Supreme Court of India
ANKIT ASHOK JALANversusUNION OF INDIA AND ORS.
- Citation
- 2020 INSC 266
- Decided
- 4 March 2020
- Disposal
- Case Allowed
- Bench
- UDAY UMESH LALIT
Holding
A detention order made under COFEPOSA by a specially empowered officer creates a right for the detainee to make a representation to that officer, and the officer must consider it without awaiting the Advisory Board report; failure to do so invalidates the detention.
Summary
The petition challenged the continued detention of two persons under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) after the Detaining Authority, a specially empowered Joint Secretary, failed to consider their representations until after the Central Advisory Board’s report. The majority held that a detention order made by a specially empowered officer confers on the detainee a right to make a representation to that officer, and the officer is statutorily obliged to consider it independently of the Advisory Board’s opinion. The Court found that the Detaining Authority’s delay from 27 November 2019 to 14 January 2020, pending the Board’s report, amounted to an unconstitutional denial of the detainees’ right under Article 22(5). Consequently, the detention orders were declared illegal, invalid and unconstitutional, and the petition was allowed. The dissenting judge would have upheld the authority to defer consideration pending the Board’s report.
Issues considered
- Whether a detainee may make a representation to the specially empowered officer who issued the COFEPOSA detention order.
- Whether the Detaining Authority is required to consider such representation independently of the Advisory Board’s report.
- Whether the Detaining Authority may lawfully defer consideration of the representation until the Advisory Board’s opinion is received.
- Whether the delay in considering the representation violates the constitutional rights guaranteed under Article 22(5).
Legislation cited
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 11, s. 21, s. 3(1), s. 8
- General Clauses Act, 1897s. 21
Subjects
preventive detentionrepresentationCOFEPOSAAdvisory BoardArticle 22(5)detention orderspecially empowered officerconstitutional rightsrevocationdelay
Judgment
[2020] 2 S.C.R. 1047 1047
ANKIT ASHOK JALAN A
v.
UNION OF INDIA AND ORS.
(Writ Petition (Criminal) No. 362 of 2019)
MARCH 04, 2020 B
[UDAY UMESH LALIT, INDU MALHOTRA
AND HEMANT GUPTA, JJ.]
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974: s.3(1) – Detention order made under
C
s.3 by an officer specially empowered for that purpose by the
Government – Whether the representation can independently be
made to and must be considered by the Detaining Authority who is
a special empowered officer of the concerned government and
whether in certain circumstance the Detaining Authority ought to
defer consideration of such representation till the report is received D
from the Advisory Board – Held: (Per Majority) Where the detention
order is made inter alia under s.3 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
E
consider the said representation; and the failure on his part to do
so would result in denial of right conferred on the person detained
to make a representation – A specially empowered officer who passes
the order of detention, in exercise of special empowerment, has no
statutory role to play at the stage when the report is received from
the Advisory Board – The report is to be considered by the F
appropriate Government and not by the specially empowered officer
– In terms of s.8, the report of the Advisory Board is meant only for
the consumption of the appropriate Government and apart from the
operative part of the report which is to be specified in a separate
paragraph as per sub-section (c), the mandate in terms of sub-section
G
(e) is to keep the report of the Advisory Board completely confidential
– Thus, a specially empowered officer who may have passed the
order of detention, by statutory intent is not to be privy to the report
nor does the statute contemplate any role for such specially
empowered officer at the stage of consideration of the opinion of
H
1047
1048 SUPREME COURT REPORTS [2020] 2 S.C.R.
A the Advisory Board – Thus, the Detaining Authority is obliged to
consider the representation without waiting for the opinion of the
Central Advisory Board – In the instant case, there was no valid
explanation for non-consideration of the representation of detenues
from 27.11.2019 till 14.01.2020 – Therefore, complete inaction on
part of the Detaining Authority in considering the representation
B
caused prejudice to the detenues and violated their constitutional
rights – Detention orders are quashed – (Dissenting - Per Hemant
Gupta, J.) – s.3 empowers the Central Government, the State
Government or the specially empowered officer to make an order,
directing a person to be detained – Once the detention order has
C been made by any of the authorities competent to detain in terms of
s.3(1), the representation to seek revocation of the detention order
can be considered and decided by the Detaining Authority dehors
the decision of the Advisory Board and the acceptance of
recommendation by the appropriate Government – The consideration
for revocation of a detention order is limited to examining whether
D
the order conforms with the provisions of law whereas the
recommendation of the Advisory Board is on the sufficiency of
material for detention, which alone is either confirmed or not
accepted by the appropriate Government – It would be a matter of
prudence and propriety for the Detaining Authority to defer the
E decision on the representation to revoke the detention order, when
the matter is being considered by the Advisory Board, consisting of
three sitting Judges of the High Court – The consideration of the
representation by the Detaining Authority in these circumstances
cannot be said to be delayed as the representation was received
after the matter was referred to the Advisory Board.
F
Allowing the writ petitions, the Court
HELD:
Per Uday Umesh Lalit, J. (for himself and Indu Malhotra,
J.)
G
1. Where the detention order is made inter alia under
Section 3 of the COFEPOSA Act by an officer specially
empowered for that purpose either by the Central Government
or the State Government, the person detained has a right to make
a representation to the said officer; and the said officer is obliged
H to consider the said representation; and the failure on his part to
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1049
do so would result in denial of the right conferred on the person A
detained to make a representation. Further, such right of the
detenue has been taken to be in addition to the right to make the
representation to the State Government and the Central
Government. It must be stated that para 12 of the grounds of
detention in the instant case is in tune with the law so declared
B
by this Court. [Para 12][1079 D-G]
2.1 In Pankaj Kumar Chakrabarty, it was stated that the
obligation on part of the Government to consider representation
would be irrespective whether the representation was made before
or after the case was referred to the Advisory Board. As stated
in paragraph 18, this was stated so, as any delay in consideration C
of the representation would not only be an irresponsible act on
part of the appropriate authority but also unconstitutional. The
contingency whether the representations were received before
or after was again considered in para 29 of the decision in
Haradhan Saha. In terms of these principles, the matter of D
consideration of representation in the context of reference to
the Advisory Board, can be put in following four categories:-
A) If the representation is received well before the
reference is made to the Advisory Board and can be
considered by the appropriate Government, the E
representation must be considered with expedition.
Thereafter the representation along with the decision taken
on the representation shall be forwarded to and must form
part of the documents to be placed before the Advisory
Board.
F
B) If the representation is received just before the
reference is made to the Advisory Board and there is no
sufficient time to decide the representation, in terms of
law laid down in Jayanarayan Sukul and Haradhan Saha
the representation must be decided first and thereafter the
representation and the decision must be sent to the G
Advisory Board. This is premised on the principle that the
consideration by the appropriate Government is completely
independent and also that there ought not to be any delay
in consideration of the representation.
H
1050 SUPREME COURT REPORTS [2020] 2 S.C.R.
A C) If the representation is received after the reference is
made but before the matter is decided by the Advisory
Board, according to the principles laid down in Haradhan
Saha, the representation must be decided. The decision as
well as the representation must thereafter be immediately
sent to the Advisory Board.
B
D) If the representation is received after the decision of
the Advisory Board, the decisions are clear that in such
cases there is no requirement to send the representation
to the Advisory Board. The representation in such cases
must be considered with expedition. [Para 15][1096 B-H;
C 1097-A]
2.2 There can be no difficulty with regard to the applicability
of the principles in the 1 st and the 4 th stage of the aforesaid
categories. The difficulty may arise as regards the application of
principles at the 2nd and the 3rd stage. But that difficulty was dealt
D with sufficient clarity in Jayanarayan Sukul and Haradhan Saha.
If it is well accepted that the representation must be considered
with utmost expedition; and the power of the Government is
completely independent of the power of the Advisory Board; and
the scope of consideration is also qualitatively different, there is
E no reason why the consideration by the Government must await
the decision by the Advisory Board. None of the aforesaid cases
even remotely suggested that the consideration must await till
the report was received from the Advisory Board. However, it
was for the first time that the decision in K.M. Abdulla Kunhi laid
down in paragraph 16 that it would be proper for the Government
F in the two situations dealt with in said paragraph to await the
report of the Board; those two situations being:- a) where the
representation is received before the matter is referred to the
Advisory Board and where there may not be sufficient time to
dispose of the representation before referring the case to the
G Advisory Board, and b) where the representation is received after
the case is referred to the Advisory Board. It was also laid down:-
“In both the situations there is no question of consideration of
the representation before the receipt of report of the Advisory
Board.” Since the decision of this Court in K.M. Abdulla Kunhi
was rendered by the Constitution Bench of this Court after
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1051
considering all the earlier decisions on the point including those A
in Pankaj Kumar Chakrabarty, Jayanarayan Sukul and Haradhan
Saha, the principles laid down therein are binding. [Para 16, 17,
18][1097 B-H]
3. In Pankaj Kumar Chakrabarty and in Jayanarayan Sukul,
the orders of detention were passed by the District Magistrates B
under Section 3(ii) of 1950 Act. The relevant statutory provisions
contemplated the concept of approval within 12 days of the passing
of such orders of detention passed by the District Magistrates.
In Haradhan Saha power was exercised by the District
Magistrates under the provisions of the MISA, wherein similar
concept of approval on part of the State Government within 12 C
days of the passing of the order of detention by the District
Magistrate was contemplated. The distinction on that count was
noted by this Court in para 34 of the decision in Kamlesh kumar.
The orders of detention in these decisions were not passed by a
specially empowered officer but by the concerned Government. D
The same logic regarding deemed approval was extended initially
in Sushila Mafatlal Shah to cases where the orders of detention
were passed not by the concerned Government but by a specially
empowered officer. The matter was, however, corrected and the
distinction in that behalf was succinctly dealt with in
Kamleshkumar. [Para 20][1098 B-E] E
4. It must also be borne in mind that in all cases, the
appropriate Government would be acting in two capacities; one
while considering the representation and the other while taking
appropriate decision after a report is received from the Advisory
Board that there is sufficient cause for detention. Since the F
decision would be required to be taken in these two capacities, it
was observed in K.M. Abdulla Kunhi that it would be proper for
the appropriate Government to wait till the report is received
from the Advisory Board. But such may not be the case with the
Detaining Authority who is a specially empowered officer. [Para G
21][1098 E-G]
5. A specially empowered officer who passes the order of
detention, in exercise of special empowerment, has no statutory
role to play at the stage when the report is received from the
H
1052 SUPREME COURT REPORTS [2020] 2 S.C.R.
A Advisory Board. The report is to be considered by the appropriate
Government and not by the specially empowered officer. It may
also be relevant at this stage to consider the element of
confidentiality associated with the report of the Advisory Board.
In terms of Section 8, the report of the Advisory Board is meant
only for the consumption of the appropriate Government and apart
B
from the operative part of the report which is to be specified in a
separate paragraph as per sub-section (c), the mandate in terms
of sub-section (e) is to keep the report of the Advisory Board
completely confidential. Thus, a specially empowered officer who
may have passed the order of detention, by statutory intent is
C not to be privy to the report nor does the statute contemplate
any role for such specially empowered officer at the stage of
consideration of the opinion of the Advisory Board. The report
of the Advisory Board may provide some qualitative inputs for
the appropriate Government but none to the specially empowered
officer who acted as the Detaining Authority. [Paras 22, 23][1098
D
G-H; 1100 D-F]
6. When K.M. Abdulla Kunhi was decided on 23.01.1991,
the decision that was holding the field as to the role of a specially
empowered officer who had passed an order of detention, was
one rendered in Sushila Mafatlal Shah. The law that was holding
E the field was the concept of deemed approval as was explained in
Sushila Mafatlal Shah and any representation made to such
specially empowered officer who had passed the order of
detention, in terms of the decision in Sushila Mafatlal Shah, could
be considered by the appropriate Government itself and not
F separately by such specially empowered officer. The subsequent
decision in Amir Shad Khan was rendered by a Bench of three
Judges on 09.08.1991 and the apparent conflict in the decisions
between Sushila Mafatlal Shah and Amir Shad Khan was resolved
by the Constitution Bench of this Court in Kamleshkumar
rendered on 17.04.1995, i.e. well after the decision in K.M. Abdulla
G Kunhi. Thus, if the law is now settled that a representation can
be made to the specially empowered officer who had passed the
order of detention in accordance with the power vested in him
and the representation has to be independently considered by
such Detaining Authority, the concerned principles adverted to
H in paragraph 16 of the decision in K.M. Abdulla Kunhi would not
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1053
be the governing principles for such specially empowered officer. A
It must be stated that the discussion in K.M. Abdulla Kunhi was
purely in the context where the order of detention was passed by
the appropriate Government and not by the specially empowered
officer. The principle laid down in said paragraph 16 has therefore
to be understood in the light of the subsequent decision rendered
B
by another Constitution Bench of this Court in Kamleshkumar.
The Detaining Authority ought to have considered the
representation independently and without waiting for the report
of the Central Advisory Board. [Paras 24, 25, 26][1100 F-H; 1101
A-F]
7. The facts in the instant case indicate that the comments C
of the Sponsoring Authority in respect of the representation were
already received by the Detaining Authority. After receipt of letter
on 27.11.2019 that the detenues were received in custody, the
time for considering the representation started ticking for the
Detaining Authority. But the representation was considered only D
on 14.01.2020 and the reason for such delayed consideration is
that the report of the Central Advisory Board was awaited. It is
already held that the Detaining Authority was obliged to consider
the representation without waiting for the opinion of the Central
Advisory Board. Thus, there was no valid explanation for non-
consideration of the representation from 27.11.2019 till E
14.01.2020. Therefore, complete inaction on part of the Detaining
Authority in considering the representation caused prejudice to
the detenues and violated their constitutional rights. [Para
26][1101 E-H]
8. There could be clear dichotomy when the representations F
are made simultaneously to such specially empowered officer who
had passed the order of detention and to the appropriate
Government. If we go by the principle in paragraph 16 in K.M.
Abdulla Kunhi it would be proper for the appropriate Government
to wait till the report was received from the Advisory Board, while G
at the same time the specially empowered officer who had acted
as the Detaining Authority would be obliged to consider the
representation with utmost expedition. At times a single
representation is prepared with copies to the Detaining Authority
namely the specially empowered officer and to the appropriate
H
1054 SUPREME COURT REPORTS [2020] 2 S.C.R.
A Government as well as to the Advisory Board. In such situations
there will be incongruity as stated above, which may be required
to be corrected at some stage. However, such difficulty or
inconsistency cannot be the basis for holding that a specially
empowered officer while acting as a Detaining Authority would
also be governed by the same principles as laid down in paragraph
B
16 of K.M. Abdulla Kunhi. [Para 27][1102 A-D]
9. Since there was complete inaction on part of the Detaining
Authority in the present case, to whom a representation was
addressed in dealing with the representation in above manner,
the constitutional rights of the detenues were violated and the
C detenues are entitled to redressal on that count. Therefore, the
continued detention of the detenues in terms of the Detention
Orders is held illegal, invalid and unconstitutional. [Para 28][1102
D-F]
K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union
D of India and others (1991) 1 SCC 476 : [1991] 1 SCR
102 – held inapplicable
Golam Biswas v. Union of India and Another (2015) 16
SCC 177; Ibrahim Bachu Bafan v. State of Gujarat and
others (1985) 2 SCC 24 : [1985] 2 SCR 891; State of
E Maharashtra and another v. Smt. Sushila Mafatlal Shah
and others (1988) 4 SCC 490 : [1988] 2 Suppl. SCR
827; Amir Shad Khan v. L. Hmingliana and others
(1991) 4 SCC 39 : [1991] 3 SCR 443; Kamleshkumar
Ishwardas Patel vs. Union of India and others [1951]
F SCR 167; Pankaj Kumar Chakrabarty and others v.
