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PETITIONER: SHYAM AMBALAL SIROYA

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT20/02/1980

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1980 AIR  789            1980 SCR  (2)1078  1980 SCC  (2) 346  CITATOR INFO :  R          1982 SC   1  (5)  RF         1984 SC1095  (8,9)  E          1990 SC1446  (10)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling   Activities    Act,   1974-Section    11-Detenu’s representation  for   revocation  of   detention  order  not considered by  Government-Non-consideration, if vitiates the order.

HEADNOTE:      The petitioner’s  brother was  detained by  an order of detention dated  31st August,  1979 under  s.  3(1)  of  the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,  1974 and  the  grounds  of  detention  were served on  him on  5th September,  1979. An  application was made on  17th September,  1979 for  supply of  documents and statements  recorded   and  relied  on  in  the  grounds  of detention. On  22nd September,  1979 he  made an  incomplete representation.  The   documents  were   supplied  on   25th September, 27th  September and 3rd October, 1979. The detenu made a second representation on 5th October, 1979 requesting that the  order of  detention  be  revoked  by  the  Central Government but  no action was taken on them till the date of hearing.      In the  writ petition  it was  alleged that  the  first representation  as   well  as   the  second   representation requesting for  the revocation  of the  order under s. 11 of the Act  were not  considered by  the Central Government and that non-consideration  of the  representation vitiated  the detention order.  The detaining  authority on the other hand contended that the mere fact that the representation was not considered by  the Central  Government did  not vitiate  the order of detention.      Allowing the petition, ^      HELD: The  continued detention  of the detenu cannot be held to be according to procedure. [1081F]      If a properly addressed petition is left unattended for a  long  period  of  time  the  detention  order  cannot  be

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justified as being according to procedure. [1081 E]      The  power  conferred  on  the  Central  Government  by section 11  of  the  Act  is  wide  enough  to  enable  that Government to  revoke the  detention order  at any stage for the words  used are  a detention  order may  at any  time be revoked or modified. Any petition for revocation of an order of  detention   should  be   dealt  with   with   reasonable expedition. It may be permissible for the Central Government to take  reasonable time  for disposing  of a  petition  for revocation of  an order  of detention  but it  would not  be justified in ignoring the representation because a statutory duty is  cast upon  the Central  Government. It is necessary that the  Government should apply its mind and either revoke the order of detention or dismiss the petition. [1080G-H]      In  the  instant  case  the  representation  which  was properly addressed  by the  detenu to the Central Government was not forwarded to that Government and 1079 as such  no action  had been taken till the date of hearing. There is  no justification  in sending the representation to the Central Government at this very late stage. [1081C&E]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 1414 of 1979.      Under Article 32 of the Constitution.      Ram Jethamalani and Harjinder Singh for the Petitioner.      U. R.  Lalit, E.  C. Agarwala  and M. N. Shroff for the Respondent.      The Judgment of the Court was delivered by      KAILASAM, J.  The petitioner  is  brother  of  Virendra Ambalal Siroya  who was  detained by  an order  of detention dated  31-8-1979  issued  by  Additional  Secretary  to  the Government of  India under  S. 3(1)  of the  Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu was served with the grounds of detention on 5-9-1979. The  counsel for the detenu made an application on 17-9-1979 for  supply of  documents, and statements recorded and relied  on in  the  grounds  of  detention.  Before  the documents were  supplied, an  incomplete representation  was made by the detenu on 22-9-1979. The documents were supplied on 25-9-1979, 27-9-1979 and 3-10-1979. The detenu again made a second  representation on 5-10-1979 and requested that the order of detention may be revoked by the Central Government.      Mr. A.  K. Sen, the learned counsel for the petitioner, submitted that  the representation  requesting  the  Central Government to  order the  revocation under  S. 11 of the Act was not  forwarded by the detaining authority to the Central Government and  as such  the detention  is illegal.  In  the memorandum of  grounds in his writ petition at paragraph XIV the detenu  submitted that  he made  representation  to  the Central Government  and that  the Central Government had not considered the  representation at  all. In  paragraph XV the detenu contended  that  the  second  representation  was  an application for revocation under S. 11 of the Act wherein he specifically requested  that the  Central Government  should revoke the order. The said representation was not considered by the  Central  Government.  It  was  submitted  that  non- consideration  of   the  representation   by   the   Central Government  vitiated  the  detention  order.  In  reply  the detaining authority stated in paragraph 15 as follows:-           "It  is   submitted  that   the  consideration  of      representation of the detenu by the detaining authority

