Holding

The Central Government is not constitutionally required to have translated copies of all documents; it can validly consider a representation under Section 11 of COFEPOSA without them, provided it applies its mind to the material.

Summary

The petitioners challenged the preventive detention of the husband of A.C. Razia under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detention order relied on statements and retractions recorded in Malayalam, but the Central Government, which considered the detenu’s representation under Section 11 of COFEPOSA, did not have English translations of those documents. The petitioners argued that this breach of Article 22(5) of the Constitution rendered the consideration of the representation invalid. The majority held that there is no constitutional requirement for the Central Government to possess translated copies of all documents when exercising its supervisory power under Section 11; the authority must merely apply its mind to the material and may decide without the translations if the detention order itself is sufficiently detailed. Consequently, the Court dismissed the special leave petition and the writ petition, upholding the detention order. The dissent argued that the lack of translations violated the detainee’s right to a fair consideration.

Issues considered

The adequacy of the Central Government’s consideration of a detenu’s representation under Section 11 of COFEPOSA when the supporting documents are in a language not understood by the officials.
Whether the absence of English translations of Malayalam documents violates Article 22(5) of the Constitution.
Whether Section 11 of COFEPOSA is a statutory embodiment of the constitutional guarantee under Article 22(5).

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 11, s. 14, s. 3, s. 8
Customs Act, 1962s. 108
General Clauses Act, 1897s. 21

Subjects

preventive detentionCOFEPOSAArticle 22(5)representationtranslation of documentsSection 11constitutional lawadministrative law

Judgment

A.C. RAZIA A
v.
GOVERNMENT OF KERALA AND ORS.

JANUARY 12, 2004

[V.N. KHARE, C.J., P. VENKATARAMA REDD! AND S.B. SINHA, JJ.] B

Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act. 1974-Section I I-Detention-Representation of detenu-
Consideration of-Power of Central Government-Extent of-Translated copy C
of Malayalam documents not supplied to the Central Government-Effect of-
Held (per majority). depends upon facts of each case-Translated contents of
documents extracted in detention order-Held. consideration of representation
of detenu not vitiated-Constitution of India-Articles 22(4) and (5).

One 'A' was intercepted and found possessing foreign currencies. In D
his statement under Section 108 of the Customs Act, 1962, 'A' stated that
the currencies were entrusted to him by the husband of the petitioner.
Accordingly, statement of husband of the petitioner was also recorded
under Section 108 of the Customs Act, 1962 in which he confessed the
offence. All statements recorded were in Malayalam. Both 'A' and the
husband of the petitioner subsequently retracted from their confessions. E
The documents whereby confessional statements were retracted were also
in Malayalam.

The State Government passed an order of detention of the husband
of the petitioner. The detention order elaborately referred to the contents
of the relevant documents including the statements recorded under Section F
108 of the Customs Act and retraction thereof.

The dentenu made representations in Malayalam to the State
Government and Central Government. The State Governinent as well as
the Central Government rejected the representation filed on behalf of the
detenu. The Advisory Board also confirmed the detention order. G
Thereafter, writ petition was filed challenging the order of detention, which
was dismissed by the High Court.

The wife of the detenu filed a special leave petition as well as writ
petition before this court. The petitioner contended that many of the
437 H
438 SUPREME COURT REPORTS (2004] I S.C.R.

A documents were in Malayalam and no translation thereof was provided >- \
to the officials of the Central Government who considered the
representation of the detenu. As the officials were not acquainted with
Malayalam language, they could not have applied their minds to the
relevant Malayalam documents and therefore, disposal of representation
was not made in accordance with law. The matter was before a two Judge
B Bench of this Court and in view of their different opinions, came to be
referred to the present 3 Judge Bench.

Dismissing the special leave petition and the writ petition by a
majority, the Court

c HELD: Per Reddi, J. (for himself and Khare, C. J.)

I. I. The law of preventive det~ntion is a drastic law as it authorises
detention without trial in a Court of law and is an encroachment on the
liberty of an individual which is cherished freedom under the Constitution
D of India. At the same time, the need for such law in larger public or
national interest has been recognised by the Constitution. In order to
mitigate tht! rigour of the law, certain minimum safeguards have been
provided in the Constitution in order to ensure that there is no unjustified
detention and the detention should not continue unnecessarily. The
preventive detention laws such as COFEPOSA apart from ensuring the
E minimum safeguards expressly man.dated by the Constitution, have
supplemented to these safeguards especially by making provisions enabling
scrutiny and review of detention order by more than one authority on the
representation of the detenu or otherwise. By judicial interpretation, some
more ancillary safeguards to effectuate the constitutional guarantees
F flowing from Articles 21 and 22 of the Constitution of India have been
carved out. (477-D-E( "· 1

1.2. The combined effect of the constitutional and statutory
provisions from the point of view of the detenu's right to make the
representation is to provide more than one forum to re-examine or review
G the case of the detenu and to afford him various means of redressal of his
grievance. (449-A(

Kamlesh Kumar fshwardas Patel etc. etc. v. Union of India and Ors. ;~
(1995( 4 SCC 51; Sk. Abdul Karim and Ors. v. State of West Bengal, (1969(
I SCC 433; Pankaj Kumar Chakrabarty v. State of W.B., (1969( 3 SCC 400;
H Amir Shad Khan v. L. Hming/iana and Ors., 11991 ( 4 SCC 39 and Razia Umar
A.C. RAZIA v.GOVERNMENTOF KERALA 439
) ~ Bakshi (Smt.) v. Union of India and Ors., 11980] Supp SCC 195, referred A
to.

1.3. The additional remedy or safeguards provided by Section 11
of COFEPOSA has been projected into the fabric of Article 22 (5) of the
Constitution of India so as to be absorbed into the ambit of safeguard
provided by the latter part of Article 22 (5) of the Constitution of India. B
A provision like Section 11 of COFEPOSA may or may not be necessary
to giyf! effect to that safeguard, but, once a provision like Section 11 finds
its place in the detention law, the detenu's constitutional right to make
representation gets amplified. His right extends to making representations
to all those authorities who can grant him relief and the opportunity C
afforded to the detenu to submit such representations thus becomes a part
of the guaranteed right under Article 22 (5) of the Constitution of India.
1452-C-DI

2.1. The Government in exercise of power under Section 11 of
CO FE POSA does not consider the question of sufficiency or adequacy of ['
the grounds but it would only see whether the detention order is within
the parameters of the power conferred under the statute. In other words,
it will not review the case as if it is an original or appellate authority. That
is why the power under Section 1I of COFEPOSA has been described as
supervisory in nature. 1453-F]
E
Pankaj Kumar Chakrabarty v. State of W.B., 119691 3 SCC 400; KM.
Abdulla Kunhi v. Union of India, 11991 I 1 SCC 476; Sabir Ahmad v. Union
of India, 11980] 3 SCC 295 and Sat Pal v. State of Punjab, 11982] l SCC
12, referred to.

2.2. Obviously this supervisory power cannot be equated to the F
subjective satisfaction of the detaining authority or the power of the
Advisory Board to examine whether there is sufficient material for
detention. The range of consideration by the Advisory Board is thus wider.
1453-GI
G
2.3. The proposition that the powers conferred under Section 11 of
COFEPOSA is supervisory does not however mean that the exercise of
power is purely discretionary or that the process of consideration could
be casual an.d superficial. No doubt, there need not be a speaking order
in disposing of such representation. However, the Government has a duty
to consider the representation in proper perspective in order to see H
440 SUPREME COURT REPORTS [2004] I S.C.R.

A whether the order of detention is in conformity with law. The Government, "'" \
should, quite apart from the points raised in the representation, apply its
mind broadly to the question whether the detention is in accordance with
law. For .instance, if the material relied upon by the detaining authority
does not ex-facie establish a nexus with the preconditions for the exercise
of the power or the conclusions of the detaining authority are found to be
B wholly perverse or the prescribed procedure has not been followed by the
detaining authority, the appropriate Government acting under Section 11
of CO FE POSA has a duty to interfere and revoke the order of detention.
In order to achieve this end, the Central Government must necessarily
have regard to the representation, the report received from the State
c Government, the detention order and the material relied upon in the
detention order or referred to in the representation. The exercise of the
power under Section 11 of COFEPOSA should not be a mere formality
or a farce. Care and vigilance should inform the action of the Government
while discharging its supervisory responsibility. 1453-H; 454-A-DI

D Haradhan Saha v. State of West Bengal and Ors., (1975] 3 SCC 198;
K.M. Abdulla Kunhi v. Union of India, 11991] I SCC 476 and Sk. Abdul Karim
and Ors. v. State of West Bengal, 11969] I SCC 433, referred to.

