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CASE NO.:

Appeal (crl.) 954 of 1997

PETITIONER:

Union of India & Anr.

RESPONDENT:

Sneha Khemka & Anr.

DATE OF JUDGMENT: 23/01/2004

BENCH:

Doraiswamy Raju & S.B. Sinha.

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

Whether representation made by the detenu or on his

behalf is required to be considered by all the authorities

is the sole question involved in this appeal which arises

out of a judgment and order dated 19.12.1995 passed by a

Division Bench of the Calcutta High Court in Criminal

Miscellaneous Case No.5039 of 1995.

The husband of the first respondent herein was arrested

on 17.6.1995 on the charge of having grossly undervalued

imported Floppy Disk Drives whereby customs duty to the

extent of Rs.21.53 lakhs was evaded. During investigation

of the said case, the detenu made a confessional statement

before the Customs Officer but on being produced before the

Chief Metropolitan Magistrate, Calcutta, he retracted

therefrom. He was granted bail in the aforementioned case.

The first respondent herein thereafter filed a writ

application before the Calcutta High Court for quashing the

statement allegedly obtained from her husband by the Customs

Officer.

He was thereafter detained under Section 3(1) of the

Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, (hereinafter referred to as 'the COFEPOSA',

for the sake of brevity). The said order of detention was

served on him on 28.8.1995.

The detenu, made three representations \026 firstly, on

4.9.1995 before the Joint Secretary, COFEPOSA which was

rejected on 21.9.1995; the second on 11/12.9.1995 addressed

to Shri K.L. Verma, Joint Secretary to the Government of

India which upon obtaining the comments of the Sponsoring

Authority was rejected on 9.10.1995; and the third on

14.9.1995, addressed to the Secretary to the Government of

India which was rejected by the Finance Minister on

16.10.1995.

Questioning the validity or otherwise of the said order

of detention, the wife of the detenu, the first respondent

herein, filed a Criminal Miscellaneous Case before the

Calcutta High Court which was marked as Criminal

Miscellaneous Case No. 5039 of 1995, inter alia, praying

for :

"(a) a writ of and/or order and/or

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direction in the nature of Habeas Corpus

calling upon the petitioners and each

one of them to forthwith set the detenu

at liberty;

(b) a writ of and/or order and/or

direction in the nature of Mandamus

commanding the petitioners and each one

of them to show cause as to why the

order of detention being No. F.

No.673/89/95-CUS.VIII dated 22.8.95

passed by the petitioner No.2 be not

quashed and/or set aside.

(c) a writ or and/or order and/or

direction in the nature of certiorary

commanding the petitioners, their

servants, agents and associates and each

one of them to transmit the records

relating to the issuance of the order of

detention being No.F.

No.673/89/95/Cus.VIII dated 22.8.1995 to

the Hon'ble High Court so that the same

may be quashed and/or set aside and a

conscionable justice done;

(d) a writ of and/or order and/or

direction in the nature of prohibition

prohibiting or restraining the

petitioners each one of their agents,

servants and associates to forbear from

giving any effect of further effect to

the order of detention being

No.F.No.673/89/95-Cus.VIII dated

22.8.1995."

A Division Bench of the High Court in the impugned

judgment observed that the first representation made by the

Joint Secretary, who is the detaining authority, was not

placed before the Central Government and was not considered

by it at all. As regard, the second representation also, the

High Court made an observation that the same had not been

independently considered by the Central Government

irrespective of the stand taken by the Joint Secretary to

the Government of India. So far as the third representation

is concerned, it was observed that there was no clear

indication in the relevant file that the said representation

was considered by the detaining authority independently.

Relying on or on the basis of three decisions of this Court

in KamleshKumar Ishwardas Patel etc. vs. Union of India and

Others etc. [(1995) 4 SCC 51], Kubic Darusz vs. Union of

India and Others [(1990) 1 SCC 568] and Smt. Gracy vs. State

of Kerala and Another [(1991) 2 SCC 1], the High Court

allowed the writ petition holding that :

"...The proposition of law has been

well established that all the

representations as made to either of the

three Authorities namely, the Detaining

Authority, the Central Government and

the Advisory Board have to be considered

by all the three Authorities

independently of each other and unless

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there be separate consideration of each

one, there will be no sufficient

compliance of law in so far as the

provision under Article 22(5) of the

Constitution of India is concerned. In

this view of the matter we are

constrained to hold in the facts and

circumstances of the present case that

the order of detention has been rendered

otiose in view of the non-consideration

of all the representations by all the

three Authorities on account of which

the detenu is liable to be released from

detention..."

