Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.362 OF 2019

ANKIT ASHOK JALAN …Petitioner

Versus

UNION OF IDNIA AND ORS. …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. This petition under Article 32 of the Constitution of India prays for

quashing of the Detention Orders

1

dated 01.07.2019 and for a direction that

the detenues be set at liberty.

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

(a)On 01.07.2019, Joint Secretary to the Government of India,

specially empowered under Section 3(1) of the COFEPOSA Act

2

passed

the Detention Orders after being satisfied that with a view to prevent the

1Nos.PD-12001/34/2019-COFEPOSA and PD-12001/35/2019-COFEPOSA, both dated

01.07.2019, issued by the Respondent No.2 against Shri Ashok Kumar Jalan and Shri Amit

Jalan respectively

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

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Ankit Ashok Jalan vs. Union of India & Ors.

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detenues from smuggling goods, abetting the smuggling of goods, and

dealing in smuggled goods otherwise than by engaging in transporting or

concealing or keeping smuggled goods, in future, it was necessary to make

the said Detentions Orders.

b) The detenues were served with the Detention Orders, the grounds

of detention and the relied upon documents on 02.07.2019. The grounds of

detention, in para 12, recited as under:-

“You ……….. have the right to represent against your detention

to the Detaining Authority, to the Central Government as well as

to the Advisory Board. If you wish to avail this right, you should

send your representation through the Jail Authorities where you

are detained, in the manner indicated below:

(a)Representation meant for the Detaining Authority should be

addressed to the Joint Secretary (COFEPOSA), Government

of India, Ministry of Finance, Department of Revenue,

Central Economic Intelligence Bureau, 6

th

Floor, B-Wing,

Janpath Bhawan, New Delhi-110001.

(b)Representation meant for the Central Government should be

addressed to the Director General, Central Economic

Intelligence Bureau, Government of India, Ministry of

Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

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Finance, Department of Revenue, 6

th

Floor, B-Wing, Janpath

Bhawan, New Delhi-110001.

(c)Representation meant for the Advisory Board should be

addressed 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 to the

Central Advisory Board

3

along with the grounds of detention and relied

upon documents.

(d)On 22.07.2019 representation dated 17.07.2019 made on behalf of

both the detenues, addressed to the Joint Secretary (COFEPOSA),

Government of India, Ministry of Finance, Department of Revenue was

received through the Presidency Correctional Home, Alipore, Kolkata.

The representation stated inter alia:-

“9….(iii)To enable me to make an effective representation at

the earliest opportunity, I may please be forthwith provided with-

a)a copy of the Retraction Petition of Shri Anand stated

to be relied upon in the grounds of detention;

b)a copy of the pen-drive or CD/DVD of the CCTV

footage directed by the CMM to be submitted on 18

th

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

Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

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June, 2019 may please be provided to me and may

please be shown to me on a laptop or any other device.

10.Kindly note that unless the aforesaid prayers are considered

expeditiously, I am unable to make my final representation to the

Central Government and the Advisory Board, etc. Therefore,

the instant representation may please be considered as

expeditiously as 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 the Sponsoring

Authority, namely, DRI, Kolkata for its comments which were received on

29.07.2019. Said representation as well as the para-wise comments

received from the Sponsoring Authority were forwarded on 31.07.2019 to

the Central Advisory Board. The meeting of the Central Advisory Board

was scheduled to be held on 02.08.2019.

(f)On 02.08.2019 itself, Writ Petition No.1840 of 2019 preferred on

behalf of the detenues was allowed by the High Court

4

on the grounds that

when the detenues were in judicial custody and there was no imminent

possibility of their release on bail and when not even a bail application was

preferred by them, the power of preventive detention ought not to have

4The High Court of Delhi at New Delhi

Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

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been exercised; and, that non-placement of relevant material in the form of

retraction petition of one Shri Anand and its non-consideration by the

Detaining Authority vitiated the Detention Orders. The High Court thus

quashed the Detention Orders and directed that the detenues be released

forthwith.

(g)In its Meeting dated 02.08.2019, the Central Advisory Board

recorded that since the Detention Orders were quashed, there was no

possibility of proceeding further in the matter.

(h)The decision of the High Court was challenged in Criminal Appeal

No.1746 of 2019 in this Court, which by its Judgment and order dated

22.11.2019 set aside the view taken by the High Court. While allowing the

appeal, the detenues were directed to be taken into custody forthwith. The

Detaining Authority was thereafter informed by the Jail Superintendent on

27.11.2019 that the detenues were received in custody in pursuance of the

decision of this Court.

(i)On 02.12.2019 a direction was issued to process the files of the

detenues for reference to the Central Advisory Board. After obtaining

appropriate approval, the case was referred to the Central Advisory Board

on 05.12.2019 stating inter alia:-

Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

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“Keeping in view the judgment dated 03.06.2015 of

the Apex Court delivered in Crl.Appeal No.829 of

2015 arising out of SLP(Crl) No.2489 of 2015 –

Golam Biswas v. Union of India, the said

representations will be considered for disposal by the

competent authority only after receipt of opinion of

the Hon’ble Board.”

3. The instant writ petition was filed on or about 16

th

December,

2019 challenging the stand taken in the communication dated 05.12.2019

that the representation would be considered only after the receipt of the

opinion of the Central Advisory Board. It was submitted that the

representation ought to be considered independently by the Detaining

Authority and without waiting for the report of the Central Advisory

Board; and that the delay in consideration of such representation violated

the rights of the detenues guaranteed by the Constitution of India. Soon

thereafter, another representation reiterating the stand as aforesaid was

made by the Advocate for the detenues on 18.12.2019.

4. On 18.12.2019 notice was issued by this Court, whereafter, an

affidavit in reply was filed on behalf of the respondents stating inter alia:-

(a)On 06.01.2020 a report was submitted by the Central

Advisory Board that there was sufficient cause for the detention of

the detenues.

Writ Petition (Criminal) No.362 of 2019

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(b) After considering the report of the Central Advisory Board

and the other material on record, the Central Government

confirmed the Detention Orders vide proceedings dated

14.01.2020.

(c)On the same date i.e. 14.01.2020 the Detaining Authority,

namely, Joint Secretary (COFEPOSA) rejected the representations

dated 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 the

representations were considered only after the receipt of the opinion of the

Central Advisory Board dated 06.01.2020.

5. We heard Mr. Mukul Rohatgi and Mr. Neeraj Kishan Kaul, 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 the time

representation dated 17.07.2019 was received by the Detaining Authority,

the matter was referred to the Central Advisory Board and since the

5 (2015) 16 SCC 177

6 (1991) 1 SCC 476

Writ Petition (Criminal) No.362 of 2019

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Detention Orders were set aside by the High Court on 02.08.2019, 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 by this Court

and the detenues were taken back in custody in November, 2019, the non-

consideration of and delay in disposal of said representation was more

pronounced and relevant. It was submitted:-

(a) A representation against an order of detention can be made

to the Detaining Authority where the detention order has been passed

by a specially empowered officer of the Central Government as well

as to the Central Government and the Central Advisory Board. Para

12 of the grounds of detention, as extracted earlier, was in keeping

with this well accepted principle.

(b) The representation made to the Detaining Authority had to

be considered by the Detaining Authority independently. The

Detaining Authority was not right in waiting till the receipt of the

report of the Central Advisory Board.

(c) The consequential delay on part of the Detaining Authority

in considering the representation thus violated the constitutional rights

of the detenues.

Writ Petition (Criminal) No.362 of 2019

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7. On the other hand, Mr. K.M. Nataraj, learned Additional Solicitor

General, for the respondents relied upon the decisions of this Court in

Golam Biswas

5

and in K.M. Abdulla Kunhi

6

to submit that while the

matter was pending consideration before the Central Advisory Board, the

representation in question could not be considered and it could be

considered only after the receipt of the report of the Central Advisory

Board.

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

a)The Detaining Authority received a letter on 27.11.2019 that

the detenues were received in custody. Thereafter the matter

was again referred by the Central Government to the Central

Advisory Board on 05.12.2019. The communication shows

that it was decided that the representations would be

considered only after receipt of the opinion of the Central

Advisory Board.

b)The opinion of the Central Advisory Board was submitted on

06.01.2020. On 14.01.2020 the Central Government

confirmed the Detention Orders and on the same date the

Detaining Authority rejected the representations.

Writ Petition (Criminal) No.362 of 2019

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9. Following questions therefore arise:-

i)Whether the Detaining Authority was justified in deferring the

consideration of the representation till the receipt of the

opinion of the Central Advisory Board?

ii)Whether the Detaining Authority ought to have considered the

representation independently and without waiting for the

report of the Central Advisory Board?

iii) If the answer to the second question is yes, whether the time

taken by the Detaining Authority from 27.11.2019 till

14.01.2020 could be characterised as undue and avoidable

delay violating the constitutional rights of the detenues?

10. The learned counsel appearing for the parties placed for our

consideration various decisions of this Court touching upon the aforesaid

first two questions. We may broadly consider those decisions for

answering the questions from two perspectives:-

First, on the issue whether a representation can independently be

made to and must be considered by the Detaining Authority, who is a

specially empowered officer of the concerned Government.

Writ Petition (Criminal) No.362 of 2019

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Secondly, whether, in certain circumstances, the Detaining

Authority ought to defer consideration of such representation till the

report is received from the Advisory Board.

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

A)In Ibrahim Bachu Bafan vs. State of Gujarat and others

7

a

Bench of three Judges of this Court, while considering the scope

of Section 11 of the COFEPOSA Act and Section 21 of 1897

Act

8

, made following observations:-

“7. … …. The heading of Section 11 is “Revocation

of Detention Orders”. Sub-section (1) authorises

revocation by two authorities, namely, — (a) if the

order has been made by an officer of a State

Government, the State Government or the Central

Government may revoke the order; and (b) if the

order has been made by an officer of the Central

Government or by a State Government, revocation is

permissible by the Central Government. Sub-section

(1) of Section 11 indicates that the power conferred

under it in the situations envisaged in Clauses (a) and

(b) is exercisable without prejudice to the provisions

of Section 21 of the General Clauses Act. That section

provides that a power to issue orders includes a power

exercisable in the like manner and subject to the like

sanction and conditions, if any, to add, to amend, vary

or rescind such orders. Under Section 21 of the

General Clauses Act, therefore, the authority making

an order of detention would be entitled to revoke that

order by rescinding it. We agree with the submission

of Mr Jethmalani that the words “without prejudice to

the provisions of Section 21 of the General clauses

Act 1897” used in Section 11(1) of the Act give

7 (1985) 2 SCC 24

8 The General Clauses Act, 1897

Writ Petition (Criminal) No.362 of 2019

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expression to the legislative intention that without

affecting that right which the authority making the

order enjoys under Section 21 of the General Clauses

Act, an order of detention is also available to be

revoked or modified by authorities named in clauses

(a) and (b) of Section 11(1) of the Act. Power

conferred under clauses (a) and (b) of Section 11(1)

of the Act could not be exercised by the named

authorities under Section 21 of the General Clauses

Act as these authorities on whom such power has

been conferred under the Act are different from those

who made the orders. Therefore, conferment of such

power was necessary as Parliament rightly found that

Section 21 of the General Clauses Act was not

adequate to meet the situation. Thus, while not

affecting in any manner and expressly preserving the

power under Section 21 of the General Clauses Act of

the original authority making the order, power to

revoke or modify has been conferred on the named

authorities.”

It was, thus, accepted that by virtue of Section 21 of 1897 Act, the

authority making an order of detention would be entitled to revoke that

order by rescinding it and that conferment of power under Section 11 of

the COFEPOSA Act was done without affecting in any manner and

expressly preserving the power under Section 21 of 1897 Act of the

original authority making the order.

B)A Bench of two Judges of this Court in State of Maharashtra

and another vs. Smt. Sushila Mafatlal Shah and others

9

took

9 (1988) 4 SCC 490

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a slightly different view. This Court framed following questions

in para 11:-

“11. ………

(1) Does an order passed by an officer of the State

Government or the Central Government, specially

empowered for the purposes of Section 3(1) by

the respective government, make him the

detaining authority and not the State Government

or the Central Government as the case may be,

and obligate him to inform the detenu that he has

a threefold opportunity to make his

representations i.e. the first to himself and the

other two to the State Government and the Central

Government.

(2) Whether for the purposes of the Act, there is any

difference between an order of detention passed

by an officer of the State Government or the

Central Government, solely in exercise of the

powers conferred on him under Section 3 by the

respective government and an order of detention

passed by the State Government or the Central

Government as the case may be through an officer

who in addition to conferment of powers under

Section 3 is also empowered under the Standing

Rules framed under the Rules of Business of the

government, to act on behalf of the government.

