2025 (11) TMI 1930 - HC - Indian Laws

Preventive detention confirmation order challenged for ignoring detainee representation and not informing Central Government representation right; breach quashed

Whether preventive detention was vitiated for breach of Article 22(5) and Section 9(f) of the Act was the dominant issue. The HC held the confirming ... Violation of principles of natural justice - non-consideration of representation of the petitioner - detention is vitiated for not apprising the petitioner of his right to make representation to the Central Government. Non-consideration of representation of the petitioner while passing order/Annexure-B - HELD THAT:- The power of the Government to confirm the detention order is independent of the opinion of the Advisory Board. As the word “may” is employed in Section 9(f) of the Act, even if the Advisory Board found sufficient cause for the detention, the Government has power to take a different view. Only in case if the Advisory Board finds no sufficient cause for detention, the Government is bound to revoke such order as the word “shall” is employed. In Annexure-B absolutely there is no reference to the representation of the petitioner leave alone the independent consideration of same. To verify if respondent No.2 has considered the same in the proceedings while passing the order, the records of the proceedings were secured. Those proceedings show that based on the Advisory Board’s report, draft of Annexure-B was placed before the competent authority and that was approved as it is. There is not even a whisper at least in the proceedings’ sheet that respondent No.2 perused or examined the representation. Thus there is no independent consideration of the representation as required under Section 9(f) of the Act and larger bench judgment in Gracy’s case [1991 (2) TMI 232 - SUPREME COURT]. Hence the order is violative of Article 22(5) of the Constitution of India and contrary to the law laid down in the aforesaid judgment of the Hon’ble Supreme Court and this Court. As matter of rule, if it is to be held that such placement of the bail application and the order passed thereon is not mandatory in every case, then the facts and circumstances of this case, whether such application and orders made thereon ought to have been placed before the Detaining Authority. In our opinion, the Detaining Authority has not taken into consideration the bail orders passed in three Criminal cases registered against the Detenue. Therefore, nonconsideration of this fact, in our opinion, also vitiates the order of detention - respondent No.2 is bound to consider the representation of the Detenue entirely independent of the consideration of the same by the Advisory Board. Annexure-B not apprising the petitioner of his right to make representation - HELD THAT:- Article 22(5) of the Constitution or Section 9(f) or 12(1)(a) of the Act do not expressly speak about the right of the detenue of being apprised of his right of making representation to the Central Government in the matter. If there was no need to reconsider the order passed by the State Government or the authority, Section 12 of the Act empowering the Central Government would not have been carved out in the Act by the legislature. The detenue is the main affected person in the matter. Only if the detenue is apprised by State Government making of such a report to the Central Government, he gets an opportunity seeking revocation of the same under Section 12(1)(b) of the Act. Otherwise his fundamental right under Article 22(5) of the Constitution to make representation gets affected. The order Annexure-B stands vitiated on both the grounds and hence the same is liable to be quashed. Annexure-A is only the grounds of detention and even the detention order referred to in Annexure-B is not passed by the first respondent under Section 3(1) of the Act. The petitioner ought to have sought quashing of the said order which he has failed to do for the reasons best known to him. On quashing of Annexure-B, the same loses its existence, thus stands short of the requirement of Section 3(2) of the Act submitting the same to the Central Government within 10 days. Thereby the detention order dated 12.09.2025 referred to in Annexure-B loses its existence. Hence Annexure-A becomes inconsequential. The order Annexure-B dated 12.09.2025 passed by respondent No.2 and consequentially the detention order dated 19.05.2025 in Annexure-A in No.02/BCP/PIT-NDPS/DTN/2025 passed by respondent No.1 are hereby quashed - Writ petition habeas corpus is disposed of accordingly. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether the confirmation order continuing preventive detention was vitiated for failure of the appropriate Government to independently consider the detenue's representation, as required by Article 22(5) and the statutory scheme governing confirmation after the Advisory Board's opinion. (ii) Whether the continued detention was vitiated because the confirmation order did not apprise the detenue of the right to make a representation to the Central Government for revocation/modification, thereby impairing the constitutional safeguard under Article 22(5) in the context of the Central Government's revocation power. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Independent consideration of the representation while confirming detention Legal framework (as discussed by the Court): The Court examined the confirmation power under Section 9(f), noting that even where the Advisory Board reports 'sufficient cause,' the Government 'may' confirm, indicating discretion independent of the Board's opinion; only where the Board reports 'no sufficient cause' does the Government have a mandatory duty to revoke ('shall'). The Court also applied the constitutional requirement under Article 22(5) that the detenue's representation must be considered by the detaining/appropriate authority, independently of the Advisory Board's view. Interpretation and reasoning: The Court held that the Government's confirmation decision under Section 9(f) is not a mechanical consequence of the Advisory Board's report. Because the confirmation power is independent, the Government must separately apply its mind to any representation made by the detenue. On scrutiny of the confirmation order and the secured records, the Court found no reference to the representation and no indication in the proceedings sheet that the representation was perused or examined; the draft confirmation order was approved 'as it is' based on the Advisory Board's report. This absence of independent consideration amounted to a breach of Article 22(5) and was contrary to the governing legal position that consideration by the Advisory Board does not substitute the Government's own duty. Conclusion: The confirmation order was vitiated for non-consideration and lack of independent application of mind to the detenue's representation, rendering the continued detention unconstitutional under Article 22(5) and inconsistent with the statutory discretion contemplated by Section 9(f). Issue (ii): Failure to apprise the detenue of the right to represent to the Central Government Legal framework (as discussed by the Court): The Court noted that the statute requires reporting of the detention order to the Central Government within the prescribed time and that the Central Government has power to revoke or modify the detention order. The Court also relied on Article 22(5), which mandates communication of grounds and affording the earliest opportunity to make a representation against the detention order. Interpretation and reasoning: Although the Court acknowledged that Article 22(5) and the cited statutory provisions do not expressly state that the detenue must be informed of the right to represent to the Central Government, it reasoned that the Central Government's revocation power would be rendered practically ineffective for the detenue unless the detenue is apprised of the reporting and the availability of such remedy. Since the detenue is the person directly affected, non-disclosure of this avenue was held to impair the meaningful exercise of the constitutional right to make a representation. Conclusion: The continued detention was vitiated because the confirmation order did not apprise the detenue of the right to seek revocation/modification from the Central Government, thereby adversely affecting the safeguard under Article 22(5). Result (as determined by the Court): Since the confirmation order was vitiated on both grounds, it was quashed, and the preventive detention based on it was consequentially set aside; the grounds of detention became inconsequential following the quashing of the confirmation order.