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CASE NO.: Appeal (crl.) 1103 2000

PETITIONER: R.  KESHAVA

       Vs.

RESPONDENT: M.B.  PRAKASH & ORS.

DATE OF JUDGMENT:       12/12/2000

BENCH: U C Banerjee, R P Sethi, K.T.Thomas

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     SETHI, J.

     Leave granted.  Alleging violation of Article 22(5) of the  Constitution  of India and relying upon a  Judgment  of this  Court  in Smt.Gracy v.  State of Kerala & Anr.   [1991 (2)  SCC  1],  the appellant has challenged  the  preventive detention of A.  Maheshraj, a resident of Bangalore detained under  Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Act (hereinafter referred to as "the Act").   It  is submitted that as the representation of  the detenue to the Advisory Board has not been considered by the appropriate   government,  his   continuous  detention   was unconstitutional  and liable to be quashed.  It is contended that notwithstanding the non filing of the representation to the  appropriate  government,  a  duty  was  cast  upon  the Advisory  Board to transmit the representation, received  by it,  to the government who had a corresponding obligation to consider  it  before  confirming  the  order  of  detention. Placing  its  reliance upon a subsequent judgement  of  this Court in Jasbir Singh v.  Lt.Governor, Delhi & Anr.[1999 (4) SCC  228] and distinguishing the facts of the present  case, the  High  Court dismissed the habeas corpus petition  filed before  it  vide the judgment impugned in this  appeal.   To appreciate  the  rival  contentions of the  learned  counsel appearing  for the parties, it is necessary to refer to some of  the admitted facts in this case, which are:  On  receipt of an intelligence report that a passenger wearing dark grey coloured  suit  travelling from Singapore was carrying  with him  electronic goods which he shall attempt to get  cleared without  payment  of  duty,  the   officer  of  the  Customs Headquarters,  Preventive,  Bangalore  kept a watch  on  the passengers of Flight No.IC 958 which landed at 0930 hrs.  on 3.12.1999,   and   noticed  the    detenu   resembling   the descriptions  already received.  He checked his baggages and completed formalities with Customs authorities.  His luggage comprised  of two suit-cases, one small hand suit-case,  one green  coloured  zipper handbag and one plastic  cover.   He had, in his disembarkation Card, declared the goods with him

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worth  Rs.35,000/-.   Having  a reasonable belief  that  the detenue  had not made the correct declaration, the  officers of  the Customs made inquiries from him.  Being  suspicious, the  officers  opened the four baggages and checked  baggage under  Baggage  Tag  Nos.SQ 144161, SQ144162,  SQ144141  and SQ144164  and  on  examination found to  contain  electronic goods,   namely,  Mobile  Phones,   Mobile  Phones  in   CRD condition,  computer parts in commercial quantity, having  a total value of Rs.18,38,300/-.  The detenu was informed that as  he  has  attempted to smuggle goods and tried  to  evade custom  duty, the baggage was liable to be confiscated under the provisions of Customs Act, 1962.  All the goods found in the  baggage of the detenu, as detailed in the Annexures  to Mahzar  dated 3.12.1999 were seized, packed into suit  case, cartons and sealed with seal and signature of the detenue as well  as  of the Mahzar witnesses.  After investigation  the detaining  authority,  in exercise of the  powers  conferred under Sections 3(1)(i) and 3(1)(iii) of the Act directed the said  A.Maheshraj  to  be detained and kept  in  custody  in Central  Prison,  Bangalore vide order dated 9.3.2000.   The grounds  of  detention  were served upon the detenu  in  the jail.   The  detenu  was also informed that he  can  file  a representation against the detention order to the Government of  Karnataka or the Government of India.  The detenu made a representation  to the Advisory Board and admittedly did not make any representation either to the Government of India or the  State  Government or any other authority.  He  did  not even  request to the Advisory Board or the jail  authorities to  forward his representation to any of the governments  or authority.   In  the writ petition filed on his behalf,  the appellant  submitted:   "The  petitioner  submits  that  the detenue  has  made  a representation to the  Advisory  Board and/or  any authority required to consider the same for  his release from detention at the earliest.  The respondent No.1 be called upon to explain how the same has been considered."