(3) Whether by reason of the fact that an order of

detention is passed by an officer of the State

Government or the Central Government specially

empowered to act under Section 3 of the Act, a

detenu acquires a constitutional right to have his

representation first considered by the very officer

issuing the detention order before making a

representation to the State Government and the

Central Government.”

Writ Petition (Criminal) No.362 of 2019

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While considering the scheme of the COFEPOSA Act, including

the ambit of Section 11, it was observed:-

“19. We may now examine the scheme of the Act and

have a closer look at the provisions set out above to

find out whether the Act provides for a differentiation

being made between detention orders made by the

government and those made by specially empowered

officers so as to confer an additional right of

representation to detenus subjected to detention under

detention orders falling in the latter category. At the

outset, it needs no saying, that any government, be it

Central or State, has to function only through human

agencies viz. its officers and functionaries and that it

cannot function by itself as an abstract body. Such

being the case, even though Section 3(1) provides for

an order of detention being made either by the Central

Government or one of its officers or the State

Government or by one of its officers, an order of

detention has necessarily to be made in either of the

situations only by an officer of the concerned

government. It is in acceptance of this position we

have to see whether an order of detention, if passed by

an officer of the government specially empowered

under Section 3(1) but not further empowered under

Rules of Business of the government to act would

have the effect of making the concerned officer the

detaining authority and not the concerned government

itself. The answer to the question has to be necessarily

in the negative for the following reasons. It has been

specifically provided in Section 2 (a) that irrespective

of whether an order of detention is made by the

Central Government or one of its duly authorised

officers, the “appropriate government” as regard the

detention order and the detenu will be the Central

Government only and likewise whether an order of

detention is made by a State Government or one of its

duly authorised officers the “appropriate government”

would be the State Government only as regards the

detention order and the detenu concerned. Secondly,

irrespective of whether an order of detention is made

by the State Government or by one of its officers, the

Writ Petition (Criminal) No.362 of 2019

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obligation to forward, within ten days a report to the

Central Government in respect of the order is cast

only upon the State Government. Thirdly, in the

matter of making a reference of the case of a detenu to

the Advisory Board under Section 8(b), the duty of

making the reference is cast only on the Central

Government or the State Government as the case may

be, and not on the officer of the Central Government

or the State Government if he makes the order of

detention in exercise of the powers conferred on him

under Section 3(1). Lastly, Section 11, which deals

with the powers of revocation of the State

Government and the Central Government provides

that notwithstanding that an order of detention had

been made by an officer of a State Government, the

concerned State Government as well as the Central

Government are entitled to revoke or modify the order

of detention. Similarly, as per clause (b)

notwithstanding that an order of detention has been

made by an officer of the Central Government or by a

State Government, the Central Government has been

empowered to revoke or modify an order of detention.

The section does not confer any power of revocation

on an officer of the Central or State Government nor

does it empower the Central or State Government to

delegate the power of revocation to any of its officers.

We may further add that even though Section 11

specifies that the powers of revocation conferred on

the Central Government/State Government are

without prejudice to the provisions of Section 21 of

the General clauses Act, this reservation will not

entitle a specially empowered officer to revoke an

order of detention passed by him because the order of

the specially empowered officer acquires “deemed

approval” of the State or Central Government, as the

case may be, automatically and by reason of such

deemed approval the powers of revocation, even in

terms of Section 21 of the General clauses Act will

fall only within the domain of the State Government

and/or Central Government. In Sat Pal v. State of

Punjab

10

the nature of the power of revocation

conferred on the State and the Central Government

came to be construed and the court held that “(t)he

10 (1982) 1 SCC 12

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power of revocation conferred on the appropriate

government under Section 11 of the Act is

independent of the power of confirming or setting

aside an order of detention under Section 8(f)”. It was

further adumbrated as follows: (SCC p. 17, para 10)

“The power under Section 11(1)(b) may either

be exercised on information received by the

Central Government from its own sources

including that supplied by the State Government

under Section 3(2), or, from the detenu in the

form of a petition or representation. It is for the

Central Government to decide whether or not, it

should revoke the order of detention in a

particular case. The use of the words ‘at any

time’ under Section 11, gives the power of

revocation an overriding effect on the power of

detention under Section 3.”

These observations were made by the court when

considering the question whether a detenu was

entitled to concurrently make representations to the

State Government and the Central Government

against an order of detention passed by the State

Government and whether in such circumstances the

State Government could contend that the question of

the Central Government considering the

representation would arise only after the State

Government had considered the representation and

rejected it.

20. Consequently, the resultant position emerging

from the Act is that even if an order of detention is

made by a specially empowered officer of the Central

Government or the State Government as the case may

be, the said order will give rise to obligations to be

fulfilled by the government to the same degree and

extent to which it will stand obligated if the detention

order had been made by the government itself. If that

be so, then it is the concerned government that would

constitute the detaining authority under the Act and

not the officer concerned who made the order of

detention, and it is to that government the detenu

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should be afforded opportunity to make representation

against the detention order at the earliest opportunity,

as envisaged under Article 22(5) and not to the officer

making the order of detention in order to provide the

detenu an opportunity to make a further representation

to the State Government and thereafter to the Central

Government if the need arises for doing so. Though

by reason of Section 3(1) a specially empowered

officer is entitled to pass an order of detention, his

constitutional obligation is only to communicate

expeditiously to the detenu the grounds of detention

and also afford him opportunity to make

representation to the appropriate governments against

his detention. The only further duty to be performed

thereafter is to place the representation made by the

detenu before the concerned officer or the Minister

empowered under the Rules of Business of the

government to deal with such representation if the

detenu addresses his representation to the officer

himself.”

It was thus held that the constitutional obligation of a specially

empowered officer entitled to pass an order of detention would only be to

communicate expeditiously to the detenue the grounds of detention and

also to afford him opportunity to make representation to the appropriate

Governments against his detention. All the aforesaid three questions as

posed in Para 11 were answered in the negative.

C)In Amir Shad Khan vs. L. Hmingliana and others

11

, a Bench

of Three Judges of this Court observed:-

“3. ……... There can be no doubt that the

representation must be made to the authority which

has the power to rescind or revoke the decision, if

11 (1991) 4 SCC 39

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need be. Our search for the authority must, therefore,

take us to the statute since the answer cannot be found

from Article 22(5) of the Constitution read in

isolation. As pointed out earlier that clause casts an

obligation on the authority making the detention order

to afford to the detenu an earliest opportunity to make

a representation against the detention order. If we are

to go by the statement in the grounds of detention our

search for that authority would end since the grounds

of detention themselves state the authorities to which

the representation must be made. The question must

be answered in the context of the relevant provisions

of the law. Now as stated earlier by clause (5) of

Article 22 a dual obligation is cast on the authority

making the detention order one of which is to afford

to the detenu an earliest opportunity of making a

representation against the order which obligation has

been met by informing the detenu in the grounds of

detention to whom his representation should be

addressed. But the authority to which the

representation is addressed must have statutory

backing. In order to trace the source for the statutory

backing it would be advantageous to notice the

scheme of the Act providing for preventive detention.

Section 2(b) defines a detention order to mean an

order made under Section 3. Sub-section (1) of

Section 3 empowers the Central Government or the

State Government or any officer of the Central

Government, not below the rank of a Joint Secretary

to that government, specially empowered for the

purposes of this section by that government, or any

officer of a State Government, not below the rank of a

Secretary to that government, specially empowered

for the purposes of this section by that government, to

make an order of detention with respect to any person

with a view to preventing him from acting in any

manner prejudicial to the conservation or

augmentation of foreign exchange or with a view to

preventing him from doing any one of the five

prejudicial acts enumerated thereunder. Sub-section

(2) of that section provides that when any order of

detention is made by a State Government or by an

officer empowered by a State Government, the State

Government shall, within ten days, forward to the

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Central Government a report in respect of the order. It

is evident from this provision that whenever a

detention order is made by the State Government or

its officer specially empowered for that purpose an

obligation is cast on the State Government to forward

a report to the Central Government in respect of that

order within ten days. The purpose of this provision is

clearly to enable the Central Government to keep an

eye on the exercise of power under Section 3(1) by

the State Government or its officer. Then comes sub-

section (3) which reads as under:

3. (3) For the purposes of clause (5) of

Article 22 of the Constitution, the

communication to a person detained in

pursuance of a detention order of the

grounds on which the order has been made

shall be made as soon as may be after the

detention, but ordinarily not later than five

days, and in exceptional 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 by Article 22(5) that the grounds of

detention shall be communicated ‘as soon as may be’.

The legislation has, therefore, fixed the outer limit

within which the grounds of detention must be

communicated to the detenu. Thus the first part of the

obligation cast by Article 22(5) is met by Section 3(3)

of the Act. Section 8 provides for the Constitution of

Advisory Boards. This section is clearly to meet the

obligation of sub-clause (a) of clause (4) and sub-

clause (c) of clause (7) of Article 22 of the

Constitution. Section 8(f) which has some relevance

provides that in every case where the Advisory Board

has reported that there is in its opinion sufficient

cause for the detention of a person, the appropriate

government may confirm the detention order and

continue the detention of the person concerned for

such period as it thinks fit and in every case where the

Advisory Board has reported that there is in its

opinion no sufficient cause for the detention of the

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person concerned, the appropriate government shall

revoke the detention order and cause the person to be

released forthwith. This provision clearly obliges the

appropriate government to order revocation of the

detention order if the Advisory Board reports want of

sufficient cause for detention of that person. Then

comes Section 11 which reads as under:

“11. Revocation of detention orders.— (1)

Without prejudice to the provisions of

Section 21 of the General Clauses Act,

1897, a detention order may, at any time, be

revoked or modified —

(a) notwithstanding that the order

has been made by an officer of a

State Government, by that State

Government or by the Central

Government;

(b) notwithstanding that the order

has been made by an officer of the

Central Government or by a State

Government, by the Central

Government.”

Sub-section (2) is not relevant for our purpose. It is

obvious from a plain reading of the two clauses of

sub-section (1) of Section 11 that where an order is

made by an officer of the State Government, the State

Government as well as the Central Government are

empowered to revoke the detention order. Where,

however, the detention order is passed by an officer of

the Central Government or a State Government, the

Central Government is empowered to revoke the

detention order. Now this provision is clearly without

prejudice to Section 21 of the General Clauses Act

which lays down that where by any Central Act a

power to issue orders is conferred, then that power

includes a power, exercisable in the like manner and

subject to the like sanction and conditions, if any, to

rescind any order so issued. Plainly the authority

which has passed the order under any Central Act is

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21

empowered by this provision to rescind the order in

like manner. This provision when read in the context

of Section 11 of the Act makes it clear that the power

to rescind conferred on the authority making the

detention order by Section 21 of the General Clauses

Act is saved and is not taken away. Under Section 11

an officer of the State Government or that of the

Central Government specially empowered under

Section 3(1) of the Act to make a detention order is

not conferred the power to revoke it; that power for

those officers has to be traced to Section 21 of the

General Clauses Act. Therefore, where an officer of

the State Government or the Central Government has

passed any detention order and on receipt of a

representation he is convinced that the detention order

needs to be revoked he can do so by virtue of Section

21 of the General Clauses Act since Section 11 of the

Act does not entitle him to do so. If the State

Government passes an order of detention and later

desires to revoke it, whether upon receipt of a

representation from the detenu or otherwise, it would

be entitled to do so under Section 21 of the General

Clauses Act but if the Central Government desires to

revoke any order passed by the State Government or

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 Clauses Act. This clarifies why the power

under Section 11 is conferred without prejudice to the

provisions of Section 21 of the General Clauses Act.

Thus on a conjoint reading of Section 21 of the

General Clauses Act and Section 11 of the Act it

becomes clear that the power of revocation can be

exercised by three authorities, namely, the officer of

the State Government or the Central Government, the

State Government as well as the Central Government.

The power of revocation conferred by Section 8(f) on

the appropriate Government is clearly independent of

this power. It is thus clear that Section 8(f) of the Act

satisfies the requirement of Article 22(4) whereas

Section 11 of the Act satisfies the requirement of the

latter part of Article 22(5) of the Constitution. The

statutory provisions, therefore, when read in the

context of the relevant clauses of Article 22, make it

clear that they are intended to satisfy the

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22

constitutional requirements and provide for

enforcement of the right conferred on the detenu to

represent against his detention order. Viewed in this

perspective it cannot be said that the power conferred

by Section 11 of the Act has no relation whatsoever

with the constitutional obligation cast by Article

22(5).”

D.The apparent conflict between the decisions of this Court in

Sushila Mafatlal Shah

9

and Amir Shad Khan

11

came up for

consideration before a Constitution Bench of this Court in

Kamleshkumar Ishwardas Patel vs. Union of India and others

12

and the question was posed as under:-

“2. When an order for preventive detention is passed

by an officer especially empowered to do so by the

Central Government or the State Government, is the

said officer required to consider the representation

submitted by the detenu?”

