Holding

A representation under Article 22(5) need be considered only by the authority to which it is made; there is no requirement that all authorities independently consider each representation.

Summary

The husband of the petitioner was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) for alleged undervaluation of imported goods. He filed three representations – two to the Joint Secretary (detaining authority) and one to the Central Government – all of which were rejected. The Calcutta High Court held that, because the three authorities (detaining authority, Central Government and Advisory Board) had not each considered every representation, the detention order was otiose and should be set aside. On appeal, the Supreme Court examined the statutory scheme and held that Article 22(5) merely requires the authority to which a representation is addressed to consider it; there is no statutory or constitutional duty for all authorities to consider each representation. The Court therefore set aside the High Court’s judgment and disposed of the appeal, noting that the period of detention had already expired and refraining from expressing any view on the validity of the original detention order.

Issues considered

Whether a representation made by a detenu under Article 22(5) of the Constitution must be considered by all authorities (detaining authority, Central Government and Advisory Board) or only by the authority to which it is addressed.
Whether the non‑consideration of representations by all three authorities renders the order of detention otiose.

Legislation cited

Subjects

preventive detentionrepresentationArticle 22(5)COFEPOSArevocation of detentionconstitutional lawfundamental rights

Judgment

A UNION OF INDIA AND ANR.
V.

SNEHA KHEMKA AND ANR.

JANUARY 23, 2004

B [DORAISWAMY RAJU AND S.B. SINHA, JJ.]

Constitution of India, 1950; Article 22(5)/Conservation of Foreign
Exchange. and Prevention of Smuggling Activities, Act; Sections 3 and //:
C Detention of accused-Representations-Rejected by the authorities
concerned-Validity of the order of detention-Challenge to-Writ Petition
allowed by High Court holding that non-consideration of representations by
all the three aulhorities rendered the order of detention otiose-On appeal,
Held: no such procedure contemplated-It would result in delay-The
representation has to be considered by the authority concerned and not by all
D the authorities-General Clauses Act, 1897-Section 21.

The issue which arose in this appeal was as to whether representation
made by the detenu or on his behalf to the authorities concerned is
required to be c:onsidered necessarily by all the authorities.

E It was contended for the appellant-Union of India that the
representations could only be considered by the authority concerned.

On behalf of the respondent, it was submitted that representations
might contain different grounds and therefore unless the Central
Government or the detaining authority obtain the representations made
F before other authorities, effective disposal thereof would not be possible;
and that having regard to the fact that the period of detention was long
over and that several other contentions were raised before the High Court,
the Supreme Court may not exercise its jurisdiction under Article 136 of
the Constitution.
G Disposing of the appeal, the Court

HELO: I.I. A right to make a representation is a facet of
fundamental right. Article 22(5) of the Constitution does not state as to
before whom such representation is to be made, and provisions therefor
H 1074
U.0.1. v. SNEHA KHEMKA 1075
are laid down in the statute under which the detenu has been detained. A
Upon service of the order of detention on the detenu, the detaining
authority or the State Government is obligated to forward to the Central
Government a report thereabout; whereafter the latter is entitled to
consider it at its earliest opportunity, the validity or otherwise thereof so
as to enable it to intervene in appropriate cases by exercising its power of B
revocation. Further more, the representation of the detenu, if any, at a
later stage is required to be considered by the Central Government in
terms of Section II of the Act. 11079-G, H; 1080-BI

Kamlesh Kumar lshwardas !'ate! etc. v. Union of India and Ors. etc.,
119951 4 sec 51, followed. c
1.2. In terms of Section 11 of the COFEPOSA Act the authority
vested in the Central Government or the State Government to revoke an
order of detention is without prejudice to the provisions contained in
Section 21 of the General Clauses Act, 1897. In terms of Section 21 of the
General Clauses Act, an authority who passes an order has the jurisdiction D
to revoke the same. A representation of the detenu having regard to clause
(5) of Article 22 of the Constitution of India must also be disposed of within
a reasonable time. It is equally well-settled that the constitutional right to
make a representation includes the right to obtain proper consideration
thereof by the authority to whom it is made. 11080-E, F; 1081-A, B]
E
1.3. If it is to be assumed that the three different authorities before
whom the representations are made are required to obtain copies of the
representations made to the others, before a representation is considered,
the authority concerned will have to make an enquiry from the authorities
as to whether a representation had been made to it and if the answer F
thereof is in the affirmative, to obtain a copy thereof. Once such an enquiry
is made and eventually if in the meanwhile an order on such representation
has been passed by the authority concerned, the same would also be
required to be obtained. Apart from the fact that such procedur~ is not
contemplated, a great delay would ensue thereby which would run counter
to the constitutional scheme, as the detenu has a fundamental right to have G
the same considered and obtain an order on his representation by the
appropriate authority at the earliest opportunity. 11081-C, D, El

Kamlesh Kumar lshwardas Pale/ e/c. v. Union of India and Ors. etc.,
1199514 sec 51, followed.
H
1076 SUPREME COURT REPORTS [2004] I S.C.R.

