Full Judgment Text
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PETITIONER:
K.M. ABDULLA KUNHI AND B.L. ABDUL KHADER
Vs.
RESPONDENT:
UNION OF INDIA AND ORS., STATE OF KARNATAKAAND ORS.
DATE OF JUDGMENT23/01/1991
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
RAY, B.C. (J)
KANIA, M.H.
SHARMA, L.M. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1991 AIR 574 1991 SCR (1) 102
1991 SCC (1) 476 JT 1991 (1) 216
1991 SCALE (1)58
CITATOR INFO :
RF&E 1992 SC2161 (9)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974--Sections 3,8, 10 and 11--
Detention order confirmed before consideration of
representation of detenu--Whether valid--Representation
received by considered by Government after receiving report
of Advisory Board--Whether valid.
Constitution of India 1950: Articles 22(4) and (5)--
Preventive detention--Rights of detenu--What are.
HEADNOTE:
A division Bench of this Court in V.J. Jain v. Shri
Pradhan and Ors., [1979] 4 SCC 401 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 representation
would be invalid and the subsequent consideration of the
representation would not cure the invalidity of the order of
confirmation. This view was reiterated in the later case of
Om Prakash Bahl v. Union of India, W.P.No. 845 of 1979
decided on 15.10.1979.
As the aforesaid view required reconsideration, the
instant SLPs and WPs had been referred to and heard by a
constitutional bench.
On December 1, 1988, the officers of the Directorate of
Revenue Intelligence upon getting information that
contraband gold has been secreted in the room of petitioner
No. 1 searched the room in the presence of independent
witnesses. Another person was also present inside the room.
The officers recovered one Samsonite punch, and some bundles
of Indian currencies from the table drawer in that room.
Inside the said pouch, there were five gold biscuits of 24
ct. purity and of foreign origin, and seized the same under
a Mahazar.
On 24th February, 1989, that State Government passed
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two separate orders of detention under section 3(1)(iv) of
the Conservation of
103
Foreign Exchange and Prevention of Smuggling Activities Act
1974 and the petitioners were taken into custody and
detained in the Central pension. On 17th April, 1989, the
detenus made representation to the Government, which could
not be immediately considered since they required
translation, and collection of information and comments. In
the meanwhile, the matter was referred to the Advisory
Board, which had its meeting on 20th April, 1989 considered
the case of the detenus, and reported that there was
sufficient cause for detention. On 27th april, 1989, the
Government accepted the report and confirmed the detention
orders. On 6th and 7th May, 1989 the Government considered
and rejected on representation of the detenus and they were
informed of the same.
The detention orders were challenged in the High Court
through a writ petition but the High Court dismissed the
same.
In the appeals and writ petition to this Court, the
main question for consideration was, 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.
Disposing of the matters, the Court,
HELD: 1(a) 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. [115G]
(b) The confirmation of detention does not preclude the
Government from revoking the order of detention upon
considering the representation of the detenu. [115G]
(c) There may be cases where the Government has to
consider the representation only after the confirmation of
the detention. [115H]
2(a) There are two constitutional safeguards, viz:
Clause (4) of Article 22, and Clause(5) of Article 22. The
former requires that if a detenu is liable to be detained
for a longer period than three months, hiscase shall be
referred to the Advisory Board which, must report before the
expiration of the said period of three months that there is
in its opinion sufficient cause for such detention. The
latter provides that when any person is detained in
pursuance of an order made under any
104
law providing for preventive detention the authority making
the order shall, as soon as may be, communicate to such
person the grounds on which the order has been made and
shall afford him the earliest opportunity of making a
representation against the order. [108E-G]
2(b) The detenu has two rights under clause (5) of
Article 22 of the Constitution: (i) to be informed, as soon
as may be, of the grounds on which the order of detention is
based, that is, the grounds which led to the subjective
satisfaction of the detaining authority, and (ii) to
afforded the earliest opportunity of making a representation
against the order of detention. [108H; 109A]
3. The function of the Advisory Board is purely
advisory and its report will enable the Government to detain
the person beyond three months provided the detention is
valid on its merits and does not otherwise offend the
Constitution. [108F]
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4(a) The constitution right to make representation
under clause (5) of Article 22 by necessary implication
guarantees the constitutional right to a proper
consideration of the representation. 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 from its opinion and send a report to
the Government. [110B-C]
4(b) It is implicit in clause (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 reference. The Government consider the
representation to ascertain essentially whether the order is
in conformity with the power under the law. [110C-D]
4(c) The Board, 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 in additional safeguard and not a substitute
for consideration of the representation by the Government.
