Writ Petition (Criminal) No.362 of 2019 Ankit Ashok Jalan  vs.  Union of India & Ors.  

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.362 OF 2019   

ANKIT ASHOK JALAN …Petitioner

Versus

UNION OF IDNIA AND ORS.           …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

 1. This petition under Article 32 of the Constitution of India prays for

quashing of the Detention Orders1 dated 01.07.2019 and for a direction that

the detenues be set at liberty.

2. The facts leading to the filing of this petition, in brief, are as under:

(a) On  01.07.2019,  Joint  Secretary  to  the  Government  of  India,

specially empowered under Section 3(1) of the COFEPOSA Act2 passed

the Detention Orders after being satisfied that with a view to prevent the

1Nos.PD-12001/34/2019-COFEPOSA  and  PD-12001/35/2019-COFEPOSA,  both  dated 01.07.2019, issued by the Respondent No.2 against Shri Ashok Kumar Jalan and Shri Amit Jalan respectively

2The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

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detenues  from smuggling  goods,  abetting  the  smuggling  of  goods,  and

dealing in smuggled goods otherwise than by engaging in transporting or

concealing or keeping smuggled goods, in future, it was necessary to make

the said Detentions Orders.

b)  The detenues were served with the Detention Orders, the grounds

of detention and the relied upon documents on 02.07.2019.  The grounds of

detention, in para 12, recited as under:-

“You ……….. have the right to represent against your detention

to the Detaining Authority, to the Central Government as well as

to the Advisory Board.  If you wish to avail this right, you should

send your representation through the Jail Authorities where you

are detained, in the manner indicated below:

(a) Representation meant for the Detaining Authority should be

addressed to the Joint Secretary (COFEPOSA), Government

of  India,  Ministry  of  Finance,  Department  of  Revenue,

Central  Economic  Intelligence  Bureau,  6th Floor,  B-Wing,

Janpath Bhawan, New Delhi-110001.

(b) Representation meant for the Central Government should be

addressed  to  the  Director  General,  Central  Economic

Intelligence  Bureau,  Government  of  India,  Ministry  of

Writ Petition (Criminal) No.362 of 2019 Ankit Ashok Jalan  vs.  Union of India & Ors.  

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Finance, Department of Revenue, 6th Floor, B-Wing, Janpath

Bhawan, New Delhi-110001.

(c) Representation  meant  for  the  Advisory  Board  should  be

addressed  to  the  Chairman,  COFEPOSA Advisory  Board,

Delhi High Court, Sher Shah Road, New Delhi-110002.

(c)    On  18.07.2019  the  cases  of  the  detenues  were  referred  to  the

Central Advisory Board3 along with the grounds of detention and relied

upon documents.

(d) On 22.07.2019 representation dated 17.07.2019 made on behalf of

both  the  detenues,  addressed  to  the  Joint  Secretary  (COFEPOSA),

Government of India, Ministry of Finance, Department of Revenue was

received  through  the  Presidency  Correctional  Home,  Alipore,  Kolkata.

The representation stated inter alia:-

“9….(iii) To enable me to make an effective representation at

the earliest opportunity, I may please be forthwith provided with-

a) a copy of the Retraction Petition of Shri Anand stated

to be relied upon in the grounds of detention;

b) a  copy  of  the  pen-drive  or  CD/DVD of  the  CCTV

footage directed by the CMM to be submitted on 18th

3 The Central Advisory Board, Delhi High Court, New Delhi

Writ Petition (Criminal) No.362 of 2019 Ankit Ashok Jalan  vs.  Union of India & Ors.  

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June,  2019 may please  be  provided to  me and may

please be shown to me on a laptop or any other device.

10. Kindly note that unless the aforesaid prayers are considered

expeditiously, I am unable to make my final representation to the

Central Government and the Advisory Board, etc.   Therefore,

the  instant  representation  may  please  be  considered  as

expeditiously as possible in true spirit of Article 22(5) read with

Articles 14 & 21 of the Constitution of India.”

(e) On 24.07.2019, the representation was forwarded to the Sponsoring

Authority, namely, DRI, Kolkata for its comments which were received on

29.07.2019.   Said  representation  as  well  as  the  para-wise  comments

received from the Sponsoring Authority were forwarded on 31.07.2019 to

the Central Advisory Board.  The meeting of the Central Advisory Board

was scheduled to be held on 02.08.2019.

(f) On 02.08.2019 itself, Writ Petition No.1840 of 2019 preferred on

behalf of the detenues was allowed by the High Court4 on the grounds that

when the detenues were in judicial custody and there was no imminent

possibility of their release on bail and when not even a bail application was

preferred by them, the power of preventive detention ought not to have

4The High Court of Delhi at New Delhi

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been exercised; and, that non-placement of relevant material in the form of

retraction  petition  of  one  Shri  Anand  and  its  non-consideration  by  the

Detaining Authority vitiated the Detention Orders.  The High Court thus

quashed the Detention Orders and directed that the detenues be released

forthwith.

(g) In  its  Meeting  dated  02.08.2019,  the  Central  Advisory  Board

recorded  that  since  the  Detention  Orders  were  quashed,  there  was  no

possibility of proceeding further in the matter.

(h) The decision of the High Court was challenged in Criminal Appeal

No.1746 of 2019 in this Court,  which by its  Judgment and order dated

22.11.2019 set aside the view taken by the High Court.  While allowing the

appeal, the detenues were directed to be taken into custody forthwith.  The

Detaining Authority was thereafter informed by the Jail Superintendent on

27.11.2019 that the detenues were received in custody in pursuance of the

decision of this Court.

(i) On 02.12.2019 a direction was issued to process the files of the

detenues  for  reference  to  the  Central  Advisory  Board.   After  obtaining

appropriate approval, the case was referred to the Central Advisory Board

on 05.12.2019 stating inter alia:-

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“Keeping in view the judgment dated 03.06.2015 of the  Apex  Court  delivered  in  Crl.Appeal  No.829  of 2015  arising  out  of  SLP(Crl)  No.2489  of  2015  – Golam  Biswas  v.  Union  of  India,  the  said representations will be considered for disposal by the competent authority only after receipt of opinion of the Hon’ble Board.”

3. The instant  writ  petition  was filed  on or  about  16th December,

2019 challenging the stand taken in the communication dated 05.12.2019

that the representation would be considered only after the receipt of the

opinion  of  the  Central  Advisory  Board.   It  was  submitted  that  the

representation  ought  to  be  considered  independently  by  the  Detaining

Authority  and  without  waiting  for  the  report  of  the  Central  Advisory

Board; and that the delay in consideration of such representation violated

the rights of the detenues guaranteed by the Constitution of India.  Soon

thereafter,  another  representation  reiterating the stand as  aforesaid  was

made by the Advocate for the detenues on 18.12.2019.

4. On 18.12.2019 notice  was issued by this  Court,  whereafter,  an

affidavit in reply was filed on behalf of the respondents stating inter alia:-

(a) On  06.01.2020  a  report  was  submitted  by  the  Central

Advisory Board that there was sufficient cause for the detention of

the detenues.  

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(b)  After considering the report of the Central Advisory Board

and  the  other  material  on  record,  the  Central  Government

confirmed  the  Detention  Orders  vide  proceedings  dated

14.01.2020.

(c) On the same date i.e.  14.01.2020 the Detaining Authority,

namely, Joint Secretary (COFEPOSA) rejected the representations

dated 17.07.2019 and 18.12.2019 made on behalf of the detenues.

After referring to the decisions of this court in  Golam Biswas v.

Union of India and Another5  and K.M. Abdulla Kunhi and B.L. Abdul

Khader  v.  Union  of  India  and  others6 it  was  stated  that  the

representations were considered only after the receipt of the opinion of the

Central Advisory Board dated 06.01.2020.

5. We heard Mr. Mukul Rohatgi and Mr. Neeraj Kishan Kaul, learned

Senior Advocates in support of the petition and Mr. K.M. Nataraj, learned

Advocate Solicitor General for the respondents.

6. The learned Counsel for the petitioner accepted that by the time

representation dated 17.07.2019 was received by the Detaining Authority,

the  matter  was  referred  to  the  Central  Advisory  Board  and  since  the

5 (2015) 16 SCC 177 6 (1991) 1 SCC 476

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Detention Orders were set aside by the High Court on 02.08.2019, the non-

consideration  of  the  representation  till  02.08.2019,  in  the  facts  of  the

instant  case,  would  not  be  of  any  significance.   However,  in  their

submission, after the decision of the High Court was set aside by this Court

and the detenues were taken back in custody in November, 2019, the non-

consideration  of  and delay  in  disposal  of  said  representation  was more

pronounced and relevant.  It was submitted:-

(a) A representation against an order of detention can be made

to the Detaining Authority where the detention order has been passed

by a specially empowered officer of the Central Government as well

as to the Central Government and the Central Advisory Board.  Para

12 of the grounds of detention, as extracted earlier, was in keeping

with this well accepted principle.   

(b) The representation made to the Detaining Authority had to

be  considered  by  the  Detaining  Authority  independently.   The

Detaining Authority was not right in waiting till the receipt of the

report of the Central Advisory Board.

(c) The consequential delay on part of the Detaining Authority

in considering the representation thus violated the constitutional rights

of the detenues.  

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7. On the other hand, Mr. K.M. Nataraj, learned Additional Solicitor

General,  for  the respondents relied upon the decisions of this Court in

Golam Biswas5 and in  K.M. Abdulla  Kunhi6 to  submit  that  while  the

matter was pending consideration before the Central Advisory Board, the

representation  in  question  could  not  be  considered  and  it  could  be

considered only after  the receipt  of  the report  of  the Central  Advisory

Board.

8. In the instant case, the facts are clear that:-

a) The Detaining Authority received a letter on 27.11.2019 that

the detenues were received in custody.  Thereafter the matter

was again referred by the Central Government to the Central

Advisory  Board  on 05.12.2019.   The  communication  shows

that  it  was  decided  that  the  representations  would  be

considered  only  after  receipt  of  the  opinion  of  the  Central

Advisory Board.

b) The opinion of the Central Advisory Board was submitted on

06.01.2020.   On  14.01.2020  the  Central  Government

confirmed  the  Detention  Orders  and  on  the  same  date  the

Detaining Authority rejected the representations.

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9. Following questions therefore arise:-

i) Whether the Detaining Authority was justified in deferring the

consideration  of  the  representation  till  the  receipt  of  the

opinion of the Central Advisory Board?

ii) Whether the Detaining Authority ought to have considered the

representation  independently  and  without  waiting  for  the

report of the Central Advisory Board?

iii) If the answer to the second question is yes, whether the time

taken  by  the  Detaining  Authority  from  27.11.2019  till

14.01.2020  could  be  characterised  as  undue  and  avoidable

delay violating the constitutional rights of the detenues?

10.  The  learned  counsel  appearing  for  the  parties  placed  for  our

consideration various decisions of this Court touching upon the aforesaid

first  two  questions.   We  may  broadly  consider  those  decisions  for

answering the questions from two perspectives:-

First, on the issue whether a representation can independently be

made to and must be considered by the Detaining Authority, who is a

specially empowered officer of the concerned Government.  

Writ Petition (Criminal) No.362 of 2019 Ankit Ashok Jalan  vs.  Union of India & Ors.  

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Secondly, whether,  in  certain  circumstances,  the  Detaining

Authority  ought  to  defer  consideration  of  such  representation  till  the

report is received from the Advisory Board.

11. As regards the first issue, following decisions are noteworthy:-

A) In  Ibrahim Bachu Bafan  vs.  State of Gujarat and others7 a

Bench of three Judges of this Court, while considering the scope

of Section 11 of the COFEPOSA Act and Section 21 of 1897

Act8, made following observations:-

“7.   … …. The heading of Section 11 is “Revocation of  Detention  Orders”.  Sub-section  (1)  authorises revocation by two authorities,  namely,  — (a)  if  the order  has  been  made  by  an  officer  of  a  State Government,  the  State  Government  or  the  Central Government  may  revoke  the  order;  and  (b)  if  the order  has  been  made  by  an  officer  of  the  Central Government or by a State Government, revocation is permissible by the Central Government.  Sub-section (1) of Section 11 indicates that the power conferred under it in the situations envisaged in Clauses (a) and (b) is exercisable without prejudice to the provisions of Section 21 of the General Clauses Act. That section provides that a power to issue orders includes a power exercisable in the like manner and subject to the like sanction and conditions, if any, to add, to amend, vary or  rescind  such  orders.  Under  Section  21  of  the General Clauses Act, therefore, the authority making an order of detention would be entitled to revoke that order by rescinding it. We agree with the submission of Mr Jethmalani that the words “without prejudice to the provisions of Section 21 of  the General  clauses Act  1897”  used  in  Section  11(1)  of  the  Act  give

7 (1985) 2 SCC 24 8 The General Clauses Act, 1897

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expression  to  the  legislative  intention  that  without affecting  that  right  which  the  authority  making  the order enjoys under Section 21 of the General Clauses Act,  an  order  of  detention  is  also  available  to  be revoked or modified by authorities named in clauses (a)  and  (b)  of  Section  11(1)  of  the  Act.  Power conferred under clauses (a) and (b) of Section 11(1) of  the  Act  could  not  be  exercised  by  the  named authorities under Section 21 of the General  Clauses Act  as  these  authorities  on  whom  such  power  has been conferred under the Act are different from those who made the orders. Therefore, conferment of such power was necessary as Parliament rightly found that Section  21  of  the  General  Clauses  Act  was  not adequate  to  meet  the  situation.  Thus,  while  not affecting in any manner and expressly preserving the power under Section 21 of the General Clauses Act of the  original  authority  making  the  order,  power  to revoke or modify has been conferred on the named authorities.”

