PRAMOD SINGLAversusUNION OF INDIA & ORS

                         [2023] 2 S.C.R. 793                              793


                        PRAMOD SINGLA                                     A
                                  v.
                    UNION OF INDIA & ORS.
                 (Criminal Appeal No. 1051 of 2023)
                                                                          B
                           APRIL 10, 2023
 [KRISHNA MURARI AND V. RAMASUBRAMANIAN, JJ.]
       Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 – Preventive Detention –
Representation by detenue to the Central Government, the detaining        C
authority and the Advisory Board – Central Govt. if bound to wait
for the decision of the Advisory Board before deciding the
representation – Whether there exists an incongruity between the
Pankaj Kumar case and the Abdullah Kunhi case – Held: No – Since
these two judgments exist symbiotically and apply to two separate
                                                                          D
authorities within the COFEPOSA Act, there exists no friction
between the judgments – The mandate to wait for the decision of
the Advisory Board, as per the Pankaj Kumar Judgment would apply
to the Central Govt., however, the detaining authority, being
independent of the Govt., can pass its decision without the decision
of the Advisory Board – In the present case, the appellant-detenue        E
sent a representation to both, the specially empowered officer and
the Govt. – Detaining authority decided on the representation
expeditiously without waiting for the decision of the Advisory Board,
and hence, did not violate the Pankaj Kumar Judgment – The Govt.
waited for the decision of the Advisory Board – This was also in
                                                                          F
accordance with the decision of the Abdullah Kunhi case, since the
Govt., being a separate authority, is bound to wait for the decision
of the Advisory Board – Thus, both, the detaining authority and the
Govt. worked within the procedure established by law – Hence, the
impugned detention order is not liable to be struck down on the
ground of 60 days delay on the part of the Govt. in consideration         G
of the representation made by the appellant – However, in the present
case, the appellant was supplied with illegible documents in a
foreign language – Also, the principle of parity is squarely applicable
in this case, as the detention order was quashed against a similarly
placed co-detenue – Impugned detention order liable to be set aside
                                                                          H
                                 793
794            SUPREME COURT REPORTS                        [2023] 2 S.C.R.


A     – Appellant was however, already released on grounds of expiry of
      the detention period – Constitution of India – Arts. 21, 22(5) –
      Preventive Detention Act, 1950 – s.3.
            Constitution of India – Article 21, 22(5) – Held: In cases
      where illegible documents have been supplied to the detenue, a grave
B     prejudice is caused to the him in availing his right to send a
      representation to the relevant authorities – Thus, the relief u/Article
      22(5) and the relevant statutory provisions allowing for submitting
      a representation are vitiated – In cases of preventive detention, every
      procedural irregularity, keeping in mind the principles of Article
      21 and 22(5), must be accrued in favour of the detenue.
C
            Criminal Law – Preventive detention laws – Abuse/misuse of
      – Held: Such laws must be very critically examined and must be
      used only in the rarest of rare cases.
            Allowing the appeal, the Court
D            HELD: 1. Preventive detention laws in India are a colonial
      legacy, and have a great potential to be abused and misused. Laws
      that have the ability to confer arbitrary powers to the state, must
      in all circumstances, be very critically examined, and must be
      used only in the rarest of rare cases. In cases of preventive
E     detention, where the detenue is held in arrest not for a crime he
      has committed, but for a potential crime he may commit, the
      Courts must always give every benefit of doubt in favour of the
      detenue, and even the slightest of errors in procedural
      compliances must result in favour of the detenue. The detenue,
      in cases of preventive detention under the COFEPOSA Act, has
F     the right to submit a representation to the detaining authority,
      the Government, and the Advisory Board. These representations
      then, as per Article 22(5) of the Constitution of India, must be
      decided at the earliest opportunity possible. If the representation
      is accepted either by the Government or the detaining officer,
G     the detenue is released, however, if the representation is rejected,
      then the detention period is continued. [Paras 21, 22][802-E-G;
      803-A-B]
             2. Whether there exists an incongruity between the Pankaj
      Kumar case and the Abdullah Kunhi Case and if such a friction
      exists should the point of law be referred to a Larger Bench?
H
        PRAMOD SINGLA v. UNION OF INDIA & ORS.                        795


        The Pankaj Kumar Case judgment was passed in the context      A
of the Preventive Detention Act, 1960, and the Abdullah Kunhi
Case was passed in the context of the COFEPOSA Act. Section 3
of the two acts provides for preventive detention. The detention
order under both laws can be passed either by the Government,
or by the specially empowered officer. However, under Section 3
                                                                      B
of the Preventive Detention Act, the specially empowered officer,
within 12 days of the detention, has to seek for an approval from
the Government for continued detention, and only if the
Government approves the same can the detention be continued.
This process of seeking an approval from the Government is
essentially a transfer of power from the empowered officer to the     C
Government, making the Government the detaining authority
after the initial lapse of 12 days. In the COFEPOSA Act however,
no such approval is required from the Government, and hence
the detaining authority and the Government remain to be two
separate bodies independent of each other. This difference
                                                                      D
between the COFEPOSA Act and the other preventive detention
laws has been upheld by this Court in the case of Kamlesh Kumar
Ishwardas Patel vs Union Of India & Ors. If the Pankaj Kumar
judgment is read in light of this distinction between the specially
empowered officer and the Government in the COFEPOSA Act,
it is found that there exists no friction between the Pankaj Kumar    E
Judgment and the Abdullah Kunhi Judgement, since the Pankaj
Kumar Judgement, while mandating the central Government to
not wait for the decision of the Advisory Board, only does so
because the central Government is the detaining officer in the
Preventive Detention Act. In simpler terms, this would mean
                                                                      F
that the mandate to not wait for the decision of the Advisory Board
is effectively not for the central Government, but only for the
detaining officer. In the COFEPOSA Act, since the detaining
authority is separate from the Government, both, the Pankaj
Kumar Judgment and the Abdullah Kunhi Judgment would apply,
but in different spheres. The Pankaj Kumar Judgment, since it         G
was rendered in the context of the Government being the
detaining authority, would be applicable only to the detaining
authority/specially empowered officer under the COFEPOSA Act.
The Abdullah Kunhi Judgment however, since it was rendered in
the context of the COFEPOSA Act, the mandate thereunder would
                                                                      H
796           SUPREME COURT REPORTS                      [2023] 2 S.C.R.


