Holding

The detention is illegal because the detainee's representation to the Central Government was not considered, depriving him of the statutory right under section 11(1) of COFEPOSA to have his detention revoked.

Summary

Rattan Singh was detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. While in custody he, through his counsel, sent representations to both the Punjab State Government and the Central Government via the jail superintendent, seeking revocation of his detention. The State Government considered and rejected its representation, but the representation to the Central Government was never forwarded, as admitted by the Central Ministry. The petitioner filed a writ petition under Article 32, arguing that the failure to consider his representation violated his right to personal liberty under Article 22(5) and rendered his detention illegal. The Supreme Court held that section 11(1) of COFEPOSA gives the detainee a statutory right to make a representation to the Central Government, and the omission deprived him of that right, making the detention unlawful. Consequently, the Court ordered his release and allowed the petitions.

Issues considered

Whether the failure to forward the detainee's representation to the Central Government violates his right to personal liberty under Article 22(5) of the Constitution.
Whether section 11(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 confers a statutory right on a detainee to make a representation to the Central Government for revocation of detention.
Whether the Central Government's inaction amounts to a breach of its statutory duty under COFEPOSA, rendering the detention illegal.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 11(1), s. 3(1)

Subjects

preventive detentionrepresentationcentral governmentCOFEPOSAArticle 22(5)personal libertywrit petitionArticle 32

Judgment

A !OH)

RATTAN SINGH ETC. ETC.
v.

STATE OF PUNJAB & ORS. ETC. ETC.
B
October 22, 1981

[ Y.V. CHANDRACHUD, C.J., A. VARADARAJAN AND
AMARENDRA NATH SEN, JJ. ]

c Conservation af Foreign Exchange and Prevention of Smuggling Activities Act
1974-Petitioner's representation to Central Government submitted through Jail
Superintendent not forwarded-Effect of-Scope of power of Central Government
und.r section JI (I). '
-
The petitioner, who was detained under section 3(1 l of the Conservation of
Foreign Exchange and Prevention of Smugg1ing Activities Act, 1974 made (on
D April 19, 1981) through the Jail Superintendent representations simultaneously to
the State Government as well as the Central Government against the order of his
detention. In his petition under Article 32 of the Constitution he contended that
the failure of,, the Central Government to consider his representation inspite of the
long passage of time had rendered his detention illegal.

The Jail Superintendent in his affidavit stated that the representation was
E forwarded to the State Government. The State Government after considering
his representation rejected it.

Allowing the petitions

HELD : The detention is illegal. [1012 F]

(1 The petitioner~ had been unaccountably deprived of a valuable right to
defend and assert his fundamental right to personal liberty. Laws of preventive
detention afford only a modicum of safeguards to person detained under them
and if freedom and liberty are to have any meaning in our democratic set up it is
essential that at least those safeguards are not denied to the detenu. If the power
conferred on the Central Government by section 11(1) of the Act to revoke an
7
order of detention even if it was made by 1he _State Government ·or its officers
G is to be real and effective, it must imply the right in a detenu to make a repre-
sentation to the Central Government against the order of detention. In the
instant case (the failure on the part either of the Jail Superintendent or the
State Government to forward the detenu's representation to the Central Govern-
ment has deprived him of the valuable right to have his detention revoked by
that Government. [1012 C·F]
H
Tara Chand v. State of Rajasthan, [1980] 2 S.C.C. 321 and Shyam Amba/al
Siroya v. Union of India, [1980] 2 S.C.C. 346, referred to.
RATTAN SINGH v. PUNJAB (Chandrachud, C. J.) IOI I

ORIGINAL JURISDICTION: Writ Petition Nos. 3614 & 3647 of A
1981.

Harjinder Singh for the Petitioner.

N. S. Das Bahl and M. S. Dhillon for Respondent No. I.
B
The Judgment of the Court was delivered by

CHANDRACHUD, C.J. : By this petition fonder Article 32 of the
--
• Constitution the petitioner challenges the validity of an order dated
March 27, 1981 passed by respondent l, the State of Punjab, under

- section 3(1) of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974.
c

On April 19, !981, while the petitioner was in detention, his
advocate, Shri Harjinder Singh, wrote a letter to the Superintendent
of Central Jail, Amritsar, enclosing therewith two representations
drafted on behalf of the petitioner, one of which was addressed to D
the Joint Secretary, Department of Home, Government of Punjab,
11< Chandigarh, and the other to the Secretary, Union Ministry of
Finance, Department of Revenue, New ~Delhi. The Jail Superinten-
dent was requested by the aforesaid letter that the representations
be forwarded to the State Government and the Central Government
after obtaining the signatures of the detenu thereon. The conten- E
tion of the petitioner is that in spite of the long passage of time, the
representation to the Central Government has not so far been con-
sidered by it, rendering his detention illegal.

