PRAMOD SINGLA versus UNION OF INDIA & ORS

[2023] 2 S.C.R. 793

PRAMOD SINGLA

UNION OF INDIA & ORS.

(Criminal Appeal No. 1051 of 2023)

APRIL 10, 2023

[KRISHNA MURARI AND V. RAMASUBRAMANIAN, JJ.]

Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974 – Preventive Detention –Representation by detenue to the Central Government, the detainingauthority and the Advisory Board – Central Govt. if bound to waitfor the decision of the Advisory Board before deciding therepresentation – Whether there exists an incongruity between thePankaj Kumar case and the Abdullah Kunhi case – Held: No – Sincethese two judgments exist symbiotically and apply to two separateauthorities within the COFEPOSA Act, there exists no frictionbetween the judgments – The mandate to wait for the decision ofthe Advisory Board, as per the Pankaj Kumar Judgment would applyto the Central Govt., however, the detaining authority, beingindependent of the Govt., can pass its decision without the decisionof the Advisory Board – In the present case, the appellant-detenuesent representation to both, the specially empowered officer andthe Govt. – Detaining authority decided on the representationexpeditiously without waiting for the decision of the Advisory Board,and hence, did not violate the Pankaj Kumar Judgment – The Govt.waited for the decision of the Advisory Board – This was also inaccordance with the decision of the Abdullah Kunhi case, since theGovt., being separate authority, is bound to wait for the decisionof the Advisory Board – Thus, both, the detaining authority and theGovt. worked within the procedure established by law – Hence, theimpugned detention order is not liable to be struck down on theground of 60 days delay on the part of the Govt. in considerationof the representation made by the appellant – However, in the presentcase, the appellant was supplied with illegible documents in aforeign language – Also, the principle of parity is squarely applicablein this case, as the detention order was quashed against similarlyplaced co-detenue – Impugned detention order liable to be set aside

DEF

A– Appellant was however, already released on grounds of expiry ofthe detention period – Constitution of India – Arts. 21, 22(5) –Preventive Detention Act, 1950 – s.3.

Constitution of India – Article 21, 22(5) – Held: In caseswhere illegible documents have been supplied to the detenue, graveBprejudice is caused to the him in availing his right to send arepresentation to the relevant authorities – Thus, the relief u/Article22(5) and the relevant statutory provisions allowing for submittinga representation are vitiated – In cases of preventive detention, everyprocedural irregularity, keeping in mind the principles of Article21 and 22(5), must be accrued in favour of the detenue.C

Criminal Law – Preventive detention laws – Abuse/misuse of– Held: Such laws must be very critically examined and must beused only in the rarest of rare cases.

Allowing the appeal, the CourtD

HELD: 1. Preventive detention laws in India are coloniallegacy, and have great potential to be abused and misused. Lawsthat have the ability to confer arbitrary powers to the state, mustin all circumstances, be very critically examined, and must beused only in the rarest of rare cases. In cases of preventiveEdetention, where the detenue is held in arrest not for crime hehas committed, but for potential crime he may commit, theCourts must always give every benefit of doubt in favour of thedetenue, and even the slightest of errors in proceduralcompliances must result in favour of the detenue. The detenue,in cases of preventive detention under the COFEPOSA Act, hasFthe right to submit representation to the detaining authority,the Government, and the Advisory Board. These representationsthen, as per Article 22(5) of the Constitution of India, must bedecided at the earliest opportunity possible. If the representationis accepted either by the Government or the detaining officer,Gthe detenue is released, however, if the representation is rejected,then the detention period is continued. [Paras 21, 22][802-E-G;803-A-B]

2. Whether there exists an incongruity between the PankajKumar case and the Abdullah Kunhi Case and if such frictionexists should the point of law be referred to Larger Bench?H

The Pankaj Kumar Case judgment was passed in the contextof the Preventive Detention Act, 1960, and the Abdullah KunhiCase was passed in the context of the COFEPOSA Act. Section 3of the two acts provides for preventive detention. The detentionorder under both laws can be passed either by the Government,or by the specially empowered officer. However, under Section 3of the Preventive Detention Act, the specially empowered officer,within 12 days of the detention, has to seek for an approval fromthe Government for continued detention, and only if theGovernment approves the same can the detention be continued.This process of seeking an approval from the Government isessentially transfer of power from the empowered officer to theGovernment, making the Government the detaining authorityafter the initial lapse of 12 days. In the COFEPOSA Act however,no such approval is required from the Government, and hencethe detaining authority and the Government remain to be twoseparate bodies independent of each other. This differencebetween the COFEPOSA Act and the other preventive detentionlaws has been upheld by this Court in the case of Kamlesh KumarIshwardas Patel vs Union Of India & Ors. If the Pankaj Kumarjudgment is read in light of this distinction between the speciallyempowered officer and the Government in the COFEPOSA Act,it is found that there exists no friction between the Pankaj KumarJudgment and the Abdullah Kunhi Judgement, since the PankajKumar Judgement, while mandating the central Government tonot wait for the decision of the Advisory Board, only does sobecause the central Government is the detaining officer in thePreventive Detention Act. In simpler terms, this would meanthat the mandate to not wait for the decision of the Advisory Boardis effectively not for the central Government, but only for thedetaining officer. In the COFEPOSA Act, since the detainingauthority is separate from the Government, both, the PankajKumar Judgment and the Abdullah Kunhi Judgment would apply,but in different spheres. The Pankaj Kumar Judgment, since itwas rendered in the context of the Government being thedetaining authority, would be applicable only to the detainingauthority/specially empowered officer under the COFEPOSA Act.The Abdullah Kunhi Judgment however, since it was rendered inthe context of the COFEPOSA Act, the mandate thereunder would