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    is perfectly valid and legal and in accordance with the      law. It  is, however, denied that merely because it was      not considered by the Central Government, the detention      order is vitiated in any way." 1080      It is  clear from the statement that the representation was not  forwarded to  the Central  Government. The  plea on behalf of the detaining authority is that merely because the representation was not considered by the Central Government, the detention order would not be vitiated.      The representation  of the  detenu dated  5-10-1979  is marked as  Annexure ’E’.  It states  that it  is  a  further representation in the matter of his detention. After setting out the various grounds, the relief asked for in paragraph 5 runs as follows:-      "The petitioner prays that:           (a)  That the order of detention be revoked by the                Central Government.           (b)   This further representation be placed before                COFEPOSA Advisory Board alongwith the earlier                representation.           (c)   That the Advisory Board be pleased to report                to  the  Central  Government  to  revoke  the                impugned order of detention."      The request  of the  detenu is clear: He prayed for the revocation  of   the  order  of  detention  by  the  Central Government. It  is not  the case  of the detaining authority that he  did not  understand  the  representation  as  being intended for  the Central Government. On the other hand, his plea is  that the  mere fact that the Central Government has not considered  the representation  would  not  vitiate  the order  of   detention.  The   detaining  authority   is  the Additional  Secretary,  Government  of  India,  Ministry  of Finance and  it is not disputed that a communication to that Central Government  can be  properly addressed by sending it to the  Additional Secretary,  Government of India, Ministry of Finance.      It is  admitted that  the representation  was  properly addressed to  the Central Government. The Central Government is empowered  to revoke the order of detention at any stage. It was submitted that the order of revocation by the Central Government can  only be  passed after the order of detention in confirmed  by the  detaining authority  and the  Advisory Board. The  power conferred  on the Central Government by S. 11 is wide enough to enable the Central Government to revoke the detention  order at  any stage  for the words used are a detention order  may at any time be revoked or modified. The power of  the Central  Government to  revoke  the  order  of detention implies  that the detenu can make a representation for exercise  of that  power. Any petition for revocation of an order  of  detention  should  be  dealt  with  reasonable expedition. In this case it is the main ground urged 1081 on behalf  of the  detenu that  the petition  of the  5th of October, 1979  was not  forwarded to  the Central Government and consequently  no order  has been passed on that petition up to  date. In  the course  of arguments,  Mr. A. K. Sen on behalf  of  the  detenu  submitted  that  even  the  earlier representation was addressed to the Central Government which was also  not forwarded.  We do  not think  that  we  should entertain this  plea as it was not pleaded in the memorandum of grounds  that the first representation was to the Central Government but  made for  the first time in the Court before us. In any event, it is clear that a representation properly addressed by  the detenu  to the  Central Government was not

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forwarded to  the Central  Government and  as such no action had been  taken up  to date.  It may  be permissible for the Central Government to take reasonable time for disposing any revocation petition.  But  it  would  not  be  justified  in ignoring the  representation for revocation of the detention as a  statutory duty is cast upon the Central Government. It is necessary  that the  Government should apply its mind and either  revoke   the  order  of  detention  or  dismiss  the petition, declining to order for revocation.      The question  that arises  for consideration  is, as to what  will  be  the  consequence  if  a  properly  addressed petition is  not forwarded  to the Central Government and as such left  unattended for a period of nearly four months. We feel that  in such  circumstances the  detention  cannot  be justified as  being  according  to  the  procedure.  In  the circumstances we  do not  feel that  we will be justified in sending the  representation to  the Central  Government  for disposal at this stage.      Taking all  the facts and circumstances of the case, we feel that  the continued  detention of  the detenu cannot be held to  be according  to procedure. His release has already been ordered. P.B.R.                                     Petition allowed. 1082