The State of West Bengal (1969) 3 SCC 400 : [1970] 1
SCR 543; Frances Coralie Mullin v. W.C. Khambra
(1980) 2 SCC 275 : [1980] 2 SCR 1095; Jayanarayan
Sukul (1970) 1 SCC 219 : [1970] 3 SCR 225; Haradhan
Saha v. The State of West Bengal and others (1975) 3
G SCC 198 : [1975] 1 SCR 778 – referred to
Per Hemant Gupta, J. (Dissenting)
1. Section 3 of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 empowers the
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1055
Central Government, the State Government or the specially A
empowered Officer of the rank not below the rank of the Joint
Secretary of the Central Government or Secretary of the State
Government, to make an order, directing a person to be detained.
The Detaining Authority has jurisdiction to revoke the detention
order in view of Section 21 of the General Clauses Act, 1897,
B
whereas, an appropriate Government passes an order of
revocation of detention or confirmation of the order of detention
on receipt of the report of the Advisory Board. The consideration
for the Detaining Authority for revocation, is to see whether the
detention order is in conformity with the power under law
whereas, the Advisory Board considers the representation to C
examine whether there is sufficient cause for detention. The
consideration of the Advisory Board is an additional safeguard
and not a substitute for the consideration of the representation
by the appropriate Government. [Para 3][1103 B-E]
2.The first part of the consideration of representation, as D
to whether the order of detention is in conformity with power
under the law, does not make a distinction as to whether the
Detaining Authority is the Central or State Government or a
specially empowered Officer in that behalf. The consideration
for detention by the Detaining Authority is confined to examining
whether the order of detention is in conformity with the power E
under the law. On the other hand, the Advisory Board examines
if there is sufficient cause for detention. The exercise of
jurisdiction by the Government, whilst dealing with the
representation as a detaining authority and whilst considering
the Advisory Board’s recommendation, is in two separate and F
distinct spheres. [Para 4][1103 E-H; 1104 A]
3. In view of K. M. Abdulla Kunhi, once the detention order
has been made by any of the authorities competent to detain in
terms of Section 3 (1) of the COFEPOSA Act, the representation
to seek revocation of the detention order can be considered and G
decided by the Detaining Authority dehors the decision of the
Advisory Board and the acceptance of recommendation by the
appropriate Government. The consideration for revocation of a
detention order is limited to examining whether the order
H
1056 SUPREME COURT REPORTS [2020] 2 S.C.R.
A conforms with the provisions of law whereas the recommendation
of the Advisory Board is on the sufficiency of material for
detention, which alone is either confirmed or not accepted by the
appropriate Government. [Para 22][1115 E-G]
4. It is a matter of prudence and propriety for the Detaining
B Authority to defer the decision on the representation to revoke
the detention order, when the matter is being considered by the
Advisory Board, consisting of three sitting Judges of the High
Court.The consideration of the representation by the Detaining
Authority in these circumstances cannot be said to be delayed as
the representation was received after the matter was referred to
C the Advisory Board. [Para 23][1115-G; 1116-A]
K. M. Abdulla Kunhi and B.L. Abdul Khader v. Union
of India and Others (1991) 1 SCC 476 : [1991] 1 SCR
102 – relied on
D Jayanarayan Sukul v. State of West Bengal (1970) 1
SCC 219 : [1970] 3 SCR 225; Vimalchand Jawantraj
Jain v. Shri Pradhan and Others (1979) 4 SCC 401 :
[1979] 3 SCR 1007; Khairul Haque v. The State of W.B.
W.P. No. 246 of 1969 decided on 10-9-69; Frances
Coralie Mullin v. W.C. Khambra and Others (1980) 2
E SCC 275 : [1980] 2 SCR 1095; Om Prakash Bahl v.
Union of India W.P. NO. 845 of 1979 decided on
October 15, 1979; Kamleshkumar Ishwardas Patel v.
Union of India and Others (1995) 4 SCC 51 : [1995] 3
SCR 279; State of Maharashtra & Anr. v. Sushila
F Mafatlal Shah and others (1988) 4 SCC 490 : [1988] 2
Suppl. SCR 827; Amir Shad Khan v. L. Hmingliana and
Others (1991) 4 SCC 39 : [1991] 3 SCR 443; Golam
Biswas v. Union of India and Another (2015) 16 SCC
177 – referred to
G Case Law Reference
Per Uday Umesh Lalit, J.
(2015) 16 SCC 177 referred to Para 4
[1991] 1 SCR 102 held inapplicable Para 4
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1057
[1985] 2 SCR 891 referred to Para 11 A
[1988] 2 Suppl. SCR 827 referred to Para 11
[1991] 3 SCR 443 referred to Para 11
[1995] 3 SCR 279 referred to Para 11
[1951] SCR 167 referred to Para 11 B
[1970] 1 SCR 543 referred to Para 13
[1980] 2 SCR 1095 referred to Para 13
[1970] 3 SCR 225 referred to Para 13
C
[1975] 1 SCR 778 referred to Para 13
Per Hemant Gupta, J.
[1991] 1 SCR 102 relied on Para 2
D
[1970] 3 SCR 225 referred to Para 5
[1979] 3 SCR 1007 referred to Para 7
[1980] 2 SCR 1095 referred to Para 10
[1995] 3 SCR 279 referred to Para 16
E
[1988] 2 Suppl. SCR 827 referred to Para 16
[1991] 3 SCR 443 referred to Para 16
(2015) 16 SCC 177 referred to Para 20
CRIMINAL ORIGINAL JURISDICTION: Writ Petiton F
(Criminal) No.362 of 2019.
[Under Article 32 of the Consitution of India]
Mukul Rohatgi, Neeraj Kishan Kaul, Sr. Advs., Saurabh Kirpal,
Sanjay Agarwal, Karan Bharioke, Nikhil Rohatgi, Ashish Batra, Sarthak
Sachdev, Watan Sharma, Amit K. Nain, Advs. for the Petitioner. G
K. M. Nataraj, ASG, Sharath Nambiar, Kanu Agarwal, Vinayak
Sharma, Shreekanth P.S., Ms. Priyanka S. Bhat, B. Krishna Prasad,
Advs. for the Respondents.
H
1058 SUPREME COURT REPORTS [2020] 2 S.C.R.
A The Judgments* of the Court were delivered by
UDAY UMESH LALIT, J.
1. This petition under Article 32 of the Constitution of India prays
for quashing of the Detention Orders1 dated 01.07.2019and for a direction
that the detenues be set at liberty.
B 2. The facts leading to the filing of this petition, in brief, are as
under:
(a) On 01.07.2019, Joint Secretary to the Government of India,
specially empowered under Section 3(1) of the COFEPOSA Act 2 passed
the Detention Orders after being satisfied that with a view to prevent
C the detenues from smuggling goods, abetting the smuggling of goods,
and dealing in smuggled goods otherwise than by engaging in transporting
or concealing or keeping smuggled goods, in future, it was necessary to
make the said Detentions Orders.
b) The detenues were served with the Detention Orders, the
grounds of detention andthe relied upon documents on 02.07.2019. The
D grounds of detention, in para 12, recited as under:-
“You ……….. have the right to represent against your detention
to the Detaining Authority, to the Central Government as well as
to the Advisory Board. If you wish to avail this right, you should
send your representation through the Jail Authorities where you
E are detained, in the manner indicated below:
(a) Representation meant for the Detaining Authority should
be addressed to the Joint Secretary (COFEPOSA),
Government of India, Ministry of Finance, Department of
Revenue, Central Economic Intelligence Bureau, 6th Floor,
B-Wing, Janpath Bhawan, New Delhi-110001.
F
(b) Representation meant for the Central Government should
be addressed to the Director General, Central Economic
Intelligence Bureau, Government of India, Ministry of
Finance, Department of Revenue, 6 th Floor, B-Wing,
Janpath Bhawan, New Delhi-110001.
G 1
Nos.PD-12001/34/2019-COFEPOSA and PD-12001/35/2019-COFEPOSA, both
dated 01.07.2019, issued by the Respondent No.2 against Shri Ashok Kumar Jalan and
Shri Amit Jalan respectively
2
The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974
*Ed. Note : One Judgment delivered by Uday Umesh Lalit, J. (for himself and Indu
H Malhotra, J.). The other Judgment delivered by Hemant Gupta, J.
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1059
[UDAY UMESH LALIT, J.]
(c) Representation meant for the Advisory Board should be A
addressed to the Chairman, COFEPOSA Advisory Board,
Delhi High Court, Sher Shah Road, New Delhi-110002.
(c) On 18.07.2019 the cases of the detenues were referred to
the Central Advisory Board3 along with the grounds of detention and
relied upon documents. B
(d) On 22.07.2019 representation dated 17.07.2019 made on behalf
of both the detenues, addressed to the Joint Secretary (COFEPOSA),
Government of India, Ministry of Finance, Department of Revenue was
received through the Presidency Correctional Home, Alipore, Kolkata.
The representation stated inter alia:- C
“9….(iii) To enable me to make an effective representation at the
earliest opportunity, I may please be forthwith provided with-
a) a copy of the Retraction Petition of Shri Anand stated to be
relied upon in the grounds of detention;
D
b) a copy of the pen-drive or CD/DVD of the CCTV footage
directed by the CMM to be submitted on 18th June, 2019 may
please be provided to me and may please be shown to me on
a laptop or any other device.
10. Kindly note that unless the aforesaid prayers are considered
E
expeditiously, I am unable to make my final representation to the
Central Government and the Advisory Board, etc. Therefore, the
instant representation may please be considered as expeditiously
as possible in true spirit of Article 22(5) read with Articles 14 &
21 of the Constitution of India.”
F
(e) On 24.07.2019, the representation was forwarded to the
Sponsoring Authority, namely, DRI, Kolkata for its comments which were
received on 29.07.2019. Said representation as well as the para-wise
comments received from the Sponsoring Authority were forwarded
on31.07.2019 to the Central Advisory Board. The meeting of the Central
Advisory Board was scheduled to be held on 02.08.2019. G
(f) On 02.08.2019 itself, Writ Petition No.1840 of 2019 preferred
on behalf of the detenues was allowed by the High Court4 on the grounds
that when the detenues were in judicial custody and there was no
3
The Central Advisory Board, Delhi High Court, New Delhi
4
The High Court of Delhi at New Delhi H
1060 SUPREME COURT REPORTS [2020] 2 S.C.R.
A imminent possibility of their release on bail and when not even a bail
application was preferred by them, the power of preventive detention
ought not to have been exercised; and, that non-placement of relevant
material in the form of retraction petition of one Shri Anand and its non-
consideration by the Detaining Authority vitiated the Detention Orders.
The High Court thus quashed the Detention Orders and directed that
B
the detenues be released forthwith.
(g) In its Meeting dated 02.08.2019, the Central Advisory Board
recorded that since the Detention Orders were quashed, there was no
possibility of proceeding further in the matter.
C (h) The decision of the High Court was challenged in Criminal
Appeal No.1746 of 2019 in this Court, which by its Judgment and order
dated 22.11.2019 set aside the view taken by the High Court. While
allowing the appeal, the detenues were directed to be taken into custody
forthwith. The Detaining Authority was thereafter informed by the Jail
Superintendent on 27.11.2019 that the detenues were received in custody
D in pursuance of the decision of this Court.
(i) On 02.12.2019 a direction was issued to process the files of
the detenues for reference to the Central Advisory Board. After obtaining
appropriate approval, the case was referred to the Central Advisory
Board on 05.12.2019 stating inter alia:-
E
“Keeping in view the judgment dated 03.06.2015 of the Apex
Court delivered in Crl.Appeal No.829 of 2015 arising out of
SLP(Crl) No.2489 of 2015 – Golam Biswas v. Union of India, the
said representations will be considered for disposal by the
competent authority only after receipt of opinion of the Hon’ble
F Board.”
3. The instant writ petition was filed on or about 16th December,
2019 challenging the stand taken in the communication dated 05.12.2019
that the representation would be considered only after the receipt of the
opinion of the Central Advisory Board. It was submitted that the
G representation ought to be considered independently by the Detaining
Authority and without waiting for the report of the Central Advisory
Board; and that the delay in consideration of such representation violated
the rights of the detenues guaranteed by the Constitution of India. Soon
thereafter, another representation reiterating the stand as aforesaid was
made by the Advocate for the detenues on 18.12.2019.
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1061
[UDAY UMESH LALIT, J.]
4. On 18.12.2019 notice was issued by this Court,whereafter, an A
affidavit in reply was filed on behalf of the respondents stating inter
alia:-
(a) On 06.01.2020 a report was submitted by the Central Advisory
Board that there was sufficient cause for the detention of the
detenues. B
(b) After considering the report of the Central Advisory Board
and the other material on record, the Central Government
confirmed the Detention Ordersvideproceedings dated 14.01.2020.
(c) On the same date i.e. 14.01.2020 the Detaining Authority,
namely, Joint Secretary (COFEPOSA) rejected the representations C
dated 17.07.2019 and 18.12.2019 made on behalf of the detenues.
After referring to the decisions of this court in Golam Biswas v.
Union of India and Another5 and K.M. Abdulla Kunhi and B.L.
Abdul Khader v. Union of India and others 6 it was stated that the
representations were considered only after the receipt of the opinion of D
the Central Advisory Board dated 06.01.2020.
5. We heard Mr. Mukul Rohatgi and Mr. Neeraj KishanKaul,
learned Senior Advocates in support of the petition and Mr. K.M. Nataraj,
learned Advocate Solicitor General for the respondents.
E
6. The learned Counsel for the petitioner accepted that by the
time representation dated 17.07.2019 was received by the Detaining
Authority, the matter was referred to the Central Advisory Board and
since the Detention Orders were set aside by the High Court on
02.08.2019, the non-consideration of the representation till 02.08.2019,
in the facts of the instant case, would not be of any significance.However, F
in their submission, after the decision of the High Court was set aside by
this Court and the detenues were taken back in custody in November,
2019, the non-consideration of and delay in disposal of said representation
wasmore pronounced and relevant. It was submitted:-
(a) A representation against an order of detention can be made to G
the Detaining Authority where the detention order has been passed
by a specially empowered officer of the Central Government as
well as to the Central Government and the Central Advisory Board.
5
(2015) 16 SCC 177
6
(1991) 1 SCC 476 H
1062 SUPREME COURT REPORTS [2020] 2 S.C.R.
A Para 12 of the grounds of detention, as extracted earlier, was in
keeping with this well accepted principle.
(b) The representation made to the Detaining Authority had to be
considered by the Detaining Authority independently. The
Detaining Authority was not right in waiting till the receipt of the
B report of the Central Advisory Board.
(c) The consequential delay on part of the Detaining Authority in
considering the representation thus violated the constitutional rights
of the detenues.
7. On the other hand, Mr. K.M. Nataraj, learned Additional Solicitor
C General, for the respondents relied upon the decisions of this Court in
Golam Biswas5 and in K.M. Abdulla Kunhi6 to submit that while the
matter was pending consideration before the Central Advisory Board,
the representation in question could not be considered and it could be
considered only after the receipt of the report of the Central Advisory
D Board.
8. In the instant case, the facts are clear that:-
a) The Detaining Authority received a letter on 27.11.2019 that
the detenues were received in custody. Thereafter the matter
was again referred by the Central Government to the Central
E Advisory Board on 05.12.2019. The communication shows that
it was decided that the representations would be considered
only after receipt of the opinion of the Central Advisory Board.
b) The opinion of the Central Advisory Board was submitted on
06.01.2020. On 14.01.2020 the Central Government confirmed
F the Detention Orders and on the same date the Detaining
Authority rejected the representations.
9. Following questions thereforearise:-
i) Whether the Detaining Authority was justified in deferring the
consideration of the representation till the receipt of the opinion
G of the Central Advisory Board?
ii) Whether the Detaining Authority ought to have considered the
representation independently and without waiting for the report
of the Central Advisory Board?
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1063
[UDAY UMESH LALIT, J.]
iii) If the answer to the second question is yes, whether the time A
taken by the Detaining Authority from 27.11.2019 till 14.01.2020
could be characterised as undue and avoidable delay violating
the constitutional rights of the detenues?
