ANKIT ASHOK JALAN versus UNION OF INDIA AND ORS.

[2020] 2 S.C.R. 1047

ANKIT ASHOK JALAN

UNION OF INDIA AND ORS.

(Writ Petition (Criminal) No. 362 of 2019)

MARCH 04, 2020

[UDAY UMESH LALIT, INDU MALHOTRAAND HEMANT GUPTA, JJ.]

Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974: s.3(1) – Detention order made unders.3 by an officer specially empowered for that purpose by theGovernment – Whether the representation can independently bemade to and must be considered by the Detaining Authority who isa special empowered officer of the concerned government andwhether in certain circumstance the Detaining Authority ought todefer consideration of such representation till the report is receivedfrom the Advisory Board – Held: (Per Majority) Where the detentionorder is made inter alia under s.3 by an officer specially empoweredfor that purpose either by the Central Government or the StateGovernment, the person detained has right to make arepresentation to the said officer; and the said officer is obliged toconsider the said representation; and the failure on his part to doso would result in denial of right conferred on the person detainedto make representation – specially empowered officer who passesthe order of detention, in exercise of special empowerment, has nostatutory role to play at the stage when the report is received fromthe Advisory Board – The report is to be considered by theappropriate Government and not by the specially empowered officer– In terms of s.8, the report of the Advisory Board is meant only forthe consumption of the appropriate Government and apart from theoperative part of the report which is to be specified in separateparagraph 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, specially empowered officer who may have passed theorder of detention, by statutory intent is not to be privy to the reportnor does the statute contemplate any role for such speciallyempowered officer at the stage of consideration of the opinion of

CDEF

Athe Advisory Board – Thus, the Detaining Authority is obliged toconsider the representation without waiting for the opinion of theCentral Advisory Board – In the instant case, there was no validexplanation for non-consideration of the representation of detenuesfrom 27.11.2019 till 14.01.2020 – Therefore, complete inaction onpart of the Detaining Authority in considering the representationBcaused prejudice to the detenues and violated their constitutionalrights – Detention orders are quashed – (Dissenting - Per HemantGupta, J.) – s.3 empowers the Central Government, the StateGovernment or the specially empowered officer to make an order,directing person to be detained – Once the detention order hasCbeen made by any of the authorities competent to detain in terms ofs.3(1), the representation to seek revocation of the detention ordercan be considered and decided by the Detaining Authority dehorsthe decision of the Advisory Board and the acceptance ofrecommendation by the appropriate Government – The consideration

for revocation of detention order is limited to examining whetherDthe order conforms with the provisions of law whereas therecommendation of the Advisory Board is on the sufficiency ofmaterial for detention, which alone is either confirmed or notaccepted by the appropriate Government – It would be matter ofprudence and propriety for the Detaining Authority to defer theEdecision on the representation to revoke the detention order, whenthe matter is being considered by the Advisory Board, consisting ofthree sitting Judges of the High Court – The consideration of therepresentation by the Detaining Authority in these circumstancescannot be said to be delayed as the representation was receivedafter the matter was referred to the Advisory Board.F

Allowing the writ petitions, the Court

HELD:

Per Uday Umesh Lalit, J. (for himself and Indu Malhotra,

1. Where the detention order is made inter alia underSection 3 of the COFEPOSA Act by an officer speciallyempowered for that purpose either by the Central Governmentor the State Government, the person detained has right to makea representation to the said officer; and the said officer is obligedHto consider the said representation; and the failure on his part to

do so would result in denial of the right conferred on the persondetained to make representation. Further, such right of thedetenue has been taken to be in addition to the right to make therepresentation to the State Government and the CentralGovernment. It must be stated that para 12 of the grounds ofdetention in the instant case is in tune with the law so declaredby this Court. [Para 12][1079 D-G]

2.1 In Pankaj Kumar Chakrabarty, it was stated that theobligation on part of the Government to consider representationwould be irrespective whether the representation was made beforeor after the case was referred to the Advisory Board. As statedin paragraph 18, this was stated so, as any delay in considerationof the representation would not only be an irresponsible act onpart of the appropriate authority but also unconstitutional. Thecontingency whether the representations were received beforeor after was again considered in para 29 of the decision inHaradhan Saha. In terms of these principles, the matter ofconsideration of representation in the context of reference tothe Advisory Board, can be put in following four categories:-

A) If the representation is received well before thereference is made to the Advisory Board and can beconsidered by the appropriate Government, therepresentation must be considered with expedition.Thereafter the representation along with the decision takenon the representation shall be forwarded to and must formpart of the documents to be placed before the AdvisoryBoard.

B) If the representation is received just before thereference is made to the Advisory Board and there is nosufficient time to decide the representation, in terms oflaw laid down in Jayanarayan Sukul and Haradhan Sahathe representation must be decided first and thereafter therepresentation and the decision must be sent to theAdvisory Board. This is premised on the principle that theconsideration by the appropriate Government is completelyindependent and also that there ought not to be any delayin consideration of the representation.

AC) If the representation is received after the reference ismade but before the matter is decided by the AdvisoryBoard, according to the principles laid down in HaradhanSaha, the representation must be decided. The decision aswell as the representation must thereafter be immediatelysent to the Advisory Board.BD) If the representation is received after the decision ofthe Advisory Board, the decisions are clear that in suchcases there is no requirement to send the representationto the Advisory Board. The representation in such casesmust be considered with expedition. [Para 15][1096 B-H;C1097-A]2.2 There can be no difficulty with regard to the applicabilityof the principles in the 1[st] and the 4[th] stage of the aforesaidcategories. The difficulty may arise as regards the application ofprinciples at the 2[nd] and the 3[rd] stage. But that difficulty was dealtDwith sufficient clarity in Jayanarayan Sukul and Haradhan Saha.If it is well accepted that the representation must be consideredwith utmost expedition; and the power of the Government iscompletely independent of the power of the Advisory Board; andthe scope of consideration is also qualitatively different, there isEno reason why the consideration by the Government must awaitthe decision by the Advisory Board. None of the aforesaid caseseven remotely suggested that the consideration must await tillthe report was received from the Advisory Board. However, itwas for the first time that the decision in K.M. Abdulla Kunhi laiddown in paragraph 16 that it would be proper for the GovernmentFin the two situations dealt with in said paragraph to await thereport of the Board; those two situations being:- a) where therepresentation is received before the matter is referred to theAdvisory Board and where there may not be sufficient time todispose of the representation before referring the case to theGAdvisory Board, and b) where the representation is received afterthe case is referred to the Advisory Board. It was also laid down:-“In both the situations there is no question of consideration ofthe representation before the receipt of report of the AdvisoryBoard.” Since the decision of this Court in K.M. Abdulla Kunhiwas rendered by the Constitution Bench of this Court afterH

considering all the earlier decisions on the point including thosein Pankaj Kumar Chakrabarty, Jayanarayan Sukul and HaradhanSaha, the principles laid down therein are binding. [Para 16, 17,18][1097 B-H]

3. In Pankaj Kumar Chakrabarty and in Jayanarayan Sukul,the orders of detention were passed by the District Magistratesunder Section 3(ii) of 1950 Act. The relevant statutory provisionscontemplated the concept of approval within 12 days of the passingof such orders of detention passed by the District Magistrates.In Haradhan Saha power was exercised by the DistrictMagistrates under the provisions of the MISA, wherein similarconcept of approval on part of the State Government within 12days of the passing of the order of detention by the DistrictMagistrate was contemplated. The distinction on that count wasnoted by this Court in para 34 of the decision in Kamlesh kumar.The orders of detention in these decisions were not passed by aspecially empowered officer but by the concerned Government.The same logic regarding deemed approval was extended initiallyin Sushila Mafatlal Shah to cases where the orders of detentionwere passed not by the concerned Government but by speciallyempowered officer. The matter was, however, corrected and thedistinction in that behalf was succinctly dealt with inKamleshkumar. [Para 20][1098 B-E]

4. It must also be borne in mind that in all cases, theappropriate Government would be acting in two capacities; onewhile considering the representation and the other while takingappropriate decision after report is received from the AdvisoryBoard that there is sufficient cause for detention. Since thedecision would be required to be taken in these two capacities, itwas observed in K.M. Abdulla Kunhi that it would be proper forthe appropriate Government to wait till the report is receivedfrom the Advisory Board. But such may not be the case with theDetaining Authority who is specially empowered officer. [Para21][1098 E-G]

5. specially empowered officer who passes the order ofdetention, in exercise of special empowerment, has no statutoryrole to play at the stage when the report is received from the

AAdvisory Board. The report is to be considered by the appropriateGovernment and not by the specially empowered officer. It mayalso be relevant at this stage to consider the element ofconfidentiality associated with the report of the Advisory Board.In terms of Section 8, the report of the Advisory Board is meantonly for the consumption of the appropriate Government and apartBfrom the operative part of the report which is to be specified in aseparate paragraph as per sub-section (c), the mandate in termsof sub-section (e) is to keep the report of the Advisory Boardcompletely confidential. Thus, specially empowered officer whomay have passed the order of detention, by statutory intent isCnot to be privy to the report nor does the statute contemplateany role for such specially empowered officer at the stage ofconsideration of the opinion of the Advisory Board. The reportof the Advisory Board may provide some qualitative inputs forthe appropriate Government but none to the specially empowered

officer who acted as the Detaining Authority. [Paras 22, 23][1098DG-H; 1100 D-F]

6. When K.M. Abdulla Kunhi was decided on 23.01.1991,the decision that was holding the field as to the role of speciallyempowered officer who had passed an order of detention, wasone rendered in Sushila Mafatlal Shah. The law that was holdingEthe field was the concept of deemed approval as was explained inSushila Mafatlal Shah and any representation made to suchspecially empowered officer who had passed the order ofdetention, in terms of the decision in Sushila Mafatlal Shah[, ]couldbe considered by the appropriate Government itself and not

Fseparately by such specially empowered officer. The subsequentdecision in Amir Shad Khan was rendered by Bench of threeJudges on 09.08.1991 and the apparent conflict in the decisionsbetween Sushila Mafatlal Shah and Amir Shad Khan was resolvedby the Constitution Bench of this Court in Kamleshkumarrendered on 17.04.1995, i.e. well after the decision in K.M. AbdullaGKunhi. Thus, if the law is now settled that representation canbe made to the specially empowered officer who had passed theorder of detention in accordance with the power vested in himand the representation has to be independently considered bysuch Detaining Authority, the concerned principles adverted toHin paragraph 16 of the decision in K.M. Abdulla Kunhi would not

be the governing principles for such specially empowered officer.It must be stated that the discussion in K.M. Abdulla Kunhi waspurely in the context where the order of detention was passed bythe appropriate Government and not by the specially empoweredofficer. The principle laid down in said paragraph 16 has thereforeto be understood in the light of the subsequent decision renderedby another Constitution Bench of this Court in Kamleshkumar.The Detaining Authority ought to have considered therepresentation independently and without waiting for the reportof the Central Advisory Board. [Paras 24, 25, 26][1100 F-H; 1101A-F]7. The facts in the instant case indicate that the commentsof the Sponsoring Authority in respect of the representation werealready received by the Detaining Authority. After receipt of letteron 27.11.2019 that the detenues were received in custody, thetime for considering the representation started ticking for theDetaining Authority. But the representation was considered onlyon 14.01.2020 and the reason for such delayed consideration isthat the report of the Central Advisory Board was awaited. It isalready held that the Detaining Authority was obliged to considerthe representation without waiting for the opinion of the CentralAdvisory Board. Thus, there was no valid explanation for non-consideration of the representation from 27.11.2019 till14.01.2020. Therefore, complete inaction on part of the DetainingAuthority in considering the representation caused prejudice tothe detenues and violated their constitutional rights. [Para26][1101 E-H]

8. There could be clear dichotomy when the representationsare made simultaneously to such specially empowered officer whohad passed the order of detention and to the appropriateGovernment. If we go by the principle in paragraph 16 in K.M.Abdulla Kunhi it would be proper for the appropriate Governmentto wait till the report was received from the Advisory Board, whileat the same time the specially empowered officer who had actedas the Detaining Authority would be obliged to consider therepresentation with utmost expedition. At times singlerepresentation is prepared with copies to the Detaining Authoritynamely the specially empowered officer and to the appropriate

AGovernment as well as to the Advisory Board. In such situationsthere will be incongruity as stated above, which may be requiredto be corrected at some stage. However, such difficulty orinconsistency cannot be the basis for holding that speciallyempowered officer while acting as Detaining Authority wouldalso be governed by the same principles as laid down in paragraphB16 of K.M. Abdulla Kunhi. [Para 27][1102 A-D]

9. Since there was complete inaction on part of the DetainingAuthority in the present case, to whom representation wasaddressed in dealing with the representation in above manner,the constitutional rights of the detenues were violated and theCdetenues are entitled to redressal on that count. Therefore, thecontinued detention of the detenues in terms of the DetentionOrders is held illegal, invalid and unconstitutional. [Para 28][1102

K.M. Abdulla Kunhi and B.L. Abdul Khader v. UnionDof India and others (1991) 1 SCC 476 : [1991] 1 SCR102 – held inapplicable

Golam Biswas v. Union of India and Another (2015) 16SCC 177; Ibrahim Bachu Bafan v. State of Gujarat andothers (1985) 2 SCC 24 : [1985] 2 SCR 891; State ofEMaharashtra and another v. Smt. Sushila Mafatlal Shahand others (1988) 4 SCC 490 : [1988] 2 Suppl. SCR827; Amir Shad Khan v. L. Hmingliana and others(1991) 4 SCC 39 : [1991] 3 SCR 443; KamleshkumarIshwardas Patel vs. Union of India and others [1951]FSCR 167; Pankaj Kumar Chakrabarty and others v.The State of West Bengal (1969) 3 SCC 400 : [1970] 1SCR 543; Frances Coralie Mullin v. W.C. Khambra(1980) 2 SCC 275 : [1980] 2 SCR 1095; JayanarayanSukul (1970) 1 SCC 219 : [1970] 3 SCR 225; HaradhanSaha v. The State of West Bengal and others (1975) 3GSCC 198 : [1975] 1 SCR 778 – referred to

Per Hemant Gupta, J. (Dissenting)

1. Section 3 of the Conservation of Foreign Exchange andPrevention of Smuggling Activities Act, 1974 empowers the

Central Government, the State Government or the speciallyempowered Officer of the rank not below the rank of the JointSecretary of the Central Government or Secretary of the StateGovernment, to make an order, directing person to be detained.The Detaining Authority has jurisdiction to revoke the detentionorder in view of Section 21 of the General Clauses Act, 1897,whereas, an appropriate Government passes an order ofrevocation of detention or confirmation of the order of detentionon receipt of the report of the Advisory Board. The considerationfor the Detaining Authority for revocation, is to see whether thedetention order is in conformity with the power under lawwhereas, the Advisory Board considers the representation toexamine whether there is sufficient cause for detention. Theconsideration of the Advisory Board is an additional safeguardand not substitute for the consideration of the representationby the appropriate Government. [Para 3][1103 B-E]