3.1. The question whether any or all the documents which formed
the basis of the detention order should be before the Central Government
E or not, depends on the facts of each case. There can be no hard and fast
rule that the appropriate Government called upon to take a decision under
Section 11 of COFEPOSA should necessarily have copies of all the
documents relied upon by the detaining authority with the translated
version thereof. The proposition laid down by the Court that the copies
F of the translated documents forming the basis of the detention order should
be furnished to the detenu in order to give effect to the guarantee enshrined )._. t
in Article 22 (5) of the Constitution of India cannot be imported while
dealing with the question in the context of exercise of power of revocation
under Section 11 of COFEPOSA on the basis of representation or
otherwise. The question whether there was due consideration of
G representation has to be judged by general principles of administrative
law. There is no constitutional requirement, express or necessarily implied,
..::-
that the authority considering the representation should have before it all
the documents referred to in the detention order with translated version , 1-
thereof. But, the availability or non-availability of such documents with
H the empowered authority under Section I I, COFEPOSA will only have ,.
A.C. RAZIA v.GOVERNMENT OF KERA LA 441
...I('
bearing on the manner of consideration of representation, which in turn A
depends on the facts of a particular case. The endeavour of the Court in
this regard is only to assess whether there was fair and proper
consideration by the Government by applying its mind to the crucial
aspects warranting its attention. The necessity or otherwise of having
copies of documents should be viewed in that light. The Court has to be
satisfied that there was due application of mind to the crucial aspects.
B
1455-A-GI

M Ahmedkut1y v. Union of India, [19901 2 SCC I and Shalini Soni v.
Union of India, 119801 4 SCC 544, distinguished.

L MS. Ummu Saleema v. State of West Bengal, [1981] 3 SCC 317,
c
referred to.

3.2. The Government should have a clear idea of the nature of
incriminating material against the detenu. If the detention order does not
spell out the details thereof, but only makes a bare reference, the need to
D
~ peruse the crucial documents or statements so as to judge the validity of
detention does arise; otherwise the Central Government will not be
) fulfilling the supervisory re!ponsibility cast on it in the manner expected
of it. [456-B]

3.3 The qu.estion whether there could have been due application of E
mind and proper consideration of representation by the Government in
the absence of crucial documents/translated copies thereof has to be
decided on case to case basis. The approach cannot be abstract and
unrealistic. No inflexible rule of general application can be laid down.
However, if in a given case, the perusal of certain documents becomes
necessary, it is no answer to say that the translation involves delay. It is F
f ._,o(
' trite to say that where there is reasonable explanation for delay, the
detention does not get invalidated. (456-C-D]

4.1. When the detention order itself makes an elaborate reference
to the statements/letters of the concerned persons which were either relied
G
upon or rejected by the detaining authority in the detention order, the
authority exercising the power under Section 11 of CO FE POSA, would,
-\, in no way be handicapped in dealing with the issue in general and the
representation in particular. (456-G]

4.2. Having regard to the factual situation, it cannot be said that H
442 SUPREME COURT REPORTS [2004] I S.C.R.

A the Central Government should necessarily have the translated copies of
the documents referred to and relied upon in. the detention order and that
the absence of such documents has vitiated the consideration of the
representation, nor can it be said that there was no application of mind
on the part of the Central Government for the simple reason that the
B translated copies of the documents were not available before it.
1457-B-CI

Per Sinha, J. (dissenting)

I. I. The consideration of the matter on the basis of a report made
C in terms of Section 3(2) of COFEPOSA and on a representation made by
the detenu or on his behalf, bears fundamental difference. Having regard
to the federal structure of our Constitution, the Central Government
exercises its supervisory power only while considering a report in terms
of Section 3(2) of COFEPOSA although the power of detention is
concurrent. However, while exercising its jurisdiction under Section
D 1 l(l)(b) of COFEPOSA, on a representation of the detenu, having regard
to the fundamental right of detenu under Article 22(5) of the Constitution
of India, the probe must the deeper. Whereas the power of supervision is
(
conferred on the Central Government while passing an order on the basis
>
of a report made under Section 3(2) of COFEPOSA, its function under
Section l l(l)(b) of COFEPOSA while considering a representation is
E wider. The Government is required to determine whether the order of
detention is admissible under law or not. All facts which are relevant for
the purpose of giving relief to the detenu are required to be considered.
In that view of the matter, the quality of an order passed by the Central
Government in terms of Section ll(l)(b) of COFEPOSA cannot be
F different from that of the authority which had passed the order.
1458-D, E, G; 464-H; 465-AI

Kam/esh Kumar lshwardas Pµtel etc. etc. v. Union of India and Ors.,
119951 4 sec 51, referred to.

G 1.2. Section 11 of COFEPOSA confers power upon the statutory
authorities to consider representations for the purpose of grant of relief
and as such there cannot be any justification for placing any limitation
thereupon. It, therefore, must be held that while exercising such a power
the Central Government must have before it the basic, primary and
material documents which are necessary for the purpose of grant of relief
H to the detenu. It may be added that the documents which are not material
A.C. RAZIA v.GOVERNMENT OF KERA LA 443

need not be considered. 1465-H; 466-A, Bl A
Abdul Sathar Ibrahim Manik etc. v. Union of India and Ors., AIR 119911
SC 2261, referred to.

1.3. The contention that the jurisdiction of an authority dealing with
liberty of a citizen and the jurisdiction of an authority in administrative B
matter would be on the same footing may not be correct. Liberty of a
citizen must be protected with deeper consideration than an administrative
order. Any order passed without application of mind will be a nullity.
Thus, the Central Government must be possessed of correct translated
copies of the basic documents at the time of disposal of a representation
under COFEPOSA. 1466-DI C
2. A right of making representation for revocation of the order of
detention in terms of Section 11 of COFEPOSA is a constitutional right
under Article 22(3) of the Constitution of India. 1462-BI

Amir Shad Khan v. l. Hmingliana and Ors., 1199114SCC39; Razia D
Umar Bakshi (Smt.) v. Union of India and Ors., 119801 Supp. SCC 195; Smt.
Gracy v. State of Kera/a and Anr., 1199112 SCC 1; Kamlesh Kumar Ishwardas
Patel etc. etc. v. Union of India and Ors., [19951 4 SCC 51; John Martin v.
State of West Bengal, 119751 3 SCC 836 and Kundanbhai Dulabhai Shaikh
etc., v. Distt. Magistrate, Ahmedabad and Ors. etc., jl 9961 3 SCC 194,
refurredt~ E
3.1. rt is well settled that the documents on the basis whereof the
detaining authority arrived at his subjective satisfaction must be supplied
to the detenu as on the basis thereof opinion has been formed to the effect
that the order of preventive detention is required to be passed against the
detenu. The detaining authority is, thus, required to supply all documents F
as a part of the ground or pari passu with the ground. The detenu, there
cannot be any doubt whatsoever, has a right to demand copies of the
documents which have not been supplied to him. Such documents can be
subdivided into two parts, namely (a) the documents which had been relied
upon by the detaining authority as forming the basis of detention; (b) G
additional documents which may be required by the detenu to show that
order of preventive detention was unwarranted. If the documents so
supplied are in a language which is unknown to the detenu, the correct
translated copies thereof must be made available to him. Even the copies
of the documents supplied must the legible and complete.
1459-G-H; 460-A-BI H
t
444 SUPREME COURT REPORTS [2004] I S.C.R.

A McNabb v. U.S., 318 US 332; Mohinuddin@ Main Master v. District
Magistrate, Beed and Ors., 1198714SCC58 and Sat Pal v. State of Punjab
and Ors., 1198211 SCC 12, referred to.

