TaxTMI 
TaxTMI 
1991 (1) TMI 244
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....e detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('the Act'). The detenu made representation to the appropriate Government. By then the Advisory Board was already constituted and it was scheduled to meet to consider the case of the detenu. The Government forwarded the detenu's representation to the Advisory Board. The Advisory Board considered the case of the detenu and also the representation and submitted report expressing the opinion that there was sufficient cause for the detention of the person. The Government after considering that report confirmed the order of detention. It appears that the representation of the detenu was not considered before confirming the detention order and it came to be considered and rejected only thereafter. In V.J. Jain case -1979 (4) SCC 401 this Court observed that the representation of the detenu should be considered by the detaining authority as early as possible before any order is made confirming the detention. The confirmation of the detention order without the consideration of representation would be invalid and the subsequent consideration of the representation would not cure the invalid....
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....rt after examining all the contentions dismissed the writ petitions. SLP (Cri.) Nos. 2009 and 2117 of 1989 have been preferred against the judgment of the High Court questioning the correctness of the judgment of the High Court. The connected writ petitions under Article 32 of the Constitution have been filed challenging the detention orders raising additional grounds. 5. The principal question for consideration is 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. At the outset it may be made clear that there is no argument addressed before us that there was unexplained delay in considering the representation of the detenu. Indeed, counsel for the petitioners very fairly submitted that they are not raising the question of delay. They also did not argue that the rejection of the representation after the confirmation of detention was not an independent consideration. 6. There are two constitutional safeguards, namely, Clause (4) of Article 22, and Clause (....
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....ticle 22 of the Constitution. They must be persons who are, or have been, or are qualified to be appointed as Judges of a High Court. Clause (b) of Section 8 makes it obligatory for the Government to refer the case of the detenu to Advisory Board within five weeks from the date of detention. Clause (c) of Section 8 provides that the Board shall after considering the reference and other material placed before it and after hearing the detenu if he desires to be heard in person, give its report as to whether or not there is sufficient cause for the detention of the person concerned. The Board shall submit the report within eleven weeks from the date of detention of the person concerned. Clause (f) of Section 8 states that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue his detention for such period as the Government deems fit subject to the maximum period permissible under the Act. In every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person, the Government shall revoke the d....
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.... SCR 543; Shayamal Chakraborty v. The Commissioner of Police, Calcutta and Anr. - 1969 (2) SCC 426; B. Sundar Rao and Ors. v. State of Orissa; - 1972 (3) SCC 11; John Martin v. State of West Bengal - 1975 (3) SCR 211; S.K. Sekawat v. State of West Bengal - 1975 (2) SCR 161 and Haradhan Saha & anr. v. State of West Bengal and Ors. - 1975 (1) SCR 778. 12. The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in Clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed ei....
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.... the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu." 14. In Frances Coralie Mullin v. W.C. Khambra and Ors. - 1980 (2) SCC 275, Chinnappa Reddy, J., while dealing with the time imperative for consideration of the representation has emphasised (At 279): "We, however, hasten to add that the time imperative can never be absolute or obsessive. The Court's observations are not to be so understood. There has to be lee-way, depending on the necessities (we refrain from using the word 'circumstances') of the case. One may well imagine a case where a detenu does not make representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board 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.....
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....en in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the Government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the Government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The Constitution of the Board shows that it consists of eminent persons who are Judges or persons qualified to be Judges of the High Court. It is therefore, proper that the Government considers the representation in the aforesaid two situations only aft....
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....r of detention. On 29 August 1969, the Governor rejected the petitioner's representation. The Court while referring these facts said that there was unaccounted delay of little more than two months in the consideration of the representation. Doubtless the detention was invalid on this delay alone and the Court could have quashed the detention on that ground. But the Court, however, observed that it is doubtful whether the Government's consideration of the representaion was independent as implicit in the language of Article 22(5). If the confirmation by the Government of the order of the District Magistrate is made first and the Government rejects the representation thereafter, such rejection is not an independent consideration but as the result of its decision to confirm the order of detention. It was also observed that the process of decision-making has to be the other way about, that is to say, the Government must first consider the representation and only later decide whether it should confirm the order of the District Magistrate on the basis of the report of the Advisory Board. The decision in Khairul Haque case - W.P. No. 246/69 decided on 10-9-1969 (unreported) has been follow....