It was, thus, accepted that by virtue of Section 21 of 1897 Act, the

authority making an order of detention would be entitled to revoke that

order by rescinding it and that conferment of power under Section 11 of

the  COFEPOSA Act  was  done  without  affecting  in  any  manner  and

expressly  preserving  the  power  under  Section  21  of  1897  Act  of  the

original authority making the order.

B) A Bench of two Judges of this Court in State of Maharashtra

and another  vs.  Smt. Sushila Mafatlal Shah and others9 took

9 (1988) 4 SCC 490

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a slightly different view.  This Court framed following questions

in para 11:-

“11.  ………

(1) Does an order passed by an officer of the State Government or the Central Government, specially empowered for  the purposes of  Section 3(1) by the  respective  government,  make  him  the detaining authority and not the State Government or  the Central  Government as the case may be, and obligate him to inform the detenu that he has a  threefold  opportunity  to  make  his representations  i.e.  the  first  to  himself  and  the other two to the State Government and the Central Government.

(2) Whether for the purposes of the Act, there is any difference between an order of detention passed by  an  officer  of  the  State  Government  or  the Central  Government,  solely  in  exercise  of  the powers conferred on him under Section 3 by the respective government and an order of detention passed  by the  State  Government  or  the  Central Government as the case may be through an officer who in addition to conferment of powers under Section 3 is also empowered under the Standing Rules framed under the Rules of Business of the government, to act on behalf of the government.

(3)  Whether  by  reason of  the  fact  that  an  order  of detention  is  passed  by  an  officer  of  the  State Government or the Central Government specially empowered to act under Section 3 of the Act, a detenu acquires a constitutional right to have his representation first considered by the very officer issuing  the  detention  order  before  making  a representation  to  the  State  Government  and  the Central Government.”

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While considering the scheme of the COFEPOSA Act, including

the ambit of Section 11, it was observed:-

“19. We may now examine the scheme of the Act and have a closer look at the provisions set out above to find out whether the Act provides for a differentiation being  made  between  detention  orders  made  by  the government and those made by specially empowered officers  so  as  to  confer  an  additional  right  of representation to detenus subjected to detention under detention orders falling in the latter category. At the outset, it needs no saying, that any government, be it Central or State, has to function only through human agencies viz. its officers and functionaries and that it cannot  function  by  itself  as  an  abstract  body.  Such being the case, even though Section 3(1) provides for an order of detention being made either by the Central Government  or  one  of  its  officers  or  the  State Government  or  by  one  of  its  officers,  an  order  of detention has necessarily to be made in either of the situations  only  by  an  officer  of  the  concerned government.  It  is  in  acceptance of  this  position we have to see whether an order of detention, if passed by an  officer  of  the  government  specially  empowered under Section 3(1) but not further empowered under Rules  of  Business  of  the  government  to  act  would have the effect of making the concerned officer the detaining authority and not the concerned government itself. The answer to the question has to be necessarily in the negative for the following reasons. It has been specifically provided in Section 2 (a) that irrespective of  whether  an  order  of  detention  is  made  by  the Central  Government  or  one  of  its  duly  authorised officers,  the “appropriate government” as regard the detention  order  and  the  detenu  will  be  the  Central Government  only and likewise  whether  an order  of detention is made by a State Government or one of its duly authorised officers the “appropriate government” would be the State Government only as regards the detention order and the detenu concerned. Secondly, irrespective of whether an order of detention is made by the State Government or by one of its officers, the

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obligation to forward, within ten days a report to the Central  Government  in  respect  of  the  order  is  cast only  upon  the  State  Government.  Thirdly,  in  the matter of making a reference of the case of a detenu to the Advisory Board under Section 8(b),  the duty of making  the  reference  is  cast  only  on  the  Central Government or the State Government as the case may be, and not on the officer of the Central Government or  the  State  Government  if  he  makes  the  order  of detention in exercise of the powers conferred on him under  Section  3(1).  Lastly,  Section 11,  which  deals with  the  powers  of  revocation  of  the  State Government  and  the  Central  Government  provides that  notwithstanding  that  an  order  of  detention  had been made by an officer of a State Government, the concerned State  Government  as  well  as  the  Central Government are entitled to revoke or modify the order of  detention.  Similarly,  as  per  clause  (b) notwithstanding that  an order of detention has been made by an officer of the Central Government or by a State Government, the Central Government has been empowered to revoke or modify an order of detention. The section does not confer any power of revocation on an officer of the Central or State Government nor does it empower the Central or State Government to delegate the power of revocation to any of its officers. We  may  further  add  that  even  though  Section  11 specifies that the powers of revocation conferred on the  Central  Government/State  Government  are without prejudice to the provisions of Section 21 of the  General  clauses  Act,  this  reservation  will  not entitle  a  specially  empowered  officer  to  revoke  an order of detention passed by him because the order of the  specially  empowered  officer  acquires  “deemed approval” of the State or Central Government, as the case  may  be,  automatically  and  by  reason  of  such deemed approval  the powers  of  revocation,  even in terms of Section 21 of the General clauses Act will fall only within the domain of the State Government and/or  Central  Government.  In  Sat  Pal v.  State  of Punjab10 the  nature  of  the  power  of  revocation conferred on the  State  and the  Central  Government came to be construed and the court held that  “(t)he

10 (1982) 1 SCC 12

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power  of  revocation  conferred  on  the  appropriate government  under  Section  11  of  the  Act  is independent  of  the  power  of  confirming  or  setting aside an order of detention under Section 8(f)”. It was further adumbrated as follows: (SCC p. 17, para 10)

“The power under Section 11(1)(b)  may either be  exercised  on  information  received  by  the Central  Government  from  its  own  sources including that supplied by the State Government under Section 3(2),  or,  from the detenu in  the form of a petition or representation. It is for the Central Government to decide whether or not, it should  revoke  the  order  of  detention  in  a particular  case.  The  use  of  the  words  ‘at  any time’  under  Section  11,  gives  the  power  of revocation an overriding effect on the power of detention under Section 3.”

These  observations  were  made  by  the  court  when considering  the  question  whether  a  detenu  was entitled to  concurrently make  representations  to  the State  Government  and  the  Central  Government against  an  order  of  detention  passed  by  the  State Government  and whether  in such circumstances  the State Government could contend that the question of the  Central  Government  considering  the representation  would  arise  only  after  the  State Government  had  considered  the  representation  and rejected it.

 20. Consequently,  the  resultant  position  emerging from the Act is that even if an order of detention is made by a specially empowered officer of the Central Government or the State Government as the case may be, the said order will give rise to obligations to be fulfilled by the government to the same degree and extent to which it will stand obligated if the detention order had been made by the government itself. If that be so, then it is the concerned government that would constitute the detaining authority  under the Act and not  the  officer  concerned  who  made  the  order  of detention,  and  it  is  to  that  government  the  detenu

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should be afforded opportunity to make representation against the detention order at the earliest opportunity, as envisaged under Article 22(5) and not to the officer making the order of detention in order to provide the detenu an opportunity to make a further representation to the State Government and thereafter to the Central Government if the need arises for doing so. Though by  reason  of  Section  3(1)  a  specially  empowered officer is  entitled to pass an order  of detention,  his constitutional  obligation  is  only  to  communicate expeditiously to the detenu the grounds of detention and  also  afford  him  opportunity  to  make representation to the appropriate governments against his detention. The only further duty to be performed thereafter is to place the representation made by the detenu before  the  concerned officer  or  the  Minister empowered  under  the  Rules  of  Business  of  the government  to  deal  with  such  representation  if  the detenu  addresses  his  representation  to  the  officer himself.”

It  was thus held that the constitutional obligation of a specially

empowered officer entitled to pass an order of detention would only be to

communicate expeditiously to the detenue the grounds of detention and

also to afford him opportunity to make representation to the appropriate

Governments against his detention.  All the aforesaid three questions as

posed in Para 11 were answered in the negative.

C) In Amir Shad Khan vs.  L. Hmingliana and others11, a Bench

of Three Judges of this Court observed:-

“3.  ……...  There  can  be  no  doubt  that  the representation must be made to the authority  which has  the  power  to  rescind  or  revoke  the  decision,  if

11 (1991) 4 SCC 39

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need be. Our search for the authority must, therefore, take us to the statute since the answer cannot be found from  Article  22(5)  of  the  Constitution  read  in isolation. As pointed out earlier that clause casts an obligation on the authority making the detention order to afford to the detenu an earliest opportunity to make a representation against the detention order. If we are to go by the statement in the grounds of detention our search for that authority would end since the grounds of detention themselves state the authorities to which the representation must be made. The question must be answered in the context of the relevant provisions of  the  law.  Now as  stated  earlier  by  clause  (5)  of Article 22 a dual obligation is cast on the authority making the detention order one of which is to afford to  the  detenu  an  earliest  opportunity  of  making  a representation against the order which obligation has been met by informing the detenu in the grounds of detention  to  whom  his  representation  should  be addressed.  But  the  authority  to  which  the representation  is  addressed  must  have  statutory backing. In order to trace the source for the statutory backing  it  would  be  advantageous  to  notice  the scheme of the Act providing for preventive detention. Section  2(b)  defines  a  detention  order  to  mean  an order  made  under  Section  3.  Sub-section  (1)  of Section 3 empowers the Central Government or the State  Government  or  any  officer  of  the  Central Government, not below the rank of a Joint Secretary to  that  government,  specially  empowered  for  the purposes of this section by that government,  or any officer of a State Government, not below the rank of a Secretary  to  that  government,  specially  empowered for the purposes of this section by that government, to make an order of detention with respect to any person with  a  view  to  preventing  him from acting  in  any manner  prejudicial  to  the  conservation  or augmentation of foreign exchange or with a view to preventing  him  from  doing  any  one  of  the  five prejudicial  acts  enumerated  thereunder.  Sub-section (2)  of  that  section provides  that  when any order  of detention is  made by a  State Government or  by an officer empowered by a State Government, the State Government  shall,  within  ten  days,  forward  to  the

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Central Government a report in respect of the order. It is  evident  from  this  provision  that  whenever  a detention order is made by the State Government or its  officer  specially  empowered for  that  purpose an obligation is cast on the State Government to forward a report to the Central Government in respect of that order within ten days. The purpose of this provision is clearly to enable the Central Government to keep an eye on the exercise of power under Section 3(1) by the State Government or its officer. Then comes sub- section (3) which reads as under:    

3.  (3)  For  the  purposes  of  clause  (5)  of Article  22  of  the  Constitution,  the communication  to  a  person  detained  in pursuance  of  a  detention  order  of  the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for  reasons  to  be  recorded in  writing,  not later  than  fifteen  days,  from  the  date  of detention.”

This  provision  is  clearly  intended  to  meet  the obligation cast  by Article 22(5)  that  the grounds of detention shall be communicated ‘as soon as may be’. The  legislation  has,  therefore,  fixed  the  outer  limit within  which  the  grounds  of  detention  must  be communicated to the detenu. Thus the first part of the obligation cast by Article 22(5) is met by Section 3(3) of the Act. Section 8 provides for the Constitution of Advisory Boards. This section is clearly to meet the obligation  of  sub-clause  (a)  of  clause  (4)  and  sub- clause  (c)  of  clause  (7)  of  Article  22  of  the Constitution. Section 8(f) which has some relevance provides that 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

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person concerned,  the  appropriate  government  shall revoke the detention order and cause the person to be released forthwith. This provision clearly obliges the appropriate  government  to  order  revocation  of  the detention order if the Advisory Board reports want of sufficient  cause  for  detention  of  that  person.  Then comes Section 11 which reads as under:

“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 —

(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.”