The matter was considered as under:-

“6. This provision has the same force and sanctity as

any other provision relating to fundamental rights.

(See: State of Bombay v. Atma Ram Shridhar

Vaidya

13

.) Article 22(5) imposes a dual obligation on

the authority making the order of preventive

detention: (i) to communicate to the person detained

as soon as may be the grounds on which the order of

detention has been made; and (ii) to afford the person

detained the earliest opportunity of making a

representation against the order of detention. Article

22(5) thus proceeds on the basis that the person

detained has a right to make a representation against

the order of detention and the aforementioned two

12 (1995) 4 SCC 51

13 1951 SCR 167 = AIR 1951 SC 157

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23

obligations are imposed on the authority making the

order of detention with a view to ensure that right of

the person detained to make a representation is a real

right and he is able to take steps for redress of a

wrong which he thinks has been committed. Article

22(5) does not, however, indicate the authority to

whom the representation is to be made. Since the

object and purpose of the representation that is to be

made by the person detained is to enable him to

obtain relief at the earliest opportunity, the said

representation has to be made to the authority which

can grant such relief, i.e., the authority which can

revoke the order of detention and set him at liberty.

The authority that has made the order of detention can

also revoke it. This right is inherent in the power to

make the order. It is recognised by Section 21 of the

General Clauses Act, 1897 though it does not flow

from it. It can, therefore, be said that Article 22(5)

postulates that the person detained has a right to make

a representation against the order of detention to the

authority making the order. In addition, such a

representation can be made to any other authority

which is empowered by law to revoke the order of

detention.

… ……

14. Article 22(5) must, therefore, be construed to

mean that the person detained has a right to make a

representation against the order of detention which

can be made not only to the Advisory Board but also

to the detaining authority, i.e., the authority that has

made the order of detention or the order for

continuance of such detention, which is competent to

give immediate relief by revoking the said order as

well as to any other authority which is competent

under law to revoke the order for detention and

thereby give relief to the person detained. The right to

make a representation carries within it a

corresponding obligation on the authority making the

order of detention to inform the person detained of his

right to make a representation against the order of

detention to the authorities who are required to

consider such a representation.

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24

… ……

23. If the power of revocation is to be treated as the

criterion for ascertaining the authority to whom

representation can be made, then the representation

against an order of detention made by an officer

specially empowered by the State Government can be

made to the officer who has made the order as well as

to the State Government and the Central Government

who are competent to revoke the order. Similarly, the

representation against an order made by the State

Government can be made to the State Government as

well as to the Central Government and the

representation against an order made by an officer

specially empowered by the Central Government can

be made to the officer who has made the order as well

as to the Central Government.”

After considering relevant decisions, this Court did not accept the

law laid down in Sushila Mafatlal Shah

9

and observed:-

“30. The decision in Sushila Mafatlal Shah

9

proceeds

on two premises: (i) Article 22(5) does not confer a

right to make a representation to the officer specially

empowered to make the order; and (ii) under the

provisions of the COFEPOSA Act when the order of

detention is made by the officer specially empowered

to do so, the detaining authority is the appropriate

Government, namely, the Government which has

empowered the officer to make the order, since such

order acquires “deemed approval” by the Government

from the time of its issue.

31. With due respect, we find it difficult to agree with

both the premises. Construing the provisions of

Article 22(5) we have explained that the right of the

person detained to make a representation against the

order of detention comprehends the right to make

such a representation to the authority which can grant

such relief i.e. the authority which can revoke the

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25

order of detention and set him at liberty and since the

officer who has made the order of detention is

competent to revoke it, the person detained has the

right to make a representation to the officer who made

the order of detention. The first premise that such

right does not flow from Article 22(5) cannot,

therefore, be accepted.

32. The learned Judges, while relying upon the

observations in Abdul Karim

14

and the decisions in

Jayanarayan Sukul

15

, Haradhan Saha

16

and John

Martin

17

have failed to notice that in these cases the

Court was considering the matter in the light of the

provisions contained in Section 7(1) of the Preventive

Detention Act, 1950, whereby it was prescribed that

the representation was to be made to the appropriate

Government. The observations regarding

consideration of the representation by the State

Government in the said decisions have, therefore, to

be construed in the light of the said provision in the

Preventive Detention Act and on that basis it cannot

be said that Article 22(5) does not postulate that the

person detained has no right to make a representation

to the authority making the order of detention.

33. The second premise that the Central Government

becomes the detaining authority since there is deemed

approval by the Government of the order made by the

officer specially empowered in that regard from the

time of its issue, runs counter to the scheme of the

COFEPOSA Act and the PIT NDPS Act which differs

from that of other preventive detention laws, namely,

the National Security 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 Magistrate or the Commissioner of Police

14 (1969) 1 SCC 433

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

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

17 (1975) 3 SCC 836

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26

under Section 3(3) and the District Magistrate or the

Commissioner of Police who has made the order is

required to forthwith report the fact to the State

Government to which he is subordinate. The said

provision further prescribes that no such order shall

remain in force for more than twelve days after the

making thereof, unless, in the meantime, it has been

approved by the State Government. This would show

that it is the approval of the State Government which

gives further life to the order which would otherwise

die its natural death on the expiry of twelve days after

its making. It is also the requirement of Section 3(4)

that the report should be accompanied by the grounds

on which the order has been made and such other

particulars as, in the opinion of the said officer, have a

bearing on the matter which means that the State

Government has to take into consideration the

grounds and the said material while giving its

approval to the order of detention. The effect of the

approval by the State Government is that from the

date of such approval the detention is authorised by

the order of the State Government approving the order

of detention and the State Government is the

detaining authority from the date of the order of

approval. That appears to be the reason why Section

8(1) envisages that the representation against the

order of detention is to be made to the State

Government. The COFEPOSA Act and the PIT NDPS

Act do not require the approval of an order made by

the officer specially empowered by the State

Government or by the Central Government. The order

passed by such an officer operates on its own force.

All that is required by Section 3(2) of the COFEPOSA

Act and the PIT NDPS Act is that the State

Government shall within 10 days forward to the

Central Government a report in respect of an order

that is made by the State Government or an officer

specially empowered by the State Government. An

order made by the officer specially empowered by the

State Government is placed on the same footing as an

order made by the State Government because the

report has to be forwarded to the Central Government

in respect of both such orders. No such report is

required to be forwarded to the Central Government

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27

in respect of an order made by an officer specially

empowered by the Central Government. Requirement

regarding forwarding of the report contained in

Section 3(2) of the COFEPOSA Act and the PIT

NDPS Act cannot, therefore, afford the basis for

holding that an order made by an officer specially

empowered by the Central Government or the State

Government acquires deemed approval of that

Government from the date of its issue. Approval,

actual or deemed, postulates application of mind to

the action being approved by the authority giving

approval. Approval of an order of detention would

require consideration by the approving authority of

the grounds and the supporting material on the basis

of which the officer making the order had arrived at

the requisite satisfaction for the purpose of making

the order of detention. Unlike Section 3(4) of the

National Security Act there is no requirement in the

COFEPOSA Act and the PIT NDPS Act that the

officer specially empowered for the purpose of

making of an order of detention must forthwith send

to the Government concerned the grounds and the

supporting material on the basis of which the order of

detention has been made. Nor is it prescribed in the

said enactments that after the order of detention has

been made by the officer specially empowered for that

purpose the Government concerned is required to

apply its mind to the grounds and the supporting

material on the basis of which the order of detention

was made. The only circumstance from which

inference about deemed approval is sought to be

drawn is that the order is made by the officer specially

empowered for that purpose by the Government

concerned. Merely because the order of detention has

been made by the officer who has been specially

empowered for that purpose would not, in our

opinion, justify the inference that the said order

acquires deemed approval of the Government that has

so empowered him, from the date of the issue of the

order so as to make the said Government the detaining

authority. By specially empowering a particular

officer under Section 3(2) of the COFEPOSA Act and

the PIT NDPS Act the Central Government or the

State Government confers an independent power on

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28

the said officer to make an order of detention after

arriving at his own satisfaction about the activities of

the person sought to be detained. Since the detention

of the person detained draws its legal sanction from

the order passed by such officer, the officer is the

detaining authority in respect of the said person. He

continues to be the detaining authority so long as the

order of detention remains operative. He ceases to be

the detaining authority only when the order of

detention ceases to operate. This would be on the

expiry of the period of detention as prescribed by law

or on the order being revoked by the officer himself or

by the authority mentioned in Section 11 of the

COFEPOSA Act and Section 12 of the PIT NDPS

Act. There is nothing in the provisions of these

enactments to show that the role of the officer comes

to an end after he has made the order of detention and

that thereafter he ceases to be the detaining authority

and the Government concerned which had

empowered him assumes the role of the detaining

authority. We are unable to construe the provisions of

the said enactments as providing for such a limited

entrustment of power on the officer who is specially

empowered to pass the order. An indication to the

contrary is given in Section 11 of the COFEPOSA Act

and Section 12 of the PIT NDPS Act which preserve

the power 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 he has passed the order of

detention. It must, therefore, be held that the officer

specially empowered for that purpose continues to be

the detaining authority and is not displaced by the

Government concerned after he has made the order of

detention. Therefore, by virtue of his being the

detaining authority he is required to consider the

representation of the person detained against the order

of detention.

… … …

36. It appears that the decision in Ibrahim Bachu

Bafan

7

, a decision of a Bench of three Judges, was

not brought to the notice of the learned Judges

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29

deciding Sushila Mafatlal Shah

9

. For the reasons

aforementioned we are of the view that the decision in

Sushila Mafatlal Shah

9

insofar as it holds that where

an order of detention made by an officer specially

empowered for the purpose, representation against the

order of detention is not required to be considered by

such officer and it is only to be considered by the

appropriate Government empowering such officer,

does not lay down the correct law.

… … …

38. Having regard to the provisions of Article 22(5) of

the Constitution and the provisions of the

COFEPOSA Act and the PIT NDPS Act the question

posed is thus answered: Where the detention order has

been made under Section 3 of the COFEPOSA Act

and the PIT NDPS Act by an officer specially

empowered for that purpose either by the Central

Government or the State Government the person

detained has a right to make a representation to the

said officer and the said officer is obliged to consider

the said representation and the failure on his part to do

so results in denial of the right conferred on the

person detained to make a representation against the

order of detention. This right of the detenu is in

addition to his right to make the representation to the

State Government and the Central Government where

the detention order has been made by an officer

specially authorised by a State Government and to the

Central Government where the detention order has

been made by an officer specially empowered by the

Central Government, and to have the same duly

considered. This right to make a representation

necessarily implies that the person detained must be

informed of his right to make a representation to the

authority that has made the order of detention at the

time when he is served with the grounds of detention

so as to enable him to make such a representation and

the failure to do so results in denial of the right of the

person detained to make a representation.

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30

12.With the judgment of the Constitution Bench of this Court in

Kamleshkumar

12

, the law on the first issue is well settled that where the

detention order is made inter alia under Section 3 of the COFEPOSA Act

by an officer specially empowered for that purpose either by the Central

Government or the State Government, the person detained has a right to

make a representation to the said officer; and the said officer is obliged to

consider the said representation; and the failure on his part to do so

would result in denial of the right conferred on the person detained to

make a representation. Further, such right of the detenue has been taken

to be in addition to the right to make the representation to the State

Government and the Central Government. It must be stated that para 12

of the grounds of detention in the instant case, as quoted hereinabove, is in

tune with the law so declared by this Court.

13.We now move to the second issue and consider the decisions of

this Court on the point:-

A) In Pankaj Kumar Chakrabarty and others vs. The State of West

Bengal

18

a Constitution Bench of this Court considered the matter where

orders of detention were passed by the District Magistrates under Section

3(1)(a)(ii) and (iii) read with Section 3(2) of 1950 Act

19

. As stated in

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

19 The Preventive Detention Act, 1950

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paragraph 2 of the decision, the case of the detenue was placed before the

Advisory Board on 21.09.1968. A representation against the order 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 there was sufficient

cause for detention of the person concerned, whereafter the order was

confirmed on 11.11.1968. While in the case considered in paragraph 4,

the representation was made after the case was referred to the Advisory

Board. In the light of these facts, following two questions were framed:-

“6. On these contentions two questions arise: (i)

whether there is on the appropriate Government the

obligation to consider the representation made by a

detenue, and (2) if there is, whether it makes any

difference where such a representation is made after

the detenu’s case is referred to the Advisory Board.”