A     squarely apply only to the Government, and not the detaining
      authority. In simpler terms, this would mean that the mandate to
      not wait for the Advisory Board would be applicable only to the
      detaining authority. The Government, however, as per the
      Abdullah Kunhi Case, must wait for the decision of the Advisory
      Board. Since these two judgments exist symbiotically and apply
B
      to two separate authorities within the COFEPOSA Act, there
      exists no friction between the judgments, and hence there is no
      necessity for this point of law to be referred to a Larger Bench
      since the same is already settled. Any apparent conflict, as
      contended by the appellant, stands resolved, and both sets of
C     judgments operate symbiotically and harmoniously within the said
      Act, without there existing any tension between them. The
      mandate to wait for the decision of the Advisory Board, as per
      the Pankaj Kumar Judgment, would apply to the central
      Government, however, the detaining authority, being independent
      of the Government, can pass its decision without the decision of
D
      he Advisory Board. Since no conflict exists, the need to refer the
      point of law to a Larger Bench also ceases. [Paras 31, 33-35][811-
      G-H; 813-F-G; 814-A-D; 815-B-D]
            Pankaj Kumar Chakraborty And Ors. v. State of West
            Bengal (1969) 3 SCC 400 : [1970] 1 SCR 543; K.M.
E           Abdulla Kunhi & B.L. Abdul Khader v. Union Of India
            & Ors. (1991) 1 SCC 476 : [1991] 1 SCR 102 –
            discussed.
            3. If there exists no friction between the two Constitutional
      judgments of this Court, can the impugned detention order be
F     quashed on grounds of the 60-day delay in consideration of the
      representation made by the appellant?
             In the present case at hand, the appellant-detenue, availing
      his rights sent a representation to both, the specially empowered
      officer and the Government. The detaining authority in the
G     present case decided on the representation expeditiously and
      without waiting for the decision of the Advisory Board, and hence,
      did not violate the Pankaj Kumar Judgment. The Government in
      the present case at hand, did decide to wait for the decision of
      the Advisory Board. This was also done in accordance with the
H     decision of the Abdullah Kunhi case, since the Government, being
        PRAMOD SINGLA v. UNION OF INDIA & ORS.                         797


a separate authority, is bound to wait for the decision of the         A
Advisory Board. both, the detaining authority, and the
Government, have worked precisely within the procedure
established by law, and hence the impugned detention order is
not liable to be struck down on this ground. [Paras 36-38][815-
D-H]
                                                                       B
     4. Whether the illegible documents written in Chinese
submitted to the appellant herein are grounds enough for
quashing the impugned detention order?
      In cases where illegible documents have been supplied to
the detenue, a grave prejudice is caused to the detenue in availing    C
his right to send a representation to the relevant authorities,
because the detenue, while submitting his representation, does
not have clarity on the grounds of his or her detention. In such a
circumstance, the relief under Article 22(5) of the Constitution
of India and the relevant statutory provisions allowing for
submitting a representation are vitiated, since no man can defend      D
himself against an unknown threat. In cases of preventive
detention, every procedural irregularity, keeping in mind the
principles of Article 21 and Article 22(5) of the Constitution of
India, must be accrued in favour of the detenue. In the present
case at hand, the appellant detenue herein has been supplied           E
with illegible documents in a foreign language. These are the
very same documents that the authorities have relied upon to
detain the appellant herein. Further, the principle of parity is
squarely applicable in this case, since another co-detenue with
identical circumstances, has already been granted the relief of
quashing the detention order against him. While the appellant          F
has already been released on grounds of expiry of the detention
period, for the sake of clarity on the point of law, it is held that
the impugned detention order is liable to be set aside. [Paras 39,
42, 43 and 45][816-B-C; 817-A-C; 818-A]
      Kamlesh Kumar Ishwardas Patel vs Union Of India &                G
      Ors. (1995) 4 SCC 51 : [1995] 3 SCR 279; Harikisan
      v. The State Of Maharashtra & Ors. (1962) Supp. 2
      SCR 918; Gian Chand v. Union Of India & Anr. (Crl.)
      39 of 2011 – relied on.
                                                                       H
798            SUPREME COURT REPORTS                       [2023] 2 S.C.R.


A           Haradhan Saha v. State of W.B. [1975] 1 SCR 778;
            Ankit Ashok Jalan vs Union of India & Ors. (2020) 16
            SCC 127 : [2020] 2 SCR 1047; Jayanarayan Sukul v.
            State Of West Bengal (1970) 1 SCC 219 : [1970] 3 SCR
            225; Francis Coralie Mullin v. W.C. Khambra & Ors.
            (1980) 2 SCC 275 : [1980] 2 SCR 1095 – referred to.
B
                             Case Law Reference
      1975] 1 SCR 778                  referred to            Para 27
      [1991] 1 SCR 102                 discussed              Para 18 (iii)
      [2020] 2 SCR 1047                referred to            Para 18 (iii)
C
      [1970] 1 SCR 543                 discussed              Para 18 (iii)
      [1970] 3 SCR 225                 referred to            Para 18 (iii)
      [1980] 2 SCR 1095                referred to            Para 28
      [1995] 3 SCR 279                 relied on              Para 32
D
      [1962] Supp. 2 SCR 918           relied on              Para 40
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1051 of 2023.
            From the Judgment and Order dated 03.11.2022 of the High Court
E     of Delhi at New Delhi in WPCRL No. 1205 of 2022.
           Vikram Chaudhri, Sr. Adv., Nikhil Jain, Rishi Sehgal, Keshavam
      Chaudhri, Ms. Hargun Sandhu, Ms. Arveen Sekhon, Ms. Prabhneer
      Swani, Ms. Divya Jain, Sagar Juneja, Advs. for the Appellant.
            K.M. Nataraj, A.S.G., Mukesh Kumar Maroria, Divyanshu Kumar
F     Srivastava, Akshit Pradhan, Ms. Aakansha Kaul, Nakul Chengappa K.K.,
      Sharath Nambiar, Anuj Srinivas Udupa, Chitransh Sharma, Gurmeet Singh
      Makker, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            KRISHNA MURARI, J.
G
              Leave Granted.
             2. The present Appeal is directed against the impugned judgment
      and final order dated 03.11.2022 passed by the High Court of Delhi at
      New Delhi, (hereinafter referred to as “High Court”) in Writ Petition
      (Crl.) No. 1205 of 2022 whereby the appellant’s plea to quash the
H
         PRAMOD SINGLA v. UNION OF INDIA & ORS.                              799
                 [KRISHNA MURARI, J.]