A Kubic Darusz v. Union of India and Ors., 1199011 SCC 568 and Smt.
Gracy v. State of Kera/a and Anr., 119911 2 SCC I, relied on.

1.4. This Court in its earlier decisions nowhere stated that copy of
the representation made by. the detenu to one authority must be placed
before all the authorities and all such authorities also should consider and
B pass orders on those representations, though really not made to any one
of them. In such circumstances, ordinarily this Court would have remitted
the matter back to the High Court for consideration on other questions
raised in the writ petition by the respondent. However, since the period
of detention has expired long back, it would not be appropriate to remit
C the matter to the High Court for consideration. On other questions raised,
it is clarified that no opinion on the validity or otherwise of the order of
detention is expressed. ( I084-C, EI

Kamlesh Kumar lshwardas Patel etc. v. Union of India and Ors. etc.,
1199514 SCC 51; Sat Pal v. State of Punjab and Ors., I 198211SCC12; Rai
D Kishore Prasad v. State of Bihar, 119821 3 SCC 10 and Santosh Anand v.
Union of India, I19811 2 SCC 420, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
954 of 1997.

E From the Judgment and Order dated 19.12.95 of the Calcutta High
Court in Crl.M.C.No. 5039 of 1995.

P.P. Malhotra, Ashok Bhan, Satbir Pillania, B.K. Prasad and Y.K. Yenna
for the Appellants.

F A.K. Ganguli, S.C. Ghosh, Satish Vig and Avijit Bhattacharjee for the
Respondents. _...

The Judgment of the Court was delivered by

S.B. SINHA, J. Whether representation made by the detenu or on his
G behalf is required to be considered by all the authorities is the sole question
involved in this appeal which arises out of a judgment and order dated
19.12.1995 passed by a Division Bench of the Calcutta High Court in Criminal
Miscellaneous Case No.5039 of 1995.

The husband of the first respondent herein was arrested on 17.6.1995
H on the charge of having grossly undervalued imported Floppy Disk Drives
U.0.1. v. SNEHA KHEMKA [SINHA, J.] 1077
whereby customs duty to the extent of Rs.21.53 lakhs was evaded. During A
investigation of the said case, the detenu made a confessional statement before
the Customs Officer but on being produced before the Chief Metropolitan
Magistrate, Calcutta, he retracted therefrom. He was granted bail in the
aforementioned case. The first respondent herein thereafter filed a writ
application before the Calcutta High Court for quashing the statement allegedly B
obtained from her husband by the Customs Officer.

He was thereafter detained under Section 3( I) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, (hereinafter
referred to as 'the CO FE POSA', for the sake of brevity). The said order of
detention was served on him on 28.8.1995.
c
The detenu, made three re-presentations firstly, on 4.9.1995 before the
Joint Secretary, COFEPOSA which was rejected on 21.9.1995; the second on
11 /12.9 .1995 addressed to Shri K.L. Venna, Joint Secretary to the Government
of India which upon obtaining the comments of the Sponsoring Authority
was rejected on 9.10.1995; and ttie third on 14.9.1995, addressed to the D
Secretary to the Government of India which was rejected by the Finance
Minister on 16.10.1995.

Questioning the validity or otherwise of the said order of detention, the
wife of the detenu, the first respondent herein, filed a Criminal Miscellaneous
Case before the Calcutta High Court which was marked as Criminal E
Miscellaneous Case No. 5039 of 1995, inter a/ia, praying for :

"(a) a writ of and/or order and/or direction in the nature of Habeas
Corpus calling upon the petitioners and each one of them to fm1hwith
set the detenu at libe11y;
F
· (b) a writ of and/or order and/or direction in the nature of Mandamus
commanding the petitioners and each one of them to show cause as
to why the order of detention being No. F. No.673/89/95-CUS. VIII
dated 22.8.95 passed by the petitioner No.2 be not quashed and/or set
aside.
G
(c) a writ or and/or order and/or direction in the nature of certiorari
commanding the petitioners, their servants, agents and associates and
each one of them to transmit the records relating to the issuance of
the order of detention being No.F. No.673/89/95/Cus.Vlll dated
22.8.1995 to the Hon'ble High Court so that the same may be quashed H
1078 SUPREME COURT REPORTS 12004] I S.C.R.