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

“10. It is true that clause 5 does not in positive

language provide as 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 clause clearly

indicate that the grounds are to be served and the

opportunity to make a representation are provided for

to enable the detenu to show that his detention is

unwarranted and since no other authority who should

consider such representation is mentioned it can only

be the detaining authority to whom it is to be made

which has to consider it. Though clause 5 does not in

express terms say so it follows from its provisions that

it is the detaining authority which has to give to the

detenu the earliest opportunity to make a

representation and to consider it when so made

whether its order is wrongful or contrary to the law

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32

enabling it to detain him. The illustrations given in

Sk. Abdul Karim case show that clause 5 of Article 22

not only contains the obligation of the appropriate

Government to furnish the grounds and to give the

earliest opportunity to make a representation but also

by necessary implication the obligation to consider

that representation. Such an obligation is evidently

provided for to give an opportunity to the detenu to

show and a corresponding opportunity to the

appropriate Government to consider any objections

against the order which the detenu may raise so that

no person is, through error or otherwise, wrongly

arrested and detained. If it was intended that such a

representation need not be considered by the

Government where an Advisory Board is constituted

and that representation in such cases is to be

considered by the Board and not by the appropriate

Government, clause 5 would not have directed the

detaining authority to afford the earliest opportunity

to the detenu. In that case the words would more

appropriately have been that the authority should

obtain the opinion of the Board after giving an

opportunity to the detenu to make a representation

and communicate the same to the Board. But what

would happen in cases where the detention is for less

than 3 months and there is no necessity of having the

opinion of the Board? If Counsel’s contention were to

be right the representation in such cases would not

have to be considered either by the appropriate

Government or by the Board and the right of

representation and the corresponding obligation of the

appropriate Government to give the earliest

opportunity to make such representation would be

rendered nugatory. In imposing the obligation to

afford the opportunity to make a representation,

clause 5 does not make any distinction between orders

of detention for only 3 months or less and those for a

longer duration. The obligation applies to both kinds

of orders. The clause does not say that the

representation is to be considered by the appropriate

Government in the former class of cases and by the

Board in the latter class of cases. In our view it is

clear from clauses 4 and 5 of Article 22 that there is a

dual obligation on the appropriate Government and a

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33

dual right in favour of the detenu, namely, (1) to have

his representation irrespective of the length of

detention considered by the appropriate Government

and (2) to have once again that representation in the

light of the circumstances of the case considered by

the Board before it gives its opinion. If in the light of

that representation the Board finds that there is no

sufficient cause for detention the Government has to

revoke the order of detention and set at liberty the

detenu. Thus, whereas the Government considers the

representation to ascertain whether the order is in

conformity with its power under the relevant law, the

Board considers such representation from the point of

view of arriving at its opinion whether there is

sufficient cause for detention. The obligation of the

appropriate Government to afford to the detenu the

opportunity to make a representation and to consider

that representation is distinct from the Government’s

obligation to constitute a Board and to communicate

the representation amongst other materials to the

Board to enable it to form its opinion and to obtain

such opinion.

11. This conclusion is strengthened by the other

provisions of the Act. In conformity with clauses 4

and 5 of Article 22, Section 7 of the Act enjoins upon

the detaining authority to furnish to the detenu

grounds of detention within five days from the date of

his detention and to afford to the detenu the earliest

opportunity to make his representation to the

appropriate Government. Sections 8 and 9 enjoin

upon the appropriate Government to constitute an

Advisory Board and to place within 30 days from the

date of the detention the grounds for detention, the

detenu’s representation and also the report of the

officer where the order of detention is made by an

officer and not by the Government. The obligation

under Section 7 is quite distinct from that under

Sections 8 and 9. If the representation was for the

consideration not by the Government but by the

Board only as contended, there was no necessity to

provide that it should be addressed to the Government

and not directly to the Board. The Government could

not have been intended to be only a transmitting

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34

authority nor could it have been contemplated that it

should sit tight on that representation and remit it to

the Board after it is constituted. The peremptory

language in clause 5 of Article 22 and Section 7 of the

Act would not have been necessary if the Board and

not the Government had to consider the

representation. Section 13 also furnishes an answer to

the argument of Counsel for the State. Under that

section the State Government and the Central

Government are empowered to revoke or modify an

order of dentention. That power is evidently provided

for to enable the Government to take appropriate

action where on a representation made to it, it finds

that the order in question should be modified or even

revoked. Obviously, the intention of Parliament could

not have been that the appropriate Government should

pass an order under Section 13 without considering

the representation which has under Section 7 been

addressed to it.

12. For the reasons aforesaid we are in agreement

with the decision in Sk. Abdul Karim case.

Consequently, the petitioners had a constitutional

right and there was on the State Government a

corresponding constitutional obligation to consider

their representations irrespective of whether they were

made before or after their cases were referred to the

Advisory Board and that not having been done the

order of detention against them cannot be sustained.

In this view it is not necessary for us to examine the

other objections raised against these orders. The

petition is therefore allowed, the orders of detention

against Petitioners 15 and 36 are set aside and we

direct that they should be set at liberty forthwith.”

(Emphasis added)

B. In Jayanarayan Sukul

15

, considered by another Constitution

Bench of this Court, the order of detention was passed by the District

Magistrate under the relevant provisions of 1950 Act. A representation

was made by the detenue to the State Government on 23.06.1969. The

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35

case of the detenue was placed before the Advisory Board on 01.07.1969

which reported on 13.08.1969 that there was sufficient cause for the

detention. It was only thereafter that the representation was considered

and rejected on 19.08.1969. In the context of these facts, it was

observed:-

“13. It, therefore, follows that the appropriate

authority is to consider the representation of the

detenu uninfluenced by any opinion or consideration

of the Advisory Board. In the case of Khairul Haque

v. State of W.B.

20

this Court observed that “it is

implicit in the language of Article 22 that the

appropriate Government, while discharging its duty to

consider the representation cannot depend upon the

views of the Board on such representation”. The logic

behind this proposition is that the Government should

immediately consider the representation of the detenu

before sending the matter to the Advisory Board and

further that such action will then have the real flavour

of independent judgment.

… … …

18. It is established beyond any measure of doubt that

the appropriate authority is bound to consider the

representation of the detenu as early as possible. The

appropriate Government itself is bound to consider

the representation as expeditiously as possible. The

reason for immediate consideration of the

representation is too obvious to be stressed. The

personal liberty of a person is at stake. Any delay

would not only be an irresponsible act on the part of

the appropriate authority but also unconstitutional

because the Constitution enshrines the fundamental

right of a detenu to have his representation considered

and it is imperative that when the liberty of a person is

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

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36

in peril immediate action should be taken by the

relevant authorities. (Emphasis added)

19. No definite time can be laid down within which a

representation of a detenu should be dealt with save

and except that it is a constitutional right of detenu to

have his representation considered as expeditiously as

possible. It will depend upon the facts and

circumstances of each case whether the appropriate

Government has disposed of the case as expeditiously

as possible for otherwise in the words of Shelat, J.,

who spoke for this Court in the case of Khairul

Haque

20

“It is obvious that the obligation to furnish

the earliest opportunity to make a representation loses

both its purpose and meaning”.

20. Broadly stated, four principles are to be followed

in regard to representation of detenus. First, the

appropriate authority is bound to give an opportunity

to the detenu to make a representation and to consider

the representation of the detenu as early as possible.

Secondly, the consideration of the representation of

the detenu by the appropriate authority is entirely

independent of any action by the Advisory Board

including the consideration of the representation of

the detenu by the Advisory Board. Thirdly, there

should not be any delay in the matter of consideration.

It is true that no hard and fast rule can be laid down as

to the measure of time taken by the appropriate

authority for consideration but it has to be

remembered that the Government has to be vigilant in

the governance of the citizens. A citizen’s right raises

a correlative duty of the State. Fourthly, the

appropriate Government is to exercise its opinion and

judgment on the representation before sending the

case along with the detenu’s representation to the

Advisory Board. If the appropriate Government will

release the detenu the Government will not send the

matter to the Advisory Board. If however the

Government will not release the detenu the

Government will send the case along with the

detenu’s representation to the Advisory Board. If

thereafter the Advisory Board will express an opinion

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37

in favour of release of the detenu the Government will

release the detenu. If the Advisory Board will express

any opinion against the release of the detenu the

Government may still exercise the power to release

the detenu. (Emphasis Added)

21. In the present case, the State of West Bengal is

guilty of infraction of the constitutional provisions not

only by inordinate delay of the consideration of the

representation but also by putting of the consideration

till after the receipt of the opinion of the Advisory

Board. As we have already observed there is no

explanation for this inordinate delay. The

Superintendent who made the enquiry did not affirm

an affidavit. The State has given no information as to

why this long delay occurred. The inescapable

conclusion in the present case is that the appropriate

authority failed to discharge its constitutional

obligation by inactivity and lack of independent

judgment.”

C) In Haradhan Saha

16

yet another Constitution Bench of this Court

considered the distinction between the consideration of representation by

the Government and by the Advisory Board as under.

“24. The representation of a detenu is to be

considered. There is an obligation on the State to

consider the representation. The Advisory Board has

adequate power to examine the entire material. The

Board can also call for more materials. The Board

may call the detenu at his request. The constitution of

the Board shows that it is to consist of Judges or

persons qualified to be Judges of the High Court. The

constitution of the Board observes the fundamental of

fair play and principles of natural justice. It is not the

requirement of principles of natural justice that there

must be an oral hearing. Section 8 of the Act which

casts an obligation on the State to consider the

representation affords the detenu all the rights which

are guaranteed by Article 22(5). The Government

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38

considers the representation to ascertain essentially

whether the order is in conformity with the power

under the law. The Board, on the other hand,

considers whether in the light of the representation

there is sufficient cause for detention. (Emphasis

Added)

… … …

29. Principles of natural justice are an element in

considering the reasonableness of a restriction where

Article 19 is applicable. At the stage of consideration

of representation by the State Government, the

obligation of the State Government is such as Article

22(5) implies. Section 8 of the Act is in complete

conformity with Article 22(5) because this section

follows the provisions of the Constitution. If the

representation of the detenu is received before the

matter is referred to the Advisory Board, the detaining

authority considers the representation. If a

representation is made after the matter has been

referred to the Advisory Board, the detaining

authority will consider it before it will send

representation to the Advisory Board.” (Emphasis

Added)

It was, thus, clarified that if the representation is received before the

matter is referred to the Advisory Board, the Detaining Authority ought to

consider such representation; and if the representation is made after the

matter is referred to the Advisory Board, the Detaining Authority would

first consider it and then send the representation to the Advisory Board.

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39

D) In Frances Coralie Mullin vs. W.C. Khambra

21

, a bench of two

Judges of this Court considered the principles laid down in Jayanarayan

Sukul

15

and made following observations:-

“5. We have no doubt in our minds about the role of

the court in cases of preventive detention: it has to be

one of eternal vigilance. No freedom is higher than

personal freedom and no duty higher than to maintain

it unimpaired. The Court’s writ is the ultimate

insurance against illegal detention. The Constitution

enjoins conformance with the provisions of Article 22

and the Court exacts compliance. Article 22(5) vests

in the detenu the right to be provided with an

opportunity to make a representation. Here the Law

Reports tell a story and teach a lesson. It is that the

principal enemy of the detenu and his right to make a

representation is neither high-handedness nor mean-

mindedness but the casual indifference, the mindless

insensibility, the routine and the red tape of the

bureaucratic machine. The four principles enunciated

by the Court in Jayanarayan Sukul v. State of W.B.

15

as well as other principles enunciated in other cases,

an analysis will show, are aimed at shielding personal

freedom against indifference, insensibility, routine

and red tape and thus to secure to the detenu the right

to make an effective representation. We agree: (1) the

detaining authority must provide the detenu a very

early opportunity to make a representation, (2) the

detaining authority must consider the representation

as soon as possible, and this, preferably, must be

before the representation is forwarded to the Advisory

Board, (3) the representation must be forwarded to the

Advisory Board before the Board makes its report,

and (4) the consideration by the detaining authority of

the representation must be entirely independent of the

hearing by the Board or its report, expedition being

essential at every stage. We, however, hasten to add

that the time-imperative can never be absolute or

obsessive. The Court’s observations are not to be so

understood. There has to be lee-way, depending on the

21 (1980) 2 SCC 275

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40

necessities (we refrain from using the word

“circumstances”) of the case. One may well imagine a

case where a detenu does not make a representation

before the Board makes its report making it

impossible for the detaining authority either to

consider it or to forward it to the Board in time or a

case. where a detenu makes a representation to the

detaining authority so shortly before the Advisory

Board takes up the reference that the detaining

authority cannot consider the representation before

then but may merely forward it to the Board without

himself considering it. Several such situations may

arise compelling departure from the time-imperative.