3.2. The judicial review of a matter dealing with liberty of a citizen
must receive stricter consideration keeping in view the human rights aspect
B in mind. In a matter of this nature only one question is required to be
asked i.e. "whether translated copies of the primary documents were
before the Central Government,;' and ifthe answer is in the negative; the
order of detention must be quashed. The court exercising its power of
judicial review would not embark into any other question nor would it
C itself examine the matter for the purpose of ascertaining as to whether
there has been substantial compliance of constitutional requirements.
1469-A-BI

International Transport Roth GmbH v. Secretat)' of State for the Home
Department, (2002) 3 WLR 344, referred to.
D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 53
of 2004.
(
From the Judgment and Order dated 29.11.2002 of the Kerala High
Court in O.P. No. 21952 of 2002(S ).
E
WITH

W.P. (Crl.) No. 6 of 2003.

B. Kumar, P.P. Malhotra, T.L. V. Iyer, P.K. Manohar, Ms. Pinky Anand,
F B.K. Prasad, Rajeev Sharma and K.R. Sasiprabhu, John Mathew for the
appearing parties. >-. ,
The following Judgments of the Court was delivered by

P. VENKATARAMA REDDI, J. Leave granted in S.L.P.(crl.) No.
G 153 of 2003.

Questioning the detention of the petitioner's husband by name, P. Mohd.
Kutty under the provisions of Conservation of Foreign Exchange and
,
t
Prevention of Smuggling Activities Act (COFEPOSA}, Writ Petition (Crl.)
No.6 of 2003 has been filed by her praying for the issuance of a writ of
H habeas corpus. The detention order was also challenged in the High Court of
A.C. RAZIA v GOVERNMENT OF KERALA [P. VENKATARAMA REDDL J.] 445

~ Kerala by way of a petition filed under Article 226. The Writ Petition was A
dismissed on 29.11.2002. The said judgment has been challenged in the
Special Leave Petition. The Special Leave Petition came up for hearing before
a bench consisting of Rajendra Babu, J. and G.P. Mathur, J. Rajendra Babu,
J. allowed the writ petition by quashing the order of detention. However,
Mathur, J. held that the writ petition and the SLP were liable to be dismissed.
In view of this difference of opinion, the matter has been placed before this
B
three Judge Bench.
"y

On 24.12.2000 the baggage of one Anodiyil Mammu, who was waiting
to take the flight to Dubai, was inspected at Trivandrum International Airport.
He is related to the detenu. On such inspection, foreign currencies were c
found in a brief case and various other articles which he was carrying. Some
of the foreign currency notes were concealed in a cardboard carton. The
foreign currency was seized and the statement of Mr. Mammu was recorded
under Section I 08 of the Customs Act. He stated that the foreign currency
was entrusted to him by P. Mohd. Kutty i.e. the detenu for conveying it to
Dubai and handing it over to one Shafeek for which he was to be paid some D
remuneration. He gave various details as to how and from where he got the
carton and foreign currency. On the same day and the next day, the statements
of Mohd. Kutty, the detenu and various other persons, who were directly or
indirectly involved in this operation, were recorded under Section I 08 of the
Customs Act and they were substantially in conformity with the version of E
A. Mammu. Initially, Mohd. Kutty confessed to his involvement. However,
the statements were retracted later on. Anodiyil Mammu claimed the ownership
... of foreign currency in his representation dated 15.01.2001 and thus retracted
from earlier statement. On the basis of the information together with the
supporting material received from the Directorate of Revenue (Intelligence),
the order of detention was passed by the Government of Kerala (Home F
~ ~ Department) on 19.4.200 I. However, the detenu could only be arrested on
24.6.2002. The detenu was served with the order and grounds of detention
together with the copies of various documents referred to in the grounds. The
representation addressed to the detaining authority was sent by the detenu's
wife on 13.7.2002 and the same was rejected by the State Government. The G
representation addressed to the Central Government was also rejected on
29.7.2002. The case of the detenu was referred to the Advisory Board and on
the basis of the report received, the Government confirmed the detention
order on 6.9.2002. At that stage the writ petition under Article 226 was filed
in the Kerala High Court ch~llenging the detention.
H
446 SUPREME COURT REPORTS (2004] I S.C.R.

A The only point raised in the course of the arguments in the High Court
was that the documents furnished to the detenu were not translated into
Malayalam on account of which he was unable to make proper representation
against his detention. This contention was rejected by the Division Bench of
the High Court, relying on the averm:nts in the counter-affidavit filed by the
B State. The High Court referred to the fact that the documents duly translated
into Malayalam were in fact furnished to the detenu and he acknowledged
the same on 24.6.2002. The High Court also observed that the detenu was
familiar with the English language. The contention, which was rejected by
the High Court, has not been reiterated before this Court. However, the only
contention urged is that the disposal of the representation by the Central
C Government was not proper. As many of the crucial documents were in
Malayalam, the officials of the Central Government who dealt with the case
being unacquainted with Malayalam language, should have called for translated
copies of the documents. The authorities of Central Government would not
have, therefore, perused the relevant documents and in this sense there was
no proper application of mind. It is submitted that the improper disposal of
D the representation has vitiated the detention and the continued detention is
violative of Articles 21 and 22 of the Constitution.
(
Rajenclra Babu, 1. was of the view that for a proper consideration by
the Central Government, there shall be full and independent application of
E mind on the representation and on all the documents which formed the basis
of detention order. The grounds of detention and the documents upon which
it is based should be 'strictly scrutinized'. For this purpose, the necessary
docu.ments should be translated into the language which could be understood
by the concerned official without which full and independent application of
mind cannot be ensured. Since the detaining authority had not placed the
F representation and the alleged documents in a translated form before the
Central Government, the appellant's representation was not properly evaluated ).., ,
and therefore the guarantee under Article 22(5) was violated.

G.P. Mathur, J. observed that the power under Section 11 to revoke the
order of detention is some kind of a supervisory power. If so, while considering
G the representation, it is not necessary for the Central Government to look into
and thoroughly examine all those documents which have been supplied to the
detenu along with grounds of detention. The principle that the documents
which are not material and to which only casual reference was made in the
grounds need not be supplied to the detenu will equally apply in the matter
H of consideration of representation by the Central Government. Basically, the
A.C. RAZIA v.GOVERNMENTOF KERALA [P. VENKATARAMA REDD!. J.J 447

Central Government is required to examine· the pleas raised by the detenu in A
his representation and in the present case the detenu hardly raised any specific
plea which would require perusal and examination of the document copies of
which were supplied to the detenu. If the translation is to be insisted, it would
often lead to delay and that itself may become a ground· to invalidate the
1
detention.
B
The only question on which the arguments have been addressed before
us is whether there could be due application of mind on the part of the
Central Government and proper disposal of the representation in the absence
of English translated copies of documents relied on in the detention order?
Though the answer to this question lies in a narrow compass, arguments on C
certain wider issues were addressed before us, keeping in view the differing
view-points expressed by the two Hon'ble Judges. The questions debated
relate to the ambit of the guarantee incorporated in Article 22(5) vis-a-vis the
consideration of representation by the Central Government and the nature
and extent of power under Section 11 ·of COFEPOSA Act. We have felt that
it is desirable to marshal the thoughts on the subject and restate the principles D
with clarity. Hence, this wider discussion.

The law of preventive detention is a drastic law as it authorizes detention
without trial in a court of law and is an encroachment on the liberty of an
individual which is a cherished freedom under our Constitution. At the same
time, the need for such law in larger public or national interest has been E
recognized by the Constitution. In order to mitigate the rigour of the law,
certain minimum safeguards have been provided in the Constitution in order
to ensure that there is no unjustified detention and the detention should not
continue unnecessarily. The preventive detention laws such as the COFEPOSA
Act, with which we are concerned, apart from ensuring the minimum F
safeguards expressly mandated by the Constitution, have supplemented to
these safeguards especially by making provisions enabling scrutiny and review·
of detention order by more than one authority on the representation of the
detenu or otherwise. By judicial interpretation, some more ancillary safeguards
to effectuate the constitutional guarantees flowing from Articles 21 and 22
have been carved out. G
The twin constitutional safeguards related to preventive detention are
.
-1' enshrined in clauses (4) and (5) of Article 22. Clause (4) prescribes a ban on
the law authorising preventive detention for a period longer than 3 months
unless the Advisory Board reports before the expiration of a period of 3
months that in its opinion there is sufficient cause for such detention. This I-I
448 SUPREME COURT REPORTS [2004 I I S.C.R.

A is 'however subject to the exception laid down in sub-Clause (a) cif Article
22(7). The Advisory Board is composed of persons who are, or have been or
are qualified to be Judges of the High Court. The proviso to Clause (4)
further mandates that the detention cannot extend beyond the maximum period
prescribed by a law made by the Parliament vide clause (7) of Article 22.

