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PETITIONER: RATTAN SINGH ETC. ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS. ETC. ETC.

DATE OF JUDGMENT22/10/1981

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) VARADARAJAN, A. (J) SEN, AMARENDRA NATH (J)

CITATION:  1982 AIR    1            1982 SCR  (1)1010  1981 SCC  (4) 481        1981 SCALE  (3)1625  CITATOR INFO :  RF         1984 SC1095  (10)  RF         1990 SC 231  (17)  C          1991 SC1983  (6)

ACT:      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 under section 11(1).

HEADNOTE:      The petitioner,  who was detained under section 3(1) of the Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling Activities  Act,  1974  made  (on  April  19,1981) through    the     Jail    Superintendent     representation 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 forwarded  to the  State Government. The State  Government after  considering his  representation rejected it.      Allowing the petitions ^      HELD: The detention is illegal. [1012 F]      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  order of detention even if it was made by the State  Government or  its officers  is to  be  rial  and effective, it  must imply  the right  in a  detenu to make a representation to  the Central  Government against the order

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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]      Tara Chand  v. State  of Rajasthan, [1980] 2 S.C.C. 321 and Shyam  Ambalal Siroya  v. Union of India, [1980 2 S.C.C. 346, referred to. 1011

JUDGMENT:      ORlGlNAL JURlSDlCTlON:  Writ Petition  Nos. 3614 & 3647 of 1981.      Harjinder Singh for the Petitioner.      N. S. Das Bahl and M. S. Dhillon for Respondent No. 1.      The Judgment of the Court was delivered by      CHANDRACHUD, C.J.: By this petition under Article 32 of the Constitution  the petitioner  challenges the validity of an order  dated March  27, 1981  passed by respondent 1, the State of  Punjab, under  section 3(1) of the Conservation of Foreign enchange and Prevention of Smuggling Activities Act, 1974.      On  April   19,  1981,  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, Chandigarh, and  the other  to the Secretary, Union Ministry of Finance,  Department of  Revenue, New  ’Delhi.  The  Jail Superintendent 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 contention of the petitioner is that in spite of the long passage of time, the representation to the Central Government  has not  so far  been considered  by it, rendering his detention illegal.      In his counter-affidavit dated July 29, 1981, the Under Secretary to  the Government  of India,  Ministry of Finance (Department of  Revenue), COFEPOSA Unit, New Delhi says that "no representation 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.  (1),  Superintendent,  Central  Jail, Amritsar says  that the  representation of the detenu Rattan Singh was  forwarded to the Punjab Government. The affidavit of Smt.  Shyama Mann, Joint Secretary to Government, Punjab, Home Department, Chandigarh shows that the representation of the detenu  was considered  by the  Government of Punjab and was rejected on April 28, 1981. 1012      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  representation  made  by  the detenu to the Central Government. The representations to the State Govermnent and the Central Government were made by the detenu simultaneously  through the  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

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representation to  the Central  Government. Some one tripped somewhere and  the representation  addressed to  the Central Government was  apparently never  forwarded to  it, with the inevitable result  that the  detenu has  been  unaccountably deprived of  a  valuable  right  o  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  modicum 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 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  coutinued  detention  of  the  detenu  must therefore be held illegal and the detenu set free.      In Tata  Chand v. State of Rajasthan(1), 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  would be  in violation  of Article  22(5)  of  the Constitution,    thereby     rendering     the     detention unconstitutional  In   Shyam  Anbalal  Siroya  v.  Union  of India(2) this  Court held  that when  a  properly  addressed representation  is   made  by  the  detenu  to  the  Central Government for 1013 revocation of  the order  of detention,  a statutory duty is cast upon  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 Central Government was not forwarded to it at all.      These then  are our reasons for the order dated October 1, 198 1 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 1. It was on July 2, 1981 that the detenu made a representation to the Central  Government  through  the  Superintendent  of  Jail, Amritsar, and  it is  not denied that the 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 consideration of the representation did not arise. P.B.R.                             Petitions allowed. 1014

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