TaxTMI 
TaxTMI 
2020 (3) TMI 248
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....of goods, and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, in future, it was necessary to make the said Detentions Orders. b) The detenues were served with the Detention Orders, the grounds of detention and the relied upon documents on 02.07.2019. The grounds of detention, in para 12, recited as under:- "You ........... have the right to represent against your detention to the Detaining Authority, to the Central Government as well as to the Advisory Board. If you wish to avail this right, you should send your representation through the Jail Authorities where you are detained, in the manner indicated below: (a) Representation meant for the Detaining Authority should be addressed to the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, B-Wing, Janpath Bhawan, New Delhi-110001. (b) Representation meant for the Central Government should be addressed to the Director General, Central Economic Intelligence Bureau, Government of India, Ministry of Finance, Department of Revenue, 6th Floor, B-Wing, Janpath ....
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....material in the form of retraction petition of one Shri Anand and its non-consideration by the Detaining Authority vitiated the Detention Orders. The High Court thus quashed the Detention Orders and directed that the detenues be released forthwith. (g) In its Meeting dated 02.08.2019, the Central Advisory Board recorded that since the Detention Orders were quashed, there was no possibility of proceeding further in the matter. (h) The decision of the High Court was challenged in Criminal Appeal No.1746 of 2019 in this Court, which by its Judgment and order dated 22.11.2019 set aside the view taken by the High Court. While allowing the appeal, the detenues were directed to be taken into custody forthwith. The Detaining Authority was thereafter informed by the Jail Superintendent on 27.11.2019 that the detenues were received in custody in pursuance of the decision of this Court. (i) On 02.12.2019 a direction was issued to process the files of the detenues for reference to the Central Advisory Board. After obtaining appropriate approval, the case was referred to the Central Advisory Board on 05.12.2019 stating inter alia:- "Keeping in view the judgment dated 03.....
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....nce the Detention Orders were set aside by the High Court on 02.08.2019, the nonconsideration of the representation till 02.08.2019, in the facts of the instant case, would not be of any significance. However, in their submission, after the decision of the High Court was set aside by this Court and the detenues were taken back in custody in November, 2019, the nonconsideration of and delay in disposal of said representation was more pronounced and relevant. It was submitted:- (a) A representation against an order of detention can be made to the Detaining Authority where the detention order has been passed by a specially empowered officer of the Central Government as well as to the Central Government and the Central Advisory Board. Para 12 of the grounds of detention, as extracted earlier, was in keeping with this well accepted principle. (b) The representation made to the Detaining Authority had to be considered by the Detaining Authority independently. The Detaining Authority was not right in waiting till the receipt of the report of the Central Advisory Board. (c) The consequential delay on part of the Detaining Authority in considering the representati....
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....ard. 11. As regards the first issue, following decisions are noteworthy:- A) In Ibrahim Bachu Bafan vs. State of Gujarat and others (1985) 2 SCC 24 a Bench of three Judges of this Court, while considering the scope of Section 11 of the COFEPOSA Act and Section 21 of 1897 Act - The General Clauses Act, 1897, made following observations:- "7. ... .... The heading of Section 11 is "Revocation of Detention Orders". Sub-section (1) authorises revocation by two authorities, namely, - (a) if the order has been made by an officer of a State Government, the State Government or the Central Government may revoke the order; and (b) if the order has been made by an officer of the Central Government or by a State Government, revocation is permissible by the Central Government. Sub-section (1) of Section 11 indicates that the power conferred under it in the situations envisaged in Clauses (a) and (b) is exercisable without prejudice to the provisions of Section 21 of the General Clauses Act. That section provides that a power to issue orders includes a power exercisable in the like manner and subject to the like sanction and conditions, if any, to add, to amend, vary or rescind suc....