     The High Court found that the petition filed before it was  lacking  in particulars and directed the  appellant  to give   full   details   of   the  representation   and   its consideration  by  the  Board or by the Government  and,  if possible  to place on record the copy of the  representation submitted   by   the  detenue.    The  appellant  filed   an application  seeking  permission  to  place  on  record  the additional  facts.   The prayer was allowed.  The  appellant stated  that  the  detenue  had   submitted  to  the  Senior Superintendent  of Central Prison, Bangalore on 22nd  March, 2000  six copies of representation addressed to the Advisory Board.  Upon inquiry he was informed that the representation addressed to the Advisory Board was forwarded on 24th March, 2000.   The detenue also appeared before the Advisory  Board on  10.4.2000.  After receipt of the report of the  Advisory Board the Government of Karnataka vide order dated 18.4.2000 confirmed   the  order  of  detention.    As  the  fact   of representation  filed  by the detenu to the Chairman of  the Advisory  Board  was  not  within   the  knowledge  of   the respondents  1  and 2, they did not consider  the  aforesaid representation before confirming the order of detention.  It is true that the courts of law do not see the detention of a person without trial with favour but it is equally true that our constitutional scheme itself contemplates the preventive detention,  however,  subject to rigours of law relating  to such  detention and the guarantees enshrined in part III  of the  Constitution.   One  of the rights conferred  upon  the detenu,   as   incorporated   in   Article  22(5)   of   the

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Constitution,  is to make representation and obligation upon the  appropriate government to consider such  representation before  confirming the detention.  It is further  obligation of the detaining authority to communicate to the detenue the grounds  of  detention on which the order has been made  and apprise  him  of his right to make a representation  against the  order.   Order of preventive detention is liable to  be quahsed if the constitutional obligations in terms of clause (5) of Article 22 of the Constitution are not complied with. There  is  no  gainsaying  that preventive  detention  is  a serious  invasion  of  personal   liberty  and  such  meagre safeguards,  as  the Constitution has provided  against  the improper  exercise  of the power, must be zealously  watched and   enforced  by  the   courts.   However,  where  despite intimation,  the detenu omits to exercise his constitutional right,  he  cannot, thereafer, allege its violation  on  the ground  that the authorities should have made an inquiry  to ascertain  as  to whether he had made any representation  to any  person,  authority  or the Board.  The  thrust  of  the argument  of the appellant revolves around the  observations made  by  this  Court  in Smt.Gracy’s case  (supra)  to  the effect:   "It  is  undisputed  that if  there  be  only  one representation  by  the  detenu addressed to  the  detaining authority,  the obligation arises under Article 22(5) of its consideration  by the detaining authority independent of the opinion   of  the  Advisory  Board   in  addition   to   its consideration  by  the  Advisory   Board  while  giving  its opinion.   In other words, one representation of the  detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its consideration  also  by the Advisory Board.   The  question, therefore,   is:   whether  one  of  the   requirements   of consideration  by  government  is dispensed  with  when  the detenu’s  representation  instead of being addressed to  the government  or  also to the government is addressed only  to the  Advisory  Board  and submitted to  the  Advisory  Board instead  of  the  government?   On  principle,  we  find  it difficult   to  uphold  the   learned  Solicitor   General’s contention  which  would  reduce the duty of  the  detaining authority  frome one of substance to mere form.  The  nature of  duty  imposed on the detaining authority  under  Article 22(5)  in  the  context  of   the  extraordinary  power   of preventive  detention is sufficient to indicate that  strict compliance  is  necessary  to   justify  interference   with personal  liberty.  It is more so since the liberty involved is  of a person in detention and not of free agent.  Article 22(5)  casts an important duty on the detaining authority to communicate  the  grounds of detention to the detenu at  the earliest  to afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon  as  possible.   Article 22(5) speaks of  the  detenu’s ’representation   against  the  order’,   and  imposes   the obligation   on   the  detaining   authority.    Thus,   any representation  of  the  detenu  against the  order  of  the detention  has to be considered and decided by the detaining authority,  the requirement of its separate consideration by the  Advisory Board being an additional requirement  implied by  reading together clauses (4) and (5) of Article 22  even though  express  mention  in Article 22(5) is  only  of  the detaining authority.  Moreover, the order of detention is by the  detaining  authority  and  so also  the  order  of  its revocation  if the representation is accepted, the  Advisory Board’s  role  being merely advisory in nature  without  the power  to make any order itself.  It is not as if there  are

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two  separate and distinct provisions for representation  to two  different authorities viz.  the detaining authority and the  Advisory Board, both having independent power to act on its own.

