Holding

Non‑intimation of the right to representation invalidates the declaration and the continued detention but does not void the original COFEPOSA order; the delay in service, prior custody, and retraction of statements do not vitiate the order.

Summary

The State of Maharashtra detained Jayendra Vishnu Thakur under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) on 5 February 1992 based on customs statements that silver smuggled from Dubai was intended for him. The detention order was served only on 13 August 1993, after the detenu was already in custody for another criminal case, and a declaration under Section 9(i) was made on 15 September 1993. The appellant, his wife, challenged the detention before the High Court on four grounds: (i) the detenu was not informed of his right to make a representation under Article 22(5); (ii) the long delay in serving the order vitiated the detention; (iii) the fact that he was already in custody should invalidate the order; and (iv) the later retraction of the customs statements should defeat the detaining authority’s satisfaction. The Supreme Court held that failure to intimate the right of representation invalidates the declaration and the continued detention, but does not void the original order of detention; the delay in service was justified by the detenu’s evasion and subsequent arrest; the detenu’s prior custody did not vitiate the order; and the retraction of statements did not affect satisfaction because a confirming statement was made before the order. Consequently, the appeal was dismissed.

Issues considered

The failure to inform the detenu of his right to make a representation under Article 22(5) – does it vitiate the COFEPOSA detention order?
Whether the more than one‑year delay in serving the order of detention renders the detention illegal.
Whether the detenu being already in custody for another case at the time of service invalidates the order of detention.
The effect of the retraction of statements recorded under Section 108 of the Customs Act on the detaining authority’s subjective satisfaction.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(i), s. 8(b), s. 8(f), s. 9(i)
Customs Act, 1962s. 108

Subjects

preventive detentionCOFEPOSAArticle 22(5)right of representationdelay in service of detention ordercustoms smugglingsubjective satisfaction of authorityretraction of statements

Judgment

A MEENA JA YENDRA THAKUR
v.
UNION OF INDIA AND ORS.

SEPTEMBER 22, 1999

B [G.B. PATTANAIK, M. SRINIVASAN AND
N. SANTOSH HEGDE, JJ.)

Preventive Detention :

C Conservation of Foreign Exchange and Prevention of Smuggling Ac-
tivities Act, 1974-Section 3(i), 8(b ), 8(f) and 9(i)-Right of detenu to make
representation to the declaring authority-None- intimation of-Held, if the
detenu is not intimated of his right to make a representation to the authority
issuing the declaration, the Constitutional right conferred under Article 22(5)
-
gets infringed vitiating any further detention-But that would not by itself
D vitiate the initial order of detention-A subsequent infraction of the detenu 's
right or of non-compliance of the procedure prescribed under law, does not
affect the validity of the order of detention itself or the satisfaction of the
detaining authority while making an order of detention-Constitution of India,
195D-'-Articles 22(4) & (5).
E
Detention Order--Delay in execution of-Question regarding-To be
examined in the light of facts and circumstances of each cas~rder of
detention passed on 5.2.92 by the detaining authority-Evasion of execution
by the detenu--Detenu served on 3.8.9~ after the detaining authority came to
know that the detenu had been arrested in another case-Held, there is
F sufficient explanation for the delay in execution of the order of detention.

Detenu having been already arrested and in custody in another case at
the tif11:.e of executing the order of detention-Effect of-Held, this fact does
not vitiate the detention of the detenu or the order of detention because the
G detaining authority on consideration of all relevant material facts including
the fact that there may be a possibility of detenu being released on bail,
thought it fit to get the order of detention served on the detenu.

Customs Act, 1962--Section 108--Attempt to smuggle 350 pieces of
silver ingots in a vessel from Dubai, foiled and persons in the vessel ar-
H rested-Such persons making statement under Section 108 of the Customs Act
98
•
M.J. THAKUR v. U.O.I. 99
indicating that the silver in question was meant for the detenu and was to be A
handed over to him-These statements f01ming the sole basis for the subjec-
tive satisfaction of the detaining authority for the order of detention against
the detenu-Subsequent retraction of statements by those persons-Fwther
statements made later on indicating that the original statements under Section
108 were correct and not the retracted statements-Held, this fact being before
B
the detaining authon·ty while issuing the order of detention, the subjective
satisfaction of the detaining authority was not vitiated.

