TMI Blog2023 (4) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Government is essentially a transfer of power from the empowered officer to the Government, making the Government the detaining authority after the initial lapse of 12 days. In the COFEPOSA Act however, no such approval is required from the Government, and hence the detaining authority and the Government remain to be two separate bodies independent of each other. In the COFEPOSA Act, since the detaining authority is separate from the Government, both, the Pankaj Kumar Judgment [ 1969 (5) TMI 56 - SUPREME COURT] and the Abdullah Kunhi Judgment [ 1991 (1) TMI 244 - SUPREME COURT ] would apply, but in different spheres - it can be clearly seen that any apparent conflict, as contended by the appellant, stands resolved, and both sets of judgments operate symbiotically and harmoniously within the said Act, without there existing any tension between them. The mandate to wait for the decision of the Advisory Board, as per the Pankaj Kumar Judgment [ 1969 (5) TMI 56 - SUPREME COURT ], would apply to the central Government, however, the detaining authority, being independent of the Government, can pass its decision without the decision of he Advisory Board. Since no conflict exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate. In such a circumstance, where there is a possibility of an unfettered discretion of power by the Government, this Court must analyze cases arising from such laws with extreme caution and excruciating detail, to ensure that there are checks and balances on the power of the Government - the impugned detention order is liable to be set aside - appeal allowed. - CRIMINAL APPEAL NO…. OF 2023 (arising out of Special Leave Petition (Crl.) No. 10798 Of 2022 - - - Dated:- 10-4-2023 - KRISHNA MURARI And V. RAMASUBRAMANIAN , JJ. JUDGMENT KRISHNA MURARI , J. Leave Granted. 2. The present Appeal is directed against the impugned judgment and final order dated 03.11.2022 passed by the High Court of Delhi at New Delhi, (hereinafter referred to as High Court ) in Writ Petition (Crl.) No. 1205 of 2022 whereby the appellant s plea to quash the detention order against him on grounds of delay in considering his representation was denied. FACTS 3. Briefly, the facts relevant to the present appeal are that an Intelligence was received by the Respondent that a syndicate comprising of certain Chinese, Taiwanese, and South Korean nationals in association with some Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentation was sent by the appellant to the Respondent No.2 detaining authority on 02.03.2022 which came to be rejected on 15.03.2022. 14. In the meanwhile, on 10.03.2022, the appellant sent a representation letter to the Central Government, and subsequently on 04.04.2022, he made another representation to the Advisory Board. 15. The hearing before the Advisory board was concluded on 18.04.2022, and on 09.05.2022, the Central Government, on advice from the advisory board after a delay of 60 days rejected the representation. 16. The appellant then filed a writ in the High Court seeking to quash the detention order against him, which came to be dismissed vide impugned order dated 03.11.2022. 17. This Court subsequently, vide order dated 05.01.2023, released the appellant from custody as interim relief due to the demise of his father, and later, due to the expiry of the impugned detention order against the appellant, he was released from detention. ARGUMENTS ADVANCED BY THE APPELLANT 18. The Learned Counsel for the appellant contended that: I. As per Article 22(5) of the Constitution of India, a representation made by the detenue in cases of preventive detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 60 days is not grounds enough for the detention order to be quashed. ISSUES 20. In light of the abovementioned arguments raised by the Learned Counsels for the parties, following three issues arise for our consideration. I. Whether there exists an incongruity between the Pankaj Kumar case (supra) and the Abdullah Kunhi Case (supra) , and if such a friction exists should the point of law be referred to a Larger Bench? II. If there exists no friction between the two Constitutional judgments of this Court, can the impugned detention order be quashed on grounds of the 60-day delay in consideration of the representation made by the appellant? III. Whether the illegible documents written in Chinese submitted to the appellant herein are grounds enough for quashing the impugned detention order? ANALYSIS 21. Before we deal with the issues framed, we find it important to note that preventive detention laws in India are a colonial legacy, and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of rare case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners therein filed a writ petition in the Supreme Court seeking for a quashing of a detention order passed against them under the Preventive Detention Act,1950, on grounds that the Government failed to consider the representation made by them and merely passed it on to the Advisory Board. After careful consideration, a Constitution Bench of this Court held that the Government must act Independently from the Advisory Board, and that there exists no mandate on the Government to wait for the decision of the Advisory Board. The relevant paragraphs of the said judgment are being extracted herein: It is true that clause (5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expressions as soon as may be and the earliest opportunity in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detaining authority to whom it is to be made which has to consider it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of detention considered by the appropriate Government and (2) to have once again that representation in the light of the circumstances of the case considered by the Board before it gives its opinion. If in the light of that representation the Board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention. The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Government's obligation to constitute a Board and to communicate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal 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 petition is therefore allowed, the orders of detention against Petitioners 15 and 36 are set aside and we direct that they should be set at liberty forthwith. 26. Further, in the Jayanarayan Sukul Case (Supra), the same issue was considered by another Constitution Bench of this Court, wherein it went on to reiterate the principles in the Pankaj Kumar Case (Supra), and held that the central Government must act independently of the Advisory Board, and can decide the representation made by the detenue without hearing from the Advisory Board. For the purpose of convenience, the relevant paragraph of the said judgment is being reproduced herein: In the present case, the State of West Bengal is guilty of infraction of the Constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 considers the representation. If a representation is made after the matter has been referred to the Advisory Board, the detaining authority will consider it before it will send representation to the Advisory Board. 