     It being settled that the aforesaid dual obligation of consideration of the detenu’s representation by the Advisory Board  and  independently by the detaining  authority  flows from  Article  22(5)  when only one representation  is  made addressed  to the detaining authority, there is no reason to hold  that  the  detaining  authority is  relieved  of  this obligation merely because the representation is addressed to the  Advisory  Board instead of the detaining authority  and submitted  to  the  Advisory Board during  pendency  of  the refernece  before it.  It is difficult to spell out such  an inference  from the contents of Article 22(5) in support  of the  contention  of  the  learned  Solicitor  General.   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 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."

     On facts we find that in that case the detenu had made a  representation  to the Advisory Board who  considered  it before  sending its opinion to the Central Government  along with   the  entire  record   including  the   representation submitted  by the detenu.  The Central Government  confirmed the  order of detention without independent consideration of the  detenu’s  representation  sent to it  by  the  Advisory Board.  On the above facts the court formulated the point of law for its consideration as under:  "Whether there has been any  infraction of the guarantee under Article 22(5) of  the Constitution as a result of Central Government’s omission to consider  the  detenu’s  representation independent  of  its consideration   by   the  Advisory   Board.    The   Central Government’s stand is that the detenu’s representation being addressed  to  the Advisory Board to which it was  submitted during  pendency of the reference before the Advisory Board, there  was  no obligation on the Central Government also  to consider the same independently since the representation was not addressed to the Central Government."

     and  made  observations as noted hereinabove.  In  the instant  case  the  respondent  No.1 in  his  affidavit  has categorically  stated:   "I  respectfully  submit  that  the Advisory Board has not forwarded the representation filed by the  detenu  to the State Government and consequently I  did not  consider  the said representation filed by  the  detenu before the Advisory Board.

     I  respectfully  submit  that the Advisory  Board  has forwarded   its  report  along   with  the  covering  letter dt.12.4.2000,  to  the  State   Government.   However,   the respondents 1 and 2 did not receive any representation given to  the Advisory Board in as much as the Advisory Board  has not  sent the copy of the representation of the detenue,  to

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the State Government.  Therefore, the State Government could not    consider   the    said    representation.    As   the representations  were addressed to the Advisory Board alone, there  is no obligation on the part of the Superintendent of Central  Prison to forward the copy of the representation to the   State   Government   or    the   Central   Government. Consequently,  the  third respondent has not  forwarded  the representation  to  the respondents 1 and 2.  I submit  that the Advisory Board will be having the records which are sent by  the  State  Government such as the order  of  detention, grounds  of detention and the documents relied upon.  Except these  documents, the State Government will not furnish  any other   document  to  the   Advisory  Board.   However,  the documents which were produced by the detene in the course of hearing  before the Advisory Board, do not form part of  the records  sent  by the State Government.  In this  case,  the only  extra  document which was produced by the detenue  was the  representation.  The copy of the representation was not sent  by  the Advisory Board to the State  Government  while sending its report to the State Government.

     In  the  absence of the representation of the  detenu, the  order of detention is stated to have been confirmed  on the  basis of other material available with the  Government. Mr.B.  Kumar, Senior Advocate who appeared for the appellant submitted  that  a duty was cast upon the Advisory Board  to submit  all  records  including the  representation  of  the Advisory  Board  to the appropriate government.  We are  not impressed with such a general submission and the proposition of law.  Section 8 of the Act provides that for the purposes of  sub-clause  (a)  of clause (4), and  sub-clause  (c)  of clause  (7)  of Article 22 of the Constitution, the  Central Government  and  each  State   Government  shall,   whenever necessary,  constitute one or more Advisory Boards and shall within  five  weeks  of  the detention of a  person  make  a reference   in  respect  thereof  to  the   Advisory   Board constituted  to  enable such Board to make a report  to  the effect.   Clause (c) of Section 8 of the Act provides:  "The Advisory Board to which a reference is made under clause (b) shall  after  considering  the reference and  the  materials placed  before  it  and  after   calling  for  such  further information  as  it may deem necessary from the  appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if  in any particular case, it considers it essential so  to do or if the person concerned desires to be heard in person, after  hearing him in person, prepare its report  specifying in a separate paragraph thereof its opinion as to whether or not  there  is  sufficient cause for the  detention  of  the person  concerned  and submit the same within  eleven  weeks from  the date of detention of the person concerned." Clause (f) of the said Section reads:

     "In  every case where the Advisory Board has  reported that  there  is  in  its opinion sufficient  cause  for  the detention  of  a  person,  the  appropriate  Government  may confirm  the  detention order and continue the detention  of the person concerned for such period as it thinks fit and in every  case where the Advisory Board has reported that there is  in its opinion no sufficient cause for the detention  of the  person  concerned,  the  appropriate  Government  shall revoke  the  detention  order  and cause the  person  to  be released forthwith."