Customs authorities _received some information that a large scale
smuggling of silver was being made in a vessel from Dubai. On the basis

- of said information, the vessel in question was searched and as many as
350 pieces of silver ingots were recovered from there. The persons in the
vessel were arrested and their statements·. under Section 108 of the Cos-
toms Act were recorded. The said statements unequivocally indicated that
c

the silver in question was meant for the detenu and was to be handed
over or him. On this basis, an order of detention was issued by ~he State
D
under Section 3(i) of the Conservation of Foreign Exchange and Preven-
·'
lion ,of Smuggling Activities Act, 1974 on 5.2.92. The drtenu was served
with the order of detention on 13/8/93 while he was in custody on being
arrested on 23.7.93 in some other criminal case. On 15.9.93, a declaration
was made under Section 9(i) of the Act thereby extending the period within
which the procedural requirements under Section 8 of the Act could be E
complied with. The case of the detenu was referred to the Advisory Board
on 15.9.93 and the Advisory Board gave its opinion stating that there
exists sufficient cause for detention of the person concerned. On the basis
of the said opinion, the State Govt. confirmed the order of detention under
Section 8(1) of the Act by order dated 17.11.93. The appellant, detenu's
F
wife, filed a writ petition before the High Court assailing the legality of
the order of detention as well as the continued detention of the detenu.
The said petition was dismissed by the High Court. Hence the present
appeal.

On behalf of the appellant, it was contended that the detenu was G
not informed of right of representation to the authority issuing the dee-
laration. There was, thus, an infringement of his constitutional right
-.
-- under Article 22 of the Constitution. It was further contended that the
order of detention was issued on 5.2.92 but the same not having been
executed till 13.8.93, there was an inordinate delay in the execution which H
100 ·SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A rendered the detention itself vitiated. It was also contended that at the
time of executing the order of detention, the detenu having been already
arrested and in custody in another criminal case and there being no
consideration/reconsideration regarding the necessity of serving an order
of detention by the detaining authority, the detention of the detenu as well
B as the order of detention itself got vitiated. It was further contended that
the statements of the occupants of the vessel recorded under Section 108
of the Customs Act having formed the sole basis for the subjective satis-
faction of the detaining authority for the order of detention and those
very persons having retracted, non-consideration of the retraction,
vitiated the order of detention.
c
On behalf of the respondents, it was contended that even assuming
that there had been an infringement of the constitutional right of the
-
detenu in making a representation, then the continued detention became
invalid and not the order of detention itself. It was further contended that
D the period of detention having already expired, question of declaring his
continued detention illegal did not arise. It was also contended that the
retraction made by the persons who were arrested from inside the vessel
did not vitiate the subjective satisfaction of the detaining authority inas-
much as those persons made a further statement stating that their earlier
statements under Section 108 were correct and not the so called retrac-
E tion.

Dismissing the appeal, this Court

Held : 1. Though there has been an infraction of the right of detenu
F under Article 22 of the Constitution as tlie declaring authority had not
informed that he had right of representation against the order of decla-
ration, it ~II not by itself vitiate the initial order of detention. When an
authority issues a declaration under Section 9(i) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the
said authority has the necessary powers to revoke the declaration on a
G representation being made by the detenu against such declaration. Con-
sequently, if the detenu is not intimated of his right to make a repre-
sentation to the authority issuing the declaration under Section 9(i), then
constitutional right of the detenu to make a representation under Article
22(5) gets infringed and, therefore, the notification issued under Section
H 9(i) becomes invalid and the continued detention pursuant to such dee-
M.J. THAKUR v. U.O.I. 101

laration is vitiated. But if the detaining authority on the basis of materials A
before him did arrive at his satisfaction with regard to the necessity for
passing an order of detention and the order is passed thereafter, the same
cannot be held to be void because of a subsequent infraction of the
detenu's right or of non-compliance of the procedure prescribed under
law. On such infraction and for non-compliance of the procedure
prescribed under. law, the further detention becomes illegal. But it does
B
not affect the validity of the order of detention itself issued under Section
3(i) of the Act by the detaining authority. [109-G-H; 110-B; C; DJ