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....he State Government and the Central Government. (2) Whether for the purposes of the Act, there is any difference between an order of detention passed by an officer of the State Government or the Central Government, solely in exercise of the powers conferred on him under Section 3 by the respective government and an order of detention passed by the State Government or the Central Government as the case may be through an officer who in addition to conferment of powers under Section 3 is also empowered under the Standing Rules framed under the Rules of Business of the government, to act on behalf of the government. (3) Whether by reason of the fact that an order of detention is passed by an officer of the State Government or the Central Government specially empowered to act under Section 3 of the Act, a detenu acquires a constitutional right to have his representation first considered by the very officer issuing the detention order before making a representation to the State Government and the Central Government." While considering the scheme of the COFEPOSA Act, including the ambit of Section 11, it was observed:- "19. We may now examine the scheme of th....
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....al Government or the State Government if he makes the order of detention in exercise of the powers conferred on him under Section 3(1). Lastly, Section 11, which deals with the powers of revocation of the State Government and the Central Government provides that notwithstanding that an order of detention had been made by an officer of a State Government, the concerned State Government as well as the Central Government are entitled to revoke or modify the order of detention. Similarly, as per clause (b) notwithstanding that an order of detention has been made by an officer of the Central Government or by a State Government, the Central Government has been empowered to revoke or modify an order of detention. The section does not confer any power of revocation on an officer of the Central or State Government nor does it empower the Central or State Government to delegate the power of revocation to any of its officers. We may further add that even though Section 11 specifies that the powers of revocation conferred on the Central Government/State Government are without prejudice to the provisions of Section 21 of the General clauses Act, this reservation will not entitle a specially emp....
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....ning authority under the Act and not the officer concerned who made the order of detention, and it is to that government the detenu should be afforded opportunity to make representation against the detention order at the earliest opportunity, as envisaged under Article 22(5) and not to the officer making the order of detention in order to provide the detenu an opportunity to make a further representation to the State Government and thereafter to the Central Government if the need arises for doing so. Though by reason of Section 3(1) a specially empowered officer is entitled to pass an order of detention, his constitutional obligation is only to communicate expeditiously to the detenu the grounds of detention and also afford him opportunity to make representation to the appropriate governments against his detention. The only further duty to be performed thereafter is to place the representation made by the detenu before the concerned officer or the Minister empowered under the Rules of Business of the government to deal with such representation if the detenu addresses his representation to the officer himself." It was thus held that the constitutional obligation of a specially em....
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....with respect to any person with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from doing any one of the five prejudicial acts enumerated thereunder. Sub-section (2) of that section provides that when any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. It is evident from this provision that whenever a detention order is made by the State Government or its officer specially empowered for that purpose an obligation is cast on the State Government to forward a report to the Central Government in respect of that order within ten days. The purpose of this provision is clearly to enable the Central Government to keep an eye on the exercise of power under Section 3(1) by the State Government or its officer. Then comes subsection (3) which reads as under: 3. (3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on ....
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....the Central Government are empowered to revoke the detention order. Where, however, the detention order is passed by an officer of the Central Government or a State Government, the Central Government is empowered to revoke the detention order. Now this provision is clearly without prejudice to Section 21 of the General Clauses Act which lays down that where by any Central Act a power to issue orders is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to rescind any order so issued. Plainly the authority which has passed the order under any Central Act is empowered by this provision to rescind the order in like manner. This provision when read in the context of Section 11 of the Act makes it clear that the power to rescind conferred on the authority making the detention order by Section 21 of the General Clauses Act is saved and is not taken away. Under Section 11 an officer of the State Government or that of the Central Government specially empowered under Section 3(1) of the Act to make a detention order is not conferred the power to revoke it; that power for those officers has to be traced to Sect....
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.... When an order for preventive detention is passed by an officer especially empowered to do so by the Central Government or the State Government, is the said officer required to consider the representation submitted by the detenu?" The matter was considered as under:- "6. This provision has the same force and sanctity as any other provision relating to fundamental rights. (See: State of Bombay v. Atma Ram Shridhar Vaidya 1951 SCR 167 = AIR 1951 SC 157.) Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he ....