2.The first part of the consideration of representation, asto whether the order of detention is in conformity with powerunder the law, does not make distinction as to whether theDetaining Authority is the Central or State Government or aspecially empowered Officer in that behalf. The considerationfor detention by the Detaining Authority is confined to examiningwhether the order of detention is in conformity with the powerunder the law. On the other hand, the Advisory Board examinesif there is sufficient cause for detention. The exercise ofjurisdiction by the Government, whilst dealing with therepresentation as detaining authority and whilst consideringthe Advisory Board’s recommendation, is in two separate anddistinct spheres. [Para 4][1103 E-H; 1104 A]

3. In view of K. M. Abdulla Kunhi, once the detention orderhas been made by any of the authorities competent to detain interms of Section 3 (1) of the COFEPOSA Act, the representationto seek revocation of the detention order can be considered anddecided by the Detaining Authority dehors the decision of theAdvisory Board and the acceptance of recommendation by theappropriate Government. The consideration for revocation of adetention order is limited to examining whether the order

ABC

Aconforms with the provisions of law whereas the recommendationof the Advisory Board is on the sufficiency of material fordetention, which alone is either confirmed or not accepted by theappropriate Government. [Para 22][1115 E-G]

4. It is matter of prudence and propriety for the DetainingBAuthority to defer the decision on the representation to revokethe detention order, when the matter is being considered by theAdvisory Board, consisting of three sitting Judges of the HighCourt.The consideration of the representation by the DetainingAuthority in these circumstances cannot be said to be delayed asthe representation was received after the matter was referred toCthe Advisory Board. [Para 23][1115-G; 1116-A]

K. M. Abdulla Kunhi and B.L. Abdul Khader v. Unionof India and Others (1991) 1 SCC 476 : [1991] 1 SCR102 – relied on

DJayanarayan Sukul v. State of West Bengal (1970) 1SCC 219 : [1970] 3 SCR 225; Vimalchand JawantrajJain v. Shri Pradhan and Others (1979) 4 SCC 401 :[1979] 3 SCR 1007; Khairul Haque v. The State of W.B.W.P. No. 246 of 1969 decided on 10-9-69; FrancesCoralie Mullin v. W.C. Khambra and Others (1980) 2ESCC 275 : [1980] 2 SCR 1095; Om Prakash Bahl v.Union of India W.P. NO. 845 of 1979 decided onOctober 15, 1979; Kamleshkumar Ishwardas Patel v.Union of India and Others (1995) 4 SCC 51 : [1995] 3SCR 279; State of Maharashtra & Anr. v. SushilaFMafatlal Shah and others (1988) 4 SCC 490 : [1988] 2Suppl. SCR 827; Amir Shad Khan v. L. Hmingliana andOthers (1991) 4 SCC 39 : [1991] 3 SCR 443; GolamBiswas v. Union of India and Another (2015) 16 SCC177 – referred to

Case Law ReferenceG

Per Uday Umesh Lalit, J.(2015) 16 SCC 177[1991] 1 SCR 102

ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS.

Per Hemant Gupta, J.

CRIMINAL ORIGINAL JURISDICTION: Writ Petiton(Criminal) No.362 of 2019.

[Under Article 32 of the Consitution of India]

Mukul Rohatgi, Neeraj Kishan Kaul, Sr. Advs., Saurabh Kirpal,Sanjay Agarwal, Karan Bharioke, Nikhil Rohatgi, Ashish Batra, SarthakSachdev, Watan Sharma, Amit K. Nain, Advs. for the Petitioner.

K. M. Nataraj, ASG, Sharath Nambiar, Kanu Agarwal, VinayakSharma, Shreekanth P.S., Ms. Priyanka S. Bhat, B. Krishna Prasad,Advs. for the Respondents.

The Judgments* of the Court were delivered by

UDAY UMESH LALIT, J.

1. This petition under Article 32 of the Constitution of India praysfor quashing of the Detention Orders[1 ]dated 01.07.2019and for directionthat the detenues be set at liberty.

Bunder:

2. The facts leading to the filing of this petition, in brief, are as

(a) On 01.07.2019, Joint Secretary to the Government of India,specially empowered under Section 3(1) of the COFEPOSA Act[2 ]passedthe Detention Orders after being satisfied that with view to preventCthe detenues from smuggling goods, abetting the smuggling of goods,and dealing in smuggled goods otherwise than by engaging in transportingor concealing or keeping smuggled goods, in future, it was necessary tomake the said Detentions Orders.

b) The detenues were served with the Detention Orders, thegrounds of detention andthe relied upon documents on 02.07.2019. TheDgrounds of detention, in para 12, recited as under:-

“You ……….. have the right to represent against your detentionto the Detaining Authority, to the Central Government as well asto the Advisory Board. If you wish to avail this right, you shouldsend your representation through the Jail Authorities where youEare detained, in the manner indicated below:

(a) Representation meant for the Detaining Authority shouldbe addressed to the Joint Secretary (COFEPOSA),Government of India, Ministry of Finance, Department ofRevenue, Central Economic Intelligence Bureau, 6[th] Floor,B-Wing, Janpath Bhawan, New Delhi-110001.

(b) Representation meant for the Central Government shouldbe addressed to the Director General, Central EconomicIntelligence Bureau, Government of India, Ministry ofFinance, Department of Revenue, 6[th] Floor, B-Wing,Janpath Bhawan, New Delhi-110001.

1 Nos.PD-12001/34/2019-COFEPOSA and PD-12001/35/2019-COFEPOSA, bothdated 01.07.2019, issued by the Respondent No.2 against Shri Ashok Kumar Jalan andShri Amit Jalan respectively

2 The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974

*Ed. Note : One Judgment delivered by Uday Umesh Lalit, J. (for himself and InduHMalhotra, J.). The other Judgment delivered by Hemant Gupta, J.

(c) Representation meant for the Advisory Board should beaddressed to the Chairman, COFEPOSA Advisory Board,Delhi High Court, Sher Shah Road, New Delhi-110002.

(c) On 18.07.2019 the cases of the detenues were referred tothe Central Advisory Board[3] along with the grounds of detention andrelied upon documents.

(d) On 22.07.2019 representation dated 17.07.2019 made on behalfof both the detenues, addressed to the Joint Secretary (COFEPOSA),Government of India, Ministry of Finance, Department of Revenue wasreceived through the Presidency Correctional Home, Alipore, Kolkata.The representation stated inter alia:-

“9….(iii) To enable me to make an effective representation at theearliest opportunity, I may please be forthwith provided with-

a)a copy of the Retraction Petition of Shri Anand stated to berelied upon in the grounds of detention;

b)a copy of the pen-drive or CD/DVD of the CCTV footagedirected by the CMM to be submitted on 18[th] June, 2019 mayplease be provided to me and may please be shown to me ona laptop or any other device.

10. Kindly note that unless the aforesaid prayers are consideredexpeditiously, I am unable to make my final representation to theCentral Government and the Advisory Board, etc. Therefore, theinstant representation may please be considered as expeditiouslyas possible in true spirit of Article 22(5) read with Articles 14 &21 of the Constitution of India.”

(e) On 24.07.2019, the representation was forwarded to theSponsoring Authority, namely, DRI, Kolkata for its comments which werereceived on 29.07.2019. Said representation as well as the para-wisecomments received from the Sponsoring Authority were forwardedon31.07.2019 to the Central Advisory Board. The meeting of the CentralAdvisory Board was scheduled to be held on 02.08.2019.

(f) On 02.08.2019 itself, Writ Petition No.1840 of 2019 preferredon behalf of the detenues was allowed by the High Court[4] on the groundsthat when the detenues were in judicial custody and there was no

3 The Central Advisory Board, Delhi High Court, New Delhi

4 The High Court of Delhi at New Delhi

Aimminent possibility of their release on bail and when not even bailapplication was preferred by them, the power of preventive detentionought not to have been exercised; and, that non-placement of relevantmaterial 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 thatBthe detenues be released forthwith.

(g) In its Meeting dated 02.08.2019, the Central Advisory Boardrecorded that since the Detention Orders were quashed, there was nopossibility of proceeding further in the matter.C(h) The decision of the High Court was challenged in CriminalAppeal No.1746 of 2019 in this Court, which by its Judgment and orderdated 22.11.2019 set aside the view taken by the High Court. Whileallowing the appeal, the detenues were directed to be taken into custodyforthwith. The Detaining Authority was thereafter informed by the JailSuperintendent on 27.11.2019 that the detenues were received in custodyDin pursuance of the decision of this Court.

(i) On 02.12.2019 direction was issued to process the files ofthe detenues for reference to the Central Advisory Board. After obtainingappropriate approval, the case was referred to the Central AdvisoryBoard on 05.12.2019 stating inter alia:-

“Keeping in view the judgment dated 03.06.2015 of the ApexCourt delivered in Crl.Appeal No.829 of 2015 arising out ofSLP(Crl) No.2489 of 2015 – Golam Biswas v. Union of India, thesaid representations will be considered for disposal by thecompetent authority only after receipt of opinion of the Hon’bleFBoard.”

3. The instant writ petition was filed on or about 16[th] December,2019 challenging the stand taken in the communication dated 05.12.2019that the representation would be considered only after the receipt of theopinion of the Central Advisory Board. It was submitted that theGrepresentation ought to be considered independently by the DetainingAuthority and without waiting for the report of the Central AdvisoryBoard; and that the delay in consideration of such representation violatedthe rights of the detenues guaranteed by the Constitution of India. Soonthereafter, another representation reiterating the stand as aforesaid wasmade by the Advocate for the detenues on 18.12.2019.H

4. On 18.12.2019 notice was issued by this Court,whereafter, anaffidavit in reply was filed on behalf of the respondents stating interalia:-

(a) On 06.01.2020 report was submitted by the Central AdvisoryBoard that there was sufficient cause for the detention of thedetenues.

(b) After considering the report of the Central Advisory Boardand the other material on record, the Central Governmentconfirmed the Detention Ordersvideproceedings dated 14.01.2020.

(c) On the same date i.e. 14.01.2020 the Detaining Authority,namely, Joint Secretary (COFEPOSA) rejected the representationsdated 17.07.2019 and 18.12.2019 made on behalf of the detenues.

After referring to the decisions of this court in Golam Biswas v.Union of India and Another[5] and K.M. Abdulla Kunhi and B.L.Abdul Khader v. Union of India and others[6]it was stated that therepresentations were considered only after the receipt of the opinion ofthe Central Advisory Board dated 06.01.2020.

5. We heard Mr. Mukul Rohatgi and Mr. Neeraj KishanKaul,learned Senior Advocates in support of the petition and Mr. K.M. Nataraj,learned Advocate Solicitor General for the respondents.

6. The learned Counsel for the petitioner accepted that by thetime representation dated 17.07.2019 was received by the DetainingAuthority, the matter was referred to the Central Advisory Board andsince the Detention Orders were set aside by the High Court on02.08.2019, the non-consideration 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 bythis Court and the detenues were taken back in custody in November,2019, the non-consideration of and delay in disposal of said representationwasmore pronounced and relevant. It was submitted:-

(a) representation against an order of detention can be made tothe Detaining Authority where the detention order has been passedby specially empowered officer of the Central Government aswell as to the Central Government and the Central Advisory Board.

5 (2015) 16 SCC 177

6 (1991) 1 SCC 476

[2020] 2 S.C.R.

APara 12 of the grounds of detention, as extracted earlier, was inkeeping with this well accepted principle.

(b) The representation made to the Detaining Authority had to beconsidered by the Detaining Authority independently. TheDetaining Authority was not right in waiting till the receipt of theBreport of the Central Advisory Board.(c) The consequential delay on part of the Detaining Authority inconsidering the representation thus violated the constitutional rightsof the detenues.

7. On the other hand, Mr. K.M. Nataraj, learned Additional SolicitorCGeneral, for the respondents relied upon the decisions of this Court inGolam Biswas[5 ]and in K.M. Abdulla Kunhi[6]to submit that while thematter was pending consideration before the Central Advisory Board,the representation in question could not be considered and it could beconsidered only after the receipt of the report of the Central AdvisoryBoard.D

8. In the instant case, the facts are clear that:-

a) The Detaining Authority received letter on 27.11.2019 thatthe detenues were received in custody. Thereafter the matterwas again referred by the Central Government to the CentralEAdvisory Board on 05.12.2019. The communication shows thatit was decided that the representations would be consideredonly after receipt of the opinion of the Central Advisory Board.

b) The opinion of the Central Advisory Board was submitted on06.01.2020. On 14.01.2020 the Central Government confirmedFthe Detention Orders and on the same date the DetainingAuthority rejected the representations.

9. Following questions thereforearise:-

i) Whether the Detaining Authority was justified in deferring theconsideration of the representation till the receipt of the opinionGof the Central Advisory Board?

ii) Whether the Detaining Authority ought to have considered therepresentation independently and without waiting for the reportof the Central Advisory Board?

iii) If the answer to the second question is yes, whether the timetaken by the Detaining Authority from 27.11.2019 till 14.01.2020could be characterised as undue and avoidable delay violatingthe constitutional rights of the detenues?

10. The learned counsel appearing for the parties placed for ourconsideration various decisions of this Court touching upon the aforesaidfirst two questions. We may broadly consider those decisions foranswering the questions from two perspectives:-

First, on the issue whether representation can independently bemade to and must be considered by the Detaining Authority, who is aspecially empowered officer of the concerned Government.

Secondly, whether, in certain circumstances, the DetainingAuthority ought to defer consideration of such representation till thereport is received from the Advisory Board.

11. As regards the first issue, following decisions are noteworthy:-

A) In Ibrahim BachuBafan vs. State of Gujarat and others[7]a Bench of three Judges of this Court, while consideringthe scope of Section 11 of the COFEPOSA Act and Section21 of 1897 Act[8],made following observations:-

“7.……. The heading of Section 11 is “Revocation ofDetention Orders”. Sub-section (1) authorises revocationby two authorities, namely, — (a) if the order has beenmade by an officer of State Government, the StateGovernment or the Central Government may revoke theorder; and (b) if the order has been made by an officer ofthe Central Government or by State Government,revocation is permissible by the Central Government. Sub-section (1) of Section 11 indicates that the power conferredunder it in the situations envisaged in Clauses (a) and (b) isexercisable without prejudice to the provisions of Section21 of the General Clauses Act. That section provides that apower to issue orders includes power exercisable in thelike manner and subject to the like sanction and conditions,if any, to add, to amend, vary or rescind such orders. Under

7 (1985) 2 SCC 24

8 The General Clauses Act, 1897

ASection 21 of the General Clauses Act, therefore, theauthority making an order of detention would be entitled torevoke that order by rescinding it. We agree with thesubmission of Mr Jethmalani that the words “withoutprejudice to the provisions of Section 21 of the Generalclauses Act 1897” used in Section 11(1) of the Act giveBexpression to the legislative intention that without affectingthat right which the authority making the order enjoys underSection 21 of the General Clauses Act, an order of detentionis also available to be revoked or modified by authoritiesnamed in clauses (a) and (b) of Section 11(1) of the Act.CPower conferred under clauses (a) and (b) of Section 11(1)of the Act could not be exercised by the named authoritiesunder Section 21 of the General Clauses Act as theseauthorities on whom such power has been conferred underthe Act are different from those who made the orders.Therefore, conferment of such power was necessary asDParliament rightly found that Section 21 of the GeneralClauses Act was not adequate to meet the situation. Thus,while not affecting in any manner and expressly preservingthe power under Section 21 of the General Clauses Act ofthe original authority making the order, power to revoke orEmodify has been conferred on the named authorities.”It was, thus, accepted that by virtue of Section 21 of 1897 Act,theauthority making an order of detention would be entitled torevoke that order by rescinding it and that conferment of power underSection 11 of the COFEPOSA Act was done without affecting in anyFmanner and expressly preserving the power under Section 21of 1897Actof the original authority making the order.