10. The learned counsel appearing for the parties placed for our
consideration various decisions of this Court touching upon the aforesaid B
first two questions. We may broadly consider those decisions for
answering the questions from two perspectives:-
First, on the issue whether a representation can independently be
made to and must be considered by the Detaining Authority, who is a
specially empowered officer of the concerned Government. C
Secondly, whether, in certain circumstances, the Detaining
Authority ought to defer consideration of such representation till the
report is received from the Advisory Board.
11. As regards the first issue, following decisions are noteworthy:-
D
A) In Ibrahim BachuBafan vs. State of Gujarat and others7
a Bench of three Judges of this Court, while considering
the scope of Section 11 of the COFEPOSA Act and Section
21 of 1897 Act8,made following observations:-
“7.……. The heading of Section 11 is “Revocation of
E
Detention Orders”. Sub-section (1) authorises revocation
by two authorities, namely, — (a) if the order has been
made by an officer of a State Government, the State
Government or the Central Government may revoke the
order; and (b) if the order has been made by an officer of
the Central Government or by a State Government, F
revocation is permissible by the Central Government. Sub-
section (1) of Section 11 indicates that the power conferred
under it in the situations envisaged in Clauses (a) and (b) is
exercisable without prejudice to the provisions of Section
21 of the General Clauses Act. That section provides that a
G
power to issue orders includes a power exercisable in the
like manner and subject to the like sanction and conditions,
if any, to add, to amend, vary or rescind such orders. Under
7
(1985) 2 SCC 24
8
The General Clauses Act, 1897 H
1064 SUPREME COURT REPORTS [2020] 2 S.C.R.
A Section 21 of the General Clauses Act, therefore, the
authority making an order of detention would be entitled to
revoke that order by rescinding it. We agree with the
submission of Mr Jethmalani that the words “without
prejudice to the provisions of Section 21 of the General
clauses Act 1897” used in Section 11(1) of the Act give
B
expression to the legislative intention that without affecting
that right which the authority making the order enjoys under
Section 21 of the General Clauses Act, an order of detention
is also available to be revoked or modified by authorities
named in clauses (a) and (b) of Section 11(1) of the Act.
C Power conferred under clauses (a) and (b) of Section 11(1)
of the Act could not be exercised by the named authorities
under Section 21 of the General Clauses Act as these
authorities on whom such power has been conferred under
the Act are different from those who made the orders.
Therefore, conferment of such power was necessary as
D
Parliament rightly found that Section 21 of the General
Clauses Act was not adequate to meet the situation. Thus,
while not affecting in any manner and expressly preserving
the power under Section 21 of the General Clauses Act of
the original authority making the order, power to revoke or
E modify has been conferred on the named authorities.”
It was, thus, accepted that by virtue of Section 21 of 1897 Act,
theauthority making an order of detention would be entitled to
revoke that order by rescinding it and that conferment of power under
Section 11 of the COFEPOSA Act was done without affecting in any
F manner and expressly preserving the power under Section 21of 1897
Actof the original authority making the order.
B) A Bench of two Judges of this Court in State of
Maharashtra and another vs. Smt. Sushila Mafatlal
Shah and others9 took a slightly different view. This Court
G framed following questions in para 11:-
“11. ………
(1) Does an order passed by an officer of the State
Government or the Central Government, specially
9
H (1988) 4 SCC 490
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1065
[UDAY UMESH LALIT, J.]
empowered for the purposes of Section 3(1) by the A
respective government, make him the detaining
authority and not the State Government or the Central
Government as the case may be, and obligate him to
inform the detenu that he has a threefold opportunity to
make his representations i.e. the first to himself and
B
the other two to the State Government and the Central
Government.
(2) Whether for the purposes of the Act, there is any
difference between an order of detention passed by an
officer of the State Government or the Central
Government, solely in exercise of the powers conferred C
on him under Section 3 by the respective government
and an order of detention passed by the State
Government or the Central Government as the case
may be through an officer who in addition to conferment
of powers under Section 3 is also empowered under D
the Standing Rules framed under the Rules of Business
of the government, to act on behalf of the government.
(3) Whether by reason of the fact that an order of detention
is passed by an officer of the State Government or the
Central Government specially empowered to act under E
Section 3 of the Act, a detenu acquires a constitutional
right to have his representation first considered by the
very officer issuing the detention order before making
a representation to the State Government and the
Central Government.”
F
While considering the scheme of the COFEPOSA Act, including
the ambit of Section 11, it was observed:-
“19. We may now examine the scheme of the Act and have a
closer look at the provisions set out above to find out whether
theAct provides for a differentiation being made between detention G
orders made by the government and those made by specially
empowered officers so as to confer an additional right of
representation to detenus subjected to detention under detention
orders falling in the latter category. At the outset, it needs no
saying, that any government, be it Central or State, has to function
only through human agencies viz. its officers and functionaries H
1066 SUPREME COURT REPORTS [2020] 2 S.C.R.
A and that it cannot function by itself as an abstract body. Such
being the case, even though Section 3(1) provides for an order of
detention being made either by the Central Government or one of
its officers or the State Government or by one of its officers, an
order of detention has necessarily to be made in either of the
situations only by an officer of the concerned government. It is in
B
acceptance of this position we have to see whether an order of
detention, if passed by an officer of the government specially
empowered under Section 3(1) but not further empowered under
Rules of Business of the government to act would have the effect
of making the concerned officer the detaining authority and not
C the concerned government itself. The answer to the question has
to be necessarily in the negative for the following reasons. It has
been specifically provided in Section 2 (a) that irrespective of
whether an order of detention is made by the Central Government
or one of its duly authorised officers, the “appropriate government”
as regard the detention order and the detenu will be the Central
D
Government only and likewise whether an order of detention is
made by a State Government or one of its duly authorised officers
the “appropriate government” would be the State Government
only as regards the detention order and the detenu concerned.
Secondly, irrespective of whether an order of detention is made
E by the State Government or by one of its officers, the obligation to
forward, within ten days a report to the Central Government in
respect of the order is cast only upon the State Government. Thirdly,
in the matter of making a reference of the case of a detenu to the
Advisory Board under Section 8(b), the duty of making the
reference is cast only on the Central Government or the State
F
Government as the case may be, and not on the officer of the
Central Government or the State Government if he makes the
order of detention in exercise of the powers conferred on him
under Section 3(1). Lastly, Section 11, which deals with the powers
of revocation of the State Government and the Central Government
G provides that notwithstanding that an order of detention had been
made by an officer of a State Government, the concerned State
Government as well as the Central Government are entitled to
revoke or modify the order of detention. Similarly, as per clause
(b) notwithstanding that an order of detention has been made by
an officer of the Central Government or by a State Government,
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1067
[UDAY UMESH LALIT, J.]
the Central Government has been empowered to revoke or modify A
an order of detention. The section does not confer any power of
revocation on an officer of the Central or State Government nor
does it empower the Central or State Government to delegate the
power of revocation to any of its officers. We may further add
that even though Section 11 specifies that the powers of revocation
B
conferred on the Central Government/State Government are
without prejudice to the provisions of Section 21 of the General
clauses Act, this reservation will not entitle a specially empowered
officer to revoke an order of detention passed by him because the
order of the specially empowered officer acquires “deemed
approval” of the State or Central Government, as the case may C
be, automatically and by reason of such deemed approval the
powers of revocation, even in terms of Section 21 of the General
clauses Act will fall only within the domain of the State
Government and/or Central Government. In Sat Pal v. State of
Punjab10 the nature of the power of revocation conferred on the
D
State and the Central Government came to be construed and the
court held that “(t)he power of revocation conferred on the
appropriate government under Section 11 of the Act is independent
of the power of confirming or setting aside an order of detention
under Section 8(f)”. It was further adumbrated as follows: (SCC
p. 17, para 10) E
“The power under Section 11(1)(b) may either be exercised
on information received by the Central Government from its
own sources including that supplied by the State Government
under Section 3(2), or, from the detenu in the form of a petition
or representation. It is for the Central Government to decide F
whether or not, it should revoke the order of detention in a
particular case. The use of the words ‘at any time’ under
Section 11, gives the power of revocation an overriding effect
on the power of detention under Section 3.”
These observations were made by the court when considering G
the question whether a detenu was entitled to concurrently make
representations to the State Government and the Central
Government against an order of detention passed by the State
Government and whether in such circumstances the State
10
(1982) 1 SCC 12 H
1068 SUPREME COURT REPORTS [2020] 2 S.C.R.
A Government could contend that the question of the Central
Government considering the representation would arise only after
the State Government had considered the representation and
rejected it.
20. Consequently, the resultant position emerging from the Act is
B that even if an order of detention is made by a specially
empowered officer of the Central Government or the State
Government as the case may be, the said order will give rise to
obligations to be fulfilled by the government to the same degree
and extent to which it will stand obligated if the detention order
had been made by the government itself. If that be so, then it is
C the concerned government that would constitute the detaining
authority under the Act and not the officer concerned who made
the order of detention, and it is to that government the detenu
should be afforded opportunity to make representation against
the detention order at the earliest opportunity, as envisaged under
D Article 22(5) and not to the officer making the order of detention
in order to provide the detenu an opportunity to make a further
representation to the State Government and thereafter to the
Central Government if the need arises for doing so. Though by
reason of Section 3(1) a specially empowered officer is entitled
to pass an order of detention, his constitutional obligation is only to
E communicate expeditiously to the detenu the grounds of detention
and also afford him opportunity to make representation to the
appropriate governments against his detention. The only further
duty to be performed thereafter is to place the representation
made by the detenu before the concerned officer or the Minister
F empowered under the Rules of Business of the government to
deal with such representation if the detenu addresses his
representation to the officer himself.”
It was thus held that the constitutional obligation of a specially
empowered officer entitled to pass an order of detention wouldonly be
G to communicate expeditiously to the detenue the grounds of detention
and also to afford him opportunity to make representation to the
appropriate Governments against his detention. All the aforesaid three
questions as posed in Para 11 were answered in the negative.
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1069
[UDAY UMESH LALIT, J.]
C) In Amir Shad Khan vs. L. Hmingliana and others11, a Bench A
of Three Judges of this Court observed:-
“3. ……... There can be no doubt that the representation must
be made to the authority which has the power to rescind or revoke
the decision, if need be. Our search for the authority must,
therefore, take us to the statute since the answer cannot be found B
from Article 22(5) of the Constitution read in isolation. As pointed
out earlier that clause casts an obligation on the authority making
the detention order to afford to the detenu an earliest opportunity
to make a representation against the detention order. If we are to
go by the statement in the grounds of detention our search for
that authority would end since the grounds of detention themselves C
state the authorities to which the representation must be made.
The question must be answered in the context of the relevant
provisions of the law. Now as stated earlier by clause (5) of Article
22 a dual obligation is cast on the authority making the detention
order one of which is to afford to the detenu an earliest opportunity D
of making a representation against the order which obligation has
been met by informing the detenu in the grounds of detention to
whom his representation should be addressed. But the authority
to which the representation is addressed must have statutory
backing. In order to trace the source for the statutory backing it
would be advantageous to notice the scheme of the Act providing E
for preventive detention. Section 2(b) defines a detention order to
mean an order made under Section 3. Sub-section (1) of Section
3 empowers the Central Government or the State Government or
any officer of the Central Government, not below the rank of a
Joint Secretary to that government, specially empowered for the F
purposes of this section by that government, or any officer of a
State Government, not below the rank of a Secretary to that
government, specially empowered for the purposes of this section
by that government, to make an order of detention with respect to
any person with a view to preventing him from acting in any
manner prejudicial to the conservation or augmentation of foreign G
exchange or with a view to preventing him from doing any one of
the five prejudicial acts enumerated thereunder. Sub-section (2)
of that section provides that when any order of detention is made
11
(1991) 4 SCC 39 H
1070 SUPREME COURT REPORTS [2020] 2 S.C.R.
A by a State Government or by an officer empowered by a State
Government, the State Government shall, within ten days, forward
to the Central Government a report in respect of the order. It is
evident from this provision that whenever a detention order is
made by the State Government or its officer specially empowered
for that purpose an obligation is cast on the State Government to
B
forward a report to the Central Government in respect of that
order within ten days. The purpose of this provision is clearly to
enable the Central Government to keep an eye on the exercise of
power under Section 3(1) by the State Government or its officer.
Then comes sub-section (3) which reads as under:
C 3. (3) For the purposes of clause (5) of Article 22 of the
Constitution, the communication to a person detained in
pursuance of a detention order of the grounds on which the
order has been made shall be made as soon as may be after
the detention, but ordinarily not later than five days, and in
D exceptional circumstances and for reasons to be recorded in
writing, not later than fifteen days, from the date of detention.”
This provision is clearly intended to meet the obligation cast by
Article 22(5) that the grounds of detention shall be communicated
‘as soon as may be’. The legislation has, therefore, fixed the outer
E limit within which the grounds of detention must be communicated
to the detenu. Thus the first part of the obligation cast by Article
22(5) is met by Section 3(3) of the Act. Section 8 provides for the
Constitution of Advisory Boards. This section is clearly to meet
the obligation of sub-clause (a) of clause (4) and sub-clause (c)
of clause (7) of Article 22 of the Constitution. Section 8(f) which
F has some relevance provides that in every case where the Advisory
Board has reported that there is in its opinion sufficient cause for
the detention of a person, the appropriate government may confirm
the detention order and continue the detention of the person
concerned for such period as it thinks fit and in every case where
G the Advisory Board has reported that there is in its opinion no
sufficient cause for the detention of the person concerned, the
appropriate government shall revoke the detention order and cause
the person to be released forthwith. This provision clearly obliges
the appropriate government to order revocation of the detention
order if the Advisory Board reports want of sufficient cause for
H detention of that person. Then comes Section 11 which reads as
under:
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1071
[UDAY UMESH LALIT, J.]
“11. Revocation of detention orders.— (1) Without prejudice A
to the provisions of Section 21 of the General Clauses Act,
1897, a detention order may, at any time, be revoked or modified
—
(a) notwithstanding that the order has been made by an
officer of a State Government, by that State Government B
or by the Central Government;
(b) notwithstanding that the order has been made by an
officer of the Central Government or by a State
Government, by the Central Government.”
Sub-section (2) is not relevant for our purpose. It is obvious C
from a plain reading of the two clauses of sub-section (1) of
Section 11 that where an order is made by an officer of the
State Government, the State Government as well as the Central
Government are empowered to revoke the detention order.
Where, however, the detention order is passed by an officer of D
the Central Government or a State Government, the Central
Government is empowered to revoke the detention order. Now
this provision is clearly without prejudice to Section 21 of the
General Clauses Act which lays down that where by any
Central Act a power to issue orders is conferred, then that
power includes a power, exercisable in the like manner and E
subject to the like sanction and conditions, if any, to rescind
any order so issued. Plainly the authority which has passed the
order under any Central Act is empowered by this provision to
rescind the order in like manner. This provision when read in
the context of Section 11 of the Act makes it clear that the F
power to rescind conferred on the authority making the detention
order by Section 21 of the General Clauses Act is saved and is
not taken away. Under Section 11 an officer of the State
Government or that of the Central Government specially
empowered under Section 3(1) of the Act to make a detention
order is not conferred the power to revoke it; that power for G
those officers has to be traced to Section 21 of the General
Clauses Act. Therefore, where an officer of the State
Government or the Central Government has passed any
detention order and on receipt of a representation he is
convinced that the detention order needs to be revoked he can H
1072 SUPREME COURT REPORTS [2020] 2 S.C.R.
A do so by virtue of Section 21 of the General Clauses Act since
Section 11 of the Act does not entitle him to do so. If the State
Government passes an order of detention and later desires to
revoke it, whether upon receipt of a representation from the
detenu or otherwise, it would be entitled to do so under Section
21 of the General Clauses Act but if the Central Government
B
desires to revoke any order passed by the State Government
or its officer it can do so only under clause (b) of Section 11(1)
of the Act and not under Section 21 of the General Clauses
Act. This clarifies why the power under Section 11 is conferred
without prejudice to the provisions of Section 21 of the General
C Clauses Act. Thus on a conjoint reading of Section 21 of the
General Clauses Act and Section 11 of the Act it becomes
clear that the power of revocation can be exercised by three
authorities, namely, the officer of the State Government or the
Central Government, the State Government as well as the
Central Government. The power of revocation conferred by
D
Section 8(f) on the appropriate Government is clearly
independent of this power. It is thus clear that Section 8(f) of
the Act satisfies the requirement of Article 22(4) whereas
Section 11 of the Act satisfies the requirement of the latter
part of Article 22(5) of the Constitution. The statutory
E 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 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
F
no relation whatsoever with the constitutional obligation cast
by Article 22(5).”