ABC

DEF

Asquarely apply only to the Government, and not the detainingauthority. In simpler terms, this would mean that the mandate tonot wait for the Advisory Board would be applicable only to thedetaining authority. The Government, however, as per theAbdullah Kunhi Case, must wait for the decision of the AdvisoryBoard. Since these two judgments exist symbiotically and applyBto two separate authorities within the COFEPOSA Act, thereexists no friction between the judgments, and hence there is nonecessity for this point of law to be referred to Larger Benchsince the same is already settled. Any apparent conflict, ascontended by the appellant, stands resolved, and both sets ofCjudgments operate symbiotically and harmoniously within the saidAct, without there existing any tension between them. Themandate to wait for the decision of the Advisory Board, as perthe Pankaj Kumar Judgment, would apply to the centralGovernment, however, the detaining authority, being independentof the Government, can pass its decision without the decision ofDhe Advisory Board. Since no conflict exists, the need to refer thepoint of law to Larger Bench also ceases. [Paras 31, 33-35][811-G-H; 813-F-G; 814-A-D; 815-B-D]

Pankaj Kumar Chakraborty And Ors. v. State of WestBengal (1969) 3 SCC 400 : [1970] 1 SCR 543; K.M.EAbdulla Kunhi & B.L. Abdul Khader v. Union Of India& Ors. (1991) 1 SCC 476 : [1991] 1 SCR 102 –discussed.

3. If there exists no friction between the two Constitutionaljudgments of this Court, can the impugned detention order beFquashed on grounds of the 60-day delay in consideration of therepresentation made by the appellant?

In the present case at hand, the appellant-detenue, availinghis rights sent representation to both, the specially empoweredofficer and the Government. The detaining authority in theGpresent case decided on the representation expeditiously andwithout waiting for the decision of the Advisory Board, and hence,did not violate the Pankaj Kumar Judgment. The Government inthe present case at hand, did decide to wait for the decision ofthe Advisory Board. This was also done in accordance with theHdecision of the Abdullah Kunhi case, since the Government, being

separate authority, is bound to wait for the decision of theAdvisory Board. both, the detaining authority, and theGovernment, have worked precisely within the procedureestablished by law, and hence the impugned detention order isnot liable to be struck down on this ground. [Paras 36-38][815-D-H]

4. Whether the illegible documents written in Chinesesubmitted to the appellant herein are grounds enough forquashing the impugned detention order?

In cases where illegible documents have been supplied tothe detenue, grave prejudice is caused to the detenue in availinghis right to send representation to the relevant authorities,because the detenue, while submitting his representation, doesnot have clarity on the grounds of his or her detention. In such acircumstance, the relief under Article 22(5) of the Constitutionof India and the relevant statutory provisions allowing forsubmitting representation are vitiated, since no man can defendhimself against an unknown threat. In cases of preventivedetention, every procedural irregularity, keeping in mind theprinciples of Article 21 and Article 22(5) of the Constitution ofIndia, must be accrued in favour of the detenue. In the presentcase at hand, the appellant detenue herein has been suppliedwith illegible documents in foreign language. These are thevery same documents that the authorities have relied upon todetain the appellant herein. Further, the principle of parity issquarely applicable in this case, since another co-detenue withidentical circumstances, has already been granted the relief ofquashing the detention order against him. While the appellanthas already been released on grounds of expiry of the detentionperiod, for the sake of clarity on the point of law, it is held thatthe impugned detention order is liable to be set aside. [Paras 39,42, 43 and 45][816-B-C; 817-A-C; 818-A]Kamlesh Kumar Ishwardas Patel vs Union Of India &Ors. (1995) 4 SCC 51 : [1995] 3 SCR 279; Harikisanv. The State Of Maharashtra & Ors. (1962) Supp. 2SCR 918; Gian Chand v. Union Of India & Anr. (Crl.)39 of 2011 – relied on.

AHaradhan Saha v. State of W.B. [1975] 1 SCR 778;Ankit Ashok Jalan vs Union of India & Ors. (2020) 16SCC 127 : [2020] 2 SCR 1047; Jayanarayan Sukul v.State Of West Bengal (1970) 1 SCC 219 : [1970] 3 SCR225; Francis Coralie Mullin v. W.C. Khambra & Ors.(1980) 2 SCC 275 : [1980] 2 SCR 1095 – referred to.B

Case Law Reference

From the Judgment and Order dated 03.11.2022 of the High CourtEof Delhi at New Delhi in WPCRL No. 1205 of 2022.

Vikram Chaudhri, Sr. Adv., Nikhil Jain, Rishi Sehgal, KeshavamChaudhri, Ms. Hargun Sandhu, Ms. Arveen Sekhon, Ms. PrabhneerSwani, Ms. Divya Jain, Sagar Juneja, Advs. for the Appellant.

K.M. Nataraj, A.S.G., Mukesh Kumar Maroria, Divyanshu KumarFSrivastava, Akshit Pradhan, Ms. Aakansha Kaul, Nakul Chengappa K.K.,Sharath Nambiar, Anuj Srinivas Udupa, Chitransh Sharma, Gurmeet SinghMakker, Advs. for the Respondents.