But no allowance can be made for lethargic

indifference. No allowance can be made for needless

procrastination. But, allowance must surely be made

for necessary consultation where legal intricacies and

factual ramifications are involved. The burden of

explaining the necessity for the slightest departure

from the time-imperative is on the detaining authority.

…… …

7. We have already expressed our agreement with the

four principles enunciated in Jayanarayan Sukul v.

State of W.B.

15

. We would make one observation.

When it was said there that the Government should

come to its decision on the representation before the

Government forwarded the representation to the

Advisory Board, the emphasis was not on the point of

time but on the requirement that the Government

should consider the representation independently of

the Board. This was explained in Nagendra Nath

Mondal v. State of W.B

22

. In Sukul case

15

the court also

made certain pertinent observations at pp. 231-232:

(SCC p. 224, para 19)

“No definite time can be laid down within

which a representation of a detenu should be

dealt with save and except that it is a

constitutional right of a detenu to have his

representation considered as expeditiously as

possible. It will depend upon the facts and

22 (1972) 1 SCC 498

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41

circumstances of each case whether the

appropriate Government has disposed of the

case as expeditiously as possible....”

E) In K.M. Abdullah Kunhi

6

, in view of the conflict between two

decisions of this Court the matter was referred to the Constitution Bench

as is clear from paragraphs 1 and 2 of said decision:-

“1. A Division Bench of this Court while expressing

the view that the decisions in V.J. Jain v. Shri

Pradhan

23

and Om Prakash Bahl v. Union of India

24

require reconsideration has referred these matters to

the Constitution Bench.

2. It is convenient at this point to refer to the

statement of law laid down in the aforesaid two cases.

In both the cases, as in the present case, the persons

were detained under the Conservation of Foreign

Exchange and Prevention of Smuggling Activities

Act, 1974 (‘the Act’). The detenu made representation

to the appropriate government. By then the Advisory

Board was already constituted and it was scheduled to

meet to consider the case of the detenu. The

government forwarded the detenu’s representation to

the Advisory Board. The Advisory Board considered

the case of the detenu and also the representation and

submitted report expressing the opinion that there was

sufficient cause for the detention of the person. The

government after considering that report confirmed

the order of detention. It appears that the

representation of the detenu was not considered

before confirming the detention order and it came to

be considered and rejected only thereafter. In V.J. Jain

case

23

this Court observed that the representation of

the detenu should be considered by the detaining

authority as early as possible before any order is made

confirming the detention. The confirmation of the

detention order without the consideration of

23 (1979) 4 SCC 401

24 W.P. No.845 of 1979, decided on October 15, 1979

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42

representation would be invalid and the subsequent

consideration of the representation would not cure the

invalidity of the order of confirmation. This view has

been reiterated in the unreported judgment in Om

Prakash Bahl case

24

.”

In that case the detention orders were passed by the State

Government under Section 3(1)(iv) of the COFEPOSA Act. The

representations were made by the detenues on 17.04.1989 which,

however, could not be considered immediately as certain information and

comments were required. In the meantime, the case was referred to the

Advisory Board which in its report dated 20.04.1989 found that there was

sufficient cause for the detention. On 27.04.1989, the detention was

confirmed by the State Government. Thereafter, the representations were

considered on 6

th

and 7

th

May, 1989 by the State Government and by the

Central Government on 23.05.1989. In the backdrop of these facts, the

question that arose was:-

“5. The principal question for consideration is

whether the confirmation of detention order upon

accepting the report of the Advisory Board renders

itself invalid solely on the ground that the

representation of the detenu was not considered and

the subsequent consideration of the representation

would not cure that invalidity. At the outset it may be

made clear that there is no argument addressed before

us that there was unexplained delay in considering the

representation of the detenu. Indeed, counsel for the

petitioners very fairly submitted that they are not

raising the question of delay. They also did not argue

that the rejection of the representation after the

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43

confirmation of detention was not an independent

consideration.”

After considering the relevant decisions on the point, including

Pankaj Kumar Chakrabarty

18

, Jayanarayan Sukul

15

, Haradhan Saha

16

and Frances Coralie Mullin

21

this Court observed:-

“15. In Frances Coralie Mullin case, the detenu’s

representation was received by the detaining authority

on December 26, 1979. Without any loss of time copy

of the representation was sent to the customs

authorities for their remarks which was obviously

necessary because the information leading to the order

of detention was collected by the customs authorities.

The facts were undoubtedly complex since the

allegations against the detenu revealed an

involvement with an international gang of dope

smugglers. The comments of the customs authorities

were received on January 4, 1980. The Advisory

Board was meeting on January 4, 1980 and so there

could be no question of the detaining authority

considering the representation of the detenu before the

Board met, unless it was done in a great and undue

haste. After obtaining the comments of the customs

authorities, it was found necessary to take legal advice

as the representation posed many legal and

constitutional questions, so, after consultation with

the Secretary (Law and Judicial) Delhi

Administration, the representation was finally rejected

by the Administrator on January 15, 1980. It was held

that if there appeared to be any delay it was not due to

any want of care but because the representation

required a thorough examination in consultation with

investigation agencies and advisers on law.

16. We agree with the observations in Frances

Coralie Mullin case. The time imperative for

consideration of representation can never be absolute

or obsessive. It depends upon the necessities and the

time at which the representation is made. The

representation may be received before the case is

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44

referred to the Advisory Board, but there may not be

time to dispose of the representation before referring

the case to the Advisory Board. In that situation the

representation must also be forwarded to the Advisory

Board along with the case of the detenu. The

representation may be received after the case of the

detenu is referred to the Board. Even in this situation

the representation should be forwarded to the

Advisory Board provided the Board has not

concluded the proceedings. In both the situations

there is no question of consideration of the

representation before the receipt of report of the

Advisory Board. Nor it could be said that the

government has delayed consideration of the

representation, unnecessarily awaiting the report of

the Board. It is proper for the government in such

situations to await the report of the Board. If the

Board finds no material for detention on the merits

and reports accordingly, the government is bound to

revoke the order of detention. Secondly, even if the

Board expresses the view that there is sufficient cause

for detention, the government after considering the

representation could revoke the detention. The Board

has to submit its report within eleven weeks from the

date of detention. The Advisory Board may hear the

detenu at his request. The constitution of the Board

shows that it consists of eminent persons who are

Judges or persons qualified to be Judges of the High

Court. It is therefore, proper that the government

considers the representation in the aforesaid two

situations only after the receipt of the report of the

Board. If the representation is received by the

government after the Advisory Board has made its

report, there could then of course be no question of

sending the representation to the Advisory Board. It

will have to be dealt with and disposed of by the

government as early as possible. (Emphasis added)

… … …

19. There is no constitutional mandate under clause

(5) of Article 22, much less any statutory requirement

to consider the representation before confirming the

order of detention. As long as the government without

delay considers the representation with an unbiased

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45

mind there is no basis for concluding that the absence

of independent consideration is the obvious result if

the representation is not considered before the

confirmation of detention. Indeed, there is no

justification for imposing this restriction on the power

of the government. As observed earlier, the

government’s consideration of the representation is

for a different purpose, namely, to find out whether

the detention is in conformity with the power under

the statute. This has been explained in Haradhan

Saha case, where Ray, C.J., speaking for the

Constitution Bench observed that the consideration of

the representation by the government is only to

ascertain whether the detention order is in conformity

with the power under the law. There need not be a

speaking order in disposing of such representation.

There is also no failure of justice by the order not

being a speaking order. All that is necessary is that

there should be real and proper consideration by the

government.

20. It is necessary to mention that with regard to

liberty of citizens the court stands guard over the facts

and requirements of law, but court cannot draw

presumption against any authority without material. It

may be borne in mind that the confirmation of

detention does not preclude the government from

revoking the order of detention upon considering the

representation. Secondly, there may be cases where

the government has to consider the representation

only after confirmation of detention. Clause (5) of

Article 22 suggests that the representation could be

received even after confirmation of the order of

detention. The words ‘shall afford him the earliest

opportunity of making a representation against the

order’ in clause (5) of Article 22 suggest that the

obligation of the government is to offer the detenu an

opportunity of making a representation against the

order, before it is confirmed according to the

procedure laid down under Section 8 of the Act. But if

the detenu does not exercise his right to make

representation at that stage, but presents it to the

government after the government has confirmed the

order of detention, the government still has to

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46

consider such representation and release the detenu if

the detention is not within the power conferred under

the statute. The confirmation of the order of detention

is not conclusive as against the detenu. It can be

revoked suo motu under Section 11 or upon a

representation of the detenu. It seems to us therefore,

that so long as the representation is independently

considered by the government and if there is no delay

in considering the representation, the fact that it is

considered after the confirmation of detention makes

little difference on the validity of the detention or

confirmation of the detention. The confirmation

cannot be invalidated solely on the ground that the

representation is considered subsequent to

confirmation of the detention. Nor it could be

presumed that such consideration is not an

independent consideration. With all respect, we are

not inclined to subscribe to the views expressed in

V.J. Jain, Om Prakash Bahl and Khairul Haque cases.

They cannot be considered to be good law and hence

stand overruled.”

Two situations were considered in paragraph 16 by this Court.

One, where the representation is received just before the case is referred to

the Advisory Board and there is no time to dispose of the representation

before such reference; and second, where the representation is received

after such reference to the Advisory Board. It was observed that, “……In

both the situations there is no question of consideration of the

representation before the receipt of report of the Advisory Board…. It is

proper for the government in such situations to await the report of the

Board.” The reasons for such observations were given in the latter part of

paragraph 16 and in paragraphs 19 and 20.

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F) In Golam Biswas

5

, the order of detention under the COFEPOSA

Act was passed on 27.05.2014. A representation was made to the Central

Government on 08.07.2014. The reference was made to the Advisory

Board on 18.07.2014 which reported on 27.08.2014 that there was

sufficient cause for detention. Thereafter, the detention was confirmed on

05.09.2014. In the meantime, the representation which was pending with

the Central Government, was rejected on 21.07.2014. A bench of two

Judges of this Court considered the submission in paragraph 11 and 15 as

under:-

“11. To start with the dates setting out the intervening

events are not in dispute. To repeat, the detenu had

submitted his representation on 8-7-2014 and the

same was pending consideration on merit before the

Central Government on 18-7-2014, the date on which

the matter was remitted to the Advisory Board under

the Act. The representation was rejected on 21-7-2014

when the matter was pending before the Advisory

Board. The Advisory Board concluded its proceedings

and gave a finding sustaining the order of detention

on 27-8-2014. Unmistakably, thus, the detenu’s

representation which was pending at the time of

remittance of the matter to the Advisory Board was

not forwarded to it and instead was rejected by the

Central Government during the pendency of the

proceedings before the Advisory Board.

… … …

15. As admittedly, the detenu’s representation dated 8-

7-2014, pending with the Central Government, the

appropriate Government in the case, was not

forwarded to the Advisory Board and was instead

rejected during the pendency of the proceedings

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48

before the Advisory Board, we are constrained to hold

that the detention of the detenu is constitutionally

invalid. The rejection of the representation by the

Central Government later on 21-7-2014 during the

pendency of the proceedings before the Advisory

Board is of no consequence to sustain the detention.

Consequently, the order of confirmation as well is

rendered non est by this vitiation. In view of the

determination made on the above aspect of the debate,

we do not consider it necessary to dilate on the other

pleas raised on behalf of the detenu. In the result, the

appeal succeeds. The impugned judgment and order is

set aside. The orders of detention as well as the order

of confirmation are hereby annulled. The detenu is

directed to be set at liberty, if not wanted in any other

case.”

Thus, failure on part of the appropriate Government to forward the

representation to the Advisory Board and rejection thereof while the

proceedings were pending before the Advisory Board, were the points on

which the relief was granted to the detenue.

14.In the context of the second issue stated earlier, the principles that

emerge from the decisions referred to above are:-

A) In Pankaj Kumar Chakrabarty

18

, it was laid down:-

“the petitioners had a constitutional right and there

was on the State Government a corresponding

constitutional obligation to consider their

representations irrespective of whether they were

made before or after their cases were referred to the

Advisory Board”

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49

According to this decision it was immaterial whether the

representations were made before or after the cases were referred to the

Advisory Board.

B) In Jayanarayan Sukul

15

, the reason for immediate consideration

of the representation was stressed in para 18 as under:-

“The reason for immediate consideration of the

representation is too obvious to be stressed. The

personal liberty of a person is at stake. Any delay

would not only be an irresponsible act on the part of

the appropriate authority but also unconstitutional

because the Constitution enshrines the fundamental

right of a detenu to have his representation

considered and it is imperative that when the liberty

of a person is in peril immediate action should be

taken by the relevant authorities.”