A and/or set aside and a conscionable justice done;

(d) a writ of and/or order and/or direction in the nature of prohibition
prohibiting or restraining the petitioners each one of their agents,
servants and associates to forbear from giving any effect of furthe.r
effect to the order of detention being No.F.No.673/89/95-Cus.VIll
B dated 22.8.1995."

A Division Bench of the High Court in the impugned judgment observed
that the first representation made by the Joint Secretary, who is the detaining
authority, was not placed before the Central Government and was not
considered by it at all. As regard, the second representation also, the High
C Court made an observation that the same had not been independently
considered by the Central Government irrespective of the stand taken by the
Joint Secretary to the Government of India. So far as the third representation
is concerned, it was observed that there was no clear indication in the relevant
file that the said representation was considered by the detaining authority
D independently. Relying on or on the basis of three decisions of this Court in
Kamlesh Kumar lshwardas Patel etc. v. Union of India and Ors. etc., (1995]
4 SCC 51, l\.11bic Darusz v. Union of India and Ors., (1990] I ~CC 568 and
Smt. Gracy v. State of Kera/a and Anr., (1991] 2 SCC I, the High Court
allowed the writ petition holding that :

E ''. .. The proposition of law has been well established that all the
representations as made to either of the three Authorities namely, the
Detaining Authority, the Central Government and the Advisory Board
have to be considered by all the three Authorities independently of
each other and unless there be separate consideration of each one,
there will be no sufficient compliance of law in so far as the provision
F under A1ticle 22(5) of the Constitution of India is concerned. In this
view of the matter we are constrained to hold in the facts and
circumstances of the present case that the order of detention has been
rendered otiose in view of the non-consideration of all the
representations by all the three Authorities on account of which the
G detenu is liable to be released from detention ... "

Mr. P.P. Malhotra, learned senior counsel appearing on behalf of the
appellant, would submit that the High Court went wrong in taking the /
aforementioned view inasmuch representations made by or on behalf of the
detenu in terms of the provisions of the COFEPOSA are required to be
H considered by the concerned authorities independently.
U.0.1. v. SNEHA KHEMKA [SINHA . .I.] 1079
#"~
... ~ The learned counsel wou Id urge that the first two representations being A
made to the Joint Secretary who was the detaining authority, the same were
required to be considered by him and not by the Central Government. Similarly,
the third representation having been made to the Central Government, it was
for it to consider the same independent· of the representations made by the
detenu before the detaining authority.
B
Mr. Ganguli, learned senior counsel appearing on behalf of the
respondent, per contra, would submit that different representations may contain
different grounds and in that view of the matter unless the Central Government
or for that matter, the detaining authority is possessed of the representation(s)
made before other authorities, effective disposal thereof would not be possible.
The learned counsel would contend that the High Court having rendered its
c
judgment in terms of the binding precedent of this Court in Kamleshkumar
lshwardas Patel (supra), the same should not be interfered with. In any
event, Mr. Ganguli would submit that as several other contentions were raised
by the respondent before the High Court, having regard to the fact that the
period of detention is long over, this Court may not exercise its jurisdiction D
under Article 136 of the Constitution of India.

An order of detention under the COFEPOSA can be passed: ( 1) by an
authority specially empowered by the Central Government; (2) by the State
Government; (3) by the Central Government.
E
The detenu on being served with the order of detention having regard
to the constitutional protection contained in clause (5) of Article 22 of the
Constitution of India is entitled to be afforded an earliest opportunity of
making a representation there-against. Clause (5) of Article 22 of the
Constitution of India obligates the authority making the order of preventive
F
detention : (I) to communicate to the detenu the grounds on which the order
of detention has been made; (2) to afford the detenu the earliest oppo11unity
of making a representation against the order of detention.

A right to make a representation is, therefore,. a facet of fundamental
right. Article 22(5) of the Constitution does not state as to before whom such G
representation is to be made, and provisions therefor are laid down in the
statute under which the detenu has been detained. It is now well-settled that
>
the object and purpose of the representation is to enable the detenu to obtain
relief at the earliest opportunity where for, he may make representation before
such authority which can revoke the same by setting him at liberty. The
cleavage in opinion of this Court as to whether the detaining authority can H
1080 SUPREME COURT REPORTS (2004] I S.C.R.

