proceedings and gave a finding sustaining the order of detention on 27-8-2014. Unmistakably, thus, the detenu s representation which was pending at the time of remittance of the matter to the Advisory Board was not forwarded to it and instead was rejected by the Central Government during the pendency of the proceedings before the Advisory Board. 15. As admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities. Thereafter four principles that must be followed in regard to consideration of the representation of a detenue were dealt with in paragraph 20; the second principle being:- Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. It was thus stated that the consideration of the representation must be entirely independent of the action by the Advisory Board. The 4th principle put the obligation upon the appropriate Government to consider the representation as :- 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. C) In Haradhan Saha (1975) 3 SCC 198, the qualitative difference between consideration of the representation by the Government on one hand and by the Advisory Board on the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in Haradhan Saha (1975) 3 SCC 198. 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 terms of law laid down in Jayanarayan Sukul (1970) 1 SCC 219 and Haradhan Saha (1975) 3 SCC 198 the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation. C) If the repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those in Pankaj Kumar Chakrabarty (1969) 3 SCC 400 = (1970) 1 SCR 543, Jayanarayan Sukul (1970) 1 SCC 219 and Haradhan Saha (1975) 3 SCC 198, we are bound by the principles laid down therein. When the learned counsel for the petitioner were so confronted, it was submitted by them that the decision in K.M. Abdulla Kunhi (1991) 1 SCC 476 dealt with the matter relating to the consideration of representation by the appropriate Government and not in the context where power of detention was exercised by a specially empowered officer as the Detaining Authority. According to them, that would make a huge difference and put the matter in a qualitatively different compass. 19. We now proceed to deal with these submissions. 20. At the outset it must be stated that in Pankaj Kumar Chakrabarty (1969) 3 SCC 400 = (1970) 1 SCR 543 and in Jayanarayan Sukul (1970) 1 SCC 219 the orders of detention were passed by the District Magistrates under Section 3(ii) of 1950 Act. The relevant statutory provisions contemplated the concept of approval within 12 days of the passing of such orders of detention passed by the District Magistrates. In Haradhan Saha16 power was exercised by the District Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f article 22 of the Constitution; (b) Save as otherwise provided in section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of article 22 of the Constitution; (c) The Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary for the appropriate Government or from any person called for the purpose through the appropriate Government, or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned; (d)When there is a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho had passed an order of detention, was one rendered in Sushila Mafatlal Shah (1988) 4 SCC 490. The law that was holding the field was the concept of deemed approval as was explained in Sushila Mafatlal Shah (1988) 4 SCC 490 and any representation made to such specially empowered officer who had passed the order of detention, in terms of the decision in Sushila Mafatlal Shah (1988) 4 SCC 490, could be considered by the appropriate Government itself and not separately by such specially empowered officer. The subsequent decision in Amir Shad Khan (1991) 4 SCC 39 was rendered by a Bench of three Judges on 09.08.1991 and the apparent conflict in the decisions between Sushila Mafatlal Shah9 and Amir Shad Khan (1991) 4 SCC 39 was resolved by the Constitution Bench of this Court in Kamleshkumar (1995) 4 SCC 51 rendered on 17.04.1995, i.e. well after the decision in K.M. Abdulla Kunhi (1991) 1 SCC 476. 25. Thus, if the law is now settled that a representation can be made to the specially empowered officer who had passed the order of detention in accordance with the power vested in him and the representation has to be independently considered by such Detaining Authority, the concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority would be obliged to consider the representation with utmost expedition. At times a single representation is prepared with copies to the Detaining Authority namely the specially empowered officer and to the appropriate Government as well as to the Advisory Board. In such situations there will be incongruity as stated above, which may be required to be corrected at some stage. However, such difficulty or inconsistency cannot be the basis for holding that a specially empowered officer while acting as a Detaining Authority would also be governed by the same principles as laid down in paragraph 16 of K.M. Abdulla Kunhi (1991) 1 SCC 476. 28. Since there was complete inaction on part of the Detaining Authority in the present case, to whom a representation was addressed in dealing with the representation as stated above, we hold that the constitutional rights of the detenues were violated and the detenues are entitled to redressal on that count. We, therefore, allow this Writ Petition and hold the continued detention of the detenues in terms of the Detention Orders to be illegal, invalid and unconstitutional. 29. This Writ Petition is therefore allowed. The Detention Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g whether the order of detention is in conformity with the power under the law. On the other hand, the Advisory Board examines if there is sufficient cause for detention. Therefore, once the Government as a Detaining Authority is examining the representation of the detenu for revocation of the detention order, it is only required to examine whether such detention order is in conformity with power under law, whereas, after the recommendation of the Advisory Board, the Government would be examining whether there is sufficient cause for detention. The exercise of jurisdiction by the Government, whilst dealing with the representation as a detaining authority and whilst considering the Advisory Board s recommendation, is in two separate and distinct spheres. 5. The Constitution Bench in Jayanarayan Sukul v. State of West Bengal (1970) 1 SCC 219 considered the detention order under the Preventive Detention Act, 1950. This Court in the aforesaid case, culled out four principles to be followed with regard to the representation of detenu. Such four principles have been recapitulated in the order passed by the Hon ble Justice Lalit. The power of detention under the aforesaid Act was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of consideration, but at the same time it has been stated that there is no hard and fast rule that can be laid down as to the time taken by the appropriate authority for consideration, however the Government has to be vigilant with regard to the rights of the citizens. Such rights raise a corelative duty on the State. 