D. The apparent conflict between the decisions of this Court in
Sushila Mafatlal Shah 9 and Amir Shad Khan 11 came up for
consideration before a Constitution Bench of this Court in Kamlesh
G kumar Ishwardas Patel vs. Union of India and others12 and the
question was posed as under:-
“2. When an order for preventive detention is passed by an officer
especially empowered to do so by the Central Government or the
12
H (1995) 4 SCC 51
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1073
[UDAY UMESH LALIT, J.]
State Government, is the said officer required to consider the A
representation submitted by the detenu?”
The matter was considered as under:-
“6. This provision has the same force and sanctity as any other
provision relating to fundamental rights. (See: State of Bombay v.
Atma Ram Shridhar Vaidya13.) Article 22(5) imposes a dual B
obligation on the authority making the order of preventive detention:
(i) to communicate to the person detained as soon as may be the
grounds on which the order of detention has been made; and (ii)
to afford the person detained the earliest opportunity of making a
representation against the order of detention. Article 22(5) thus C
proceeds on the basis that the person detained has a right to make
a representation against the order of detention and the
aforementioned two obligations are imposed on the authority
making the order of detention with a view to ensure that right of
the person detained to make a representation is a real right and he
is able to take steps for redress of a wrong which he thinks has D
been committed. Article 22(5) does not, however, indicate the
authority to whom the representation is to be made. Since the
object and purpose of the representation that is to be made by the
person detained is to enable him to obtain relief at the earliest
opportunity, the said representation has to be made to the authority E
which can grant such relief, i.e., the authority which can revoke
the order of detention and set him at liberty. The authority that
has made the order of detention can also revoke it. This right is
inherent in the power to make the order. It is recognised by Section
21 of the General Clauses Act, 1897 though it does not flow from
it. It can, therefore, be said that Article 22(5) postulates that the F
person detained has a right to make a representation against the
order of detention to the authority making the order. In addition,
such a representation can be made to any other authority which is
empowered by law to revoke the order of detention.
……… G
14. Article 22(5) must, therefore, be construed to mean that the
person detained has a right to make a representation against the
order of detention which can be made not only to the Advisory
13
1951 SCR 167 = AIR 1951 SC 157 H
1074 SUPREME COURT REPORTS [2020] 2 S.C.R.
A Board but also to the detaining authority, i.e., the authority that
has made the order of detention or the order for continuance of
such detention, which is competent to give immediate relief by
revoking the said order as well as to any other authority which is
competent under law to revoke the order for detention and thereby
give relief to the person detained. The right to make a representation
B
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.
………
C
23. If the power of revocation is to be treated as the criterion for
ascertaining the authority to whom representation can be made,
then the representation against an order of detention made by an
officer specially empowered by the State Government can be
made to the officer who has made the order as well as to the
D State Government and the Central Government who are competent
to revoke the order. Similarly, the representation against an order
made by the State Government can be made to the State
Government as well as to the Central Government and the
representation against an order made by an officer specially
E empowered by the Central Government can be made to the officer
who has made the order as well as to the Central Government.”
After considering relevant decisions, this Court did not accept the
law laid down in SushilaMafatlal Shah9 and observed:-
“30. The decision in Sushila Mafatlal Shah9 proceeds on two
F premises: (i) Article 22(5) does not confer a right to make a
representation to the officer specially empowered to make the
order; and (ii) under the provisions of the COFEPOSA Act when
the order of detention is made by the officer specially empowered
to do so, the detaining authority is the appropriate Government,
G namely, the Government which has empowered the officer to
make the order, since such order acquires “deemed approval” by
the Government from the time of its issue.
31. With due respect, we find it difficult to agree with both the
premises. Construing the provisions of Article 22(5) we have
explained that the right of the person detained to make a
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1075
[UDAY UMESH LALIT, J.]
representation against the order of detention comprehends the A
right to make such a representation to the authority which can
grant such relief i.e. the authority which can revoke the order of
detention and set him at liberty and since the officer who has
made the order of detention is competent to revoke it, the person
detained has the right to make a representation to the officer who
B
made the order of detention. The first premise that such right
does not flow from Article 22(5) cannot, therefore, be accepted.
32. The learned Judges, while relying upon the observations in
Abdul Karim 14 and the decisions in JayanarayanSukul 15 ,
HaradhanSaha16 and John Martin17 have failed to notice that
in these cases the Court was considering the matter in the light of C
the provisions contained in Section 7(1) of the Preventive Detention
Act, 1950, whereby it was prescribed that the representation was
to be made to the appropriate Government. The observations
regarding consideration of the representation by the State
Government in the said decisions have, therefore, to be construed D
in the light of the said provision in the Preventive Detention Act
and on that basis it cannot be said that Article 22(5) does not
postulate that the person detained has no right to make a
representation to the authority making the order of detention.
33. The second premise that the Central Government becomes E
the detaining authority since there is deemed approval by the
Government of the order made by the officer specially empowered
in that regard from the time of its issue, runs counter to the scheme
of the COFEPOSA Act and the PIT NDPS Act which differs
from that of other preventive detention laws, namely, the National
Security Act, 1980, the Maintenance of Internal Security Act, 1971, F
and the Preventive Detention Act, 1950.
34. In the National Security Act there is an express provision
[Section 3(4)] in respect of orders made by the District Magistrate
or the Commissioner of Police under Section 3(3) and the District
Magistrate or the Commissioner of Police who has made the order G
is required to forthwith report the fact to the State Government to
14
(1969) 1 SCC 433
15
(1970) 1 SCC 219 [JayanarayanSukul vs. State of West Bengal]
16
(1975) 3 SCC 198 [HaradhanSaha vs. The State of West Bengal and others]
17
(1975) 3 SCC 836 H
1076 SUPREME COURT REPORTS [2020] 2 S.C.R.
A which he is subordinate. The said provision further prescribes
that no such order shall remain in force for more than twelve
days after the making thereof, unless, in the meantime, it has been
approved by the State Government. This would show that it is the
approval of the State Government which gives further life to the
order which would otherwise die its natural death on the expiry of
B
twelve days after its making. It is also the requirement of Section
3(4) that the report should be accompanied by the grounds on
which the order has been made and such other particulars as, in
the opinion of the said officer, have a bearing on the matter which
means that the State Government has to take into consideration
C the grounds and the said material while giving its approval to the
order of detention. The effect of the approval by the State
Government is that from the date of such approval the detention
is authorised by the order of the State Government approving the
order of detention and the State Government is the detaining
authority from the date of the order of approval. That appears to
D
be the reason why Section 8(1) envisages that the representation
against the order of detention is to be made to the State
Government. The COFEPOSA Act and the PIT NDPS Act do
not require the approval of an order made by the officer specially
empowered by the State Government or by the Central
E Government. The order passed by such an officer operates on its
own force. All that is required by Section 3(2) of the COFEPOSA
Act and the PIT NDPS Act is that the State Government shall
within 10 days forward to the Central Government a report in
respect of an order that is made by the State Government or an
officer specially empowered by the State Government. An order
F
made by the officer specially empowered by the State Government
is placed on the same footing as an order made by the State
Government because the report has to be forwarded to the Central
Government in respect of both such orders. No such report is
required to be forwarded to the Central Government in respect of
G an order made by an officer specially empowered by the Central
Government. Requirement regarding forwarding of the report
contained in Section 3(2) of the COFEPOSA Act and the PIT
NDPS Act cannot, therefore, afford the basis for holding that an
order made by an officer specially empowered by the Central
Government or the State Government acquires deemed approval
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1077
[UDAY UMESH LALIT, J.]
of that Government from the date of its issue. Approval, actual or A
deemed, postulates application of mind to the action being approved
by the authority giving approval. Approval of an order of detention
would require consideration by the approving authority of the
grounds and the supporting material on the basis of which the
officer making the order had arrived at the requisite satisfaction
B
for the purpose of making the order of detention. Unlike Section
3(4) of the National Security Act there is no requirement in the
COFEPOSA Act and the PIT NDPS Act that the officer specially
empowered for the purpose of making of an order of detention
must forthwith send to the Government concerned the grounds
and the supporting material on the basis of which the order of C
detention has been made. Nor is it prescribed in the said enactments
that after the order of detention has been made by the officer
specially empowered for that purpose the Government concerned
is required to apply its mind to the grounds and the supporting
material on the basis of which the order of detention was made.
D
The only circumstance from which inference about deemed
approval is sought to be drawn is that the order is made by the
officer specially empowered for that purpose by the Government
concerned. Merely because the order of detention has been made
by the officer who has been specially empowered for that purpose
would not, in our opinion, justify the inference that the said order E
acquires deemed approval of the Government that has so
empowered him, from the date of the issue of the order so as to
make the said Government the detaining authority. By specially
empowering a particular officer under Section 3(2) of the
COFEPOSA Act and the PIT NDPS Act the Central Government
F
or the State Government confers an independent power on the
said officer to make an order of detention after arriving at his
own satisfaction about the activities of the person sought to be
detained. Since the detention of the person detained draws its
legal sanction from the order passed by such officer, the officer is
the detaining authority in respect of the said person. He continues G
to be the detaining authority so long as the order of detention
remains operative. He ceases to be the detaining authority only
when the order of detention ceases to operate. This would be on
the expiry of the period of detention as prescribed by law or on
the order being revoked by the officer himself or by the authority
H
1078 SUPREME COURT REPORTS [2020] 2 S.C.R.
A mentioned in Section 11 of the COFEPOSA Act and Section 12
of the PIT NDPS Act. There is nothing in the provisions of these
enactments to show that the role of the officer comes to an end
after he has made the order of detention and that thereafter he
ceases to be the detaining authority and the Government concerned
which had empowered him assumes the role of the detaining
B
authority. We are unable to construe the provisions of the said
enactments as providing for such a limited entrustment of power
on the officer who is specially empowered to pass the order. An
indication to the contrary is given in Section 11 of the COFEPOSA
Act and Section 12 of the PIT NDPS Act which preserve the
C power of such officer to revoke the order that was made by him.
This means that the officer does not go out of the picture after he
has passed the order of detention. It must, therefore, be held that
the officer specially empowered for that purpose continues to be
the detaining authority and is not displaced by the Government
concerned after he has made the order of detention. Therefore,
D
by virtue of his being the detaining authority he is required to
consider the representation of the person detained against the
order of detention.
………
7
E 36. It appears that the decision in Ibrahim BachuBafan , a
decision of a Bench of three Judges, was not brought to the notice
9
of the learned Judges deciding Sushila Mafatlal Shah . For the
reasons aforementioned we are of the view that the decision in
9
Sushila Mafatlal Shah insofar as it holds that where an order
of detention made by an officer specially empowered for the
F purpose, representation against the order of detention is not required
to be considered by such officer and it is only to be considered by
the appropriate Government empowering such officer, does not
lay down the correct law.
………
G
38. Having regard to the provisions of Article 22(5) of the
Constitution and the provisions of the COFEPOSA Act and the
PIT NDPS Act the question posed is thus answered: Where the
detention order has been made under Section 3 of the COFEPOSA
Act and the PIT NDPS Act by an officer specially empowered
H for that purpose either by the Central Government or the State
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1079
[UDAY UMESH LALIT, J.]
Government the person detained has a right to make a A
representation to the said officer and the said officer is obliged to
consider the said representation and the failure on his part to do
so results in denial of the right conferred on the person detained
to make a representation against the order of detention. This right
of the detenu is in addition to his right to make the representation
B
to the State Government and the Central Government where the
detention order has been made by an officer specially authorised
by a State Government and to the Central Government where the
detention order has been made by an officer specially empowered
by the Central Government, and to have the same duly considered.
This right to make a representation necessarily implies that the C
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
D
representation.
12. With the judgment of the Constitution Bench of this Court in
Kamleshkumar12, the law on the first issue is well settled that where
the detention order is made inter alia under Section 3 of the COFEPOSA
Actby an officer specially empowered for that purpose either by the
Central Government or the State Government, the person detained E
has a right to make a representation to the said officer; and the
said officer is obliged to consider the said representation; and the
failure on his part to do so would result in denial of the right
conferred on the person detained to make a representation. Further,
such right of the detenue has been taken to be in addition to the right to F
make the representation to the State Government and the Central
Government. It must be stated that para 12 of the grounds of detention
in the instant case, as quoted hereinabove, is in tune with the law so
declared by this Court.
13. We now move to the second issue and consider the decisions G
of this Court on the point:-
A) In Pankaj Kumar Chakrabarty and others vs. The State of
West Bengal18 a Constitution Bench of this Court considered the matter
where orders of detention were passed by the District Magistrates under
18
(1969) 3 SCC 400 = (1970) 1 SCR 543 H
1080 SUPREME COURT REPORTS [2020] 2 S.C.R.
A Section 3(1)(a)(ii) and (iii) read with Section 3(2) of 1950 Act19. As
stated in paragraph 2 of the decision, the case of the detenue was placed
before the Advisory Board on 21.09.1968. A representation against the
order of detention was made to the State Government on 21.10.1968.
An opinion was given by the Advisory Board on 06.11.1968 that there
was sufficient cause for detention of the person concerned, whereafter
B
the order was confirmed on 11.11.1968. While in the case considered in
paragraph 4, the representation was made after the case was referred
to the Advisory Board. In the light of these facts, following two questions
were framed:-
“6. On these contentions two questions arise: (i) whether there is
C on the appropriate Government the obligation to consider the
representation made by a detenue, and (2) if there is, whether it
makes any difference where such a representation is made after
the detenu’s case is referred to the Advisory Board.”
The matter was, thereafter, considered and it was observed:-
D
“10. It is true that clause 5 does not in positive language provide
as to whom the representation is to be made and by whom, when
made, it is to be considered. But the expressions “as soon as may
be” and “the earliest opportunity” in that clause clearly indicate
that the grounds are to be served and the opportunity to make a
E representation are provided for to enable the detenu to show that
his detention is unwarranted and since no other authority who
should consider such representation is mentioned it can only be
the detaining authority to whom it is to be made which has to
consider it. Though clause 5 does not in express terms say so it
F follows from its provisions that it is the detaining authority which
has to give to the detenu the earliest opportunity to make a
representation and to consider it when so made whether its order
is wrongful or contrary to the law enabling it to detain him. The
illustrations given in Sk. Abdul Karim case show that clause 5 of
Article 22 not only contains the obligation of the appropriate
G Government to furnish the grounds and to give the earliest
opportunity to make a representation but also by necessary
implication the obligation to consider that representation. Such an
obligation is evidently provided for to give an opportunity to the
detenu to show and a corresponding opportunity to the appropriate
19
H The Preventive Detention Act, 1950
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1081
[UDAY UMESH LALIT, J.]