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....e Government as well as to the Central Government and the representation against an order made by an officer specially empowered by the Central Government can be made to the officer who has made the order as well as to the Central Government." After considering relevant decisions, this Court did not accept the law laid down in Sushila Mafatlal Shah (1988) 4 SCC 490 and observed:- "30. The decision in Sushila Mafatlal Shah (1988) 4 SCC 490 proceeds on two premises: (i) Article 22(5) does not confer a right to make a representation to the officer specially empowered to make the order; and (ii) under the provisions of the COFEPOSA Act when the order of detention is made by the officer specially empowered to do so, the detaining authority is the appropriate Government, namely, the Government which has empowered the officer to make the order, since such order acquires "deemed approval" by the Government from the time of its issue. 31. With due respect, we find it difficult to agree with both the premises. Construing the provisions of Article 22(5) we have explained that the right of the person detained to make a representation against the order of detent....
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.... in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making. It is also the requirement of Section 3(4) that the report should be accompanied by the grounds on which the order has been made and such other particulars as, in the opinion of the said officer, have a bearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention. The effect of the approval by the State Government is that from the date of such approval the detention is authorised by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approval. That appears to be the reason why Section 8(1) envisages that the representation against the order of detention is to be made to the State Government. The COFEPOSA Act and the PIT NDPS Act do not require the appro....
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....purpose by the Government concerned. Merely because the order of detention has been made by the officer who has been specially empowered for that purpose would not, in our opinion, justify the inference that the said order acquires deemed approval of the Government that has so empowered him, from the date of the issue of the order so as to make the said Government the detaining authority. By specially empowering a particular officer under Section 3(2) of the COFEPOSA Act and the PIT NDPS Act the Central Government or the State Government confers an independent power on the said officer to make an order of detention after arriving at his own satisfaction about the activities of the person sought to be detained. Since the detention of the person detained draws its legal sanction from the order passed by such officer, the officer is the detaining authority in respect of the said person. He continues to be the detaining authority so long as the order of detention remains operative. He ceases to be the detaining authority only when the order of detention ceases to operate. This would be on the expiry of the period of detention as prescribed by law or on the order being revoked by the of....
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....resentation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation. 12. With the judgment of the Constitution Bench of this Court in Kamleshkumar (1995) 4 SCC 51, the law on the first issue is well settled....
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....may be" and "the earliest opportunity" in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detaining authority to whom it is to be made which has to consider it. Though clause 5 does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enabling it to detain him. The illustrations given in Sk. Abdul Karim case show that clause 5 of Article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections....
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.... from the point of view of arriving at its opinion whether there is sufficient cause for detention. The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Government's obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion. 11. This conclusion is strengthened by the other provisions of the Act. In conformity with clauses 4 and 5 of Article 22, Section 7 of the Act enjoins upon the detaining authority to furnish to the detenu grounds of detention within five days from the date of his detention and to afford to the detenu the earliest opportunity to make his representation to the appropriate Government. Sections 8 and 9 enjoin upon the appropriate Government to constitute an Advisory Board and to place within 30 days from the date of the detention the grounds for detention, the detenu's representation and also the report of the officer where the order of detention is made by an officer and not by the Government. The obligation under Section 7 is quite di....
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....dvisory Board on 01.07.1969 which reported on 13.08.1969 that there was sufficient cause for the detention. It was only thereafter that the representation was considered and rejected on 19.08.1969. In the context of these facts, it was observed:- "13. It, therefore, follows that the appropriate authority is to consider the representation of the detenu uninfluenced by any opinion or consideration of the Advisory Board. In the case of Khairul Haque v. State of W.B. - W.P. No.246 of 1969, decided on 10-9-69 this Court observed that "it is implicit in the language of Article 22 that the appropriate Government, while discharging its duty to consider the representation cannot depend upon the views of the Board on such representation". The logic behind this proposition is that the Government should immediately consider the representation of the detenu before sending the matter to the Advisory Board and further that such action will then have the real flavour of independent judgment. ... ... ... 18. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The app....
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....rnment will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release 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. (Emphasis Added) 21. In the present case, the State of West Bengal is guilty of infraction of the constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting of the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment." C) In ....
