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PETITIONER: VIMAL CHAND JAWANTRAJ JAIN

       Vs.

RESPONDENT: SHRI PRADHAN AND ORS.

DATE OF JUDGMENT04/05/1979

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. PATHAK, R.S.

CITATION:  1979 AIR 1501            1979 SCR  (3)1007  1979 SCC  (4) 401  CITATOR INFO :  R          1980 SC1983  (10)  R          1981 SC1077  (1)  D          1988 SC2090  (26)  RF         1990 SC 231  (23)  RF         1990 SC 605  (18)  O          1991 SC 574  (1,19,20)  D          1992 SC2204  (7)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling  Activities   Act   1974   (Act   52   of   1974)- Representation of the petitioner not considered by the State Government-Confirming the  detention order  the basis of the Advisory Boards  report is invalid being in contravention of Article 22(5)  of the  Constitution-Subsequent consideration and rejection  of the  representation  could  not  cure  the invalidity of confirmation of detention.

HEADNOTE:      The detenu  under the  COFEPOSA challenged  the  orders detaining him as violative of Art. 22(5) of the Constitution on the ground that his representation was neither considered nor disposed  of by  the  Secretary  to  the  Government  of Maharashtra, though the latter intimated by his letter dated 22nd December  1978, that  the issue  of copies  of relevant documents and  statement to  him was  under consideration of the  Government   and  after  that  issue  was  decided  the petitioner’s  representation   would  be  considered  and  a suitable reply  would be  given. The  admitted fact was that the State Government confirmed the order of detention solely on the basis of the report of the Advisory Board.      ALLOWING the Writ Petition, the Court, ^      HELD: 1.  The power  to preventively  detain  a  person cannot  be   exercised  except   in  accordance   with   the constitutional safeguards  provided, in  clauses (4) and (5) of Article  22 AND  if an  order of  detention  is  made  in violation of  such safeguards,  it would  be  liable  to  be struck down  as invalid.  It  is  immaterial  whether  these constitutional  safeguards   are  incorporated  in  the  law authorising preventive  detention because  even if  they are not, they  would be  deemed to  be part  of law  as a super-

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imposition of  the Constitution  which is the supreme law of the land  and they must be obeyed on pain of invalidation of the order of detention. [IOlOB-D].      2. The  constitutional imperative enacted in clause (5) of Article  22 requiring  the  earliest  opportunity  to  be afforded to the detenu to make a representation carries with it by  necessary implication  a constitutional obligation on the detaining  authority to  consider the  representation as early as  possible before  making an  order  confirming  the detention.  The   detaining  authority   must  consider  the representation of  the detenu and come to its own conclusion whether it  is necessary  to detain  him. If  the  detaining authority takes  the view, on considering the representation of the  detenu, that  it is  not necessary to detain him, it would be  wholly unnecessary for it to place the case of the detenu  before   the  Advisory  Board.  The  requirement  of obtaining opinion  of the  Advisory Board  is an  additional safeguard over  and above  the  safeguard  afforded  to  the detenu of  making a  representation  against  the  order  of detention. The  opinion of  the Advisory Board even if given after consideration of the representation of the detenu need not necessarily  be  binding  on  the  detaining  authority. [1011C-E] 1008      There are  thus two  distinct safeguards  provided to a detenu: one is that his case must be referred to an Advisory Board for  its opinion  if it  is sought to detain him for a longer period  than three  months and  the other  is that he should be  afforded the  earliest opportunity  of  making  a representation  against   the  ord  of  detention  and  such representation  should   be  considered   by  the  detaining authority as  early as  possible before  any order  is  made confirming the  detention. Neither safeguard is dependent on the other  and both  have to  be observed  by the  detaining authority. The  detaining authority  is therefore,  bound to consider The  representation of  the detenu  on its  own and keeping in  view all the facts and circumstances relating to the case,  come to  its own  decision whether to confirm the order of  detention or to release the detenu. The subsequent consideration and  rejection of the representation could not cure the  invalidity of the order of confirmation. [1012C-G, 10131E].      Khudiram Das  v. State of West Bengal, AIR 1975 SC 550; Khairul Haque  v. The  Slate of  West  Bengal,  W.P.  246/69 decided on lO-9-69; referred to.