Thereafter four principles that must be followed in regard to

consideration of the representation of a detenue were dealt with in

paragraph 20; the second principle being:-

“Secondly, the consideration of the representation of

the detenu by the appropriate authority is entirely

independent of any action by the Advisory Board

including the consideration of the representation of

the detenu by the Advisory Board.”

It was thus stated that the consideration of the representation must

be entirely independent of the action by the Advisory Board.

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The 4

th

principle put the obligation upon the appropriate

Government to consider the representation as :-

“the appropriate Government is to exercise its

opinion and judgment on the representation before

sending the case along with the detenu’s

representation to the Advisory Board.”

C) In Haradhan Saha

16

, the qualitative difference between

consideration of the representation by the Government on one hand and

by the Advisory Board on the other, was clarified in para 24 as:-

“

The Government considers the representation to

ascertain essentially whether the order is in

conformity with the power under the law. The Board,

on the other hand, considers whether in the light of

the representation there is sufficient cause for

detention.”

The cases where the representations were received before the

reference and after the reference were also dealt with in para 29 as :-

“If the representation of the detenu is received before

the matter is referred to the Advisory Board, the

detaining authority considers the representation. If a

representation is made after the matter has been

referred to the Advisory Board, the detaining

authority will consider it before it will send

representation to the Advisory Board.”

D) In Frances Coralie Mullin

21

, the principle that the consideration

by the Detaining Authority of the representation must be entirely

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51

independent of the hearing by the Board or its report was again stressed

with emphasis on “expedition being essential at every stage”

Para 7 of the decision explained the principles in Jayanarayan

Sukul

15

as:-

“when it was said there that the Government

should come to its decision on the representation

before the Government forwarded the representation

to the Advisory Board, the emphasis was not on the

point of time but on the requirement that the

Government should consider the representation

independently of the Board.”

15.These decisions clearly laid down that the consideration of

representations by the appropriate Government by the Board would

always be qualitatively different and the power of consideration by the

appropriate Government must be completely independent of any action by

the Advisory Board. In para 12 of the decision in Pankaj Kumar

Chakrabarty

18

it was stated that the obligation on part of the Government

to consider representation would be irrespective whether the

representation was made before or after the case was referred to the

Advisory Board. As stated in paragraph 18, this was stated so, as any

delay in consideration of the representation would not only be an

irresponsible act on part of the appropriate authority but also

unconstitutional. The contingency whether the representations were

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52

received before or after was again considered in para 29 of the decision in

Haradhan Saha

16

. In terms of these principles, the matter of

consideration of representation in the context of reference to the Advisory

Board, can be put in following four categories:-

A) If the representation is received well before the reference is made

to the Advisory Board and can be considered by the appropriate

Government, the representation must be considered with expedition.

Thereafter the representation along with the decision taken on the

representation shall be forwarded to and must form part of the documents

to be placed before the Advisory Board.

B) If the representation is received just before the reference is made

to the Advisory Board and there is no sufficient time to decide the

representation, in terms of law laid down in Jayanarayan Sukul

15

and

Haradhan Saha

16

the representation must be decided first and thereafter

the representation and the decision must be sent to the Advisory Board.

This is premised on the principle that the consideration by the appropriate

Government is completely independent and also that there ought not to be

any delay in consideration of the representation.

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C) If the representation is received after the reference is made but

before the matter is decided by the Advisory Board, according to the

principles laid down in Haradhan Saha

16

, the representation must be

decided. The decision as well as the representation must thereafter be

immediately sent to the Advisory Board.

D) If the representation is received after the decision of the Advisory

Board, the decisions are clear that in such cases there is no requirement to

send the representation to the Advisory Board. The representation in such

cases must be considered with expedition.

16.There can be no difficulty with regard to the applicability of the

principles in the 1

st

and the 4

th

stage of the aforesaid categories. The

difficulty may arise as regards the application of principles at the 2

nd

and

the 3

rd

stage. But that difficulty was dealt with sufficient clarity in

Jayanarayan Sukul

15

and Haradhan Saha

16

as stated hereinabove. If it is

well accepted that the representation must be considered with utmost

expedition; and the power of the Government is completely independent

of the power of the Advisory Board; and the scope of consideration is also

qualitatively different, there is no reason why the consideration by the

Government must await the decision by the Advisory Board. None of the

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54

aforesaid cases even remotely suggested that the consideration must await

till the report was received from the Advisory Board.

17.However, it was for the first time that the decision in K.M.

Abdulla Kunhi

6

laid down in paragraph 16 that it would be proper for the

Government in the two situations dealt with in said paragraph to await the

report of the Board; those two situations being:-

a) where the representation is received before the matter is referred

to the Advisory Board and where there may not be sufficient time to

dispose of the representation before referring the case to the Advisory

Board, and

b) where the representation is received after the case is referred to

the Advisory Board.

It was also laid down:-

“In both the situations there is no question of

consideration of the representation before the receipt of

report of the Advisory Board.”

18.Since the decision of this Court in K.M. Abdulla Kunhi

6

was

rendered by the Constitution Bench of this Court after considering all the

earlier decisions on the point including those in Pankaj Kumar

Chakrabarty

18

, Jayanarayan Sukul

15

and Haradhan Saha

16

, we are bound

by the principles laid down therein. When the learned counsel for the

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55

petitioner were so confronted, it was submitted by them that the decision in

K.M. Abdulla Kunhi

6

dealt with the matter relating to the consideration of

representation by the appropriate Government and not in the context where

power of detention was exercised by a specially empowered officer as the

Detaining Authority. According to them, that would make a huge

difference and put the matter in a qualitatively different compass.

19.We now proceed to deal with these submissions.

20.At the outset it must be stated that in Pankaj Kumar

Chakrabarty

18

and in Jayanarayan Sukul

15

the orders of detention were

passed by the District Magistrates under Section 3(ii) of 1950 Act. The

relevant statutory provisions contemplated the concept of approval within

12 days of the passing of such orders of detention passed by the District

Magistrates. In Haradhan Saha

16

power was exercised by the District

Magistrates under the provisions of the MISA, wherein similar concept of

approval on part of the State Government within 12 days of the passing of

the order of detention by the District Magistrate was contemplated. The

distinction on that count was noted by this Court in para 34 of the decision

in Kamleshkumar

12

. The orders of detention in these decisions were not

passed by a specially empowered officer but by the concerned

Government. The same logic regarding deemed approval was extended

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Ankit Ashok Jalan vs. Union of India & Ors.

56

initially in Sushila Mafatlal Shah

9

to cases where the orders of detention

were passed not by the concerned Government but by a specially

empowered officer. The matter was, however, corrected and the distinction

in that behalf was succinctly dealt with in Kamleshkumar

12

.

21. It must also be borne in mind that in all cases, the appropriate

Government would be acting in two capacities; one while considering the

representation and the other while taking appropriate decision after a report

is received from the Advisory Board that there is sufficient cause for

detention. Since the decision would be required to be taken in these two

capacities, it was observed in K.M. Abdulla Kunhi

6

that it would be proper

for the appropriate Government to wait till the report is received from the

Advisory Board in cases dealt with in paragraph 16 of the decision. But

such may not be the case with the Detaining Authority who is a specially

empowered officer.

22.A specially empowered officer who passes the order of detention,

in exercise of special empowerment, has no statutory role to play at the

stage when the report is received from the Advisory Board. The report is

to be considered by the appropriate Government and not by the specially

empowered officer. It may also be relevant at this stage to consider the

Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

57

element of confidentiality associated with the report of the 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 Boards each of which shall

consist of a Chairman and two other persons

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

appropriate Government shall, within five weeks

from the date of detention of a person under a

detention order make a reference in respect thereof

to the Advisory Board constituted under clause (a)

to enable the Advisory Board to make the report

under sub-clause (a) of clause (4) of article 22 of

the Constitution;

(c)The Advisory Board to which a reference is made

under clause (b) shall after considering the

reference and the materials placed before it and

after calling for such further information as it may

deem necessary for the appropriate Government or

from any person called for the purpose through the

appropriate Government, or from the person

concerned, and if, in any particular case, it

considers it essential so to do or if the person

concerned desires to be heard in person, after

hearing him in person, prepare its report

specifying in a separate paragraph thereof its

opinion as to whether or not there is sufficient

cause for the detention of the person concerned

and submit the same within eleven weeks from the

date of detention of the person concerned;

Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

58

(d)When there is a difference of opinion among the

members forming the Advisory Board the opinion

of the majority of such members shall be deemed

to be the opinion of the majority of such members

shall be deemed to be the opinion of the Board;

(e)a person against whom an order of detention has

been made under this Act shall not be entitled to

appear by any legal practitioner in any matter

connected with the reference to the Advisory

Board, and the proceedings of the Advisory Board

and its report, excepting that part of the report in

which the opinion of the Advisory Board is

specified, shall be confidential;

(f)in every case where the Advisory Board has

reported that there is in its opinion sufficient cause

for the detention of a person, the appropriate

Government may confirm the detention order and

continue the detention of the person concerned for

such period as it thinks fit and in every case where

the Advisory Board has reported that there is in its

opinion no sufficient cause for the detention of the

person concerned, the appropriate Government

shall revoke the detention order and cause the

person to be released forthwith.”

23.In terms of Section 8, the report of the Advisory Board is meant

only for the consumption of the appropriate Government and apart from

the operative part of the report which is to be specified in a separate

paragraph as per sub-section (c), the mandate in terms of sub-section (e) is

to keep the report of the Advisory Board completely confidential. Thus, a

specially empowered officer who may have passed the order of detention,

by statutory intent is not to be privy to the report nor does the statute

contemplate any role for such specially empowered officer at the stage of

Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

59

consideration of the opinion of the Advisory Board. The report of the

Advisory Board may provide some qualitative inputs for the appropriate

Government but none to the specially empowered officer who acted as the

Detaining Authority. If that be so, would a specially empowered officer

who had passed the order of detention be bound by what has been laid

down by this Court in paragraph 16 of the decision in K.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

was

decided on 23.01.1991, the decision that was holding the field as to the

role of a specially empowered officer who had passed an order of

detention, was one rendered in Sushila Mafatlal Shah

9

. The law that was

holding the field was the concept of deemed approval as was explained in

Sushila Mafatlal Shah

9

and any representation made to such specially

empowered officer who had passed the order of detention, in terms of the

decision in Sushila Mafatlal Shah

9,

could be considered by the appropriate

Government itself and not separately by such specially empowered officer.

The subsequent decision in Amir Shad Khan

11

was rendered by a Bench of

three Judges on 09.08.1991 and the apparent conflict in the decisions

between Sushila Mafatlal Shah

9

and Amir Shad Khan

11

was resolved by

Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

60

the Constitution Bench of this Court in Kamleshkumar

12

rendered on

17.04.1995, i.e. well after the decision in K.M. Abdulla Kunhi

6

.

25.Thus, if the law is now settled that a representation can be made to

the specially empowered officer who had passed the order of detention in

accordance with the power vested in him and the representation has to be

independently considered by such Detaining Authority, the concerned

principles adverted to in paragraph 16 of the decision in K.M. Abdulla

Kunhi

6

would not be the governing principles for such specially

empowered officer. It must be stated that the discussion in K.M. Abdulla

Kunhi

6

was purely in the context where the order of detention was passed

by the appropriate Government and not by the specially empowered

officer. The principle laid down in said paragraph 16 has therefore to be

understood in the light of the subsequent decision rendered by another

Constitution Bench of this Court in Kamleshkumar

12

.

26.In the light of the aforesaid discussion, our answer to first two

questions is that the Detaining Authority ought to have considered the

representation independently and without waiting for the report of the

Central Advisory Board.

We now come to the 3

rd

question. The facts in the instant case

indicate that the comments of the Sponsoring Authority in respect of the

Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

61

representation were already received by the Detaining Authority. After

receipt of letter on 27.11.2019 that the detenues were received in custody,

the time for considering the representation started ticking for the

Detaining Authority. But the representation was considered only on

14.01.2020 and the reason for such delayed consideration is that the report

of the Central Advisory Board was awaited. We have already found that

the Detaining Authority was obliged to consider the representation

without waiting for the opinion of the Central Advisory Board. Thus,

there was no valid explanation for non-consideration of the representation

from 27.11.2019 till 14.01.2020. We must, therefore, hold that complete

inaction on part of the Detaining Authority in considering the

representation caused prejudice to the detenues and violated their

constitutional rights.

27.We are conscious that the view that we are taking, may lead to

some incongruity and there could be clear dichotomy when the

representations are made simultaneously to such specially empowered

officer who had passed the order of detention and to the appropriate

Government. If we go by the principle in paragraph 16 in K.M. Abdulla

Kunhi

6

it would be proper for the appropriate Government to wait till the

report was received from the Advisory Board, while at the same time the

Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

62

specially empowered officer who had acted as the Detaining Authority

would be obliged to consider the representation with utmost expedition.