B) Bench of two Judges of this Court in State ofMaharashtra and another vs. Smt. Sushila MafatlalShah and others[9] took slightly different view. This CourtGframed following questions in para 11:-

“11. ………

(1) Does an order passed by an officer of the StateGovernment or the Central Government, specially

H9 (1988) 4 SCC 490

empowered for the purposes of Section 3(1) by therespective government, make him the detainingauthority and not the State Government or the CentralGovernment as the case may be, and obligate him toinform the detenu that he has threefold opportunity tomake his representations i.e. the first to himself andthe other two to the State Government and the CentralGovernment.

(2) Whether for the purposes of the Act, there is anydifference between an order of detention passed by anofficer of the State Government or the CentralGovernment, solely in exercise of the powers conferredon him under Section 3 by the respective governmentand an order of detention passed by the StateGovernment or the Central Government as the casemay be through an officer who in addition to confermentof powers under Section 3 is also empowered underthe Standing Rules framed under the Rules of Businessof the government, to act on behalf of the government.

(3) Whether by reason of the fact that an order of detentionis passed by an officer of the State Government or theCentral Government specially empowered to act underSection 3 of the Act, detenu acquires constitutionalright to have his representation first considered by thevery officer issuing the detention order before makinga representation to the State Government and theCentral Government.”

While considering the scheme of the COFEPOSA Act, includingthe ambit of Section 11, it was observed:-

“19. We may now examine the scheme of the Act and have acloser look at the provisions set out above to find out whethertheAct provides for differentiation being made between detentionorders made by the government and those made by speciallyempowered officers so as to confer an additional right ofrepresentation to detenus subjected to detention under detentionorders falling in the latter category. At the outset, it needs nosaying, that any government, be it Central or State, has to functiononly through human agencies viz. its officers and functionaries

and that it cannot function by itself as an abstract body. Suchbeing the case, even though Section 3(1) provides for an order ofdetention being made either by the Central Government or one ofits officers or the State Government or by one of its officers, anorder of detention has necessarily to be made in either of thesituations only by an officer of the concerned government. It is inacceptance of this position we have to see whether an order ofdetention, if passed by an officer of the government speciallyempowered under Section 3(1) but not further empowered underRules of Business of the government to act would have the effectof making the concerned officer the detaining authority and notthe concerned government itself. The answer to the question hasto be necessarily in the negative for the following reasons. It hasbeen specifically provided in Section 2 (a) that irrespective ofwhether an order of detention is made by the Central Governmentor one of its duly authorised officers, the “appropriate government”as regard the detention order and the detenu will be the CentralGovernment only and likewise whether an order of detention ismade by State Government or one of its duly authorised officersthe “appropriate government” would be the State Governmentonly as regards the detention order and the detenu concerned.Secondly, irrespective of whether an order of detention is madeby the State Government or by one of its officers, the obligation toforward, within ten days report to the Central Government inrespect of the order is cast only upon the State Government. Thirdly,in the matter of making reference of the case of detenu to theAdvisory Board under Section 8(b), the duty of making thereference is cast only on the Central Government or the StateGovernment as the case may be, and not on the officer of theCentral Government or the State Government if he makes theorder of detention in exercise of the powers conferred on himunder Section 3(1). Lastly, Section 11, which deals with the powersof revocation of the State Government and the Central Governmentprovides that notwithstanding that an order of detention had beenmade by an officer of State Government, the concerned StateGovernment as well as the Central Government are entitled torevoke or modify the order of detention. Similarly, as per clause(b) notwithstanding that an order of detention has been made byan officer of the Central Government or by State Government,

the Central Government has been empowered to revoke or modifyan order of detention. The section does not confer any power ofrevocation on an officer of the Central or State Government nordoes it empower the Central or State Government to delegate thepower of revocation to any of its officers. We may further addthat even though Section 11 specifies that the powers of revocationconferred on the Central Government/State Government arewithout prejudice to the provisions of Section 21 of the Generalclauses Act, this reservation will not entitle specially empoweredofficer to revoke an order of detention passed by him because theorder of the specially empowered officer acquires “deemedapproval” of the State or Central Government, as the case maybe, automatically and by reason of such deemed approval thepowers of revocation, even in terms of Section 21 of the Generalclauses Act will fall only within the domain of the StateGovernment and/or Central Government. In Sat Pal v. State ofPunjab[10]the nature of the power of revocation conferred on theState and the Central Government came to be construed and thecourt held that “(t)he power of revocation conferred on theappropriate government under Section 11 of the Act is independentof the power of confirming or setting aside an order of detentionunder Section 8(f)”. It was further adumbrated as follows: (SCCp. 17, para 10)“The power under Section 11(1)(b) may either be exercisedon information received by the Central Government from itsown sources including that supplied by the State Governmentunder Section 3(2), or, from the detenu in the form of petitionor representation. It is for the Central Government to decidewhether or not, it should revoke the order of detention in aparticular case. The use of the words ‘at any time’ underSection 11, gives the power of revocation an overriding effecton the power of detention under Section 3.”

These observations were made by the court when consideringthe question whether detenu was entitled to concurrently makerepresentations to the State Government and the CentralGovernment against an order of detention passed by the StateGovernment and whether in such circumstances the State

AGovernment could contend that the question of the CentralGovernment considering the representation would arise only afterthe State Government had considered the representation andrejected it.

20. Consequently, the resultant position emerging from the Act isBthat even if an order of detention is made by speciallyempowered officer of the Central Government or the StateGovernment as the case may be, the said order will give rise toobligations to be fulfilled by the government to the same degreeand extent to which it will stand obligated if the detention orderhad been made by the government itself. If that be so, then it isCthe concerned government that would constitute the detainingauthority under the Act and not the officer concerned who madethe order of detention, and it is to that government the detenushould be afforded opportunity to make representation againstthe detention order at the earliest opportunity, as envisaged underDArticle 22(5) and not to the officer making the order of detention

in order to provide the detenu an opportunity to make furtherrepresentation to the State Government and thereafter to theCentral Government if the need arises for doing so. Though byreason of Section 3(1) specially empowered officer is entitledto pass an order of detention, his constitutional obligation is only toEcommunicate expeditiously to the detenu the grounds of detentionand also afford him opportunity to make representation to theappropriate governments against his detention. The only furtherduty to be performed thereafter is to place the representationmade by the detenu before the concerned officer or the MinisterFempowered under the Rules of Business of the government todeal with such representation if the detenu addresses hisrepresentation to the officer himself.”

It was thus held that the constitutional obligation of speciallyempowered officer entitled to pass an order of detention wouldonly beGto communicate expeditiously to the detenue the grounds of detentionand also to afford him opportunity to make representation to theappropriate Governments against his detention. All the aforesaid threequestions as posed in Para 11 were answered in the negative.

C) In Amir Shad Khan vs. L. Hmingliana and others[11], Benchof Three Judges of this Court observed:-

“3. ……... There can be no doubt that the representation mustbe made to the authority which has the power to rescind or revokethe decision, if need be. Our search for the authority must,therefore, take us to the statute since the answer cannot be foundfrom Article 22(5) of the Constitution read in isolation. As pointedout earlier that clause casts an obligation on the authority makingthe detention order to afford to the detenu an earliest opportunityto make representation against the detention order. If we are togo by the statement in the grounds of detention our search forthat authority would end since the grounds of detention themselvesstate the authorities to which the representation must be made.The question must be answered in the context of the relevantprovisions of the law. Now as stated earlier by clause (5) of Article22 dual obligation is cast on the authority making the detentionorder one of which is to afford to the detenu an earliest opportunityof making representation against the order which obligation hasbeen met by informing the detenu in the grounds of detention towhom his representation should be addressed. But the authorityto which the representation is addressed must have statutorybacking. In order to trace the source for the statutory backing itwould be advantageous to notice the scheme of the Act providingfor preventive detention. Section 2(b) defines detention order tomean an order made under Section 3. Sub-section (1) of Section3 empowers the Central Government or the State Government orany officer of the Central Government, not below the rank of aJoint Secretary to that government, specially empowered for thepurposes of this section by that government, or any officer of aState Government, not below the rank of Secretary to thatgovernment, specially empowered for the purposes of this sectionby that government, to make an order of detention with respect toany person with view to preventing him from acting in anymanner prejudicial to the conservation or augmentation of foreignexchange or with view to preventing him from doing any one ofthe five prejudicial acts enumerated thereunder. Sub-section (2)of that section provides that when any order of detention is made

Aby State Government or by an officer empowered by StateGovernment, the State Government shall, within ten days, forwardto the Central Government report in respect of the order. It isevident from this provision that whenever detention order ismade by the State Government or its officer specially empoweredfor that purpose an obligation is cast on the State Government toBforward report to the Central Government in respect of thatorder within ten days. The purpose of this provision is clearly toenable the Central Government to keep an eye on the exercise ofpower under Section 3(1) by the State Government or its officer.Then comes sub-section (3) which reads as under:

3. (3) For the purposes of clause (5) of Article 22 of theConstitution, the communication to person detained inpursuance of detention order of the grounds on which theorder has been made shall be made as soon as may be afterthe detention, but ordinarily not later than five days, and inDexceptional circumstances and for reasons to be recorded in

writing, not later than fifteen days, from the date of detention.”

This provision is clearly intended to meet the obligation cast byArticle 22(5) that the grounds of detention shall be communicated‘as soon as may be’. The legislation has, therefore, fixed the outerElimit within which the grounds of detention must be communicatedto the detenu. Thus the first part of the obligation cast by Article22(5) is met by Section 3(3) of the Act. Section 8 provides for theConstitution of Advisory Boards. This section is clearly to meetthe obligation of sub-clause (a) of clause (4) and sub-clause (c)of clause (7) of Article 22 of the Constitution. Section 8(f) whichFhas some relevance provides that in every case where the AdvisoryBoard has reported that there is in its opinion sufficient cause forthe detention of person, the appropriate government may confirmthe detention order and continue the detention of the personconcerned for such period as it thinks fit and in every case whereGthe Advisory Board has reported that there is in its opinion nosufficient cause for the detention of the person concerned, theappropriate government shall revoke the detention order and causethe person to be released forthwith. This provision clearly obligesthe appropriate government to order revocation of the detentionorder if the Advisory Board reports want of sufficient cause forHdetention of that person. Then comes Section 11 which reads asunder:

“11. Revocation of detention orders.— (1) Without prejudiceto the provisions of Section 21 of the General Clauses Act,1897, detention order may, at any time, be revoked or modified—

(a) notwithstanding that the order has been made by anofficer of State Government, by that State Governmentor by the Central Government;

(b) notwithstanding that the order has been made by anofficer of the Central Government or by State

Government, by the Central Government.”

Sub-section (2) is not relevant for our purpose. It is obviousfrom plain reading of the two clauses of sub-section (1) ofSection 11 that where an order is made by an officer of theState Government, the State Government as well as the CentralGovernment are empowered to revoke the detention order.Where, however, the detention order is passed by an officer ofthe Central Government or State Government, the CentralGovernment is empowered to revoke the detention order. Nowthis provision is clearly without prejudice to Section 21 of theGeneral Clauses Act which lays down that where by anyCentral Act power to issue orders is conferred, then thatpower includes power, exercisable in the like manner andsubject to the like sanction and conditions, if any, to rescindany order so issued. Plainly the authority which has passed theorder under any Central Act is empowered by this provision torescind the order in like manner. This provision when read inthe context of Section 11 of the Act makes it clear that thepower to rescind conferred on the authority making the detentionorder by Section 21 of the General Clauses Act is saved and isnot taken away. Under Section 11 an officer of the StateGovernment or that of the Central Government speciallyempowered under Section 3(1) of the Act to make detentionorder is not conferred the power to revoke it; that power forthose officers has to be traced to Section 21 of the GeneralClauses Act. Therefore, where an officer of the StateGovernment or the Central Government has passed anydetention order and on receipt of representation he isconvinced that the detention order needs to be revoked he can

Ado so by virtue of Section 21 of the General Clauses Act sinceSection 11 of the Act does not entitle him to do so. If the StateGovernment passes an order of detention and later desires torevoke it, whether upon receipt of representation from thedetenu or otherwise, it would be entitled to do so under Section21 of the General Clauses Act but if the Central GovernmentBdesires to revoke any order passed by the State Governmentor its officer it can do so only under clause (b) of Section 11(1)of the Act and not under Section 21 of the General ClausesAct. This clarifies why the power under Section 11 is conferredwithout prejudice to the provisions of Section 21 of the GeneralCClauses Act. Thus on conjoint reading of Section 21 of theGeneral Clauses Act and Section 11 of the Act it becomesclear that the power of revocation can be exercised by threeauthorities, namely, the officer of the State Government or theCentral Government, the State Government as well as theCentral Government. The power of revocation conferred byDSection 8(f) on the appropriate Government is clearlyindependent of this power. It is thus clear that Section 8(f) ofthe Act satisfies the requirement of Article 22(4) whereasSection 11 of the Act satisfies the requirement of the latterpart of Article 22(5) of the Constitution. The statutoryEprovisions, therefore, when read in the context of the relevantclauses of Article 22, make it clear that they are intended tosatisfy the constitutional requirements and provide forenforcement of the right conferred on the detenu to representagainst his detention order. Viewed in this perspective it cannotbe said that the power conferred by Section 11 of the Act hasFno relation whatsoever with the constitutional obligation castby Article 22(5).”

D. The apparent conflict between the decisions of this Court inSushila Mafatlal Shah[9 ]and Amir Shad Khan[11]came up forconsideration before Constitution Bench of this Court in KamleshGkumar Ishwardas Patel vs. Union of India and others[12] and thequestion was posed as under:-

“2. When an order for preventive detention is passed by an officerespecially empowered to do so by the Central Government or the

State Government, is the said officer required to consider therepresentation submitted by the detenu?”

The matter was considered as under:-

“6. This provision has the same force and sanctity as any otherprovision relating to fundamental rights. (See: State of Bombay v.Atma Ram Shridhar Vaidya[13].) Article 22(5) imposes dualobligation on the authority making the order of preventive detention:(i) to communicate to the person detained as soon as may be thegrounds on which the order of detention has been made; and (ii)to afford the person detained the earliest opportunity of making arepresentation against the order of detention. Article 22(5) thusproceeds on the basis that the person detained has right to makea representation against the order of detention and theaforementioned two obligations are imposed on the authoritymaking the order of detention with view to ensure that right ofthe person detained to make representation is real right and heis able to take steps for redress of wrong which he thinks hasbeen committed. Article 22(5) does not, however, indicate theauthority to whom the representation is to be made. Since theobject and purpose of the representation that is to be made by theperson detained is to enable him to obtain relief at the earliestopportunity, the said representation has to be made to the authoritywhich can grant such relief, i.e., the authority which can revokethe order of detention and set him at liberty. The authority thathas made the order of detention can also revoke it. This right isinherent in the power to make the order. It is recognised by Section21 of the General Clauses Act, 1897 though it does not flow fromit. It can, therefore, be said that Article 22(5) postulates that theperson detained has right to make representation against theorder of detention to the authority making the order. In addition,such representation can be made to any other authority which isempowered by law to revoke the order of detention.