The Judgment of the Court was delivered by

KRISHNA MURARI, J.G

Leave Granted.

2. The present Appeal is directed against the impugned judgmentand final order dated 03.11.2022 passed by the High Court of Delhi atNew Delhi, (hereinafter referred to as “High Court”) in Writ Petition(Crl.) No. 1205 of 2022 whereby the appellant’s plea to quash theH

detention order against him on grounds of delay in considering hisrepresentation was denied.

FACTS

3. Briefly, the facts relevant to the present appeal are that anIntelligence was received by the Respondent that syndicate comprisingof certain Chinese, Taiwanese, and South Korean nationals in associationwith some Indian Nationals were in the practice of smuggling gold intoIndia through Air Cargo by concealing gold in transformers ofelectroplating/ reworking machines etc..

4. One such cargo was being imported to India in the name of oneM/s Healthy Future Leaders Pvt. Ltd. and was likely to arrive at DelhiCargo Complex in the New Delhi Airport.

5. On 18.11.2021 and 19.11.2021, acting on the said intelligence,the purported consignment was examined by the officers of RespondentNo.4 and 80.126 kgs of 24 carat foreign origin gold was recovered fromthe said consignment in the form of ‘E’ and ‘I’ shaped plates with amarket value of Rs.39,31,38,219/-.

6. The appellant being suspect, his shop was checked by DRIofficials and 7 pieces of gold weighing 5.409 KGs with market valueof Rs.2,64,44,680/-was recovered from his premises.

7. The Respondent authority also conducted searches at fourdifferent places of the abovementioned syndicate and arrested 4 foreignnationals on grounds of finding incriminating evidence against them.

8. On 20.11.2021, the appellant along with other members of thesyndicate was arrested by the officers of respondent no.4 authority,whereupon they were produced before the Ld. CMM, Patiala HouseCourts, New Delhi and were subsequently remanded to judicial custody.

9. The appellant then sought for bail before the learned CMM,and vide order dated 13.12.2021 he was granted bail.

10. Vide four separate order dated 21.12.2021, all four foreignnationals accused in the said crime were also granted bail by the Ld.CMM, and further, vide order dated 21.12.2021, the CMM also grantedbail to the co-accused Neeraj Varshney of Indian Origin.

11. Subsequent to the appellant’s release on bail, DRI filed anapplication in the High Court for incorporating an additional condition in

Athe bail order directing the appellant to appear in the office of DRI everyMonday at 11:00 am, and the same was granted.

12. On 19.01.2022, the DRI sent proposal to respondent No.2to issue an order of detention under the COFEPOSA Act against theappellant, and subsequently respondent No.2 detaining authority passedBthe impugned detention order as against the appellant on 01.02.2022.The appellant was then arrested on 04.02.2022 by the DRI.

13. On 24.02.2022 reference was made to the Central AdvisoryBoard, Delhi High Court, and subsequently, representation was sentby the appellant to the Respondent No.2 detaining authority on 02.03.2022Cwhich came to be rejected on 15.03.2022.

14. In the meanwhile, on 10.03.2022, the appellant sent arepresentation letter to the Central Government, and subsequently on04.04.2022, he made another representation to the Advisory Board.

15. The hearing before the Advisory board was concluded onD18.04.2022, and on 09.05.2022, the Central Government, on advice fromthe advisory board after delay of 60 days rejected the representation.

16. The appellant then filed writ in the High Court seeking toquash the detention order against him, which came to be dismissed videimpugned order dated 03.11.2022.

17. This Court subsequently, vide order dated 05.01.2023, releasedthe appellant from custody as interim relief due to the demise of hisfather, and later, due to the expiry of the impugned detention order againstthe appellant, he was released from detention.

ARGUMENTS ADVANCED BY THE APPELLANTF

18. The Learned Counsel for the appellant contended that:

I.As per Article 22(5) of the Constitution of India, arepresentation made by the detenue in cases of preventivedetention must be considered at the earliest, and aninordinate delay in considering the representation is groundsGenough for the detention order to be set aside.

II.While relying on catena of judgments rendered by thisCourt, it was argued that the Central Government is notunder any compulsion to wait for the recommendation ofthe Advisory Board and must act independently and withoutHdelay in deciding the representation of the detenue.

III.Further, the Ld. Counsel for the appellant contends that theAdecisions of this Court in the case of K.M. Abdulla Kunhi& B.L. Abdul Khader v. Union Of India & Ors. [1] andAnkit Ashok Jalan vs Union Of India & Ors.[2] Judgment,both of which are Constitution Bench judgments, which statethat the central Government must wait for the decision ofBthe Advisory Board, are in direct contravention withConstitution Bench judgments of this Court in PankajKumar Chakraborty And Ors. v. State of West Bengal[3]and the Jayanarayan Sukul v State Of West Bengal[4],and due to the apparent conflict, the issue needs to bereferred to Larger Bench.C

IV.It was also contended that the documents supplied to theappellant herein as grounds for his preventive detention wereillegible and in Chinese language, and hence on this groundalso the impugned detention order as against the appellantmust be quashed.