Government to consider any objections against the order which A
the detenu may raise so that no person is, through error or otherwise,
wrongly arrested and detained. If it was intended that such a
representation need not be considered by the Government where
an Advisory Board is constituted and that representation in such
cases is to be considered by the Board and not by the appropriate
B
Government, clause 5 would not have directed the detaining
authority to afford the earliest opportunity to the detenu. In that
case the words would more appropriately have been that the
authority should obtain the opinion of the Board after giving an
opportunity to the detenu to make a representation and
communicate the same to the Board. But what would happen in C
cases where the detention is for less than 3 months and there is
no necessity of having the opinion of the Board? If Counsel’s
contention were to be right the representation in such cases would
not have to be considered either by the appropriate Government
or by the Board and the right of representation and the
D
corresponding obligation of the appropriate Government to give
the earliest opportunity to make such representation would be
rendered nugatory. In imposing the obligation to afford the
opportunity to make a representation, clause 5 does not make any
distinction between orders of detention for only 3 months or less
and those for a longer duration. The obligation applies to both E
kinds of orders. The clause does not say that the representation is
to be considered by the appropriate Government in the former
class of cases and by the Board in the latter class of cases. In our
view it is clear from clauses 4 and 5 of Article 22 that there is a
dual obligation on the appropriate Government and a dual right in
F
favour of the detenu, namely, (1) to have his representation
irrespective of the length of detention considered by the appropriate
Government and (2) to have once again that representation in the
light of the circumstances of the case considered by the Board
before it gives its opinion. If in the light of that representation the
Board finds that there is no sufficient cause for detention the G
Government has to revoke the order of detention and set at liberty
the detenu. Thus, whereas the Government considers the
representation to ascertain whether the order is in conformity with
its power under the relevant law, the Board considers such
representation from the point of view of arriving at its opinion
H
1082 SUPREME COURT REPORTS [2020] 2 S.C.R.
A whether there is sufficient cause for detention. The obligation of
the appropriate Government to afford to the detenu the opportunity
to make a representation and to consider that representation is
distinct from the Government’s obligation to constitute a Board
and to communicate the representation amongst other materials
to the Board to enable it to form its opinion and to obtain such
B
opinion.
11. This conclusion is strengthened by the other provisions of the
Act. In conformity with clauses 4 and 5 of Article 22, Section 7 of
the Act enjoins upon the detaining authority to furnish to the detenu
grounds of detention within five days from the date of his detention
C and to afford to the detenu the earliest opportunity to make his
representation to the appropriate Government. Sections 8 and 9
enjoin upon the appropriate Government to constitute an Advisory
Board and to place within 30 days from the date of the detention
the grounds for detention, the detenu’s representation and also
D the report of the officer where the order of detention is made by
an officer and not by the Government. The obligation under Section
7 is quite distinct from that under Sections 8 and 9. If the
representation was for the consideration not by the Government
but by the Board only as contended, there was no necessity to
provide that it should be addressed to the Government and not
E directly to the Board. The Government could not have been
intended to be only a transmitting authority nor could it have been
contemplated that it should sit tight on that representation and
remit it to the Board after it is constituted. The peremptory language
in clause 5 of Article 22 and Section 7 of the Act would not have
F been necessary if the Board and not the Government had to
consider the representation. Section 13 also furnishes an answer
to the argument of Counsel for the State. Under that section the
State Government and the Central Government are empowered
to revoke or modify an order of dentention. That power is evidently
provided for to enable the Government to take appropriate action
G where on a representation made to it, it finds that the order in
question should be modified or even revoked. Obviously, the
intention of Parliament could not have been that the appropriate
Government should pass an order under Section 13 without
considering the representation which has under Section 7 been
H addressed to it.
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1083
[UDAY UMESH LALIT, J.]
12. For the reasons aforesaid we are in agreement with the decision A
in Sk. Abdul Karim case. Consequently, the petitioners had a
constitutional right and there was on the State Government a
corresponding constitutional obligation to consider their
representations irrespective of whether they were made before
or after their cases were referred to the Advisory Board and that
B
not having been done the order of detention against them cannot
be sustained. In this view it is not necessary for us to examine the
other objections raised against these orders. The petition is
therefore allowed, the orders of detention against Petitioners 15
and 36 are set aside and we direct that they should be set at
liberty forthwith.” (Emphasis added) C
B. In Jayanarayan Sukul15, considered by another Constitution
Bench of this Court, the order of detention was passed by the District
Magistrate under the relevant provisions of 1950 Act. A representation
was made by the detenue to the State Government on 23.06.1969. The
case of the detenue was placed before the Advisory Board on 01.07.1969 D
which reported on 13.08.1969 that there was sufficient cause for the
detention. It was only thereafter that the representation was considered
and rejected on 19.08.1969. In the context of these facts, it was observed:-
“13. It, therefore, follows that the appropriate authority is to
consider the representation of the detenu uninfluenced by any E
opinion or consideration of the Advisory Board. In the case of
Khairul Haque v. State of W.B.20 this Court observed that “it is
implicit in the language of Article 22 that the appropriate
Government, while discharging its duty to consider the
representation cannot depend upon the views of the Board on
such representation”. The logic behind this proposition is that the F
Government should immediately consider the representation of
the detenu before sending the matter to the Advisory Board and
further that such action will then have the real flavour of
independent judgment.
… … … G
18. It is established beyond any measure of doubt that the
appropriate authority is bound to consider the representation of
the detenu as early as possible. The appropriate Government itself
20
W.P. No.246 of 1969, decided on 10-9-69 H
1084 SUPREME COURT REPORTS [2020] 2 S.C.R.
A is bound to consider the representation as expeditiously as possible.
The reason for immediate consideration of the representation is
too obvious to be stressed. The personal liberty of a person is at
stake. Any delay would not only be an irresponsible act on the
part of the appropriate authority but also unconstitutional because
the Constitution enshrines the fundamental right of a detenu to
B
have his representation considered and it is imperative that when
the liberty of a person is in peril immediate action should be taken
by the relevant authorities. (Emphasis added)
19. No definite time can be laid down within which a representation
of a detenu should be dealt with save and except that it is a
C constitutional right of detenu to have his representation considered
as expeditiously as possible. It will depend upon the facts and
circumstances of each case whether the appropriate Government
has disposed of the case as expeditiously as possible for otherwise
in the words of Shelat, J., who spoke for this Court in the case of
D Khairul Haque20 “It is obvious that the obligation to furnish the
earliest opportunity to make a representation loses both its purpose
and meaning”.
20. Broadly stated, four principles are to be followed in regard to
representation of detenus. First, the appropriate authority is bound
E to give an opportunity to the detenu to make a representation and
to consider the representation of the detenu as early as possible.
Secondly, the consideration of the representation of the detenu by
the appropriate authority is entirely independent of any action by
the Advisory Board including the consideration of the representation
of the detenu by the Advisory Board. Thirdly, there should not be
F any delay in the matter of consideration. It is true that no hard and
fast rule can be laid down as to the measure of time taken by the
appropriate authority for consideration but it has to be remembered
that the Government has to be vigilant in the governance of the
citizens. A citizen’s right raises a correlative duty of the State.
G Fourthly, the appropriate Government is to exercise its opinion
and judgment on the representation before sending the case along
with the detenu’s representation to the Advisory Board. If the
appropriate Government will release the detenu the Government
will not send the matter to the Advisory Board. If however the
Government will not release the detenu the Government will send
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1085
[UDAY UMESH LALIT, J.]
the case along with the detenu’s representation to the Advisory A
Board. If thereafter the Advisory Board will express an opinion in
favour of release of the detenu the Government will release the
detenu. If the Advisory Board will express any opinion against
the release of the detenu the Government may still exercise the
power to release the detenu. (Emphasis Added)
B
21. In the present case, the State of West Bengal is guilty of
infraction of the constitutional provisions not only by inordinate
delay of the consideration of the representation but also by putting
of the consideration till after the receipt of the opinion of the
Advisory Board. As we have already observed there is no
explanation for this inordinate delay. The Superintendent who made C
the enquiry did not affirm an affidavit. The State has given no
information as to why this long delay occurred. The inescapable
conclusion in the present case is that the appropriate authority
failed to discharge its constitutional obligation by inactivity and
lack of independent judgment.” D
C) In Haradhan Saha16 yet another Constitution Bench of this
Court considered the distinction between the consideration of
representation by the Government and by the Advisory Board as under.
“24. The representation of a detenu is to be considered. There is
an obligation on the State to consider the representation. The E
Advisory Board has adequate power to examine the entire material.
The Board can also call for more materials. The Board may call
the detenu at his request. The constitution of the Board shows
that it is to consist of Judges or persons qualified to be Judges of
the High Court. The constitution of the Board observes the F
fundamental of fair play and principles of natural justice. It is not
the requirement of principles of natural justice that there must be
an oral hearing. Section 8 of the Act which casts an obligation on
the State to consider the representation affords the detenu all the
rights which are guaranteed by Article 22(5). The Government
considers the representation to ascertain essentially whether the G
order is in conformity with the power under the law. The Board,
on the other hand, considers whether in the light of the
representation there is sufficient cause for detention.(Emphasis
Added)
… … … H
1086 SUPREME COURT REPORTS [2020] 2 S.C.R.
A 29. Principles of natural justice are an element in considering the
reasonableness of a restriction where Article 19 is applicable. At
the stage of consideration of representation by the State
Government, the obligation of the State Government is such as
Article 22(5) implies. Section 8 of the Act is in complete conformity
with Article 22(5) because this section follows the provisions of
B
the Constitution. If the representation of the detenu is received
before the matter is referred to the Advisory Board, the detaining
authority considers the representation. If a representation is made
after the matter has been referred to the Advisory Board, the
detaining authority will consider it before it will send representation
C to the Advisory Board.”(Emphasis Added)
It was, thus, clarified that if the representation is received before
the matter is referred to the Advisory Board, the Detaining Authority
ought to consider such representation; and if the representation is made
after the matter is referred to the Advisory Board, the Detaining Authority
D would first consider it and then send the representation to the Advisory
Board.
D) In Frances Coralie Mullin vs. W.C. Khambra21, a bench of
two Judges of this Court considered the principles laid down in
Jayanarayan Sukul15and made following observations:-
E “5. We have no doubt in our minds about the role of the court in
cases of preventive detention: it has to be one of eternal vigilance.
No freedom is higher than personal freedom and no duty higher
than to maintain it unimpaired. The Court’s writ is the ultimate
insurance against illegal detention. The Constitution enjoins
F conformance with the provisions of Article 22 and the Court exacts
compliance. Article 22(5) vests in the detenu the right to be provided
with an opportunity to make a representation. Here the Law
Reports tell a story and teach a lesson. It is that the principal
enemy of the detenu and his right to make a representation is
neither high-handedness nor mean-mindedness but the casual
G indifference, the mindless insensibility, the routine and the red tape
of the bureaucratic machine. The four principles enunciated by
the Court in JayanarayanSukul v. State of W.B.15 as well as
other principles enunciated in other cases, an analysis will show,
are aimed at shielding personal freedom against indifference,
21
H (1980) 2 SCC 275
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1087
[UDAY UMESH LALIT, J.]
insensibility, routine and red tape and thus to secure to the detenu A
the right to make an effective representation. We agree: (1) the
detaining authority must provide the detenu a very early opportunity
to make a representation, (2) the detaining authority must consider
the representation as soon as possible, and this, preferably, must
be before the representation is forwarded to the Advisory Board,
B
(3) the representation must be forwarded to the Advisory Board
before the Board makes its report, and (4) the consideration by
the detaining authority of the representation must be entirely
independent of the hearing by the Board or its report, expedition
being essential at every stage. We, however, hasten to add that
the time-imperative can never be absolute or obsessive. The C
Court’s observations are not to be so understood. There has to be
lee-way, depending on the necessities (we refrain from using the
word “circumstances”) of the case. One may well imagine a case
where a detenu does not make a representation before the Board
makes its report making it impossible for the detaining authority
D
either to consider it or to forward it to the Board in time or a case.
where a detenu makes a representation to the detaining authority
so shortly before the Advisory Board takes up the reference that
the detaining authority cannot consider the representation before
then but may merely forward it to the Board without himself
considering it. Several such situations may arise compelling E
departure from the time-imperative. But no allowance can be made
for lethargic indifference. No allowance can be made for needless
procrastination. But, allowance must surely be made for necessary
consultation where legal intricacies and factual ramifications are
involved. The burden of explaining the necessity for the slightest
F
departure from the time-imperative is on the detaining authority.
………
7. We have already expressed our agreement with the four
principles enunciated in JayanarayanSukul v. State of W.B.15.
We would make one observation. When it was said there that the G
Government should come to its decision on the representation
before the Government forwarded the representation to the
Advisory Board, the emphasis was not on the point of time but on
the requirement that the Government should consider the
representation independently of the Board. This was explained in
H
1088 SUPREME COURT REPORTS [2020] 2 S.C.R.
A Nagendra Nath Mondal v. State of W.B22. In Sukul case15 the
court also made certain pertinent observations at pp. 231-232:
(SCC p. 224, para 19)
“No definite time can be laid down within which a
representation of a detenu should be dealt with save and except
B that it is a constitutional right of a detenu to have his
representation considered as expeditiously as possible. It will
depend upon the facts and circumstances of each case whether
the appropriate Government has disposed of the case as
expeditiously as possible....”
C E) In K.M. Abdullah Kunhi6, in view of the conflict between
two decisions of this Court the matter was referred to the Constitution
Bench as is clear from paragraphs 1 and 2 of saiddecision:-
“1. A Division Bench of this Court while expressing the view that
the decisions in V.J. Jain v. Shri Pradhan23 and Om Prakash
D Bahl v. Union of India24 require reconsideration has referred
these matters to the Constitution Bench.
2. It is convenient at this point to refer to the statement of law laid
down in the aforesaid two cases. In both the cases, as in the
present case, the persons were detained under the Conservation
E of Foreign Exchange and Prevention of Smuggling Activities Act,
1974 (‘the Act’). The detenu made representation to the
appropriate government. By then the Advisory Board was already
constituted and it was scheduled to meet to consider the case of
the detenu. The government forwarded the detenu’s representation
to the Advisory Board. The Advisory Board considered the case
F of the detenu and also the representation and submitted report
expressing the opinion that there was sufficient cause for the
detention of the person. The government after considering that
report confirmed the order of detention. It appears that the
representation of the detenu was not considered before confirming
G the detention order and it came to be considered and rejected
only thereafter. In V.J. Jain case23 this Court observed that the
representation of the detenu should be considered by the detaining
authority as early as possible before any order is made confirming
22
(1972) 1 SCC 498
23
(1979) 4 SCC 401
24
H W.P. No.845 of 1979, decided on October 15, 1979
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1089
[UDAY UMESH LALIT, J.]
the detention. The confirmation of the detention order without the A
consideration of representation would be invalid and the subsequent
consideration of the representation would not cure the invalidity
of the order of confirmation. This view has been reiterated in the
unreported judgment in Om Prakash Bahl case24.”
In that case the detention orders were passed by the State B
Government under Section 3(1)(iv) of the COFEPOSA Act. The
representations were made by the detenues on 17.04.1989 which,
however, could not be considered immediately as certain information
and comments were required. In the meantime, the case was referred
to the Advisory Board which in its report dated 20.04.1989 foundthat
there was sufficient cause for the detention. On 27.04.1989, the detention C
was confirmed by the State Government. Thereafter, the representations
were considered on 6th and 7th May, 1989 by the State Government and
by the Central Government on 23.05.1989. In the backdrop of these
facts, the question that arose was:-
“5. The principal question for consideration is whether the D
confirmation of detention order upon accepting the report of the
Advisory Board renders itself invalid solely on the ground that the
representation of the detenu was not considered and the
subsequent consideration of the representation would not cure
that invalidity. At the outset it may be made clear that there is no E
argument addressed before us that there was unexplained delay
in considering the representation of the detenu. Indeed, counsel
for the petitioners very fairly submitted that they are not raising
the question of delay. They also did not argue that the rejection of
the representation after the confirmation of detention was not an
independent consideration.” F
After considering the relevant decisions on the point, including
Pankaj Kumar Chakrabarty 18, Jayanarayan Sukul 15, Haradhan
Saha16 and Frances Coralie Mullin21 this Court observed:-
“15. In Frances Coralie Mullin case, the detenu’s representation G
was received by the detaining authority on December 26, 1979.
Without any loss of time copy of the representation was sent to
the customs authorities for their remarks which was obviously
necessary because the information leading to the order of detention
was collected by the customs authorities. The facts were
undoubtedly complex since the allegations against the detenu H
1090 SUPREME COURT REPORTS [2020] 2 S.C.R.
A revealed an involvement with an international gang of dope
smugglers. The comments of the customs authorities were received
on January 4, 1980. The Advisory Board was meeting on January
4, 1980 and so there could be no question of the detaining authority
considering the representation of the detenu before the Board
met, unless it was done in a great and undue haste. After obtaining
B
the comments of the customs authorities, it was found necessary
to take legal advice as the representation posed many legal and
constitutional questions, so, after consultation with the Secretary
(Law and Judicial) Delhi Administration, the representation was
finally rejected by the Administrator on January 15, 1980. It was
C held that if there appeared to be any delay it was not due to any
want of care but because the representation required a thorough
examination in consultation with investigation agencies and
advisers on law.