14. Article 22(5) must, therefore, be construed to mean that theperson detained has right to make representation against theorder of detention which can be made not only to the Advisory

ABoard but also to the detaining authority, i.e., the authority thathas made the order of detention or the order for continuance ofsuch detention, which is competent to give immediate relief byrevoking the said order as well as to any other authority which iscompetent under law to revoke the order for detention and therebygive relief to the person detained. The right to make representationBcarries within it corresponding obligation on the authority makingthe order of detention to inform the person detained of his right tomake representation against the order of detention to theauthorities who are required to consider such representation.

23. If the power of revocation is to be treated as the criterion forascertaining the authority to whom representation can be made,then the representation against an order of detention made by anofficer specially empowered by the State Government can bemade to the officer who has made the order as well as to theDState Government and the Central Government who are competentto revoke the order. Similarly, the representation against an ordermade by the State Government can be made to the StateGovernment as well as to the Central Government and therepresentation against an order made by an officer speciallyEempowered by the Central Government can be made to the officerwho has made the order as well as to the Central Government.”

After considering relevant decisions, this Court did not accept thelaw laid down in SushilaMafatlal Shah[9 ]and observed:-

“30. The decision in Sushila Mafatlal Shah[9] proceeds on twoFpremises: (i) Article 22(5) does not confer right to make arepresentation to the officer specially empowered to make theorder; and (ii) under the provisions of the COFEPOSA Act whenthe order of detention is made by the officer specially empoweredto do so, the detaining authority is the appropriate Government,Gnamely, the Government which has empowered the officer tomake the order, since such order acquires “deemed approval” bythe Government from the time of its issue.

31. With due respect, we find it difficult to agree with both thepremises. Construing the provisions of Article 22(5) we haveexplained that the right of the person detained to make

representation against the order of detention comprehends theright to make such representation to the authority which cangrant such relief i.e. the authority which can revoke the order ofdetention and set him at liberty and since the officer who hasmade the order of detention is competent to revoke it, the persondetained has the right to make representation to the officer whomade the order of detention. The first premise that such rightdoes not flow from Article 22(5) cannot, therefore, be accepted.

32. The learned Judges, while relying upon the observations inAbdul Karim[14] and the decisions in JayanarayanSukul[15],HaradhanSaha[16] and John Martin[17] have failed to notice thatin these cases the Court was considering the matter in the light ofthe provisions contained in Section 7(1) of the Preventive DetentionAct, 1950, whereby it was prescribed that the representation wasto be made to the appropriate Government. The observationsregarding consideration of the representation by the StateGovernment in the said decisions have, therefore, to be construedin the light of the said provision in the Preventive Detention Actand on that basis it cannot be said that Article 22(5) does notpostulate that the person detained has no right to make arepresentation to the authority making the order of detention.

33. The second premise that the Central Government becomesthe detaining authority since there is deemed approval by theGovernment of the order made by the officer specially empoweredin that regard from the time of its issue, runs counter to the schemeof the COFEPOSA Act and the PIT NDPS Act which differsfrom that of other preventive detention laws, namely, the NationalSecurity Act, 1980, the Maintenance of Internal Security Act, 1971,and the Preventive Detention Act, 1950.

34. In the National Security Act there is an express provision[Section 3(4)] in respect of orders made by the District Magistrateor the Commissioner of Police under Section 3(3) and the DistrictMagistrate or the Commissioner of Police who has made the orderis required to forthwith report the fact to the State Government to

14 (1969) 1 SCC 433

15 (1970) 1 SCC 219 [JayanarayanSukul vs. State of West Bengal]

16 (1975) 3 SCC 198 [HaradhanSaha vs. The State of West Bengal and others]

17 (1975) 3 SCC 836

which he is subordinate. The said provision further prescribesthat no such order shall remain in force for more than twelvedays after the making thereof, unless, in the meantime, it has beenapproved by the State Government. This would show that it is theapproval of the State Government which gives further life to theorder which would otherwise die its natural death on the expiry oftwelve days after its making. It is also the requirement of Section3(4) that the report should be accompanied by the grounds onwhich the order has been made and such other particulars as, inthe opinion of the said officer, have bearing on the matter whichmeans that the State Government has to take into considerationthe grounds and the said material while giving its approval to theorder of detention. The effect of the approval by the StateGovernment is that from the date of such approval the detentionis authorised by the order of the State Government approving theorder of detention and the State Government is the detainingauthority from the date of the order of approval. That appears tobe the reason why Section 8(1) envisages that the representationagainst the order of detention is to be made to the StateGovernment. The COFEPOSA Act and the PIT NDPS Act donot require the approval of an order made by the officer speciallyempowered by the State Government or by the CentralGovernment. The order passed by such an officer operates on itsown force. All that is required by Section 3(2) of the COFEPOSAAct and the PIT NDPS Act is that the State Government shallwithin 10 days forward to the Central Government report inrespect of an order that is made by the State Government or anofficer specially empowered by the State Government. An ordermade by the officer specially empowered by the State Governmentis placed on the same footing as an order made by the StateGovernment because the report has to be forwarded to the CentralGovernment in respect of both such orders. No such report isrequired to be forwarded to the Central Government in respect ofan order made by an officer specially empowered by the CentralGovernment. Requirement regarding forwarding of the reportcontained in Section 3(2) of the COFEPOSA Act and the PITNDPS Act cannot, therefore, afford the basis for holding that anorder made by an officer specially empowered by the CentralGovernment or the State Government acquires deemed approvalof that Government from the date of its issue. Approval, actual ordeemed, postulates application of mind to the action being approvedby the authority giving approval. Approval of an order of detentionwould require consideration by the approving authority of thegrounds and the supporting material on the basis of which theofficer making the order had arrived at the requisite satisfactionfor the purpose of making the order of detention. Unlike Section3(4) of the National Security Act there is no requirement in theCOFEPOSA Act and the PIT NDPS Act that the officer speciallyempowered for the purpose of making of an order of detentionmust forthwith send to the Government concerned the groundsand the supporting material on the basis of which the order ofdetention has been made. Nor is it prescribed in the said enactmentsthat after the order of detention has been made by the officerspecially empowered for that purpose the Government concernedis required to apply its mind to the grounds and the supportingmaterial on the basis of which the order of detention was made.The only circumstance from which inference about deemedapproval is sought to be drawn is that the order is made by theofficer specially empowered for that purpose by the Governmentconcerned. Merely because the order of detention has been madeby the officer who has been specially empowered for that purposewould not, in our opinion, justify the inference that the said orderacquires deemed approval of the Government that has soempowered him, from the date of the issue of the order so as tomake the said Government the detaining authority. By speciallyempowering particular officer under Section 3(2) of theCOFEPOSA Act and the PIT NDPS Act the Central Governmentor the State Government confers an independent power on thesaid officer to make an order of detention after arriving at hisown satisfaction about the activities of the person sought to bedetained. Since the detention of the person detained draws itslegal sanction from the order passed by such officer, the officer isthe detaining authority in respect of the said person. He continuesto be the detaining authority so long as the order of detentionremains operative. He ceases to be the detaining authority onlywhen the order of detention ceases to operate. This would be onthe expiry of the period of detention as prescribed by law or onthe order being revoked by the officer himself or by the authority

Amentioned in Section 11 of the COFEPOSA Act and Section 12of the PIT NDPS Act. There is nothing in the provisions of theseenactments to show that the role of the officer comes to an endafter he has made the order of detention and that thereafter heceases to be the detaining authority and the Government concernedwhich had empowered him assumes the role of the detainingBauthority. We are unable to construe the provisions of the saidenactments as providing for such limited entrustment of poweron the officer who is specially empowered to pass the order. Anindication to the contrary is given in Section 11 of the COFEPOSAAct and Section 12 of the PIT NDPS Act which preserve theCpower of such officer to revoke the order that was made by him.This means that the officer does not go out of the picture after hehas passed the order of detention. It must, therefore, be held thatthe officer specially empowered for that purpose continues to bethe detaining authority and is not displaced by the Governmentconcerned after he has made the order of detention. Therefore,Dby virtue of his being the detaining authority he is required toconsider the representation of the person detained against theorder of detention.

7E36. It appears that the decision in Ibrahim BachuBafan, adecision of Bench of three Judges, was not brought to the notice9of the learned Judges deciding Sushila Mafatlal Shah. For thereasons aforementioned we are of the view that the decision in9Sushila Mafatlal Shah insofar as it holds that where an orderof detention made by an officer specially empowered for theFpurpose, representation against the order of detention is not requiredto be considered by such officer and it is only to be considered bythe appropriate Government empowering such officer, does notlay down the correct law.

38. Having regard to the provisions of Article 22(5) of theConstitution and the provisions of the COFEPOSA Act and thePIT NDPS Act the question posed is thus answered: Where thedetention order has been made under Section 3 of the COFEPOSAAct and the PIT NDPS Act by an officer specially empoweredHfor that purpose either by the Central Government or the State

Government the person detained has right to make arepresentation to the said officer and the said officer is obliged toconsider the said representation and the failure on his part to doso results in denial of the right conferred on the person detainedto make representation against the order of detention. This rightof the detenu is in addition to his right to make the representationto the State Government and the Central Government where thedetention order has been made by an officer specially authorisedby State Government and to the Central Government where thedetention order has been made by an officer specially empoweredby the Central Government, and to have the same duly considered.This right to make representation necessarily implies that theperson detained must be informed of his right to make arepresentation to the authority that has made the order of detentionat the time when he is served with the grounds of detention so asto enable him to make such representation and the failure to doso results in denial of the right of the person detained to make arepresentation.

12. With the judgment of the Constitution Bench of this Court inKamleshkumar[12], the law on the first issue is well settled that wherethe detention order is made inter alia under Section 3 of the COFEPOSAActby an officer specially empowered for that purpose either by theCentral Government or the State Government, the person detainedhas right to make representation to the said officer; and thesaid officer is obliged to consider the said representation; and thefailure on his part to do so would result in denial of the rightconferred on the person detained to make representation. Further,such right of the detenue has been taken to be in addition to the right tomake the representation to the State Government and the CentralGovernment. It must be stated that para 12 of the grounds of detentionin the instant case, as quoted hereinabove, is in tune with the law sodeclared by this Court.

13. We now move to the second issue and consider the decisionsof this Court on the point:-

A) In Pankaj Kumar Chakrabarty and others vs. The State ofWest Bengal[18] Constitution Bench of this Court considered the matterwhere orders of detention were passed by the District Magistrates under

18 (1969) 3 SCC 400 = (1970) 1 SCR 543

ABC

ASection 3(1)(a)(ii) and (iii) read with Section 3(2) of 1950 Act[19]. Asstated in paragraph 2 of the decision, the case of the detenue was placedbefore the Advisory Board on 21.09.1968. representation against theorder of detention was made to the State Government on 21.10.1968.An opinion was given by the Advisory Board on 06.11.1968 that therewas sufficient cause for detention of the person concerned, whereafterBthe order was confirmed on 11.11.1968. While in the case considered inparagraph 4, the representation was made after the case was referredto the Advisory Board. In the light of these facts, following two questionswere framed:-“6. On these contentions two questions arise: (i) whether there isCon the appropriate Government the obligation to consider therepresentation made by detenue, and (2) if there is, whether itmakes any difference where such representation is made afterthe detenu’s case is referred to the Advisory Board.”

The matter was, thereafter, considered and it was observed:-D

“10. It is true that clause 5 does not in positive language provideas to whom the representation is to be made and by whom, whenmade, it is to be considered. But the expressions “as soon as maybe” and “the earliest opportunity” in that clause clearly indicatethat the grounds are to be served and the opportunity to make aErepresentation are provided for to enable the detenu to show thathis detention is unwarranted and since no other authority whoshould consider such representation is mentioned it can only bethe detaining authority to whom it is to be made which has toconsider it. Though clause 5 does not in express terms say so itFfollows from its provisions that it is the detaining authority whichhas to give to the detenu the earliest opportunity to make arepresentation and to consider it when so made whether its orderis wrongful or contrary to the law enabling it to detain him. Theillustrations given in Sk. Abdul Karim case show that clause 5 ofArticle 22 not only contains the obligation of the appropriateGGovernment to furnish the grounds and to give the earliestopportunity to make representation but also by necessaryimplication the obligation to consider that representation. Such anobligation is evidently provided for to give an opportunity to thedetenu to show and corresponding opportunity to the appropriateH19 The Preventive Detention Act, 1950Government to consider any objections against the order whichthe detenu may raise so that no person is, through error or otherwise,wrongly arrested and detained. If it was intended that such arepresentation need not be considered by the Government wherean Advisory Board is constituted and that representation in suchcases is to be considered by the Board and not by the appropriateGovernment, clause 5 would not have directed the detainingauthority to afford the earliest opportunity to the detenu. In thatcase the words would more appropriately have been that theauthority should obtain the opinion of the Board after giving anopportunity to the detenu to make representation andcommunicate the same to the Board. But what would happen incases where the detention is for less than 3 months and there isno necessity of having the opinion of the Board? If Counsel’scontention were to be right the representation in such cases wouldnot have to be considered either by the appropriate Governmentor by the Board and the right of representation and thecorresponding obligation of the appropriate Government to givethe earliest opportunity to make such representation would berendered nugatory. In imposing the obligation to afford theopportunity to make representation, clause 5 does not make anydistinction between orders of detention for only 3 months or lessand those for longer duration. The obligation applies to bothkinds of orders. The clause does not say that the representation isto be considered by the appropriate Government in the formerclass of cases and by the Board in the latter class of cases. In ourview it is clear from clauses 4 and 5 of Article 22 that there is adual obligation on the appropriate Government and dual right infavour of the detenu, namely, (1) to have his representationirrespective of the length of detention considered by the appropriateGovernment and (2) to have once again that representation in thelight of the circumstances of the case considered by the Boardbefore it gives its opinion. If in the light of that representation theBoard finds that there is no sufficient cause for detention theGovernment has to revoke the order of detention and set at libertythe detenu. Thus, whereas the Government considers therepresentation to ascertain whether the order is in conformity withits power under the relevant law, the Board considers suchrepresentation from the point of view of arriving at its opinion

whether there is sufficient cause for detention. The obligation ofthe appropriate Government to afford to the detenu the opportunityto make representation and to consider that representation isdistinct from the Government’s obligation to constitute Boardand to communicate the representation amongst other materialsto the Board to enable it to form its opinion and to obtain suchopinion.

