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2020 (3) TMI 248

..... y engaging in transporting or concealing or keeping smuggled goods - Whether the Detaining Authority was justified in deferring the consideration of the representation till the receipt of the opinion of the Central Advisory Board? - HELD 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 original authority making the order - It was thus held that the constitutional obligation of a specially empowered officer entitled to pass an order of detention would only be to communicate expeditiously to the detenue the grounds of detention and also to afford him opportunity to make 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 spec .....

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..... ufficient cause for the detention. On 27.04.1989, the detention was confirmed by the State Government. Thus, failure on part of the appropriate Government to forward the representation to the Advisory Board and rejection thereof while the proceedings were pending before the Advisory Board, were the points on which the relief was granted to the detenue. In terms of Section 8, the report of the Advisory Board is meant only for the consumption of the appropriate Government and apart from the operative part of the report which is to be specified in a separate paragraph as per sub-section (c), the mandate in terms of sub-section (e) is to keep the report of the Advisory Board completely confidential. Thus, a specially empowered officer who may have passed the order of detention, by statutory intent is not to be privy to 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 .....

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..... ernment of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, B-Wing, Janpath Bhawan, New Delhi-110001. (b) Representation meant for the Central Government should be addressed to the Director General, Central Economic Intelligence Bureau, Government of India, Ministry of Finance, Department of Revenue, 6th Floor, B-Wing, Janpath Bhawan, New Delhi-110001. (c) Representation meant for the Advisory Board should be addressed to the Chairman, COFEPOSA Advisory Board, Delhi High Court, Sher Shah Road, New Delhi-110002. (c) On 18.07.2019 the cases of the detenues were referred to the Central Advisory Board- The Central Advisory Board, Delhi High Court, New Delhi along with the grounds of detention and relied upon documents. (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 forthw .....

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..... ion of this Court. (i) On 02.12.2019 a direction was issued to process the files of the detenues for reference to the Central Advisory Board. After obtaining appropriate approval, the case was referred to the Central Advisory Board on 05.12.2019 stating inter alia:- Keeping in view the judgment dated 03.06.2015 of the Apex Court delivered in Crl.Appeal No.829 of 2015 arising out of SLP(Crl) No.2489 of 2015 - Golam Biswas v. Union of India, the said representations will be considered for disposal by the competent authority only after receipt of opinion of the Hon ble Board. 3. The instant writ petition was filed on or about 16th December, 2019 challenging the stand taken in the communication dated 05.12.2019 that 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 a .....

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..... g Authority independently. The Detaining Authority was not right in waiting till the receipt of the report of the Central Advisory Board. (c) The consequential delay on part of the Detaining Authority in considering the representation thus violated the constitutional rights of the detenues. 7. On the other hand, Mr. K.M. Nataraj, learned Additional Solicitor General, for the respondents relied upon the decisions of this Court in Golam Biswas5 and in K.M. Abdulla Kunhi6 to submit that while the matter was pending consideration before the Central Advisory Board, the representation in question could not be considered and it could be considered only after the receipt of the report 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 0 .....

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..... wer to issue orders includes a power exercisable in the like manner and subject to the like sanction and conditions, if any, to add, to amend, vary or rescind such orders. Under Section 21 of the General Clauses Act, therefore, the authority making an order of detention would be entitled to revoke that order by rescinding it. We agree with the submission of Mr Jethmalani that the words without prejudice to the provisions of Section 21 of the General clauses Act 1897 used in Section 11(1) of the Act give expression to the legislative intention that without affecting that right which the authority making the order enjoys under Section 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 .....

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..... the COFEPOSA Act, including the ambit of Section 11, it was observed:- 19. We may now examine the scheme of the Act and have a closer look at the provisions set out above to find out whether the Act provides for a differentiation being made between detention orders made by the government and those made by specially empowered officers so as to confer an additional right of representation to detenus subjected to detention under detention orders falling in the latter category. At the outset, it needs no saying, that any government, be it Central or State, has to function only through human agencies viz. its 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 furth .....

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..... the provisions of Section 21 of the General clauses Act, this reservation will not entitle a specially empowered officer to revoke an order of detention passed by him because the order of the specially empowered officer acquires deemed approval of the State or Central Government, as the case may be, automatically and by reason of such deemed approval the powers of revocation, even in terms of Section 21 of the General clauses Act will fall only within the domain of the State Government and/or Central Government. In Sat Pal v. State of Punjab (1982) 1 SCC 12 the nature of the power of revocation 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 repr .....

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..... thus held that the constitutional obligation of a specially empowered officer entitled to pass an order of detention would only be to communicate expeditiously to the detenue the grounds of detention and also to afford him opportunity to make representation to the appropriate Governments against his detention. All the aforesaid three questions as posed in Para 11 were answered in the negative. C) In Amir Shad Khan vs. L. Hmingliana and others (1991) 4 SCC 39, a Bench of Three Judges of this Court observed:- 3. ……... There can be no doubt that the representation 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 author .....

