1991 (1) TMI 244 - SC - Customs

Detention Order Confirmation: Independent Representation Review Post-Confirmation.

The Court held that the confirmation of a detention order is not invalidated if the detenu's representation is considered after confirmation. The ... Whether the confirmation of detention order upon accepting the report of the Advisory Board renders itself invalid solely on the ground that the representation of the detenu was not considered and the subsequent consideration of the representation would not cure that invalidity? Held that:- The confirmation of the order of detention is not conclusive as against the detenu. It can be revoked suo motu under Section 11 or upon a representation of the detenu. It seems to us therefore, that so long as the representation is independently considered by the Government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention. The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention. Nor it could be presumed that such consideration is not an independent consideration. Issues Involved:1. Validity of the detention order confirmation without considering the detenu's representation.2. Constitutional and statutory safeguards under preventive detention laws.3. Obligation of the government to consider the detenu's representation independently.4. Timeliness and manner of consideration of the detenu's representation.5. Requirement to forward the detenu's representation to the Advisory Board.Detailed Analysis:1. Validity of the Detention Order Confirmation Without Considering the Detenu's Representation:The principal issue was whether the confirmation of a detention order upon accepting the Advisory Board's report is invalid if the detenu's representation was not considered before such confirmation. Previous cases, V.J. Jain and Om Prakash Bahl, held that the representation should be considered before confirming the detention order, and failure to do so renders the confirmation invalid. However, this judgment overruled those decisions, stating that there is no constitutional or statutory mandate requiring the representation to be considered before confirmation. The Court emphasized that the government's obligation is to consider the representation without delay and independently, irrespective of whether it is before or after the confirmation of the detention order.2. Constitutional and Statutory Safeguards Under Preventive Detention Laws:The judgment highlighted two constitutional safeguards under Article 22: Clause (4) mandates that the Advisory Board must report on the sufficiency of cause for detention within three months, while Clause (5) requires the detaining authority to communicate the grounds of detention and afford the detenu an opportunity to make a representation. Statutory safeguards under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, align with these constitutional requirements, including provisions for making detention orders, forwarding reports to the Central Government, and referring cases to the Advisory Board.3. Obligation of the Government to Consider the Detenu's Representation Independently:The Court reiterated that the government's obligation to consider the detenu's representation is distinct from the Advisory Board's role. The government must independently assess whether the detention order conforms to legal powers, while the Advisory Board evaluates the sufficiency of cause for detention. The representation must be considered by the government without being influenced by the Advisory Board's views.4. Timeliness and Manner of Consideration of the Detenu's Representation:The Court emphasized that the representation should be considered 'as soon as may be,' reflecting the urgency intended by the framers of the Constitution. Although no specific time frame is prescribed, any unexplained delay would breach the constitutional imperative, rendering the detention illegal. The judgment acknowledged that practical constraints might necessitate some delay, but any departure from prompt consideration must be justified by the detaining authority.5. Requirement to Forward the Detenu's Representation to the Advisory Board:The judgment clarified that the detenu's representation should be forwarded to the Advisory Board if received before the Board concludes its proceedings. However, if the representation is received after the Board's report, it should be dealt with by the government independently. The Court rejected the argument that failure to forward the representation to the Advisory Board invalidates the detention, provided the representation is considered independently and without undue delay.Conclusion:The Court concluded that the confirmation of a detention order is not invalidated solely because the detenu's representation was considered after confirmation. The key requirement is that the representation must be independently and promptly considered by the government. The judgments in V.J. Jain, Om Prakash Bahl, and Khairul Haque, which mandated pre-confirmation consideration of the representation, were overruled. The petitions were directed to be placed before the Division Bench for final disposal.