16. We agree with the observations in Frances Coralie Mullin
D case. The time imperative for consideration of representation can
never be absolute or obsessive. It depends upon the necessities
and the time at which the representation is made. The
representation may be received before the case is referred to the
Advisory Board, but there may not be time to dispose of the
representation before referring the case to the Advisory Board.
E In that situation the representation must also be forwarded to the
Advisory Board along with the case of the detenu. The
representation may be received after the case of the detenu is
referred to the Board. Even in this situation the representation
should be forwarded to the Advisory Board provided the Board
F has not concluded the proceedings. In both the situations there is
no question of consideration of the representation before the receipt
of report of the Advisory Board. Nor it could be said that the
government has delayed consideration of the representation,
unnecessarily awaiting the report of the Board. It is proper for
the government in such situations to await the report of the Board.
G If the Board finds no material for detention on the merits and
reports accordingly, the government is bound to revoke the order
of detention. Secondly, even if the Board expresses the view that
there is sufficient cause for detention, the government after
considering the representation could revoke the detention. The
H Board has to submit its report within eleven weeks from the date
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1091
[UDAY UMESH LALIT, J.]
of detention. The Advisory Board may hear the detenu at his A
request. The constitution of the Board shows that it consists of
eminent persons who are Judges or persons qualified to be Judges
of the High Court. It is therefore, proper that the government
considers the representation in the aforesaid two situations only
after the receipt of the report of the Board. If the representation
B
is received by the government after the Advisory Board has made
its report, there could then of course be no question of sending the
representation to the Advisory Board. It will have to be dealt with
and disposed of by the government as early as possible. (Emphasis
added)
… … … C
19. There is no constitutional mandate under clause (5) of Article
22, much less any statutory requirement to consider the
representation before confirming the order of detention. As long
as the government without delay considers the representation with
an unbiased mind there is no basis for concluding that the absence D
of independent consideration is the obvious result if the
representation is not considered before the confirmation of
detention. Indeed, there is no justification for imposing this
restriction on the power of the government. As observed earlier,
the government’s consideration of the representation is for a E
different purpose, namely, to find out whether the detention is in
conformity with the power under the statute. This has been
explained in HaradhanSaha case, where Ray, C.J., speaking
for the Constitution Bench observed that the consideration of the
representation by the government is only to ascertain whether the
detention order is in conformity with the power under the law. F
There need not be a speaking order in disposing of such
representation. There is also no failure of justice by the order not
being a speaking order. All that is necessary is that there should
be real and proper consideration by the government.
20. It is necessary to mention that with regard to liberty of citizens G
the court stands guard over the facts and requirements of law, but
court cannot draw presumption against any authority without
material. It may be borne in mind that the confirmation of detention
does not preclude the government from revoking the order of
detention upon considering the representation. Secondly, there may H
1092 SUPREME COURT REPORTS [2020] 2 S.C.R.
A be cases where the government has to consider the representation
only after confirmation of detention. Clause (5) of Article 22
suggests that the representation could be received even after
confirmation of the order of detention. The words ‘shall afford
him the earliest opportunity of making a representation against
the order’ in clause (5) of Article 22 suggest that the obligation of
B
the government is to offer the detenu an opportunity of making a
representation against the order, before it is confirmed according
to the procedure laid down under Section 8 of the Act. But if the
detenu does not exercise his right to make representation at that
stage, but presents it to the government after the government has
C confirmed the order of detention, the government still has to
consider such representation and release the detenu if the detention
is not within the power conferred under the statute. The
confirmation of the order of detention is not conclusive as against
the detenu. It can be revoked suo motu under Section 11 or upon
a representation of the detenu. It seems to us therefore, that so
D
long as the representation is independently considered by the
government and if there is no delay in considering the
representation, the fact that it is considered after the confirmation
of detention makes little difference on the validity of the detention
or confirmation of the detention. The confirmation cannot be
E invalidated solely on the ground that the representation is
considered subsequent to confirmation of the detention. Nor it
could be presumed that such consideration is not an independent
consideration. With all respect, we are not inclined to subscribe to
the views expressed in V.J. Jain, Om Prakash Bahl and Khairul
Haque cases. They cannot be considered to be good law and
F
hence stand overruled.”
Two situations were considered in paragraph 16 by this Court.
One, where the representation is received just before the case is referred
to the Advisory Board and there is no time to dispose of the representation
before such reference; and second, where the representation is received
G after such reference to the Advisory Board. It was observed that, “……In
both the situations there is no question of consideration of the
representation before the receipt of report of the Advisory Board….
It is proper for the government in such situations to await the report
of the Board.”The reasons for such observations were given in the
H latter part of paragraph 16 and in paragraphs 19 and 20.
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1093
[UDAY UMESH LALIT, J.]
F) In Golam Biswas 5, the order of detention under the A
COFEPOSA Act was passed on 27.05.2014. A representation was made
to the Central Government on 08.07.2014. The reference was made to
the Advisory Board on 18.07.2014 which reported on 27.08.2014 that
there was sufficient cause for detention. Thereafter, the detention was
confirmed on 05.09.2014. In the meantime, the representation which
B
was pending with the Central Government, was rejected on 21.07.2014.
A bench of two Judges of this Court considered the submission in
paragraph 11 and 15 as under:-
“11. To start with the dates setting out the intervening events are
not in dispute. To repeat, the detenu had submitted his
representation on 8-7-2014 and the same was pending C
consideration on merit before the Central Government on
18-7-2014, the date on which the matter was remitted to the
Advisory Board under the Act. The representation was rejected
on 21-7-2014 when the matter was pending before the Advisory
Board. The Advisory Board concluded its proceedings and gave D
a finding sustaining the order of detention on 27-8-2014.
Unmistakably, thus, the detenu’s representation which was pending
at the time of remittance of the matter to the Advisory Board was
not forwarded to it and instead was rejected by the Central
Government during the pendency of the proceedings before the
Advisory Board. E
… … …
15. As admittedly, the detenu’s representation dated 8-7-2014,
pending with the Central Government, the appropriate Government
in the case, was not forwarded to the Advisory Board and was F
instead rejected during the pendency of the proceedings before
the Advisory Board, we are constrained to hold that the detention
of the detenu is constitutionally invalid. The rejection of the
representation by the Central Government later on 21-7-2014
during the pendency of the proceedings before the Advisory Board
is of no consequence to sustain the detention. Consequently, the G
order of confirmation as well is rendered non est by this vitiation.
In view of the determination made on the above aspect of the
debate, we do not consider it necessary to dilate on the other
pleas raised on behalf of the detenu. In the result, the appeal
succeeds. The impugned judgment and order is set aside. The H
1094 SUPREME COURT REPORTS [2020] 2 S.C.R.
A orders of detention as well as the order of confirmation are hereby
annulled. The detenu is directed to be set at liberty, if not wanted
in any other case.”
Thus, failure on part of the appropriate Government to forward
the representation to the Advisory Board and rejection thereof while the
B proceedings were pending before the Advisory Board, were the points
on which the relief was granted to the detenue.
14. In the context of the second issue stated earlier, the principles
that emerge from the decisions referred to above are:-
A) In Pankaj Kumar Chakrabarty18, it was laid down:-
C
“the petitioners had a constitutional right and there was
on the State Government a corresponding constitutional
obligation to consider their representations irrespective
of whether they were made before or after their cases were
referred to the Advisory Board”
D
According to this decision it was immaterial whether the
representations were made before or after the cases were referred to
the Advisory Board.
B) In Jayanarayan Sukul 15 , the reason for immediate
consideration of the representation was stressed in para 18 as under:-
E
“The reason for immediate consideration of the representation
is too obvious to be stressed. The personal liberty of a person
is at stake. Any delay would not only be an irresponsible act
on the part of the appropriate authority but also
unconstitutional because the Constitution enshrines the
F
fundamental right of a detenu to have his representation
considered and it is imperative that when the liberty of a person
is in peril immediate action should be taken by the relevant
authorities.”
Thereafter four principles that must be followed in regard to
G consideration of the representation of a detenue were dealt with in
paragraph 20; the second principle being:-
“Secondly, the consideration of the representation of the
detenu by the appropriate authority is entirely independent
of any action by the Advisory Board including the
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1095
[UDAY UMESH LALIT, J.]
consideration of the representation of the detenu by the A
Advisory Board.”
It was thus stated that the consideration of the representation
must be entirely independent of the action by the Advisory Board.
The 4th principle put the obligation upon the appropriate Government
to consider the representationas:- B
“the appropriate Government is to exercise its opinion and
judgment on the representation before sending the case along
with the detenu’s representation to the Advisory Board.”
C) In Haradhan Saha16, the qualitative difference between C
consideration of the representation by the Government on one hand and
by the Advisory Board on the other, was clarified in para 24 as:-
“
The Government considers the representation to ascertain
essentially whether the order is in conformity with the power
under the law. The Board, on the other hand, considers D
whether in the light of the representation there is sufficient
cause for detention.”
The cases where the representations were received before the
reference and after the reference were also dealt with in para 29 as :-
“If the representation of the detenu is received before the E
matter is referred to the Advisory Board, the detaining
authority considers the representation. If a representation is
made after the matter has been referred to the Advisory Board,
the detaining authority will consider it before it will send
representation to the Advisory Board.”
F
D) In Frances Coralie Mullin 21 , the principle that the
consideration by the Detaining Authority of the representation must be
entirely independent of the hearing by the Board or its report was again
stressed with emphasis on “expedition being essential at every stage”
Para 7 of the decision explained the principles in Jayanarayan G
Sukul15as:-
“when it was said there that the Government should come
to its decision on the representation before the Government
forwarded the representation to the Advisory Board, the emphasis
was not on the point of time but on the requirement that the H
1096 SUPREME COURT REPORTS [2020] 2 S.C.R.
A Government should consider the representation independently of
the Board.”
15. These decisions clearly laid down that the consideration of
representations by the appropriate Government by the Board would
always be qualitatively different and the power of consideration by the
B appropriate Government must be completely independent of any action
by the Advisory Board.In para 12 of the decision in Pankaj Kumar
Chakrabarty18 it was stated that the obligation on part of the Government
to consider representation would be irrespective whether the
representation was made before or after the case was referred to the
Advisory Board. As stated in paragraph 18, this was stated so, as any
C delay in consideration of the representation would not only be an
irresponsible act on part of the appropriate authority but also
unconstitutional. The contingency whether the representations were
received before or after was again considered in para 29 of the decision
in Haradhan Saha 16. In terms of these principles, the matter of
D consideration of representation in the context of reference to the Advisory
Board, can be put in following four categories:-
A) If the representation is received well before the reference is
made to the Advisory Board and can be considered by the appropriate
Government, the representation must be considered with expedition.
E Thereafter the representation along with the decision taken on the
representation shall be forwarded to and must form part of the documents
to be placed before the Advisory Board.
B) If the representation is received just before the reference is
made to the Advisory Board and there is no sufficient time to decide the
F representation, in terms of law laid down in Jayanarayan Sukul15 and
Haradhan Saha16 the representation must be decided first and thereafter
the representation and the decision must be sent to the Advisory Board.
This is premised on the principle that the consideration by the appropriate
Government is completely independent and also that there ought not to
be any delay in consideration of the representation.
G
C) If the representation is received after the reference is made
but before the matter is decided by the Advisory Board, according to the
principles laid down in Haradhan Saha16, the representation must be
decided. The decision as well as the representation must thereafter be
immediately sent to the Advisory Board.
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1097
[UDAY UMESH LALIT, J.]
D) If the representation is received after the decision of the A
Advisory Board, the decisions are clear that in such cases there is no
requirement to send the representation to the Advisory Board. The
representation in such cases must be considered with expedition.
16. There can be no difficulty with regard to the applicability of
the principles in the 1st and the 4thstage of the aforesaid categories. The B
difficulty may arise as regards the application of principles at the 2 nd and
the 3rd stage. But that difficulty was dealt with sufficient clarity in
Jayanarayan Sukul15and Haradhan Saha16as stated hereinabove. If
it is well accepted that the representation must be considered with utmost
expedition; and the power of the Government is completely independent
of the power of the Advisory Board; and the scope of consideration is C
also qualitatively different, there is no reason why the consideration by
the Government must await the decision by the Advisory Board. None
of the aforesaid cases even remotely suggested that the consideration
must await till the report was received from the Advisory Board.
17. However, it was for the first time that the decision in K.M. D
Abdulla Kunhi6 laid down in paragraph 16 that it would be proper for
the Government in the two situations dealt with in said paragraph to
await the report of the Board; those two situations being:-
a) where the representation is received before the matter is
referred to the Advisory Board and where there may not be sufficient E
time to dispose of the representation before referring the case to the
Advisory Board, and
b) where the representation is received after the case is referred
to the Advisory Board.
F
It was also laid down:-
“In both the situations there is no question of consideration
of the representation before the receipt of report of the Advisory
Board.”
18. Since the decision of this Court in K.M. Abdulla Kunhi6 was G
rendered by the Constitution Bench of this Court after considering all
the earlier decisions on the point including those in Pankaj Kumar
Chakrabarty18, Jayanarayan Sukul15 and Haradhan Saha16, we are
bound by the principles laid down therein. When the learned counsel for
the petitioner were so confronted, it was submitted by them that the
H
1098 SUPREME COURT REPORTS [2020] 2 S.C.R.
A decision in K.M. Abdulla Kunhi6 dealt with the matter relating to the
consideration of representation by the appropriate Government and not
in the context where power of detention was exercised by a specially
empowered officer as the Detaining Authority. According to them, that
would make a huge difference and put the matter in a qualitatively
different compass.
B
19. We now proceed to deal with these submissions.
20. At the outset it must be stated that in Pankaj Kumar
Chakrabarty18and in Jayanarayan Sukul15 the orders of detention were
passed by the District Magistrates under Section 3(ii) of 1950 Act. The
C relevant statutory provisions contemplated the concept of approval within
12 days of the passing of such orders of detention passed by the District
Magistrates. In Haradhan Saha16 power was exercised by the District
Magistrates under the provisions of the MISA, wherein similar concept
of approval on part of the State Government within 12 days of the passing
of the order of detention by the District Magistrate was contemplated.
D The distinction on that count was noted by this Court in para 34 of the
decision in Kamleshkumar12. The orders of detention in these decisions
were not passed by a specially empowered officer but by the concerned
Government. The same logic regarding deemed approval was extended
initially in Sushila Mafatlal Shah9 to cases where the orders of detention
E were passed not by the concerned Government but by a specially
empowered officer. The matter was, however, corrected and the
distinction in that behalf was succinctly dealt with in Kamleshkumar12.
21. It must also be borne in mind that in all cases, the appropriate
Government would be acting in two capacities; one while considering
F the representation and the other while taking appropriate decision after
a report is received from the Advisory Board that there is sufficient
cause for detention. Since the decision would be required to be taken in
these two capacities, it was observed in K.M. Abdulla Kunhi6 that it
would be proper for the appropriate Government to wait till the report is
received from the Advisory Board in cases dealt with in paragraph 16 of
G the decision. But such may not be the case with the Detaining Authority
who is a specially empowered officer.
22. A specially empowered officer who passes the order of
detention, in exercise of special empowerment, has no statutory role to
play at the stage when the report is received from the Advisory Board.
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1099
[UDAY UMESH LALIT, J.]