[110E]
4(d) The right to have the representation considered by
the
105
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 clause
(4) of Article 22 read with section 8(c) of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974. [110F]
SK. Abdul Karim & Ors. v. State of West Bengal, [1969]
1 SCC 433, Pankaj Kumar Chakrabarty & Ors. v. State of West
bengal, [1970] 1 SCR 543; Shayamal Chakraborty v. The
Commissioner of Police Calcutta and Anr.,[1969] 2 SCC 426;
B. Sundar Rao & Ors. v. State of Orissa, [1972] 3 SCC 11;
John Martin v. State of West Bengal, [1975] 3SCR 211; . S.K.
Sekawat v. State of West Bengal, [1983] 2 SCR 161 and
Haradhan Saha & Anr. v. State of West Bengal & Ors.,[1975] 1
SCR 778, referred to.
5(a) The representation relates to the liberty of the
individual, the highly cherished right enshrined in Article
21 of our Constitution. Clause (5) of Article 22 therefore,
casts a legal obligation on the Government to consider the
representation as early as possible. It is a constitutional
mandate commanding the concerned authority to whom the detenu
submits his representation to consider the representation
and dispose of the same as expeditiously as possible.
[110H;111A]
5(b) The words "as soon as may be" occuring in clause
(5) of Article 22 reflect the concern of the Framers that
the representation should be expeditiously considered and
disposed of with a sense of urgency without an avoidable
delay. However, there can be no hard and fast rule in this
regard. It depends upon the fact and circumstances of each
case. There is no period prescribed either under the
Constitution or under the concerned detention law, within
which the representation should be dealt with the
requirement however, is that there should not be supine
indifference slackness or callous attitude in considering
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the representation. Any unexplained delay in the disposal
of the representation would be a breach of the
constitutional imperative and it would render the continued
detention impermissible and illegal. [11B-D]
Jayanarayan Sukul v. State of West Bengal, [1970] 1 SCC
219; Frances Coralie Mullin v. W.C. Khambra and Ors., [1980]
2 SCC 275; Rama Dhondu Borade v. V.K. Saraf, Commissioner of
Police & Ors., [1989] 3 SCC 173; and Aslam Ahmed Zahire
Ahmed Shaik v. Union of India & Ors., [1989] 3 ScC 277,
referred to.
6(a) There is no constitutional mandate under clause
(5) of Arti-
106
cle 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 the restriction on the power of
the Government. [115C-D]
6(b) 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 ifthe 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 consider such representation and release the detenu if the
detention is not within the power conferred under the
statue. 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. [116A-B]
6(c) 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. [116C-D]
V.J. Jain v. Shri Pradhan & Ors., [1979] 4 SCC 401; Om
Prakash Bahl v. Union of India & Ors., W.P. No. 845 of 1979
decided on 15.10.1979 and Khairul Haque v. State of West
Bengal W.P.No. 246/69 decided on 10.9.1969, over ruled;
Khudiram Das v. State of West Bengal & Ors., [1975] 2 SCC
81, distinguished.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Writ Petition (Crl.)
No. 508 of 1989 etc. etc.
(Under Article 32 of the Constitution of India).
107
Harjinder singh R.N. Joshi, A. Acharjee, Navin
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Malhotra, Jagan M. Rao and Raju Ramchandran for the
Petitioners.