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..... n pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. This provision is clearly intended to meet the obligation cast by Article 22(5) that the grounds of detention shall be communicated as soon as may be . The legislation has, therefore, fixed the outer limit within which the grounds of detention must be communicated 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 i .....

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..... ction 21 of the General Clauses Act. Therefore, where an officer of the State Government or the Central Government has passed any detention order and on receipt of a representation he is convinced that the detention order needs to be revoked he can do so by virtue of Section 21 of the General Clauses Act since Section 11 of the Act does not entitle him to do so. If the State Government passes an order of detention and later desires to revoke it, whether upon receipt of a representation from the detenu or otherwise, it would be entitled 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 .....

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..... s not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power 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 autho .....

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..... t such relief i.e. the authority which can revoke the order of detention and set him at liberty and since the officer who has made the order of detention is competent to revoke it, the person detained has the right to make a representation to the officer who made the order of detention. The first premise that such right does not flow from Article 22(5) cannot, therefore, be accepted. 32. The learned Judges, while relying upon the observations in Abdul Karim (1969) 1 SCC 433 and the decisions 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 i .....

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..... by such an officer operates on its own force. All that is required by Section 3(2) of the COFEPOSA Act and the PIT NDPS Act is that the State Government shall within 10 days forward to the Central Government a report in respect of an order that is made by the State Government or an officer specially empowered by the State Government. An order made by the officer specially empowered by the State Government is placed on the same footing as an order made by the State Government 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. Appro .....

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..... hing in the provisions of these enactments to show that the role of the officer comes to an end after he has made the order of detention and that thereafter he ceases to be the detaining authority and the Government concerned which had empowered him assumes the role of the detaining authority. We are unable to construe the provisions of the said enactments as providing for such a limited entrustment of power on the officer who is specially empowered to pass the order. An 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 i .....

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..... her 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. 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 r .....

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..... be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, clause 5 would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to 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. Th .....

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..... hould be addressed to the Government and not directly to the Board. The Government could not have been intended to be only a transmitting authority nor could it have been contemplated that it should sit tight on that representation and remit it to the Board after it is constituted. The peremptory language in clause 5 of Article 22 and Section 7 of the Act would not have been necessary if the Board and not the Government had to consider the 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 .....

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..... e. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to 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. (Emphasis added) 19. No definite time can be laid down within which 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 ma .....

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..... resentation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire material. The Board can also call for more materials. The Board may call the detenu at his request. The constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. 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 sta .....

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..... detenu the right to make an effective representation. 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 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 .....

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..... wo 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 Advisory Board was already constituted and it was scheduled to meet to consider the case of the detenu. 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 subseq .....

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..... ainst the detenu revealed an involvement with an international gang of dope smugglers. The comments of the customs authorities were received on January 4, 1980. The Advisory Board was meeting on January 4, 1980 and so there could be no question of the detaining authority considering the representation of the detenu before 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 b .....

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..... d, 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 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 .....

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..... oard. The reasons for such observations were given in the latter part of paragraph 16 and in paragraphs 19 and 20. F) In Golam Biswas (2015) 16 SCC 177, the order of detention under the COFEPOSA Act was passed on 27.05.2014. A representation was made to the Central Government on 08.07.2014. The reference was made to the Advisory 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 de .....

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..... ideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to 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 b .....

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..... would not only be an irresponsible act on part of the appropriate authority but also unconstitutional. The contingency whether the representations were received before or after was again considered in para 29 of the decision 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 .....

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..... his Court in K.M. Abdulla Kunhi (1991) 1 SCC 476 was rendered by the Constitution Bench of this Court after considering all the earlier decisions on the point including 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 app .....

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..... which shall consist of a Chairman and two other persons possessing the qualifications specified in subclause (a) of clause (4) of 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 an .....

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..... he decision that was holding the field as to the role of a specially empowered officer who 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 represent .....

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..... e the specially empowered officer who had acted as the Detaining 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. Th .....

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..... to examining 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 .....

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..... tion, 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. The State of W .....

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..... .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 may well imagine, a case where .....

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..... e 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 case of the detenu. This Court held as under: 16. We a .....

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..... ers 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 case, where Ray, C.J., speaking for the Constitution Bench observed that the c .....

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..... r 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 person detained has a right to make a representation against the order of detention which can be made not only to the .....

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..... f 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 appropriate government while considering the recommendation of the Advisory Board examines whether there was sufficient cause for the de .....

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..... als 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-à-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 any way, undermine the appropriate Government's authority to consider and dispose of such representation of any detenu under the pr .....

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