detention order against him on grounds of delay in considering his           A
representation was denied.
      FACTS
       3. Briefly, the facts relevant to the present appeal are that an
Intelligence was received by the Respondent that a syndicate comprising
of certain Chinese, Taiwanese, and South Korean nationals in association     B
with some Indian Nationals were in the practice of smuggling gold into
India through Air Cargo by concealing gold in transformers of
electroplating/ reworking machines etc..
      4. One such cargo was being imported to India in the name of one
M/s Healthy Future Leaders Pvt. Ltd. and was likely to arrive at Delhi       C
Cargo Complex in the New Delhi Airport.
       5. On 18.11.2021 and 19.11.2021, acting on the said intelligence,
the purported consignment was examined by the officers of Respondent
No.4 and 80.126 kgs of 24 carat foreign origin gold was recovered from
the said consignment in the form of ‘E’ and ‘I’ shaped plates with a         D
market value of Rs.39,31,38,219/-.
       6. The appellant being a suspect, his shop was checked by DRI
officials and 7 pieces of gold weighing 5.409 KGs with a market value
of Rs.2,64,44,680/-was recovered from his premises.
                                                                             E
       7. The Respondent authority also conducted searches at four
different places of the abovementioned syndicate and arrested 4 foreign
nationals on grounds of finding incriminating evidence against them.
      8. On 20.11.2021, the appellant along with other members of the
syndicate was arrested by the officers of respondent no.4 authority,
                                                                             F
whereupon they were produced before the Ld. CMM, Patiala House
Courts, New Delhi and were subsequently remanded to judicial custody.
      9. The appellant then sought for bail before the learned CMM,
and vide order dated 13.12.2021 he was granted bail.
       10. Vide four separate order dated 21.12.2021, all four foreign       G
nationals accused in the said crime were also granted bail by the Ld.
CMM, and further, vide order dated 21.12.2021, the CMM also granted
bail to the co-accused Neeraj Varshney of Indian Origin.
      11. Subsequent to the appellant’s release on bail, DRI filed an
application in the High Court for incorporating an additional condition in   H
800               SUPREME COURT REPORTS                         [2023] 2 S.C.R.


A     the bail order directing the appellant to appear in the office of DRI every
      Monday at 11:00 am, and the same was granted.
             12. On 19.01.2022, the DRI sent a proposal to respondent No.2
      to issue an order of detention under the COFEPOSA Act against the
      appellant, and subsequently respondent No.2 detaining authority passed
B     the impugned detention order as against the appellant on 01.02.2022.
      The appellant was then arrested on 04.02.2022 by the DRI.
             13. On 24.02.2022 a reference was made to the Central Advisory
      Board, Delhi High Court, and subsequently, a representation was sent
      by the appellant to the Respondent No.2 detaining authority on 02.03.2022
C     which came to be rejected on 15.03.2022.
            14. In the meanwhile, on 10.03.2022, the appellant sent a
      representation letter to the Central Government, and subsequently on
      04.04.2022, he made another representation to the Advisory Board.
            15. The hearing before the Advisory board was concluded on
D     18.04.2022, and on 09.05.2022, the Central Government, on advice from
      the advisory board after a delay of 60 days rejected the representation.
            16. The appellant then filed a writ in the High Court seeking to
      quash the detention order against him, which came to be dismissed vide
      impugned order dated 03.11.2022.
E            17. This Court subsequently, vide order dated 05.01.2023, released
      the appellant from custody as interim relief due to the demise of his
      father, and later, due to the expiry of the impugned detention order against
      the appellant, he was released from detention.
            ARGUMENTS ADVANCED BY THE APPELLANT
F           18. The Learned Counsel for the appellant contended that:
            I.      As per Article 22(5) of the Constitution of India, a
                    representation made by the detenue in cases of preventive
                    detention must be considered at the earliest, and an
                    inordinate delay in considering the representation is grounds
G                   enough for the detention order to be set aside.
            II.     While relying on a catena of judgments rendered by this
                    Court, it was argued that the Central Government is not
                    under any compulsion to wait for the recommendation of
                    the Advisory Board and must act independently and without
H                   delay in deciding the representation of the detenue.
            PRAMOD SINGLA v. UNION OF INDIA & ORS.                            801
                    [KRISHNA MURARI, J.]

