REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2023

(arising out of Special Leave Petition (Crl.) No. 10798 Of 2022

PRAMOD SINGLA … APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. … RESPONDENT(S)

JUDGMENT

KRISHNA MURARI, J.

Leave Granted.

2. The present Appeal is directed against the impugned judgment and

final order dated 03.11.2022 passed by the High Court of Delhi at New Delhi,

(hereinafter referred to as “High Court”) in Writ Petition (Crl.) No. 1205 of

2022 whereby the appellant’s plea to quash the detention order against him on

grounds of delay in considering his representation was denied.

FACTS

3. Briefly, the facts relevant to the present appeal are that an

Intelligence was received by the Respondent that a syndicate comprising of

1 2023 INSC 344

certain Chinese, Taiwanese, and South Korean nationals in association with

some Indian Nationals were in the practice of smuggling gold into India

through Air Cargo by concealing gold in transformers of electroplating/

reworking machines etc..

4. One such cargo was being imported to India in the name of one

M/s Healthy Future Leaders Pvt. Ltd. and was likely to arrive at Delhi Cargo

Complex in the New Delhi Airport.

5. On 18.11.2021 and 19.11.2021, acting on the said intelligence, the

purported consignment was examined by the officers of Respondent No.4 and

80.126 kgs of 24 carat foreign origin gold was recovered from the said

consignment in the form of ‘E’ and ‘I’ shaped plates with a market value of

Rs.39,31,38,219/-.

6. The appellant being a suspect, his shop was checked by DRI

officials and 7 pieces of gold weighing 5.409 KGs with a market value of

Rs.2,64,44,680/-was recovered from his premises.

7. The Respondent authority also conducted searches at four different

places of the abovementioned syndicate and arrested 4 foreign nationals on

grounds of finding incriminating evidence against them.

8. On 20.11.2021, the appellant along with other members of the

syndicate was arrested by the officers of respondent no.4 authority,

2

whereupon they were produced before the Ld. CMM, Patiala House Courts,

New Delhi and were subsequently remanded to judicial custody.

9. The appellant then sought for bail before the learned CMM, and

vide order dated 13.12.2021 he was granted bail.

10. Vide four separate order dated 21.12.2021, all four foreign

nationals accused in the said crime were also granted bail by the Ld. CMM,

and further, vide order dated 21.12.2021, the CMM also granted bail to the

co-accused Neeraj Varshney of Indian Origin.

11. Subsequent to the appellant’s release on bail, DRI filed an

application in the High Court for incorporating an additional condition in the

bail order directing the appellant to appear in the office of DRI every

Monday at 11:00 am, and the same was granted.

12. On 19.01.2022, the DRI sent a proposal to respondent No.2 to issue

an order of detention under the COFEPOSA Act against the appellant, and

subsequently respondent No.2 detaining authority passed the impugned

detention order as against the appellant on 01.02.2022. The appellant was

then arrested on 04.02.2022 by the DRI.

13. On 24.02.2022 a reference was made to the Central Advisory

Board, Delhi High Court, and subsequently, a representation was sent by the

3

appellant to the Respondent No.2 detaining authority on 02.03.2022 which

came to be rejected on 15.03.2022.

14. In the meanwhile, on 10.03.2022, the appellant sent a

representation letter to the Central Government, and subsequently on

04.04.2022, he made another representation to the Advisory Board.

15. The hearing before the Advisory board was concluded on

18.04.2022, and on 09.05.2022, the Central Government, on advice from the

advisory board after a delay of 60 days rejected the representation.

16. The appellant then filed a writ in the High Court seeking to quash

the detention order against him, which came to be dismissed vide impugned

order dated 03.11.2022.

17. This Court subsequently, vide order dated 05.01.2023, released the

appellant from custody as interim relief due to the demise of his father, and

later, due to the expiry of the impugned detention order against the appellant,

he was released from detention.

ARGUMENTS ADVANCED BY THE APPELLANT

18. The Learned Counsel for the appellant contended that:

I.As per Article 22(5) of the Constitution of India, a representation

made by the detenue in cases of preventive detention must be

considered at the earliest, and an inordinate delay in considering

4

the representation is grounds enough for the detention order to be

set aside.