JUDGMENT:      CRIM1NAL ORIGINAL  JURISDICTION: Writ  Petition No. 146 of 1979      (Under Article 32 of the Constitution)      R. Jethmalani and Mrs. K. Hingorani for the Petitioner.      U. R.  Lalit. J.  L. Jain  and M.  N.  Shroff  for  the Respondents.      The Judgment of the Court was delivered by      BHAGWATI, J.,  This petition  is directed  against  the validity of  an order of detention dated 31st November, 1978 made by  the first  respondent who  is the  Secretary to the Government of  Maharashtra, Home  Department in  exercise of the power  conferred under  sub-section (I)  of section 3 of the Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling Activities  Act, 1974  (hereinafter referred to as the Act). The petitioner has urged several grounds before us but it is not necessary to refer to theme since there is one

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ground which  is in our opinion sufficient to dispose of the petition in  favour of  the petitioner.  To appreciate  this ground, it is necessary to state a few facts.      On 13th  November, 1978,  an order  was made by the 1st respondent in  exercise of  the power conferred on him under sub-section (1)  old section  3 of  the  Act  directing  the detention of  the  petitioner.  Pursuant  to  the  order  of detention,  the   petitioner  was   arrested  and   he   was immediately served  with the grounds of detention which were embodied  in  a  communication  dated  13th  November,  1978 addressed by  the 1st  respondent  to  the  petitioner.  The grounds of  detention were  quite elaborate and they alleged various smuggling  activities  against  the  petitioner  and several statements and documents were referred to and relied upon in support of those allegations. The petitioner, by his 1009 advocate’s letter  dated 25th  November, 1978, requested the 1st respondent  to furnish  copies  of  the  statements  and documents referred  to and  relied upon  in the  grounds  of detention and  stated that  he required  the  same  for  the purpose of enabling him to make a representation against the order of  detention. It seems that a copy of this letter was also sent by the petitioner to the Collector of Customs. The Assistant Secretary  to the  Government of Maharashtra, Home Department, informed the petitioner’s advocate by his letter dated 27th  November,  1978  that  copies  of  the  relevant documents and  statements required by the petitioner for the purpose of  making a  representation against  the  order  of detention may be obtained from the Collector of Customs. The petitioner thereupon  addressed his  advocate’s letter dated 2nd December,  1978 to  the Collector  of Customs requesting him  Lo   furnish  copies  of  the  relevant  documents  and statements. The  Assistant Collector  of  Customs,  however, replied by  his letter dated 6th December, 1978 stating that copies of  the relevant  documents and  statements would  be supplied after  a show  cause notice  under the Customs Act, 1926 was  issued to  the petitioner. The petitioner was thus unable  to   get  copies   of  the  relevant  documents  and statements from  the Collector  of Customs.  The  petitioner obviously could  not wait  for making a representation since the period of thirty days within which a representation must be  made   was  expiring   and   he,   therefore,   sent   a representation  dated  4/9th  December,  1978  to  the  Home Secretary and it was received by the Home Department on 12th December 1978. The Asstt. Secretary, Home Department, by his letter dated  22nd December,  1978,  acknowledged  that  the representation  of  the  petitioner  was  received  on  12th December, 1978  and intimated  that the  issue regarding the supply of copies of relevant documents and statements to the petitioner was  under consideration  of the  Government  and after this  issue was  decided, the  representation  of  the petitioner would be considered and a suitable reply would be given. Now  it appears  from the affidavit in reply filed by the 1st  respondent that  the case  of the petitioner was in the meanwhile  referred to  the Advisory Board and since the meeting the Advisory Board was fixed on 20th December, 1978, the representation  of the  petitioner was  forwarded to the Advisory Board  for its  consideration. The  Advisory  Board reported to the 1st respondent that in its opinion there was sufficient cause for the detenion of the petitioner and this report was  received by  the 1st  respondent on 6th January, 1979. The  1st respondent,  after considering  the report of the Advisory  Board made  an order  dated 15th January, 1979 confirming the detention of the petitioner. 1010