       III.   Further, the Ld. Counsel for the appellant contends that the    A
              decisions of this Court in the case of K.M. Abdulla Kunhi
              & B.L. Abdul Khader v. Union Of India & Ors. 1 and
              Ankit Ashok Jalan vs Union Of India & Ors.2 Judgment,
              both of which are Constitution Bench judgments, which state
              that the central Government must wait for the decision of
                                                                              B
              the Advisory Board, are in direct contravention with
              Constitution Bench judgments of this Court in Pankaj
              Kumar Chakraborty And Ors. v. State of West Bengal3
              and the Jayanarayan Sukul v State Of West Bengal4,
              and due to the apparent conflict, the issue needs to be
              referred to a Larger Bench.                                     C
       IV.    It was also contended that the documents supplied to the
              appellant herein as grounds for his preventive detention were
              illegible and in Chinese language, and hence on this ground
              also the impugned detention order as against the appellant
              must be quashed.                                                D
       ARGUMENTS ADVANCED BY THE RESPONDENTS
      19. Learned ASG, Mr. K.M Natraj appearing on behalf of the
respondents contends that:
       I.     There is no incongruity between the Pankaj case                 E
              (supra)and the Ashok Jalan case (supra) as contended
              by the appellant. The decisions relied upon by the appellant
              are in context of the Preventive Detention Act, whereas,
              the Ashok Jalan case (supra) and Adullah Kuni case
              (supra) are in context of the COFEPOSA Act, and if the
              Pankaj case (supra) is seen in the context of COFEPOSA          F
              Act, due to their being a distinction between the detaining
              authority and the central Government in the COFEPOSA
              Act, there exists no friction between the two Constitutional
              Bench judgments.
       II.    As per the Ashok Jalan Case (supra), due to the detaining       G
              authority and the central Government being independent of
1
  (1991) 1 SCC 476
2
  (2020) 16 SCC 127
3
  (1969) 3 SCC 400
4
  (1970) 1 SCC 219                                                            H
802               SUPREME COURT REPORTS                          [2023] 2 S.C.R.


A                   each other under COFEPOSA Act, the mandate to wait
                    for the decision of the Advisory Board exists on the central
                    Government, and hence the delay of 60 days is not grounds
                    enough for the detention order to be quashed.
            ISSUES
B          20. In light of the abovementioned arguments raised by the Learned
      Counsels for the parties, following three issues arise for our consideration.
            I.      Whether there exists an incongruity between the Pankaj
                    Kumar case (supra) and the Abdullah Kunhi Case
                    (supra), and if such a friction exists should the point of law
C                   be referred to a Larger Bench?
            II.     If there exists no friction between the two Constitutional
                    judgments of this Court, can the impugned detention order
                    be quashed on grounds of the 60-day delay in consideration
                    of the representation made by the appellant?
D
            III.    Whether the illegible documents written in Chinese
                    submitted to the appellant herein are grounds enough for
                    quashing the impugned detention order?
            ANALYSIS
E            21. Before we deal with the issues framed, we find it important to
      note that preventive detention laws in India are a colonial legacy, and
      have a great potential to be abused and misused. Laws that have the
      ability to confer arbitrary powers to the state, must in all circumstances,
      be very critically examined, and must be used only in the rarest of rare
      cases. In cases of preventive detention, where the detenue is held in
F
      arrest not for a crime he has committed, but for a potential crime he may
      commit, the Courts must always give every benefit of doubt in favour of
      the detenue, and even the slightest of errors in procedural compliances
      must result in favour of the detenue.
             ISSUE 1- Whether there exists an incongruity between the
G     Pankaj Kumar case and the Abdullah Kunhi Case and if such a
      friction exists should the point of law be referred to a Larger
      Bench?
            22. For the purpose of deciding this question, we must first
      elaborate on the rights accrued to a detenue against his preventive
H
         PRAMOD SINGLA v. UNION OF INDIA & ORS.                                  803
                 [KRISHNA MURARI, J.]

detention in terms of his representation. The detenue, in cases of               A
preventive detention under the COFEPOSA Act, has the right to submit
a representation to the detaining authority, the Government, and the
Advisory Board. These representations then, as per Article 22(5) of the
Constitution of India, must be decided at the earliest opportunity possible.
If the representation is accepted either by the Government or the detaining
                                                                                 B
officer, the detenue is released, however, if the representation is rejected,
then the detention period is continued.
       23. In the case at hand, the appellant herein, who is under preventive
detention, submitted a representation to the Central Government, the
detaining authority and the Advisory Board. It is the case of the appellant
that while the detaining authority considered the representation of the          C
appellant authority in an expeditious manner, however, the Government
took 60 days to consider the same. This delay of 60 days, as per the
appellant, is fatal to the case of the prosecution, and constitutes sufficient
grounds for quashing the impugned detention order.
       24. The Government, however, claims that the delay of 60 days is          D
completely fair, as the same was caused because the Central Government
was waiting for the advice of the Advisory Board before deciding on the
resolution. In light of this conflict, the overarching issue that needs to be
answered is whether the central Government is bound to wait for the
decision of the Advisory Board before coming to its decision or not. To          E
answer this, we must look at the relevant case laws that define the
rights and duties of the Government, the detaining authority and the
detenue in such circumstance.
       25. In the Pankaj Kumar case (Supra), the petitioners therein
filed a writ petition in the Supreme Court seeking for a quashing of a           F
detention order passed against them under the Preventive Detention
Act,1950, on grounds that the Government failed to consider the
representation made by them and merely passed it on to the Advisory
Board. After careful consideration, a Constitution Bench of this Court
held that the Government must act Independently from the Advisory
Board, and that there exists no mandate on the Government to wait for            G
the decision of the Advisory Board. The relevant paragraphs of the said
judgment are being extracted herein:
       “It is true that clause (5) does not in positive language provide
       as to whom the representation is to be made and by whom,
       when made, it is to be considered. But the expressions “as                H
804     SUPREME COURT REPORTS                        [2023] 2 S.C.R.