II.While relying on a catena of judgments rendered by this Court, it

was argued that the Central Government is not under any

compulsion to wait for the recommendation of the Advisory

Board and must act independently and without delay in deciding

the representation of the detenue.

III.Further, the Ld. Counsel for the appellant contends that the

decisions of this Court in the case of K.M. Abdulla Kunhi &

B.L. Abdul Khader v. Union Of India & Ors.

1

and Ankit Ashok

Jalan vs Union Of India & Ors.

2

Judgment, both of which are

Constitution Bench judgments, which state that the central

Government must wait for the decision of the Advisory Board,

are in direct contravention with Constitution Bench judgments of

this Court in Pankaj Kumar Chakraborty And Ors. v. State of

West Bengal

3

and the Jayanarayan Sukul v State Of West

Bengal

4

, and due to the apparent conflict, the issue needs to be

referred to a Larger Bench.

IV.It was also contended that the documents supplied to the appellant

herein as grounds for his preventive detention were illegible and

1

(1991) 1 SCC 476

2

(2020) 16 SCC 127

3

(1969) 3 SCC 400

4

(1970) 1 SCC 219

5

in Chinese language, and hence on this ground also the impugned

detention order as against the appellant must be quashed.

ARGUMENTS ADVANCED BY THE RESPONDENTS

19. Learned ASG, Mr. K.M Natraj appearing on behalf of the

respondents contends that:

I. There is no incongruity between the Pankaj case (supra) and

the Ashok Jalan case (supra) as contended by the appellant. The

decisions relied upon by the appellant are in context of the

Preventive Detention Act, whereas, the Ashok Jalan case (supra)

and Adullah Kuni case (supra) are in context of the COFEPOSA

Act, and if the Pankaj case (supra) is seen in the context of

COFEPOSA Act, due to their being a distinction between the

detaining authority and the central Government in the COFEPOSA

Act, there exists no friction between the two Constitutional Bench

judgments.

II.As per the Ashok Jalan Case (supra), due to the detaining

authority and the central Government being independent of each

other under COFEPOSA Act, the mandate to wait for the decision

of the Advisory Board exists on the central Government, and hence

the delay of 60 days is not grounds enough for the detention order to

be quashed.

6

ISSUES

20. In light of the abovementioned arguments raised by the Learned

Counsels for the parties, following three issues arise for our consideration.

I.Whether there exists an incongruity between the Pankaj Kumar

case (supra) and the Abdullah Kunhi Case (supra) , and if such a

friction exists should the point of law be referred to a Larger Bench?

II.If there exists no friction between the two Constitutional judgments

of this Court, can the impugned detention order be quashed on grounds of

the 60-day delay in consideration of the representation made by the

appellant?

III.Whether the illegible documents written in Chinese submitted to

the appellant herein are grounds enough for quashing the impugned

detention order?

ANALYSIS

21. Before we deal with the issues framed, we find it important to note

that preventive detention laws in India are a colonial legacy, and have a great

potential to be abused and misused. Laws that have the ability to confer

arbitrary powers to the state, must in all circumstances, be very critically

examined, and must be used only in the rarest of rare cases. In cases of

preventive detention, where the detenue is held in arrest not for a crime he

7

has committed, but for a potential crime he may commit, the Courts must

always give every benefit of doubt in favour of the detenue, and even the

slightest of errors in procedural compliances must result in favour of the

detenue.

ISSUE 1- Whether there exists an incongruity between the Pankaj Kumar

case and the Abdullah Kunhi Case and if such a friction exists should the

point of law be referred to a Larger Bench?

22. For the purpose of deciding this question, we must first elaborate

on the rights accrued to a detenue against his preventive detention in terms of

his representation. The detenue, in cases of preventive detention under the

COFEPOSA Act, has the right to submit a representation to the detaining

authority, the Government, and the Advisory Board. These representations

then, as per Article 22(5) of the Constitution of India, must be decided at the

earliest opportunity possible. If the representation is accepted either by the

Government or the detaining officer, the detenue is released, however, if the

representation is rejected, then the detention period is continued.