V.C. Mahajan, B. Parthasarthy. P. Parmeswaran and M.
Veerappa for the Respondents.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. A Division Bench of this Court
while expressing the view that the decisions in J.V. Jain v.
Shri Pradhan and Ors., [1979] 4 SCC 401 and Om Prakash Bahl
v. Union of India and Ors, W.P. No. 845 of 1979 decided on
15.10.1979 (Unreported) require re-consideration has
referred these matters to the Constitution Bench.
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 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 case 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 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 judgement in Om
Prakash Bahl case.
The relevant facts of the present case may now be
narrated: On 1 December, 1988, the officers of the
Directorate of Revenue Intelligence upon getting information
that the contraband gold has been secreted in the room
occupied by K.M. Abdulla Kunhi, searched the room in the
presence of independent witnesses. Another person called
108
Mohammed Ali was also present inside the room. The officers
recovered one Samsonite pouch and some bundles of the
Indian currencies amounting to Rs. 34,800 from the table
drawer in the room. Inside the said pouch, there were five
gold biscuits of 24 ct. purity and of foreign origin. under
the Mahazar, the officer seized the gold biscuits along with
the Indian currency. On 24 February 1989, the State
Government passed two separate orders of detention under
Section 3(1)(iv) of the Act, directing the detention of K.M.
Abdulla Kunhi, the common petitioner in W.P. (Crl.) No. 508
of 1989 and SLP (crl.) 2009 of 1989, and B.L. Mohammed Ali,
the common petitioner in W.P. (Crl.) No. 542 of 1989 and SLP
(Crl) No 2117 of 1989. On 9 March 1989, Mohammed Ali was
taken into custody. both of them were detained in Central
Prison, Banglaore. On 17 April, 1989, the detenus made
representations to the Government. The representations could
not be immediately considered since they required
translation and collection of information and comments from
different authorities. In the meantime, the case was
referred to the Advisory Board which had its meeting on 20
April 1989. The Board considered the case of the detenus
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and reported that there was sufficient cause for their 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 confirmation of detention was not
an independent consideration.
There are two constitutional safeguards, namely, clause
(4) of Article 22, and clause (5) of Article 22. the former
requires that if a detenu is liable to be detained for a
longer period than three months, his case shall be referred
to the Advisory Board which must report before the
expiration of the said period of three months that there is
in its opinion sufficient cause for such detention. The
function of the Board is purely advisory and its report
will enable the Government to detain the person beyond three
months provided the detention is valid on its merits and
does not otherwise offend the Constitution. Clause (5) of
Article 22 provides that when any person is detained in
pursuance of an order made under any law providing for
preventive detention the authority making the order shall,
as soon as may be, communicate to such person the grounds on
which the order has been made and shall afford him the
earliest opportunity of making a representation against the
order.
The detenu has two rights under clause (5) of Article
22 of the constitution: (i) to be informed, as soon as may
be, of the grounds on
109
which the order of detention is based, that is, the grounds
which led to the subjective satisfaction of the detaining
authority, and (ii) to be afforded the earliest opportunity
of making a representation against the order of detention.
There are also statutory safeguards with regard to
detention of persons under the Act in tune with the
Constitutional requirements. Section 3 of the Act provides
power to make detention orders. Sub-Section (1) speaks of
authorities who are competent to make detention orders.
Sub-section (2) states that when an order of detention is
made by the State Government or by an officer empowered by
the State Government, the State Government shall, within ten
days, forward to the Central Government a report in respect
of that order. Sub-section (3) thereof provides that a
person detained in pursuance of a detention order shall be
furnished with the grounds of detention order as soon as may
be, but ordinarily not later than five days after the
detention. But in exceptional circumstances and for reasons
to be recorded in writing, the grounds shall be furnished
not later than fifteen days from the date of detention.