11. This conclusion is strengthened by the other provisions of theAct. In conformity with clauses 4 and 5 of Article 22, Section 7 ofthe Act enjoins upon the detaining authority to furnish to the detenugrounds of detention within five days from the date of his detentionand to afford to the detenu the earliest opportunity to make hisrepresentation to the appropriate Government. Sections 8 and 9enjoin upon the appropriate Government to constitute an AdvisoryBoard and to place within 30 days from the date of the detentionthe grounds for detention, the detenu’s representation and alsothe report of the officer where the order of detention is made byan officer and not by the Government. The obligation under Section7 is quite distinct from that under Sections 8 and 9. If therepresentation was for the consideration not by the Governmentbut by the Board only as contended, there was no necessity toprovide that it should be addressed to the Government and notdirectly to the Board. The Government could not have beenintended to be only transmitting authority nor could it have beencontemplated that it should sit tight on that representation andremit it to the Board after it is constituted. The peremptory languagein clause 5 of Article 22 and Section 7 of the Act would not have

been necessary if the Board and not the Government had toconsider the representation. Section 13 also furnishes an answerto the argument of Counsel for the State. Under that section theState Government and the Central Government are empoweredto revoke or modify an order of dentention. That power is evidentlyprovided for to enable the Government to take appropriate actionwhere on representation made to it, it finds that the order inquestion should be modified or even revoked. Obviously, theintention of Parliament could not have been that the appropriateGovernment should pass an order under Section 13 withoutconsidering the representation which has under Section 7 beenaddressed to it.

12. For the reasons aforesaid we are in agreement with the decisionin Sk. Abdul Karim case. Consequently, the petitioners had aconstitutional right and there was on the State Government acorresponding constitutional obligation to consider theirrepresentations irrespective of whether they were made beforeor after their cases were referred to the Advisory Boardand thatnot having been done the order of detention against them cannotbe sustained. In this view it is not necessary for us to examine theother objections raised against these orders. The petition istherefore allowed, the orders of detention against Petitioners 15and 36 are set aside and we direct that they should be set atliberty forthwith.” (Emphasis added)

B. In Jayanarayan Sukul[15], considered by another ConstitutionBench of this Court, the order of detention was passed by the DistrictMagistrate under the relevant provisions of 1950 Act. representationwas made by the detenue to the State Government on 23.06.1969. Thecase of the detenue was placed before the Advisory Board on 01.07.1969which reported on 13.08.1969 that there was sufficient cause for thedetention. It was only thereafter that the representation was consideredand rejected on 19.08.1969. In the context of these facts, it was observed:-“13. It, therefore, follows that the appropriate authority is toconsider the representation of the detenu uninfluenced by anyopinion or consideration of the Advisory Board. In the case ofKhairul Haque v. State of W.B.[20 ]this Court observed that “it isimplicit in the language of Article 22 that the appropriateGovernment, while discharging its duty to consider therepresentation cannot depend upon the views of the Board onsuch representation”. The logic behind this proposition is that theGovernment should immediately consider the representation ofthe detenu before sending the matter to the Advisory Board andfurther that such action will then have the real flavour ofindependent judgment.

18. It is established beyond any measure of doubt that theappropriate authority is bound to consider the representation ofthe detenu as early as possible. The appropriate Government itself

20 W.P. No.246 of 1969, decided on 10-9-69

is bound to consider the representation as expeditiously as possible.The reason for immediate consideration of the representation istoo obvious to be stressed. The personal liberty of person is atstake. Any delay would not only be an irresponsible act on thepart of the appropriate authority but also unconstitutional becausethe Constitution enshrines the fundamental right of detenu tohave his representation considered and it is imperative that whenthe liberty of person is in peril immediate action should be takenby the relevant authorities.(Emphasis added)

19. No definite time can be laid down within which representationof detenu should be dealt with save and except that it is aconstitutional right of detenu to have his representation consideredas expeditiously as possible. It will depend upon the facts andcircumstances of each case whether the appropriate Governmenthas disposed of the case as expeditiously as possible for otherwisein the words of Shelat, J., who spoke for this Court in the case ofKhairul Haque[20] “It is obvious that the obligation to furnish theearliest opportunity to make representation loses both its purposeand meaning”.

20. Broadly stated, four principles are to be followed in regard torepresentation of detenus. First, the appropriate authority is boundto give an opportunity to the detenu to make representation andto consider the representation of the detenu as early as possible.Secondly, the consideration of the representation of the detenu bythe appropriate authority is entirely independent of any action bythe Advisory Board including the consideration of the representationof the detenu by the Advisory Board.Thirdly, there should not beany delay in the matter of consideration. It is true that no hard andfast rule can be laid down as to the measure of time taken by theappropriate authority for consideration but it has to be rememberedthat the Government has to be vigilant in the governance of thecitizens. citizen’s right raises correlative duty of the State.Fourthly, the appropriate Government is to exercise its opinionand judgment on the representation before sending the case alongwith the detenu’s representation to the Advisory Board.If theappropriate Government will release the detenu the Governmentwill not send the matter to the Advisory Board. If however theGovernment will not release the detenu the Government will send

the case along with the detenu’s representation to the AdvisoryBoard. If thereafter the Advisory Board will express an opinion infavour of release of the detenu the Government will release thedetenu. If the Advisory Board will express any opinion againstthe release of the detenu the Government may still exercise thepower to release the detenu. (Emphasis Added)

21. In the present case, the State of West Bengal is guilty ofinfraction of the constitutional provisions not only by inordinatedelay of the consideration of the representation but also by puttingof the consideration till after the receipt of the opinion of theAdvisory Board. As we have already observed there is noexplanation for this inordinate delay. The Superintendent who madethe enquiry did not affirm an affidavit. The State has given noinformation as to why this long delay occurred. The inescapableconclusion in the present case is that the appropriate authorityfailed to discharge its constitutional obligation by inactivity andlack of independent judgment.”

C) In Haradhan Saha[16 ]yet another Constitution Bench of thisCourt considered the distinction between the consideration ofrepresentation by the Government and by the Advisory Board as under.

“24. The representation of detenu is to be considered. There isan obligation on the State to consider the representation. TheAdvisory Board has adequate power to examine the entire material.The Board can also call for more materials. The Board may callthe detenu at his request. The constitution of the Board showsthat it is to consist of Judges or persons qualified to be Judges ofthe High Court. The constitution of the Board observes thefundamental of fair play and principles of natural justice. It is notthe requirement of principles of natural justice that there must bean oral hearing. Section 8 of the Act which casts an obligation onthe State to consider the representation affords the detenu all therights which are guaranteed by Article 22(5). The Governmentconsiders the representation to ascertain essentially whether theorder is in conformity with the power under the law. The Board,on the other hand, considers whether in the light of therepresentation there is sufficient cause for detention.(EmphasisAdded)

A29. Principles of natural justice are an element in considering thereasonableness of restriction where Article 19 is applicable. Atthe stage of consideration of representation by the StateGovernment, the obligation of the State Government is such asArticle 22(5) implies. Section 8 of the Act is in complete conformitywith Article 22(5) because this section follows the provisions ofBthe Constitution. If the representation of the detenu is receivedbefore the matter is referred to the Advisory Board, the detainingauthority considers the representation. If representation is madeafter the matter has been referred to the Advisory Board, thedetaining authority will consider it before it will send representationCto the Advisory Board.”(Emphasis Added)

It was, thus, clarified that if the representation is received beforethe matter is referred to the Advisory Board, the Detaining Authorityought to consider such representation; and if the representation is madeafter the matter is referred to the Advisory Board, the Detaining AuthorityDwould first consider it and then send the representation to the AdvisoryBoard.

D) In Frances Coralie Mullin vs. W.C. Khambra[21], bench oftwo Judges of this Court considered the principles laid down inJayanarayan Sukul[15]and made following observations:-E“5. We have no doubt in our minds about the role of the court in

“5. We have no doubt in our minds about the role of the court incases of preventive detention: it has to be one of eternal vigilance.No freedom is higher than personal freedom and no duty higherthan to maintain it unimpaired. The Court’s writ is the ultimateinsurance against illegal detention. The Constitution enjoinsFconformance with the provisions of Article 22 and the Court exactscompliance. Article 22(5) vests in the detenu the right to be providedwith an opportunity to make representation. Here the LawReports tell story and teach lesson. It is that the principalenemy of the detenu and his right to make representation isneither high-handedness nor mean-mindedness but the casualGindifference, the mindless insensibility, the routine and the red tapeof the bureaucratic machine. The four principles enunciated bythe Court in JayanarayanSukul v. State of W.B.[15] as well asother principles enunciated in other cases, an analysis will show,are aimed at shielding personal freedom against indifference,

H21 (1980) 2 SCC 275

insensibility, routine and red tape and thus to secure to the detenuthe right to make an effective representation. We agree: (1) thedetaining authority must provide the detenu very early opportunityto make representation, (2) the detaining authority must considerthe representation as soon as possible, and this, preferably, mustbe before the representation is forwarded to the Advisory Board,(3) the representation must be forwarded to the Advisory Boardbefore the Board makes its report, and (4) the consideration bythe detaining authority of the representation must be entirelyindependent of the hearing by the Board or its report, expeditionbeing essential at every stage. We, however, hasten to add thatthe time-imperative can never be absolute or obsessive. TheCourt’s observations are not to be so understood. There has to belee-way, depending on the necessities (we refrain from using theword “circumstances”) of the case. One may well imagine casewhere detenu does not make representation before the Boardmakes its report making it impossible for the detaining authorityeither to consider it or to forward it to the Board in time or case.where detenu makes representation to the detaining authorityso shortly before the Advisory Board takes up the reference thatthe detaining authority cannot consider the representation beforethen but may merely forward it to the Board without himselfconsidering it. Several such situations may arise compellingdeparture from the time-imperative. But no allowance can be madefor lethargic indifference. No allowance can be made for needlessprocrastination. But, allowance must surely be made for necessaryconsultation where legal intricacies and factual ramifications areinvolved. The burden of explaining the necessity for the slightestdeparture from the time-imperative is on the detaining authority.

7. We have already expressed our agreement with the fourprinciples enunciated in JayanarayanSukul v. State of W.B.[15].We would make one observation. When it was said there that theGovernment should come to its decision on the representationbefore the Government forwarded the representation to theAdvisory Board, the emphasis was not on the point of time but onthe requirement that the Government should consider therepresentation independently of the Board. This was explained in

DEF

[2020] 2 S.C.R.

ANagendra Nath Mondal v. State of W.B[22]. In Sukul case[15 ]thecourt also made certain pertinent observations at pp. 231-232:(SCC p. 224, para 19)

“No definite time can be laid down within which arepresentation of detenu should be dealt with save and exceptBthat it is constitutional right of detenu to have hisrepresentation considered as expeditiously as possible. It willdepend upon the facts and circumstances of each case whetherthe appropriate Government has disposed of the case asexpeditiously as possible....”

CE) In K.M. Abdullah Kunhi[6], in view of the conflict betweentwo decisions of this Court the matter was referred to the ConstitutionBench as is clear from paragraphs 1 and 2 of saiddecision:-

“1. Division Bench of this Court while expressing the view thatthe decisions in V.J. Jain v. Shri Pradhan[23 ]and Om PrakashDBahl v. Union of India[24 ]require reconsideration has referredthese matters to the Constitution Bench.

2. It is convenient at this point to refer to the statement of law laiddown in the aforesaid two cases. In both the cases, as in thepresent case, the persons were detained under the ConservationEof Foreign Exchange and Prevention of Smuggling Activities Act,1974 (‘the Act’). The detenu made representation to theappropriate government. By then the Advisory Board was alreadyconstituted and it was scheduled to meet to consider the case ofthe detenu. The government forwarded the detenu’s representationto the Advisory Board. The Advisory Board considered the caseFof the detenu and also the representation and submitted reportexpressing the opinion that there was sufficient cause for thedetention of the person. The government after considering thatreport confirmed the order of detention. It appears that therepresentation of the detenu was not considered before confirmingGthe detention order and it came to be considered and rejectedonly thereafter. In V.J. Jain case[23 ]this Court observed that therepresentation of the detenu should be considered by the detainingauthority as early as possible before any order is made confirming

22 (1972) 1 SCC 498

23 (1979) 4 SCC 401H24 W.P. No.845 of 1979, decided on October 15, 1979

the detention. The confirmation of the detention order without theconsideration of representation would be invalid and the subsequentconsideration of the representation would not cure the invalidityof the order of confirmation. This view has been reiterated in theunreported judgment in Om Prakash Bahl case[24].”

In that case the detention orders were passed by the StateGovernment under Section 3(1)(iv) of the COFEPOSA Act. Therepresentations were made by the detenues on 17.04.1989 which,however, could not be considered immediately as certain informationand comments were required. In the meantime, the case was referredto the Advisory Board which in its report dated 20.04.1989 foundthatthere was sufficient cause for the detention. On 27.04.1989, the detentionwas confirmed by the State Government. Thereafter, the representationswere considered on 6[th] and 7[th] May, 1989 by the State Government andby the Central Government on 23.05.1989. In the backdrop of thesefacts, the question that arose was:-

“5. The principal question for consideration is whether theconfirmation of detention order upon accepting the report of theAdvisory Board renders itself invalid solely on the ground that therepresentation of the detenu was not considered and thesubsequent consideration of the representation would not curethat invalidity. At the outset it may be made clear that there is noargument addressed before us that there was unexplained delayin considering the representation of the detenu. Indeed, counselfor the petitioners very fairly submitted that they are not raisingthe question of delay. They also did not argue that the rejection ofthe representation after the confirmation of detention was not anindependent consideration.”After considering the relevant decisions on the point, includingPankaj Kumar Chakrabarty[18], Jayanarayan Sukul[15], HaradhanSaha[16 ]and Frances Coralie Mullin[21] this Court observed:-

“15. In Frances Coralie Mullin case, the detenu’s representationwas received by the detaining authority on December 26, 1979.Without any loss of time copy of the representation was sent tothe customs authorities for their remarks which was obviouslynecessary because the information leading to the order of detentionwas collected by the customs authorities. The facts wereundoubtedly complex since the allegations against the detenu

Arevealed an involvement with an international gang of dopesmugglers. The comments of the customs authorities were receivedon January 4, 1980. The Advisory Board was meeting on January4, 1980 and so there could be no question of the detaining authorityconsidering the representation of the detenu before the Boardmet, unless it was done in great and undue haste. After obtainingBthe comments of the customs authorities, it was found necessaryto take legal advice as the representation posed many legal andconstitutional questions, so, after consultation with the Secretary(Law and Judicial) Delhi Administration, the representation wasfinally rejected by the Administrator on January 15, 1980. It wasCheld that if there appeared to be any delay it was not due to anywant of care but because the representation required thoroughexamination in consultation with investigation agencies andadvisers on law.