23. In the case at hand, the appellant herein, who is under preventive

detention, submitted a representation to the Central Government, the

detaining authority and the Advisory Board. It is the case of the appellant that

while the detaining authority considered the representation of the appellant

8

authority in an expeditious manner, however, the Government took 60 days to

consider the same. This delay of 60 days, as per the appellant, is fatal to the

case of the prosecution, and constitutes sufficient grounds for quashing the

impugned detention order.

24. The Government, however, claims that the delay of 60 days is

completely fair, as the same was caused because the Central Government was

waiting for the advice of the Advisory Board before deciding on the

resolution. In light of this conflict, the overarching issue that needs to be

answered is whether the central Government is bound to wait for the decision

of the Advisory Board before coming to its decision or not. To answer this,

we must look at the relevant case laws that define the rights and duties of the

Government, the detaining authority and the detenue in such circumstance.

25. In the Pankaj Kumar case (Supra), the petitioners therein filed a

writ petition in the Supreme Court seeking for a quashing of a detention order

passed against them under the Preventive Detention Act,1950, on grounds

that the Government failed to consider the representation made by them and

merely passed it on to the Advisory Board. After careful consideration, a

Constitution Bench of this Court held that the Government must act

Independently from the Advisory Board, and that there exists no mandate on

9

the Government to wait for the decision of the Advisory Board. The relevant

paragraphs of the said judgment are being extracted herein:

“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 enabling it to detain

him. The illustrations given in Abdul Karim case [Abdul

Karim v. State of W.B., (1969) 1 SCC 433] 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

10

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 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.

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

11

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 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 the counsel for the

State. Under that section the State Government and the Central

Government are empowered to revoke or modify an order of

detention. 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.

For the reasons aforesaid we are in agreement with the

decision in Abdul Karim case [Abdul Karim v. State of W.B.,

(1969) 1 SCC 433] . 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.”

12

26. Further, in the Jayanarayan Sukul Case (Supra), the same issue

was considered by another Constitution Bench of this Court, wherein it went

on to reiterate the principles in the Pankaj Kumar Case (Supra), and held

that the central Government must act independently of the Advisory Board,

and can decide the representation made by the detenue without hearing from

the Advisory Board. For the purpose of convenience, the relevant paragraph

of the said judgment is being reproduced herein:

“In the present case, the State of West Bengal is guilty 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.”

27. In the Harardhan Saha Case (Supra), yet another Constitution

Bench of this Court considered the distinction between the consideration of

the representation made by the detenue in cases of preventive detention, and

it was stated that if the representation was made before the matter is referred

to the Advisory Board, the detaining authority must consider such

representation, but if the representation is made after the matter is referred to

the Advisory Board, the detaining authority would first consider it and then

13

send it to the Advisory Board. The relevant paragraph from the said judgment

is being reproduced hereunder:

“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 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.

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.”

28. Subsequently, in the case of Francis Coralie Mullin v. W.C.

Khambra & Ors.

5

, a Division Bench of this Court considered the principles

5 (1980) 2 SCC 275

14

laid down in the judgment of Jayanarayan Sukul (Supra), and while it

agreed with the principles of the above mentioned case, it however made an

observation stating that when it was said that the Government must decide on

the representation before forwarding it to the advisory board, the emphasis

was not on time, but on the onus of the Government to decide the

representation Independently. This essentially meant that the Government

must act independently of the Advisory Board, the relevant paragraphs from

the said judgment are being extracted herein:

“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. [Jayanarayan Sukul v. State of W.B.,

(1970) 1 SCC 219 : 1970 SCC (Cri) 92] 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

15

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 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.

We have already expressed our agreement with the four

principles enunciated in Jayanarayan Sukul v. State of

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

219 : 1970 SCC (Cri) 92] 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.”

29. However, in the case of Abdulla Kunhi (Supra), where the

preventive detention of the petitioner therein under the COFEPOSA Act was

challenged on the same disputed ground, a Constitutional Bench of this

16

Court, while considering both the issues of when the representation is

submitted before the matter is referred to the Advisory Board and after the

mater has been referred to the advisory board, for both the circumstances, had

held that the Government must wait for the decision of the Advisory Board

before making its decision on the representation. The relevant paragraph of

the abovementioned judgment is being extracted hereunder:

“We agree with the observations in Frances Coralie Mullin

case [(1980) 2 SCC 275 : 1980 SCC (Cri) 419] . 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 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

17

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.”