Sub-section (2) is not relevant for our purpose. It is obvious  from a plain reading of  the two clauses of sub-section (1) of Section 11 that where an order is made by an officer of the State Government, the State Government  as well  as the Central  Government are empowered  to  revoke  the  detention  order.  Where, however, the detention order is passed by an officer of the Central Government or a State Government, the Central  Government  is  empowered  to  revoke  the detention order. Now this provision is clearly without prejudice  to  Section 21 of  the  General  Clauses  Act which  lays  down that  where  by  any  Central  Act  a power to issue orders is  conferred,  then that  power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to rescind  any  order  so  issued.  Plainly  the  authority which has passed the order under any Central Act is

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empowered by this provision to rescind the order in like manner. This provision when read in the context of Section 11 of the Act makes it clear that the power to  rescind  conferred  on  the  authority  making  the detention order by Section 21 of the General Clauses Act is saved and is not taken away. Under Section 11 an  officer  of  the  State  Government  or  that  of  the Central  Government  specially  empowered  under Section 3(1) of the Act to make a detention order is not conferred the power to revoke it; that power for those officers has to be traced to Section 21 of the General Clauses Act. Therefore, where an officer of the State Government or the Central Government has passed  any  detention  order  and  on  receipt  of  a representation he is convinced that the detention order needs to be revoked he can do so by virtue of Section 21 of the General Clauses Act since Section 11 of the Act  does  not  entitle  him  to  do  so.  If  the  State Government  passes  an  order  of  detention  and  later desires  to  revoke  it,  whether  upon  receipt  of  a representation from the detenu or otherwise, it would be entitled to do so under Section 21 of the General Clauses Act but if the Central Government desires to revoke any order passed by the State Government or its officer it can do so only under clause (b) of Section 11(1)  of  the  Act  and  not  under  Section  21  of  the General  Clauses  Act.  This  clarifies  why  the  power under Section 11 is conferred without prejudice to the provisions of Section 21 of the General Clauses Act. Thus  on  a  conjoint  reading  of  Section  21  of  the General  Clauses  Act  and  Section  11  of  the  Act  it becomes  clear  that  the  power  of  revocation  can  be exercised by three authorities, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government. The power of revocation conferred by Section 8(f) on the appropriate Government is clearly independent of this power. It is thus clear that Section 8(f) of the Act satisfies  the  requirement  of  Article  22(4)  whereas Section 11 of the Act satisfies the requirement of the latter  part  of  Article  22(5)  of  the  Constitution.  The statutory  provisions,  therefore,  when  read  in  the context of the relevant clauses of Article 22, make it clear  that  they  are  intended  to  satisfy  the

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constitutional  requirements  and  provide  for enforcement of the right conferred on the detenu to represent against his detention order. Viewed in this perspective it cannot be said that the power conferred by Section 11 of the Act has no relation whatsoever with  the  constitutional  obligation  cast  by  Article 22(5).”

D. The apparent  conflict  between the decisions  of  this  Court  in

Sushila Mafatlal  Shah9 and  Amir  Shad  Khan11 came  up  for

consideration  before  a  Constitution  Bench  of  this  Court  in

Kamleshkumar Ishwardas Patel  vs.  Union of India and others12

and the question was posed as under:-

“2. When an order for preventive detention is passed by an officer especially empowered to do so by the Central Government or the State Government, is the said  officer  required  to  consider  the  representation submitted by the detenu?”

The matter was considered as under:-

“6. This provision has the same force and sanctity as any  other  provision  relating  to  fundamental  rights. (See:  State  of  Bombay v.  Atma  Ram  Shridhar Vaidya13.) Article 22(5) imposes a dual obligation on the  authority  making  the  order  of  preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained  the  earliest  opportunity  of  making  a representation against the order of detention. Article 22(5)  thus  proceeds  on  the  basis  that  the  person detained has a right to make a representation against the  order  of  detention  and  the  aforementioned  two

12 (1995) 4 SCC 51 13 1951 SCR 167 = AIR 1951 SC 157

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obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right  and  he  is  able  to  take  steps  for  redress  of  a wrong which he thinks has been committed. Article 22(5)  does  not,  however,  indicate  the  authority  to whom  the  representation  is  to  be  made.  Since  the object and purpose of the representation that is to be made  by  the  person  detained  is  to  enable  him  to obtain  relief  at  the  earliest  opportunity,  the  said representation has to be made to the authority which can  grant  such  relief,  i.e.,  the  authority  which  can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General  Clauses  Act,  1897 though it  does  not  flow from it.  It  can,  therefore,  be said that  Article  22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority  making  the  order.  In  addition,  such  a representation  can  be  made  to  any  other  authority which is  empowered by law to revoke the order of detention.

…    … …

14. Article  22(5)  must,  therefore,  be  construed  to mean that the person detained has a right to make a representation  against  the  order  of  detention  which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made  the  order  of  detention  or  the  order  for continuance of such detention, which is competent to give immediate relief by revoking the said order as well  as  to  any  other  authority  which  is  competent under  law  to  revoke  the  order  for  detention  and thereby give relief to the person detained. The right to make  a  representation  carries  within  it  a corresponding obligation on the authority making the order of detention to inform the person detained of his right  to  make  a  representation  against  the  order  of detention  to  the  authorities  who  are  required  to consider such a representation.

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…    … …

23. If the power of revocation is to be treated as the criterion  for  ascertaining  the  authority  to  whom representation  can  be  made,  then  the  representation against  an  order  of  detention  made  by  an  officer specially empowered by the State Government can be made to the officer who has made the order as well as to the State Government and the Central Government who are competent to revoke the order. Similarly, the representation  against  an  order  made  by  the  State Government can be made to the State Government as well  as  to  the  Central  Government  and  the representation  against  an  order  made  by  an  officer specially empowered by the Central Government can be made to the officer who has made the order as well as to the Central Government.”

After considering relevant decisions, this Court did not accept the

law laid down in Sushila Mafatlal Shah9 and observed:-

“30. The decision in Sushila Mafatlal Shah9 proceeds on two premises: (i) Article 22(5) does not confer a right to make a representation to the officer specially empowered  to  make  the  order;  and  (ii)  under  the provisions of the COFEPOSA Act when the order of detention is made by the officer specially empowered to  do  so,  the  detaining  authority  is  the  appropriate Government,  namely,  the  Government  which  has empowered the officer to make the order, since such order acquires “deemed approval” by the Government from the time of its issue.

31. With due respect, we find it difficult to agree with both  the  premises.  Construing  the  provisions  of Article 22(5) we have explained that the right of the person detained to make a representation against the order  of  detention  comprehends  the  right  to  make such a representation to the authority which can grant such  relief  i.e.  the  authority  which  can  revoke  the

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order of detention and set him at liberty and since the officer  who  has  made  the  order  of  detention  is competent to revoke it,  the person detained has the right to make a representation to the officer who made the  order  of  detention.  The  first  premise  that  such right  does  not  flow  from  Article  22(5)  cannot, therefore, be accepted.

32. The  learned  Judges,  while  relying  upon  the observations  in  Abdul  Karim14 and  the  decisions  in Jayanarayan  Sukul15,  Haradhan  Saha16 and  John Martin17 have failed to notice that in these cases the Court was considering the matter in the light of the provisions contained in Section 7(1) of the Preventive Detention Act, 1950, whereby it was prescribed that the representation was to be made to the appropriate Government.  The  observations  regarding consideration  of  the  representation  by  the  State Government in the said decisions have, therefore, to be construed in the light of the said provision in the Preventive Detention Act and on that basis it cannot be said that Article 22(5) does not postulate that the person detained has no right to make a representation to the authority making the order of detention.

33. The second premise that the Central Government becomes the detaining authority since there is deemed approval by the Government of the order made by the officer specially empowered in that regard from the time of its issue, runs counter to the scheme of the COFEPOSA Act and the PIT NDPS Act which differs from that of other preventive detention laws, namely, the National Security Act, 1980, the Maintenance of Internal  Security  Act,  1971,  and  the  Preventive Detention Act, 1950.

34. In the National Security Act there is an express provision [Section 3(4)] in respect of orders made by the District Magistrate or the Commissioner of Police

14 (1969) 1 SCC 433 15 (1970) 1 SCC 219 [Jayanarayan Sukul  vs.  State of West Bengal] 16 (1975) 3 SCC 198 [Haradhan Saha  vs.  The State of West Bengal and others] 17 (1975) 3 SCC 836

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under Section 3(3) and the District Magistrate or the Commissioner of Police who has made the order is required  to  forthwith  report  the  fact  to  the  State Government  to  which  he  is  subordinate.  The  said provision further prescribes that no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making. It is also the requirement of Section 3(4) that the report should be accompanied by the grounds on which  the  order  has  been  made  and  such  other particulars as, in the opinion of the said officer, have a bearing  on  the  matter  which  means  that  the  State Government  has  to  take  into  consideration  the grounds  and  the  said  material  while  giving  its approval to the order of detention. The effect of the approval  by  the  State  Government  is  that  from the date of such approval the detention is authorised by the order of the State Government approving the order of  detention  and  the  State  Government  is  the detaining  authority  from  the  date  of  the  order  of approval. That appears to be the reason why Section 8(1)  envisages  that  the  representation  against  the order  of  detention  is  to  be  made  to  the  State Government. The COFEPOSA Act and the PIT NDPS Act do not require the approval of an order made by the  officer  specially  empowered  by  the  State Government or by the Central Government. The order passed by such an officer operates on its own force. All that is required by Section 3(2) of the COFEPOSA Act  and  the  PIT  NDPS  Act  is  that  the  State Government  shall  within  10  days  forward  to  the Central  Government  a report  in  respect of  an order that is made by the State Government or an officer specially  empowered  by  the  State  Government.  An order made by the officer specially empowered by the State Government is placed on the same footing as an order  made  by  the  State  Government  because  the report has to be forwarded to the Central Government in  respect  of  both  such  orders.  No  such  report  is required to be forwarded to the Central Government

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in respect  of  an order  made by an officer  specially empowered by the Central Government. Requirement regarding  forwarding  of  the  report  contained  in Section  3(2)  of  the  COFEPOSA Act  and  the  PIT NDPS  Act  cannot,  therefore,  afford  the  basis  for holding  that  an  order  made  by  an  officer  specially empowered by the Central Government or the State Government  acquires  deemed  approval  of  that Government  from  the  date  of  its  issue.  Approval, actual  or  deemed,  postulates application of  mind to the  action  being  approved  by  the  authority  giving approval.  Approval  of  an  order  of  detention  would require  consideration  by  the  approving  authority  of the grounds and the supporting material on the basis of which the officer making the order had arrived at the  requisite  satisfaction for  the  purpose  of  making the  order  of  detention.  Unlike  Section  3(4)  of  the National Security Act there is no requirement in the COFEPOSA Act  and  the  PIT  NDPS  Act  that  the officer  specially  empowered  for  the  purpose  of making of an order of detention must forthwith send to  the  Government  concerned  the  grounds  and  the supporting material on the basis of which the order of detention has been made. Nor is it prescribed in the said enactments that after the order of detention has been made by the officer specially empowered for that purpose  the  Government  concerned  is  required  to apply  its  mind  to  the  grounds  and  the  supporting material on the basis of which the order of detention was  made.  The  only  circumstance  from  which inference  about  deemed  approval  is  sought  to  be drawn is that the order is made by the officer specially empowered  for  that  purpose  by  the  Government concerned. Merely because the order of detention has been  made  by  the  officer  who  has  been  specially empowered  for  that  purpose  would  not,  in  our opinion,  justify  the  inference  that  the  said  order acquires deemed approval of the Government that has so empowered him, from the date of the issue of the order so as to make the said Government the detaining authority.  By  specially  empowering  a  particular officer under Section 3(2) of the COFEPOSA Act and the  PIT NDPS Act  the  Central  Government  or  the State Government confers an independent power on

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the said officer to make an order of  detention after arriving at his own satisfaction about the activities of the person sought to be detained. Since the detention of the person detained draws its legal sanction from the  order  passed  by  such  officer,  the  officer  is  the detaining authority in respect of the said person. He continues to be the detaining authority so long as the order of detention remains operative. He ceases to be the  detaining  authority  only  when  the  order  of detention  ceases  to  operate.  This  would  be  on  the expiry of the period of detention as prescribed by law or on the order being revoked by the officer himself or by  the  authority  mentioned  in  Section  11  of  the COFEPOSA Act  and Section  12  of  the  PIT NDPS Act.  There  is  nothing  in  the  provisions  of  these enactments to show that the role of the officer comes to an end after he has made the order of detention and that thereafter he ceases to be the detaining authority and  the  Government  concerned  which  had empowered  him  assumes  the  role  of  the  detaining authority. We are unable to construe the provisions of the said enactments as providing for such a limited entrustment of power on the officer who is specially empowered  to  pass  the  order.  An  indication  to  the contrary is given in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act which preserve the power of such officer to revoke the order that was made by him. This means that the officer does not go out  of  the  picture  after  he  has  passed  the  order  of detention. It must, therefore, be held that the officer specially empowered for that purpose continues to be the  detaining  authority  and  is  not  displaced  by  the Government concerned after he has made the order of detention.  Therefore,  by  virtue  of  his  being  the detaining  authority  he  is  required  to  consider  the representation of the person detained against the order of detention.

…     …     …

36. It  appears  that  the  decision  in  Ibrahim  Bachu

Bafan7, a decision of a Bench of three Judges, was not  brought  to  the  notice  of  the  learned  Judges

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deciding  Sushila  Mafatlal  Shah9.  For  the  reasons aforementioned we are of the view that the decision in Sushila Mafatlal Shah9 insofar as it holds that where an  order  of  detention  made  by  an  officer  specially empowered for the purpose, representation against the order of detention is not required to be considered by such officer  and it  is  only to  be  considered  by the appropriate  Government  empowering  such  officer, does not lay down the correct law.

…     …     …

38. Having regard to the provisions of Article 22(5) of the  Constitution  and  the  provisions  of  the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered: 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 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 authorised 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 representation.

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12. With  the  judgment  of  the  Constitution  Bench  of  this  Court  in

Kamleshkumar12,  the law on the first issue is well settled that where the

detention order is made inter alia under Section 3 of the COFEPOSA 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

would result in denial of the right conferred on the person detained to

make a representation.  Further, such right of the detenue has been taken

to  be  in  addition  to  the  right  to  make  the  representation  to  the  State

Government and the Central Government.  It must be stated that para 12

of the grounds of detention in the instant case, as quoted hereinabove, is in

tune with the law so declared by this Court.