16. We agree with the observations in Frances Coralie Mullincase. The time imperative for consideration of representation cannever be absolute or obsessive. It depends upon the necessitiesand the time at which the representation is made. Therepresentation may be received before the case is referred to theAdvisory Board, but there may not be time to dispose of therepresentation before referring the case to the Advisory Board.In that situation the representation must also be forwarded to theAdvisory Board along with the case of the detenu. Therepresentation may be received after the case of the detenu isreferred to the Board. Even in this situation the representationshould be forwarded to the Advisory Board provided the Board

Fhas not concluded the proceedings. In both the situations there isno question of consideration of the representation before the receiptof report of the Advisory Board.Nor it could be said that thegovernment has delayed consideration of the representation,unnecessarily awaiting the report of the Board. It is proper forthe government in such situations to await the report of the Board.GIf the Board finds no material for detention on the merits andreports accordingly, the government is bound to revoke the orderof detention. Secondly, even if the Board expresses the view thatthere is sufficient cause for detention, the government afterconsidering the representation could revoke the detention. TheHBoard has to submit its report within eleven weeks from the date

of detention. The Advisory Board may hear the detenu at hisrequest. The constitution of the Board shows that it consists ofeminent persons who are Judges or persons qualified to be Judgesof the High Court. It is therefore, proper that the governmentconsiders the representation in the aforesaid two situations onlyafter the receipt of the report of the Board. If the representationis received by the government after the Advisory Board has madeits report, there could then of course be no question of sending therepresentation to the Advisory Board. It will have to be dealt withand disposed of by the government as early as possible. (Emphasisadded)

19. There is no constitutional mandate under clause (5) of Article22, much less any statutory requirement to consider therepresentation before confirming the order of detention. As longas the government without delay considers the representation withan unbiased mind there is no basis for concluding that the absenceof independent consideration is the obvious result if therepresentation is not considered before the confirmation ofdetention. Indeed, there is no justification for imposing thisrestriction on the power of the government. As observed earlier,the government’s consideration of the representation is for adifferent purpose, namely, to find out whether the detention is inconformity with the power under the statute. This has beenexplained in HaradhanSaha case, where Ray, C.J., speakingfor the Constitution Bench observed that the consideration of therepresentation by the government is only to ascertain whether thedetention order is in conformity with the power under the law.There need not be speaking order in disposing of suchrepresentation. There is also no failure of justice by the order notbeing speaking order. All that is necessary is that there shouldbe real and proper consideration by the government.

20. It is necessary to mention that with regard to liberty of citizensthe court stands guard over the facts and requirements of law, butcourt cannot draw presumption against any authority withoutmaterial. It may be borne in mind that the confirmation of detentiondoes not preclude the government from revoking the order ofdetention upon considering the representation. Secondly, there may

Abe cases where the government has to consider the representationonly after confirmation of detention. Clause (5) of Article 22suggests that the representation could be received even afterconfirmation of the order of detention. The words ‘shall affordhim the earliest opportunity of making representation againstthe order’ in clause (5) of Article 22 suggest that the obligation ofBthe government is to offer the detenu an opportunity of making arepresentation against the order, before it is confirmed accordingto the procedure laid down under Section 8 of the Act. But if thedetenu does not exercise his right to make representation at thatstage, but presents it to the government after the government hasCconfirmed the order of detention, the government still has toconsider such representation and release the detenu if the detentionis not within the power conferred under the statute. Theconfirmation of the order of detention is not conclusive as againstthe detenu. It can be revoked suo motu under Section 11 or upona representation of the detenu. It seems to us therefore, that soDlong as the representation is independently considered by thegovernment and if there is no delay in considering therepresentation, the fact that it is considered after the confirmationof detention makes little difference on the validity of the detentionor confirmation of the detention. The confirmation cannot beEinvalidated solely on the ground that the representation isconsidered subsequent to confirmation of the detention. Nor itcould be presumed that such consideration is not an independentconsideration. With all respect, we are not inclined to subscribe tothe views expressed in V.J. Jain, Om Prakash Bahl and KhairulHaque cases. They cannot be considered to be good law andFhence stand overruled.”Two situations were considered in paragraph 16 by this Court.One, where the representation is received just before the case is referredto the Advisory Board and there is no time to dispose of the representationbefore such reference; and second, where the representation is receivedGafter such reference to the Advisory Board. It was observed that, “……Inboth the situations there is no question of consideration of therepresentation before the receipt of report of the Advisory Board….It is proper for the government in such situations to await the reportof the Board.”The reasons for such observations were given in theHlatter part of paragraph 16 and in paragraphs 19 and 20.

F) In Golam Biswas[5], the order of detention under theCOFEPOSA Act was passed on 27.05.2014. representation was madeto the Central Government on 08.07.2014. The reference was made tothe Advisory Board on 18.07.2014 which reported on 27.08.2014 thatthere was sufficient cause for detention. Thereafter, the detention wasconfirmed on 05.09.2014. In the meantime, the representation whichwas pending with the Central Government, was rejected on 21.07.2014.A bench of two Judges of this Court considered the submission inparagraph 11 and 15 as under:-

“11. To start with the dates setting out the intervening events arenot in dispute. To repeat, the detenu had submitted hisrepresentation on 8-7-2014 and the same was pendingconsideration on merit before the Central Government on18-7-2014, the date on which the matter was remitted to theAdvisory Board under the Act. The representation was rejectedon 21-7-2014 when the matter was pending before the AdvisoryBoard. The Advisory Board concluded its proceedings and gavea finding sustaining the order of detention on 27-8-2014.Unmistakably, thus, the detenu’s representation which was pendingat the time of remittance of the matter to the Advisory Board wasnot forwarded to it and instead was rejected by the CentralGovernment during the pendency of the proceedings before theAdvisory Board.

15. As admittedly, the detenu’s representation dated 8-7-2014,pending with the Central Government, the appropriate Governmentin the case, was not forwarded to the Advisory Board and wasinstead rejected during the pendency of the proceedings beforethe Advisory Board, we are constrained to hold that the detentionof the detenu is constitutionally invalid. The rejection of therepresentation by the Central Government later on 21-7-2014during the pendency of the proceedings before the Advisory Boardis of no consequence to sustain the detention. Consequently, theorder of confirmation as well is rendered non est by this vitiation.In view of the determination made on the above aspect of thedebate, we do not consider it necessary to dilate on the otherpleas raised on behalf of the detenu. In the result, the appealsucceeds. The impugned judgment and order is set aside. The

Aorders of detention as well as the order of confirmation are herebyannulled. The detenu is directed to be set at liberty, if not wantedin any other case.”

Thus, failure on part of the appropriate Government to forwardthe representation to the Advisory Board and rejection thereof while theBproceedings were pending before the Advisory Board, were the pointson which the relief was granted to the detenue.

14. In the context of the second issue stated earlier, the principlesthat emerge from the decisions referred to above are:-

A) In Pankaj Kumar Chakrabarty[18], it was laid down:-C

“the petitioners had constitutional right and there wason the State Government corresponding constitutionalobligation to consider their representations irrespectiveof whether they were made before or after their cases werereferred to the Advisory Board”D

According to this decision it was immaterial whether therepresentations were made before or after the cases were referred tothe Advisory Board.

B) In Jayanarayan Sukul[15], the reason for immediateconsideration of the representation was stressed in para 18 as under:-E

“The reason for immediate consideration of the representationis too obvious to be stressed. The personal liberty of personis at stake. Any delay would not only be an irresponsible acton the part of the appropriate authority but alsounconstitutional because the Constitution enshrines theFfundamental right of detenu to have his representationconsidered and it is imperative that when the liberty of personis in peril immediate action should be taken by the relevantauthorities.”

Thereafter four principles that must be followed in regard toGconsideration of the representation of detenue were dealt with inparagraph 20; the second principle being:-

“Secondly, the consideration of the representation of thedetenu by the appropriate authority is entirely independentof any action by the Advisory Board including the

consideration of the representation of the detenu by theAdvisory Board.”

It was thus stated that the consideration of the representationmust be entirely independent of the action by the Advisory Board.

The 4[th] principle put the obligation upon the appropriate Governmentto consider the representationas:-

“the appropriate Government is to exercise its opinion andjudgment on the representation before sending the case alongwith the detenu’s representation to the Advisory Board.”

C) In Haradhan Saha[16], the qualitative difference betweenconsideration of the representation by the Government on one hand andby the Advisory Board on the other, was clarified in para 24 as:-

“The Government considers the representation to ascertainessentially whether the order is in conformity with the powerunder the law. The Board, on the other hand, considerswhether in the light of the representation there is sufficientcause for detention.”

The cases where the representations were received before thereference and after the reference were also dealt with in para 29 as :-

“If the representation of the detenu is received before thematter is referred to the Advisory Board, the detainingauthority considers the representation. If representation ismade after the matter has been referred to the Advisory Board,the detaining authority will consider it before it will sendrepresentation to the Advisory Board.”

D) In Frances Coralie Mullin[21], the principle that theconsideration by the Detaining Authority of the representation must beentirely independent of the hearing by the Board or its report was againstressed with emphasis on “expedition being essential at every stage”

Para 7 of the decision explained the principles in JayanarayanSukul[15]as:-

“when it was said there that the Government should cometo its decision on the representation before the Governmentforwarded the representation to the Advisory Board, the emphasiswas not on the point of time but on the requirement that the

1096SUPREME COURT REPORTS

AGovernment should consider the representation independently ofthe Board.”

15. These decisions clearly laid down that the consideration ofrepresentations by the appropriate Government by the Board wouldalways be qualitatively different and the power of consideration by theBappropriate Government must be completely independent of any actionby the Advisory Board.In para 12 of the decision in Pankaj KumarChakrabarty[18 ]it was stated that the obligation on part of the Governmentto consider representation would be irrespective whether therepresentation was made before or after the case was referred to theAdvisory Board. As stated in paragraph 18, this was stated so, as anyCdelay in consideration of the representation would not only be anirresponsible act on part of the appropriate authority but alsounconstitutional. The contingency whether the representations werereceived before or after was again considered in para 29 of the decisionin Haradhan Saha[16]. In terms of these principles, the matter ofDconsideration of representation in the context of reference to the AdvisoryBoard, can be put in following four categories:-

A) If the representation is received well before the reference ismade to the Advisory Board and can be considered by the appropriateGovernment, the representation must be considered with expedition.EThereafter the representation along with the decision taken on therepresentation shall be forwarded to and must form part of the documentsto be placed before the Advisory Board.

B) If the representation is received just before the reference ismade to the Advisory Board and there is no sufficient time to decide theFrepresentation, in terms of law laid down in Jayanarayan Sukul[15 ]andHaradhan Saha[16 ]the representation must be decided first and thereafterthe representation and the decision must be sent to the Advisory Board.This is premised on the principle that the consideration by the appropriateGovernment is completely independent and also that there ought not tobe any delay in consideration of the representation.G

C) If the representation is received after the reference is madebut before the matter is decided by the Advisory Board, according to theprinciples laid down in Haradhan Saha[16], the representation must bedecided. The decision as well as the representation must thereafter beimmediately sent to the Advisory Board.H

D) If the representation is received after the decision of theAdvisory Board, the decisions are clear that in such cases there is norequirement to send the representation to the Advisory Board. Therepresentation in such cases must be considered with expedition.

16. There can be no difficulty with regard to the applicability ofthe principles in the 1[st] and the 4[th]stage of the aforesaid categories. Thedifficulty may arise as regards the application of principles at the 2[nd] andthe 3[rd] stage. But that difficulty was dealt with sufficient clarity inJayanarayan Sukul[15]and Haradhan Saha[16]as stated hereinabove. Ifit is well accepted that the representation must be considered with utmostexpedition; and the power of the Government is completely independentof the power of the Advisory Board; and the scope of consideration isalso qualitatively different, there is no reason why the consideration bythe Government must await the decision by the Advisory Board. Noneof the aforesaid cases even remotely suggested that the considerationmust 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[6 ]laid down in paragraph 16 that it would be proper forthe Government in the two situations dealt with in said paragraph toawait the report of the Board; those two situations being:-

a) where the representation is received before the matter isreferred to the Advisory Board and where there may not be sufficienttime to dispose of the representation before referring the case to theAdvisory Board, and

b) where the representation is received after the case is referredto the Advisory Board.

It was also laid down:-

“In both the situations there is no question of considerationof the representation before the receipt of report of the AdvisoryBoard.”

18. Since the decision of this Court in K.M. Abdulla Kunhi[6 ]wasrendered by the Constitution Bench of this Court after considering allthe earlier decisions on the point including those in Pankaj KumarChakrabarty[18], Jayanarayan Sukul[15] and Haradhan Saha[16], we arebound by the principles laid down therein. When the learned counsel forthe petitioner were so confronted, it was submitted by them that the

Adecision in K.M. Abdulla Kunhi[6 ]dealt with the matter relating to theconsideration of representation by the appropriate Government and notin the context where power of detention was exercised by speciallyempowered officer as the Detaining Authority. According to them, thatwould make huge difference and put the matter in qualitativelydifferent compass.B

19. We now proceed to deal with these submissions.

20. At the outset it must be stated that in Pankaj KumarChakrabarty[18]and in Jayanarayan Sukul[15] the orders of detention werepassed by the District Magistrates under Section 3(ii) of 1950 Act. TheCrelevant statutory provisions contemplated the concept of approval within12 days of the passing of such orders of detention passed by the DistrictMagistrates. In Haradhan Saha[16 ]power was exercised by the DistrictMagistrates under the provisions of the MISA, wherein similar conceptof approval on part of the State Government within 12 days of the passingof the order of detention by the District Magistrate was contemplated.DThe distinction on that count was noted by this Court in para 34 of thedecision in Kamleshkumar[12]. The orders of detention in these decisionswere not passed by specially empowered officer but by the concernedGovernment. The same logic regarding deemed approval was extendedinitially in Sushila Mafatlal Shah[9] to cases where the orders of detentionEwere passed not by the concerned Government but by speciallyempowered officer. The matter was, however, corrected and thedistinction in that behalf was succinctly dealt with in Kamleshkumar[12].

21. It must also be borne in mind that in all cases, the appropriateGovernment would be acting in two capacities; one while consideringFthe representation and the other while taking appropriate decision aftera report is received from the Advisory Board that there is sufficientcause for detention. Since the decision would be required to be taken inthese two capacities, it was observed in K.M. Abdulla Kunhi[6] that itwould be proper for the appropriate Government to wait till the report isreceived from the Advisory Board in cases dealt with in paragraph 16 ofGthe decision. But such may not be the case with the Detaining Authoritywho is specially empowered officer.