30. While at a first glance, it may seem like there is friction between

the two sets of judgments, however, a deeper inspection would prove

otherwise. To understand the two sets of judgments, we must first look at the

relevant provisions under which these judgments were passed.

31. The Pankaj Kumar Case (Supra) judgment was passed in the

context of the Preventive Detention Act, 1960, and the Abdullah Kunhi Case

(Supra) was passed in the context of the COFEPOSA Act. Section 3 of the

two acts providing for preventive detention, for a ready reference, are being

reproduced hereunder in a table chart:

COFEPOSA ACT, 1974 PREVENTIVE DETENTION

ACT, 1950

Section 3. Power to make orders

detaining certain persons.

(1) 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

the State Government, not below the

rank of a Secretary to that

Government, specially empowered

Section 3. Power to Make Orders

Detaining Certain Persons.

(1) The Central Government or the

State Government may-

(a) if satisfied with respect to any

person that with a view to preventing

him from acting in any manner

prejudicial to-

(i) the defence of India, the relations

of India with foreign persons, or the

security of India, or

18

for the purposes of this section by

that Government, may, if satisfied,

with respect to any person (including

a foreigner), that, 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—

(i) smuggling goods, or

(ii) abetting the smuggling of goods,

or

(iii) engaging in transporting or

concealing or keeping smuggled

goods, or

(iv) dealing in smuggled goods

otherwise than by engaging in

transporting or concealing or keeping

smuggled goods, or

(v) harbouring persons engaged in

smuggling goods or in abetting the

smuggling of goods, it is necessary

so to do, make an order directing that

such person be detained:

2

[Provided

that no order of detention shall be

made on any of the grounds specified

in this sub-section on which an order

of detention may be made under

section 3 of the Prevention of Illicit

Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988

or under section 3 of the Jammu and

Kashmir Prevention of Illicit Traffic

in Narcotic Drugs and Psychotropic

Substances Ordinance, 1988 (J&K

Ordinance 1 of 1988).]

(2) When any order of detention is

made by a State Government or by

an officer empowered by a State

Government, the State Government

shall, within ten days, forward to the

Central Government a report in

respect of the order.

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

(ii) the security of the State or the

maintenance of public order, or

(iii) the maintenance of supplies and

services essential to the community;

or

(b) if satisfied with respect to any

person who is a foreigner within the

meaning of the Foreigners Act,

1946-(31 of 1946), that with a view

to regulating his continued presence

in India or with a view to making

arrangements for his expulsion from

India it is necessary so to do, make

an order directing that such person

be detained.

(2) Any of the following officers,

namely :

(a) District Magistrates,

(b) Additional District Magistrates

specially empowered in this behalf

by the State Government,

(c) the Commissioner of Police for

Bombay, Calcutta, Madras or

Hyderabad,

(d) Collectors in the territories which

immediately before the 1st

November, 1956, were comprised in

the State of Hyderabad, may if

satisfied as provided in sub-clauses

(ii) and (iii) of Cl. (a) of subsection

(1), exercise the power conferred by

the said subsection.

(3) When any order is made under

this section by any officer mentioned

in sub-section (2) he shall forthwith

report the fact to the State

Government to which he is

subordinate together with the

grounds on which the order has been

made and such other particulars as in

his opinion have a bearing on the

matter, and no such order made after

19

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

the commencement of Preventive

Detention (Second Amendment) Act,

1952 (61 of 1952), 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.

(4) When any order is made or

approved by the State Government

under this section, the State

Government shall, as soon as may

be, report the fact to the Central

Government together with the

grounds on which the order has been

made and such other particulars as in

the opinion of the State Government

has a bearing on the necessity for the

order.

