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CASE NO.: Appeal (crl.)  954 of 1997

PETITIONER: Union of India & Anr.                                    

RESPONDENT: Sneha Khemka & Anr.                                      

DATE OF JUDGMENT: 23/01/2004

BENCH: Doraiswamy Raju & S.B. Sinha.

JUDGMENT: J U D G M E N T  

S.B. SINHA, J :

       Whether representation made by the detenu or on his  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 on the charge of having grossly undervalued  imported Floppy Disk Drives whereby customs duty to the  extent of Rs.21.53 lakhs was evaded.  During 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 obtained from her husband by the Customs  Officer.  

He was thereafter detained under Section 3(1) of the  Conservation of Foreign Exchange and Prevention of Smuggling  Activities Act, (hereinafter referred to as ’the COFEPOSA’,  for the sake of brevity).  The said order of detention was  served on him on 28.8.1995.   

The detenu, made three representations \026 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. Verma, Joint Secretary to the Government of  India which upon obtaining the comments of the Sponsoring  Authority was rejected on 9.10.1995; and the third on  14.9.1995, addressed to the 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  Miscellaneous  Case  No. 5039  of  1995, inter alia, praying  for :

"(a) a writ of and/or order and/or

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direction in the nature of Habeas Corpus  calling upon the petitioners and each  one of them to forthwith set the detenu  at liberty;

(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.

(c) a writ or and/or order and/or  direction in the nature of certiorary  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.VIII dated 22.8.1995 to  the Hon’ble High Court so that the same  may be quashed 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 further effect to  the order of detention being  No.F.No.673/89/95-Cus.VIII 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 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 independently.   Relying on or on the basis of three decisions of this Court  in KamleshKumar Ishwardas Patel etc. vs. Union of India and  Others etc. [(1995) 4 SCC 51], Kubic Darusz vs. Union of  India and Others [(1990) 1 SCC 568] and Smt. Gracy vs. State  of Kerala and Another [(1991) 2 SCC 1], the High Court  allowed the writ petition holding that :

"...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

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there be separate consideration of each  one, there will be no sufficient  compliance of law in so far as the  provision under Article 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 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  considered by the concerned authorities independently.

       The learned counsel would urge that the first two  representations being 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.

       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  judgment in terms of the binding precedent of this Court in  Kamleshkumar Ishwardas 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 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.

       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 detention : (1) to communicate to the  detenu the grounds on which the order of detention has been  made; (2) to afford the detenu the earliest opportunity of  making a representation against the order of detention.

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       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 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 wherefor, 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 pass an  order revoking the order of detention came up for  consideration before a Constitution Bench of this Court in  Kamleshkumar Ishwardas 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 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 :

"11. Revocation of detention orders.-  (1) 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 \026

(a)     notwithstanding that the order has  been made by an officer of a State  Government, by that State  Government or by the Central  Government;

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

(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 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 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 order of detention.  A  detenu in law, therefore, is entitled to make different  representations before different authorities at different

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times in terms of statutory as also constitutional schemes.

       Each authority, concededly, is required to apply its  mind on the materials placed on records and pass an order  either rejecting or allowing the said representation.  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.

       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 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.

       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 have the same considered and obtain  an order on his 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 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 by the detenu to the appropriate Government and  it is the appropriate Governent that has to consider the  representation within a reasonable time holding :

"...Even if the Advisory Board had made  a report upholding the 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 confirming the  detention. The Constitutional obligation  under Article 22(5) was not complied

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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 accordance with law."

       In Smt. Gracy (supra), the detenu’s case was referred  to the Central Advisory Board by the Central Government and  during the pendency 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 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 :

"...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."

       The Constitution Bench of this Court in Kamleshkumar  Ishwardas 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 noticed the provisions of  Sections 3 and 11 of the COFEPOSA Act as also Section 21 of  the General Clauses Act and upon considering a large number  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 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

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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  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 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."   

                                        In that case, inter alia, 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  COFEPOSA Act and merely  forwarding the same with  recommendation to reject, result  in non-compliance with  constitutional safeguard under  Article  22(5) of the  Constitution ?

       Referring to Sat Pal vs. State of Punjab and Others  [(1982) 1 SCC 12], Raj Kishore Prasad vs. State of Bihar  [(1982) 3 SCC 10] as also the decision in Santosh Anand vs.  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 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

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on the part of the officer who 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 Ishwardas Bechardas Patel is  rendered illegal..."                     

       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 detenu 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.

       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 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.