A pass an order revoking the order of detention came up for consideration
before a Constitution Bench of this Court in Kamleshkumar /shwardas Patel
(supra) wherein this Court in no uncertain terms held that the revoking
authority has the requisite jurisdiction to revoke an order of detention. Upon
· service of the order of detention on the detenu, the detaining authority or the
B State Government is obligated to forward to the Central Government a report
thereabout; whereafter the latter is entitled to consider at its earliest opportunity,
the validity or otherwise thereof so as to enable it to intervene in appropriate
cases by exercising its power of revocation. Furthermore, the representation
of the detenu, if any, at a later stage is required to be considered by the
Central Government in terms of Section 11 of the Act which read thus :
c "11. Revocation of detention orders.- (I) Without prejudice to the
provisions of section 21 of the General Clauses Act, 1897, a detention
order may, at any time, be revoked or modified

(a) notwithstanding that the order has been made by an officer of a
State Government, by that State Government or by the Central
D
Government;
(b) notwithstanding that the order has been made by an officer of the
Central Government or by a State Govermrn:nt, by the Central
Government.

E (2) The revocation of a detention order shall not bar the making
of another detention order under section 3 against the same person."

A bare perusal of Section 11 of the Act would clearly shows that the
authority vested in the Central Government or the State Government to revoke
an order of detention is without prejudice to the provisions contained in
E Section 21 of the General Clauses Act, 1897. Jn terms of Section 21 of the
General Clauses Act, an authority who passes an order has the jurisdiction
can revoke the same.

The power of the State Government or the Central Government,
therefore, is in addition to the power of the detaining authority to revoke an
F order of detention. A detenu in law, therefore, is entitled to make different
representations before different authorities at different times in terms of
statutory as also constitutional schemes.

Each authority, concededly, is required to apply its mind on the materials
G placed on records and pass an order either rejecting or allowing the said
U.0.1. v. SNEHA KHEMKA [SINHA. J.] 1081
represe1itation. A representation of the detenu having regard to cla1.1~e (5) of A
Article 22 of the Constitution of India must also be dispose\! of within a
reasonable time.

It is equally well-settled that the constitutional right to make a
representation includes the right to obtain proper consideration thereof by the
authority to whom it is made. B
Would that mean, as has been held by the High Court, that a
representation made before one authority must also be considered by other
authorities? The answer to the said question must be .rendered in the negative.
If it is to be assumed that the three different authorities before whom the
representations are made are required to obtain copies of the representations c
made to the others; before a representation is considered, the concerned
authority will have to make an enquiry from the authorities as to whether a
representation had been made to it and if the answer thereof is in the
affirmative, to obtain a copy thereof.
D
Once such a enquiry is made and eventually if in the meanwhile an
order on such representation has been passed by the concerned authority, the
same would also be required to be obtained. Apart from the fact that such
procedure is not contemplated, a great delay would ensue thereby which
would run counter to the constitutional schemes, as the detenu has a
fundamental right to h.ave the same considered and obtain an order on his E
representation by the appropriate authority at the earliest opportunity.

Keeping in view the aforementioned principles, we may examine the
decisions relied upon by the High Court.

In Kubic Darusz (supra), the question which arose was as to whether F
the grounds of detention are required to be supplied to the detenu in the
language understood by him so as to enable him to make an effective
representation and that the representation submitted by him was required to
be considered, acted upon or replied by all the authorities.

This Court observed that indisputably, the representation may be made G
by the detenu to the appropriate Government and it is the appropriate
Government that has to consider the representation within a reasonable time
• holding :

" ... Even if the Advisory Board had made a report upholding the H
1082 SUPREME COURT REPORTS [2004] I S.C.R.

A detention the appropriate Government is not bound by such opinion
and it may still, on considering the representation of the detenu and
keeping in view all the facts and circumstances relating to the case,
come to its own decision whether to confirm the order of detention
or to release the detenu; as in that case there was nothing to show that
the Government considered the representation before making the order
B confirming the detention. The Constitutional obligation under Article
22(5) was not complied with. In the instant case there was no
consideration before and even after the Advisory Board considered
the case of the .detenu. It can not therefore, be said that the
representation was disposed of in accordarice with law."
c In Smt. Gracy (supra), the detenu's case was referred to the Central
Advisory Board by the Central Government and during the pend ency of the
reference before it, a representation was made to the Advisory Board. The
Advisory Board considered the reference relating to the detenu made by the
Central Government and also the detenu's representation submitted to it and
D opined that there was sufficient cause to justify his preventive detention. The
order of Central Government confirming his detention was passed thereafter.
This Court, in the fact situation obtaining therein, held that the detenu has a
dual right to get his representation disposed of by the Advisory Board and the
detaining authority independently stating :