32. As can be seen from the provisions of the abovementioned Acts,

the detention order under both laws can be passed either by the Government,

or by the specially empowered officer. However, under Section 3 of the

Preventive Detention Act, the specially empowered officer, within 12 days of

the detention, has to seek for an approval from the Government for continued

detention, and only if the Government approves the same can the detention be

continued. This process of seeking an approval from the Government is

essentially a transfer of power from the empowered officer to the

Government, making the Government the detaining authority after the initial

lapse of 12 days. In the COFEPOSA Act however, no such approval is

required from the Government, and hence the detaining authority and the

20

Government remain to be two separate bodies independent of each other. This

difference between the COFEPOSA Act and the other preventive detention

laws has been upheld by this Court in the case of Kamlesh Kumar Ishwardas

Patel vs Union Of India & Ors.

6

, the relevant extract of the abovesaid

judgment is being reproduced hereunder:

“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.”

33. If we read the Pankaj Kumar judgment (Supra) in light of this

distinction between the specially empowered officer and the Government in

the COFEPOSA Act, we find that there exists no friction between the Pankaj

Kumar Judgment (Supra) and the Abdullah Kunhi Judgement (Supra),

since the Pankaj Kumar Judgement, while mandating the central Government

to not wait for the decision of the Advisory Board, only does so because the

central Government is the detaining officer in the Preventive Detention Act.

In simpler terms, this would mean that the mandate to not wait for the

decision of the Advisory Board is effectively not for the central Government,

but only for the detaining officer.

6 (1995) 4 SCC 51

21

34. In the COFEPOSA Act, since the detaining authority is separate

from the Government, both, the Pankaj Kumar Judgment (supra) and the

Abdullah Kunhi Judgment (supra) would apply, but in different spheres.

The Pankaj Kumar Judgment (supra), since it was rendered in the context of

the Government being the detaining authority, would be applicable only to

the detaining authority/specially empowered officer under the COFEPOSA

Act. The Abdullah Kunhi Judgment (supra) however, since it was rendered

in the context of the COFEPOSA Act, the mandate thereunder would squarely

apply only to the Government, and not the detaining authority. In simpler

terms, this would mean that the mandate to not wait for the Advisory Board

would be applicable only to the detaining authority. The Government,

however, as per the Abdullah Kunhi Case (supra), must wait for the decision

of the Advisory Board. Since these two judgments exist symbiotically and

apply to two separate authorities within the COFEPOSA Act, there exists no

friction between the judgments, and hence there is no necessity for this point

of law to be referred to a Larger Bench since the same is already settled. This

application of both the judgments in two separate spheres within the same act

has been clarified in the Ashok Jalan Judgment (supra), the relevant extract

from the said judgment is being extracted hereunder:

“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 para 16

22

in K.M. Abdulla Kunhi [K.M. Abdulla Kunhi v. Union of India,

(1991) 1 SCC 476 : 1991 SCC (Cri) 613] 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 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 para 16 of K.M. Abdulla Kunhi [K.M.

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

(Cri) 613] .”

35. In light of the abovementioned discussions, it can be clearly seen

that any apparent conflict, as contended by the appellant, stands resolved, and

both sets of judgments operate symbiotically and harmoniously within the

said Act, without there existing any tension between them. The mandate to

wait for the decision of the Advisory Board, as per the Pankaj Kumar

Judgment(Supra), would apply to the central Government, however, the

detaining authority, being independent of the Government, can pass its

decision without the decision of he Advisory Board. Since no conflict exists,

the need to refer the point of law to a Larger Bench also ceases, and hence we

hold issue No.1 in favour of the Respondents.

ISSUE II- If there exists no friction between the two Constitutional

judgments of this Court, can the impugned detention order be quashed on

23

grounds of the 60-day delay in consideration of the representation made by

the appellant?

36. In the present case at hand, the appellant-detenue, availing his

rights sent a representation to both, the specially empowered officer and the

Government. The detaining authority in the present case decided on the

representation expeditiously and without waiting for the decision of the

Advisory Board, and hence, did not violate the Pankaj Kumar Judgment

(supra) .

37. The Government in the present case at hand, did decide to wait for

the decision of the Advisory Board. This was also done in accordance with

the decision of the Abdullah Kunhi case (supra), since the Government,

being a separate authority, is bound to wait for the decision of the Advisory

Board.

38. In light of the abovementioned discussions, it can be seen that both,

the detaining authority, and the Government, have worked precisely within

the procedure established by law, and hence the impugned detention order is

not liable to be struck down on this ground. We therefore hold Issue II in

favour of the respondent.