The report is to be considered by the appropriate Government and not A
by the specially empowered officer. It may also be relevant at this stage
to consider the element of confidentiality associated with the report of
the Advisory Board. Section 8 of the COFEPOSA Act states:-
“8. Advisory Board.- For the purposes of sub-clause(a) of clause
(4), and sub-clause (c) of clause (7) of article 22 of the Constitution,- B
(a) The Central Government and each State Government shall,
whenever necessary, constitute one or more Advisory Boards
each of which shall consist of a Chairman and two other
persons possessing the qualifications specified in sub-clause
(a) of clause (4) of article 22 of the Constitution; C
(b) Save as otherwise provided in section 9, the appropriate
Government shall, within five weeks from the date of
detention of a person under a detention order make a
reference in respect thereof to the Advisory Board constituted
under clause (a) to enable the Advisory Board to make the D
report under sub-clause (a) of clause (4) of article 22 of the
Constitution;
(c) The Advisory Board to which a reference is made under
clause (b) shall after considering the reference and the
materials placed before it and after calling for such further E
information as it may deem necessary for the appropriate
Government or from any person called for the purpose through
the appropriate Government, or from the person concerned,
and if, in any particular case, it considers it essential so to do
or if the person concerned desires to be heard in person,
after hearing him in person, prepare its report specifying in a F
separate paragraph thereof its opinion as to whether or not
there is sufficient cause for the detention of the person
concerned and submit the same within eleven weeks from
the date of detention of the person concerned;
(d) When there is a difference of opinion among the members G
forming the Advisory Board the opinion of the majority of
such members shall be deemed to be the opinion of the majority
of such members shall be deemed to be the opinion of the
Board;
H
1100 SUPREME COURT REPORTS [2020] 2 S.C.R.
A (e) a person against whom an order of detention has been made
under this Act shall not be entitled to appear by any legal
practitioner in any matter connected with the reference to
the Advisory Board, and the proceedings of the Advisory
Board and its report, excepting that part of the report in which
the opinion of the Advisory Board is specified, shall be
B
confidential;
(f) in every case where the Advisory Board has reported that
there is in its opinion sufficient cause for the detention of a
person, the appropriate Government may confirm the detention
order and continue the detention of the person concerned for
C such period as it thinks fit and in every case where the
Advisory Board has reported that there is in its opinion no
sufficient cause for the detention of the person concerned,
the appropriate Government shall revoke the detention order
and cause the person to be released forthwith.”
D 23. In terms of Section 8, the report of the Advisory Board is
meant only for the consumption of the appropriate Government and apart
from the operative part of the report which is to be specified in a separate
paragraph as per sub-section (c), the mandate in terms of sub-section
(e) is to keep the report of the Advisory Board completely confidential.
E Thus, a specially empowered officer who may have passed the order of
detention, by statutory intent is not to be privy to the report nor does the
statute contemplate any role for such specially empowered officer at
the stage of consideration of the opinion of the Advisory Board. The
report of the Advisory Board may provide some qualitative inputs for
the appropriate Government but none to the specially empowered officer
F who acted as the Detaining Authority. If that be so, would a specially
empowered officer who had passed the order of detention be bound by
what has been laid down by this Court in paragraph 16 of the decision in
K.M. Abdulla Kunhi6 in the context of the appropriate Government?
24. It must also be stated here that when K.M. Abdulla Kunhi6
G was decided on 23.01.1991, the decision that was holding the field as to
the role of a specially empowered officer who had passed an order of
detention, was one rendered in SushilaMafatlal Shah9. The law that
was holding the field was the concept of deemed approval as was
explained in SushilaMafatlal Shah9 and any representation made to
H such specially empowered officer who had passed the order of detention,
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1101
[UDAY UMESH LALIT, J.]
in terms of the decision in SushilaMafatlal Shah9, could be considered A
by the appropriate Government itself and not separately by such specially
empowered officer. The subsequent decision in Amir Shad Khan11 was
rendered by a Bench of three Judges on 09.08.1991 and the apparent
conflict in the decisions between SushilaMafatlal Shah9 and Amir Shad
Khan 11 was resolved by the Constitution Bench of this Court in
B
Kamleshkumar12 rendered on 17.04.1995, i.e. well after the decision in
K.M. Abdulla Kunhi6.
25. Thus, if the law is now settled that a representation can be
made to the specially empowered officer who had passed the order of
detention in accordance with the power vested in him and the
representation has to be independently considered by such Detaining C
Authority, the concerned principles adverted to in paragraph 16 of the
decision in K.M. Abdulla Kunhi6 would not be the governing principles
for such specially empowered officer. It must be stated that the discussion
in K.M. Abdulla Kunhi6 was purely in the context where the order of
detention was passed by the appropriate Government and not by the D
specially empowered officer. The principle laid down in said paragraph
16 has therefore to be understood in the light of the subsequent decision
rendered by another Constitution Bench of this Court in
Kamleshkumar 12.
26. In the light of the aforesaid discussion, our answer to first two E
questions is that the Detaining Authority ought to have considered the
representation independently and without waiting for the report of the
Central Advisory Board.
We now come to the 3rd question. The facts in the instant case
indicate that the comments of the Sponsoring Authority in respect of the F
representation were already received by the Detaining Authority. After
receipt of letter on 27.11.2019 that the detenues were received in custody,
the time for considering the representation started ticking for the Detaining
Authority. But the representation was considered only on 14.01.2020
and the reason for such delayed consideration is that the report of the
Central Advisory Board was awaited. We have already found that the G
Detaining Authority was obliged to consider the representation without
waiting for the opinion of the Central Advisory Board. Thus, there was
no valid explanation for non-consideration of the representation from
27.11.2019 till 14.01.2020. We must, therefore, hold that complete inaction
on part of the Detaining Authority in considering the representation caused H
prejudice to the detenues and violated their constitutional rights.
1102 SUPREME COURT REPORTS [2020] 2 S.C.R.
A 27. We are conscious that the view that we are taking, may lead
to some incongruity and there could be clear dichotomy when the
representations are made simultaneously to such specially empowered
officer who had passed the order of detention and to the appropriate
Government. If we go by the principle in paragraph 16 in K.M. Abdulla
Kunhi6 it would be proper for the appropriate Government to wait till the
B
report was received from the Advisory Board, while at the same time
the specially empowered officer who had acted as the Detaining Authority
would be obliged to consider the representationwith utmost expedition.
At times a single representation is prepared with copies to the Detaining
Authority namely the specially empowered officer and to the appropriate
C Government as well as to the Advisory Board. In such situations there
will be incongruity as stated above, which may be required to be corrected
at some stage. However, such difficulty or inconsistency cannot be the
basis for holding that a specially empowered officer while acting as a
Detaining Authority would also be governed by the same principles as
laid down in paragraph 16 of K.M. Abdulla Kunhi6.
D
28. Since there was complete inaction on part of the Detaining
Authority in the present case, to whom a representation was addressed
in dealing with the representation as stated above, we hold that the
constitutional rights of the detenueswere violated and the detenues are
entitled to redressal on that count. We, therefore, allow this Writ Petition
E and hold the continued detention of the detenues in terms of the Detention
Orders to be illegal, invalid and unconstitutional.
29. This Writ Petition is therefore allowed. The Detention Orders
are quashed and the detenuesare directed to be set at liberty forthwith,
unless their custody is required in connection with any other proceedings
F or crime.
HEMANT GUPTA, J.
G
1. I have gone through the detailed judgment authored by Brother
Justice Lalit, but am unable to persuade myself to agree with the views
expressed by him. For the sake of brevity the facts are not repeated
here.
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1103
[HEMANT GUPTA, J.]
2. In my view, the decision in K. M. Abdulla Kunhi and B.L. A
Abdul Khader v. Union of India and Others1 covers the issue raised,
as once the matter has been sent to the Advisory Board, the
representation received thereafter is required to be forwarded to it as
well. However, the Detaining Authority retains its right to revoke this
detention order dehors the opinion of the Central Advisory Board.
B
3. Section 3 of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 19742 empowers the Central
Government, the State Government or the specially empowered Officer
of the rank not below the rank of the Joint Secretary of the Central
Government or Secretary of the State Government, to make an order,
directing a person to be detained. The Detaining Authority has jurisdiction C
to revoke the detention order in view of Section 21 of the General Clauses
Act, 18973, whereas, an appropriate Government passes an order of
revocation of detention or confirmation of the order of detention on receipt
of the report of the Advisory Board. The consideration for the Detaining
Authority for revocation, is to see whether the detention order is in D
conformity with the power under law whereas, the Advisory Board
considers the representation to examine whether there is sufficient cause
for detention. The consideration of the Advisory Board is an additional
safeguard and not a substitute for the consideration of the representation
by the appropriate Government.
E
4. The first part of the consideration of representation, as to
whether the order of detention is in conformity with power under the
law, does not make a distinction as to whether the Detaining Authority is
the Central or State Government or a specially empowered Officer in
that behalf. The consideration for detention by the Detaining Authority
is confined to examining whether the order of detention is in conformity F
with the power under the law. On the other hand, the Advisory Board
examines if there is sufficient cause for detention. Therefore, once the
Government as a Detaining Authority is examining the representation of
the detenu for revocation of the detention order, it is only required to
examine whether such detention order is in conformity with power under G
law, whereas, after the recommendation of the Advisory Board, the
Government would be examining whether there is sufficient cause for
detention. The exercise of jurisdiction by the Government, whilst dealing
1
(1991) 1 SCC 476
2
for short “COFEPOSA Act”
3
for short “1897 Act” H
1104 SUPREME COURT REPORTS [2020] 2 S.C.R.
A with the representation as a detaining authority and whilst considering
the Advisory Board’s recommendation, is in two separate and distinct
spheres.
5. The Constitution Bench in Jayanarayan Sukul v. State of
West Bengal4 considered the detention order under the Preventive
B Detention Act, 1950. This Court in the aforesaid case, culled out four
principles to be followed with regard to the representation of detenu.
Such four principles have been recapitulated in the order passed by the
Hon’ble Justice Lalit. The power of detention under the aforesaid Act
was not vested under the State or Central Government but on the District
Magistrate or Additional District Magistrate specially empowered by
C the State Government. The opinion of the Advisory Board was required
to be considered by the appropriate Government who may either confirm
the detention order or if in the opinion of the Advisory Board, no sufficient
cause for detention is found, then revoke the detention order. In this
factual background, this Court held as under:
D “20. Broadly stated, four principles are to be followed in regard to
representation of detenus. First, the appropriate authority is bound
to give an opportunity to the detenu to make a representation and
to consider the representation of the detenu as early as possible.
Secondly, the consideration of the representation of the detenu by
E the appropriate authority is entirely independent of any action by
the Advisory Board including the consideration of the representation
of the detenu by the Advisory Board. Thirdly, there should not be
any delay in the matter of consideration. It is true that no hard and
fast rule can be laid down as to the measure of time taken by the
appropriate authority for consideration but it has to be remembered
F that the Government has to be vigilant in the governance of the
citizens. A citizen’s right raises a correlative duty of the State.
Fourthly, ‘the appropriate Government is to exercise its opinion
and judgment on the representation before sending the case along
with the detenu’s representation to the Advisory Board. If the
appropriate Government will release the detenu the Government
G will not send the matter to the Advisory Board. If however the
Government will not release the detenu the Government will send
the case along with the detenu’s representation to the Advisory
Board. If thereafter the Advisory Board will express an opinion in
favour of release of the detenu the Government will release the
H 4
(1970) 1 SCC 219
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1105
[HEMANT GUPTA, J.]
detenu. If the Advisory Board will express any opinion against A
the release of the detenu the Government may still exercise the
power to release the detenu.”
(Emphasis supplied)
6. The second part of the consideration of representation of the
detenu by the appropriate authority i.e. the Detaining Authority is entirely B
independent and has no connection to the consideration by the Advisory
Board. It has been held that there should not be any delay in the matter
of consideration, but at the same time it has been stated that there is no
hard and fast rule that can be laid down as to the time taken by the
appropriate authority for consideration, however the Government has to C
be vigilant with regard to the rights of the citizens. Such rights raise a
corelative duty on the State.
7. A two Judge Bench of this Court, in Vimalchand Jawantraj
Jain v. Shri Pradhan and Others5, examined a case where a specially
empowered officer of the State Government had passed a detention D
order. The representation to seek revocation of the detention was sent
to such Officer as the Detaining Authority. The order confirming the
detention of the detenu was passed after considering the report of the
Advisory Board, by the detaining authority. The Advisory Board reported
that there were sufficient causes for the detention of the detenu and
after considering such report the order of detention was confirmed. In E
these circumstances, it was argued that the order of detention had been
confirmed by the specially empowered Officer without considering the
representation of the detenu. The Bench approved the earlier judgment
of this Court in Khairul Haque v. The State of W.B.6 decided on 10-9-
69, wherein it was held as under: F
“3……The fact that Article 22(5) enjoins upon the Detaining
Authority to afford to the detenu the earliest opportunity to make
a representation must implicitly mean that such representation,
must, when made, be considered and disposed of as expeditiously
as possible, otherwise, it is obvious that the obligation to furnish
G
the earliest opportunity to make a representation loses both its
purpose and meaning.”
5
(1979) 4 SCC 401
6
W.P. No. 246 of 1969 decided on 10-9-69 H
1106 SUPREME COURT REPORTS [2020] 2 S.C.R.
A 8. This Court in Vimalchand Jawantraj Jain after quoting from
Khairul Haque’s case, held as under:
“4. There are thus two distinct safeguards provided to a detenu;
one is that his case must be referred to an Advisory Board for its
opinion if it is sought to detain him for a longer period than three
B months and the other is he should be afforded the earliest
opportunity of making a representation against the order of
detention and such representation should be considered by the
Detaining Authority as early as possible before any order is made
confirming the detention. Neither safeguard is dependent on the
other and both have to be observed by the Detaining Authority. It
C is no answer for the Detaining Authority to say that the
representation of the detenu was sent by it to the Advisory Board
and the Advisory Board has considered the representation and
then made a report expressing itself in favour of detention. Even
if the Advisory Board has glade a report stating that in its opinion
D there is sufficient cause for the detention, the State Government
is not bound by such opinion and it may still on considering the
representation of the detenu or otherwise, decline to confirm the
order of detention and release the detenu. The Detaining Authority
is, therefore, bound to consider the representation of the detenu
on its own and keeping in view all the facts and circumstances
E relating to the case, come to its own decision whether to confirm
the order of detention or to release the detenu.”
(Emphasis supplied)
9. In these circumstances, this Court held that the representation
F of the detenu was not considered by the Detaining Authority before the
Advisory Board recommended confirmation of the order of the detention,
thus the Detaining Authority had failed to complete the constitutional
obligation imposed upon him in terms of Clause (5) of Article 22.
10. In Frances Coralie Mullin v. W.C. Khambra and Others7
G an order of detention was passed by the Administrator, Union Territory
of Delhi. It was found that the representation submitted by the detenu
was forwarded to the Advisory Board. Considering the case of
Jayanarayan Sukul, the two Judge Bench of this Court held as under:
7
H (1980) 2 SCC 275
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1107
[HEMANT GUPTA, J.]
“5…… We agree : (1) the Detaining Authority must provide A
the detenu a very early opportunity to make a representation, (2)
the Detaining Authority must consider the representation as soon
as possible, and this, preferably, must be before the representation
is forwarded to the Advisory Board, (3) the representation must
be forwarded to the Advisory Board before the Board makes its
B
report, and (4) the consideration by the Detaining Authority of the
representation must be entirely independent of the hearing by the
Board or its report, expedition being essential at every stage. We,
however, hasten to add that the time-imperative can never be
absolute or obsessive. The Court’s observations are not to be so
understood. There has to be lee-way, depending on the necessities C
(we refrain from using the word “circumstances”) of the case.
One may well imagine, a case where a detenu does not make a
representation before the Board makes its report making it
impossible for the Detaining Authority either to consider it or to
forward it to the Board in time or a case where a detenu makes a
D
representation to the Detaining Authority so shortly before the
Advisory Board takes up the reference that the Detaining Authority
cannot consider the representation before then but may merely
forward it to the Board without himself considering it. Several
such situations may arise compelling departure from the time-
imperative. But no allowance can be made for lethargic E
indifference. No allowance can be made for needless
procrastination. But, allowance must surely be made for necessary
consultation where legal intricacies and factual ramifications are
involved. The burden of explaining the necessity for the slightest
departure from the time- imperative is on the Detaining Authority.”