A     soon as may be” and “the earliest opportunity” in that clause
      clearly indicate that the grounds are to be served and the
      opportunity to make a representation are provided for to
      enable the detenu to show that his detention is unwarranted
      and since no other authority who should consider such
      representation is mentioned it can only be the detaining
B
      authority to whom it is to be made which has to consider it.
      Though clause (5) does not in express terms say so it follows
      from its provisions that it is the detaining authority which has
      to give to the detenu the earliest opportunity to make a
      representation and to consider it when so made whether its
C     order is wrongful or contrary to the law enabling it to detain
      him. The illustrations given in Abdul Karim case [Abdul
      Karim v. State of W.B., (1969) 1 SCC 433] show that clause
      (5) of Article 22 not only contains the obligation of the
      appropriate Government to furnish the grounds and to give
      the earliest opportunity to make a representation but also by
D
      necessary implication the obligation to consider that
      representation. Such an obligation is evidently provided for
      to give an opportunity to the detenu to show and a
      corresponding opportunity to the appropriate Government to
      consider any objections against the order which the detenu
E     may raise so that no person is, through error or otherwise,
      wrongly arrested and detained. If it was intended that such a
      representation need not be considered by the Government
      where an Advisory Board is constituted and that representation
      in such cases is to be considered by the Board and not by the
      appropriate Government, clause (5) would not have directed
F
      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
G     what would happen in cases where the detention is for less
      than 3 months and there is no necessity of having the opinion
      of the Board? If counsel’s contention were to be right the
      representation in such cases would not have to be considered
      either by the appropriate Government or by the Board and
      the right of representation and the corresponding obligation
H
  PRAMOD SINGLA v. UNION OF INDIA & ORS.                              805
          [KRISHNA MURARI, J.]

of the appropriate Government to give the earliest opportunity        A
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
                                                                      B
kinds of orders. The clause does not say that the representation
is to be considered by the appropriate Government in the
former class of cases and by the Board in the latter class of
cases. In our view it is clear from clauses (4) and (5) of Article
22 that there is a dual obligation on the appropriate
Government and a dual right in favour of the detenu, namely,          C
(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
                                                                      D
finds that there is no sufficient cause for detention the
Government has to revoke the order of detention and set at
liberty the detenu. Thus, whereas the Government considers
the representation to ascertain whether the order is in
conformity with its power under the relevant law, the Board
considers such representation from the point of view of               E
arriving at its opinion whether there is sufficient cause for
detention. The obligation of the appropriate Government to
afford to the detenu the opportunity to make a representation
and to consider that representation is distinct from the
Government’s obligation to constitute a Board and to
                                                                      F
communicate the representation amongst other materials to
the Board to enable it to form its opinion and to obtain such
opinion.
This conclusion is strengthened by the other provisions of the
Act. In conformity with clauses (4) and (5) of Article 22, Section
7 of the Act enjoins upon the detaining authority to furnish          G
to the detenu grounds of detention within five days from the
date of his detention and to afford to the detenu the earliest
opportunity to make his representation to the appropriate
Government. Sections 8 and 9 enjoin upon the appropriate
Government to constitute an Advisory Board and to place               H
806     SUPREME COURT REPORTS                        [2023] 2 S.C.R.


A     within 30 days from the date of the detention the grounds for
      detention, the detenu’s representation and also 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
B
      Government but by the Board only as contended, there was
      no necessity to provide that it should be addressed to the
      Government and not directly to the Board. The Government
      could not have been intended to be only a transmitting
      authority nor could it have been contemplated that it should
C     sit tight on that representation and remit it to the Board after
      it is constituted. The peremptory language in clause (5) of
      Article 22 and Section 7 of the Act would not have been
      necessary if the Board and not the Government had to
      consider the representation. Section 13 also furnishes an
      answer to the argument of the counsel for the State. Under
D
      that section the State Government and the Central Government
      are empowered to revoke or modify an order of detention.
      That power is evidently provided for to enable the Government
      to take appropriate action where on a representation made to
      it, it finds that the order in question should be modified or
E     even revoked. Obviously, the intention of Parliament could not
      have been that the appropriate Government should pass an
      order under Section 13 without considering the representation
      which has under Section 7 been addressed to it.
      For the reasons aforesaid we are in agreement with the
F     decision in Abdul Karim case [Abdul Karim v. State of W.B.,
      (1969) 1 SCC 433] . Consequently, the petitioners had a
      Constitutional right and there was on the State Government a
      corresponding Constitutional obligation to consider their
      representations irrespective of whether they were made before
      or after their cases were referred to the Advisory Board and
G     that not having been done the order of detention against them
      cannot be sustained. In this view it is not necessary for us to
      examine the other objections raised against these orders. The
      petition is therefore allowed, the orders of detention against
      Petitioners 15 and 36 are set aside and we direct that they
H     should be set at liberty forthwith.”
         PRAMOD SINGLA v. UNION OF INDIA & ORS.                             807
                 [KRISHNA MURARI, J.]

       26. Further, in the Jayanarayan Sukul Case (Supra), the same         A
issue was considered by another Constitution Bench of this Court, wherein
it went on to reiterate the principles in the Pankaj Kumar Case (Supra),
and held that the central Government must act independently of the
Advisory Board, and can decide the representation made by the detenue
without hearing from the Advisory Board. For the purpose of convenience,
                                                                            B
the relevant paragraph of the said judgment is being reproduced herein:
      “In the present case, the State of West Bengal is guilty of
      infraction of the Constitutional provisions not only by
      inordinate delay of the consideration of the representation
      but also by putting of the consideration till after the receipt       C
      of the opinion of the Advisory Board. As we have already
      observed there is no explanation for this inordinate delay.
      The Superintendent who made the enquiry did not affirm an
      affidavit. The State has given no information as to why this
      long delay occurred. The inescapable conclusion in the
      present case is that the appropriate authority failed to              D
      discharge its Constitutional obligation by inactivity and lack
      of independent judgment.”
      27. In the Harardhan Saha Case (Supra), yet another
Constitution Bench of this Court considered the distinction between the
consideration of the representation made by the detenue in cases of         E
preventive detention, and it was stated that if the representation was
made before the matter is referred to the Advisory Board, the detaining
authority must consider such representation, but if the representation is
made after the matter is referred to the Advisory Board, the detaining
authority would first consider it and then send it to the Advisory Board.   F
The relevant paragraph from the said judgment is being reproduced
hereunder:
      “The representation of a detenu is to be considered. There is
      an obligation on the State to consider the representation. The
      Advisory Board has adequate power to examine the entire               G
      material. The Board can also call for more materials. The
      Board may call the detenu at his request. The Constitution of
      the Board shows that it is to consist of Judges or persons
      qualified to be Judges of the High Court. The Constitution of
      the Board observes the fundamental of fair play and principles
                                                                            H
808                SUPREME COURT REPORTS                      [2023] 2 S.C.R.