Shibapada Mukherjee v. The State of West Bengal, [1974] 3 SCC 50; Shri
Jagprit Singh v. Union of India & Ors., JT (1990) 3 SC 293; Sandeep Atmaram C
Parwal v. The State of Maharashtra, (1996) Crl. LJ. l;Akhi/esh Kumar Tyagi.
v. Union of India and Others, (1996) Crl. LJ. 965; Kamleshkumar Ishwardas
Patel v. Union of India & Ors., JT (1995) 3 SC 639, relied on.

A.K. Roy v. Union of India, [1982J 1 SCC 271, distinguished.
D
Khduram Das v. State of West Benga4 [1975J 2 SCC 81, cited.

2. The order of detention was passed by the detaining authority on
5.2.92 but the same could be served on 13.8.93. The detenu had been
evading execution and with best of efforts, the order of detention could
not be served upon him. After the detenu was arrested in some other case,
E
when it was brought to the notice of the detaining authority, the detaining
authority then considered the desirability of the execution of the order of
detention issued earlier and directed the concerned officer to execute the
same. Thus, there has been sufficient explanation for the delay in execu-
tion of the order of detention. [111-F; 112-B; CJ F

Smt. Sultan Abdul Kader v. ft. Secy. to Govt. of India and Others,
[1998J 8 sec 343, referred to.

3. The fact that the detenu is in custody on being arrested in some
other case was brought to the notice of the detaining authority. The G
detaining authority on consideration of all relevant material including the
fact that there may be a possibility of detenu being released on bail,
thought it fit to get the order of detention served on the detenu. This is
-·
'
not a case where the detaining authority has not applied his mind to the
relevant material, but a case where the detaining authority considered all H
102 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R..
)

A the relevant material and decided and directed to get the order executed.
Consequently, the fact of the detenu having been already arrested and in
custody in another case at the time of executing the order of detention
does not in any manner vitiate the detention of the detenu or the order
of detention. [112-G-H; 113-A]

B Binod Singh v. District Magistrate, Dhanbad, Bihar and Others, [1986]
4 sec 416, held inapplicable.

4. The statements of the occupants of the vessel recorded under
Section 108 of the Customs Act formed the sole basis for the subjective
C satisfaction of the detaining authority for the order of detention. Retrac-
tion of the statements was made by those persons later on. Nevertheless,
the subjective satisfaction of the detaining authority was not vitiated
inasmuch as by the date of issuance of the order of detention, those
-
persons had made a further statement indicating that the original state-
ments made by them under Section 108 of the Customs Act were correct
D and not the retracted statements they had made and this fact was before
the detaining authority when he issued the order of detention under
Section 3(i) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act. [113-D; E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
E 368 of 1996.
From the Judgment and Order dated 18/19/20.1.95 of the Bombay
High Court In Cr!. W.P. No. 701 of 1994.

V.S. Kotwal, S.R. Chitnis, M.R. Kotwal and P.N. Gupta for the
F
Appellant.

N.N. Goswami, (Y.P. Mahajan) for P. Parmeshwaran for the
Respondent in U.0.1.

I.G. ·shah and G.B. Sathe for the State.
G
The Judgment of the Court was delivered by

PATTANAIK, J. This appeal is directed against the jndgment dated
18.1.95 - 20.1.95 of the Bombay High Court in Criminal Writ Petition No.
H 701 of 1994. The appellant is the wife of the detenu, Jayendra Vishnu
M.J. THAKUR v. U.O.L [PATTANAIK, J.] 103

Thakur. The State of Maharashtra issued an order of detention under A
Section 3(i) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA
Act') on 5.2.92. The detenu was served with the orcler of detention on
13.8.93 while he was in custody on being arrested on 23.7.93 in some other
criminal case. On 15.9.93, a declaration was made under Section 9 (i) of B
the COFEPOSA Act thereby extending the period within which the pro-
cedura1 requirements under Section 8 of the said Act could be complied
with. The case of the detenu was referred to the Advisory Board on 15.9.93
and the Advisory Board gave its opinion stating that there exists sufficient
cause for detention of the person concerned and on the basis of the said C
opinion, the State Government confirmed the order of detention under
Section 8 (f) of the Act by order dated 17.11.93. The appellant filed the
writ petition in the Bombay High Court on 15.5.94 assailing the legality of
the order of detention as well as the contin;ied detention of the detenu.
The High Court, by the impugned judgment, dismissed the writ petition D
after negativing all the contentions raised and hence the present appeal.

