1991 (8) TMI 330 - SC - FEMA

Supreme Court Quashes Detention Orders, Emphasizes Right to Representation

AMIR SHAD KHAN AZIZ AHMEDKHAN @ AZIZMOHD. KHAN Versus L. HMINGLIANA AND ORS.

AMIR SHAD KHAN AZIZ AHMEDKHAN @ AZIZMOHD. KHAN Versus L. HMINGLIANA AND ORS. - 1991 AIR 1983, 1991 SCR (3) 443, 1991 SCC (4) 39, JT 1991 (3) 367 Issues Involved:1. Validity of detention orders under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.2. Whether the failure to forward the detainees' representation to the Central Government violated their constitutional rights under Article 22(5) of the Constitution of India.3. Interpretation of Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in relation to the constitutional guarantee under Article 22(5).Issue-wise Detailed Analysis:1. Validity of Detention Orders under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974:The appellants were detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with the aim of preventing them from smuggling goods and engaging in related activities. The detention orders were served along with the grounds of detention and necessary documents. The appellants were informed of their right to make a representation to the State Government, Central Government, and the Advisory Board. The High Court dismissed the writ petitions challenging the detention orders, stating that the detenus had failed to follow the specific instructions regarding the manner and mode of addressing their representations.2. Whether the Failure to Forward the Detainees' Representation to the Central Government Violated Their Constitutional Rights under Article 22(5) of the Constitution of India:The appellants contended that their constitutional right under Article 22(5) was violated as their representation was not forwarded to the Central Government. Article 22(5) mandates that the detaining authority must communicate the grounds of detention to the detenu and afford them the earliest opportunity to make a representation. The Supreme Court held that the failure of the Detaining Authority and the State Government to forward the representation to the Central Government resulted in a violation of the appellants' constitutional rights. The Court emphasized that the right to make a representation is a fundamental right under Article 22(5), and the authorities must ensure that the detenu is afforded the earliest opportunity to exercise that right.3. Interpretation of Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, in Relation to the Constitutional Guarantee under Article 22(5):Section 11 of the Act allows for the revocation of detention orders by the State Government or the Central Government. The appellants argued that their request to forward their representation to the Central Government should have been honored under Section 11. The Supreme Court agreed, stating that Section 11, read with Article 22(5), imposes an obligation on the Detaining Authority and the State Government to forward the representation to the Central Government. The Court noted that the power of revocation under Section 11 is related to the constitutional right of representation under Article 22(5). However, a separate judgment by one judge expressed reservations about treating Section 11 as part of the constitutional guarantee under Article 22(5), stating that Section 11 merely enables revocation or modification of detention orders and does not confer a constitutional right.Conclusion:The Supreme Court allowed the appeals, set aside the High Court's order, and quashed the detention orders on the ground that the appellants' constitutional right under Article 22(5) was violated. The Court directed that the appellants be released unless required in any other pending matter.