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....ority would first consider it and then send the representation to the Advisory Board. D) In Frances Coralie Mullin vs. W.C. Khambra (1980) 2 SCC 275, a bench of two Judges of this Court considered the principles laid down in Jayanarayan Sukul -(1970) 1 SCC 219 [Jayanarayan Sukul vs. State of West Bengal] and made following observations:- "5. We have no doubt in our minds about the role of the court in cases of preventive detention: it has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. The Court's writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Article 22(5) vests in the detenu the right to be provided with an opportunity to make a representation. Here the Law Reports tell a story and teach a lesson. It is that the principal enemy of the detenu and his right to make a representation is neither high-handedness nor meanmindedness but the casual indifference, the mindless insensibility, the routine and the red tape of the bureaucratic machine. The four principles enunciated by the Cou....
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....that the Government should come to its decision on the representation before the Government forwarded the representation to the Advisory Board, the emphasis was not on the point of time but on the requirement that the Government should consider the representation independently of the Board. This was explained in Nagendra Nath Mondal v. State of W.B (1972) 1 SCC 498. In Sukul case -(1970) 1 SCC 219 [Jayanarayan Sukul vs. State of West Bengal] the court also made certain pertinent observations at pp. 231-232: (SCC p. 224, para 19) "No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible...." E) In K.M. Abdullah Kunhi (1991) 1 SCC 476, in view of the conflict between two decisions of this Court the matter was referred to the Constitution Bench as is clear from paragraphs 1 and 2 of said decision:- "1. A Division Bench of this Court while expressing ....
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.... Central Government on 23.05.1989. In the backdrop of these facts, the question that arose was:- "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." After considering the relevant decisions on the point, including Pankaj Kumar Chakrabarty (1969) 3 SCC 400 = (1970) 1 SCR 543, Jayanarayan Sukul (1970) 1 SCC 219 [Jayanarayan Sukul vs. State of West Bengal], Haradhan Saha (1975) 3 SCC 198 and Frances Coralie Mullin (1980) 2 SCC 275 this Court observed:- "15. In Frances Coralie Mul....
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....oper 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 after the receipt of the report of the Board. If the representation is received by the government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the government as early as possible. (Emphasis added) ... ... ... 19. There is no constitutional mandate under cla....
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....h representation and release the detenu if the detention is not within the power conferred under the statute. 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. With all respect, we are not inclined to subscribe to the views expressed in V.J. Jain, Om Prakash Bahl and Khairul Haque cases. They cannot be considered to be good law and hence stand overruled." Two situations were considered in paragraph 16 by this Court. One, where the representation is received just before the case is referred to the Advisory Board and ther....
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....ency of the proceedings before the Advisory Board is of no consequence to sustain the detention. Consequently, the order of confirmation as well is rendered non est by this vitiation. In view of the determination made on the above aspect of the debate, we do not consider it necessary to dilate on the other pleas raised on behalf of the detenu. In the result, the appeal succeeds. The impugned judgment and order is set aside. The orders of detention as well as the order of confirmation are hereby annulled. The detenu is directed to be set at liberty, if not wanted in any other case." Thus, failure on part of the appropriate Government to forward the representation to the Advisory Board and rejection thereof while the proceedings were pending before the Advisory Board, were the points on which the relief was granted to the detenue. 14. In the context of the second issue stated earlier, the principles that emerge from the decisions referred to above are:- A) In Pankaj Kumar Chakrabarty (1969) 3 SCC 400 = (1970) 1 SCR 543, it was laid down:- "the petitioners had a constitutional right and there was on the State Government a corresponding constitutional obligation to co....
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.... "If the representation of the detenu is received before the matter is referred to the Advisory Board, the detaining authority considers the representation. If a representation is made after the matter has been referred to the Advisory Board, the detaining authority will consider it before it will send representation to the Advisory Board." D) In Frances Coralie Mullin (1980) 2 SCC 275, the principle that the consideration by the Detaining Authority of the representation must be entirely independent of the hearing by the Board or its report was again stressed with emphasis on "expedition being essential at every stage" Para 7 of the decision explained the principles in Jayanarayan Sukul (1970) 1 SCC 219 as:- "when it was said there that the Government should come to its decision on the representation before the Government forwarded the representation to the Advisory Board, the emphasis was not on the point of time but on the requirement that the Government should consider the representation independently of the Board." 15. These decisions clearly laid down that the consideration of representations by the appropriate Government by the Board would always be q....