E " ... The contents of Article 22(5) as well as the nature of duty imposed
thereby on the detaining authority support the view that so long as
there is a representation made by the detenu against the order of
detention, the aforesaid dual obligation under Article 22(5) arises
irrespective of the fact whether the representation is addressed to the
F detaining authority or to the Advisory Board or to both. The mode of
address is only a matter of form which cannot whittle down the
requirement of the constitutional mandate in Article 22(5) enacted as
one of the safeguards provided to the detenu in case of preventive
detention."

G The Constitution Bench of this Court in Kamleshkumar lshwardas Patel
(supra) was dealing with a situation where the Joint Secretary to the
Government of India, Ministry of Finance, who was the specially empowered
officer to make an order of detention under Section 3 of the COFEPOSA Act,
forwarded the representation made to him by the Central Government which
was eventually rejected by the latter. Agrawal, J. speaking for the Bench
H noticed the provisions of Sections 3 and 11 of the COFEPOSA Act as also
U.0.1. v. SNEHA KHEMKA [SINHA, .1.) "1083
Section 2 I of the Genera I Clauses Act and upon considering a large number A
of decisions answered the question thus :

"Where the detention order has been made under Section 3 of the
.COFEPOSA Act and the PIT NDPS Act by an officer specially
empowered for that purpose either by the Central Government or the
State Government the person detained has a right to make a B
representation to the said officer and the said officer is obliged to
consider the said representation and the failure on his part to do so
results in denial of the right conferred on the person detained to make
a representation against the order of detention. This right of the detenu
is in addition to his right to make the representation to the State C
Government and the Central Government where the detention order
has been made by an officer specially authorized by a State
Government and to the Central Government where the detention order
has been made by an officer specially empowered by the Central
Government, and to have the same duly considered. This right to
make a representation necessarily implies that the person detained D
must be informed of his right to make a representation to the authority
that has made the order of detention at the time when he is served
with the grounds of detention so as to enable him to make such a
representation and the failure to do so results in denial of the right of
the person detained to make a reprsentation." E
In that case, inter a/ia, the following question had arisen for consideration
before the Full Bench of the High Court

"(3) Does failure to take independent decision on revocation of order
of detention by the specially empowered officer under the F
COFEPOSA Act r.nd merely forwarding the same with
recomrnendation to reject, result in non-compliance with
constitutional safeguard under Article 22(5) of the Constitution ?

Referring to Sat Pal v. State of Punjab and Ors., [1982] I SCC 12, Raj
Kishore Prasad v. State of Bihar., (1982] 3 SCC 10 as also the decision· in G
Santosh Anand v. Union of India, [1981] 2 SCC 420, it was held:

" ... Having found that the representation of the person detained was
not considered by the officer making the order of detention the High
Court was in error in holding that the ·said failure on the part of the
detaining authority to consider and decide the representation is not H
r

1084 SUPREME COURT REPORTS 12004) 1 S.C.R.

A fatal to the order of detention. We are, therefore, unable to uphold the
answer given by the Full Bench to question No.3 and, in our view,
the said question should be answered in the affirmative. On that basis
it has to be held that since there was a denial of the constitutional
safeguard provided to the detenu under Article 22(5) of the
Constitution on account of the failure on the pan of the officer who
B had made the order of detention to independently consider the
representation submitted by the detenu against his detention and to
take a decision on the said representation the further detention of the
detenu lshwardas Bechardas Patel is rendered illegal..."

C The decisions of this Court whereupon reliance has been placed by the
High Court, therefore, nowhere state that copy of the representation made by
the dctenu to one authority must be placed before all the authorities and all
such authorities also should consider and pass orders on those representations,
though really not made to any one of them.

D The impugned judgment and order, therefore, cannot be sustained, which
is set aside accordingly.

However, ordinarily we would have remitted the matter back to the
High Court for consideration on other questions raised in the writ petition by
the respondent herein but as the period of detention has long expired, we do
E not intend to do so. We, therefore, do not wish to express any opinion on the
validity or otherwise of the order of detention.

This appeal is disposed of with the aforementioned observations. No
costs.

S.K.S. Appeal disposed of.

•