TaxTMI 
TaxTMI 
1979 (5) TMI 146
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....xchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act). The petitioner has urged several grounds before us but it is not necessary to refer to theme since there is one ground which is in our opinion sufficient to dispose of the petition in favour of the petitioner. To appreciate this ground, it is necessary to state a few facts. On 13th November, 1978, an order was made by the 1st respondent in exercise of the power conferred on him under sub-section (1) old section 3 of the Act directing the detention of the petitioner. Pursuant to the order of detention, the petitioner was arrested and he was immediately served with the grounds of detention which were embodied in a communication dated 13th Novembe....
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....oner. The petitioner was thus unable to get copies of the relevant documents and statements from the Collector of Customs. The petitioner obviously could not wait for making a representation since the period of thirty days within which a representation must be made was expiring and he, therefore, sent a representation dated 4/9th December, 1978 to the Home Secretary and it was received by the Home Department on 12th December 1978. The Asstt. Secretary, Home Department, by his letter dated 22nd December, 1978, acknowledged that the representation of the petitioner was received on 12th December, 1978 and intimated that the issue regarding the supply of copies of relevant documents and statements to the petitioner was under consideration of th....
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....tion of such safeguards, it would be liable to be struck down as invalid. It is immaterial whether these constitutional safeguards are incorporated rated in the law authorising preventive detention, because even if they are not, they would be deemed to be part of the law as a super imposition of the Constitution which is the supreme law of the land and they must be obeyed on pain of invalidation of the order of detention. The 1st respondent was, therefore, bound to observe these constitutional safeguards provided inter alia in clauses (4) and (5) of Article 22 in detaining the petitioner. We are concerned in this case only with a complaint of violation of the provisions of clause (5) of Article 22 and that clause reads as follows: ....
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....der of detention. Now this requirement would become illusory unless there is a corresponding obligation on the detaining authority to consider the representation of the detenu as early as possible. It could never have been the intention of the constitution makers that the detenu should be given the earliest opportunity of making a representation against the order of detention but the detaining authority should be free not to consider the representation before confirming the order of detention. That would render the safeguard enacted by he constitution- makers meaningless and futile. There can, therefore, be no doubt that the constitutional imperative enacted in clause (S) of Art. 22 requiring the earliest opportunity to be afforded to the d....
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.... to wait for considering the petitioner's representation until it had received the report of the Advisory Board. As laid down in Sk. Abdul Karim v. State of West Bengal (AIR 1969 SC lO28) (supra), the obligation of the appropriate Government under Art. 22(5) (1) W. P. 245 of 1969, dec. On Sept. 10, 1969. is to consider the representation made by the detenu as expeditiously as possible. The consideration by the Government of such representation has to be, as aforesaid, independent of any opinion which may be expressed by the Advisory Board. The fact that Art. 22 (5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicity mean that such representation, must, wh....
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.... relating to the case, come to its own decision whether to confirm the order of detention or to release the detenu. Here in the present case, the representation of the petitioner was received by the Home Department on 12th December, 1978 and it was immediately forwarded to the Advisory Board because the meeting of the Advisory Board was fixed on 20th December, 1978. The report of the Advisory Board stating that in its opinion there was sufficient cause for the detention of the petitioner was received by the 1st respondent on 6th January, 1979 and on the basis of this report, the 1st respondent confirmed the order of detention on 15th January, 1979. There is nothing on the record to show that the 1st respondent considered the representati....