ARGUMENTS ADVANCED BY THE RESPONDENTS

19. Learned ASG, Mr. K.M Natraj appearing on behalf of therespondents contends that:

I.There is no incongruity between the Pankaj case(supra)and the Ashok Jalan case (supra) as contendedby the appellant. The decisions relied upon by the appellantare in context of the Preventive Detention Act, whereas,the Ashok Jalan case (supra) and Adullah Kuni case(supra) are in context of the COFEPOSA Act, and if thePankaj case (supra) is seen in the context of COFEPOSAAct, due to their being distinction between the detainingauthority and the central Government in the COFEPOSAAct, there exists no friction between the two ConstitutionalBench judgments.

II.As per the Ashok Jalan Case (supra), due to the detainingauthority and the central Government being independent of

1 (1991) 1 SCC 476

2 (2020) 16 SCC 127

3 (1969) 3 SCC 400

4 (1970) 1 SCC 219

each other under COFEPOSA Act, the mandate to waitfor the decision of the Advisory Board exists on the centralGovernment, and hence the delay of 60 days is not groundsenough for the detention order to be quashed.

ISSUESB

20. In light of the abovementioned arguments raised by the LearnedCounsels for the parties, following three issues arise for our consideration.

I.Whether there exists an incongruity between the PankajKumar case (supra) and the Abdullah Kunhi Case(supra), and if such friction exists should the point of lawCbe referred to Larger Bench?

II.If there exists no friction between the two Constitutionaljudgments of this Court, can the impugned detention orderbe quashed on grounds of the 60-day delay in considerationof the representation made by the appellant?

III.Whether the illegible documents written in Chinesesubmitted to the appellant herein are grounds enough forquashing the impugned detention order?

ANALYSIS

E21. Before we deal with the issues framed, we find it important tonote that preventive detention laws in India are colonial legacy, andhave great potential to be abused and misused. Laws that have theability to confer arbitrary powers to the state, must in all circumstances,be very critically examined, and must be used only in the rarest of rarecases. In cases of preventive detention, where the detenue is held inFarrest not for crime he has committed, but for potential crime he maycommit, the Courts must always give every benefit of doubt in favour ofthe detenue, and even the slightest of errors in procedural compliancesmust result in favour of the detenue.

ISSUE 1- Whether there exists an incongruity between theGPankaj Kumar case and the Abdullah Kunhi Case and if such afriction exists should the point of law be referred to LargerBench?

22. For the purpose of deciding this question, we must firstelaborate on the rights accrued to detenue against his preventiveH

detention in terms of his representation. The detenue, in cases ofpreventive detention under the COFEPOSA Act, has the right to submita representation to the detaining authority, the Government, and theAdvisory Board. These representations then, as per Article 22(5) of theConstitution of India, must be decided at the earliest opportunity possible.If the representation is accepted either by the Government or the detainingofficer, the detenue is released, however, if the representation is rejected,then the detention period is continued.

23. In the case at hand, the appellant herein, who is under preventivedetention, submitted representation to the Central Government, thedetaining authority and the Advisory Board. It is the case of the appellantthat while the detaining authority considered the representation of theappellant authority in an expeditious manner, however, the Governmenttook 60 days to consider the same. This delay of 60 days, as per theappellant, is fatal to the case of the prosecution, and constitutes sufficientgrounds for quashing the impugned detention order.

24. The Government, however, claims that the delay of 60 days iscompletely fair, as the same was caused because the Central Governmentwas waiting for the advice of the Advisory Board before deciding on theresolution. In light of this conflict, the overarching issue that needs to beanswered is whether the central Government is bound to wait for thedecision of the Advisory Board before coming to its decision or not. Toanswer this, we must look at the relevant case laws that define therights and duties of the Government, the detaining authority and thedetenue in such circumstance.25. In the Pankaj Kumar case (Supra), the petitioners thereinfiled writ petition in the Supreme Court seeking for quashing of adetention order passed against them under the Preventive DetentionAct,1950, on grounds that the Government failed to consider therepresentation made by them and merely passed it on to the AdvisoryBoard. After careful consideration, Constitution Bench of this Courtheld that the Government must act Independently from the AdvisoryBoard, and that there exists no mandate on the Government to wait forthe decision of the Advisory Board. The relevant paragraphs of the saidjudgment are being extracted herein:

“It is true that clause (5) does not in positive language provideas to whom the representation is to be made and by whom,when made, it is to be considered. But the expressions “as

soon as may be” and “the earliest opportunity” in that clauseclearly indicate that the grounds are to be served and theopportunity to make representation are provided for toenable the detenu to show that his detention is unwarrantedand since no other authority who should consider suchrepresentation is mentioned it can only be the detainingauthority to whom it is to be made which has to consider it.Though clause (5) does not in express terms say so it followsfrom its provisions that it is the detaining authority which hasto give to the detenu the earliest opportunity to make arepresentation and to consider it when so made whether itsorder is wrongful or contrary to the law enabling it to detainhim. The illustrations given in Abdul Karim case [AbdulKarim v. State of W.B., (1969) 1 SCC 433] show that clause(5) of Article 22 not only contains the obligation of theappropriate Government to furnish the grounds and to givethe earliest opportunity to make representation but also bynecessary implication the obligation to consider thatrepresentation. Such an obligation is evidently provided forto give an opportunity to the detenu to show and acorresponding opportunity to the appropriate Government toconsider any objections against the order which the detenumay 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 Governmentwhere an Advisory Board is constituted and that representationin such cases is to be considered by the Board and not by theappropriate Government, clause (5) would not have directedthe detaining authority to afford the earliest opportunity tothe detenu. In that case the words would more appropriatelyhave been that the authority should obtain the opinion of theBoard after giving an opportunity to the detenu to make arepresentation and communicate the same to the Board. Butwhat would happen in cases where the detention is for lessthan 3 months and there is no necessity of having the opinionof the Board? If counsel’s contention were to be right therepresentation in such cases would not have to be consideredeither by the appropriate Government or by the Board andthe right of representation and the corresponding obligation