At times a single representation is prepared with copies to the Detaining

Authority namely the specially empowered officer and to the appropriate

Government as well as to the Advisory Board. In such situations there

will be incongruity as stated above, which may be required to be corrected

at some stage. However, such difficulty or inconsistency cannot be the

basis for holding that a specially empowered officer while acting as a

Detaining Authority would also be governed by the same principles as laid

down in paragraph 16 of K.M. Abdulla Kunhi

6

.

28.Since there was complete inaction on part of the Detaining

Authority in the present case, to whom a representation was addressed in

dealing with the representation as stated above, we hold that the

constitutional rights of the detenues were violated and the detenues are

entitled to redressal on that count. We, therefore, allow this Writ Petition

and hold the continued detention of the detenues in terms of the Detention

Orders to be illegal, invalid and unconstitutional.

29.This Writ Petition is therefore allowed. The Detention Orders are

quashed and the detenues are directed to be set at liberty forthwith, unless

Writ Petition (Criminal) No.362 of 2019

Ankit Ashok Jalan vs. Union of India & Ors.

63

their custody is required in connection with any other proceedings or

crime.

……………………….J.

[Uday Umesh Lalit]

……………………….J.

[Indu Malhotra]

New Delhi;

March 04, 2020.

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 362 OF 2019

ANKIT ASHOK JALAN .....APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. I have gone through the detailed judgment authored by Brother Justice

Lalit, but am unable to persuade myself to agree with the views

expressed by him. For the sake of brevity the facts are not repeated

here.

2. In my view, the decision in K. M. Abdulla Kunhi and B.L. Abdul

Khader v. Union of India and Others

1

covers the issue raised, as

once the matter has been sent to the Advisory Board, the

representation received thereafter is required to be forwarded to it as

well. However, the Detaining Authority retains its right to revoke this

detention order dehors the opinion of the Central Advisory Board.

1 (1991) 1 SCC 476

1

3. Section 3 of the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 1974

2

empowers the Central Government, the

State Government or the specially empowered Officer of the rank not

below the rank of the Joint Secretary of the Central Government or

Secretary of the State Government, to make an order, directing a

person to be detained. The Detaining Authority has jurisdiction to

revoke the detention order in view of Section 21 of the General Clauses

Act, 1897

3

, whereas, an appropriate Government passes an order of

revocation of detention or confirmation of the order of detention on

receipt of the report of the Advisory Board. The consideration for the

Detaining Authority for revocation, is to see whether the detention

order is in conformity with the power under law whereas, the Advisory

Board considers the representation to examine whether there is

sufficient cause for detention. The consideration of the Advisory Board

is an additional safeguard and not a substitute for the consideration of

the representation by the appropriate Government.

4. The first part of the consideration of representation, as to whether the

order of detention is in conformity with power under the law, does not

make a distinction as to whether the Detaining Authority is the Central

or State Government or a specially empowered Officer in that behalf.

The consideration for detention by the Detaining Authority is confined

to examining whether the order of detention is in conformity with the

2 for short “COFEPOSA Act”

3 for short “1897 Act”

2

power under the law. On the other hand, the Advisory Board examines

if there is sufficient cause for detention. Therefore, once the

Government as a Detaining Authority is examining the representation

of the detenu for revocation of the detention order, it is only required

to examine whether such detention order is in conformity with power

under law, whereas, after the recommendation of the Advisory Board,

the Government would be examining whether there is sufficient cause

for detention. The exercise of jurisdiction by the Government, whilst

dealing with the representation as a detaining authority and whilst

considering the Advisory Board’s recommendation, is in two separate

and distinct spheres.

5. The Constitution Bench in Jayanarayan Sukul v. State of West

Bengal

4

considered the detention order under the Preventive

Detention Act, 1950. This Court in the aforesaid case, culled out four

principles to be followed with regard to the representation of detenu.

Such four principles have been recapitulated in the order passed by

the Hon’ble Justice Lalit. The power of detention under the aforesaid

Act was not vested under the State or Central Government but on the

District Magistrate or Additional District Magistrate specially

empowered by the State Government. The opinion of the Advisory

Board was required to be considered by the appropriate Government

who may either confirm the detention order or if in the opinion of the

Advisory Board, no sufficient cause for detention is found, then revoke

4 (1970) 1 SCC 219

3

the detention order. In this factual background, this Court held as

under:

“20. Broadly stated, four principles are to be followed in

regard to representation of detenus. First, the

appropriate authority is bound to give an opportunity to

the detenu to make a representation and to consider the

representation of the detenu as early as possible.

Secondly, the consideration of the representation of the

detenu by the appropriate authority is entirely

independent of any action by the Advisory Board

including the consideration of the representation of the

detenu by the Advisory Board. Thirdly, there should not

be any delay in the matter of consideration. It is true that

no hard and fast rule can be laid down as to the measure

of time taken by the appropriate authority for

consideration but it has to be remembered that the

Government has to be vigilant in the governance of the

citizens. A citizen’s right raises a correlative duty of the

State. Fourthly, ‘the appropriate Government is to

exercise its opinion and judgment on the representation

before sending the case along with the detenu’s

representation to the Advisory Board. If the appropriate

Government will release the detenu the Government will

not send the matter to the Advisory Board. If however

the Government will not release the detenu the

Government will send the case along with the detenu’s

representation to the Advisory Board. If thereafter the

Advisory Board will express an opinion in favour of

release of the detenu the Government will release the

detenu. If the Advisory Board will express any opinion

against the release of the detenu the Government may

still exercise the power to release the detenu.”

(Emphasis supplied)

6. The second part of the consideration of representation of the detenu

by the appropriate authority i.e. the Detaining Authority is entirely

independent and has no connection to the consideration by the

Advisory Board. It has been held that there should not be any delay in

4

the matter of consideration, but at the same time it has been stated

that there is no hard and fast rule that can be laid down as to the

time taken by the appropriate authority for consideration, however

the Government has to be vigilant with regard to the rights of the

citizens. Such rights raise a corelative duty on the State.

7. A two Judge Bench of this Court, in Vimalchand Jawantraj Jain v.

Shri Pradhan and Others

5

, examined a case where a specially

empowered officer of the State Government had passed a detention

order. The representation to seek revocation of the detention was

sent to such Officer as the Detaining Authority. The order confirming

the detention of the detenu was passed after considering the report

of the Advisory Board, by the detaining authority. The Advisory Board

reported that there were sufficient causes for the detention of the

detenu and after considering such report the order of detention was

confirmed. In these circumstances, it was argued that the order of

detention had been confirmed by the specially empowered Officer

without considering the representation of the detenu. The Bench

approved the earlier judgment of this Court in Khairul Haque v.

The State of W.B.

6

, wherein it was held as under:

“3……The fact that Article 22(5) enjoins upon the

Detaining Authority to afford to the detenu the earliest

opportunity to make a representation must implicitly

mean that such representation, must, when made, be

5 (1979) 4 SCC 401

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

5

considered and disposed of as expeditiously as possible,

otherwise, it is obvious that the obligation to furnish the

earliest opportunity to make a representation loses both

its purpose and meaning.”

8. This Court in Vimalchand Jawantraj Jain after quoting from Khairul

Haque’s case, held as under:

“4. There are thus two distinct safeguards provided to a

detenu; one is that his case must be referred to an

Advisory Board for its opinion if it is sought to detain him

for a longer period than three months and the other is he

should be afforded the earliest opportunity of making a

representation against the order of detention and such

representation should be considered by the Detaining

Authority as early as possible before any order is made

confirming the detention. Neither safeguard is dependent

on the other and both have to be observed by the

Detaining Authority. It is no answer for the Detaining

Authority to say that the representation of the detenu

was sent by it to the Advisory Board and the Advisory

Board has considered the representation and then made

a report expressing itself in favour of detention. Even if

the Advisory Board has glade a report stating that in its

opinion there is sufficient cause for the detention, the

State Government is not bound by such opinion and it

may still on considering the representation of the detenu

or otherwise, decline to confirm the order of detention

and release the detenu. The Detaining Authority is,

therefore, bound to consider the representation of the

detenu on its own and keeping in view all the facts and

circumstances relating to the case, come to its own

decision whether to confirm the order of detention or to

release the detenu.”

(Emphasis supplied)

9. In these circumstances, this Court held that the representation of the

detenu was not considered by the Detaining Authority before the

Advisory Board recommended confirmation of the order of the

6

detention, thus the Detaining Authority had failed to complete the

constitutional obligation imposed upon him in terms of Clause (5) of

Article 22.

10.In Frances Coralie Mullin v. W.C. Khambra and Others

7

an order

of detention was passed by the Administrator, Union Territory of Delhi.

It was found that the representation submitted by the detenu was

forwarded to the Advisory Board. Considering the case of

Jayanarayan Sukul, the two Judge Bench of this Court held as under:

“5…… We agree : (1) the Detaining Authority must

provide the detenu a very early opportunity to make a

representation, (2) the Detaining Authority must consider

the representation as soon as possible, and this,

preferably, must be before the representation is

forwarded to the Advisory Board, (3) the representation

must be forwarded to the Advisory Board before the

Board makes its report, and (4) the consideration by the

Detaining Authority of the representation must be

entirely independent of the hearing by the Board or its

report, expedition being essential at every stage. We,

however, hasten to add that the time-imperative can

never be absolute or obsessive. The Court's observations

are not to be so understood. There has to be lee-way,

depending on the necessities (we refrain from using the

word “circumstances”) of the case. One may well

imagine, a case where a detenu does not make a

representation before the Board makes its report making

it impossible for the Detaining Authority either to

consider it or to forward it to the Board in time or a case

where a detenu makes a representation to the Detaining

Authority so shortly before the Advisory Board takes up

the reference that the Detaining Authority cannot

consider the representation before then but may merely

forward it to the Board without himself considering it.

Several such situations may arise compelling departure

from the time-imperative. But no allowance can be made

7 (1980) 2 SCC 275

7

for lethargic indifference. No allowance can be made for

needless procrastination. But, allowance must surely be

made for necessary consultation where legal intricacies

and factual ramifications are involved. The burden of

explaining the necessity for the slightest departure from

the time- imperative is on the Detaining Authority.”

(Emphasis supplied)

11.The judgments of this Court in Vimalchand Jawantraj Jain and

Frances Coralie Mullin were considered by the Constitution Bench in

K. M. Abdulla Kunhi wherein, the judgment in Vimalchand

Jawantraj Jain, Khairul Haque and Om Prakash Bahl v. Union of

India

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

constitutional right to make representation under Clause

(5) of Article 22 by necessary implication guarantees the

constitutional right to a proper consideration of the

representation. Secondly, the obligation of the

Government to afford to the detenu an opportunity to

make representation and to consider such representation

is distinct from the Government's obligation to refer the

case of detenu along with the representation to the

Advisory Board to enable it to form its opinion and send a

report to the Government. It is implicit in Clauses (4) and

(5) of Article 22 that the Government while discharging

its duty to consider the representation, cannot depend

upon the views of the Board on such representation. It

has to consider the representation on its own without

being influenced by any such view of the Board. The

obligation of the Government to consider the

representation is different from the obligation of the

Board to consider the representation at the time of

hearing the references. The Government considers the

representation to ascertain essentially whether the order

is in conformity with the power under the law. The Board,

8 W.P. NO. 845 of 1979 decided on October 15, 1979

8

on the other hand, considers the representation and the

case of the detenu to examine whether there is sufficient

case for detention. The consideration by the Board is an

additional safeguard and not a substitute for

consideration of the representation by the Government.

The right to have the representation considered by the

Government, is, safeguarded by Clause (5) of Article 22

and it is independent of the consideration of the detenu's

case and his representation by the Advisory Board under

cl. (4) of Article 22 read with Section 8(c) of the Act…..”

(Emphasis supplied)

12.Later, while considering the Frances Coralie Mullin case, the

Constitution Bench held that the time-imperative for consideration of

the representation of a detenu can never be absolute or obsessive, it

depends upon the necessities under which the representation is made.