7. A two Judge Bench of this Court, in Vimalchand Jawantraj Jain v. Shri Pradhan and Others (1979) 4 SCC 401, examined a case where a specially empowered officer of the State Government had passed a detention order. The representation to seek revocation of the detention was sent to such Officer as the Detaining Authority. The order confirming the detention of the detenu was passed after considering the report of the Advisory Board, by the detaining authority. The Advisory Board reported that there were sufficient causes for the detention of the detenu and after considering such report the order of detention was confirmed. In these circumstances, it was argued that the order of detention had been confirmed by the specially empowered Officer without considering the representation of the detenu. The Bench approved the earlier judgment of this Court in Khairul Haque v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. In Frances Coralie Mullin v. W.C. Khambra and Others (1980) 2 SCC 275 an order of detention was passed by the Administrator, Union Territory of Delhi. It was found that the representation submitted by the detenu was forwarded to the Advisory Board. Considering the case of Jayanarayan Sukul, the two Judge Bench of this Court held as under: 5 We agree : (1) the Detaining Authority must provide the detenu a very early opportunity to make a representation, (2) the Detaining Authority must consider the representation as soon as possible, and this, preferably, must be before the representation is forwarded to the Advisory Board, (3) the representation must be forwarded to the Advisory Board before the Board makes its report, and (4) the consideration by the Detaining Authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage. We, however, hasten to add that the time-imperative can never be absolute or obsessive. The Court's observations are not to be so understood. There has to be lee-way, depending on the necessities (we refrain from using the word circumstances ) of the case. One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation 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 Clause (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 Article 22 read with Section 8(c) of the Act .. (Emphasis supplied) 12. Later, while considering the Frances Coralie Mullin case, the Constitution Bench held that the time-imperative for consideration of the representation of a detenu can never be absolute or obsessive, it depends upon the necessities under which the representation is made. If there is not enough time to dispose of the representation, the representation may also be forwarded to the Advisory Board along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention. As long as, the Government i.e. the Detaining Authority considers the representation without delay and without an unbiased mind, there is no basis for concluding that there has been an absence of independent consideration, before the confirmation of detention. The Court held that there is no justification for imposing the restriction on the power of the Detaining Authority. It was held as under: 19. There is no constitutional mandate under Clause (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention. Indeed, there is no justification for imposing this restriction on the power of the Government. As observed earlier, the Government's consideration of the representation is for a different purpose, namely to find out whether the detention is in conformity with the power under the statute. This has been explained in Haradhan Saha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration herein for revocation of a detention order is restricted to whether or not the detention order conforms to the law. 16. Subsequently, the matter was again placed before the Constitution Bench in Kamleshkumar Ishwardas Patel v. Union of India and Others (1995) 4 SCC 51 on account of the divergent views in the State of Maharashtra Anr. v. Sushila Mafatlal Shah and others (1988) 4 SCC 490 and Amir Shad Khan v. L. Hmingliana and Others (1991) 4 SCC 39. It was held that Clause (5) of Article 22 imposes a dual obligation on the authority making the order of preventive detention. Firstly, to communicate to the detenu as soon as may be, the grounds on which the order of detention has been made; and secondly, to afford the detenu the earliest opportunity of making a representation against the order of detention. It was held that in terms of Section 21 of the 1897 Act, the authority which has ordered the detention has the power to revoke the same. Further, the detenu has the liberty to submit his representation to the authority which is competent to revoke the detention. This Court held as under: 14. Article 22(5) must, therefore, be construed to mean that the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Clause (5) of Article 22, which renders the detention illegal. In the aforesaid case, it was found that the representation of the detenu was not considered by the Officer making the order of detention and the High Court erred in holding that the failure on part of the Detaining Authority to consider and decide the representation is not vital to the order of detention. Thus, the aforesaid judgment is to the effect that the Detaining Authority is dutybound to consider the representation of the detenu which is a constitutional mandate under Clause (5) of Article 22 of the Constitution. Such representation has to be decided independently to the recommendation of the Advisory Board and can be accepted dehors the recommendation of the Advisory Board. Thus, the right of detenu is to seek consideration of his representation by the Detaining Authority, including the specially empowered Officer or by State or Central Government. It is constitutionally mandated by Clause (5) of Article 22. Further, as mentioned earlier, the Detaining Authority which includes the State Government or the Central Government, examines whether the detention order is in conformity with law whereas, the approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficance, in our comprehension, in view of the binding nature of the opinion of the Advisory Board, in case, on a consideration of the materials on record it decides to hold against the detention. In case the Advisory Board holds that the detention order is invalid, it is not open for the appropriate Government to continue therewith and it has to essentially revoke the same though the converse may not be the same. In other words, if the Advisory Board upholds the order of detention, it would still be open to the Central Government, depending on the merits of each case, to release the detenu. The fact that the opinion of the Advisory Board against continuance of the order of detention is final vis- -vis the appropriate Government, in our opinion, is the motivating imperative for requiring the appropriate Government to forward the pending representation to the Advisory Board so as to enable it to traverse the entire panorama of grounds taken against the detention order for an effective, timely and meaningful consideration of the case of the detenu. This requirement as has been essentially recognised and mandated by two decisions of the Constitution Bench of this Court, does not, in an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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