A              of natural justice. It is not the requirement of principles of
               natural justice that there must be an oral hearing. Section 8
               of the Act which casts an obligation on the State to consider
               the representation affords the detenu all the rights which are
               guaranteed by Article 22(5). The Government considers the
               representation to ascertain essentially whether the order is in
B
               conformity with the power under the law. The Board, on the
               other hand, considers whether in the light of the
               representation there is sufficient cause for detention.
               Principles of natural justice are an element in considering
               the reasonableness of a restriction where Article 19 is
C
               applicable. At the stage of consideration of representation
               by the State Government, the obligation of the State
               Government is such as Article 22(5) implies. Section 8 of the
               Act is in complete conformity with Article 22(5) because this
               section follows the provisions of the Constitution. If the
D              representation of the detenu is received before the matter is
               referred to the Advisory Board, the detaining authority
               considers the representation. If a representation is made after
               the matter has been referred to the Advisory Board, the
               detaining authority will consider it before it will send
               representation to the Advisory Board.”
E
             28. Subsequently, in the case of Francis Coralie Mullin v. W.C.
      Khambra & Ors.5, a Division Bench of this Court considered the
      principles laid down in the judgment of Jayanarayan Sukul (Supra),
      and while it agreed with the principles of the above mentioned case, it
      however made an observation stating that when it was said that the
F
      Government must decide on the representation before forwarding it to
      the advisory board, the emphasis was not on time, but on the onus of the
      Government to decide the representation Independently. This essentially
      meant that the Government must act independently of the Advisory Board,
      the relevant paragraphs from the said judgment are being extracted herein:
G
               “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
      5
H         (1980) 2 SCC 275
  PRAMOD SINGLA v. UNION OF INDIA & ORS.                           809
          [KRISHNA MURARI, J.]

writ is the ultimate insurance against illegal detention. The      A
Constitution enjoins conformance with the provisions of
Article 22 and the Court exacts compliance. Article 22(5) vests
in the detenu the right to be provided with an opportunity to
make a representation. Here the Law Reports tell a story and
teach a lesson. It is that the principal enemy of the detenu
                                                                   B
and his right to make a representation is neither high-
handedness nor mean-mindedness but the casual indifference,
the mindless insensibility, the routine and the red tape of the
bureaucratic machine. The four principles enunciated by the
Court in Jayanarayan Sukul v. State of W.B. [Jayanarayan
Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri)          C
92] as well as other principles enunciated in other cases, an
analysis will show, are aimed at shielding personal freedom
against indifference, insensibility, routine and red tape and
thus to secure to the detenu the right to make an effective
representation. We agree : (1) the detaining authority must
                                                                   D
provide the detenu a very early opportunity to make a
representation, (2) the detaining authority must consider the
representation as soon as possible, and this, preferably, must
be before the representation is forwarded to the Advisory
Board, (3) the representation must be forwarded to the
Advisory Board before the Board makes its report, and (4)          E
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
                                                                   F
are not to be so understood. There has to be lee-way, depending
on the necessities (we refrain from using the word
“circumstances”) of the case. One may well imagine a case
where a detenu does not make a representation before the
Board makes its report making it impossible for the detaining
authority either to consider it or to forward it to the Board in   G
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
                                                                   H
810            SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A           situations may arise compelling departure from the time-
            imperative. But no allowance can be made for lethargic
            indifference. No allowance can be made for needless
            procrastination. But, allowance must surely be made for
            necessary consultation where legal intricacies and factual
            ramifications are involved. The burden of explaining the
B
            necessity for the slightest departure from the time-imperative
            is on the detaining authority.
            We have already expressed our agreement with the four
            principles enunciated in Jayanarayan Sukul v. State of
C           W.B. [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219
            : 1970 SCC (Cri) 92] We would make one observation. When
            it was said there that the Government should come to its
            decision on the representation before the Government
            forwarded the representation to the Advisory Board, the
            emphasis was not on the point of time but on the requirement
D           that the Government should consider the representation
            independently of the Board.”
              29. However, in the case of Abdulla Kunhi (Supra), where the
      preventive detention of the petitioner therein under the COFEPOSA
      Act was challenged on the same disputed ground, a Constitutional Bench
E     of this Court, while considering both the issues of when the representation
      is submitted before the matter is referred to the Advisory Board and
      after the mater has been referred to the advisory board, for both the
      circumstances, had held that the Government must wait for the decision
      of the Advisory Board before making its decision on the representation.
F     The relevant paragraph of the abovementioned judgment is being
      extracted hereunder:
            “We agree with the observations in Frances Coralie Mullin
            case [(1980) 2 SCC 275 : 1980 SCC (Cri) 419] . The time
            imperative for consideration of representation can never be
G           absolute or obsessive. It depends upon the necessities and
            the time at which the representation is made. The representation
            may be received before the case is referred to the Advisory
            Board, but there may not be time to dispose of the
            representation before referring the case to the Advisory Board.
            In that situation the representation must also be forwarded to
H
         PRAMOD SINGLA v. UNION OF INDIA & ORS.                                  811
                 [KRISHNA MURARI, J.]