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     A  perusal of the aforesaid Section and other relevant provisions of the Act makes it abundantly clear that no duty is  cast upon the Advisory Board to furnish the whole of the record  and  the representation addressed to it only to  the Government along with its report prepared under Section 8(c) of the Act.  It may be appropriate for the Board to transmit the  whole record along with the report, if deemed expedient but  omission to send such record or report would not render the  detention  illegal  or  cast  an  obligation  upon  the appropriate  government to make inquiries for finding out as to  whether  the detenu has made any representation, to  any person  or authority, against his detention or not.  We  are of  the opinion that in Gracy’s case (supra) it was not held that  any such duty was cast upon the Board but even if  the observations  are  stretched  to that extent, we  feel  that those  observations were uncalled for in view of the  scheme of the Act and the mandate of the Constitution.  In Nand lal Bajaj  v.   State of Punjab & Anr.  [1981 (4) SCC 327]  this Court  made the following observations:  "The matter can  be viewed  from  another  angle.   We were  informed  that  the Advisory Board did not forward the record of its proceedings to  the State Government.  If that be so, then the procedure adopted was not in consonance with the procedure established by law.  The State Government while confirming the detention order under Section 12 of the Act has not only to peruse the report  of the Advisory Board, but also to apply its mind to the material on record.  If the record itself was not before the  State  Government, it follows that the order passed  by the State Government under Section 12 of the Act was without due application of mind.  This is a serious infirmity in the case  which  makes  the continued detention  of  the  detenu illegal."

     In  view of the constitutional and legal position,  as noted  by  us,  we  find  it difficult  to  agree  with  the reasoning  in the aforesaid observations.  In the absence of constitutional  or  statutory provisions, we are  unable  to observe  that the Advisory Board was under an obligation  to forward  the  whole of the record of its proceedings to  the State Government.  The State Government while confirming the order  of detention has to peruse the report of the Advisory Board  along with other records, if any, in its  possession, and  cannot determine the legality of the procedure  adopted by the Advisory Board.  Under Clause (f) of Section 8 of the Act,  the  Government  is  not bound by the  report  of  the Advisory  Board  and in every case where the Advisory  Board reports  that there is, in its opinion, sufficient cause for the  detention of a person, may confirm the detention order. The  word "may" used in this clause does not cast duty  upon the appropriate government to necessarily accept the opinion for  further  detention.  However, where the  Board  reports that  there is, in its opinion, no sufficient cause for  the detention   of  the  person   concerned,   the   appropriate government  has no option but to revoke the detention  order and  cause  the person to be released forthwith.   When  the report  of  the  Advisory Board opining  that  there  exists sufficient  cause  for detention of a person is not  binding upon  the  appropriate government, there is no infirmity  in its order passed without consideration of the proceedings of the  Advisory  Board.   The obligation  of  the  appropriate government  is  restricted  to the extent of  examining  the report  conveying the opinion of the Board regarding further

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detention of the detenu.  Similarly the observations made by this  Court in Harbans Lal v.  M.L.  Wadhawan & Ors.   [1987 (1)  SCC  151 to the effect that the non submission  of  the entire  record being the requirement of law, cannot be  held to be good law on the point.  In Jasbir Singh’s case (supra) similar  argument based upon Gracy’s case was considered and disposed   of   by  observing:    "But  the   question   for consideration  is  when  the  representation  has  not  been addressed  to the Central Government but is addressed to the Advisory  Board  can it be said that the Central  Government also  owes an obligation to consider the same and decide one way  or  the  other.   The   detaining  authority  was   the Lt.Governor  of Delhi.  In such a case if the representation had not been addressed to the Central Government even though indicated in the grounds of detention then it cannot be said that  any representation made by the detenu to the  Advisory Board  ought  to  have  been   considered  by  the   Central Government."