22. specially empowered officer who passes the order ofdetention, in exercise of special empowerment, has no statutory role toplay at the stage when the report is received from the Advisory Board.H

The report is to be considered by the appropriate Government and notby the specially empowered officer. It may also be relevant at this stageto consider the element of confidentiality associated with the report ofthe Advisory Board. Section 8 of the COFEPOSA Act states:-

“8. Advisory Board.- For the purposes of sub-clause(a) of clause(4), and sub-clause (c) of clause (7) of article 22 of the Constitution,-

(a) The Central Government and each State Government shall,whenever necessary, constitute one or more Advisory Boardseach of which shall consist of Chairman and two otherpersons possessing the qualifications specified in sub-clause(a) of clause (4) of article 22 of the Constitution;

(b) Save as otherwise provided in section 9, the appropriateGovernment shall, within five weeks from the date ofdetention of person under detention order make areference in respect thereof to the Advisory Board constitutedunder clause (a) to enable the Advisory Board to make thereport under sub-clause (a) of clause (4) of article 22 of theConstitution;

(c) The Advisory Board to which reference is made underclause (b) shall after considering the reference and thematerials placed before it and after calling for such furtherinformation as it may deem necessary for the appropriateGovernment or from any person called for the purpose throughthe appropriate Government, or from the person concerned,and if, in any particular case, it considers it essential so to door if the person concerned desires to be heard in person,after hearing him in person, prepare its report specifying in aseparate paragraph thereof its opinion as to whether or notthere is sufficient cause for the detention of the personconcerned and submit the same within eleven weeks fromthe date of detention of the person concerned;

(d) When there is difference of opinion among the membersforming the Advisory Board the opinion of the majority ofsuch members shall be deemed to be the opinion of the majorityof such members shall be deemed to be the opinion of theBoard;

A(e) person against whom an order of detention has been madeunder this Act shall not be entitled to appear by any legalpractitioner in any matter connected with the reference tothe Advisory Board, and the proceedings of the AdvisoryBoard and its report, excepting that part of the report in whichthe opinion of the Advisory Board is specified, shall beBconfidential;

(f)in every case where the Advisory Board has reported thatthere is in its opinion sufficient cause for the detention of aperson, the appropriate Government may confirm the detentionorder and continue the detention of the person concerned forCsuch period as it thinks fit and in every case where theAdvisory Board has reported that there is in its opinion nosufficient cause for the detention of the person concerned,the appropriate Government shall revoke the detention orderand cause the person to be released forthwith.”D23. In terms of Section 8, the report of the Advisory Board ismeant only for the consumption of the appropriate Government and apartfrom the operative part of the report which is to be specified in separateparagraph as per sub-section (c), the mandate in terms of sub-section(e) is to keep the report of the Advisory Board completely confidential.EThus, specially empowered officer who may have passed the order ofdetention, by statutory intent is not to be privy to the report nor does thestatute contemplate any role for such specially empowered officer atthe stage of consideration of the opinion of the Advisory Board. Thereport of the Advisory Board may provide some qualitative inputs forthe appropriate Government but none to the specially empowered officerFwho acted as the Detaining Authority. If that be so, would speciallyempowered officer who had passed the order of detention be bound bywhat has been laid down by this Court in paragraph 16 of the decision inK.M. Abdulla Kunhi[6] in the context of the appropriate Government?24. It must also be stated here that when K.M. Abdulla Kunhi[6]Gwas decided on 23.01.1991, the decision that was holding the field as tothe role of specially empowered officer who had passed an order ofdetention, was one rendered in SushilaMafatlal Shah[9]. The law thatwas holding the field was the concept of deemed approval as wasexplained in SushilaMafatlal Shah[9 ]and any representation made toHsuch specially empowered officer who had passed the order of detention,

in terms of the decision in SushilaMafatlal Shah[9],could be consideredby the appropriate Government itself and not separately by such speciallyempowered officer. The subsequent decision in Amir Shad Khan[11 ]wasrendered by Bench of three Judges on 09.08.1991 and the apparentconflict in the decisions between SushilaMafatlal Shah[9 ]and Amir ShadKhan[11 ]was resolved by the Constitution Bench of this Court inKamleshkumar[12 ]rendered on 17.04.1995, i.e. well after the decision inK.M. Abdulla Kunhi[6].

25. Thus, if the law is now settled that representation can bemade to the specially empowered officer who had passed the order ofdetention in accordance with the power vested in him and therepresentation has to be independently considered by such DetainingAuthority, the concerned principles adverted to in paragraph 16 of thedecision in K.M. Abdulla Kunhi[6 ]would not be the governing principlesfor such specially empowered officer. It must be stated that the discussionin K.M. Abdulla Kunhi[6 ]was purely in the context where the order ofdetention was passed by the appropriate Government and not by thespecially empowered officer. The principle laid down in said paragraph16 has therefore to be understood in the light of the subsequent decisionrendered by another Constitution Bench of this Court inKamleshkumar[12].

26. In the light of the aforesaid discussion, our answer to first twoquestions is that the Detaining Authority ought to have considered therepresentation independently and without waiting for the report of theCentral Advisory Board.

We now come to the 3[rd] question. The facts in the instant caseindicate that the comments of the Sponsoring Authority in respect of therepresentation were already received by the Detaining Authority. Afterreceipt of letter on 27.11.2019 that the detenues were received in custody,the time for considering the representation started ticking for the DetainingAuthority. But the representation was considered only on 14.01.2020and the reason for such delayed consideration is that the report of theCentral Advisory Board was awaited. We have already found that theDetaining Authority was obliged to consider the representation withoutwaiting for the opinion of the Central Advisory Board. Thus, there wasno valid explanation for non-consideration of the representation from27.11.2019 till 14.01.2020. We must, therefore, hold that complete inactionon part of the Detaining Authority in considering the representation causedprejudice to the detenues and violated their constitutional rights.

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A27. We are conscious that the view that we are taking, may leadto some incongruity and there could be clear dichotomy when therepresentations are made simultaneously to such specially empoweredofficer who had passed the order of detention and to the appropriateGovernment. If we go by the principle in paragraph 16 in K.M. AbdullaKunhi[6 ]it would be proper for the appropriate Government to wait till theBreport was received from the Advisory Board, while at the same timethe specially empowered officer who had acted as the Detaining Authoritywould be obliged to consider the representationwith utmost expedition.At times single representation is prepared with copies to the DetainingAuthority namely the specially empowered officer and to the appropriateCGovernment as well as to the Advisory Board. In such situations therewill be incongruity as stated above, which may be required to be correctedat some stage. However, such difficulty or inconsistency cannot be thebasis for holding that specially empowered officer while acting as aDetaining Authority would also be governed by the same principles aslaid down in paragraph 16 of K.M. Abdulla Kunhi[6].D

28. Since there was complete inaction on part of the DetainingAuthority in the present case, to whom representation was addressedin dealing with the representation as stated above, we hold that theconstitutional rights of the detenueswere violated and the detenues areentitled to redressal on that count. We, therefore, allow this Writ PetitionEand hold the continued detention of the detenues in terms of the DetentionOrders to be illegal, invalid and unconstitutional.

29. This Writ Petition is therefore allowed. The Detention Ordersare quashed and the detenuesare directed to be set at liberty forthwith,unless their custody is required in connection with any other proceedingsFor crime.

HEMANT GUPTA, J.G

1. I have gone through the detailed judgment authored by BrotherJustice Lalit, but am unable to persuade myself to agree with the viewsexpressed by him. For the sake of brevity the facts are not repeatedhere.

2. In my view, the decision in K. M. Abdulla Kunhi and B.L.Abdul Khader v. Union of India and Others[1] covers the issue raised,as once the matter has been sent to the Advisory Board, therepresentation received thereafter is required to be forwarded to it aswell. However, the Detaining Authority retains its right to revoke thisdetention order dehors the opinion of the Central Advisory Board.

3. Section 3 of the Conservation of Foreign Exchange andPrevention of Smuggling Activities Act, 1974[2] empowers the CentralGovernment, the State Government or the specially empowered Officerof the rank not below the rank of the Joint Secretary of the CentralGovernment or Secretary of the State Government, to make an order,directing person to be detained. The Detaining Authority has jurisdictionto revoke the detention order in view of Section 21 of the General ClausesAct, 1897[3], whereas, an appropriate Government passes an order ofrevocation of detention or confirmation of the order of detention on receiptof the report of the Advisory Board. The consideration for the DetainingAuthority for revocation, is to see whether the detention order is inconformity with the power under law whereas, the Advisory Boardconsiders the representation to examine whether there is sufficient causefor detention. The consideration of the Advisory Board is an additionalsafeguard and not substitute for the consideration of the representationby the appropriate Government.4. The first part of the consideration of representation, as towhether the order of detention is in conformity with power under thelaw, does not make distinction as to whether the Detaining Authority isthe Central or State Government or specially empowered Officer inthat behalf. The consideration for detention by the Detaining Authorityis confined to examining whether the order of detention is in conformitywith the power under the law. On the other hand, the Advisory Boardexamines if there is sufficient cause for detention. Therefore, once theGovernment as Detaining Authority is examining the representation ofthe detenu for revocation of the detention order, it is only required toexamine whether such detention order is in conformity with power underlaw, whereas, after the recommendation of the Advisory Board, theGovernment would be examining whether there is sufficient cause fordetention. The exercise of jurisdiction by the Government, whilst dealing

1 (1991) 1 SCC 476

2 for short “COFEPOSA Act”

3 for short “1897 Act”

Awith the representation as detaining authority and whilst consideringthe Advisory Board’s recommendation, is in two separate and distinctspheres.

5. The Constitution Bench in Jayanarayan Sukul v. State ofWest Bengal[4 ]considered the detention order under the PreventiveBDetention Act, 1950. This Court in the aforesaid case, culled out fourprinciples to be followed with regard to the representation of detenu.Such four principles have been recapitulated in the order passed by theHon’ble Justice Lalit. The power of detention under the aforesaid Actwas not vested under the State or Central Government but on the DistrictMagistrate or Additional District Magistrate specially empowered byCthe State Government. The opinion of the Advisory Board was requiredto be considered by the appropriate Government who may either confirmthe detention order or if in the opinion of the Advisory Board, no sufficientcause for detention is found, then revoke the detention order. In thisfactual background, this Court held as under:

D“20. Broadly stated, four principles are to be followed in regard torepresentation of detenus. First, the appropriate authority is boundto give an opportunity to the detenu to make representation andto consider the representation of the detenu as early as possible.Secondly, the consideration of the representation of the detenu byEthe appropriate authority is entirely independent of any action bythe Advisory Board including the consideration of the representationof the detenu by the Advisory Board. Thirdly, there should not beany delay in the matter of consideration. It is true that no hard andfast rule can be laid down as to the measure of time taken by theappropriate authority for considerationbut it has to be rememberedFthat the Government has to be vigilant in the governance of thecitizens. citizen’s right raises correlative duty of the State.Fourthly, ‘the appropriate Government is to exercise its opinionand judgment on the representation before sending the case alongwith the detenu’s representation to the Advisory Board. If theappropriate Government will release the detenu the GovernmentGwill not send the matter to the Advisory Board. If however theGovernment will not release the detenu the Government will sendthe case along with the detenu’s representation to the AdvisoryBoard. If thereafter the Advisory Board will express an opinion infavour of release of the detenu the Government will release theH4 (1970) 1 SCC 219

detenu. If the Advisory Board will express any opinion againstthe release of the detenu the Government may still exercise thepower to release the detenu.”

(Emphasis supplied)

6. The second part of the consideration of representation of thedetenu by the appropriate authority i.e. the Detaining Authority is entirelyindependent and has no connection to the consideration by the AdvisoryBoard. It has been held that there should not be any delay in the matterof consideration, but at the same time it has been stated that there is nohard and fast rule that can be laid down as to the time taken by theappropriate authority for consideration, however the Government has tobe vigilant with regard to the rights of the citizens. Such rights raise acorelative duty on the State.

7. two Judge Bench of this Court, in Vimalchand JawantrajJain v. Shri Pradhan and Others[5], examined case where speciallyempowered officer of the State Government had passed detentionorder. The representation to seek revocation of the detention was sentto such Officer as the Detaining Authority. The order confirming thedetention of the detenu was passed after considering the report of theAdvisory Board, by the detaining authority. The Advisory Board reportedthat there were sufficient causes for the detention of the detenu andafter considering such report the order of detention was confirmed. Inthese circumstances, it was argued that the order of detention had beenconfirmed by the specially empowered Officer without considering therepresentation of the detenu. The Bench approved the earlier judgmentof this Court in Khairul Haque v. The State of W.B.[6] decided on 10-9-69, wherein it was held as under:

“3……The fact that Article 22(5) enjoins upon the DetainingAuthority to afford to the detenu the earliest opportunity to makea representation must implicitly mean that such representation,must, when made, be considered and disposed of as expeditiouslyas possible, otherwise, it is obvious that the obligation to furnishthe earliest opportunity to make representation loses both itspurpose and meaning.”

5 (1979) 4 SCC 401

6 W.P. No. 246 of 1969 decided on 10-9-69

A8. This Court in Vimalchand Jawantraj Jain after quoting fromKhairul Haque’s case, held as under:

“4. There are thus two distinct safeguards provided to detenu;one is that his case must be referred to an Advisory Board for itsopinion if it is sought to detain him for longer period than threeBmonths and the other is he should be afforded the earliestopportunity of making representation against the order ofdetention and such representation should be considered by theDetaining Authority as early as possible before any order is madeconfirming the detention. Neither safeguard is dependent on theother and both have to be observed by the Detaining Authority. ItCis no answer for the Detaining Authority to say that therepresentation of the detenu was sent by it to the Advisory Boardand the Advisory Board has considered the representation andthen made report expressing itself in favour of detention. Evenif the Advisory Board has glade report stating that in its opinionDthere is sufficient cause for the detention, the State Governmentis not bound by such opinion and it may still on considering therepresentation of the detenu or otherwise, decline to confirm theorder of detention and release the detenu. The Detaining Authorityis, therefore, bound to consider the representation of the detenuon its own and keeping in view all the facts and circumstancesErelating to the case, come to its own decision whether to confirmthe order of detention or to release the detenu.”

(Emphasis supplied)

9. In these circumstances, this Court held that the representationFof the detenu was not considered by the Detaining Authority before theAdvisory Board recommended confirmation of the order of the detention,thus the Detaining Authority had failed to complete the constitutionalobligation imposed upon him in terms of Clause (5) of Article 22.

10. In Frances Coralie Mullin v. W.C. Khambra and Others[7]Gan order of detention was passed by the Administrator, Union Territoryof Delhi. It was found that the representation submitted by the detenuwas forwarded to the Advisory Board. Considering the case ofJayanarayan Sukul, the two Judge Bench of this Court held as under:

H7 (1980) 2 SCC 275

“5…… We agree : (1) the Detaining Authority must providethe detenu very early opportunity to make representation, (2)the Detaining Authority must consider the representation as soonas possible, and this, preferably, must be before the representationis forwarded to the Advisory Board, (3) the representation mustbe forwarded to the Advisory Board before the Board makes itsreport, and (4) the consideration by the Detaining Authority of therepresentation must be entirely independent of the hearing by theBoard or its report, expedition being essential at every stage. We,-however, hasten to add that the timeimperative can never beabsolute or obsessive. The Court’s observations are not to be sounderstood. There has to be lee-way, depending on the necessities(we refrain from using the word “circumstances”) of the case.One may well imagine, case where detenu does not make arepresentation before the Board makes its report making itimpossible for the Detaining Authority either to consider it or toforward it to the Board in time or case where detenu makes arepresentation to the Detaining Authority so shortly before theAdvisory Board takes up the reference that the Detaining Authoritycannot consider the representation before then but may merelyforward it to the Board without himself considering it. Severalsuch situations may arise compelling departure from the time-imperative. But no allowance can be made for lethargicindifference. No allowance can be made for needlessprocrastination. But, allowance must surely be made for necessaryconsultation where legal intricacies and factual ramifications areinvolved. The burden of explaining the necessity for the slightestdeparture from the time- imperative is on the Detaining Authority.”