       the Advisory Board along with the case of the detenu. The                 A
       representation may be received after the case of the detenu is
       referred to the Board. Even in this situation the representation
       should be forwarded to the Advisory Board provided the Board
       has not concluded the proceedings. In both the situations
       there is no question of consideration of the representation
                                                                                 B
       before the receipt of report of the Advisory Board. Nor it could
       be said that the Government has delayed consideration of
       the representation, unnecessarily awaiting the report of the
       Board. It is proper for the Government in such situations to
       await the report of the Board. If the Board finds no material
       for detention on the merits and reports accordingly, the                  C
       Government is bound to revoke the order of detention.
       Secondly, even if the Board expresses the view that there is
       sufficient cause for detention, the Government after
       considering the representation could revoke the detention.
       The Board has to submit its report within eleven weeks from               D
       the date of detention. The Advisory Board may hear the detenu
       at his request. The Constitution of the Board shows that it
       consists of eminent persons who are Judges or persons
       qualified to be Judges of the High Court. It is therefore, proper
       that the Government considers the representation in the
       aforesaid two situations only after the receipt of the report of          E
       the Board. If the representation is received by the Government
       after the Advisory Board has made its report, there could then
       of course be no question of sending the representation to the
       Advisory Board. It will have to be dealt with and disposed of
       by the Government as early as possible.”                                  F
       30. While at a first glance, it may seem like there is friction between
the two sets of judgments, however, a deeper inspection would prove
otherwise. To understand the two sets of judgments, we must first look
at the relevant provisions under which these judgments were passed.
                                                                                 G
      31. The Pankaj Kumar Case (Supra) judgment was passed in
the context of the Preventive Detention Act, 1960, and the Abdullah
Kunhi Case (Supra) was passed in the context of the COFEPOSA
Act. Section 3 of the two acts providing for preventive detention, for a
ready reference, are being reproduced hereunder in a table chart:
                                                                                 H
812   SUPREME COURT REPORTS   [2023] 2 S.C.R.


A




B




C




D




E




F




G




H
            PRAMOD SINGLA v. UNION OF INDIA & ORS.                           813
                    [KRISHNA MURARI, J.]

       32. As can be seen from the provisions of the abovementioned          A
Acts, the detention order under both laws can be passed either by the
Government, or by the specially empowered officer. However, under
Section 3 of the Preventive Detention Act, the specially empowered
officer, within 12 days of the detention, has to seek for an approval from
the Government for continued detention, and only if the Government
                                                                             B
approves the same can the detention be continued. This process of
seeking an approval from the Government is essentially a transfer of
power from the empowered officer to the Government, making the
Government the detaining authority after the initial lapse of 12 days. In
the COFEPOSA Act however, no such approval is required from the
Government, and hence the detaining authority and the Government             C
remain to be two separate bodies independent of each other. This
difference between the COFEPOSA Act and the other preventive
detention laws has been upheld by this Court in the case of Kamlesh
Kumar Ishwardas Patel vs Union Of India & Ors.6, the relevant
extract of the abovesaid judgment is being reproduced hereunder:
                                                                             D
         “The second premise that the Central Government becomes
         the detaining authority since there is deemed approval by the
         Government of the order made by the officer specially
         empowered in that regard from the time of its issue, runs
         counter to the scheme of the COFEPOSA Act and the PIT
         NDPS Act which differs from that of other preventive detention      E
         laws, namely, the National Security Act, 1980, the
         Maintenance of Internal Security Act, 1971, and the
         Preventive Detention Act, 1950.”
      33. If we read the Pankaj Kumar judgment (Supra) in light of
this distinction between the specially empowered officer and the             F
Government in the COFEPOSA Act, we find that there exists no friction
between the Pankaj Kumar Judgment (Supra) and the Abdullah
Kunhi Judgement (Supra), since the Pankaj Kumar Judgement, while
mandating the central Government to not wait for the decision of the
Advisory Board, only does so because the central Government is the           G
detaining officer in the Preventive Detention Act. In simpler terms, this
would mean that the mandate to not wait for the decision of the Advisory
Board is effectively not for the central Government, but only for the
detaining officer.
6
    (1995) 4 SCC 51                                                          H
814            SUPREME COURT REPORTS                         [2023] 2 S.C.R.


A            34. In the COFEPOSA Act, since the detaining authority is
      separate from the Government, both, the Pankaj Kumar Judgment
      (supra) and the Abdullah Kunhi Judgment (supra) would apply, but
      in different spheres. The Pankaj Kumar Judgment (supra), since it
      was rendered in the context of the Government being the detaining
      authority, would be applicable only to the detaining authority/specially
B
      empowered officer under the COFEPOSA Act. The Abdullah Kunhi
      Judgment (supra) however, since it was rendered in the context of the
      COFEPOSA Act, the mandate thereunder would squarely apply only to
      the Government, and not the detaining authority. In simpler terms, this
      would mean that the mandate to not wait for the Advisory Board would
C     be applicable only to the detaining authority. The Government, however,
      as per the Abdullah Kunhi Case (supra), must wait for the decision of
      the Advisory Board. Since these two judgments exist symbiotically and
      apply to two separate authorities within the COFEPOSA Act, there exists
      no friction between the judgments, and hence there is no necessity for
      this point of law to be referred to a Larger Bench since the same is
D
      already settled. This application of both the judgments in two separate
      spheres within the same act has been clarified in the Ashok Jalan
      Judgment (supra), the relevant extract from the said judgment is being
      extracted hereunder:
            “We are conscious that the view that we are taking, may lead
E           to some incongruity and there could be clear dichotomy when
            the representations are made simultaneously to such specially
            empowered officer who had passed the order of detention
            and to the appropriate Government. If we go by the principle
            in para 16 in K.M. Abdulla Kunhi [K.M. Abdulla
F           Kunhi v. Union of India, (1991) 1 SCC 476 : 1991 SCC (Cri)
            613] it would be proper for the appropriate Government to
            wait till the report was received from the Advisory Board, while
            at the same time the specially empowered officer who had
            acted as the detaining authority would be obliged to consider
            the representation with utmost expedition. At times a single
G           representation is prepared with copies to the detaining
            authority, namely, the specially empowered officer and to the
            appropriate Government as well as to the Advisory Board. In
            such situations there will be incongruity as stated above, which
            may be required to be corrected at some stage. However, such
H           difficulty or inconsistency cannot be the basis for holding
         PRAMOD SINGLA v. UNION OF INDIA & ORS.                               815
                 [KRISHNA MURARI, J.]