of the appropriate Government to give the earliest opportunityto make such representation would be rendered nugatory. Inimposing the obligation to afford the opportunity to make arepresentation, clause (5) does not make any distinctionbetween orders of detention for only 3 months or less andthose for longer duration. The obligation applies to bothkinds of orders. The clause does not say that the representationis to be considered by the appropriate Government in theformer class of cases and by the Board in the latter class ofcases. In our view it is clear from clauses (4) and (5) of Article22 that there is dual obligation on the appropriateGovernment and dual right in favour of the detenu, namely,(1) to have his representation irrespective of the length ofdetention considered by the appropriate Government and (2)to have once again that representation in the light of thecircumstances of the case considered by the Board before itgives its opinion. If in the light of that representation the Boardfinds that there is no sufficient cause for detention theGovernment has to revoke the order of detention and set atliberty the detenu. Thus, whereas the Government considersthe representation to ascertain whether the order is inconformity with its power under the relevant law, the Boardconsiders such representation from the point of view ofarriving at its opinion whether there is sufficient cause fordetention. The obligation of the appropriate Government toafford to the detenu the opportunity to make representationand to consider that representation is distinct from theGovernment’s obligation to constitute Board and tocommunicate the representation amongst other materials tothe Board to enable it to form its opinion and to obtain suchopinion.

This conclusion is strengthened by the other provisions of theAct. In conformity with clauses (4) and (5) of Article 22, Section7 of the Act enjoins upon the detaining authority to furnishto the detenu grounds of detention within five days from thedate of his detention and to afford to the detenu the earliestopportunity to make his representation to the appropriateGovernment. Sections 8 and 9 enjoin upon the appropriateGovernment to constitute an Advisory Board and to place

DEF

Awithin 30 days from the date of the detention the grounds fordetention, the detenu’s representation and also the report ofthe officer where the order of detention is made by an officerand not by the Government. The obligation under Section 7is quite distinct from that under Sections 8 and 9. If therepresentation was for the consideration not by theBGovernment but by the Board only as contended, there wasno necessity to provide that it should be addressed to theGovernment and not directly to the Board. The Governmentcould not have been intended to be only transmittingauthority nor could it have been contemplated that it shouldCsit tight on that representation and remit it to the Board afterit is constituted. The peremptory language in clause (5) ofArticle 22 and Section 7 of the Act would not have beennecessary if the Board and not the Government had toconsider the representation. Section 13 also furnishes ananswer to the argument of the counsel for the State. UnderDthat section the State Government and the Central Governmentare empowered to revoke or modify an order of detention.That power is evidently provided for to enable the Governmentto take appropriate action where on representation made toit, it finds that the order in question should be modified orEeven revoked. Obviously, the intention of Parliament could nothave been that the appropriate Government should pass anorder under Section 13 without considering the representationwhich has under Section 7 been addressed to it.For the reasons aforesaid we are in agreement with theFdecision in Abdul Karim case [Abdul Karim v. State of W.B.,(1969) 1 SCC 433] . 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 Board andGthat not having been done the order of detention against themcannot be sustained. In this view it is not necessary for us toexamine the other objections raised against these orders. Thepetition is therefore allowed, the orders of detention againstPetitioners 15 and 36 are set aside and we direct that theyHshould be set at liberty forthwith.”

26. Further, in the Jayanarayan Sukul Case (Supra), the sameissue was considered by another Constitution Bench of this Court, whereinit went on to reiterate the principles in the Pankaj Kumar Case (Supra),and held that the central Government must act independently of theAdvisory Board, and can decide the representation made by the detenuewithout hearing from the Advisory Board. For the purpose of convenience,the relevant paragraph of the said judgment is being reproduced herein:

“In the present case, the State of West Bengal is guilty ofinfraction of the Constitutional provisions not only byinordinate delay of the consideration of the representationbut also by putting of the consideration till after the receiptof the opinion of the Advisory Board. As we have alreadyobserved there is no explanation for this inordinate delay.The Superintendent who made the enquiry did not affirm anaffidavit. The State has given no information as to why thislong delay occurred. The inescapable conclusion in thepresent case is that the appropriate authority failed todischarge its Constitutional obligation by inactivity and lackof independent judgment.”

27. In the Harardhan Saha Case (Supra), yet anotherConstitution Bench of this Court considered the distinction between theconsideration of the representation made by the detenue in cases ofpreventive detention, and it was stated that if the representation wasmade before the matter is referred to the Advisory Board, the detainingauthority must consider such representation, but if the representation ismade after the matter is referred to the Advisory Board, the detainingauthority would first consider it and then send it to the Advisory Board.The relevant paragraph from the said judgment is being reproducedhereunder:

“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 entirematerial. The Board can also call for more materials. TheBoard may call the detenu at his request. The Constitution ofthe Board shows that it is to consist of Judges or personsqualified to be Judges of the High Court. The Constitution ofthe Board observes the fundamental of fair play and principles

Aof natural justice. It is not the requirement of principles ofnatural justice that there must be an oral hearing. Section 8of the Act which casts an obligation on the State to considerthe representation affords the detenu all the rights which areguaranteed by Article 22(5). The Government considers therepresentation to ascertain essentially whether the order is inBconformity with the power under the law. The Board, on theother hand, considers whether in the light of therepresentation there is sufficient cause for detention.