13. We now move to the second issue and consider the decisions of

this Court on the point:-  

A) In Pankaj Kumar Chakrabarty and others  vs.  The State of West

Bengal18 a Constitution Bench of this Court considered the matter where

orders of detention were passed by the District Magistrates under Section

3(1)(a)(ii)  and (iii)  read with  Section 3(2)  of  1950 Act19.  As stated  in

18 (1969) 3 SCC 400 = (1970) 1 SCR 543 19 The Preventive Detention Act, 1950

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paragraph 2 of the decision, the case of the detenue was placed before the

Advisory  Board  on 21.09.1968.   A representation  against  the  order  of

detention was made to the State Government on 21.10.1968.  An opinion

was given by the Advisory Board on 06.11.1968 that there was sufficient

cause  for  detention of  the person concerned,  whereafter  the order  was

confirmed on 11.11.1968.  While in the case considered in paragraph 4,

the representation was made after the case was referred to the Advisory

Board.  In the light of these facts, following two questions were framed:-

“6. On  these  contentions  two  questions  arise:  (i) whether there is on the appropriate Government the obligation to  consider  the  representation made by a detenue,  and  (2)  if  there  is,  whether  it  makes  any difference where such a representation is made after the detenu’s case is referred to the Advisory Board.”

The matter was, thereafter, considered and it was observed:-

“10.  It  is  true  that  clause  5  does  not  in  positive language provide as to whom the representation is to be  made  and  by  whom,  when  made,  it  is  to  be considered. But the expressions “as soon as may be” and “the  earliest  opportunity”  in  that  clause  clearly indicate  that  the  grounds  are  to  be  served  and  the opportunity to make a representation are provided for to  enable  the  detenu  to  show that  his  detention  is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detaining authority to whom it is to be made which has to consider it. Though clause 5 does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu  the  earliest  opportunity  to  make  a representation  and  to  consider  it  when  so  made whether its order is wrongful or contrary to the law

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enabling it  to  detain him. The illustrations given in Sk. Abdul Karim case show that clause 5 of Article 22 not  only  contains  the  obligation  of  the  appropriate Government  to furnish the grounds and to  give the earliest opportunity to make a representation but also by  necessary  implication  the  obligation  to  consider that  representation.  Such  an  obligation  is  evidently provided for to give an opportunity to the detenu to show  and  a  corresponding  opportunity  to  the appropriate  Government  to  consider  any  objections against the order which the detenu may raise so that no  person  is,  through  error  or  otherwise,  wrongly arrested and detained. If it was intended that such a representation  need  not  be  considered  by  the Government where an Advisory Board is constituted and  that  representation  in  such  cases  is  to  be considered by the Board and not by the appropriate Government,  clause  5  would  not  have  directed  the detaining authority to afford the earliest opportunity to  the  detenu.  In  that  case  the  words  would  more appropriately  have  been  that  the  authority  should obtain  the  opinion  of  the  Board  after  giving  an opportunity  to  the  detenu  to  make  a  representation and communicate  the  same to the  Board.  But  what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board? If Counsel’s contention were to be right  the  representation in  such cases  would not have  to  be  considered  either  by  the  appropriate Government  or  by  the  Board  and  the  right  of representation and the corresponding obligation of the appropriate  Government  to  give  the  earliest opportunity  to  make  such  representation  would  be rendered  nugatory.  In  imposing  the  obligation  to afford  the  opportunity  to  make  a  representation, clause 5 does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of  orders.  The  clause  does  not  say  that  the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases.  In our  view it  is clear from clauses 4 and 5 of Article 22 that there is a dual obligation on the appropriate Government and a

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dual right in favour of the detenu, namely, (1) to have his  representation  irrespective  of  the  length  of detention considered by the appropriate Government and (2) to have once again that representation in the light of the circumstances of the case considered by the Board before it gives its opinion. If in the light of that  representation  the  Board  finds  that  there  is  no sufficient cause for detention the Government has to revoke the  order  of  detention and set  at  liberty the detenu. Thus, whereas the Government considers the representation  to  ascertain  whether  the  order  is  in conformity with its power under the relevant law, the Board considers such representation from the point of view  of  arriving  at  its  opinion  whether  there  is sufficient cause for detention.  The obligation of  the appropriate  Government  to  afford to  the  detenu the opportunity to make a representation and to consider that representation is distinct from the Government’s obligation to constitute a Board and to communicate the  representation  amongst  other  materials  to  the Board to enable it to form its opinion and to obtain such opinion.   11. This  conclusion  is  strengthened  by  the  other provisions of  the Act.  In  conformity with clauses 4 and 5 of Article 22, Section 7 of the Act enjoins upon the  detaining  authority  to  furnish  to  the  detenu grounds of detention within five days from the date of his detention and to afford to the detenu the earliest opportunity  to  make  his  representation  to  the appropriate  Government.  Sections  8  and  9  enjoin upon  the  appropriate  Government  to  constitute  an Advisory Board and to place within 30 days from the date  of  the  detention the grounds for  detention,  the detenu’s  representation  and  also  the  report  of  the officer  where  the  order  of  detention is  made by an officer  and  not  by  the  Government.  The  obligation under  Section  7  is  quite  distinct  from  that  under Sections  8  and 9.  If  the  representation  was  for  the consideration  not  by  the  Government  but  by  the Board only as contended, there was no necessity to provide that it should be addressed to the Government and not directly to the Board. The Government could not  have  been  intended  to  be  only  a  transmitting

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authority nor could it have been contemplated that it should sit tight on that representation and remit it to the  Board  after  it  is  constituted.  The  peremptory language in clause 5 of Article 22 and Section 7 of the Act would not have been necessary if the Board and not  the  Government  had  to  consider  the representation. Section 13 also furnishes an answer to the  argument  of  Counsel  for  the  State.  Under  that section  the  State  Government  and  the  Central Government are empowered to revoke or modify an order of dentention. That power is evidently provided for  to  enable  the  Government  to  take  appropriate action where on a representation made to it, it finds that the order in question should be modified or even revoked. Obviously, the intention of Parliament could not have been that the appropriate Government should pass an order under Section 13 without considering the  representation  which  has  under  Section  7  been addressed to it.

12. For  the  reasons  aforesaid  we  are  in  agreement with  the  decision  in  Sk.  Abdul  Karim  case. Consequently,  the  petitioners  had  a  constitutional right  and  there  was  on  the  State  Government  a corresponding  constitutional  obligation  to  consider their representations irrespective of whether they were made before or after their cases were referred to the Advisory  Board and that  not  having been done the order of detention against them cannot be sustained. In this view it is not necessary for us to examine the other  objections  raised  against  these  orders.  The petition is therefore allowed, the orders of detention against  Petitioners  15  and 36  are  set  aside  and  we direct  that  they  should  be  set  at  liberty  forthwith.” (Emphasis added)

B. In  Jayanarayan  Sukul15, considered  by  another  Constitution

Bench of this Court,  the order of  detention was passed by the District

Magistrate under the relevant provisions of 1950 Act.   A representation

was made by the detenue to the State Government on 23.06.1969.  The

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case of the detenue was placed before the Advisory Board on 01.07.1969

which  reported  on  13.08.1969  that  there  was  sufficient  cause  for  the

detention.  It was only thereafter that the representation was considered

and  rejected  on  19.08.1969.   In  the  context  of  these  facts,  it  was

observed:-

“13.  It,  therefore,  follows  that  the  appropriate authority  is  to  consider  the  representation  of  the detenu uninfluenced by any opinion or consideration of the Advisory Board. In the case of Khairul Haque v.  State  of  W.B.20 this  Court  observed  that  “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”. The logic behind this proposition is that the Government should immediately consider the representation of the detenu before sending the matter to the Advisory Board and further that such action will then have the real flavour of independent judgment.

…     …     …

18. It is established beyond any measure of doubt that the  appropriate  authority  is  bound  to  consider  the representation of the detenu as early as possible. The appropriate  Government  itself  is  bound  to  consider the  representation  as  expeditiously  as  possible.  The reason  for  immediate  consideration  of  the representation  is  too  obvious  to  be  stressed.  The personal  liberty  of  a  person  is  at  stake.  Any  delay would not only be an irresponsible act on the part of the  appropriate  authority  but  also  unconstitutional because  the  Constitution  enshrines  the  fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is

20 W.P. No.246 of 1969, decided on 10-9-69

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in  peril  immediate  action  should  be  taken  by  the relevant authorities. (Emphasis added)

19. No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of detenu to have his representation considered as expeditiously as possible.  It  will  depend  upon  the  facts  and circumstances  of  each case  whether  the  appropriate Government has disposed of the case as expeditiously as possible for otherwise in the words of Shelat,  J., who  spoke  for  this  Court  in  the  case  of  Khairul Haque20 “It is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning”.

20. Broadly stated, four principles are to be followed in  regard  to  representation  of  detenus.  First,  the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly,  the  consideration  of  the  representation  of the  detenu  by  the  appropriate  authority  is  entirely independent  of  any  action  by  the  Advisory  Board including the  consideration  of  the  representation  of the  detenu  by  the  Advisory  Board. Thirdly,  there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to  the  measure  of  time  taken  by  the  appropriate authority  for  consideration  but  it  has  to  be remembered that the Government has to be vigilant in the governance of the citizens. A citizen’s right raises a  correlative  duty  of  the  State.  Fourthly,  the appropriate Government is to exercise its opinion and judgment  on  the  representation  before  sending  the case  along  with  the  detenu’s  representation  to  the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter  to  the  Advisory  Board.  If  however  the Government  will  not  release  the  detenu  the Government  will  send  the  case  along  with  the detenu’s  representation  to  the  Advisory  Board.  If thereafter the Advisory Board will express an opinion

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in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any  opinion  against  the  release  of  the  detenu  the Government  may still  exercise the power to release the detenu.  (Emphasis Added)

21. In the present case, the State of West Bengal is guilty of infraction of the constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting of the consideration till  after  the  receipt  of  the  opinion of  the  Advisory Board.  As  we  have  already  observed  there  is  no explanation  for  this  inordinate  delay.  The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why  this  long  delay  occurred.  The  inescapable conclusion in the present case is that the appropriate authority  failed  to  discharge  its  constitutional obligation  by  inactivity  and  lack  of  independent judgment.”

C) In Haradhan Saha16  yet another Constitution Bench of this Court

considered the distinction between the consideration of representation by

the Government and by the Advisory Board as under.

“24.  The  representation  of  a  detenu  is  to  be considered.  There  is  an  obligation  on  the  State  to consider the representation. The Advisory Board has adequate power to examine the entire material.  The Board  can  also  call  for  more  materials.  The  Board may call the detenu at his request. The constitution of the  Board  shows  that  it  is  to  consist  of  Judges  or persons qualified to be Judges of the High Court. The constitution of the Board observes the fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts  an  obligation  on  the  State  to  consider  the representation affords the detenu all the rights which are  guaranteed  by  Article  22(5).  The  Government

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considers  the  representation  to  ascertain  essentially whether  the  order  is  in  conformity  with  the  power under  the  law.  The  Board,  on  the  other  hand, considers  whether  in  the  light  of  the  representation there  is  sufficient  cause  for  detention.   (Emphasis Added)

…     …     …    29. Principles  of  natural  justice  are  an  element  in considering the reasonableness of a restriction where Article 19 is applicable. At the stage of consideration of  representation  by  the  State  Government,  the obligation of the State Government is such as Article 22(5)  implies.  Section  8  of  the  Act  is  in  complete conformity  with  Article  22(5)  because  this  section follows  the  provisions  of  the  Constitution.  If  the representation  of  the  detenu  is  received  before  the matter is referred to the Advisory Board, the detaining authority  considers  the  representation.  If  a representation  is  made  after  the  matter  has  been referred  to  the  Advisory  Board,  the  detaining authority  will  consider  it  before  it  will  send representation  to  the  Advisory  Board.”  (Emphasis Added)

It was, thus, clarified that if the representation is received before the

matter is referred to the Advisory Board, the Detaining Authority ought to

consider such representation; and if the representation is made  after the

matter is referred to the Advisory Board, the Detaining Authority would

first consider it and then send the representation to the Advisory Board.

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D) In Frances Coralie Mullin  vs.  W.C. Khambra21, a bench of two

Judges of this Court considered the principles laid down in Jayanarayan

Sukul15 and made following observations:-

“5. We have no doubt in our minds about the role of the court in cases of preventive detention: it has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it  unimpaired.  The  Court’s  writ  is  the  ultimate insurance against  illegal  detention.  The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Article 22(5) vests in  the  detenu  the  right  to  be  provided  with  an opportunity to make a representation. Here the Law Reports tell a story and teach a lesson. It is that the principal enemy of the detenu and his right to make a representation is neither high-handedness nor mean- mindedness but the casual indifference, the mindless insensibility,  the  routine  and  the  red  tape  of  the bureaucratic machine. The four principles enunciated by the Court in Jayanarayan Sukul v. State of W.B. 15

as well as other principles enunciated in other cases, an analysis will show, are aimed at shielding personal freedom  against  indifference,  insensibility,  routine and red tape and thus to secure to the detenu the right to make an effective representation. We agree: (1) the detaining  authority  must  provide  the  detenu  a  very early  opportunity  to  make  a  representation,  (2)  the detaining authority  must  consider  the  representation as  soon  as  possible,  and  this,  preferably,  must  be before the representation is forwarded to the Advisory Board, (3) the representation must be forwarded to the Advisory  Board  before  the  Board  makes  its  report, and (4) the consideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report,  expedition being essential at every stage. We, however, hasten to add that  the  time-imperative  can  never  be  absolute  or obsessive. The Court’s observations are not to be so understood. There has to be lee-way, depending on the

21 (1980) 2 SCC 275

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necessities  (we  refrain  from  using  the  word “circumstances”) of the case. One may well imagine a case where a detenu does not make a representation before  the  Board  makes  its  report  making  it impossible  for  the  detaining  authority  either  to consider it or to forward it to the Board in time or a case.  where  a  detenu makes a representation to  the detaining  authority  so  shortly  before  the  Advisory Board  takes  up  the  reference  that  the  detaining authority  cannot  consider  the  representation  before then but may merely forward it to the Board without himself  considering  it.  Several  such  situations  may arise compelling departure from the time-imperative. But  no  allowance  can  be  made  for  lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual  ramifications  are  involved.  The  burden  of explaining  the  necessity  for  the  slightest  departure from the time-imperative is on the detaining authority.