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....h cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition. 16. There can be no difficulty with regard to the applicability of the principles in the 1st and the 4th stage of the aforesaid categories. The difficulty may arise as regards the application of principles at the 2nd and the 3rd stage. But that difficulty was dealt with sufficient clarity in Jayanarayan Sukul15 and Haradhan Saha16 as stated hereinabove. If it is well accepted that the representation must be considered with utmost expedition; and the power of the Government is completely independent of the power of the Advisory Board; and the scope of consideration is also qualitatively different, there is no reason why the consideration by the Government must await the decision by the Advisory Board. None of the aforesaid cases even remotely suggested that the consideration must await till the report was received from the Advisory Board. 17. However, it was for the first time that the decision in K.M. Abdulla Kunhi (1991) 1 SCC 476 laid down in paragraph 16 that it would be proper for the Government in the two situations ....
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....ially empowered officer but by the concerned Government. The same logic regarding deemed approval was extended initially in Sushila Mafatlal Shah (1988) 4 SCC 490 to cases where the orders of detention were passed not by the concerned Government but by a specially empowered officer. The matter was, however, corrected and the distinction in that behalf was succinctly dealt with in Kamleshkumar (1995) 4 SCC 51. 21. It must also be borne in mind that in all cases, the appropriate Government would be acting in two capacities; one while considering the representation and the other while taking appropriate decision after a report is received from the Advisory Board that there is sufficient cause for detention. Since the decision would be required to be taken in these two capacities, it was observed in K.M. Abdulla Kunhi (1991) 1 SCC 476 that it would be proper for the appropriate Government to wait till the report is received from the Advisory Board in cases dealt with in paragraph 16 of the decision. But such may not be the case with the Detaining Authority who is a specially empowered officer. 22. A specially empowered officer who passes the order of detention, in exe....
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....n any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential; (f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith." 23. In terms of Section 8, the report of the Advisory Board is meant only for the consumption of the appropriate Government and apart from the operative part of the report which is to be specified in a separate paragraph as per sub-section (c), the mandate in terms of sub-section (e) is to keep the report of the Advisory Board completely confidential. Thus, a specially empowered officer who may have passed the order....
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....priate Government and not by the specially empowered officer. The principle laid down in said paragraph 16 has therefore to be understood in the light of the subsequent decision rendered by another Constitution Bench of this Court in Kamleshkumar (1995) 4 SCC 51. 26. In the light of the aforesaid discussion, our answer to first two questions is that the Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board. We now come to the 3rd question. The facts in the instant case indicate that the comments of the Sponsoring Authority in respect of the representation were already received by the Detaining Authority. After receipt of letter on 27.11.2019 that the detenues were received in custody, the time for considering the representation started ticking for the Detaining Authority. But the representation was considered only on 14.01.2020 and the reason for such delayed consideration is that the report of the Central Advisory Board was awaited. We have already found that the Detaining Authority was obliged to consider the representation without waiting for the opinion of the Central Advisory Board. ....
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....t am unable to persuade myself to agree with the views expressed by him. For the sake of brevity the facts are not repeated here. 2. In my view, the decision in K. M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and Others (1991) 1 SCC 476 covers the issue raised, as once the matter has been sent to the Advisory Board, the representation received thereafter is required to be forwarded to it as well. However, the Detaining Authority retains its right to revoke this detention order dehors the opinion of the Central Advisory Board. 3. Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - for short "COFEPOSA Act" empowers the Central Government, the State Government or the specially empowered Officer of the rank not below the rank of the Joint Secretary of the Central Government or Secretary of the State Government, to make an order, directing a person to be detained. The Detaining Authority has jurisdiction to revoke the detention order in view of Section 21 of the General Clauses Act, 1897- for short "1897 Act", whereas, an appropriate Government passes an order of revocation of detention or confirmation of the....
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....rd, no sufficient cause for detention is found, then revoke the detention order. In this factual background, this Court held as under: "20. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, 'the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory B....