At the outset it may be stated that though tile period of detention is
already over and, therefore, normally this Court would not have gone into
the legality of the order of detention, but a proceeding under Smugglers
E
and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
(hereinafter referred to as the 'SAFEMA') having been initiated, the
appellant pressed her appeal and the Court permitted him to raise the
contentions. It may not be out of place to mention here that the Customs
authorities received some information that a large scale smuggling of silver
is being made in a vessel on 18.9.91 from Dubai and on the basis of said F
information the vessel in question was searched and as many as 350 pieces
of silver ingots each weighing 35 KGs were recovered from the ship and
the persons in the vessel were arrested. Admittedly, the detenu was not
present in the vessel. But the statements of persons arrested from the vessel
under Section 108 of the Customs Act unequivocally indicate that the silver G
in question was meant for the detenu and was to be handed over to him.
The detaining authority on the basis of such statements of the persons
arrested from the vessel, on being satisfied that pre-conditions for issuance
of an order of detention under sub-section (i) of Section 3 of the
COFEPOSA Act are satisfied thought it necessary to pass an order and H
104 SUPREME COURT REPORTS [1999] ~.UPP. 3 S.C.R.

A accordingly issued the impugned order of detention dated 5.2.92.

Mr: V.S. Kotwal, learned senior counsel appearing for the appellant
raised the following contentions in assailing the order of detention:

1. While issuing the declaration under Section 9(i) of the Act
B by order dated 15.9.93, the detenu not having been informed
of a right of representation to the authority issuing the dec-
laration, there has been an infringement of his constittJ'tional
right under Article 22 and, therefore, the impugned order of
detention is vitiated and must be set aside.
c 2. That the order of detention was issued on 5.2.92 but the same
not having been executed till 13.8.93, there has been an
inordinate delay in the execution which renders the detention
itself vitiated.

D 3. At the time of executing the order of detention, the detenu
having been already arrested and in custody in another
criminal case and there being no consideration/ re-considera-
tion regarding the necessity of serving an order of detention
by the detaining authority, the detention of the detenu as well
as the order of detention itself gets vitiated and should be
E quashed.

4. The statements of the occupants of the vessel recorded under
Section 108 of the Customs Act having formed the sole basis
for the subjective satisfaction of the detaining authority and
F those very persons having retracted their statements, non-
consideration of those material particulars before issuing the
order of detention on 5.2.92 vitiates the same and, therefore,
the same should be quashed.

According to Mr. V.S. Kotwal, the High Court committed gross error
G in rejecting these contentions and in arriving at the conclusions which are
unsustainable in law. Mr. N.N. Goswami, learned senior counsel appearing
for the· Union of India and Mr. I.G. Shah, learned senior counsel appearing
for the State of Maharashtra repelled the submissions of Mr. V.S. Kotwal
and contended that the High Court was fully justified in rejecting the
....
H contentions advanced on behalf of the detenu. Mr. Goswami also further
M.J. THAKUR v. U.0.1. [PATTANAIK, J.] 105

contended that even assuming there has been some infraction of the A

- procedural requirements on account of which there has been an
infringement of the constitutional right of the detenu in making a
representation then the continued detention becomes invalid and not the
order of detention itself. In this vieJ! of the matter, Mr. Goswami contends
that the period of detention having already expired, question of declaring B
his continued detention illegal does not arise and further the order of
detention that was issued by the detaining authority on 5.2.92 cannot be
invalidated. Mr. LG. Shah, learned senior counsel appearing for the state
of Maharashtra contended that non-consideration of the retraction made
by the persons who were in the vessel, does not vitiate the subjective
satisfaction of the detaining authority inasmuch as the detaining authority
c
was not aware of the aforesaid retraction.That apart, the very same persons
have made a further statement stating that their earlier statements under
Section 108 are correct and not the so called retraction and that material
was before the detaining authority when he issued the order of detention,
consequently, the satisfaction of the detaining authority cannot be said to D
be vitiated.