… … …

7. We have already expressed our agreement with the four  principles  enunciated  in  Jayanarayan  Sukul v. State  of  W.B.15.  We  would  make  one  observation. When it was said there that the Government should come to its decision on the representation before the Government  forwarded  the  representation  to  the Advisory Board, the emphasis was not on the point of time  but  on  the  requirement  that  the  Government should  consider  the  representation  independently  of the  Board.  This  was  explained  in  Nagendra  Nath Mondal v. State of W.B22. In Sukul case15 the court also made certain pertinent  observations  at  pp.  231-232: (SCC p. 224, para 19)

“No definite  time can  be  laid  down within which a representation of a detenu should be dealt  with  save  and  except  that  it  is  a constitutional  right  of  a  detenu to  have  his representation considered as expeditiously as possible.  It  will  depend upon the  facts  and

22 (1972) 1 SCC 498

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circumstances  of  each  case  whether  the appropriate Government has disposed of the case as expeditiously as possible....”

E) In  K.M. Abdullah Kunhi6, in view of the conflict between two

decisions of this Court the matter was referred to the Constitution Bench

as is clear from paragraphs 1 and 2 of said decision:-

“1.  A Division Bench of this Court while expressing the  view  that  the  decisions  in  V.J.  Jain v.  Shri Pradhan23and  Om Prakash Bahl v.  Union of India24

require reconsideration has referred these matters to the Constitution Bench.

2. It  is  convenient  at  this  point  to  refer  to  the statement of law laid down in the aforesaid two cases. In both the cases, as in the present case, the persons were  detained  under  the  Conservation  of  Foreign Exchange  and  Prevention  of  Smuggling  Activities Act, 1974 (‘the Act’). The detenu made representation to the appropriate government. By then the Advisory Board was already constituted and it was scheduled to meet  to  consider  the  case  of  the  detenu.  The government forwarded the detenu’s representation to the Advisory Board. The Advisory Board considered the case of the detenu and also the representation and submitted report expressing the opinion that there was sufficient cause for the detention of the person. The government  after  considering  that  report  confirmed the  order  of  detention.  It  appears  that  the representation  of  the  detenu  was  not  considered before confirming the detention order and it came to be considered and rejected only thereafter. In V.J. Jain case23   this Court observed that the representation of the  detenu  should  be  considered  by  the  detaining authority as early as possible before any order is made confirming  the  detention.  The  confirmation  of  the detention  order  without  the  consideration  of

23 (1979) 4 SCC 401 24 W.P. No.845 of 1979, decided on October 15, 1979

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representation  would  be  invalid  and the  subsequent consideration of the representation would not cure the invalidity of the order of confirmation. This view has been  reiterated  in  the  unreported  judgment  in  Om Prakash Bahl case24.”

In  that  case  the  detention  orders  were  passed  by  the  State

Government  under  Section  3(1)(iv)  of  the  COFEPOSA  Act.   The

representations  were  made  by  the  detenues  on  17.04.1989  which,

however, could not be considered immediately as certain information and

comments were required.  In the meantime, the case was referred to the

Advisory Board which in its report dated 20.04.1989 found that there was

sufficient  cause  for  the  detention.   On  27.04.1989,  the  detention  was

confirmed by the State Government.  Thereafter, the representations were

considered on 6th and 7th May, 1989 by the State Government and by the

Central Government on 23.05.1989.  In the backdrop of these facts, the

question that arose was:-

“5. The  principal  question  for  consideration  is whether  the  confirmation  of  detention  order  upon accepting  the  report  of  the  Advisory  Board  renders itself  invalid  solely  on  the  ground  that  the representation of the detenu was not considered and the  subsequent  consideration  of  the  representation would not cure that invalidity. At the outset it may be made clear that there is no argument addressed before us that there was unexplained delay in considering the representation of the detenu. Indeed, counsel for the petitioners  very  fairly  submitted  that  they  are  not raising the question of delay. They also did not argue that  the  rejection  of  the  representation  after  the

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confirmation  of  detention  was  not  an  independent consideration.”

After  considering  the  relevant  decisions  on  the  point,  including

Pankaj Kumar Chakrabarty18,  Jayanarayan Sukul15, Haradhan Saha16

and Frances Coralie Mullin21 this Court observed:-

“15. In  Frances  Coralie  Mullin  case,  the  detenu’s representation was received by the detaining authority on December 26, 1979. Without any loss of time copy of  the  representation  was  sent  to  the  customs authorities  for  their  remarks  which  was  obviously necessary because the information leading to the order of detention was collected by the customs authorities. The  facts  were  undoubtedly  complex  since  the allegations  against  the  detenu  revealed  an involvement  with  an  international  gang  of  dope smugglers. The comments of the customs authorities were  received  on  January  4,  1980.  The  Advisory Board was meeting on January 4, 1980 and so there could  be  no  question  of  the  detaining  authority considering the representation of the detenu before the Board met, unless it was done in a great and undue haste.  After obtaining the comments of the customs authorities, it was found necessary to take legal advice as  the  representation  posed  many  legal  and constitutional  questions,  so,  after  consultation  with the  Secretary  (Law  and  Judicial)  Delhi Administration, the representation was finally rejected by the Administrator on January 15, 1980. It was held that if there appeared to be any delay it was not due to any  want  of  care  but  because  the  representation required a thorough examination in consultation with investigation agencies and advisers on law.

16. We  agree  with  the  observations  in  Frances Coralie  Mullin  case.  The  time  imperative  for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time  at  which  the  representation  is  made.  The representation  may  be  received  before  the  case  is

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referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board  along  with  the  case  of  the  detenu.  The representation may be received after the case of the detenu is referred to the Board. Even in this situation the  representation  should  be  forwarded  to  the Advisory  Board  provided  the  Board  has  not concluded  the  proceedings.  In  both  the  situations there  is  no  question  of  consideration  of  the representation  before  the  receipt  of  report  of  the Advisory  Board. Nor  it  could  be  said  that  the government  has  delayed  consideration  of  the representation,  unnecessarily  awaiting  the  report  of the  Board.  It  is  proper  for  the  government  in  such situations  to  await  the  report  of  the  Board. If  the Board finds no material  for  detention on the merits and reports accordingly, the government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for  detention,  the  government  after  considering  the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request.  The constitution of the Board shows  that  it  consists  of  eminent  persons  who  are Judges or persons qualified to be Judges of the High Court.  It  is  therefore,  proper  that  the  government considers  the  representation  in  the  aforesaid  two situations only after the receipt  of the report  of the Board.  If  the  representation  is  received  by  the government  after  the  Advisory  Board  has  made  its report, there could then of course be no question of sending the representation to the Advisory Board. It will  have  to  be  dealt  with  and  disposed  of  by  the government as early as possible. (Emphasis added)

…     …     …

19. There is no constitutional mandate under clause (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. As long as the government without delay considers  the  representation  with an unbiased

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mind there is no basis for concluding that the absence of independent consideration is the obvious result if the  representation  is  not  considered  before  the confirmation  of  detention.  Indeed,  there  is  no justification for imposing this restriction on the power of  the  government.  As  observed  earlier,  the government’s  consideration  of  the  representation  is for a different purpose, namely, to find out whether the detention is in conformity with the power under the  statute.  This  has  been  explained  in  Haradhan Saha  case,  where  Ray,  C.J.,  speaking  for  the Constitution Bench observed that the consideration of the  representation  by  the  government  is  only  to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking  order  in  disposing  of  such  representation. There  is  also no failure  of  justice  by the  order  not being a speaking order.  All that is  necessary is that there should be real and proper consideration by the government.

20. It  is  necessary  to  mention  that  with  regard  to liberty of citizens the court stands guard over the facts and  requirements  of  law,  but  court  cannot  draw presumption against any authority without material. It may  be  borne  in  mind  that  the  confirmation  of detention  does  not  preclude  the  government  from revoking the order of detention upon considering the representation.  Secondly,  there  may be  cases  where the  government  has  to  consider  the  representation only  after  confirmation  of  detention.  Clause  (5)  of Article 22 suggests  that  the representation could be received  even  after  confirmation  of  the  order  of detention.  The  words  ‘shall  afford  him  the  earliest opportunity  of  making  a  representation  against  the order’ in  clause  (5)  of  Article  22  suggest  that  the obligation of the government is to offer the detenu an opportunity  of  making  a  representation  against  the order,  before  it  is  confirmed  according  to  the procedure laid down under Section 8 of the Act. But if the  detenu  does  not  exercise  his  right  to  make representation  at  that  stage,  but  presents  it  to  the government after the government has confirmed the order  of  detention,  the  government  still  has  to

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consider such representation and release the detenu if the detention is not within the power conferred under the statute. The confirmation of the order of detention is  not  conclusive  as  against  the  detenu.  It  can  be revoked  suo  motu  under  Section  11  or  upon  a representation of the detenu. It seems to us therefore, that  so  long  as  the  representation  is  independently considered by the government and if there is no delay in  considering  the  representation,  the  fact  that  it  is considered after the confirmation of detention makes little  difference  on  the  validity  of  the  detention  or confirmation  of  the  detention.  The  confirmation cannot  be  invalidated solely on the  ground that  the representation  is  considered  subsequent  to confirmation  of  the  detention.  Nor  it  could  be presumed  that  such  consideration  is  not  an independent  consideration.  With  all  respect,  we  are not  inclined  to  subscribe  to  the  views expressed  in V.J. Jain, Om Prakash Bahl and Khairul Haque cases. They cannot be considered to be good law and hence stand overruled.”

Two situations  were  considered in  paragraph 16 by this  Court.

One, where the representation is received just before the case is referred to

the Advisory Board and there is no time to dispose of the representation

before such reference; and second, where the representation is received

after such reference to the Advisory Board.  It was observed that, “……In

both  the  situations  there  is  no  question  of  consideration  of  the

representation before the receipt of report of the Advisory Board…. It is

proper for the government in such situations to await the report of the

Board.”  The reasons for such observations were given in the latter part of

paragraph 16 and in paragraphs 19 and 20.  

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F) In  Golam Biswas5, the order of detention under the COFEPOSA

Act was passed on 27.05.2014.  A representation was made to the Central

Government on 08.07.2014.  The reference was made to  the Advisory

Board  on  18.07.2014  which  reported  on  27.08.2014  that  there  was

sufficient cause for detention.  Thereafter, the detention was confirmed on

05.09.2014.  In the meantime, the representation which was pending with

the Central Government, was rejected on 21.07.2014.  A bench of two

Judges of this Court considered the submission in paragraph 11 and 15 as

under:-

“11. To start with the dates setting out the intervening events are not in dispute.  To repeat,  the detenu had submitted  his  representation  on  8-7-2014  and  the same was pending consideration on merit before the Central Government on 18-7-2014, the date on which the matter was remitted to the Advisory Board under the Act. The representation was rejected on 21-7-2014 when  the  matter  was  pending  before  the  Advisory Board. The Advisory Board concluded its proceedings and gave a finding sustaining the order of detention on  27-8-2014.  Unmistakably,  thus,  the  detenu’s representation  which  was  pending  at  the  time  of remittance of the matter to the Advisory Board was not forwarded to it  and instead was rejected by the Central  Government  during  the  pendency  of  the proceedings before the Advisory Board.

…    …    …

15. As admittedly, the detenu’s representation dated 8- 7-2014,  pending  with  the  Central  Government,  the appropriate  Government  in  the  case,  was  not forwarded  to  the  Advisory  Board  and  was  instead rejected  during  the  pendency  of  the  proceedings

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before the Advisory Board, we are constrained to hold that  the  detention  of  the  detenu  is  constitutionally invalid.  The  rejection  of  the  representation  by  the Central  Government  later  on  21-7-2014  during  the pendency  of  the  proceedings  before  the  Advisory Board is of no consequence to sustain the detention. Consequently,  the  order  of  confirmation  as  well  is rendered  non  est  by  this  vitiation.  In  view  of  the determination made on the above aspect of the debate, we do not consider it necessary to dilate on the other pleas raised on behalf of the detenu. In the result, the appeal succeeds. The impugned judgment and order is set aside. The orders of detention as well as the order of  confirmation  are  hereby  annulled.  The  detenu is directed to be set at liberty, if not wanted in any other case.”