B We are concerned here with clause (5) of Article 22. The dual rights
under clause -(5) are : (i) the right to be informed as soon as may be of the
grounds on which the order has been made, that is to say, the grounds on
which the subjective satisfaction has been formed by the detaining authority
and (ii) the right to be afforded the earliest opportunity of making a
C representation against the order of detention. By judicial craftsmanship certain
anciilary and concomitant rights have been read into this Article so as to
effectuate the guarantees/safeguards envisaged by the Constitution under
Clause (5) of Article 22. For instance, it has been laid down by this Court
that the grounds of detention together with the supporting documents should
be made available to the detenu in a language known to the detenu. The duty
D to apprise the detenu of the right to make representation to one or more
authorities who have power to reconsider or revoke the detention has been
cast on the detaining authority. So also the duty to consider the representation (
filed by or on behalf of the detenu with reasonable expedition has been
emphasized in more than one case and where there was inordinate delay in
E the disposal of representation, the detention was set aside on that very ground.

In COFEPOSA Act and cognate Acts, we find an array of statutory
safeguards with regard to detention "in tune with the constitutional
requirements"'.

F Sub-section (2) of Section 3 of COFEPOSA Act casts an obligation on
the State Government to forward to the Central Government within I 0 days )"; •
the report in respect of the detention order. It is obvious that this provision
is meant to enable the Central Government to address itself to the issue of
detention at the earliest opportunity and to intervene in appropriate cases by
exercising its power of revocation under Section 11. Section 3(3) of the Act
G provides that the grounds of detention shall be furnished ordinarily not later
than 5 days after the detention. Section 8 provides for constitution of Advisory
Board, the procedure to be followed by the Board and the action to be taken
by the Government on receipt of the opinion of the Board. Section 10
prescribes the maximum period of detention which is one year or two years,
H I. Sec para 8 of[l991] 4 sec 476, K.Al Abdulla Kunhi v. UO.I.
A.C. RAZIA v.GOVERNMENTOF KERALA [P. VENKATARAMA REDDI. J.] 449

depending on the applicability of Section 9. Section 11 empowers the State A
Government or the Central Government, as the case may be, to revoke the
detention order without prejudice to the power of the detaining authority to
rescind the same under Section 21 of the General Clauses Act.

The combined effect of the constitutional and statutory provisions from
the point of view of the detenu's right to make the representation is to B
provide more than one forum to re-examine or review the case of the detenu
and to afford him various means of redressal of his grievance. Thus, the
maner could be examined by (i) the Advisory Board, (ii) the detaining authority
and (iii) the State or Central Governments acting under Section 11 or on
receipt of Advisory Board's opinion. This is apart from the power of the C
Central Government to examine the validity of detention acting suo motu on
receipt of report under Section 3(2). Under Section 11 which is of immediate
relevance in the present case, the Central Government has the power to
revoke the orders made by (i) the State Government, (ii) an officer specially
empowered by the State Government and (iii) an officer specially empowered
by the Central Government. The order passed by an officer specially D
empowered by a State Government can be revoked by the State Government
as well. "The conferment of this power on the Central and the State
Governments does not, however, detract from the power that is available to
the authority that has made the order of detention to revoke it". This is
ensured by the words "without prejudice to the provisions of Section 21 of E
the General Clauses Act" in sub-section (I) of Section 11 (vide observations
of the Constitution Bench in paragraph 22 in the case of Kamlesh Kumar v.
Union of India, [ 1995] 4 SCC 51.

Whether the right to make a representation to the State or the Central
Government under Section 11 becomes an integral part of Article 22(5) or it F
remains to be a statutory safeguard only is the next aspect which merits
discussion. Clause (5) of Article 22 does not, in express tem1s, spell out the
authority to whom the representation has to be made. Does it contemplate the
representation being made to and cons.idered by the detaining authority?
Doubts in this respect have been cleared by the Constitution Bench in Kam/esh
Kumar's case (supra) which is also a case arising under COFEPOSA Act. In G
that case, the stand taken by the Union of India speaking through Additional
Solicitor General was that the use of the word 'a' in singular indicates that
only one representation is to be made and that representation is meant to be
placed before the Advisory Board which is the only authority contemplated
under the Constitution to consider such a representation. This contention was H
450 . SUPREME COURT REPORTS [2004] I S.C.R.
)I.
A unhesitatingly rejected by the Court and it was observed that if such a restricted
interpretation is to be given to the expression "making a representation against
the order", the guarantee under clause (5) of Article 22 may be rendered
nugatory. The Constitution Bench, having noted that Article 22(5) does not
specify the authority to whom the representation is to be made, ruled thus :

B "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
c power to make the order. It is recognized 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 representaiion can be
D made to any other authority which is empowered by law to revoke
the order of detention."

Adverting to the cases beginning with S.K. Abdul Karim, (1969) l SCC
433 in which it was held that the representation should be considered by the
State Government it was explained that all those cases related to orders of
E detention made by the District Magistrate under the Preventive Detention Act
which specifically provides in Section 7( 1) that the authority making the
order of detention shall afford to the person detained the earliest opportunity
of making a representation against the order to the 'appropriate government'.
It was observed that in those cases, the court was not required to consider
F whether the detaining authority should also consider the representation.
However, it was noticed that in Pankaj Kumar Chakrabarty v. State of W.B., )';
[ 1969] 3 SCC 400, the Constitution Bench did say that the detaining authority
must consider the representation when so made. Approving the majority view
taken in Amir Shad Khan v. l. Hmingliana, (1991] 4 SCC 39, the legal
position as to the content of the right under Article 22(5) in the context of
G the opportunity to make representation has been succinctly stated thus in
Kamlesh Kumar:

"A11icle 22(5) must, therefore, be construed to mean that the person /
detained has a right to make a representation against the order of

H •emphasis supplied
A.C. RAZIA v.GOVERNMENT OF KERALA [P. VENKATARAMA REDDI, J.) 45 J
~(
) \
detention which can be made not only to the Advisory Board but also A
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 B
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."

We get even a clearer idea of the exposition of law in this regard by
c
referring to the three Judge Bench decision in Amir Shad Khan's case (supra)
\ which was approvingly cited by the Constitution Bench in Kamlesh Kumar's
case (supra). The following passage makes the legal position clear:

"Thus on a conjoint reading of Section 21 of the General Clauses Act D
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 S(f) on the appropriate Government is clearly independent
of this power. It is thus clear that Section S(f) of the Act satisfies the E
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 constitutional requirements and provide for enforcement p
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)."

Again, after referring to the observations in Razia Umar Bakshi v. G
Union of India, [1980) 3 SCR 1398, Ahmadi J. (as he then was) speaking for
the majority observed thus :-

"This observation would show that the power of revocation conferred
by Section 11 of the Act has a nexus with the right of representation
conferred on the detenu by Article 22(5) and, therefore, the State H
452 SUPREME COURT REPORTS (2004) I S.C.R.

A Government when requested to forward a copy of the representation
to the Central Government is under an obligation to do so."

It is interesting to note that Punchi, J., though agreed with the conclusion
of the majority, was not inclined to hold that Section 11 of COFEPOSA Act
was part of the constitutional guarantee under Article 22(5). The learned
B Judge made the following crucial remarks:-

"Have Section 11 of the Act repealed, it causes no affectation to the
constitutional guarantee under Article 22(5) of the Constitution.
Correspondingly, Section 11 of the Act derives no sustenance from
the said article. Both operate in mutually exclusive fields, though not
c as combatants."

The reasoning of the Constitution Bench in Kamlesh Kumar's case
(supra) proceeded on similar lines as the majority view in Amir Shad Khan's
case (supra).