F
(Emphasis supplied)
11. The judgments of this Court in Vimalchand Jawantraj Jain
and Frances Coralie Mullin were considered by the Constitution Bench
in K. M. Abdulla Kunhi wherein, the judgment in Vimalchand
Jawantraj Jain, Khairul Haque and Om Prakash Bahl v. Union of G
India8 were overruled and that of Frances Coralie Mullin was approved.
The Constitution Bench held as under:
“11. It is now beyond the pale of controversy that the constitutional
right to make representation under Clause (5) of Article 22 by
8
W.P. NO. 845 of 1979 decided on October 15, 1979 H
1108 SUPREME COURT REPORTS [2020] 2 S.C.R.
A necessary implication guarantees the constitutional right to a proper
consideration of the representation. Secondly, the obligation of
the Government to afford to the detenu an opportunity to make
representation and to consider such representation is distinct from
the Government’s obligation to refer the case of detenu along
with the representation to the Advisory Board to enable it to form
B
its opinion and send a report to the Government. It is implicit in
Clauses (4) and (5) of Article 22 that the Government while
discharging its duty to consider the representation, cannot depend
upon the views of the Board on such representation. It has to
consider the representation on its own without being influenced
C by any such view of the Board. The obligation of the Government
to consider the representation is different from the obligation of
the Board to consider the representation at the time of hearing
the references. The Government considers the representation to
ascertain essentially whether the order is in conformity with the
power under the law. The Board, on the other hand, considers the
D
representation and the case of the detenu to examine whether
there is sufficient case for detention. The consideration by the
Board is an additional safeguard and not a substitute for
consideration of the representation by the Government. The right
to have the representation considered by the Government, is,
E safeguarded by Clause (5) of Article 22 and it is independent of
the consideration of the detenu’s case and his representation by
the Advisory Board under cl. (4) of Article 22 read with Section
8(c) of the Act…..”
(Emphasis supplied)
F 12. Later, while considering the Frances Coralie Mullin case,
the Constitution Bench held that the time-imperative for consideration
of the representation of a detenu can never be absolute or obsessive, it
depends upon the necessities under which the representation is made. If
there is not enough time to dispose of the representation, the
G representation may also be forwarded to the Advisory Board along with
the case of the detenu. This Court held as under:
“16. We agree with the observations in Frances Coralie Mullin
case. The time imperative for consideration of representation can
never be absolute or obsessive. it depends upon the necessities
H and the time at which the representation is made. The
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1109
[HEMANT GUPTA, J.]
representation may be received before the case is referred to the A
Advisory Board, but there may not be time to dispose of the
representation before referring the case to the Advisory Board.
In that situation the representation must also be forwarded to the
Advisory Board along with the case of the detenu. The
representation may be received after the case of the detenu is
B
referred to the Board. Even in this situation the representation
should be forwarded to the Advisory Board provided the Board
has not concluded the proceedings. In both the situations there is
no question of consideration of the representation before the receipt
of report of the Advisory Board. Nor it could be said that the
government has delayed consideration of the representation, C
unnecessarily awaiting the report of the Board. It is proper for
the Government in such situations to await the report of the Board.
If the Board finds no material for detention on the merits and
reports accordingly, the Government is bound to revoke the order
of detention. Secondly, even if the Board expresses the view that
D
there is sufficient cause for detention, the Government after
considering the representation could revoke the detention. The
Board has to submit its report within eleven weeks from the date
of detention. The Advisory Board may hear the detenu at his
request. The Constitution of the Board shows that it consists of
eminent persons who are Judges or person qualified to be Judges E
of The High Court. It is therefore, proper that the Government
considers the representation in the aforesaid two situations only
after the receipt of the report of the Board. If the representation
is received by the Government after the Advisory Board has made
its report, there could then of course be no question of sending the
F
representation to the Advisory Board. It will have to be dealt with
and disposed of by the Government as early as possible.”
(Emphasis supplied)
13. Later in the same judgment, it was held that there is no
constitutional mandate to consider the representation before confirming G
the order of the detention. As long as, the Government i.e. the Detaining
Authority considers the representation without delay and without an
unbiased mind, there is no basis for concluding that there has been an
absence of independent consideration, before the confirmation of
detention. The Court held that there is no justification for imposing the
restriction on the power of the Detaining Authority. It was held as under: H
1110 SUPREME COURT REPORTS [2020] 2 S.C.R.
A “19. There is no constitutional mandate under Clause (5) of Article
22, much less any statutory requirement to consider the
representation before confirming the order of detention. As long
as the Government without delay considers the representation
with an unbiased mind there is no basis for concluding that the
absence of independent consideration is the obvious result if the
B
representation is not considered before the confirmation of
detention. Indeed, there is no justification for imposing this
restriction on the power of the Government. As observed earlier,
the Government’s consideration of the representation is for a
different purpose, namely to find out whether the detention is in
C conformity with the power under the statute. This has been
explained in Haradhan Saha case, where Ray, C.J., speaking for
the Constitution Bench observed that the consideration of the
representation by the Government is only to ascertain whether
the detention order is in conformity with the power under the law.
There need not be a speaking order in disposing such
D
representation. There is also no failure of justice by the order not
being a speaking order. All that is necessary is that there should
be real and proper consideration by the Government.”
(Emphasis supplied)
E 14. The Constitution Bench of this Court in K.M. Abdulla Kunhi
further examined the situation that if the detenu makes a representation
after his detention is confirmed according to the procedure laid down
under Section 8 of the COFEPOSA Act, the Government still has to
consider such representation and assess whether the detention is not
within the power conferred under the law. The Court held as under:
F
“20. The words ‘shall afford him the earliest opportunity of making
a representation against the order’ in clause (5) of Article
22 suggest that the obligation of the Government is to offer the
detenu an opportunity of making a representation against the order,
before it is confirmed according to the procedure laid down
G under Section 8 of the Act. But if the detenu does not exercise
his right to make representation at that stage, but presents it to the
government after the Government has confirmed the order of
detention, the Government still has to consider such representation
and release the detenu if the detention is not within the power
H conferred under the statute. The confirmation of the order of
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1111
[HEMANT GUPTA, J.]
detention is not conclusive as against the detenu. It can be revoked A
suomotu under Section 11 or upon a representation of the detenu.”
(Emphasis supplied)
15. The aforesaid judgment arises out of the fact that the detention
order was passed by the Government, however, it will not make any
difference if the detention order had been passed by a specially B
empowered Officer. The consideration for revocation of a detention
order is only whether such detention order conforms to the law. Such
consideration is applicable to all detaining authorities, be it the Central
Government or the State Government or any specially empowered Officer
of the two. No distinction can be drawn between a specially empowered C
Officer or the State and Central Governments as the consideration herein
for revocation of a detention order is restricted to whether or not the
detention order conforms to the law.
16. Subsequently, the matter was again placed before the
Constitution Bench in Kamleshkumar Ishwardas Patel v. Union of D
India and Others9 on account of the divergent views in the State of
Maharashtra & Anr. v. Sushila Mafatlal Shah and others10 and Amir
Shad Khan v. L. Hmingliana and Others11. It was held that Clause
(5) of Article 22 imposes a dual obligation on the authority making the
order of preventive detention. Firstly, to communicate to the detenu as
soon as may be, the grounds on which the order of detention has been E
made; and secondly, to afford the detenu the earliest opportunity of making
a representation against the order of detention. It was held that in terms
of Section 21 of the 1897 Act, the authority which has ordered the
detention has the power to revoke the same. Further, the detenu has the
liberty to submit his representation to the authority which is competent F
to revoke the detention. This Court held as under:
“14. Article 22(5) must, therefore, be construed to mean that the
person detained has a right to make a representation against the
order of detention which can be made not only to the Advisory
Board but also to the Detaining Authority, i.e., the authority that G
has made the order of detention or the order for continuance of
such detention, who is competent to give immediate relief by
revoking the said order as well as to any other authority which is
9
(1995) 4 SCC 51
10
(1988) 4 SCC 490
11
(1991) 4 SCC 39 H
1112 SUPREME COURT REPORTS [2020] 2 S.C.R.
A competent under law to revoke the order for detention and thereby
give relief to the person detained. The right to make a representation
carries within it a corresponding obligation on the authority making
the order of detention to inform the person detained of his right to
make a representation against the order of detention to the
authorities who are required to consider such a representation.”
B
17. The Constitution Bench held that when a detention order has
been passed by an Officer specially empowered for that purpose, the
detenu has a right to make a representation against the order of detention
to the said Officer.The failure of the Detaining Authority in considering
such representation results in the denial of the right conferred on the
C detenu to make a representation against the order of detention. This
right of the detenu is in addition to his right to make a representation to
the State and the Central Government.
18. In Criminal Appeal Nos. 764-765 of 1994, the Constitution
Bench of this Court in Kamleshkumar Ishwardas Patel considered
D three questions which were examined by the Full Bench of the Bombay
High Court. The first question was whether a specially empowered
officer had an independent power to revoke the order of detention. The
second question is not relevant for consideration in the present case.
The third question examined was whether the failure to take an
E independent decision on the revocation of a detention order by the specially
empowered officer and merely forwarding the same with a
recommendation to reject, results in non-compliance with the
constitutional safeguard under Article 22(5) of the Constitution. The order
of the High Court on first question was confirmed and that on the third
question was set aside.
F
19. An argument was raised in respect of the third question that
failure on the part of the Detaining Authority to consider the
representation of the detenu results in a denial of the right of detenu to
make a representation recognized under Clause (5) of Article 22, which
renders the detention illegal. In the aforesaid case, it was found that the
G representation of the detenu was not considered by the Officer making
the order of detention and the High Court erred in holding that the failure
on part of the Detaining Authority to consider and decide the
representation is not vital to the order of detention. Thus, the aforesaid
judgment is to the effect that the Detaining Authority is duty-bound to
H consider the representation of the detenu which is a constitutional
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1113
[HEMANT GUPTA, J.]
mandate under Clause (5) of Article 22 of the Constitution. Such A
representation has to be decided independently to the recommendation
of the Advisory Board and can be accepted dehors the recommendation
of the Advisory Board. Thus, the right of detenu is to seek consideration
of his representation by the Detaining Authority, including the specially
empowered Officer or by State or Central Government. It is
B
constitutionally mandated by Clause (5) of Article 22. Further, as
mentioned earlier, the Detaining Authority which includes the State
Government or the Central Government, examines whether the detention
order is in conformity with law whereas, the appropriate government
while considering the recommendation of the Advisory Board examines
whether there was sufficient cause for the detention of the detenu. The C
appropriate government at that stage examines the report of the Advisory
Board in respect of the sufficiency of material with regard to detention.
The consideration by the Detaining Authority is separate and distinct to
the consideration of the revocation of the detention order and the
consideration by the appropriate Government at the time of assessing
D
the recommendation of the Advisory Board. Thus, it is immaterial if the
detention order was passed by a specially empowered Officer or the
State Government or the Central Government as all such authorities
have similar jurisdiction to revoke the detention order. Clause (5) of
Article 22 protects the right of the detenu by giving him the right to
submit representation, which is required to be considered by the Detaining E
Authority, provided it is not delayed without any reason. On the other
hand, the detention of the detenu beyond three months can be only on
the basis of the report of the Advisory Board in respect of sufficiency of
material to detain the detenu beyond the period of three months. Such
right is conferred on the detenu by clause (4) of Article 22 of the
F
Constitution.
20. The judgment in K. M. Abdulla Kunhi had been examined by
another Division Bench judgment in Golam Biswas v. Union of India
and Another12, wherein the specially empowered Officer passed two
orders of detention. A representation was submitted seeking revocation
of the detention order. The consideration of detention of the detenu was G
referred to the Advisory Board on 8.7.2014. The order of detention was
confirmed by the Central Government on 5.9.2014 and the representation
was rejected by the Central Government on 21.7.2014. Thus, referring
12
(2015) 16 SCC 177 H
1114 SUPREME COURT REPORTS [2020] 2 S.C.R.
A to K. M. Abdulla Kunhi and reiterating that there is no time limit to
dispose of the representation, this Court held as under:
“14. As the quoted text would reveal, in essence, it was reiterated
that if a representation is received by an appropriate authority
and there is no time to dispose of the same having regard to the
B time-frame fixed by the Act for reference of the matter to the
Advisory Board, the representation must also be forwarded to
the Advisory Board along with the records of the detenu. This
assumes significance, in our comprehension, in view of the binding
nature of the opinion of the Advisory Board, in case, on a
consideration of the materials on record it decides to hold against
C the detention. In case the Advisory Board holds that the detention
order is invalid, it is not open for the appropriate Government to
continue therewith and it has to essentially revoke the same though
the converse may not be the same. In other words, if the Advisory
Board upholds the order of detention, it would still be open to the
D Central Government, depending on the merits of each case, to
release the detenu. The fact that the opinion of the Advisory Board
against continuance of the order of detention is final vis-à-vis the
appropriate Government, in our opinion, is the motivating imperative
for requiring the appropriate Government to forward the pending
representation to the Advisory Board so as to enable it to traverse
E the entire panorama of grounds taken against the detention order
for an effective, timely and meaningful consideration of the case
of the detenu. This requirement as has been essentially recognised
and mandated by two decisions of the Constitution Bench of this
Court, does not, in any way, undermine the appropriate
F Government’s authority to consider and dispose of such
representation of any detenu under the preventive detention law.
The right of the Central Government or for that matter any
appropriate Government to consider and dispose of a
representation of a detenu, preventively detained, has to be
harmoniously construed with the obligation cast on it to forward a
G pending representation to the Advisory Board as has been
consistently held in Jayanarayan Sukul [Jayanarayan
Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92]
and K.M. Abdulla Kunhi [K.M. Abdulla Kunhi v. Union of
India, (1991) 1 SCC 476 : 1991 SCC (Cri) 613]”
H
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS. 1115
[HEMANT GUPTA, J.]
21. This Court held that the representation of the detenu was not A
forwarded to the Advisory Board and instead rejected during the
pendency of the proceedings before the Advisory Board. Thus, the Court
was constrained to hold that the detention of the detenu was
constitutionally invalid. It was held as under:
“15. As admittedly, the detenu’s representation dated 8-7-2014, B
pending with the Central Government, the appropriate Government
in the case, was not forwarded to the Advisory Board and was
instead rejected during the pendency of the proceedings before
the Advisory Board, we are constrained to hold that the detention
of the detenu is constitutionally invalid. The rejection of the
representation by the Central Government later on 21-7-2014 C
during the pendency of the proceedings before the Advisory Board
is of no consequence to sustain the detention. Consequently, the
order of confirmation as well is rendered nonest by this vitiation.
In view of the determination made on the above aspect of the
debate, we do not consider it necessary to dilate on the other D
pleas raised on behalf of the detenu. In the result, the appeal
succeeds. The impugned judgment and order is set aside. The
orders of detention as well as the order of confirmation are hereby
annulled. The detenu is directed to be set at liberty, if not wanted
in any other case.”
E
22. In view of the aforesaid judgment, I am of the opinion that
once the detention order has been made by any of the authorities competent
to detain in terms of Section 3 (1) of the COFEPOSA Act, the
representation to seek revocation of the detention order can be considered
and decided by the Detaining Authority dehors the decision of the Advisory
Board and the acceptance of recommendation by the appropriate F
Government. The consideration for revocation of a detention order is
limited to examining whether the order conforms with the provisions of
law whereas the recommendation of the Advisory Board is on the
sufficiency of material for detention, which alone is either confirmed or
not accepted by the appropriate Government. G
23. It would be a matter of prudence and propriety for the
Detaining Authority to defer the decision on the representation to revoke
the detention order, when the matter is being considered by the Advisory
Board, consisting of three Hon’ble sitting Judges of the High Court. The
consideration of the representation by the Detaining Authority in these H
1116 SUPREME COURT REPORTS [2020] 2 S.C.R.
A circumstances cannot be said to be delayed as the representation was
received after the matter was referred to the Advisory Board.
24. Thus, I do not find any merit in the present writ petition. The
same is dismissed.
B
Devika Gujral Writ Petitions allowed.
C
D
E
F
G
H
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