In view of the rival submissions of the Bar, we have carefully
scrutinised the impugned judgment of the Bombay High Court and the
conclusions arrived at in its judgment as well as several authorities E ·
placed at the time of hearing and we proceed to examine the
contentions seriatim.

Coming to the first contention, Mr. Kotwal submits that under
Section 8(b) of the COFEPOSA Act, the appropriate. Government is
required to make a reference to the Advisory Board within five weeks from F
the date of detention, if no declaration under Section 9 has been made and
on the receipt of the opinion of the Advisory Board which the Board is
required to submit within eleven weeks from the date of detention, the
State Government can confirm the detention order and continue the
detention of the person concerned for such period as it thinks fit as G
required under Section 8(f) of the COFEPOSA Act but where there has
been a declaration under Section 9(i) of the said Act which declaration is
required to be made within five weeks from the date of detention, then
without obtaining the opinion of the Advisory Board, there can be a valid
detention for a period of six months from the date of detention. This being H
106 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A the scheme of the provision, the authority making the declaration under
Section 9 (i) of the Act has to indicate to the detenu that he has a right of
representation to the declaring authority. In the case in hand, the detenu
not having been informed of such right the entire proceedings starting from
confirmation of the order of detention gets vitiated which in turn makes
B the order of detention illegal and void and, therefore, the same has to be
quashed by the Court. In order to appreciate this contention, it would be
appropriate to extract Sections 8 and 9 of the COFEPOSA Act in extenso:

"8. Advisory Boards.- For the purposes of sub-clause(a) of clause
(4), and sub-clause(c) of clause (7), of Article 22 of the Constitu-
c tion,-

(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
D possessing the qualifications specified in sub-clause (a) of clause
(4) of Article 22 of the Constitution;

(b) save as otherwise provided in Section 9, the appropriate
Government shall, within five weeks from the date of detention of
E 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 report under sub-clause (a)
of clause (4) of Article 22 of the Constitution;

F (c) the Advisory Board to which a reference is made under clause
(b) shall after considering the reference and the materials placed
before it and after calling for such further information as it may
deem necessary from the appropriate Government or from any
person called for the purpose through the appropriate Govern-
ment or from the person concerned, and if in any particular case,
G it considers it essential so to do or if the person concerned desires
to be heard in person, after hearing him in person, prepare its
report specifying in a separate paragraph thereof its opinion as to
whether or not there is sufficient cause for the detention of the
person concerned and submit the same within eleven weeks from
H the date of detention of the person concerned;
M.J. THAKUR v. U.O.I. [PATTANAIK, J.] 107

(d) when there is a difference of opinion among the members A
forming the Advisory Board, the opinion of the majority of such
members shall be deemed to be the opinion of the Board;

(e) a person against whom an order of detention has been made
under this Act shall not be entitled to appear by any legal prac- B
titioner in any matter connected with the reference to the Advisory
Board, and the proceedings of the Advisory Board and its report,
excepting that part of the report in which the opinion of the
Advisory Board is specified shall be confidential;

c
(t) in every case where\he Advisory Board has reported that there
is in its opinion sufficient cause for the detention of a person, the
appropriate Government may confirm the detention order and
continue the detention of the person concerned for such period as
it thinks fit and in every case where the Advisory Board has D
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.