Section 8 of the Act provides for reference of the
detenu’s case to the Advisory Board, the Chairman and
members of which shall possess the qualification specified in
sub-clause (a) of clause (4) of Article 22 of the
Constitution. They must be persons who are, or have been,
or are qualified to be appointed as, Judges of a High Court.
Clause (b) of Section 8 makes it obligatory for the
Government to refer the case of the detenu to Advisory Board
within five weeks from the date of detention. Clause (c) of
Section 8 provides that the Board shall after considering
the reference and other material place before it and after
hearing the detenu if he desires to be heard in person, give
its report as to whether or not there is sufficient cause
for the detention of the person concerned. The Board shall
submit the report within eleven week from the date of
detention of the person concerned. Clause (f) of Section 8
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states 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 Government may confirm the
detention order and continue his detention for such period
as the Government deems fit subject to the maximum period
permissible under the Act. In every case where the Advisory
Board has reported that there is in its opinion no
sufficient cause for the detention of the person, the
Government shall revoke the detention order and release the
person forthwith. This provision, of course, is subject to
Section 9 with which we are not concerned.
110
Section 10 prescribes the maximum period for which any
person may be detained. Section 11 provides power to the
State Government or the Central Government to revoke the
detention order without prejudice to the provisions of
Section 21 of the General Clauses Act. This revocation shall
not bar the making of another detention order under section
3 against the same person.
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, 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 cl. (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 Art. 22 read with
section 8(c) of the Act. (See: Sk. Abdul Karim & Ors. v.
State of West Bengal, [1969] 1 SCC 433; Pankaj Kumar
Chakrabarty & Ors. v. State of west Bengal, [1970] 1 SCR
543; Shayamal Chakraborty v. The Commissioner of Police
Calcutta and Anr., [1969] 2 SCC 426; B. Sundar Rao and Ors.
v. State of Orissa, [1972] 3 SCC 11; John Matrin v. State of
West Bengal, [1975] 3SCR 211; S.K. Sekawat v. State of West
Bengal, [1983] 2 SCR 161 and haradhan Saha & Anr. v. State
of West Bengal and Ors.,[1975] 1 SCR 778.
The representation relates to the liberty of the
individual, the highly cherished right enshrined in Article
21 of our Constitution.
111
Clause (5) of Article 22 therefore, casts a legal obligation
on the Government to consider the representation as early as
possible. it is a constitutional mandate commanding the
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concerned authority to whom the detenu submits his
representation to consider the representation and dispose of
the same as expeditiously as possible. The words "as soon
as may be" occuring in clause (5) of Article 22 reflects the
concern of the Framers that the representation should be
expeditiously considered and disposed of with a sense of
urgency without an avoidable delay. However, there can be
no hard and fast rule in this regard it depends upon the
facts and circumstances of each case. There is no period
prescribed either under the Constitution or under the
concerned detention law, within which the representation
should be dealt with. The requirement however, is that
there should not be supine indifference slackness or callous
attitude in considering the representation. Any unexplained
delay in the disposal of representation would be a breach of
the constitutional imperative and it would render the
continued detention impermissible and illegal. This has
been emphasised and re-emphasised by a series of decisions
of the Court. (See: Jayanarayan Sukul v. State of West
bengal, {1970] 1 SCC 219; Frances Coralie Mullin v. W.C.
Kambra and Ors., [1980] 2 SCC 275; Rama Dhondu Borade v.
V.K. Saraf, Commissioner of Police and Ors., [1989] 3 SCC
173 and Aslam Ahmed Zahire Ahmed Shaik v. Union of India and
ors., [1989] 3 SCC 277.
In Jayanarayan Sukul case, A.N. Ray, J., as he then
was, speaking for the Constitution Bench has laid down four
principles which should govern the consideration of
representation of detenus (at p.224):
"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 raised a
correlative duty of the state. fourthly, the
appropriate
112
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 detnu 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 the
Advisory Board will express any opinion against the
release of the detnu the Government may still
exercise the power to release the detenu."