D The emerging result of the above discussion is that the additional remedy
or safeguard provided by Section 11 has been projected into the fabric of
Article 22(5) so as to be absorbed into the ambit of safeguard provided by
the latter part of Article 22(5). A provision like Section 11 may or may not
be necessary to give effect to that safeguard, but, once a provision like
E Section 11 finds its place in the detention law, the detenu's constitutional
right to make representation gets amplified. His right extends to making
representations to all those authorities who can grant him relief and the
opportunity afforded to the detenu to submit such representations thus becomes
a part of the guaranteed right under Article 22(5). That is how the ratio of
the above decisions has to be understood. Jn fact, that is how it has been
F understood by the detaining authority in the instant case. We find at the end 't. ,
of the order a note to the effect that the detenu has the right to make
representations to the detaining authority, the Central Government and
COFEPOSA Advisory Board against the detention. The addresses of the said
authorities were also mentioned.
G What then is the width and amplitude of the power exercisable under
Section 11 by the Central/State Governments to revoke the order of detention?
Are there inherent limitations in such power? This question assumes some ,r
relevance in resolving the controversy arising in the present case. The decisions
of this Court sta11ing from Pankaj Kumar Chakrabarthy 's case [ 1969] 3 SCC
H 400) make it clear that there is qualitative difference between the manner of
A.C. RAZIA v.GOVERNMENT OF KERA LA [P. VENKATARA~1A REDDI. J.] 453

~ 'disposal of representation by the Government on the receipt of the report A
from the Advisory Board or otherwise and the manner of consideration by
the Advisory Board. It was observed in the above case 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." These observations made in a series of B
cases were in the context of Preventive Detention Act where the order of
detention is passed by the District Magistrate who in tum has to afford to the
detenu the earliest opportunity of making representation to the appropriate
Government. However, in K.M. Abdulla Kunhi v. Union of India, [1991] I
SCC 476 the Constitution Bench while dealing with the case under c
CO FE POSA adopted the same line of approach in regard to the powers oft he
Government in considering the representation. While pointing out that the
obligation of the Government to afford to the detenu an opportunity to make
representation and to consider such representation is distinct from the obligation
to refer the case of detenu along with the representation to the Advisory
Board, it was observed thus: D

·} "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 the representation and the case
of the detenu to examine whether there is sufficient cause for detention.
The consideration by the Board is an additional safeguard and not a
E
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 deteriu's case and his representation by the
Advisory Board under Clause (4) of Article 22 read with Section S(c) F
:i of the Act."

Thus, the principle is well settled that the Government in exercise of
the power under Section 11 does not consider the question of sufficiency or
adequacy of the grounds ·but it would only see whether the detention order
is within the parameters of the power conferred under the statute. In other G
words, it will not review the case as if it is an original or appellate authority.
That is why the power under Section 11 has been described as supervisory
·\ in nature as pointed out by G.P. Mathur, J. taking support from the observations
in Sabir Ahmad v. Union of India, [1980] 3 SCC 295 and Sat Pal v. State
of Punjab, [1982] I SCC 12. Obviously, this supervisory power cannot be
H
454 SUPREME COURT REPORTS [2004] I S.C.R.

A equated to the subjective satisfaction of the detaining authority or the power
of the Advisory Board to examine whether there is sufficient material for
detention. The range of consideration by the Advisory Board is thus wider.

The proposition that the power co11ferred under Section 11 is supervisory
does not however mean that the exercise of power is purely discretionary or
B that the process of consideration could be casual and superficial. No doubt,
as laid down in Abdulla Kun hi 's case (vi de para 19), there need not be a
speaking order in disposing of such representation. However, the Government
has a duty to consider the representation in proper perspective in order to see
whether the order of detention is in conformity with law. The Government,
C should, quite apart from the points raised in the representation, apply its mind
broadly to the question whether the detention is in accordance with law. For
instance, if the material relied upon by the detaining authority does not ex
facie establish a nexus with the pre-conditions for the exercise of the power
or the conclusions of the detaining authority are found to be wholly perverse
or the prescribed procedure has not been followed by the detaining authority,
D the appropriate Government acting under Section 11 has a duty to interfere
and revoke the order of detention. In order to achieve this end, the Central
Government must necessarily have regard to the representation, the report
received from the State Government, the detention order and the material
relied upon in the detention order or referred to in the representation. The
exercise of the power under Section 11 should not be a mere formality or a
E farce. Care and vigilance should inform the action of the Government while
discharging its supervisory responsibility. As observed in Haradhan Saha's
case, [1975] 3 SCC 198 and reiterated in K.M Abdulla Kunhi's case, what
is required is "real and proper consideration". The following observations in
Abdul Karim, are quite apposite in this context :
F " ........ But it is a necessary implication of the language of Article
t.
22(5) that the State Government should consider the representation
made by the detenu as soon as it is made, apply its mind to it and,
if necessary, take appropriate action. Jn our opinion, the constitutional
right to make a representation guaranteed by Article 22(5) must be
G taken to include by necessary implication the constitutional right to
a proper consideration cf the representation by the authority to whom
it is made. The right of representation under Article 22(5) is a valuable
constitutional right and is not a mere formality."
The same proposition has been highlighted by Rajendra Babu, J. by
H observing that "there should be full and independent application of mind".
A.C. RAZIA v.GOVERNMENT OF KERALA [P. VENKATARAMA·REDDI, !.) 455

.) x The next and most relevant point to be considered in the present case A
is whether in the absence of translated copies of the relevant documents
referred to in the detention order, there could have been proper and effective
consideration by the Central Government To put it in other words, whether
the decision making process under Section 11 of the Act is vitiated by non
application of mind by reason of the fact that the translated copies of the
documents were not available with the concerned officials of the Government B
who may· be unacquainted with the particular language? In our view, the
)" question whether any or all of the documents which formed the basis of the
detention order should be before the Central Government or not, depends on
the facts of each case. There can be no hard and fast rule that the appropriate
Government called upon to take a decision under Section 11 should necessarilyc
have copies of all the documents relied upon by the detaining authority with
the translated version thereof. In the context of the guarantee under Article
22(5), it was laid down that "if the documents which form the basis of the
order of detention were not served on the detenu along with the grounds of
the detention, in the eye of law, there would be no service of }he grounds of
detention and that circumstance would vitiate the detention and make it void D
ab initio (vide observations in M AhmedKutty v. U.0.1., (1990] 2 SCC I and
) Sha/ini Soni v. U.0.1., [1980] 4 SCC 544]. It was also clarified in a series of
decisions that it is unnecessary to furnish copies of documents to which
casual or passing reference is made and which are not relied upon by the
detaining authority (vide LMS Ummu Sa/eema v. B.B. Gujarat, [1981] 3 SCC E
317 etc). We are of the view that the proposition laid down by this Court thal
the copies of translated documents forming the basis of the detention order
should be furnished to the detenu in order to give effect to the guarantee
enshrined in Article 22(5) cannot be imported while dealing with the question
in the context of exercise of power of revocation under Section 11 on the
,. :f basis· of representation or otherwise. The question whether there was due F
consideration of representation has to be judged by general principles. of
administrative law. There is no constitutional requirement express or
necessarily implied that the authority considering the representation should
have before it all the documents referred to in detention order with translated
version thereof. But, the availability or non-availability of such documents G
with the empowered authority under Section I I will only have bearing on the
...,.., manner of consideration of representation, which in turn depends on the facts
~. of a particular case. The endeavour of the Court in this regard is only to
assess whether there was fair and proper consideration by the Government by
applying its mind to the crucial aspects warranting its attention. The necessity
or otherwise of having copies of documents should be viewed in that light. H
456 SUPREME COURT REPORTS [2004) I S.C .R.

A The Cou"rt has to be satisfied that there was due application of mind to the
crucial aspects. The points raised by the detenu in the representation would
naturally assume importance, as pointed out by Mathur, J. though the
Government ought not to confine itself to the points highlighted in the
representation alone. If; for the purpose of appreciating the points in the
B representation, the documents are required to be seen, naturally, the Central
Government will be failing in its duty if it does not call for the documents
with translation. For instance, the detenu may say that a particular statement
relied upon in the detention order is something different and it was misread.
The document has to be necessarily seen to appreciate that point. That apart,
the Government shall have a clear idea of the nature of incriminating material
C against the detenu. If the detention order does not spell out the details thereof,
but only makes a bare reference, here again, the need to peruse the crucial
documents or statements so as to judge the validity of detention does arise;
otherwise the Central Government will not be fulfilling the supervisory
responsibility cast on it in the manner expected of it. However, we hasten to
add that there can be no rule similar to the one laid down in the context of
D detenu's right under the first part of Clause (5) of Article 22. The question
whether there could have been due application of mind and proper
consideration of representation by the Government in the absence of crucial
documents/translated copies thereof has to be decided on case to case basis.
The approach cannot be abstract and unrealistic. No inflexible rule of general
E application can be laid down. However, we would like to make it clear that
if in a given case, the perusal of certain documents becomes necessary, it is
no answer to say that the translation involves delay. It is trite to say that
where there is reasonable explanation for delay, the detention does not get
invalidated.