9. Cases in which and circumstances under which persons may be E
detained for periods longer than three months without obtaining the
opinion of Advisory Board - (1) Notwithstanding anything con-
tained in this Act, any person (including a foreigner) in respect of
whom an order of detention is made under this Act at any time
before the 31st day of July, 1999, may be detained without obtain- F
ing, in accordance with the provisions of sub-clause (a) of clause
( 4) of Article 22 of the Constitution, the opinion of an Advisory
Board for a period longer than three months but not exceeding six
months from the date of his detention, where the order of deten-
tion has been made against such person with a view to preventing G
him from smuggling goods or abetting the smuggling of ge>ods or
engaging in transporting or concealing or keeping smuggled goods
and the Central Government or any officer of the Central Govern-
ment, not bdow the rank of aa Additional Secretary to that
Government, specially empowered for the purposes of this section H
108 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A by that Government, is satisfied that such person -

(a) smuggles or is likely to smuggle goods into, out of or -
through any area highly vulnerable to smuggling; or

(b) abets or is likely to abet the smuggling of goods into,
B out of or through any area highly vulnerable to smug-
gling; or

(c) engages or is likely to engage in transporting or con-
cealing or keeping smuggled goods in any area highly
vulnerable to smuggling,
c •
and makes a declaration to that effect within five weeks of the
detention of such person."

In support of this contention, Mr. Kotwal, learned senior counsel
D relies upon the decision of the Full Bench of the Bombay High Court.in
the case of Sandeep Atmaram Parwal v. The State of Maharashtra, in
•
Criminal Writ Petition No. 379 of 1995, disposed of on 31.8.96, since
reported in 1996 II LI 1 as well the decision of Full Bench of the Delhi
High Court in the case of Akhilesh Kumar Tyagi v. Union of India and
E Others, (1996) Crl.L.J. 965. He also relies upon the decision of this Court
in Shibapada Mukherjee v. The State of West Bengal, [1974] 3 SCC 50 and
the decision in Kamleshkumar Ishwardas Patel v. Union of India and the
decision of the Constitution Bench of this Court in A.K. Roy v. Union of
India and Others, [1982] 1 SCC 271.

F There cannot be any dispute that the right to make a representation
of a detenu is the most valuable right conferred upon him under Article
22 of the Constitution and if there has been any infraction of such right
then certainly the detenu is entitled to be released. The question, therefore,
arises as to whether when a declaration is made under Section 9( i) of the
G Act which in turn extends the period of detention without being confirmed
whether the officer issuing the declaration under Section 9 (i) is also
required to inform the detenue that he has a right to make a representation
to him. Under the constitutional scheme engrafted in Article 22, no law
providing for preventing detention can authorise the detention of a person
for a longer period than three months unless the Advisory Board reports
H bef~re expiration of the said period of three months that there is, in its
M.J. THAKUR v. U.O.L [PATTANAIK, J.J 109

opinion, sufficient cause for such detention. When an authority issues a A
declaration under Section 9(i) of the Act, the said authority has the
necessary powers to revoke the declaration on a representation being made
by the detenu against such declaration. Consequently, if the detenu is not
intimated of his right to make a representation to the authority issuing the
declaration under Section 9(i) then certainly his valuable constitutional
right gets infringed and the two decisions of the Full Bench relied upon by
B
Mr. Kotwal fully support this contention. Mr. N.N .. Goswami, .learned
senior counsel appearing for the Union of India fairly concedes· th.\s
position.