Principles of natural justice are an element in consideringthe reasonableness of restriction where Article 19 isCapplicable. At the stage of consideration of representationby the State Government, the obligation of the StateGovernment is such as Article 22(5) implies. Section 8 of theAct is in complete conformity with Article 22(5) because thissection follows the provisions of the Constitution. If theDrepresentation of the detenu is received before the matter isreferred to the Advisory Board, the detaining authorityconsiders the representation. If representation is made afterthe matter has been referred to the Advisory Board, thedetaining authority will consider it before it will sendrepresentation to the Advisory Board.”E

28. Subsequently, in the case of Francis Coralie Mullin v. W.C.Khambra & Ors.[5], Division Bench of this Court considered theprinciples laid down in the judgment of Jayanarayan Sukul (Supra),and while it agreed with the principles of the above mentioned case, ithowever made an observation stating that when it was said that theFGovernment must decide on the representation before forwarding it tothe advisory board, the emphasis was not on time, but on the onus of theGovernment to decide the representation Independently. This essentiallymeant that the Government must act independently of the Advisory Board,the relevant paragraphs from the said judgment are being extracted herein:G“We have no doubt in our minds about the role of the Courtin cases of preventive detention : it has to be one of eternalvigilance. No freedom is higher than personal freedom andno duty higher than to maintain it unimpaired. The Court’s

H5 (1980) 2 SCC 275

writ is the ultimate insurance against illegal detention. TheConstitution enjoins conformance with the provisions ofArticle 22 and the Court exacts compliance. Article 22(5) vestsin the detenu the right to be provided with an opportunity tomake representation. Here the Law Reports tell story andteach lesson. It is that the principal enemy of the detenuand his right to make representation is neither high-handedness nor mean-mindedness but the casual indifference,the mindless insensibility, the routine and the red tape of thebureaucratic machine. The four principles enunciated by theCourt in Jayanarayan Sukul v. State of W.B. [JayanarayanSukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri)92] as well as other principles enunciated in other cases, ananalysis will show, are aimed at shielding personal freedomagainst indifference, insensibility, routine and red tape andthus to secure to the detenu the right to make an effectiverepresentation. We agree : (1) the detaining authority mustprovide the detenu very early opportunity to make arepresentation, (2) the detaining authority must consider therepresentation as soon as possible, and this, preferably, mustbe before the representation is forwarded to the AdvisoryBoard, (3) the representation must be forwarded to theAdvisory Board before the Board makes its report, and (4)the consideration by the detaining authority of therepresentation must be entirely independent of the hearingby the Board or its report, expedition being essential at everystage. We, however, hasten to add that the time-imperativecan never be absolute or obsessive. The Court’s observationsare not to be so understood. There has to be lee-way, dependingon the necessities (we refrain from using the word“circumstances”) of the case. One may well imagine casewhere detenu does not make representation before theBoard makes its report making it impossible for the detainingauthority either to consider it or to forward it to the Board intime or case where detenu makes representation to thedetaining authority so shortly before the Advisory Board takesup the reference that the detaining authority cannot considerthe representation before then but may merely forward it tothe Board without himself considering it. Several such

Asituations 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 fornecessary consultation where legal intricacies and factualramifications are involved. The burden of explaining theBnecessity for the slightest departure from the time-imperativeis on the detaining authority.

We have already expressed our agreement with the fourprinciples enunciated in Jayanarayan Sukul v. State ofW.B. [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219C: 1970 SCC (Cri) 92] We would make one observation. Whenit was said there that the Government should come to itsdecision on the representation before the Governmentforwarded the representation to the Advisory Board, theemphasis was not on the point of time but on the requirementDthat the Government should consider the representationindependently of the Board.”

29. However, in the case of Abdulla Kunhi (Supra), where thepreventive detention of the petitioner therein under the COFEPOSAAct was challenged on the same disputed ground, Constitutional BenchEof this Court, while considering both the issues of when the representationis submitted before the matter is referred to the Advisory Board andafter the mater has been referred to the advisory board, for both thecircumstances, had held that the Government must wait for the decisionof the Advisory Board before making its decision on the representation.FThe relevant paragraph of the abovementioned judgment is beingextracted hereunder:

“We agree with the observations in Frances Coralie Mullincase [(1980) 2 SCC 275 : 1980 SCC (Cri) 419] . The timeimperative for consideration of representation can never beabsolute or obsessive. It depends upon the necessities andthe time at which the representation is made. The representationmay be received before the case is referred to the AdvisoryBoard, 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

the Advisory 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 situationsthere is no question of consideration of the representationbefore the receipt of report of the Advisory Board. Nor it couldbe said that the Government has delayed consideration ofthe representation, unnecessarily awaiting the report of theBoard. It is proper for the Government in such situations toawait the report of the Board. If the Board finds no materialfor detention on the merits and reports accordingly, theGovernment is bound to revoke the order of detention.Secondly, even if the Board expresses the view that there issufficient cause for detention, the Government afterconsidering the representation could revoke the detention.The Board has to submit its report within eleven weeks fromthe date of detention. The Advisory Board may hear the detenuat his request. The Constitution of the Board shows that itconsists of eminent persons who are Judges or personsqualified to be Judges of the High Court. It is therefore, properthat the Government considers the representation in theaforesaid two situations only after the receipt of the report ofthe Board. If the representation is received by the Governmentafter the Advisory Board has made its report, there could thenof course be no question of sending the representation to theAdvisory Board. It will have to be dealt with and disposed ofby the Government as early as possible.”30. While at first glance, it may seem like there is friction betweenthe two sets of judgments, however, deeper inspection would proveotherwise. To understand the two sets of judgments, we must first lookat the relevant provisions under which these judgments were passed.