24

ISSUE III- Whether the illegible documents written in Chinese submitted to

the appellant herein are grounds enough for quashing the impugned

detention order?

39. In cases where illegible documents have been supplied to the

detenue, a grave prejudice is caused to the detenue in availing his right to

send a representation to the relevant authorities, because the detenue, while

submitting his representation, does not have clarity on the grounds of his or

her detention. In such a circumstance, the relief under Article 22(5) of the

Constitution of India and the relevant statutory provisions allowing for

submitting a representation are vitiated, since no man can defend himself

against an unknown threat.

40. In the case of Harikisan v. The State Of Maharashtra & Ors.

7

,

this Court held that in cases of preventive detention, as per the principles

enshrined under Article 22(5) of the Constitution Of India, the detaining

authority must explain the grounds of detention to the detenue, and must

provide the material in support of the same and in the language understood by

the detenue. The relevant Paragraph of the said judgment is being reproduced

herein:

“…The grounds in support of the order served on the appellant

ran into fourteen typed pages and referred to his activities over a

period of thirteen years, beside referring to a large number of

Court proceedings concerning him and other persons who were

7 (1962) Supp. 2 SCR 918

25

alleged to be his associates. Mere oral explanation of a

complicated order of the nature made against the appellant

without supplying him the translation in script and language

which he understood would, in our judgment, amount to denial of

the right of being communicated the grounds and of being

afforded the opportunity of making a representation against the

order…”

41. It has been brought to our notice that a co-detenue, one Mr. Neeraj

Varshney has already been granted relief, and his detention order has been

quashed by the High Court on grounds of illegible Chinese documents

supplied to him as his grounds for detention. It is important to note that the

circumstances of the appellant herein, as far as the present detention is

concerned, is identical to the case of the co-detenue who’s detention order

was quashed.

42. At the sake of repetition, we find it important to state that in cases

of preventive detention, every procedural irregularity, keeping in mind the

principles of Article 21 and Article 22(5) of the Constitution of India, must be

accrued in favour of the detenue. In the present case at hand, the appellant

detenue herein has been supplied with illegible documents in a foreign

language. It is also important to note that these are the very same documents

that the authorities have relied upon to detain the appellant herein.

26

43. Further, the principle of parity is squarely applicable in this case,

since another co-detenue with identical circumstances, has already been

granted the relief of quashing the detention order against him. In the case of

Gian Chand v. Union Of India & Anr.

8

, this Court while deciding on a

quashing of a detention order, categorically held that in cases where a

similarly placed co-detenue has already been granted the relief of a quashing

of the detention order, the principle of parity must apply, and the same relief

should be extended to other similarly placed detenues. In light of the

abovementioned discussion, we hold Issue III in favour of the appellant.

CONCLUSION

44. As has been mentioned above, preventive detention laws in India

are a colonial legacy, and as such, are extremely powerful laws that have the

ability to confer arbitrary power to the state. In such a circumstance, where

there is a possibility of an unfettered discretion of power by the Government,

this Court must analyze cases arising from such laws with extreme caution

and excruciating detail, to ensure that there are checks and balances on the

power of the Government. Every procedural rigidity, must be followed in

entirety by the Government in cases of preventive detention, and every lapse

in procedure must give rise to a benefit to the case of the detenue. The

Courts, in circumstances of preventive detention, are conferred with the duty

that has been given the utmost importance by the Constitution, which is the

8 (Crl.) 39 of 2011

27

protection of individual and civil liberties. This act of protecting civil

liberties, is not just the saving of rights of individuals in person and the

society at large, but is also an act of preserving our Constitutional ethos,

which is a product of a series of struggles against the arbitrary power of the

British state.

45. In light of the abovementioned discussion, while the appellant has

already been released on grounds of expiry of the detention period, for the

sake of clarity on the point of law, we hold that the impugned detention order

is liable to be set aside, and the present appeal is accordingly allowed.

…...…...…....….......................…,J.

(KRISHNA MURARI)

……...….…....….......................…,J.

(V. RAMASUBRAMANIAN)

NEW DELHI;

10

TH

APRIL, 2023

28