If there is not enough time to dispose of the representation, the

representation may also be forwarded to the Advisory Board along with

the case of the detenu. This Court held as under:

“16. We agree with the observations in Frances Coralie

Mullin case. The time imperative for consideration of

representation can never be absolute or obsessive. it

depends upon the necessities and the time at which the

representation is made. The representation may be

received before the case is referred to the Advisory

Board, but there may not be time to dispose of the

representation before referring the case to the Advisory

Board. In that situation the representation must also be

forwarded to the Advisory Board along with the case of

the detenu. The representation may be received after the

case of the detenu is referred to the Board. Even in this

situation the representation should be forwarded to the

Advisory Board provided the Board has not concluded the

proceedings. In both the situations there is no question

of consideration of the representation before the receipt

9

of report of the Advisory Board. Nor it could be said that

the government has delayed consideration of the

representation, unnecessarily awaiting the report of the

Board. It is proper for the Government in such situations

to await the report of the Board. If the Board finds no

material for detention on the merits and reports

accordingly, the Government is bound to revoke the

order of detention. Secondly, even if the Board expresses

the view that there is sufficient cause for detention, the

Government after considering the representation could

revoke the detention. The Board has to submit its report

within eleven weeks from the date of detention. The

Advisory Board may hear the detenu at his request. The

Constitution of the Board shows that it consists of

eminent persons who are Judges or person qualified to

be Judges of The High Court. It is therefore, proper that

the Government considers the representation in the

aforesaid two situations only after the receipt of the

report of the Board. If the representation is received by

the Government after the Advisory Board has made its

report, there could then of course be no question of

sending the representation to the Advisory Board. It will

have to be dealt with and disposed of by the Government

as early as possible.”

(Emphasis supplied)

13.Later in the same judgment, it was held that there is no constitutional

mandate to consider the representation before confirming the order of

the detention. As long as, the Government i.e. the Detaining Authority

considers the representation without delay and without an unbiased

mind, there is no basis for concluding that there has been an absence

of independent consideration, before the confirmation of detention.

The Court held that there is no justification for imposing the restriction

on the power of the Detaining Authority. It was held as under:

10

“19. There is no constitutional mandate under Clause (5)

of Article 22, much less any statutory requirement to

consider the representation before confirming the order

of detention. As long as the Government without delay

considers the representation with an unbiased mind

there is no basis for concluding that the absence of

independent consideration is the obvious result if the

representation is not considered before the confirmation

of detention. Indeed, there is no justification for imposing

this restriction on the power of the Government. As

observed earlier, the Government's consideration of the

representation is for a different purpose, namely to find

out whether the detention is in conformity with the

power under the statute. This has been explained in

Haradhan Saha case, where Ray, C.J., speaking for the

Constitution Bench observed that the consideration of

the representation by the Government is only to

ascertain whether the detention order is in conformity

with the power under the law. There need not be a

speaking order in disposing such representation. There is

also no failure of justice by the order not being a

speaking order. All that is necessary is that there should

be real and proper consideration by the Government.”

(Emphasis supplied)

14.The Constitution Bench of this Court in K.M. Abdulla Kunhi further

examined the situation that if the detenu makes a representation after

his detention is confirmed according to the procedure laid down under

Section 8 of the COFEPOSA Act, the Government still has to consider

such representation and assess whether the detention is not within the

power conferred under the law. The Court held as under:

“20. The words 'shall afford him the earliest opportunity

of making a representation against the order' in clause

(5) of Article 22 suggest that the obligation of the

Government is to offer the detenu an opportunity of

making a representation against the order, before it is

confirmed according to the procedure laid down

under Section 8 of the Act. But if the detenu does not

11

exercise his right to make representation at that stage,

but presents it to the government after the Government

has confirmed the order of detention, the Government

still has to consider such representation and release the

detenu if the detention is not within the power conferred

under the statute. The confirmation of the order of

detention is not conclusive as against the detenu. It can

be revoked suo motu under Section 11 or upon a

representation of the detenu.”

(Emphasis supplied)

15.The aforesaid judgment arises out of the fact that the detention order

was passed by the Government, however, it will not make any

difference if the detention order had been passed by a specially

empowered Officer. The consideration for revocation of a detention

order is only whether such detention order conforms to the law. Such

consideration is applicable to all detaining authorities, be it the Central

Government or the State Government or any specially empowered

Officer of the two. No distinction can be drawn between a specially

empowered Officer or the State and Central Governments as the

consideration herein for revocation of a detention order is restricted to

whether or not the detention order conforms to the law.

16.Subsequently, the matter was again placed before the Constitution

Bench in Kamleshkumar Ishwardas Patel v. Union of India and

Others

9

on account of the divergent views in the State of

Maharashtra & Anr. v. Sushila Mafatlal Shah and others

10

and

9 (1995) 4 SCC 51

10 (1988) 4 SCC 490

12

Amir Shad Khan v. L. Hmingliana and Others

11

. It was held that

Clause (5) of Article 22 imposes a dual obligation on the authority

making the order of preventive detention. Firstly, to communicate to

the detenu as soon as may be, the grounds on which the order of

detention has been made; and secondly, to afford the detenu the

earliest opportunity of making a representation against the order of

detention. It was held that in terms of Section 21 of the 1897 Act, the

authority which has ordered the detention has the power to revoke the

same. Further, the detenu has the liberty to submit his representation

to the authority which is competent to revoke the detention. This Court

held as under:

“14. Article 22(5) must, therefore, be construed to mean

that the person detained has a right to make a

representation against the order of detention which can

be made not only to the Advisory Board but also to the

Detaining Authority, i.e., the authority that has made the

order of detention or the order for continuance of such

detention, who is competent to give immediate relief by

revoking the said order as well as to any other authority

which is competent under law to revoke the order for

detention and thereby give relief to the person detained.

The right to make a representation carries within it a

corresponding obligation on the authority making the

order of detention to inform the person detained of his

right to make a representation against the order of

detention to the authorities who are required to consider

such a representation.”

17.The Constitution Bench held that when a detention order has been

passed by an Officer specially empowered for that purpose, the detenu

11 (1991) 4 SCC 39

13

has a right to make a representation against the order of detention to

the said Officer. The failure of the Detaining Authority in considering

such representation results in the denial of the right conferred on the

detenu to make a representation against the order of detention. This

right of the detenu is in addition to his right to make a representation

to the State and the Central Government.

18.In Criminal Appeal Nos. 764-765 of 1994, the Constitution Bench of this

Court in Kamleshkumar Ishwardas Patel considered three questions

which were examined by the Full Bench of the Bombay High Court. The

first question was whether a specially empowered officer had an

independent power to revoke the order of detention. The second

question is not relevant for consideration in the present case. The third

question examined was whether the failure to take an independent

decision on the revocation of a detention order by the specially

empowered officer and merely forwarding the same with a

recommendation to reject, results in non-compliance with the

constitutional safeguard under Article 22(5) of the Constitution. The

order of the High Court on first question was confirmed and that on the

third question was set aside.

19.An argument was raised in respect of the third question that failure on

the part of the Detaining Authority to consider the representation of

the detenu results in a denial of the right of detenu to make a

representation recognized under Clause (5) of Article 22, which renders

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the detention illegal. In the aforesaid case, it was found that the

representation of the detenu was not considered by the Officer making

the order of detention and the High Court erred in holding that the

failure on part of the Detaining Authority to consider and decide the

representation is not vital to the order of detention. Thus, the

aforesaid judgment is to the effect that the Detaining Authority is duty-

bound to consider the representation of the detenu which is a

constitutional mandate under Clause (5) of Article 22 of the

Constitution. Such representation has to be decided independently to

the recommendation of the Advisory Board and can be accepted

dehors the recommendation of the Advisory Board. Thus, the right of

detenu is to seek consideration of his representation by the Detaining

Authority, including the specially empowered Officer or by State or

Central Government. It is constitutionally mandated by Clause (5) of

Article 22. Further, as mentioned earlier, the Detaining Authority which

includes the State Government or the Central Government, examines

whether the detention order is in conformity with law whereas, the

appropriate government while considering the recommendation of the

Advisory Board examines whether there was sufficient cause for the

detention of the detenu. The appropriate government at that stage

examines the report of the Advisory Board in respect of the sufficiency

of material with regard to detention. The consideration by the

Detaining Authority is separate and distinct to the consideration of the

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revocation of the detention order and the consideration by the

appropriate Government at the time of assessing the recommendation

of the Advisory Board. Thus, it is immaterial if the detention order was

passed by a specially empowered Officer or the State Government or

the Central Government as all such authorities have similar jurisdiction

to revoke the detention order. Clause (5) of Article 22 protects the right

of the detenu by giving him the right to submit representation, which is

required to be considered by the Detaining Authority, provided it is not

delayed without any reason. On the other hand, the detention of the

detenu beyond three months can be only on the basis of the report of

the Advisory Board in respect of sufficiency of material to detain the

detenu beyond the period of three months. Such right is conferred on

the detenu by clause (4) of Article 22 of the Constitution.

20.The judgment in K. M. Abdulla Kunhi had been examined by another

Division Bench judgment in Golam Biswas v. Union of India and

Another

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, wherein the specially empowered Officer passed two orders

of detention. A representation was submitted seeking revocation of the

detention order. The consideration of detention of the detenu was

referred to the Advisory Board on 8.7.2014. The order of detention was

confirmed by the Central Government on 5.9.2014 and the

representation was rejected by the Central Government on 21.7.2014.

Thus, referring to K. M. Abdulla Kunhi and reiterating that there is

no time limit to dispose of the representation, this Court held as under:

12 (2015) 16 SCC 177

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“14. As the quoted text would reveal, in essence, it was

reiterated that if a representation is received by an

appropriate authority and there is no time to dispose of

the same having regard to the time-frame fixed by the

Act for reference of the matter to the Advisory Board, the

representation must also be forwarded to the Advisory

Board along with the records of the detenu. This assumes

significance, in our comprehension, in view of the binding

nature of the opinion of the Advisory Board, in case, on a

consideration of the materials on record it decides to

hold against the detention. In case the Advisory Board

holds that the detention order is invalid, it is not open for

the appropriate Government to continue therewith and it

has to essentially revoke the same though the converse

may not be the same. In other words, if the Advisory

Board upholds the order of detention, it would still be

open to the Central Government, depending on the

merits of each case, to release the detenu. The fact that

the opinion of the Advisory Board against continuance of

the order of detention is final vis-à-vis the appropriate

Government, in our opinion, is the motivating imperative

for requiring the appropriate Government to forward the

pending representation to the Advisory Board so as to

enable it to traverse the entire panorama of grounds

taken against the detention order for an effective, timely

and meaningful consideration of the case of the detenu.

This requirement as has been essentially recognised and

mandated by two decisions of the Constitution Bench of

this Court, does not, in any way, undermine the

appropriate Government's authority to consider and

dispose of such representation of any detenu under the

preventive detention law. The right of the Central

Government or for that matter any appropriate

Government to consider and dispose of a representation

of a detenu, preventively detained, has to be

harmoniously construed with the obligation cast on it to

forward a pending representation to the Advisory Board

as has been consistently held in Jayanarayan Sukul

[Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 :

1970 SCC (Cri) 92] and K.M. Abdulla Kunhi [K.M. Abdulla

Kunhi v. Union of India, (1991) 1 SCC 476 : 1991 SCC

(Cri) 613]”

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21.This Court held that the representation of the detenu was not

forwarded to the Advisory Board and instead rejected during the

pendency of the proceedings before the Advisory Board. Thus, the

Court was constrained to hold that the detention of the detenu was

constitutionally invalid. It was held as under:

“15. As admittedly, the detenu's representation dated 8-

7-2014, pending with the Central Government, the

appropriate Government in the case, was not forwarded

to the Advisory Board and was instead rejected during

the pendency of the proceedings before the Advisory

Board, we are constrained to hold that the detention of

the detenu is constitutionally invalid. The rejection of the

representation by the Central Government later on 21-7-

2014 during the pendency of the proceedings before the

Advisory Board is of no consequence to sustain the

detention. Consequently, the order of confirmation as

well is rendered non est by this vitiation. In view of the

determination made on the above aspect of the debate,

we do not consider it necessary to dilate on the other

pleas raised on behalf of the detenu. In the result, the

appeal succeeds. The impugned judgment and order is

set aside. The orders of detention as well as the order of

confirmation are hereby annulled. The detenu is directed

to be set at liberty, if not wanted in any other case.”

22.In view of the aforesaid judgment, I am of the opinion that once the

detention order has been made by any of the authorities competent to

detain in terms of Section 3 (1) of the COFEPOSA Act, the

representation to seek revocation of the detention order can be

considered and decided by the Detaining Authority dehors the decision

of the Advisory Board and the acceptance of recommendation by the

appropriate Government. The consideration for revocation of a

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detention order is limited to examining whether the order conforms

with the provisions of law whereas the recommendation of the Advisory

Board is on the sufficiency of material for detention, which alone is

either confirmed or not accepted by the appropriate Government.

23.It would be a matter of prudence and propriety for the Detaining

Authority to defer the decision on the representation to revoke the

detention order, when the matter is being considered by the Advisory

Board, consisting of three Hon’ble sitting Judges of the High Court. The

consideration of the representation by the Detaining Authority in these

circumstances cannot be said to be delayed as the representation was

received after the matter was referred to the Advisory Board.

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

dismissed.

……………………………..J

(HEMANT GUPTA)

NEW DELHI;

MARCH 4, 2020.

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