28. Subsequently, in the case of Francis Coralie Mullin v. W.C. Khambra Ors. (1980) 2 SCC 275, a Division Bench of this Court considered the principles laid down in the judgment of Jayanarayan Sukul (Supra), and while it agreed with the principles of the above mentioned case, it however made an observation stating that when it was said that the Government must decide on the representation before forwarding it to the advisory board, the emphasis was not on time, but on the onus of the Government to decide the representation Independently. This essentially meant that the Government must act independently of the Advisory Board, the relevant paragraphs from the said judgment are being extracte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 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. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved. The burden of explaining the necessity for the slightest departure from the time-imperative is on the detaining authority. We have already expressed our agreement with the four principles enunciated in Jayanarayan Sukul v. State of W.B. [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92] We would make one observation. When it was said there that the Government should come to its decision on the representation before the Government forwarded the representation to the Advisory Board, the emphasis was not on the point of time but on the requirement that the Government should consider the representation independently of the Board. 29. However, in the case of Abdulla Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the Government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the Government as early as possible. 30. While at a first glance, it may seem like there is friction between the two sets of judgments, however, a deeper inspection would prove otherwise. To understand the two sets of judgments, we must first look at the relevant provisions under which these judgments were passed. 31. The Pankaj Kumar Case (Supra) judgment was passed in the context of the Preventive Detention Act, 1960, and the Abdullah Kunhi Case (Supra) was passed in the context of the COFEPOSA Act. Section 3 of the two acts providing for preventive detention, for a ready reference, are being reproduced hereunder in a table chart: COFEPOSA ACT, 1974 PREVENTIVE DETENTION ACT, 1950 Section 3. Power to make orders detaining certain persons. (1) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lations of India with foreign persons, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community; or (b) if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946-(31 of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it is necessary so to do, make an order directing that such person be detained. (2) Any of the following officers, namely : (a) District Magistrates, (b) Additional District Magistrates specially empowered in this behalf by the State Government, (c) the Commissioner of Police for Bombay, Calcutta, Madras or Hyderabad, (d) Collectors in the territories which immediately before the 1st November, 1956, were comprised in the State of Hyderabad, may if satisfied as provided in sub-clauses (ii) and (iii) of Cl. (a) of subsection (1), exercise the power conferred by the said subsection. (3) When any order is made under this section by any officer mentioned in sub-section (2) he shall forthwith report the fact to the State Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act, 1950. 33. If we read the Pankaj Kumar judgment (Supra) in light of this distinction between the specially empowered officer and the Government in the COFEPOSA Act, we find that there exists no friction between the Pankaj Kumar Judgment (Supra) and the Abdullah Kunhi Judgement (Supra), since the Pankaj Kumar Judgement, while mandating the central Government to not wait for the decision of the Advisory Board, only does so because the central Government is the detaining officer in the Preventive Detention Act. In simpler terms, this would mean that the mandate to not wait for the decision of the Advisory Board is effectively not for the central Government, but only for the detaining officer. 34. In the COFEPOSA Act, since the detaining authority is separate from the Government, both, the Pankaj Kumar Judgment (supra) and the Abdullah Kunhi Judgment (supra) would apply, but in different spheres. The Pankaj Kumar Judgment (supra), since it was rendered in the context of the Government being the detaining authority, would be applicable only to the detaining authority/specially empowered officer under the COFEPOSA Act. The Abdullah Kunhi Judgment (supra) however, since it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perate symbiotically and harmoniously within the said Act, without there existing any tension between them. The mandate to wait for the decision of the Advisory Board, as per the Pankaj Kumar Judgment(Supra), would apply to the central Government, however, the detaining authority, being independent of the Government, can pass its decision without the decision of he Advisory Board. Since no conflict exists, the need to refer the point of law to a Larger Bench also ceases, and hence we hold issue No.1 in favour of the Respondents. ISSUE II- If there exists no friction between the two Constitutional judgments of this Court, can the impugned detention order be quashed on grounds of the 60-day delay in consideration of the representation made by the appellant? 36. In the present case at hand, the appellant-detenue, availing his rights sent a representation to both, the specially empowered officer and the Government. The detaining authority in the present case decided on the representation expeditiously and without waiting for the decision of the Advisory Board, and hence, did not violate the Pankaj Kumar Judgment (supra) . 37. The Government in the present case at hand, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 41. It has been brought to our notice that a co-detenue, one Mr. Neeraj Varshney has already been granted relief, and his detention order has been quashed by the High Court on grounds of illegible Chinese documents supplied to him as his grounds for detention. It is important to note that the circumstances of the appellant herein, as far as the present detention is concerned, is identical to the case of the co-detenue who s detention order was quashed. 42. At the sake of repetition, we find it important to state that in cases of preventive detention, every procedural irregularity, keeping in mind the principles of Article 21 and Article 22(5) of the Constitution of India, must be accrued in favour of the detenue. In the present case at hand, the appellant detenue herein has been supplied with illegible documents in a foreign language. It is also important to note that these are the very same documents that the authorities have relied upon to detain the appellant herein. 43. Further, the principle of parity is squarely applicable in this case, since another co-detenue with identical circumstances, has already been granted the relief of quashing the detention order ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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