In the case of A.K. Roy v. Union of India, [1982] 1 SCC 271 where C
the Court was examining the constitutional validity of issuance of· an
Ordinance providing for detention and the" constitutional validity of the
National Security Act, it did rely upon the earlier decision in Khduram Das
v. State of WB., [1975] 2 SCC 81 and held that it is not open to anyone to
contend that a law of preventive detention, which falls within Article 22, D
does.not have to meet the requirement of Articles 14 or 19, and in the
same analogy it must be held that Article 21 also would apply in case of a
law of preventive detention. The proposition laid down in the aforesaid'
decision of the Constitution Bench cannot be doubted, but in our view the
said question does not arise for consideration in the case in hand.
E
In Kamleshkumar Ishwardas Patel v. Union of India and Ors., JT
(1995) 3 SC 639, it has been held in unequivocal terms that the right to
make a representation within the meaning of Article 22(5) against the
order of detention is riot only to the Advisory Board but also to the
detaining authority i.e. the authority that has made the order of detention F
or the order for continuance of such detention, and. hence such 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. In this view of the matter, the conclusion
becomes irresistible that the authority issuing a declaration under Section
9 of COFEPOSA Act must intimate the detenu that he has right of G
opportunity to represent to the declaring authority and non-intimation of
the same infringes upon the constitutional right of the detenu to make a
representation under Article 22(5) and, therefore, the notification issued
under Section 9(i) becomes invalid and the continued detention pursuant
to such declaration and the opinion of the Advisory Board within the H
110 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A extended period as well as the confirmation by the State Government are
vitiated. But the further question that requires to be answered is whether
the initial order of detention issued under Section 3(i) of the COFEPOSA
Act can be held to be void ab initio on the aforesaid infraction of the right
of the detenu. On this question, we are unable to agree with the submission
B of Mr. Kotwal, inasmuch as Article 22(4) itself provides for a law for
preventive detention authorising detention up to a period of three months.
The infraction of the constitutional right to make a representation on
account of non-intimating the detenu about his right to make a repre-
sentation or the opinion of the Advisory Board and the order of detention
not being made within the period prescribed under law does not get into
C the satisfaction of the detaining authority while making an order of deten-
tion under Section 3(i) of the COFEPOSA Act. If the detaining authority
on the basis of materials before him did arrive at his satisfaction with
regard to the necessity for passing an order of detention and the order is
passed thereafter, the same cannot be held to be void because of a
D subsequent infraction of the detenu's right or of non-compliance of the
procedure prescribed under law. On such infraction and for non-com-
pliance of the procedure prescribed under law, the further detention
becomes illegal. But it does not affect the validity of the order of detention
itself issued under Section 3(i) of the Act by the detaining authority. In
view of our aforesaid conclusion, the question of setting aside the order of
E detention issued on 5.2.92 does not arise and further the detenu being no
longer under detention, question of issuing any other direction does not
arise. Our aforesaid conclusion is supported by the decision of this Court
in Shibapada Mukherjee v. The State of West Bengal, [1974] 3 SCC 50
wherein the Court observed that' there being no valid confirmation and
F continuation, the result is that the petitioner's detention after expiry of the
period of three months becomes illegal since it was not in compliance with
Section 12 (i). It would be appropriate, at this stage, to extract the following
few lines from the aforesaid judgment:

" ..... It is clear from clauses ( 4) and (7) of Article 22 that the policy
G of Article 22 is, except where there is a Central Act to the contrary ('
passed under clause (7)(a), to permit detention for a period of
three months only, and detention in excess of that period is
permissible only in those cases where an Advisory Board, set up
under the relevant statute, has reported as to the sufficiency of the
H cause for such detention. Obviously, the Constitution looks upon
M.J. THAKUR v. U.O.I. [PATIANAIK, J.] 111
preventive detention with disfavour and has permitted it only for A
a limited period of three months without the intervention of an
independent body with persons on it of judicial qualifications of a
high order. The facts that the report of such an Advisory Board
has to be obtained before the expiry of three months from the date
of detention shows that the maximum period. within which the
detaining authority can on its own satisfaction detain a period is
B
three months."

In Shri Jagprit Singh v. Union of India & Ors., JT (1990) 3 SC 293
where there had been a delay of one month and 13 days before the detenu
was made aware of his right to make an effectiv~ representation against C
declaration, this Court held that it is contrary to the provision of Article
22( 5) of the Constitution and, therefore, the detention of the detenu after
the original period of one year, in the circumstances, was unjustified. The
Court further set aside the detention of the detenu beyond September, 1989
and no.t the original order of detention that had been issued on 2.9 .88. This
case was directly on the applicability of Section 9 of the ·COFEPOSA Act D
and direct authority in support of our conclusion.

It is not necessary to multiply authorities on this question. We,
therefore, while agreeing with Mr. Kotwal that there has been an infraction
of the right of detenu under Article 22 as the declaring authority had not E
informed that he had right of representation against the· order of declara-
tion, we are of the view that it will not by itself vitiate the initial order of
detention.