F Now, let us examine the factual situation in the instant case.

A perusal of the detention order would reveal that the statements of
Anodiyal Mammu, who was intercepted at the airport and that of the detenu
and the statements of all others recorded under Section I08 of Customs Act
as well as the subsequerit letters retracting from the earlier statements were
G referred to in the detention order elaborately and exhaustively. The statements
are almost verbatim extracted in the detention order~ We find them at pages
29 to 49 of the Paper Book. The contents of the letters received from the
Assistant Commissioner of Customs and the counsel for A. Mammu have
also been referred to in paras 10 and 17. When the detention order itself
H makes an elaborate reference to the statements/letters of concerned persons
A.C. RAZIA 1'.GOVERNMENT OF KERA LA [S.B SINHA. J.) 457
(
which were either relied upon or rejected by the detaining authority in the A
detention order, the authority exercising the power under Section 11 would.
in no way be handicapped in dealing with the issue in general and the
representation in particular. In the representations made by the petitioner
(detenu's wife) the English version of which were on the record of Central
Government, the plea taken was that the statements were obtained under
threat and coercion and that is why they retracted from the previous statements. B
Of course, certain other grounds were urged which are not relevant for the
purpose of examining the issue with which we are concerned. On the facts
alleged or points raised, there was really no need to have access to any of the
documents referred to in the detention order. Having regard to this factual
situation, we do not think that the Central Government should necessarily c
have the translated copies of the documents referred to and relied upon in the
detention order and that the absence of such documents has vitiated the
consideration of the representation, nor can it be said that there was no
application of mind on the part of the Central Government for the simple
reason that the translated copies of the documents were not available before
it. The physical availability of such documents or translated version thereof. D
would have made no difference as regards the disposal of representation or
the consideration of the question whether the detention was in conformity
with law. As already stated, the very perusal of the detention order would
give a clear picture of the incriminating material relied upon by the detaining
authority. In the circumstances, to insist on the perusal of original or true E
copies of statements and other documents referred to in the detention order
would amount to insisting on an empty formality. The constitutional guarantee
does not go to that extent.

Thus, the only contention raised before us touching on the validity of
detention order has to be negatived. The writ petition and Criminal Appeal F
':1 are therefore dismissed.

S.B. SINHA, J. The nature of power of the Central Government while
disposing of a representation made by a detenue or on his behalf is the
question involved herein which arises out of a difference of opinion between
two Hon 'ble Judges of this Court. G
The power of the Central Government to revoke an order of detention

" is contained in Section 11 of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act (hereinafter referred to as 'the Act',
for the sake of brevity.) Concededly, the right to make a representation in
H
458 SUPREME COURT REPORTS [2004) I S.C.R.

A terms of Section 11 of the Act is a constitutional safeguard provided for
under Article 22(5) of the Constitution of India. In terms of the said provision,
the Central Government gets two opportunities to consider the question as to
whether the order of detention passed under the Act is in accordance with
law and consequently should be confirmed or revoked; In terms of Section
B 3(2) of the Act, the State Government in required to submit a report whereupon
the Central Government is required to pass an order. The power of the Central
Government to pass an order of revocation of the order of detention on the
basis of the representation made by a detenue or on his behalf, however,
stands on a different footing. The jurisdiction of the Central Government in
the latter case is not as limited as in the former one wherein merely upon
C consideration of the report of the detaining authority or the State Government,
it is required to apply its mind for the purpose of taking a decision as to
whether it is necessary to interfere with the order of detention by way of
affirmation or modification thereof.

The larger jurisdiction of the Central Government must be exercised
D having regard to: (I) whether the order of detention has been legally passed;
(2) whether the grounds of detention are adequate; and (3) whether in the
facts and circumstances, the same was justifiable.

In other words, the consideration of the matter on the basis of a report
made in terms of Section 3(2) and on a representation made by a detenu or
E on his behalf, bears a fundamental difference. While exercising its jurisdiction
under Section 11 (I )(b) of the Act, on a representation of the detenue, having
regard to the fundamental right of a detenue under Article 22( 5) of the
Constitution of India, the probe must be deeper. The Government is required
to determine whether the order of detention is permissible under law or not;
p whereas at the first stage, the correctness of the order of detention per se
'r: •
would not fall for decision but only the legality or the duration thereof would.

It is beyond any cavil that the obligations of the State or the detaining
authority in terms of clause (5) of Article 22 are : (I) to communicate to the
detenu the grounds on which the order of detention has been made; (2) to
G afford the detenu the earliest opportunity of making a representation against
the detention order.

Article 22 does not state that the representation is to be made before f
whom. Whether a representation can be made before one or the Other authority
including the detaining authority would depend upon the nature of the
H legislation whereby and whereunder, the order of detention had been passed. '
A.C. RAZIA 1•.GOVERNMENT OF KERA LA [S.S. SINHA, J.) 459
Whereas under one enactment it may not be permissible for the detenue to A
make a representation before the Central Government, it may be so permissible
under another.

Violation of the provisions of foreign exchange regulations necessitating
passing of an order of detention under the Act has not only nationwide
repercussion but also trans-national. The Central Government has a great role B
to play in the matter although the order of detention may be passed by an
authority of the State Government specified therefor. The Central Government
in that view of the matter has to apply its mind independently. A distinction
must be borne in mind that whereas the power of supervision is conferred on
the Central Government while passing an order on the basis of a report made C
under Section 3(2) of the Act, its function under Section 11 (I )(b) while
considering a representation is wider. While determining the merit or otherwise
of such a representation no order of the State Government or the Advisory
Board or any other authority entitled to dispose of such representation made
by a detenu to them may or may not be before it.
D
Having regard to the federal structure of our Constitution, the Central
Government exercises its supervisory power only while considering a report
in terms of Section 3(2) of the Act although the power of detention is
concurrent. The expressions' at any time' are significant in terms whereof the
Central Government can ex.ercise its power at different times that is to say if
and when an occasion arises therefor. The right of a detenu to make E
representation is a fundamental right under Article 22 of the Constitution;
whereas the forums therefor are provided under the statute involved for issuing
the order of detention.

A right of the detenu to make representation has to be construed in the F
·"' light of the constitutional mandate that ordinarily no person can be detained
without trial. This Court of India in several decisions categorically held that
the detenus can make representations before the detaining authority and the
Central Government besides the Advisory Board and the said authorities are
obligated to pass an effective order thereupon.
G
It is well-settled that the documents on the basis whereof the detaining
authority arrived at his subjective satisfaction must be supplied to the detenu
\ as on the basis thereof opinion has been formed to the effect that the order
of preventive detention is required to be passed against the detenu. The
detaining authority is, thus, required to supply all documents as a part of the
ground or pari passu with the ground. The detenu, there cannot be any doubt H
460 SUPREME COURT REPORTS [2004) I S.C.R.

A whatsoever, has a right to demand copies of the documents which have not
been supplied to him. Such documents can be sub-divided into two pa1ts,
namely (a) the documents which had been relied upon by the detaining
authority as forming the basis of detention; and (b) additional documents
which may be required by the detenu to show that such order of prevention
detention was unwarranted.
B
If the documents so supplied are in a language which is unknown to the
detenu, the correct translated copies thereof must be made available to him.
Even the copies of the documents supplied must be legible and complete.

The formalities are not empty ones. 'The history of liberty', said
C Frankfurther, 1 In McNabb v. Us 318 Us 332, 347: 87 L Ed. 819, 827 'has
largely been the history of observance of procedural safeguards'. See also
Mohinuddin Alias Main Master v. District Magistrate. Beed and Ors., [ 1987]
4 SCC 58. All procedural safeguards provided to a detenu being
constitutionally imperative must be scrupulously followed.
D
In Sat Pal v. State of Punjab and Ors., (1982] I SCC 12, it is stated:

"9. Although it was earlier thought that Section 14 of the Maintenance
of Internal Security Act, 1971, which was in pari materia with Section
11 of the Act, did not confer any right or privilege on the detenu,
E there is a general consensus of opinion that the power of revocation
conferred on the Central Government under Section 11 of the Act is
a supervisory power, and is intended to be an additional check or
safeguard against the improper exercise of its power of detention by
the detaining authority or the State Government.