      that a specially empowered officer while acting as a detaining          A
      authority would also be governed by the same principles as
      laid down in para 16 of K.M. Abdulla Kunhi [K.M. Abdulla
      Kunhi v. Union of India, (1991) 1 SCC 476 : 1991 SCC (Cri)
      613] .”
      35. In light of the abovementioned discussions, it can be clearly       B
seen that any apparent conflict, as contended by the appellant, stands
resolved, and both sets of judgments operate symbiotically and
harmoniously within the said Act, without there existing any tension
between them. The mandate to wait for the decision of the Advisory
Board, as per the Pankaj Kumar Judgment (Supra), would apply to               C
the central Government, however, the detaining authority, being
independent of the Government, can pass its decision without the decision
of he Advisory Board. Since no conflict exists, the need to refer the
point of law to a Larger Bench also ceases, and hence we hold issue
No.1 in favour of the Respondents.
                                                                              D
      ISSUE II- If there exists no friction between the two
Constitutional judgments of this Court, can the impugned
detention order be quashed on grounds of the 60-day delay in
consideration of the representation made by the appellant?
       36. In the present case at hand, the appellant-detenue, availing his   E
rights sent a representation to both, the specially empowered officer and
the Government. The detaining authority in the present case decided on
the representation expeditiously and without waiting for the decision of
the Advisory Board, and hence, did not violate the Pankaj Kumar
Judgment (supra).
                                                                              F
       37. The Government in the present case at hand, did decide to
wait for the decision of the Advisory Board. This was also done in
accordance with the decision of the Abdullah Kunhi case (supra),
since the Government, being a separate authority, is bound to wait for
the decision of the Advisory Board.
                                                                              G
       38. In light of the abovementioned discussions, it can be seen that
both, the detaining authority, and the Government, have worked precisely
within the procedure established by law, and hence the impugned detention
order is not liable to be struck down on this ground. We therefore hold
Issue II in favour of the respondent.
                                                                              H
816                SUPREME COURT REPORTS                      [2023] 2 S.C.R.


A           ISSUE III- Whether the illegible documents written in
      Chinese submitted to the appellant herein are grounds enough
      for quashing the impugned detention order?
             39. In cases where illegible documents have been supplied to the
      detenue, a grave prejudice is caused to the detenue in availing his right
B     to send a representation to the relevant authorities, because the detenue,
      while submitting his representation, does not have clarity on the grounds
      of his or her detention. In such a circumstance, the relief under Article
      22(5) of the Constitution of India and the relevant statutory provisions
      allowing for submitting a representation are vitiated, since no man can
      defend himself against an unknown threat.
C
             40. In the case of Harikisan v. The State Of Maharashtra &
      Ors.7, this Court held that in cases of preventive detention, as per the
      principles enshrined under Article 22(5) of the Constitution Of India, the
      detaining authority must explain the grounds of detention to the detenue,
      and must provide the material in support of the same and in the language
D     understood by the detenue. The relevant Paragraph of the said judgment
      is being reproduced herein:
               “…The grounds in support of the order served on the
               appellant ran into fourteen typed pages and referred to his
               activities over a period of thirteen years, beside referring to
E              a large number of Court proceedings concerning him and
               other persons who were alleged to be his associates. Mere
               oral explanation of a complicated order of the nature made
               against the appellant without supplying him the translation
               in script and language which he understood would, in our
F              judgment, amount to denial of the right of being communicated
               the grounds and of being afforded the opportunity of making
               a representation against the order…”
             41. It has been brought to our notice that a co-detenue, one Mr.
      Neeraj Varshney has already been granted relief, and his detention order
G     has been quashed by the High Court on grounds of illegible Chinese
      documents supplied to him as his grounds for detention. It is important to
      note that the circumstances of the appellant herein, as far as the present
      detention is concerned, is identical to the case of the co-detenue who’s
      detention order was quashed.
      7
H         (1962) Supp. 2 SCR 918
             PRAMOD SINGLA v. UNION OF INDIA & ORS.                              817
                     [KRISHNA MURARI, J.]

       42. At the sake of repetition, we find it important to state that in      A
cases of preventive detention, every procedural irregularity, keeping in
mind the principles of Article 21 and Article 22(5) of the Constitution of
India, must be accrued in favour of the detenue. In the present case at
hand, the appellant detenue herein has been supplied with illegible
documents in a foreign language. It is also important to note that these
                                                                                 B
are the very same documents that the authorities have relied upon to
detain the appellant herein.
       43. Further, the principle of parity is squarely applicable in this
case, since another co-detenue with identical circumstances, has already
been granted the relief of quashing the detention order against him. In
the case of Gian Chand v. Union Of India & Anr.8, this Court while               C
deciding on a quashing of a detention order, categorically held that in
cases where a similarly placed co-detenue has already been granted the
relief of a quashing of the detention order, the principle of parity must
apply, and the same relief should be extended to other similarly placed
detenues. In light of the abovementioned discussion, we hold Issue III in        D
favour of the appellant.
          CONCLUSION
       44. As has been mentioned above, preventive detention laws in
India are a colonial legacy, and as such, are extremely powerful laws
that have the ability to confer arbitrary power to the state. In such a          E
circumstance, where there is a possibility of an unfettered discretion
of power by the Government, this Court must analyze cases arising
from such laws with extreme caution and excruciating detail, to ensure
that there are checks and balances on the power of the Government.
Every procedural rigidity, must be followed in entirety by the                   F
Government in cases of preventive detention, and every lapse in
procedure must give rise to a benefit to the case of the detenue. The
Courts, in circumstances of preventive detention, are conferred with
the duty that has been given the utmost importance by the Constitution,
which is the protection of individual and civil liberties. This act of
protecting civil liberties, is not just the saving of rights of individuals in   G
person and the society at large, but is also an act of preserving our
Constitutional ethos, which is a product of a series of struggles against
the arbitrary power of the British state.

8
    (Crl.) 39 of 2011                                                            H
818              SUPREME COURT REPORTS                        [2023] 2 S.C.R.


A            45. In light of the abovementioned discussion, while the appellant
      has already been released on grounds of expiry of the detention period,
      for the sake of clarity on the point of law, we hold that the impugned
      detention order is liable to be set aside, and the present appeal is
      accordingly allowed.
B
      Divya Pandey                                               Appeal allowed.
      (Assisted by : Roopanshi Virang, LCRA)




C




D




E




F




G




H