So far as the second and third contentions are concerned, the
question would essentially depend upon the facts of each case. In the case F
in hand, no doubt the order of detention was passed by the detaining
authority on 5.2.92 but the same could be served on 13.8.93 after the
detaining authority came to know that the detenu had been arrested on
23.7.93 in some other case. Mr. Kotwal, in this connection, heavily relies
upon a recent decision of this Court in Smt. Sultan Abdul Kader v. ft. Secy. G
To Govt. of India and Others, [1998] 8 SCC 343. In the aforesaid case, the
Court has indicated that the unreasonable delay in executing the order
creates a doubt regarding the genuineness of the detaining authority as
regards the immediate necessity of detaining the petitioner in order to
prevent him from carrying on the prejudicial activity referred to in the H
112 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A grounds of detention and as such the order of detention had not been
passed in lawful exercise of the power vested in him. But the question has
to be examined in the light of the facts and circumstances of each case and
further it has to be considered whether the alleged delay is on account of
the reasons beyond the control of the detaining authority. From the
B affidavit filed in the present case, it transpires that the dctcnu had been
evading execution and with best of efforts, the order of detention could not
be served upon him. After the detenu was arrested in some other case,
when it was brought to the notice of the detaining authority, the detaining
authority then considered the desirability of the execution of the order of
detention issued earlier•and directed the concerned officer to execute the
c same. Thus, there has been sufficient explanation for the delay in execution
of the order of detention and further just before the execution, the
detaining authority was made aware of the fact that the detenu has been
arrested and still the detaining authority thought it necessary to execute
the order of detention. We, therefore, find no force in the second
D contention raised by Mr. Kotwal in assailing the order of detention.

· In support of the third contention, Mr. Kotwal relies upon the -
I
decision of this Court in Binod Singh v. District Magistrate, Dhanbad, Bihar
and Others, (1986] 4 SCC 416. In the aforesaid case, this Court has
E observed:

"If a man is in custody and there is no imminent possibility of his
being released, the power of preventive detention should not be
exercised. In the instant case when the actual order of detention
was served upon the detenu, the detenu was in jail. There is no
F indication that this factor or the question that the said detenu might
be released or that there was such a possibility of his release, was
taken into consideration by the detaining authority properly and
seriously before the service of the order."

G It is this observation on which Mr. Kotwal heavily relies upon. But
as has been stated earlier in the affidavit filed, it has been indicated that
not only the fact that the detenu is in custody on being arrested. in some
other case was brought to the notice of the detaining authority,· but also
the detaining authority on consideration of all relevant material including
H the fact that there may be a possibility of detenu being released on bail,
M.J. THAKUR v. U.O.L [PATTANAIK, J.] 113
. .
thought it fit to get the order of detention served on the detenu. In the A
premises, the ratio in the aforesaid case will have no application. This is
not a case where the detaining authority has not applied his mind to the
relevant material, but a case where the detaining authority considered all
the relevant material and decided and directed to get the order executed.
Consequently, we do not find any merit in the aforesaid two contentions B
of Mr. Kotwal.

The only other contention that survives for consideration is whether
the statements of the occupants of the vessel recorded under Section 108
of the Customs Act having formed the sole basis for the subjective satis-
faction of the detaining authority for the order of detention and those very C
persons having retracted, non-consideration of the retraction, vitiates the
order of detention itself.

The High Court in the case in hand did not accept the ¢oresaid
contention on the ground that there was no material before the detaining
authority that there has been retraction of the statements made by those D
persons who had earlier been examined under Section 108 of the Customs
Act. We need not go into this question in the case in hand, inasmuch as
· by the date of issuance of the order of detention, those persons have made
a further statement indicating that the original statements made by them
under Section 108 of the Customs Act were correct and not the retracted E
statements they had made and this fact was before the detaining authority
when he issued the order of detention under Section 3(i) of the
COFEPOSA Act. This being the position, it is difficult for us to accept the
contention of Mr. Kotwal that the satisfaction of the detaining authority
gets vitiated for n6n • consideration of the relevant material. In our opinion,
the aforesaid submission, in the facts and circumstances of the present F
case, is devoid of any force and we accordingly reject the same.

All the contentions having failed, this appeal fails and is dismissed
accordingly.

M.P. Appeal dismissed.