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....disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning." 8. This Court in Vimalchand Jawantraj Jain after quoting from Khairul Haque's case, held as under: "4. There are thus two distinct safeguards provided to a detenu; one is that his case must be referred to an Advisory Board for its opinion if it is sought to detain him for a longer period than three months and the other is he should be afforded the earliest opportunity of making a representation against the order of detention and such representation should be considered by the Detaining Authority as early as possible before any order is made confirming the detention. Neither safeguard is dependent on the other and both have to be observed by the Detaining Authority. It is no answer for the Detaining Authority to say that the representation of the detenu was sent by it to the Advisory Board and the Advisory Board has considered the representation and then made a report expressing itself in favour of detention. Even if the Advisory Board has glade a report stating that in its opinion there i....
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.... 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. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved. The burden of explaining the necessity for the slightest departure from the time- imperative is on the Detaining Authority." (Emphasis supplied) 11. The judgments of this Court in Vimalchand Jawantraj Jain and Frances Coralie Mullin were considered by the Constitution Bench in K. M. Abdulla Kunhi wherein, the judgment in Vimalchand Jawantraj Jain, Khairul Haque and Om Prakash Bahl v. Union of India W.P. NO. 845 of 1979 decided on October 15, 1979 were overruled and that of Frances Coralie Mullin was approved. The Constitution Bench held as under: "11. It is now beyond the pale of controversy that the constitutional right to make representation under Clause....
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....de. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even 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....
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....esentation. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government." (Emphasis supplied) 14. The Constitution Bench of this Court in K.M. Abdulla Kunhi further examined the situation that if the detenu makes a representation after his detention is confirmed according to the procedure laid down under Section 8 of the COFEPOSA Act, the Government still has to consider such representation and assess whether the detention is not within the power conferred under the law. The Court held as under: "20. The words 'shall afford him the earliest opportunity of making a representation against the order' in clause (5) of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under Section 8 of the Act. But if the detenu does not exercise his right to make representation at that stage, but presents it to the government after the Government has confirmed the order of detention, the Government still has to cons....
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....ention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation." 17. The Constitution Bench held that when a detention order has been passed by an Officer specially empowered for that purpose, the detenu has a right to make a representation against the order of detention to the said Officer. The failure of the Detaining Authority in considering such representation results in the denial of the right conferred on the detenu to make a representation against the order of detention. This right of the detenu is in addition to his right to make a representation to the State and the Central Government. 18. In Criminal Appeal Nos. 764-765 of 1994, the Constitution Bench of this Court in Kamleshkumar Ishwardas Patel considered three questi....
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....material with regard to detention. The consideration by the Detaining Authority is separate and distinct to the consideration of the revocation of the detention order and the consideration by the appropriate Government at the time of assessing the recommendation of the Advisory Board. Thus, it is immaterial if the detention order was passed by a specially empowered Officer or the State Government or the Central Government as all such authorities have similar jurisdiction to revoke the detention order. Clause (5) of Article 22 protects the right of the detenu by giving him the right to submit representation, which is required to be considered by the Detaining Authority, provided it is not delayed without any reason. On the other hand, the detention of the detenu beyond three months can be only on the basis of the report of the Advisory Board in respect of sufficiency of material to detain the detenu beyond the period of three months. Such right is conferred on the detenu by clause (4) of Article 22 of the Constitution. 20. The judgment in K. M. Abdulla Kunhi had been examined by another Division Bench judgment in Golam Biswas v. Union of India and Another (2015) 16 SCC 177, where....
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....ose of a representation of a detenu, preventively detained, has to be harmoniously construed with the obligation cast on it to forward a pending representation to the Advisory Board as has been consistently held in Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92] and K.M. Abdulla Kunhi [K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 : 1991 SCC (Cri) 613]" 21. This Court held that the representation of the detenu was not forwarded to the Advisory Board and instead rejected during the pendency of the proceedings before the Advisory Board. Thus, the Court was constrained to hold that the detention of the detenu was constitutionally invalid. It was held as under: "15. As admittedly, the detenu's representation dated 8- 7-2014, pending with the Central Government, the appropriate Government in the case, was not forwarded to the Advisory Board and was instead rejected during the pendency of the proceedings before the Advisory Board, we are constrained to hold that the detention of the detenu is constitutionally invalid. The rejection of the representation by the Central Government later on 21-7- 2014 during the pendency ....