Thus, failure on part of the appropriate Government to forward the

representation  to  the  Advisory  Board  and  rejection  thereof  while  the

proceedings were pending before the Advisory Board, were the points on

which the relief was granted to the detenue.

14. In the context of the second issue stated earlier, the principles that

emerge from the decisions referred to above are:-

A) In Pankaj Kumar Chakrabarty18, it was laid down:-

“the petitioners had a constitutional right and there was  on  the  State  Government  a  corresponding constitutional  obligation  to  consider  their representations  irrespective  of  whether  they  were made before or after their cases were referred to the Advisory Board”

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According  to  this  decision  it  was  immaterial  whether  the

representations were made before or after the cases were referred to the

Advisory Board.

B) In  Jayanarayan Sukul15, the reason for immediate consideration

of the representation was stressed in para 18 as under:-  

“The  reason  for  immediate  consideration  of  the representation  is  too  obvious  to  be  stressed.  The personal  liberty  of  a  person is  at  stake.  Any delay would not only be an irresponsible act on the part of the  appropriate  authority  but  also  unconstitutional because the  Constitution  enshrines  the  fundamental right  of  a  detenu  to  have  his  representation considered and it is imperative that when the liberty of  a  person is  in  peril  immediate  action should be taken by the relevant authorities.”

Thereafter  four  principles  that  must  be  followed  in  regard  to

consideration  of  the  representation  of  a  detenue  were  dealt  with  in

paragraph 20; the second principle being:-

“Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent  of  any  action  by  the  Advisory  Board including the consideration of the representation of the detenu by the Advisory Board.”

It was thus stated that the consideration of the representation must

be entirely independent of the action by the Advisory Board.  

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The  4th principle  put  the  obligation  upon  the  appropriate

Government to consider the representation as :-

“the  appropriate  Government  is  to  exercise  its opinion and judgment on the representation before sending  the  case  along  with  the  detenu’s representation to the Advisory Board.”

C) In  Haradhan  Saha16, the  qualitative  difference  between

consideration of the representation by the Government on one hand and

by the Advisory Board on the other, was clarified in para 24 as:-  

“The  Government  considers  the  representation  to ascertain  essentially  whether  the  order  is  in conformity with the power under the law. The Board, on the other hand, considers whether in the light of the  representation  there  is  sufficient  cause  for detention.”

The  cases  where  the  representations  were  received  before  the

reference and after the reference were also dealt with in para 29 as :-

“If the representation of the detenu is received before the  matter  is  referred  to  the  Advisory  Board,  the detaining authority considers the representation. If a representation  is  made  after  the  matter  has  been referred  to  the  Advisory  Board,  the  detaining authority  will  consider  it  before  it  will  send representation to the Advisory Board.”

D) In  Frances Coralie Mullin21, the principle that the consideration

by  the  Detaining  Authority  of  the  representation  must  be  entirely

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independent of the hearing by the Board or its report was again stressed

with emphasis on “expedition being essential at every stage”

Para 7 of the decision explained the principles in  Jayanarayan

Sukul15 as:-

“when  it  was  said  there  that  the  Government should  come  to  its  decision  on  the  representation before the Government forwarded the representation to the Advisory Board, the emphasis was not on the point  of  time  but  on  the  requirement  that  the Government  should  consider  the  representation independently of the Board.”

15. These  decisions  clearly  laid  down  that  the  consideration  of

representations  by  the  appropriate  Government  by  the  Board  would

always be qualitatively different and the power of consideration by the

appropriate Government must be completely independent of any action by

the  Advisory  Board.  In  para  12  of  the  decision  in  Pankaj  Kumar

Chakrabarty18 it was stated that the obligation on part of the Government

to  consider  representation  would  be  irrespective  whether  the

representation  was  made  before  or  after  the  case  was  referred  to  the

Advisory Board.  As stated in paragraph 18, this was stated so, as any

delay  in  consideration  of  the  representation  would  not  only  be  an

irresponsible  act  on  part  of  the  appropriate  authority  but  also

unconstitutional.   The  contingency  whether  the  representations  were

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received before or after was again considered in para 29 of the decision in

Haradhan  Saha16.   In  terms  of  these  principles,  the  matter  of

consideration of representation in the context of reference to the Advisory

Board, can be put in following four categories:-

A) If the representation is received well before the reference is made

to  the  Advisory  Board  and  can  be  considered  by  the  appropriate

Government,  the  representation  must  be  considered  with  expedition.

Thereafter  the  representation  along  with  the  decision  taken  on  the

representation shall be forwarded to and must form part of the documents

to be placed before the Advisory Board.  

B) If the representation is received just before the reference is made

to  the  Advisory  Board  and  there  is  no  sufficient  time  to  decide  the

representation, in terms of law laid down in  Jayanarayan Sukul15 and

Haradhan Saha16 the representation must be decided first and thereafter

the representation and the decision must be sent to the Advisory Board.

This is premised on the principle that the consideration by the appropriate

Government is completely independent and also that there ought not to be

any delay in consideration of the representation.

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C) If the representation is received after the reference is made but

before  the  matter  is  decided  by  the  Advisory  Board,  according to  the

principles  laid  down  in  Haradhan  Saha16,  the  representation  must  be

decided.  The decision as well as the representation must  thereafter be

immediately sent to the Advisory Board.

D) If the representation is received after the decision of the Advisory

Board, the decisions are clear that in such cases there is no requirement to

send the representation to the Advisory Board.  The representation in such

cases must be considered with expedition.   

16. There can be no difficulty with regard to the applicability of the

principles in the 1st and the 4th   stage of the aforesaid categories.   The

difficulty may arise as regards the application of principles at the 2nd and

the  3rd stage.    But  that  difficulty  was  dealt  with  sufficient  clarity  in

Jayanarayan Sukul15 and Haradhan Saha16 as stated hereinabove.  If it is

well  accepted  that  the  representation  must  be  considered  with  utmost

expedition; and the power of the Government is completely independent

of the power of the Advisory Board; and the scope of consideration is also

qualitatively different,  there is no reason why the consideration by the

Government must await the decision by the Advisory Board.  None of the

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aforesaid cases even remotely suggested that the consideration must await

till the report was received from the Advisory Board.   

17. However,  it  was  for  the  first  time  that  the  decision  in  K.M.

Abdulla Kunhi6 laid down in paragraph 16 that it would be proper for the

Government in the two situations dealt with in said paragraph to await the

report of the Board; those two situations being:-  

a) where the representation is received before the matter is referred

to  the  Advisory  Board  and where  there  may not  be  sufficient  time to

dispose of  the representation before referring the case to the Advisory

Board, and  

b) where the representation is received after the case is referred to

the Advisory Board.   

It was also laid down:-

“In  both  the  situations  there  is  no  question  of consideration  of  the  representation  before  the  receipt  of report of the Advisory Board.”

18. Since  the  decision  of  this  Court  in  K.M.  Abdulla  Kunhi6  was

rendered by the Constitution Bench of this Court after considering all the

earlier  decisions  on  the  point  including  those  in  Pankaj  Kumar

Chakrabarty18, Jayanarayan Sukul15 and Haradhan Saha16, we are bound

by the principles laid down therein.   When the learned counsel  for  the

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petitioner were so confronted, it was submitted by them that the decision in

K.M. Abdulla Kunhi6 dealt with the matter relating to the consideration of

representation by the appropriate Government and not in the context where

power of detention was exercised by a specially empowered officer as the

Detaining  Authority.   According  to  them,  that  would  make  a  huge

difference and put the matter in a qualitatively different compass.

19. We now proceed to deal with these submissions.

20. At  the  outset  it  must  be  stated  that  in  Pankaj  Kumar

Chakrabarty18 and in  Jayanarayan Sukul15 the orders of detention were

passed by the District Magistrates under Section 3(ii) of 1950 Act.  The

relevant statutory provisions contemplated the concept of approval within

12 days of the passing of such orders of detention passed by the District

Magistrates.   In  Haradhan Saha16  power was exercised by the District

Magistrates under the provisions of the MISA, wherein similar concept of

approval on part of the State Government within 12 days of the passing of

the order of detention by the District Magistrate was contemplated.  The

distinction on that count was noted by this Court in para 34 of the decision

in Kamleshkumar12.  The orders of detention in these decisions were not

passed  by  a  specially  empowered  officer  but  by  the  concerned

Government.  The same logic regarding deemed approval was extended

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initially in Sushila Mafatlal Shah9 to cases where the orders of detention

were  passed  not  by  the  concerned  Government  but  by  a  specially

empowered officer.  The matter was, however, corrected and the distinction

in that behalf was succinctly dealt with in Kamleshkumar12.     

21. It  must  also  be borne  in  mind that  in  all  cases,  the appropriate

Government would be acting in two capacities; one while considering the

representation and the other while taking appropriate decision after a report

is  received  from  the  Advisory  Board  that  there  is  sufficient  cause  for

detention.  Since the decision would be required to be taken in these two

capacities, it was observed in K.M. Abdulla Kunhi6 that it would be proper

for the appropriate Government to wait till the report is received from the

Advisory Board in cases dealt with in paragraph 16 of the decision.  But

such may not be the case with the Detaining Authority who is a specially

empowered officer.

22. A specially empowered officer who passes the order of detention,

in exercise of special empowerment, has no statutory role to play at the

stage when the report is received from the Advisory Board.  The report is

to be considered by the appropriate Government and not by the specially

empowered officer.  It may also be relevant at this stage to consider the

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57

element  of  confidentiality  associated  with  the  report  of  the  Advisory

Board.  Section 8 of the COFEPOSA Act states:-

“8. Advisory Board.- For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7) of article 22 of the Constitution,-

(a) The  Central  Government  and  each  State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist  of  a  Chairman  and  two  other  persons possessing  the  qualifications  specified  in  sub- clause  (a)  of  clause  (4)  of  article  22  of  the Constitution;

(b) Save  as  otherwise  provided  in  section  9,  the appropriate Government shall,  within five weeks from the  date  of  detention  of  a  person  under  a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of article 22 of the Constitution;

(c) 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 for 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;

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(d) When there is a difference of opinion among the members forming the Advisory Board the opinion of the majority of such members shall be deemed to be the opinion of the majority of such members shall be deemed to be the opinion of the Board;  

(e) a person against whom an order of detention has been made under this Act shall not be entitled to appear  by  any  legal  practitioner  in  any  matter connected  with  the  reference  to  the  Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which  the  opinion  of  the  Advisory  Board  is specified, shall be confidential;

(f) 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.”

23. In terms of Section 8, the report of the Advisory Board is meant

only for the consumption of the appropriate Government and apart from

the operative  part  of  the  report  which is  to  be  specified  in  a  separate

paragraph as per sub-section (c), the mandate in terms of sub-section (e) is

to keep the report of the Advisory Board completely confidential.  Thus, a

specially empowered officer who may have passed the order of detention,

by statutory intent is not to be privy to the report nor does the statute

contemplate any role for such specially empowered officer at the stage of

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59

consideration of the opinion of the Advisory Board.  The report of the

Advisory Board may provide some qualitative inputs for the appropriate

Government but none to the specially empowered officer who acted as the

Detaining Authority.  If that be so, would a specially empowered officer

who had passed the order of detention be bound by what has been laid

down by this  Court  in  paragraph 16 of  the  decision  in  K.M.  Abdulla

Kunhi6 in the context of the appropriate Government?

24. It must also be stated here that when  K.M. Abdulla Kunhi6 was

decided on 23.01.1991, the decision that was holding the field as to the

role  of  a  specially  empowered  officer  who  had  passed  an  order  of

detention, was one rendered in Sushila Mafatlal Shah9.  The law that was

holding the field was the concept of deemed approval as was explained in

Sushila Mafatlal  Shah9  and any  representation  made to  such  specially

empowered officer who had passed the order of detention, in terms of the

decision in Sushila Mafatlal Shah9, could be considered by the appropriate

Government itself and not separately by such specially empowered officer.

The subsequent decision in Amir Shad Khan11 was rendered by a Bench of

three  Judges  on  09.08.1991  and  the  apparent  conflict  in  the  decisions

between Sushila Mafatlal Shah9  and Amir Shad Khan11  was resolved by

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60

the  Constitution  Bench  of  this  Court  in  Kamleshkumar12 rendered  on

17.04.1995, i.e. well after the decision in K.M. Abdulla Kunhi6.

25. Thus, if the law is now settled that a representation can be made to

the specially empowered officer who had passed the order of detention in

accordance with the power vested in him and the representation has to be

independently  considered  by  such  Detaining  Authority,  the  concerned

principles adverted to in paragraph 16 of  the decision in  K.M. Abdulla

Kunhi6 would  not  be  the  governing  principles  for  such  specially

empowered officer.  It must be stated that the discussion in K.M. Abdulla

Kunhi6 was purely in the context where the order of detention was passed

by  the  appropriate  Government  and  not  by  the  specially  empowered

officer.  The principle laid down in said paragraph 16 has therefore to be

understood in  the light  of  the subsequent  decision  rendered by another

Constitution Bench of this Court in Kamleshkumar12.

26. In the light of the aforesaid discussion, our answer to first  two

questions is  that  the Detaining Authority  ought  to have considered the

representation  independently  and without  waiting  for  the  report  of  the

Central Advisory Board.   