Mr. P.P. Malhotra, learned senior counsel appearing on

behalf of the appellant, would submit that the High Court

went wrong in taking the aforementioned view inasmuch

representations made by or on behalf of the detenu in terms

of the provisions of the COFEPOSA are required to be

considered by the concerned authorities independently.

The learned counsel would urge that the first two

representations being made to the Joint Secretary who was

the detaining authority, the same were required to be

considered by him and not by the Central Government.

Similarly, the third representation having been made to the

Central Government, it was for it to consider the same

independent of the representations made by the detenu before

the detaining authority.

Mr. Ganguli, learned senior counsel appearing on behalf

of the respondent, per contra, would submit that different

representations may contain different grounds and in that

view of the matter unless the Central Government or for that

matter, the detaining authority is possessed of the

representation(s) made before other authorities, effective

disposal thereof would not be possible. The learned counsel

would contend that the High Court having rendered its

judgment in terms of the binding precedent of this Court in

Kamleshkumar Ishwardas Patel (supra), the same should not be

interfered with. In any event, Mr. Ganguli would submit

that as several other contentions were raised by the

respondent before the High Court, having regard to the fact

that the period of detention is long over, this Court may

not exercise its jurisdiction under Article 136 of the

Constitution of India.

An order of detention under the COFEPOSA can be

passed: (1) by an authority specially empowered by the

Central Government; (2) by the State Government; (3) by the

Central Government.

The detenu on being served with the order of detention

having regard to the constitutional protection contained in

clause (5) of Article 22 of the Constitution of India is

entitled to be afforded an earliest opportunity of making a

representation there-against. Clause (5) of Article 22 of

the Constitution of India obligates the authority making the

order of preventive detention : (1) to communicate to the

detenu the grounds on which the order of detention has been

made; (2) to afford the detenu the earliest opportunity of

making a representation against the order of detention.

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A right to make a representation is, therefore, a facet

of fundamental right. Article 22(5) of the Constitution

does not state as to before whom such representation is to

be made, and provisions therefor are laid down in the

statute under which the detenu has been detained. It is now

well-settled that the object and purpose of the

representation is to enable the detenu to obtain relief at

the earliest opportunity wherefor, he may make

representation before such authority which can revoke the

same by setting him at liberty. The cleavage in opinion of

this Court as to whether the detaining authority can pass an

order revoking the order of detention came up for

consideration before a Constitution Bench of this Court in

Kamleshkumar Ishwardas Patel (supra) wherein this Court in

no uncertain terms held that the revoking authority has the

requisite jurisdiction to revoke an order of detention.

Upon service of the order of detention on the detenu, the

detaining authority or the State Government is obligated to

forward to the Central Government a report thereabout;

whereafter the latter is entitled to consider at its

earliest opportunity, the validity or otherwise thereof so

as to enable it to intervene in appropriate cases by

exercising its power of revocation. Furthermore, the

representation of the detenu, if any, at a later stage is

required to be considered by the Central Government in

terms of Section 11 of the Act which read thus :

"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 \026

(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.

(2) The revocation of a detention

order shall not bar the making of

another detention order under section 3

against the same person."

A bare perusal of Section 11 of the Act would clearly

shows that the authority vested in the Central Government

or the State Government to revoke an order of detention is

without prejudice to the provisions contained in Section 21

of the General Clauses Act, 1897. In terms of Section 21 of

the General Clauses Act, an authority who passes an order

has the jurisdiction can revoke the same.

The power of the State Government or the Central

Government, therefore, is in addition to the power of the

detaining authority to revoke an order of detention. A

detenu in law, therefore, is entitled to make different

representations before different authorities at different

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times in terms of statutory as also constitutional schemes.

Each authority, concededly, is required to apply its

mind on the materials placed on records and pass an order

either rejecting or allowing the said representation. A

representation of the detenu having regard to clause (5) of

Article 22 of the Constitution of India must also be

disposed of within a reasonable time.

It is equally well-settled that the constitutional

right to make a representation includes the right to obtain

proper consideration thereof by the authority to whom it is

made.

Would that mean, as has been held by the High Court,

that a representation made before one authority must also be

considered by other authorities? The answer to the said

question must be rendered in the negative. If it is to be

assumed that the three different authorities before whom the

representations are made are required to obtain copies of

the representations made to the others; before a

representation is considered, the concerned authority will

have to make an enquiry from the authorities as to whether

a representation had been made to it and if the answer

thereof is in the affirmative, to obtain a copy thereof.

Once such a enquiry is made and eventually if in the

meanwhile an order on such representation has been passed by

the concerned authority, the same would also be required to

be obtained. Apart from the fact that such procedure is not

contemplated, a great delay would ensue thereby which would

run counter to the constitutional schemes, as the detenu has

a fundamental right to have the same considered and obtain

an order on his representation by the appropriate authority

at the earliest opportunity.