In his counter-affidavit dated July 29, 1981. the Under Secre-
tary to the Government of India, Ministry of Finance (Department F
of Revenue), COFEPOSA Unit, New Delhi says that "no represen-
tation by or on behalf of the detenu relating to his detention has
been received by the Central Government. As such, the question
of any delay in the disposal of such a representation does not arise".
In his affidavit dated July 21, 1981 the P.P.S. (I), Superintendent,
Central Jail, Amritsar says that the representation of the detenu G
Rattan Singh was forwarded to the Punjab Government. The affi-
davit of Smt. Shyama Mann, Joint Secretary to Government, Punjab,
Home Department, Chandigarh shows that the representation of the
detenu was considered by the Q9vernment of Punjab and was
rejected on April 28, 1981, H
1012 SUPREME COURT REPORTS [1982] I S.C.R.

A There is no difficulty in so far as the representation to the
Government of Punjab is concerned. But the unfortunate lapse on
the part of the authorities is that they overlooked totally the repre·
sentation made by the detenu to the Central Government. The
representations to the State Government and the Central
Government were made~by the detenu simultaneously through the
8 Jail Superintendent. The Superintendent should either have for-
warded the representations separately to the Governments concerned
or else he should have forwarded them to the State Government
with a request for the onward transmission of the other representa··
tion to the Central Government. Some one tripped somewhere and
the representation addressed to the Central Government was appa- •
c rently never forwarded to it, with the inevitable result that the detenu
has been unaccountably deprived of a valuable right to defend and
assert his fundamental right to personal liberty. May be that the
-
detenu is a smuggler whose tribe (and how their numbers increase !)
deserves no sympathy since its activities have paralysed the Indian
economy. But the laws of preventive detention afford only a modi-
D cum of safeguards to persons detained under them and if freedom
and liberty are to have any meaning in our democratic set-up, it is
essential that at least those safeguards are not denied to the detenus .
Section 11 ( 1) of COFEPOSA confers upon the Central Government
•
the power to revoke an order of detention even if it is made by the
State Government or its officer. That power, in order to be real and
E effective, must imply the right in a detenu to make a representation
to the Central Government against the order of detention. The
failure in this case on the part either of the Jail Superintendent or
the State Government to forward the detenu's representation to the
Central Government has deprived the detenu of the valuable right
to have his detention revoked by that Government. The continued
detention of the detenu must therefore be held illegal and the detenu
set free.
-
In Tai a Chand v. State of Rajasthan('), it was held by this
Court that even an inordinate delay on the part of the Central
Government in consideration of the representation of a detenu
-
'
G would be in violation of Article 22(5) of the Constitution, thereby
rendering the detention unronstitutional. In Shyam Amba!al Siroya
v. Union of lndia( 2 ) this Court held that when a properly addressed
representation is made by the detenu to the Centr>1l Government for

H
(I) [1980) 2 S.C.C. 321.
(I) [1980J 2 S.C.C 346.
RATTAN siNGH v. PUNJAB (Chandrachud, C. i.) io13
revocation of the order of detention, a statutory duty is cast upon A
the Central Government under section 11, COFEPOSA to apply its
mind and either revoke the order of detention or dismiss the petition
and that a petition for revocation of an order of detention should be
disposed of with reasonable expedition. Since the representation
was left unattended for four months, the continued detention of the
detenu was held illegal. In our case, the representation to the B
Central Government was not forwarded to it at all.

These then are our reasons for the order dated October I, 1981
• whereby we directed that the detenu be released,

- Writ Petition No. 3647 of 1981. C
For the reasons given above in Writ Petition No. 3614 of 1981,
this Petition must also succeed and the detenu set at liberty as
directed in our Order dated October I. It was on July 2, 1981 that
the detenu macte a representation to the Central Government through
the Superintendent of Jail, Amritsar, and it is not denied that the D
representation has still not been considered by that Government.
.. The counter-affidavit of the Under Secretary to the Government of
India shows that the representation made by the detenu was not
forwarded at all to the Central Government which explains the
statement in the affidavit that no representation was received by the
Central Government and that therefore the question of delay in E
consideration of the representation did not arise.

P.B.R. Petitions allowed.