We now come to the 3rd question.   The facts  in the instant  case

indicate that the comments of the Sponsoring Authority in respect of the

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61

representation were already received by the Detaining Authority.  After

receipt of letter on 27.11.2019 that the detenues were received in custody,

the  time  for  considering  the  representation  started  ticking  for  the

Detaining  Authority.   But  the  representation  was  considered  only  on

14.01.2020 and the reason for such delayed consideration is that the report

of the Central Advisory Board was awaited.  We have already found that

the  Detaining  Authority  was  obliged  to  consider  the  representation

without waiting for the opinion of the Central  Advisory Board.   Thus,

there was no valid explanation for non-consideration of the representation

from 27.11.2019 till 14.01.2020.  We must, therefore, hold that complete

inaction  on  part  of  the  Detaining  Authority  in  considering  the

representation  caused  prejudice  to  the  detenues  and  violated  their

constitutional rights.

27. We are conscious that the view that we are taking, may lead to

some  incongruity  and  there  could  be  clear  dichotomy  when  the

representations  are  made  simultaneously  to  such  specially  empowered

officer  who  had  passed  the  order  of  detention  and  to  the  appropriate

Government.  If we go by the principle in paragraph 16 in K.M. Abdulla

Kunhi6 it would be proper for the appropriate Government to wait till the

report was received from the Advisory Board, while at the same time the

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62

specially empowered officer  who had acted as the Detaining Authority

would be obliged to consider the representation with utmost expedition.

At times a single representation is prepared with copies to the Detaining

Authority namely the specially empowered officer and to the appropriate

Government as well as to the Advisory Board.  In such situations there

will be incongruity as stated above, which may be required to be corrected

at some stage.  However, such difficulty or inconsistency cannot be the

basis  for  holding that  a  specially  empowered officer  while  acting as a

Detaining Authority would also be governed by the same principles as laid

down in paragraph 16 of K.M. Abdulla Kunhi6.

28. Since  there  was  complete  inaction  on  part  of  the  Detaining

Authority in the present case, to whom a representation was addressed in

dealing  with  the  representation  as  stated  above,  we  hold  that  the

constitutional rights of the detenues were violated and the detenues are

entitled to redressal on that count.  We, therefore, allow this Writ Petition

and hold the continued detention of the detenues in terms of the Detention

Orders to be illegal, invalid and unconstitutional.

29. This Writ Petition is therefore allowed.  The Detention Orders are

quashed and the detenues are directed to be set at liberty forthwith, unless

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63

their  custody  is  required  in  connection  with  any  other  proceedings  or

crime.   

……………………….J. [Uday Umesh Lalit]

……………………….J. [Indu Malhotra]

New Delhi; March 04, 2020.

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 362 OF 2019

ANKIT ASHOK JALAN .....APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

J  U  D  G  M  E  N  T

HEMANT GUPTA, J.

1. I have gone through the detailed judgment authored by Brother Justice

Lalit,  but  am  unable  to  persuade  myself  to  agree  with  the  views

expressed by him.  For the sake of brevity the facts are not repeated

here.  2. In my view, the decision in  K. M. Abdulla Kunhi and B.L. Abdul

Khader  v. Union of India and Others1 covers the issue raised, as

once  the  matter  has  been  sent  to  the  Advisory  Board,  the

representation received thereafter is required to be forwarded to it as

well. However, the Detaining Authority retains its right to revoke this

detention order dehors the opinion of the Central Advisory Board.  

1 (1991) 1 SCC 476

1

3. Section 3 of the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 19742 empowers the Central Government, the

State Government or the specially empowered Officer of the rank not

below the rank of  the Joint Secretary of  the Central  Government or

Secretary  of  the  State  Government,  to  make  an  order,  directing  a

person  to  be  detained.   The  Detaining  Authority  has  jurisdiction  to

revoke the detention order in view of Section 21 of the General Clauses

Act, 18973,  whereas, an appropriate Government passes an order of

revocation of detention or confirmation of the order of detention on

receipt of the report of the Advisory Board. The consideration for the

Detaining  Authority  for  revocation,  is  to  see  whether  the  detention

order is in conformity with the power under law whereas, the Advisory

Board  considers  the  representation  to  examine  whether  there  is

sufficient cause for detention. The consideration of the Advisory Board

is an additional safeguard and not a substitute for the consideration of

the representation by the appropriate Government.   

4. The first part of the consideration of representation, as to whether the

order of detention is in conformity with power under the law, does not

make a distinction as to whether the Detaining Authority is the Central

or State Government or a specially empowered Officer in that behalf.

The consideration for detention by the Detaining Authority is confined

to examining whether the order of detention is in conformity with the

2 for short “COFEPOSA Act” 3 for short “1897 Act”

2

power under the law. On the other hand, the Advisory Board examines

if  there  is  sufficient  cause  for  detention.   Therefore,  once  the

Government as a Detaining Authority is examining the representation

of the detenu for revocation of the detention order, it is only required

to examine whether such detention order is in conformity with power

under law, whereas, after the recommendation of the Advisory Board,

the Government would be examining whether there is sufficient cause

for detention.  The exercise of jurisdiction by the Government, whilst

dealing  with  the  representation  as  a  detaining  authority  and  whilst

considering the Advisory Board’s recommendation, is in two separate

and distinct spheres.  

5. The  Constitution  Bench  in  Jayanarayan  Sukul  v. State  of  West

Bengal4 considered  the  detention  order  under  the  Preventive

Detention Act, 1950.  This Court in the aforesaid case, culled out four

principles to be followed with regard to the representation of detenu.

Such four principles have been recapitulated in the order passed by

the Hon’ble Justice Lalit. The power of detention under the aforesaid

Act was not vested under the State or Central Government but on the

District  Magistrate  or  Additional  District  Magistrate  specially

empowered by the State Government.   The opinion of  the Advisory

Board was required to be considered by the appropriate Government

who may either confirm the detention order or if in the opinion of the

Advisory Board, no sufficient cause for detention is found, then revoke

4 (1970) 1 SCC 219

3

the detention  order.   In  this  factual  background,  this  Court  held  as

under:  

“20. Broadly stated, four principles are to be followed in regard  to  representation  of  detenus.  First,  the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation  of  the  detenu  as  early  as  possible. Secondly, the consideration of the representation of the detenu  by  the  appropriate  authority  is  entirely independent  of  any  action  by  the  Advisory  Board including the consideration of the representation of the detenu by the Advisory Board.  Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of  time  taken  by  the  appropriate  authority  for consideration but  it  has  to  be  remembered  that  the Government has to be vigilant in the governance of the citizens. A citizen’s right raises a correlative duty of the State.  Fourthly,  ‘the  appropriate  Government  is  to exercise its opinion and judgment on the representation before  sending  the  case  along  with  the  detenu’s representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If  however the  Government  will  not  release  the  detenu  the Government will send the case along with the detenu’s representation  to  the  Advisory  Board.  If  thereafter  the Advisory  Board  will  express  an  opinion  in  favour  of release of  the detenu the Government will  release the detenu.  If  the Advisory Board will  express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.”

(Emphasis supplied)

6. The second part of the consideration of representation of the detenu

by the appropriate authority i.e.  the Detaining Authority is  entirely

independent  and  has  no  connection  to  the  consideration  by  the

Advisory Board. It has been held that there should not be any delay in

4

the matter of consideration, but at the same time it has been stated

that there is no hard and fast rule that can be laid down as to the

time taken by the appropriate authority for consideration,  however

the Government has to be vigilant with regard to the rights of the

citizens. Such rights raise a corelative duty on the State.

7. A two Judge Bench of this Court, in  Vimalchand Jawantraj Jain  v.

Shri  Pradhan  and  Others5,  examined  a  case  where  a  specially

empowered officer of the State Government had passed a detention

order.  The  representation  to  seek  revocation  of  the  detention  was

sent to such Officer as the Detaining Authority.  The order confirming

the detention of the detenu was passed after considering the report

of the Advisory Board, by the detaining authority. The Advisory Board

reported that there were sufficient causes for the detention of  the

detenu and after considering such report the order of detention was

confirmed. In these circumstances, it  was argued that the order of

detention  had  been confirmed by the  specially  empowered  Officer

without  considering  the  representation  of  the  detenu.  The  Bench

approved the earlier judgment of  this  Court in  Khairul Haque  v.

The State of W.B.6, wherein it was held as under:  

“3……The  fact  that Article  22(5) enjoins  upon  the Detaining Authority to afford to the detenu the earliest opportunity  to  make  a  representation  must  implicitly mean that  such  representation,  must,  when made,  be

5 (1979) 4 SCC 401

6 W.P. No.  246 of 1969 decided on 10-9-69

5

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.”

8. This Court in Vimalchand Jawantraj Jain  after quoting from Khairul

Haque’s case, held as under:  

“4. 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 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.”

(Emphasis supplied)

9. In these circumstances, this Court held that the representation of the

detenu  was  not  considered  by  the  Detaining  Authority  before  the

Advisory  Board  recommended  confirmation  of  the  order  of  the

6

detention,  thus  the  Detaining  Authority  had  failed  to  complete  the

constitutional obligation imposed upon him in terms of Clause (5) of

Article 22.   

10. In  Frances Coralie Mullin v. W.C. Khambra and Others7 an order

of detention was passed by the Administrator, Union Territory of Delhi.

It  was  found  that  the  representation  submitted  by  the  detenu  was

forwarded  to  the  Advisory  Board.  Considering  the  case  of

Jayanarayan Sukul, the two Judge Bench of this Court held as under:  

“5…… We  agree  :  (1)  the  Detaining  Authority  must provide the detenu a very early opportunity to make a representation, (2) the Detaining Authority must consider the  representation  as  soon  as  possible,  and  this, preferably,  must  be  before  the  representation  is forwarded to the Advisory Board, (3) the representation must  be  forwarded  to  the  Advisory  Board  before  the Board makes its report, and (4) the consideration by the Detaining  Authority  of  the  representation  must  be entirely independent of the hearing by the Board or its report,  expedition  being  essential  at  every  stage.  We, however,  hasten  to  add  that  the  time-imperative  can never be absolute or obsessive. The Court's observations are not to be so understood. There has to be lee-way, depending on the necessities (we refrain from using the word  “circumstances”)  of  the  case.  One  may  well imagine,  a  case  where  a  detenu  does  not  make  a representation before the Board makes its report making it  impossible  for  the  Detaining  Authority  either  to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the Detaining Authority so shortly before the Advisory Board takes up the  reference  that  the  Detaining  Authority  cannot consider the representation before then but may merely forward  it  to  the  Board  without  himself  considering it. Several such situations may arise compelling departure from the time-imperative. But no allowance can be made

7 (1980) 2 SCC 275

7

for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and  factual  ramifications  are  involved.  The  burden  of explaining the necessity for the slightest departure from the time- imperative is on the Detaining Authority.”

(Emphasis supplied)

11. The  judgments  of  this  Court  in  Vimalchand  Jawantraj  Jain  and

Frances Coralie Mullin were considered by the Constitution Bench in

K.  M.  Abdulla  Kunhi wherein,  the  judgment  in  Vimalchand

Jawantraj Jain,  Khairul Haque and Om Prakash Bahl v. Union of

India8 were  overruled  and  that  of  Frances  Coralie  Mullin was

approved. The Constitution Bench held as under:  

“11. It  is now beyond the pale of controversy that the constitutional right to make representation under Clause (5) of Article 22 by necessary implication guarantees the constitutional  right  to  a  proper  consideration  of  the representation.  Secondly,  the  obligation  of  the Government to  afford to the detenu an opportunity  to make representation and to consider such representation is distinct from the Government's obligation to refer the case  of  detenu  along  with  the  representation  to  the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in Clauses (4) and (5) of Article 22 that  the 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.  The obligation  of  the  Government  to  consider  the representation  is  different  from  the  obligation  of  the Board  to  consider  the  representation  at  the  time  of hearing the references.  The Government considers  the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board,

8 W.P. NO. 845 of 1979 decided on October 15, 1979

8

on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention. The consideration by the Board is an additional  safeguard  and  not  a  substitute  for consideration of the representation by the Government. The right to have the representation considered by the Government, is, safeguarded by Clause (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under cl. (4) of Article 22 read with Section 8(c) of the Act…..”

(Emphasis supplied)

12. Later,  while  considering  the  Frances  Coralie  Mullin  case,  the

Constitution Bench held that the time-imperative for consideration of

the representation of a detenu can never be absolute or obsessive, it

depends upon the necessities under which the representation is made.

If  there  is  not  enough  time  to  dispose  of  the  representation,  the

representation may also be forwarded to the Advisory Board along with

the case of the detenu. This Court held as under:  

“16. We agree with the observations in Frances Coralie Mullin  case.  The  time  imperative  for  consideration  of representation  can  never  be  absolute  or  obsessive.  it depends upon the necessities and the time at which the representation  is  made. The  representation  may  be received  before  the  case  is  referred  to  the  Advisory Board,  but  there  may  not  be  time  to  dispose  of  the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt

9

of report of the Advisory Board. Nor it could be said that the  government  has  delayed  consideration  of  the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If  the Board finds no material  for  detention  on  the  merits  and  reports accordingly,  the  Government  is  bound  to  revoke  the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after  considering the representation  could revoke the detention. The Board has to submit its report within  eleven  weeks  from  the  date  of  detention.  The Advisory Board may hear the detenu at his request. The Constitution  of  the  Board  shows  that  it  consists  of eminent persons who are Judges or person qualified to be Judges of The High Court. It is therefore, proper that the  Government  considers  the  representation  in  the aforesaid  two  situations  only  after  the  receipt  of  the report of the Board. If the representation is received by the Government after the Advisory Board has made its report,  there  could  then  of  course  be  no  question  of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the Government as early as possible.”