F 10. The power under Section I l(l)(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
G any time" in Section 11, gives the power of revocation an overriding
effect on the power of detention under Section 3. Ordinarily, the
Central Government would in a case like the present under the Act,
like to await the Report of the Advisory Board under Section 8 (c),
/
before taking any action under Section 11(1 )(b) but the circumstances
H may differ, and there may be a case where the Central Government
A.C. RAZIA v.GOVERNMENT OF KERA LA [S.B. SINHA, J.] 46 J
finds that the order of detention passed under Section 3 is ma/a fide A
or constitutes an abuse of power on the pai1 of the State Government
or an officer of the State Government specially empowered in that
behalf, it may "at any time" revoke the order of detention. The detenu
has therefore the right to approach the Central Government by a
representation for revocation of his order of detention under Section B
11 (I) (b) and when such a representation is made, the State
Government has the corresponding duty to forward it to the Central
Government for necessary action."

It is not in dispute that in the instant case the grounds of detention
served upon the detenu were based on certain documents; some of them C
being; (I) the statement of Shri-Anodiyil Mam mu purported to be made
under Section I08 of the Customs Act, 1962; (2) the statement of the detenu
before the senior intelligence officer on 24.12.2000; (3) the statement of Shri
Mujeeb v. @ Mujeeb Rahman purported to be made under Section I08 of the
Customs Act on 25.12.2000; (4) the statement of Shri Ra.feed K. yet made
under Section 108 of the Customs Act on 25.12.2000. D
All those documents were in Malyalam script. The representation of the
petitioner was also in Malyalam. The purported retraction of the confession
made by the detenu in his bail application was also in Malyalam. Anodiyil
Mammu also at a later stage claimed the ownership of foreign currency in his
representation dated 15.1.200 I retracting from his earlier statement. E
It is not in dispute that the authorities of the Central Government
empowered to deal with the representation of the detenu did not have any
knowledge in Malyalam and no assistance had been obtained from any
Malyalam knowing person.
F
In paragraph 18 of the order of detention not only the statements of the
witnesses were relied upon but also the alleged confession of the detenu had
been.

Such purported confession has been retracted in the bail application G
filed by the detenu which was also in Malyalam. It is not in dispute that the
correct translated copies of such documents were not available before the
-\'. authorities.

The question which arises for consideration is whether non-availability
of the translated copies of the basic documents would vitiate the order of H
462 SUPREME COURT REPORTS [2004) I S. C.R.

A detention 9
In Amir Shad Khan etc. v. l. Hmingliana and Ors., (1991] 4 SCC 39,
a three-Judge Bench of this Court while referring to the decision of this Court
Razia Umar Bakshi Smt v. Union of India and Ors., (1980] Supp SCC 195
and distinguishing Smt. Gracy v. State of Kera/a and Anr., (1991] 2 SCC l
B observed that a request made by the detenu to the State Government to
forward his representation to the Central Government cannot be refused as
such a right emanates from Article 22 (5) of the Constitution of India read
with Section 11 of the Act. The said decision is, therefore, an authority for
the proposition that a right of making representation for revocation of the
C order of detention in terms of Section 11 of the Act is a constitutional right
under clause (5) of Article 22 of the Constitution of India.

The said decision has been affirmed by a Constitution Bench in
Kamleshkumar lshwardas Patel etc. etc. v. Union of India and Ors., (1995]
4 sec 51 stating.
D "38. Having regard to the prov1s1ons 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 CO FE POSA Act and the
PIT NDPS Act by an officer specially empowered for that purpose
E 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 representation against the order of
detention. This right of the detenu is in addition to his right to make
F 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
G considered. This right to make a representation necessarily implies
that the parson 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 ground of detentions so as to
t
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
H
A.C. RAZIA v.GOVERNMENT OF KERA LA IS ll SINHA. J] 463
representation. A
This Court in John Martin v. State ol West Bengal, [1975] 3 SCC 836
observed:

"3. The first contention urged by Mr. R.K. Jain on behalf of the
petitioner was that the representation of the petitioner ought to have B
been considered by an impartial tribunal constituted by the State
Government and it was not sufficient compliance with the requirement
of Article 22, clause (5) that it should have been considered only by
the State Government. This contention was sought to be supported by
reference to certain observations of Faz! Ali, J., and Mahajan J., in
A.K. Gopalan v. State of Madras, [ 1950] SCR 88: AIR (I 950) SC 27: C
51 Crl. LJ 1383. Now it is true that Fazal Ali, J. observed in this case
that:

the right to make a representation which has been granted
under the Constitution must carry with it the right to the
representation being properly considered by an impartial D
person or persons the constitution of an Advisory Board for
the purpose of reporting whether a person should be detained
for more than three months or not is a very different thing
from constituting a board for the purpose of reporting whether
a man should be detained for a single day. E
and Mahajan J, also said:
th.e right has been conferred to enable a detained person to
prove his innocence and to secure justice, and no justice can
be said to be secured unless the representation is considered
by some impartial person .......... it follows that no justice can F
be held secured to him unless an unbiased person considers
the merits of his representation and gives his opinion on the
guilt or innocence of the person detained. In my opinion the
right cannot be defeated or made elusive by presuming that
the detaining authority itself will consider the representation G
with an unbiased mind and will render justice. That would
in a way make the prosecutor a judge in the case and such
a procedure is repugnant to all notions of justice.

But we do not think that these observations made by two out of six
learned Judges can be regarded as laying down the law on the point. H
464 SUPREME COURT REPORTS [2004] I S.C.R.

A Since A.K. Gopalan 's case there has been a long catena of decisions
of this Court where the. view has consistently been taken that the •

'
representation of the detenu must be considered by the State
Government. Article 22, clause (5) provides inter alia that the authority I
making the order of detention shall afford the detenu the earliest
opportunity of making a representation against the order of detention.
B
It does not say as to which is the authority to which the representation
shall be made or which authority shall consider it. But Section 8, sub-
section (I) of the Act lays down in the clearest terms which admit of
no doubt that the opportunity which is to be afforded to the detenu
is to make a representation against the order of detention to the
c appropriate Government. Therefore, it is indisputable on a plain reading
of Section 8, sub-section (1) that the representation that may be made
by the detenu is to the appropriate Government and it is the appropriate
Government which has to consider the representation."

It was observed:
D
"It may be pointed out that both the decisions in Jayanaryan Suku/'s
case and Haradhan Saha 's case were decisions rendered by a Bench
:i
I

of five Judges. We must, therefore, hold that under Section 8(1) of
the Act, it is the appropriate Government that is required to consider
the representation of the detenu. This, however, does not mean that
E the appropriate Government can reject the representation of the detenu
in a casual or mechanical manner. The appropriate Government must
bring to bear on the consideration of the representation an unbiased
mind. There should be, as pointed out by this Court in Haradhan
Saha 's case. "a real and proper consideration:' of the representation
F by the appropriate Government. We cannot over-emphasise the need
for the closest and most zealous scrutiny of the representation for the
purpose of deciding whether the detention of the petitioner is justified."

Yet again in Kundanbhai Dulabhai Shaikh etc. v. Distt. Magistrate,
Ahmedabad and Ors. etc., (1996] 3 SCC 194 this Court held:
G
"13. Apart from the above, Section 14 of the Act provides that order
of detention may be revoked either by the State Government of by f
the Central Government. The Central Government can revoke even
those orders which have been made by the State Government. The
Act also provides that within seven days of the making of an order
H
A.C. RAZIA v.GOVERNMENT OF KERALA [S.B. SINHA, J] 465
-J ..I(,
of detention, copy of the order as also the grounds on which the order A
-... was passed shall be sent to the Central Government."

It is therefore, trite that all facts which are relevant for the purpose of
giving relief to the detenu are require to be considered. In that view of the
matter, the quality of an order passed by the Central Government in terms of
Section 11 (I )(b) of the Act cannot be different from that of the authority B
y which had passed the order.