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    The petitioner  on these facts contended that the order confirming the detention of the petitioner was passed by the 1st respondent without considering the representation of the petitioner  and   the.  detention  of  the  petitioner  was, therefore, unlawful  as being  in con  travention of Article 22(S) of  the  Constitution.  This  contention  has  in  our opinion great  force and  it must  result in invalidation of the detention  of the petitioner. It is now settled law that the  power   to  preventively  detain  a  person  cannot  be exercised  except  in  accordance  with  the  constitutional safegudards provided  in clauses  (4) and  (S) of Article 22 and if  any order  of detention is made in violation of such safeguards, it would be liable to be struck down as invalid. It is immaterial whether these constitutional safeguards are incorporated  rated   in  the   law  authorising  preventive detention, because  even if  they are  not,  they  would  be deemed to  be part  of the  law as a super imposition of the Constitution which  is the  supreme law of the land and they must be  obeyed on  pain of  invalidation of  the  order  of detention. The  1st  respondent  was,  therefore,  bound  to observe these  constitutional safeguards provided inter alia in clauses  (4) and  (5) of  Article  22  in  detaining  the petitioner. We  are concerned  in  this  case  only  with  a complaint of  violation of  the provisions  of clause (5) of Article 22 and that clause reads as follows:           "When any  person is  detained in  pursuance of an      order made  under  any  law  providing  for  preventive      detention, the  authority making  the order  shall,  as      soon as may be, com municate to such person the grounds      on which  the order  has been made and shall afford him      the earliest  opportunity of  making  a  representation      against the order." This Court  explained the  true meaning  and import  of this clause in Khudiram Das v. The State of West Bengal(l):           "The constitutional  imperatives enacted  in  this      article are  twofold: (1) the detaining authority must,      as soon  as may  be, that  is, as  soon as  practicable      after the  detention, com  municate to  the detenu  the      grounds on  which the order of detention has been made,      and (2)  the detaining authority must afford the detenu      the earliest  opportunity of  making  a  representation      against the  order of  detention. These  are the barest      minimum safeguards  which must  be observed  before  an      executive authority  can be  permitted to  preventively      detain a person and thereby drown his right of personal      liberty in the name of public good and social security.      (1) A. I. R. 1975 S. C. 550 1011 It  will,   therefore,  be   seen  that  one  of  the  basic requirements of  clause  (5)  of  Article  22  is  that  the authority making  the order  of detention  must  afford  the detenu the  earliest opportunity  of making a representation against the  order of  detention. Now this requirement would become illusory  unless there  is a corresponding obligation on the detaining authority to consider the representation of the detenu  as early  as possible.  It could never have been the intention  of the  constitution makers  that the  detenu should  be  given  the  earliest  opportunity  of  making  a representation  against  the  order  of  detention  but  the detaining authority  should be  free  not  to  consider  the representation before  confirming the  order  of  detention. That would  render the safeguard enacted by he constitution- makers meaningless  and futile.  There can, therefore, be no doubt that  the constitutional  imperative enacted in clause (S) of  Art. 22  requiring the  earliest opportunity  to  be