(Emphasis supplied)

13. Later in the same judgment, it was held that there is no constitutional

mandate to consider the representation before confirming the order of

the detention.  As long as, the Government i.e. the Detaining Authority

considers the representation without delay and without an unbiased

mind, there is no basis for concluding that there has been an absence

of  independent  consideration,  before  the  confirmation  of  detention.

The Court held that there is no justification for imposing the restriction

on the power of the Detaining Authority. It was held as under:  

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“19. There is no constitutional mandate under Clause (5) of Article  22,  much  less  any  statutory  requirement  to consider the representation before confirming the order of detention. As long as the Government without delay considers  the  representation  with  an  unbiased  mind there  is  no  basis  for  concluding  that  the  absence  of independent  consideration  is  the  obvious  result  if  the representation is not considered before the confirmation of detention. Indeed, there is no justification for imposing this  restriction  on  the  power  of  the  Government.  As observed earlier, the Government's consideration of the representation is for a different purpose, namely to find out  whether  the  detention  is  in  conformity  with  the power  under  the  statute. This  has  been  explained  in Haradhan Saha case, where Ray, C.J.,  speaking for the Constitution  Bench  observed  that  the  consideration  of the  representation  by  the  Government  is  only  to ascertain  whether  the detention order  is  in  conformity with  the  power  under  the  law.  There  need  not  be  a speaking order in disposing such representation. There is also  no  failure  of  justice  by  the  order  not  being  a speaking order. All that is necessary is that there should be real and proper consideration by the Government.”

(Emphasis supplied)

14. The Constitution Bench of this Court in  K.M. Abdulla Kunhi  further

examined the situation that if the detenu makes a representation after

his detention is confirmed according to the procedure laid down under

Section 8 of the COFEPOSA Act, the Government still has to consider

such representation and assess whether the detention is not within the

power conferred under the law. The Court held as under:

“20.  The words 'shall afford him the earliest opportunity of making a representation against the order' in clause (5)  of Article  22 suggest  that  the  obligation  of  the Government  is  to  offer  the  detenu  an  opportunity  of making a representation against the order,  before it  is confirmed  according  to  the  procedure  laid  down under Section 8 of  the Act.  But  if  the detenu does not

11

exercise his right to make representation at that stage, but presents it to the government after the Government has confirmed the order of  detention,  the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under  the  statute.  The  confirmation  of  the  order  of detention is not conclusive as against the detenu. It can be  revoked  suo motu under Section  11 or  upon  a representation of the detenu.”

(Emphasis supplied)

15. The aforesaid judgment arises out of the fact that the detention order

was  passed  by  the  Government,  however,  it  will  not  make  any

difference  if  the  detention  order  had  been  passed  by  a  specially

empowered  Officer.  The  consideration  for  revocation  of  a  detention

order is only whether such detention order conforms to the law. Such

consideration is applicable to all detaining authorities, be it the Central

Government  or  the  State  Government  or  any  specially  empowered

Officer of  the two. No distinction can be drawn between a specially

empowered  Officer  or  the  State  and  Central  Governments  as  the

consideration herein for revocation of a detention order is restricted to

whether or not the detention order conforms to the law.

16. Subsequently,  the  matter  was  again  placed  before  the  Constitution

Bench in  Kamleshkumar Ishwardas Patel  v. Union of India and

Others9 on  account  of  the  divergent  views  in  the  State  of

Maharashtra & Anr.  v. Sushila Mafatlal Shah and others10 and

9 (1995) 4 SCC 51 10 (1988) 4 SCC 490

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Amir Shad Khan  v. L. Hmingliana and Others11. It was held that

Clause (5)  of  Article  22  imposes  a  dual  obligation  on the  authority

making the order of preventive detention. Firstly, to communicate to

the detenu as soon as may be, the grounds on which the order of

detention  has  been  made;  and  secondly,  to  afford  the  detenu  the

earliest  opportunity of  making a representation against the order of

detention. It was held that in terms of Section 21 of the 1897 Act, the

authority which has ordered the detention has the power to revoke the

same. Further, the detenu has the liberty to submit his representation

to the authority which is competent to revoke the detention. This Court

held as under:  

“14.  Article 22(5) must, therefore, be construed to mean that  the  person  detained  has  a  right  to  make  a representation against the order of detention which can be made not only to the Advisory Board but also to the Detaining Authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is  competent  under law to  revoke the order  for detention and thereby give relief to the person detained. The  right  to  make a  representation  carries  within  it  a corresponding  obligation  on  the  authority  making  the order of detention to inform the person detained of his right  to  make  a  representation  against  the  order  of detention to the authorities who are required to consider such a representation.”

17. The Constitution Bench held  that  when a detention  order  has been

passed by an Officer specially empowered for that purpose, the detenu

11 (1991) 4 SCC 39

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has a right to make a representation against the order of detention to

the said Officer. The failure of the Detaining Authority in considering

such representation results in the denial of the right conferred on the

detenu to make a representation against the order of detention. This

right of the detenu is in addition to his right to make a representation

to the State and the Central Government.

18. In Criminal Appeal Nos. 764-765 of 1994, the Constitution Bench of this

Court in Kamleshkumar Ishwardas Patel considered three questions

which were examined by the Full Bench of the Bombay High Court. The

first  question  was  whether  a  specially  empowered  officer  had  an

independent  power  to  revoke  the  order  of  detention.  The  second

question is not relevant for consideration in the present case. The third

question examined was whether  the failure to  take an independent

decision  on  the  revocation  of  a  detention  order  by  the  specially

empowered  officer  and  merely  forwarding  the  same  with  a

recommendation  to  reject,  results  in  non-compliance  with  the

constitutional  safeguard  under Article  22(5) of  the  Constitution.  The

order of the High Court on first question was confirmed and that on the

third question was set aside.  

19. An argument was raised in respect of the third question that failure on

the part of the Detaining Authority to consider the representation of

the  detenu  results  in  a  denial  of  the  right  of  detenu  to  make  a

representation recognized under Clause (5) of Article 22, which renders

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the  detention  illegal.   In  the  aforesaid  case,  it  was  found  that  the

representation of the detenu was not considered by the Officer making

the order of  detention and the High Court erred in holding that the

failure on part of the Detaining Authority to consider and decide the

representation  is  not  vital  to  the  order  of  detention.    Thus,  the

aforesaid judgment is to the effect that the Detaining Authority is duty-

bound  to  consider  the  representation  of  the  detenu  which  is  a

constitutional  mandate  under  Clause  (5)  of  Article  22  of  the

Constitution.  Such representation has to be decided independently to

the  recommendation  of  the  Advisory  Board  and  can  be  accepted

dehors the recommendation of the Advisory Board. Thus, the right of

detenu is to seek consideration of his representation by the Detaining

Authority,  including  the  specially  empowered  Officer  or  by  State  or

Central Government. It is constitutionally mandated by Clause (5) of

Article 22. Further, as mentioned earlier, the Detaining Authority which

includes the State Government or the Central Government, examines

whether the detention order is  in  conformity with law whereas,  the

appropriate government while considering the recommendation of the

Advisory Board examines whether there was sufficient cause for the

detention  of  the detenu.  The appropriate government  at  that  stage

examines the report of the Advisory Board in respect of the sufficiency

of  material  with  regard  to  detention.   The  consideration  by  the

Detaining Authority is separate and distinct to the consideration of the

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revocation  of  the  detention  order  and  the  consideration  by  the

appropriate Government at the time of assessing the recommendation

of the Advisory Board.  Thus, it is immaterial if the detention order was

passed by a specially empowered Officer or the State Government or

the Central Government as all such authorities have similar jurisdiction

to revoke the detention order. Clause (5) of Article 22 protects the right

of the detenu by giving him the right to submit representation, which is

required to be considered by the Detaining Authority, provided it is not

delayed without any reason. On the other hand, the detention of the

detenu beyond three months can be only on the basis of the report of

the Advisory Board in respect of sufficiency of material to detain the

detenu beyond the period of three months. Such right is conferred on

the detenu by clause (4) of Article 22 of the Constitution.

20. The judgment in K. M. Abdulla Kunhi had been examined by another

Division Bench judgment in  Golam Biswas  v. Union of India and

Another12, wherein the specially empowered Officer passed two orders

of detention. A representation was submitted seeking revocation of the

detention  order.  The  consideration  of  detention  of  the  detenu  was

referred to the Advisory Board on 8.7.2014. The order of detention was

confirmed  by  the  Central  Government  on  5.9.2014  and  the

representation was rejected by the Central Government on 21.7.2014.

Thus, referring to  K. M. Abdulla Kunhi  and reiterating that there is

no time limit to dispose of the representation, this Court held as under:

12 (2015) 16 SCC 177

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“14. As the quoted text would reveal, in essence, it was reiterated  that  if  a  representation  is  received  by  an appropriate authority and there is no time to dispose of the same having regard to the time-frame fixed by the Act for reference of the matter to the Advisory Board, the representation must also be forwarded to the Advisory Board along with the records of the detenu. This assumes significance, in our comprehension, in view of the binding nature of the opinion of the Advisory Board, in case, on a consideration  of  the  materials  on  record  it  decides  to hold against the detention. In case the Advisory Board holds that the detention order is invalid, it is not open for the appropriate Government to continue therewith and it has to essentially revoke the same though the converse may not  be the same.  In  other  words,  if  the Advisory Board upholds the order of  detention,  it  would still  be open  to  the  Central  Government,  depending  on  the merits of each case, to release the detenu. The fact that the opinion of the Advisory Board against continuance of the order of  detention is  final  vis-à-vis the appropriate Government, in our opinion, is the motivating imperative for requiring the appropriate Government to forward the pending representation to the Advisory Board so as to enable  it  to  traverse  the  entire  panorama  of  grounds taken against the detention order for an effective, timely and meaningful consideration of the case of the detenu. This requirement as has been essentially recognised and mandated by two decisions of the Constitution Bench of this  Court,  does  not,  in  any  way,  undermine  the appropriate  Government's  authority  to  consider  and dispose of such representation of any detenu under the preventive  detention  law.  The  right  of  the  Central Government  or  for  that  matter  any  appropriate Government to consider and dispose of a representation of  a  detenu,  preventively  detained,  has  to  be harmoniously construed with the obligation cast on it to forward a pending representation to the Advisory Board as  has  been  consistently  held  in Jayanarayan  Sukul  [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92] and K.M. Abdulla Kunhi [K.M. Abdulla Kunhi v. Union  of  India,  (1991)  1  SCC 476 :  1991 SCC (Cri) 613]”

17

21. This  Court  held  that  the  representation  of  the  detenu  was  not

forwarded  to  the  Advisory  Board  and  instead  rejected  during  the

pendency  of  the  proceedings  before  the  Advisory  Board.  Thus,  the

Court was constrained to hold that the detention of the detenu was

constitutionally invalid. It was held as under:  

“15. As admittedly, the detenu's representation dated 8- 7-2014,  pending  with  the  Central  Government,  the appropriate Government in the case, was not forwarded to the Advisory Board and was instead rejected during the  pendency  of  the  proceedings  before  the  Advisory Board, we are constrained to hold that the detention of the detenu is constitutionally invalid. The rejection of the representation by the Central Government later on 21-7- 2014 during the pendency of the proceedings before the Advisory  Board  is  of  no  consequence  to  sustain  the detention.  Consequently,  the  order  of  confirmation  as well is rendered  non est by this vitiation. In view of the determination made on the above aspect of the debate, we do not consider it  necessary to dilate on the other pleas raised on behalf of the detenu. In the result, the appeal succeeds. The impugned judgment and order is set aside. The orders of detention as well as the order of confirmation are hereby annulled. The detenu is directed to be set at liberty, if not wanted in any other case.”

22. In view of the aforesaid judgment, I am of the opinion that once the

detention order has been made by any of the authorities competent to

detain  in  terms  of  Section  3  (1)  of  the  COFEPOSA  Act,  the

representation  to  seek  revocation  of  the  detention  order  can  be

considered and decided by the Detaining Authority dehors the decision

of the Advisory Board and the acceptance of recommendation by the

appropriate  Government.   The  consideration  for  revocation  of  a

18

detention order is  limited to examining whether the order conforms

with the provisions of law whereas the recommendation of the Advisory

Board is on the sufficiency of  material for detention, which alone is

either confirmed or not accepted by the appropriate Government.  

23. It  would  be  a  matter  of  prudence  and  propriety  for  the  Detaining

Authority  to defer  the decision  on the representation to revoke the

detention order, when the matter is being considered by the Advisory

Board, consisting of three Hon’ble sitting Judges of the High Court. The

consideration of the representation by the Detaining Authority in these

circumstances cannot be said to be delayed as the representation was

received after the matter was referred to the Advisory Board.

24. Thus, I do not find any merit in the present writ petition. The same is

dismissed.

……………………………..J (HEMANT GUPTA)

NEW DELHI;  MARCH 4, 2020.

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