31. The Pankaj Kumar Case (Supra) judgment was passed inthe context of the Preventive Detention Act, 1960, and the AbdullahKunhi Case (Supra) was passed in the context of the COFEPOSAAct. Section 3 of the two acts providing for preventive detention, for aready reference, are being reproduced hereunder in table chart:

ABCDEFGH

32. As can be seen from the provisions of the abovementionedActs, the detention order under both laws can be passed either by theGovernment, or by the specially empowered officer. However, underSection 3 of the Preventive Detention Act, the specially empoweredofficer, within 12 days of the detention, has to seek for an approval fromthe Government for continued detention, and only if the Governmentapproves the same can the detention be continued. This process ofseeking an approval from the Government is essentially transfer ofpower from the empowered officer to the Government, making theGovernment the detaining authority after the initial lapse of 12 days. Inthe COFEPOSA Act however, no such approval is required from theGovernment, and hence the detaining authority and the Governmentremain to be two separate bodies independent of each other. Thisdifference between the COFEPOSA Act and the other preventivedetention laws has been upheld by this Court in the case of KamleshKumar Ishwardas Patel vs Union Of India & Ors.[6], the relevantextract of the abovesaid judgment is being reproduced hereunder:

“The second premise that the Central Government becomesthe detaining authority since there is deemed approval by theGovernment of the order made by the officer speciallyempowered in that regard from the time of its issue, runscounter to the scheme of the COFEPOSA Act and the PITNDPS Act which differs from that of other preventive detentionlaws, namely, the National Security Act, 1980, theMaintenance of Internal Security Act, 1971, and thePreventive Detention Act, 1950.”

33. If we read the Pankaj Kumar judgment (Supra) in light ofthis distinction between the specially empowered officer and theGovernment in the COFEPOSA Act, we find that there exists no frictionbetween the Pankaj Kumar Judgment (Supra) and the AbdullahKunhi Judgement (Supra), since the Pankaj Kumar Judgement, whilemandating the central Government to not wait for the decision of theAdvisory Board, only does so because the central Government is thedetaining officer in the Preventive Detention Act. In simpler terms, thiswould mean that the mandate to not wait for the decision of the AdvisoryBoard is effectively not for the central Government, but only for thedetaining officer.

A34. In the COFEPOSA Act, since the detaining authority isseparate from the Government, both, the Pankaj Kumar Judgment(supra) and the Abdullah Kunhi Judgment (supra) would apply, butin different spheres. The Pankaj Kumar Judgment (supra), since itwas rendered in the context of the Government being the detainingauthority, would be applicable only to the detaining authority/speciallyBempowered officer under the COFEPOSA Act. The Abdullah KunhiJudgment (supra) however, since it was rendered in the context of theCOFEPOSA Act, the mandate thereunder would squarely apply only tothe Government, and not the detaining authority. In simpler terms, thiswould mean that the mandate to not wait for the Advisory Board wouldCbe applicable only to the detaining authority. The Government, however,as per the Abdullah Kunhi Case (supra), must wait for the decision ofthe Advisory Board. Since these two judgments exist symbiotically andapply to two separate authorities within the COFEPOSA Act, there existsno friction between the judgments, and hence there is no necessity forthis point of law to be referred to Larger Bench since the same isDalready settled. This application of both the judgments in two separatespheres within the same act has been clarified in the Ashok JalanJudgment (supra), the relevant extract from the said judgment is beingextracted hereunder:

“We are conscious that the view that we are taking, may leadEto some incongruity and there could be clear dichotomy whenthe representations are made simultaneously to such speciallyempowered officer who had passed the order of detentionand to the appropriate Government. If we go by the principlein para 16 in K.M. Abdulla Kunhi [K.M. AbdullaFKunhi v. Union of India, (1991) 1 SCC 476 : 1991 SCC (Cri)613] it would be proper for the appropriate Government towait till the report was received from the Advisory Board, whileat the same time the specially empowered officer who hadacted as the detaining authority would be obliged to considerthe representation with utmost expedition. At times singleGrepresentation is prepared with copies to the detainingauthority, namely, the specially empowered officer and to theappropriate Government as well as to the Advisory Board. Insuch situations there will be incongruity as stated above, whichmay be required to be corrected at some stage. However, suchHdifficulty or inconsistency cannot be the basis for holding

that specially empowered officer while acting as detainingauthority would also be governed by the same principles aslaid down in para 16 of K.M. Abdulla Kunhi [K.M. AbdullaKunhi v. Union of India, (1991) 1 SCC 476 : 1991 SCC (Cri)613] .”