Keeping in view the aforementioned principles, we may

examine the decisions relied upon by the High Court.

In Kubic Darusz (supra), the question which arose was

as to whether the grounds of detention are required to be

supplied to the detenu in the language understood by him so

as to enable him to make an effective representation and

that the representation submitted by him was required to be

considered, acted upon or replied by all the authorities.

This Court observed that indisputably, the representation

may be made by the detenu to the appropriate Government and

it is the appropriate Governent that has to consider the

representation within a reasonable time holding :

"...Even if the Advisory Board had made

a report upholding the detention the

appropriate Government is not bound by

such opinion and it may still, on

considering the representation of the

detenu 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; as in that case

there was nothing to show that the

Government considered the representation

before making the order confirming the

detention. The Constitutional obligation

under Article 22(5) was not complied

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with. In the instant case there was no

consideration before and even after the

Advisory Board considered the case of

the detenu. It can not therefore, be

said that the representation was

disposed of in accordance with law."

In Smt. Gracy (supra), the detenu's case was referred

to the Central Advisory Board by the Central Government and

during the pendency of the reference before it, a

representation was made to the Advisory Board. The Advisory

Board considered the reference relating to the detenu made

by the Central Government and also the detenu's

representation submitted to it and opined that there was

sufficient cause to justify his preventive detention. The

order of Central Government confirming his detention was

passed thereafter. This Court, in the fact situation

obtaining therein, held that the detenu has a dual right to

get his representation disposed of by the Advisory Board and

the detaining authority independently stating :

"...The contents of Article 22(5) as

well as the nature of duty imposed

thereby on the detaining authority

support the view that so long as there

is a representation made by the detenu

against the order of detention, the

aforesaid dual obligation under Article

22(5) arises irrespective of the fact

whether the representation is addressed

to the detaining authority or to the

Advisory Board or to both. The mode of

address is only a matter of form which

cannot whittle down the requirement of

the constitutional mandate in Article

22(5) enacted as one of the safeguards

provided to the detenu in case of

preventive detention."

The Constitution Bench of this Court in Kamleshkumar

Ishwardas Patel (supra) was dealing with a situation where

the Joint Secretary to the Government of India, Ministry of

Finance, who was the specially empowered officer to make an

order of detention under Section 3 of the COFEPOSA Act,

forwarded the representation made to him by the Central

Government which was eventually rejected by the latter.

Agrawal, J. speaking for the Bench noticed the provisions of

Sections 3 and 11 of the COFEPOSA Act as also Section 21 of

the General Clauses Act and upon considering a large number

of decisions answered the question thus :

"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

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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 authorized 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 reprsentation."

In that case, inter alia, the following question had

arisen for consideration before the Full Bench of the High

Court

"(3) Does failure to take independent

decision on revocation of order

of detention by the specially

empowered officer under the

COFEPOSA Act and merely

forwarding the same with

recommendation to reject, result

in non-compliance with

constitutional safeguard under

Article 22(5) of the

Constitution ?

Referring to Sat Pal vs. State of Punjab and Others

[(1982) 1 SCC 12], Raj Kishore Prasad vs. State of Bihar

[(1982) 3 SCC 10] as also the decision in Santosh Anand vs.

Union of India [(1981) 2 SCC 420], it was held :

"...Having found that the

representation of the person detained

was not considered by the officer making

the order of detention the High Court

was in error in holding that the said

failure on the part of the detaining

authority to consider and decide the

representation is not fatal to the order

of detention. We are, therefore, unable

to uphold the answer given by the Full

Bench to Question No.3 and, in our view,

the said question should be answered in

the affirmative. On that basis it has

to be held that since there was a denial

of the constitutional safeguard provided

to the detenu under Article 22(5) of the

Constitution on account of the failure

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on the part of the officer who had made

the order of detention to independently

consider the representation submitted by

the detenu against his detention and to

take a decision on the said

representation the further detention of

the detenu Ishwardas Bechardas Patel is

rendered illegal..."

The decisions of this Court whereupon reliance has been

placed by the High Court, therefore, nowhere state that copy

of the representation made by the detenu to one authority

must be placed before all the authorities and all such

authorities also should consider and pass orders on those

representations, though really not made to any one of them.

The impugned judgment and order, therefore, cannot be

sustained, which is set aside accordingly.

However, ordinarily we would have remitted the matter

back to the High Court for consideration on other questions

raised in the writ petition by the respondent herein but as

the period of detention has long expired, we do not intend

to do so. We, therefore, do not wish to express any

opinion on the validity or otherwise of the order of

detention.

This appeal is disposed of with the aforementioned

observations. No costs.