In frances Coralie Mullin v. W.C. Khambra and Ors.,
Chinappa Reddy, J., while dealing with the time imperative
for consideration of the representation has emphasised (at
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279):
"We, however, hasten to add that the time
imperative can never be absolute or obessive. 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 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."
In Frances Coralie Mullin’s 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-
113
authorities for their remarks which was obviously necessary
because the information leading to the order of detention
was collected by the customs authorities. The fact were
undoubtedly complex since allegation 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 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
question, so, after consultation with the Secreatary (Law
and Judicial) Delhi Administration, the representation was
finally rejected by the Administrator or 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 of law
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 isreferred to
the Board. Even in this situation the representation should
be forwarded to the Advisory Board provided the Board has
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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 andreports 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
114
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.
The crucial question that remains for consideration is
whether the Government should consider and dispose of the
representation before confirming the detention. This Court
in V.J. Jain case has observed (at 405) that it is a
constitutional obligation under clause (5) of Article 22 to
consider the representation before confirming the order of
detention. if it is not so considered, the confirmation
becomes invalid and the subsequent consideration and
rejection of the representation could not cure the
invalidity of the order of confirmation.
To reach this conclusion, the Court has relied upon two
earlier judgments of this Court: (i) Khudiram Das v. State
of West Bengal and Ors., [1975] 2 SCC 81 and (ii) Khairul
Haque v. State of West Bengal, W.P. No.246/69 decided on
10.9.1969(Unreported).
The decision in Khudiram case is of title assistance to
the principle stated in V.J. Jain case. It was a case of
belated consideration of the representation without
acceptable explanation. The decision in Khairul Haque case,
however, relevant. It is also unreported decision. The
facts of the case and the principles stated therein may be
furnished. There the petitioner was detained by an order
dated 5 June 1969 of the District Magistrate, 24 Parganas,
West bengal, under Section 3(2) of the Preventive Detention
Act, 1950. He was arrested and detained in Dum Dum Central
Jail on 6 June 1969. The District magistrate informed the
State Government of his said order on 9 June 1969. On 14
June 1969, the Governor gave his approval and reported the
case of the Central Government. On or about 23 June 1969,
the Government received the representation of the petitioner.
On 30 June 1969 the Governor referred the case of the
petitioner to the Advisory Board. The Advisory Board made
its report on 11 August 1969 to the effect that there was
sufficient cause for the detention of the petitioner.
Thereafter, on 12 August 1969, the Governor confirmed the
order of detention. On 29 August 1969, the Governor
rejected the petitioner’s representation. The Court while
referring these facts said that there was unaccounted delay
of little more than two months in the consideration of the
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representation . Doubtless the detention was invalid on this
delay alone and the Court could have quashed the
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detention on that ground. But the Court, however, observed
that it is doubtful whether the Government’s consideration
of the representation was independent as implicit in the
language of Article 22(5). If the confirmation by the
Government of the order of the District magistrate is made
first and the Government rejects the representation
thereafter, such rejection is not an independent
consideration but as the result of its decision to confirm
the order of detention. It was also observed that the
process of decision-making has to be the other way about,
that is to say, the Government must first consider the
representation and only later decide whether it should
confirm the order of the District magistrate on the basis of
the report of the Advisory Board. The decision in Khairul
Haque case has been followed in V.J. Jain case which in turn
was followed in Om Prakash Bahl case.
There is no constitutional mandate under cl. (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.
It is necessary to mention that with regard to liberty
of citizen the Court stands guard over the facts and
requirement 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
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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 consider such
representation and release the detenu if the detention is
not within the power conferred under the statute. The
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confirmation ofthe 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.
Counsel however, submitted that the representation of
the detenu was not sent to the Advisory Board for
consideration. This question was not raised before the High
Court, nor in the Writ Petitions before us and hence
rejected.
These petitions will now be placed before the Division
Bench for final disposal.
N.V.K. Petitions disposed of.
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