In Kam/eshkumar /shwardas Patel (supra), this Court held:

"7. The learned Additional Solicitor General has urged that the
representation envisaged by Article 22(5) has to be made to the c
Advisory Board referred to in A1ticle 22(4) since the only right that
has been conferred on the person detained is to have the matter of his
detention considered by the Advisory board. The learned Additional
Solicitor General drew support from the words "making a
representation against the order" in A1ticle 22(5) for this submission
and contended that the use of the word' 'a' in singular indicates that
D
('; only one representation is to be made and that representation has to
be made to the Advisory Board because that is the only authority
contemplated under the Constitution which is required to consider
such representation. We are unable to give such a restricted meaning
to the words "making a representation against the order" in Article E
22(5) which is in the nature of a fundamental right affording protection
to the person detained. As stated earlier, the object underlying the
right to make a representation that is envisaged by Article 22(5) is to
enable the person detained to obtain immediate relief. If the
construction placed by the learned Additional Solicitor General is
" ':'f accepted relief may no be available to the detenu till the matter is F
considered by the Advisory Board and that would depend upon the
time taken by the appropriate Government in referring the matter to
the Advisory Board. Moreover reference is required to be made to the
Advisory Board only in cases where the period of detention is going
to be longer than three months and it is not obligatory to make a G
reference to the Advisory Board if the period of detention is less than
~ three months. In such a case the right to make a representation under
clause (5) of Article 22 would be rendered nugatory. A construction
which leads to such a result must be eschewed."

In deducing the aforementioned principle, it is not necessary to expand H
466 SUPREME COURT REPORTS [2004] I S.C.R.
)., ,_
A the meaning of clause (5) of Article 22 of the Constitution of India but what
is necessary is to grant the benefit to which a detenu is entitled to under the
law. The statute confers power upon the statutory authorities to consider
....
representations for the purpose of grant of relief and as such there cannot be •
any justification for placing any limitation thereupon. It, therefore, must be
held that while exercising such a power the Central Government must have
B before it the basic, primary and material documents which are necessary for
the purpose of grant of relief to the detenu. ~

I may, however, hasten to add that the documents which are not material
need not be considered. See Abdul Sathar Ibrahim Manik etc. v. Union of
c India and Ors., AIR (1991) SC 2261.

While considering a representation of the detenu, the Central Government
obtains paradise comments of the sponsoring authority. The order of detention
and the grounds in support thereof may not be sufficient to consider the
issues raised in the representation. The Central Government in its affidavit
D itself stated that if situation so warrants, the assistance of an official/person
conversant with the language of the representation is obtained in order to get A
any point of doubt, if any, clarified vis-a-vis the plea raised in the \)
representation.

The contention that the jurisdiction of an authority dealing with liberty
E of a citizen and the jurisdiction of an authority in administrative matter would
be on the same footing may not be correct. Liberty of a citizen must be
protected with deeper consideration than an administrative order. Any order
passed without application of mind would be a nullity.

In my opinion, thus, the Central Government must be possessed of
F correct translated copies of the basic documents at the time of disposal of a )
representation under the said Act.

How to ascertain as to whether the order of the Central Government
suffers from the vice of non-application of mind is the next question.

The order dated 25.7.2002 has been placed before us. The note-sheet
G
shows that the representation of the petitioner was received on 13.7.2002.
The parawise comments were called for on 18.7.2002 which were received .i
on 25.7 .2002. The D.S., Shri Vijay K. Shanna on the same day prepared a
note stating briefly the main points raised by the representationist stating:

H "The main points raised by the representationist are as under:
A.C. RAZIA 1'.GOVERNMENT OF KERALA [S.B. SINHA, J] 467
(i) that the detenu does not know English but the Grounds of A
detention were not given to him in the language known to him
i.e. Malyalam:
(ii) that the detenu was made to write statement dictated by the
Customs officials:
(iii) that at the relevant time the detenu was not in Trivandrum when B
Shri Anodiyil Mammu, the other co-accused was intercepted;
(iv) that the order dated 16.5.2002 of the Customs Department
consisting of 19 pages was given to the detenu which was in
English language and
(v) that the reasons for detention in the Detention Order and in the
c
Grounds of detention are different."

Thereafter, the parawise comments of the sponsoring authority were
noted which are in the following terms:

"(i) The Sponsoring Authority have clarified that Malyalam translation D
of Grounds of detention and all the documents generated by/
.,,..,
I •
from the Department as also other correspondence in connection
with the case has been served on the detenu.
(ii) ·The detenu gave his statement in his own handwriting and in his
own free will, Moreover, the Sponsoring Authority have further E
clarified that the statements of other co-accused corroborate the
statement of the detenu. Further neither of the two employee of
the detenu have retracted their statement.
(iii) The Sponsoring Authority have clarified that there is no relevance
to the contention of the representationist that the detenu was not F
present at Trivandrum at the time of interception of Shri Anodiyil
Mammu as the detention of the detenu is for his activities prior
to the smuggling of foreign currencies like arranging the carrier
passenger, giving foreign currencies for concealing and smuggling
the same out of India. G
(iv) The Sponsoring Authority have clarified that the order dated
16.5.2002 is an Adjudication Order in original of the
Commissioner of Central Excise & Customs, Cochin
Commissionerate in the seizure of foreign currencies in which
the detenu is one of the accused. Since the order has been issued H
468 SUPREME COURT REPORTS (2004) I S.C.R.

A at a later date i.e, after the passing of the Detention Order, a
copy of the same was not served on the detenu.

(v) The Sponsoring Authority have clarified that both the Grounds
of detention and the Detention order make it explicity clear that
the detenu is detained under Section 3(1 )(i), 3( I )(ii), 3( I)(iii)
B and 3(1)(v) of the COFEPOSA Act, 1974."

Shri Sharma observed:

"In view of the above, it is seen that the points raised by the
representationist are baseless. Her representation, therefore, deserves
to be rejected."
c
The Joint Secretary, COFEPOSA who was competent to pass the order
on behalf of the ':.:entral Government by a non-speaking order agreed therewith
stating:

"I agree with D.S. (C)'s analysis above, There is no merit in the
D representation and the same merits rejections considered. May be
rejected."
A
It, therefore, does not appear that the appropriate authorities of the •1
Central Government considered the representation and the documents referred
to therein as also the necessity of such documents requiring regional language
E to be translated and the effect thereof. The said authority evidently had not
considered the fact that the purported statements made by the witnesses under
Section I 08 of the Customs Act and the alleged confession of the detenu had
been retracted as well as the effect thereof.

F The grounds of detention may contain the summary of the statements
of the witnesses or the detenu; but despite the same statements are required
to be supplied to the detenu. In the representation made by the detenu or on )" •
his behalf, it may be pointed out that the statements made by any person
linking him with the alleged violation are factually incorrect or such statements
have· been misconstrued or misapplied by the detaining authority. A plea is
G also possible to be raised that the statement of a witness was misread by the
detaining authority. The statements extracted in the ground of detention may
contain some other lacuna and thus it would be no answer to the procedural
safeguards contained in Article 22(5) of the Constitution. .f

If such a factor is taken into consideration, we would be bringing in
H indirectly the "prejudice doctrine" in a prevention detention matter. Even
A.C. RAZIA v.GOVERNMENT OF KERALA [S.B. SINHA. J.) 469

such a contention has not been raised by the learned counsel &ppearing on A
behalf of the Central Government or the State of Kerala.

In a matter of this nature only one question is required to be asked i.e.
whether translated copies of the primary documents were before the Central
Government, and if the answer is in the negative; the order of detention must
be quashed. The court exercising its power of judicial review would n.ot B
embark into any other question nor would it itself examine the matter for the
purpose of ascertaining as to whether there has been substantial compliance
of constitutional requirements.

A judicial review of a matter dealing with liberty of a citizen must
receive stricter consideration keeping in view the human right aspect in mind. C
See International Transport Roth GMBH v. Secretary of State for the Home
Department, 2002 3 WLR 344.

The contention raised that by calling for the translated documents relied
on by the detenu, a delay would be caused is of no moment. Such delay, if D
reasonable is always condoned by the courts while exercising their jurisdiction
of judicial review.

For the reasons aforementioned, I respectfully dissent with the opinion.
of P.V. Reddi, J and I am of the opinion that the opinion of Rajendra Babu,
J. laid down the law correctly in fact and circumstances of the present case. E
ORDER

In view of the majority opinion delivered by Hon'ble Mr. Justice P. -
-Venkatarama Reddi, on behalfofhimself, and Hon'ble the Chief Justice, the
criminal appeal and writ petition are dismissed.

" i B.K.M. Appeal/Petition dismissed.