     The  reliance of the learned counsel of the  appellant on  the judgment of this Court in Dr.Rahamatullah v.   State of Bihar & Anr.  [1981 (4) SCC 559] is misplaced inasmuch as in  that  case the point of law as canvassed before us,  was not in issue.  The detention in that case was quashed on the ground of non consideration of the report by the appropriate government  and delay in the compliance of the provisions of the  Act.  We are satisfied that the detenu in this case was apprised  of  his  right  to   make  representation  to  the appropriate  government/authorities  against  his  order  of detention  as mandated in Article 22(5) of the Constitution. Despite  knowledge,  the  detenu  did   not  avail  of   the opportunity.   Instead  of  making a representation  to  the appropriate  government  or  the confirming  authority,  the detenu  chose  to address a representation to  the  Advisory Board  alone even without a request to send its copy to  the concerned  authorities  under  the Act.  In the  absence  of representation or the knowledge of the representation having been  made  by  the detenu, the appropriate  government  was justified in confirming the order of detention on perusal of record  and  documents excluding the representation made  by the  detenu to the Advisory Board.  For this alleged failure of the appropriate government, the order of detention of the appropriate  government is neither rendered unconstitutional nor  illegal.   Taking  a cue from the objections  filed  by Sh.M.B.   Prakash,  Principal Secretary to Government,  Home and  Transport Department of the State of Karnataka, it  was argued  on  behalf of the detenu that as the Government  had allegedly  not considered the whole of the record pertaining to the detention, the order of confirmation of detention was illegal  and unconstitutional.  The submission is based upon wrong  assumption both on facts as well as on law.  Reliance was  placed  on the words "since the Advisory Board has  not sent  the records to the State Government" appearing in  the affidavit,  to contend that the State Government had  passed the  order  of  confirmation without  consideration  of  the record.   The  appellant did not notice the earlier part  of that sentence in the context of which those words were used. This  part reads:  "Thus, as the respondents 1 and 2 did not have  knowledge  about  the  representations  filed  by  the detenue, the said representations were not considered by the respondents 1 and 2."

     The  emphasis of submission in the objections was with

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respect  to  the non submission of the record pertaining  to the  representation filed by the detenu only upon which  the appellant had built his case.  The failure of the respondent to  comply  with the court directions dated  15.11.2000  was also  made  the  basis of such a contention.  In  our  order dated  29th  November,  2000,  we felt  that  the  Principal Secretary  to  the Government of Karnataka had not  complied with  our  directions,  directing him to intimate us  as  to "what  all records were with the Government/what all records were  considered by the Government before passing the  order of  confirmation".   Prima facie we felt that our order  had been flouted by said Sh.M.B.  Prakash which necessitated the issuance  of notice to him to show cause why adverse remarks shall  not  be  made  against him  for  flouting  the  court directions.  In response to our notice an affidavit has been filed  in  this  Court on 5th December, 2000 wherein  it  is specifically  stated:  "In response to the notice issued  to me  to  show  cause why adverse remarks shall  not  be  made against  me,  I respectfully submit that while  passing  the order  of  confirmation, the following documents  were  with Government:

     (a)  The entire file concerning the Detention Order in No.HTD  2  SCF  2000 containing the  following  among  other documents:

     i) Detention order dated 9.3.2000.

     ii)  Grounds  of detention dated 9.3.2000, along  with entire documents relied upon in the Grounds of detention.

     iii)Reference dated 3.4.2000 referring the case to the Advisory Board.

     iv) Report and opinion dated 12.4.2000 of the Advisory Board.

     v)  While  confirming  the  order  of  the  detention, Government considered the report and opinion dated 12.4.2000 of the Advisory Board."

     In  the presence of the aforesaid affidavit we  cannot give any credence to the ipse dixit of the appellant and his effort to aim arrows in the darkness to find out some ground even  though he is not sure about any one of such ground  to challenge the order of detention.  We are satisfied that the order   of  confirmation  was   passed  by  the  appropriate government  after perusal of the whole record available with it and such power was not mechanically exercised as alleged. The  order of detention and its confirmation appears to have been  based  upon the subjective satisfaction arrived at  by objective  considerations  with reference to all the  record pertaining  to  the  matters relating to  the  circumstances warranting the detention of the detenu.

     We do not find any error of law or jurisdiction in the order  of  the High Court, the detaining authority  and  the confirming authority.  The present appeal being misconceived is, therefore, dismissed.

     Shri  M.B.   Prakash,  Principal   Secretary  to   the Government  of  Karnataka  has realised his mistake  of  not

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referring  to  the  documents upon the basis  of  which  the confirmation   order   was  passed   and  has  stated:    "I respectfully  submit  that inadvertently I did not refer  to the  file  and documents now mentioned above in  my  earlier affidavit.    This  omission  is   neither  deliberate   nor intentional.   I  deeply regret for the same.   I  sincerely tender my unconditional apology."

     In  view of above, no further action is required to be taken  in  the  matter.   We close the matter,  so  far  as, Sh.M.B.   Prakash is concerned, reminding him to be  careful in compliance of the orders of this Court in future.