(Emphasis supplied)

11. The judgments of this Court in Vimalchand Jawantraj Jainand Frances Coralie Mullin were considered by the Constitution Benchin K. M. Abdulla Kunhi wherein, the judgment in VimalchandJawantraj Jain, Khairul Haque and Om Prakash Bahl v. Union ofIndia[8 ]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 constitutionalright to make representation under Clause (5) of Article 22 by8 W.P. NO. 845 of 1979 decided on October 15, 1979

Anecessary implication guarantees the constitutional right to properconsideration of the representation. Secondly, the obligation ofthe Government to afford to the detenu an opportunity to makerepresentation and to consider such representation is distinct fromthe Government’s obligation to refer the case of detenu alongwith the representation to the Advisory Board to enable it to formBits opinion and send report to the Government. It is implicit inClauses (4) and (5) of Article 22 that the Government whiledischarging its duty to consider the representation, cannot dependupon the views of the Board on such representation. It has toconsider the representation on its own without being influencedCby any such view of the Board. The obligation of the Governmentto consider the representation is different from the obligation ofthe Board to consider the representation at the time of hearingthe references. The Government considers the representation toascertain essentially whether the order is in conformity with thepower under the law. The Board, on the other hand, considers theDrepresentation and the case of the detenu to examine whetherthere is sufficient case for detention. The consideration by theBoard is an additional safeguard and not substitute forconsideration of the representation by the Government. The rightto have the representation considered by the Government, is,Esafeguarded by Clause (5) of Article 22 and it is independent ofthe consideration of the detenu’s case and his representation bythe Advisory Board under cl. (4) of Article 22 read with Section8(c) of the Act…..”

(Emphasis supplied)

12. Later, while considering the Frances Coralie Mullin case,the Constitution Bench held that the time-imperative for considerationof the representation of detenu can never be absolute or obsessive, itdepends upon the necessities under which the representation is made. Ifthere is not enough time to dispose of the representation, theGrepresentation may also be forwarded to the Advisory Board along withthe case of the detenu. This Court held as under:

“16. We agree with the observations in Frances Coralie Mullincase. The time imperative for consideration of representation cannever be absolute or obsessive. it depends upon the necessitiesHand the time at which the representation is made.The

representation may be received before the case is referred to theAdvisory Board, but there may not be time to dispose of therepresentation before referring the case to the Advisory Board.In that situation the representation must also be forwarded to theAdvisory Board along with the case of the detenu. Therepresentation may be received after the case of the detenu isreferred to the Board. Even in this situation the representationshould be forwarded to the Advisory Board provided the Boardhas not concluded the proceedings. In both the situations there isno question of consideration of the representation before the receiptof report of the Advisory Board. Nor it could be said that thegovernment has delayed consideration of the representation,unnecessarily awaiting the report of the Board. It is proper forthe Government in such situations to await the report of the Board.If the Board finds no material for detention on the merits andreports accordingly, the Government is bound to revoke the orderof detention. Secondly, even if the Board expresses the view thatthere is sufficient cause for detention, the Government afterconsidering the representation could revoke the detention. TheBoard has to submit its report within eleven weeks from the dateof detention. The Advisory Board may hear the detenu at hisrequest. The Constitution of the Board shows that it consists ofeminent persons who are Judges or person qualified to be Judgesof The High Court. It is therefore, proper that the Governmentconsiders the representation in the aforesaid two situations onlyafter the receipt of the report of the Board. If the representationis received by the Government after the Advisory Board has madeits report, there could then of course be no question of sending therepresentation to the Advisory Board. It will have to be dealt withand disposed of by the Government as early as possible.”

(Emphasis supplied)

13. Later in the same judgment, it was held that there is noconstitutional mandate to consider the representation before confirmingthe order of the detention. As long as, the Government i.e. the DetainingAuthority considers the representation without delay and without anunbiased mind, there is no basis for concluding that there has been anabsence of independent consideration, before the confirmation ofdetention. The Court held that there is no justification for imposing therestriction on the power of the Detaining Authority. It was held as under:

1110SUPREME COURT REPORTS

A“19. There is no constitutional mandate under Clause (5) of Article22, much less any statutory requirement to consider therepresentation before confirming the order of detention. As longas the Government without delay considers the representationwith an unbiased mind there is no basis for concluding that theabsence of independent consideration is the obvious result if theBrepresentation is not considered before the confirmation ofdetention. Indeed, there is no justification for imposing thisrestriction on the power of the Government. As observed earlier,the Government’s consideration of the representation is for adifferent purpose, namely to find out whether the detention is inCconformity with the power under the statute.This has beenexplained in Haradhan Saha case, where Ray, C.J., speaking forthe Constitution Bench observed that the consideration of therepresentation by the Government is only to ascertain whetherthe detention order is in conformity with the power under the law.There need not be speaking order in disposing suchDrepresentation. There is also no failure of justice by the order notbeing speaking order. All that is necessary is that there shouldbe real and proper consideration by the Government.”

(Emphasis supplied)

E14. The Constitution Bench of this Court in K.M. Abdulla Kunhifurther examined the situation that if the detenu makes representationafter his detention is confirmed according to the procedure laid downunder Section 8 of the COFEPOSA Act, the Government still has toconsider such representation and assess whether the detention is notwithin the power conferred under the law. The Court held as under:F

“20. The words ‘shall afford him the earliest opportunity of makinga representation against the order’ in clause (5) of Article22 suggest that the obligation of the Government is to offer thedetenu an opportunity of making representation against the order,before it is confirmed according to the procedure laid downGunder Section 8 of the Act. But if the detenu does not exercisehis right to make representation at that stage, but presents it to thegovernment after the Government has confirmed the order ofdetention, the Government still has to consider such representationand release the detenu if the detention is not within the powerconferred under the statute. The confirmation of the order ofH

detention is not conclusive as against the detenu.It can be revokedsuomotu under Section 11 or upon representation of the detenu.”

(Emphasis supplied)

15. The aforesaid judgment arises out of the fact that the detentionorder was passed by the Government, however, it will not make anydifference if the detention order had been passed by speciallyempowered Officer. The consideration for revocation of detentionorder is only whether such detention order conforms to the law. Suchconsideration is applicable to all detaining authorities, be it the CentralGovernment or the State Government or any specially empowered Officerof the two. No distinction can be drawn between specially empoweredOfficer or the State and Central Governments as the consideration hereinfor revocation of detention order is restricted to whether or not thedetention order conforms to the law.

16. Subsequently, the matter was again placed before theConstitution Bench in Kamleshkumar Ishwardas Patel v. Union ofIndia and Others[9 ]on account of the divergent views in the State ofMaharashtra & Anr. v. Sushila Mafatlal Shah and others[10 ]and AmirShad Khan v. L. Hmingliana and Others[11]. It was held that Clause(5) of Article 22 imposes dual obligation on the authority making theorder of preventive detention. Firstly, to communicate to the detenu assoon as may be, the grounds on which the order of detention has beenmade; and secondly, to afford the detenu the earliest opportunity of makinga representation against the order of detention. It was held that in termsof Section 21 of the 1897 Act, the authority which has ordered thedetention has the power to revoke the same. Further, the detenu has theliberty to submit his representation to the authority which is competentto revoke the detention. This Court held as under:

“14. Article 22(5) must, therefore, be construed to mean that theperson detained has right to make representation against theorder of detention which can be made not only to the AdvisoryBoard but also to the Detaining Authority, i.e., the authority thathas made the order of detention or the order for continuance ofsuch detention, who is competent to give immediate relief byrevoking the said order as well as to any other authority which is

9 (1995) 4 SCC 51

10 (1988) 4 SCC 490

11 (1991) 4 SCC 39

1112SUPREME COURT REPORTS

Acompetent under law to revoke the order for detention and therebygive relief to the person detained. The right to make representationcarries within it corresponding obligation on the authority makingthe order of detention to inform the person detained of his right tomake representation against the order of detention to theauthorities who are required to consider such representation.”B

17. The Constitution Bench held that when detention order hasbeen passed by an Officer specially empowered for that purpose, thedetenu has right to make representation against the order of detentionto the said Officer.The failure of the Detaining Authority in consideringsuch representation results in the denial of the right conferred on theCdetenu to make representation against the order of detention. Thisright of the detenu is in addition to his right to make representation tothe State and the Central Government.

18. In Criminal Appeal Nos. 764-765 of 1994, the ConstitutionBench of this Court in Kamleshkumar Ishwardas Patel consideredDthree questions which were examined by the Full Bench of the BombayHigh Court. The first question was whether specially empoweredofficer had an independent power to revoke the order of detention. Thesecond question is not relevant for consideration in the present case.The third question examined was whether the failure to take anEindependent decision on the revocation of detention order by the speciallyempowered officer and merely forwarding the same with arecommendation to reject, results in non-compliance with theconstitutional safeguard under Article 22(5) of the Constitution. The orderof the High Court on first question was confirmed and that on the thirdquestion was set aside.F

19. An argument was raised in respect of the third question thatfailure on the part of the Detaining Authority to consider therepresentation of the detenu results in denial of the right of detenu tomake representation recognized under Clause (5) of Article 22, whichrenders the detention illegal. In the aforesaid case, it was found that theGrepresentation of the detenu was not considered by the Officer makingthe order of detention and the High Court erred in holding that the failureon part of the Detaining Authority to consider and decide therepresentation is not vital to the order of detention. Thus, the aforesaidjudgment is to the effect that the Detaining Authority is duty-bound toHconsider the representation of the detenu which is constitutionalmandate under Clause (5) of Article 22 of the Constitution. Suchrepresentation has to be decided independently to the recommendationof the Advisory Board and can be accepted dehors the recommendationof the Advisory Board. Thus, the right of detenu is to seek considerationof his representation by the Detaining Authority, including the speciallyempowered Officer or by State or Central Government. It isconstitutionally mandated by Clause (5) of Article 22. Further, asmentioned earlier, the Detaining Authority which includes the StateGovernment or the Central Government, examines whether the detentionorder is in conformity with law whereas, the appropriate governmentwhile considering the recommendation of the Advisory Board examineswhether there was sufficient cause for the detention of the detenu. Theappropriate government at that stage examines the report of the AdvisoryBoard in respect of the sufficiency of material with regard to detention.The consideration by the Detaining Authority is separate and distinct tothe consideration of the revocation of the detention order and theconsideration by the appropriate Government at the time of assessingthe recommendation of the Advisory Board. Thus, it is immaterial if thedetention order was passed by specially empowered Officer or theState Government or the Central Government as all such authoritieshave similar jurisdiction to revoke the detention order. Clause (5) ofArticle 22 protects the right of the detenu by giving him the right tosubmit representation, which is required to be considered by the DetainingAuthority, provided it is not delayed without any reason. On the otherhand, the detention of the detenu beyond three months can be only onthe basis of the report of the Advisory Board in respect of sufficiency ofmaterial to detain the detenu beyond the period of three months. Suchright is conferred on the detenu by clause (4) of Article 22 of theConstitution.

20. The judgment in K. M. Abdulla Kunhi had been examined byanother Division Bench judgment in Golam Biswas v. Union of Indiaand Another[12], wherein the specially empowered Officer passed twoorders of detention. representation was submitted seeking revocationof the detention order. The consideration of detention of the detenu wasreferred to the Advisory Board on 8.7.2014. The order of detention wasconfirmed by the Central Government on 5.9.2014 and the representationwas rejected by the Central Government on 21.7.2014. Thus, referring

Ato K. M. Abdulla Kunhi and reiterating that there is no time limit todispose of the representation, this Court held as under:

“14. As the quoted text would reveal, in essence, it was reiteratedthat if representation is received by an appropriate authorityand there is no time to dispose of the same having regard to thetime-frame fixed by the Act for reference of the matter to theAdvisory Board, the representation must also be forwarded tothe Advisory Board along with the records of the detenu. Thisassumes significance, in our comprehension, in view of the bindingnature of the opinion of the Advisory Board, in case, on aconsideration of the materials on record it decides to hold againstthe detention. In case the Advisory Board holds that the detentionorder is invalid, it is not open for the appropriate Government tocontinue therewith and it has to essentially revoke the same thoughthe converse may not be the same. In other words, if the AdvisoryBoard upholds the order of detention, it would still be open to theCentral Government, depending on the merits of each case, torelease the detenu. The fact that the opinion of the Advisory Boardagainst continuance of the order of detention is final vis-à-vis theappropriate Government, in our opinion, is the motivating imperativefor requiring the appropriate Government to forward the pendingrepresentation to the Advisory Board so as to enable it to traverse

the entire panorama of grounds taken against the detention orderfor an effective, timely and meaningful consideration of the caseof the detenu. This requirement as has been essentially recognisedand mandated by two decisions of the Constitution Bench of thisCourt, does not, in any way, undermine the appropriateGovernment’s authority to consider and dispose of suchrepresentation of any detenu under the preventive detention law.The right of the Central Government or for that matter anyappropriate Government to consider and dispose of arepresentation of detenu, preventively detained, has to beharmoniously construed with the obligation cast on it to forward apending representation to the Advisory Board as has beenconsistently held in Jayanarayan Sukul [JayanarayanSukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92]and K.M. Abdulla Kunhi [K.M. Abdulla Kunhi v. Union ofIndia, (1991) 1 SCC 476 : 1991 SCC (Cri) 613]”

21. This Court held that the representation of the detenu was notforwarded to the Advisory Board and instead rejected during thependency of the proceedings before the Advisory Board. Thus, the Courtwas constrained to hold that the detention of the detenu wasconstitutionally invalid. It was held as under:

“15. As admittedly, the detenu’s representation dated 8-7-2014,pending with the Central Government, the appropriate Governmentin the case, was not forwarded to the Advisory Board and wasinstead rejected during the pendency of the proceedings beforethe Advisory Board, we are constrained to hold that the detentionof the detenu is constitutionally invalid. The rejection of therepresentation by the Central Government later on 21-7-2014during the pendency of the proceedings before the Advisory Boardis of no consequence to sustain the detention. Consequently, theorder of confirmation as well is rendered nonest by this vitiation.In view of the determination made on the above aspect of thedebate, we do not consider it necessary to dilate on the otherpleas raised on behalf of the detenu. In the result, the appealsucceeds. The impugned judgment and order is set aside. Theorders of detention as well as the order of confirmation are herebyannulled. The detenu is directed to be set at liberty, if not wantedin any other case.”

22. In view of the aforesaid judgment, I am of the opinion thatonce the detention order has been made by any of the authorities competentto detain in terms of Section 3 (1) of the COFEPOSA Act, therepresentation to seek revocation of the detention order can be consideredand decided by the Detaining Authority dehors the decision of the AdvisoryBoard and the acceptance of recommendation by the appropriateGovernment. The consideration for revocation of detention order islimited to examining whether the order conforms with the provisions oflaw whereas the recommendation of the Advisory Board is on thesufficiency of material for detention, which alone is either confirmed ornot accepted by the appropriate Government.

23. It would be matter of prudence and propriety for theDetaining Authority to defer the decision on the representation to revokethe detention order, when the matter is being considered by the AdvisoryBoard, consisting of three Hon’ble sitting Judges of the High Court. Theconsideration of the representation by the Detaining Authority in these

Acircumstances cannot be said to be delayed as the representation wasreceived after the matter was referred to the Advisory Board.

24. Thus, I do not find any merit in the present writ petition. Thesame is dismissed.

Devika Gujral

Writ Petitions allowed.