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TMI Blog2020 (3) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... each and every contentions. However, we will refer to the basic facts as hereunder :- 4. Sri. Prakash Thampi. P.L., the husband of the petitioner was ordered to be detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for brevity 'COFEPOSA Act'). It would reveal that it was so ordered with a view to prevent him from smuggling goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future. Ext.P2 is the grounds of detention on which the order of detention is passed. Ext.P1 order was executed on 11-10-2019. Under Section 8(b) of the 'COFEPOSA Act' the case of the detenu was referred to the COFEPOSA Advisory Board, for its opinion. Pending its consideration the detenu filed Ext.P3 representation dated 1-11-2019 before the Central Government viz., 'the appropriate Government' under the said Act, Ext.P4 representation dated 1-11-2019 before the Detaining Authority and Ext.P5 representation dated 1-11-2019 before the Chairman of the Advisory Board. Taking note of the fact that prior to the receipt of Ext.P3 representation the case of the detenu was referred to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d would make the order of detention constitutionally invalid is not disputed by the petitioner. The indubitable position is that the law laid down on the aforesaid lines, in other words, that the Central Government which referred the case of the detenu concerned for opinion of the Advisory Board regarding the sufficiency or otherwise of the grounds of detention, must await its opinion which the Board has to give within the statutorily prescribed time limit, in Golam Biswas' case (supra) was virtually affirmed by the Apex Court in Ankit Ashok Jalan's case (supra). At the same time, it is to be noted that the Hon'ble Apex Court in Ankit Ashok Jalan's case (supra) after considering its earlier decision in Golam Biswas' case held that the said decision is applicable only in a case where a representation is submitted before the appropriate Government and made it clear that there is no question of consideration of a representation received before the case is referred to the Advisory Board, but where there may not be time to dispose of the same before referring the case to the Advisory Board as also a representation received after the case of the detenu is referred to the Advisory Board. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught 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 14-1-2020 could be characterised as undue and avoidable delay violating the constitutional rights of the detenues ?" 7. In the context of the aforesaid questions posed for consideration the following paragraphs in the judgment of the Hon'ble Apex Court in Ankit Ashok Jalan's case (supra) assume relevance :- "21. It must also be borne in mind that in all cases, the appropriate Government would be acting in two capacities : one while considering the representation and the other while taking appropriate decision after a report is received from the Advisory Board that there is sufficient cause for detention. Since the decision would be required to be taken in these two capacities, it was observed in K.M. Abdulla Kunhi, ((1991) 1 SCC 476) that it would be proper for the appropriate Government to wait till the report is received from the Advisory Board in cases dealt within paragraph 16 of the decision. But such may not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the majority of such members shall be deemed to be the opinion of the Board; (e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential; (f) 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." 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 accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in considering Ext.P4 representation dated 1-11-2019 till 8-1-2020 could be described as undue and avoidable delay resulting in violation of the constitutional right of the detenu. While considering the said question it is only worthwhile to take note the question as to whether the fundamental right available to a person detained preventively, under Article 22(5) of the Constitution of India, takes in its disposal without avoidable delay? Article 22(5) reads thus :- "22. Protection against arrest and detention in certain cases. - ....... (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." In Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police and Others (AIR 1989 SC 1861) the Supreme Court observed thus :- "The detenu has an independent constitutional right to make his representation under Art. 22(5) of the Constitution. Correspondingly, there is a constitutional mandate commanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the Detaining Authority. After receipt of letter on 27-11-2019 that the detenues were received in custody, the time for considering the representation started ticking for the Detaining Authority, But the representation was considered only on 14-1-2020 and the reason for such delayed consideration is that the report of the Central Advisory Board was awaited. We have already found that the Detaining Authority was obliged to consider the representation without waiting for the opinion of the Central Advisory Board. Thus, there was no valid explanation for non-consideration of the representation from 27-11-2019 till 14-1-2020. We must, therefore, hold that complete inaction on part of the Detaining Authority in considering the representation caused prejudice to the detenues and violated their constitutional rights." (underline supplied) Thus, obviously, due to complete inaction on the part of the Detaining Authority on the representation received pending consideration of the case of the detenues before the Central Advisory Board, it can only be held that the constitutional rights of the detenues were violated. In such circumstances, it was held that the continued detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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