35. In light of the abovementioned discussions, it can be clearlyseen that any apparent conflict, as contended by the appellant, standsresolved, and both sets of judgments operate symbiotically andharmoniously within the said Act, without there existing any tensionbetween them. The mandate to wait for the decision of the AdvisoryBoard, as per the Pankaj Kumar Judgment (Supra), would apply tothe central Government, however, the detaining authority, beingindependent of the Government, can pass its decision without the decisionof he Advisory Board. Since no conflict exists, the need to refer thepoint of law to Larger Bench also ceases, and hence we hold issueNo.1 in favour of the Respondents.

ISSUE II-If there exists no friction between the twoConstitutional judgments of this Court, can the impugneddetention order be quashed on grounds of the 60-day delay inconsideration of the representation made by the appellant?

36. In the present case at hand, the appellant-detenue, availing hisrights sent representation to both, the specially empowered officer andthe Government. The detaining authority in the present case decided onthe representation expeditiously and without waiting for the decision ofthe Advisory Board, and hence, did not violate the Pankaj KumarJudgment (supra).

37. The Government in the present case at hand, did decide towait for the decision of the Advisory Board. This was also done inaccordance with the decision of the Abdullah Kunhi case (supra),since the Government, being separate authority, is bound to wait forthe decision of the Advisory Board.

38. In light of the abovementioned discussions, it can be seen thatboth, the detaining authority, and the Government, have worked preciselywithin the procedure established by law, and hence the impugned detentionorder is not liable to be struck down on this ground. We therefore holdIssue II in favour of the respondent.

816SUPREME COURT REPORTS

AISSUE III-Whether the illegible documents written inChinese submitted to the appellant herein are grounds enoughfor quashing the impugned detention order?

39. In cases where illegible documents have been supplied to thedetenue, grave prejudice is caused to the detenue in availing his rightBto send representation to the relevant authorities, because the detenue,while submitting his representation, does not have clarity on the groundsof his or her detention. In such circumstance, the relief under Article22(5) of the Constitution of India and the relevant statutory provisionsallowing for submitting representation are vitiated, since no man candefend himself against an unknown threat.C

40. In the case of Harikisan v. The State Of Maharashtra &Ors.[7], this Court held that in cases of preventive detention, as per theprinciples enshrined under Article 22(5) of the Constitution Of India, thedetaining authority must explain the grounds of detention to the detenue,and must provide the material in support of the same and in the languageDunderstood by the detenue. The relevant Paragraph of the said judgmentis being reproduced herein:

“…The grounds in support of the order served on theappellant ran into fourteen typed pages and referred to hisactivities over period of thirteen years, beside referring toEa large number of Court proceedings concerning him andother persons who were alleged to be his associates. Mereoral explanation of complicated order of the nature madeagainst the appellant without supplying him the translationin script and language which he understood would, in ourFjudgment, amount to denial of the right of being communicatedthe grounds and of being afforded the opportunity of makinga representation against the order…”

41. It has been brought to our notice that co-detenue, one Mr.Neeraj Varshney has already been granted relief, and his detention orderGhas been quashed by the High Court on grounds of illegible Chinesedocuments supplied to him as his grounds for detention. It is important tonote that the circumstances of the appellant herein, as far as the presentdetention is concerned, is identical to the case of the co-detenue who’sdetention order was quashed.

H7 (1962) Supp. 2 SCR 918

42. At the sake of repetition, we find it important to state that incases of preventive detention, every procedural irregularity, keeping inmind the principles of Article 21 and Article 22(5) of the Constitution ofIndia, must be accrued in favour of the detenue. In the present case athand, the appellant detenue herein has been supplied with illegibledocuments in foreign language. It is also important to note that theseare the very same documents that the authorities have relied upon todetain the appellant herein.43. Further, the principle of parity is squarely applicable in thiscase, since another co-detenue with identical circumstances, has alreadybeen granted the relief of quashing the detention order against him. Inthe case of Gian Chand v. Union Of India & Anr.[8], this Court whiledeciding on quashing of detention order, categorically held that incases where similarly placed co-detenue has already been granted therelief of quashing of the detention order, the principle of parity mustapply, and the same relief should be extended to other similarly placeddetenues. In light of the abovementioned discussion, we hold Issue III infavour of the appellant.

CONCLUSION

44. As has been mentioned above, preventive detention laws inIndia are colonial legacy, and as such, are extremely powerful lawsthat have the ability to confer arbitrary power to the state. In such acircumstance, where there is possibility of an unfettered discretionof power by the Government, this Court must analyze cases arisingfrom such laws with extreme caution and excruciating detail, to ensurethat there are checks and balances on the power of the Government.Every procedural rigidity, must be followed in entirety by theGovernment in cases of preventive detention, and every lapse inprocedure must give rise to benefit to the case of the detenue. TheCourts, in circumstances of preventive detention, are conferred withthe duty that has been given the utmost importance by the Constitution,which is the protection of individual and civil liberties. This act ofprotecting civil liberties, is not just the saving of rights of individuals inperson and the society at large, but is also an act of preserving ourConstitutional ethos, which is product of series of struggles againstthe arbitrary power of the British state.

[2023] 2 S.C.R.

A45. In light of the abovementioned discussion, while the appellanthas already been released on grounds of expiry of the detention period,for the sake of clarity on the point of law, we hold that the impugneddetention order is liable to be set aside, and the present appeal isaccordingly allowed.

Divya Pandey

Appeal allowed.

(Assisted by : Roopanshi Virang, LCRA)