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afforded to the detenu to make a representation carries with it by  necessary implication  a constitutional obligation on the detaining  authority to  consider the  representation as early as  possible before  making an  order  confirming  the detention.  The   detaining  authority   must  consider  the representation of  the detenu and come to its own conclusion whether it  is necessary  to detain  him. If  the  detaining authority takes  the view, on considering the representation of the  detenu, that  it is  not necessary to detain him, it would be  wholly unnecessary for it to place the case of the detenu  before   the  Advisory  Board.  The  requirement  of obtaining opinion  E; of the Advisory Board is an additional safeguard over  and above  the safeguard  afforded  to  the, detenu of  Making a  representation  against  the  order  of detention. The  opinion of  the Advisory Board even if given after consideration  of the  representation is no substitute for the consideration of the representation by the detaining authority. This  Court pointed  out in  Khairul Haque v. The State of West Bengal(1).           "It is implicit in the language of Article 22 that      the appropriate  Government, while discharging its duty      to consider  the representation, cannot depend upon the      views of  the Board  on such  representation. It has to      consider the  representation on  its own  without being      influenced by  any such  view of  the Board. There was,      therefore, no  reason for  the Government  to wait  for      considering the  petitioner’s representation  until  it      had received  the report of the Advisory Board. As laid      down in  Sk. Abdul  Karim v.  State of West Bengal (AIR      1969  SC   lO28)  (supra),   the  obligation   of   the      appropriate Government under Art. 22(5)      (1) W. P. 245 of 1969, dec. On Sept. 10, 1969. 1012      is to consider the representation made by the detenu as      expeditiously as  possible. The  consideration  by  the      Government  of   such  representation  has  to  be,  as      aforesaid, independent  of any  opinion  which  may  be      expressed by the Advisory Board.           The  fact  that  Art.  22  (5)  enjoins  upon  the      detaining  authority   to  afford  to  the  detenu  the      earliest opportunity  to  make  a  representation  must      implicity mean  that such  representation,  must,  when      made, be considered and disposed of as expeditiously as      possible, otherwise,  it is obvious that the obligation      to  furnish   the  earliest   opportunity  to   make  a      representation loses both its purpose and meaning."      There are  thus two  distinct safeguards  provided to a detenu; one is that his case must be referred to an Advisory Board for  its opinion  if it  is sought to detain him for a longer period  than three  months and the other is he should be  afforded   the  earliest   opportunity   of   making   a representation against  the  order  of  detention  and  such representation  should   be  considered   by  the  detaining authority as  early as  possible before  any order  is  made confirming the  detention. Neither safeguard is dependent on the other  and both  have to  be observed  by the  detaining authority. It  is no  answer for  the detaining authority to say that  the representation of the detenu was sent by it to the Advisory Board and the Advisory Board has considered the representation and  then made  a report expressing itself in favour of  detention. Even if the Advisory Board has glade a report stating that in its opinion there is sufficient cause for the detention, the State Government is not bound by such opinion and  it may  still on considering the representation of the  detenu or otherwise, decline to confirm the order of

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detention and  release the  detenu. The  detaining authority is, therefore,  bound to  consider the representation of the detenu on  its own  and keeping  in view  all the  facts and circumstances relating to the case, come to its own decision whether to  confirm the order of detention or to release the detenu.      Here in  the present  case, the  representation of  the petitioner was  received by  the  Home  Department  on  12th December, 1978  and it  was  immediately  forwarded  to  the Advisory Board because the meeting of the Advisory Board was fixed on  20th December,  1978. The  report of  the Advisory Board stating that in its opinion there was sufficient cause for the  detention of the petitioner was received by the 1st respondent on  6th January,  1979 and  on the  basis of this report, 1013 the 1st  respondent confirmed the order of detention on 15th January, 1979.  There is  nothing on the record to show that the 1st  respondent considered  the  representation  of  the petitioner before  making the order confirming the detention of the  petitioner. We do not find anywhere in the affidavit of the 1st respondent in reply to the petition any statement that he  considered the  representation  of  the  petitioner before making  the order of confirmation dated 15th January, 1979. On  the contrary,  there is  a positive  statement  in paragraph 16  of this affidavit that the detention order was confirmed after  consideration of the report of the Advisory Board which  was of the opinion that the detention should be continued. We  called upon the learned advocate appearing on behalf of  the 1st  respondent to  place before  us the file relating to the detention C. Of the petitioner and when this file was  shown, we found that there was an endorsement made on 12th  March, 1979  which showed  that it was only on that date  that   the  representation   of  the   patitioner  was considered by  the 1st respondent and rejected. This is also borne out  by the letter dated 12th March, 1979 addressed by the Deputy  Secretary, Home  Department  to  the  petitioner stating  that  the  representation  was  considered  by  the "Advisory Board/Government" and his request for release from detention could  not be  granted. It  is,  therefore,  amply clear  from  the  record  that  the  representation  of  the petitioner was  not considered  by the 1st respondent before he confirmed the order of detention. The 1st respondent thus failed to  comply with the constitutional obligation imposed upon him  under clause  (5) of  E: Art.  22. The  subsequent consideration and  rejection of the representation could not cure the  invalidity  of  the  order  of  confirmation.  The detention of  the petitioner  must, therefore, be held to be illegal and void      These were  the reasons  for which  we made  our  order dated 11th  April,  1979  quashing  and  setting  aside  the detention  of   the  petitioner   and  directing   that  the petitioner be set at liberty forthwith. S.R.                                   Writ petition allowed 1014