ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS.

A 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 D 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. E 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 F 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. G 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 H Board has to submit its report within eleven weeks from the date

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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) … … … C

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 D 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 E different purpose, namely, to find out whether the detention is in conformity with the power under the statute. This has been explained in HaradhanSaha 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. F 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 G 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 H

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A 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 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 Biswas 5, the order of detention under the A 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 D 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. E

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 H

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A 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 B proceedings were pending before the Advisory Board, were the points on which the relief was granted to the detenue.

14Copy pinpoint14. 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:- C “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” D 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 Sukul 15 , the reason for immediate consideration of the representation was stressed in para 18 as under:- E “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 H

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consideration of the representation of the detenu by the A Advisory Board.” It was thus stated that the consideration of the representation must be entirely independent of the action by the Advisory Board. The 4th principle put the obligation upon the appropriate Government to consider the representationas:- B

“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.” F D) In Frances Coralie Mullin 21 , the principle that the consideration by the Detaining Authority of the representation must be entirely 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 G Sukul15as:- “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 H

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A Government should consider the representation independently of the Board.”

15Copy pinpoint15. 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 received before or after was again considered in para 29 of the decision in Haradhan Saha 16. 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. E 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 F 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. G 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. H

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D) If the representation is received after the decision of the A 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.

16Copy pinpoint16. There can be no difficulty with regard to the applicability of the principles in the 1st and the 4thstage of the aforesaid categories. The B difficulty may arise as regards the application of principles at the 2 nd and the 3rd stage. But that difficulty was dealt with sufficient clarity in Jayanarayan Sukul15and Haradhan Saha16as 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 C also qualitatively different, there is no reason why the consideration by the Government must await the decision by the Advisory Board. None of the aforesaid cases even remotely suggested that the consideration must await till the report was received from the Advisory Board.

17Copy pinpoint17. However, it was for the first time that the decision in K.M. D 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 E 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. F 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.”

18Copy pinpoint18. Since the decision of this Court in K.M. Abdulla Kunhi6 was G 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 petitioner were so confronted, it was submitted by them that the H

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A 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. B

19Copy pinpoint19. We now proceed to deal with these submissions.

20Copy pinpoint20. At the outset it must be stated that in Pankaj Kumar Chakrabarty18and in Jayanarayan Sukul15 the orders of detention were passed by the District Magistrates under Section 3(ii) of 1950 Act. The C 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. D 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 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.

21Copy pinpoint21. 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.

22Copy pinpoint22. 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. H

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[UDAY UMESH LALIT, J.]

The report is to be considered by the appropriate Government and not A by the specially empowered officer. It may also be relevant at this stage to consider the 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,- B (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; C (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 F 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; (d) When there is a difference of opinion among the members G 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; H

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A (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.”

23Copy pinpoint23. 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. E 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 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 F 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?

24Copy pinpoint24. It must also be stated here that when K.M. Abdulla Kunhi6 G 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 SushilaMafatlal Shah9. The law that was holding the field was the concept of deemed approval as was explained in SushilaMafatlal Shah9 and any representation made to H such specially empowered officer who had passed the order of detention,

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in terms of the decision in SushilaMafatlal Shah9, could be considered A 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 SushilaMafatlal Shah9 and Amir Shad Khan 11 was resolved by the Constitution Bench of this Court in B Kamleshkumar¹² rendered on 17.04.1995, i.e. well after the decision in K.M. Abdulla Kunhi6.

25Copy pinpoint25. 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 C 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 Kamleshkumar 12.

26Copy pinpoint26. 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 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 G 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 H prejudice to the detenues and violated their constitutional rights.

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27Copy pinpoint27. 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 B report was received from the Advisory Board, while at the same time the specially empowered officer who had acted as the Detaining Authority would be obliged to consider the representationwith utmost expedition. At times a single representation is prepared with copies to the Detaining Authority namely the specially empowered officer and to the appropriate C 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. D

28Copy pinpoint28. 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 detenueswere violated and the detenues are entitled to redressal on that count. We, therefore, allow this Writ Petition E and hold the continued detention of the detenues in terms of the Detention Orders to be illegal, invalid and unconstitutional.

29Copy pinpoint29. This Writ Petition is therefore allowed. The Detention Orders are quashed and the detenuesare directed to be set at liberty forthwith, unless their custody is required in connection with any other proceedings F or crime.

HEMANT GUPTA, J. G

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.

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

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. E

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 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 1 (1991) 1 SCC 476 2 for short “COFEPOSA Act” 3 for short “1897 Act” H

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A 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 B 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 C 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 the detention order. In this factual background, this Court held as under: D “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 G 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 H 4 (1970) 1 SCC 219

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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 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 E 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 decided on 10-9- 69, wherein it was held as under: F “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 considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish G the earliest opportunity to make a representation loses both its purpose and meaning.”

5 (1979) 4 SCC 401 6 W.P. No. 246 of 1969 decided on 10-9-69 H

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A 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 B 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 C 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 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 G 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:

7 H (1980) 2 SCC 275

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“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 C (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 D 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 E 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.” F (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 G 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 8 W.P. NO. 845 of 1979 decided on October 15, 1979 H

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A 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 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)

F 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

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representation may be received before the case is referred to the A 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 person qualified to be Judges E 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: H

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A “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)

E 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: F “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 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

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detention is not conclusive as against the detenu. It can be revoked suomotu 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 C 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 D India and Others9 on account of the divergent views in the State of Maharashtra & Anr. v. Sushila Mafatlal Shah and others10 and 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 9 (1995) 4 SCC 51 10 (1988) 4 SCC 490 11 (1991) 4 SCC 39 H

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A 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.” B

17. The Constitution Bench held that when a detention order has been passed by an Officer specially empowered for that purpose, the detenu 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. F

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 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

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mandate under Clause (5) of Article 22 of the Constitution. Such A 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 B 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 C 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 revocation of the detention order and the consideration by the appropriate Government at the time of assessing D 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 E 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 F 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 G 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

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A to K. M. Abdulla Kunhi and reiterating that there is no time limit to dispose of the representation, this Court held as under: “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 D 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 E 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 F 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 G 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]” H

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21. This Court held that the representation of the detenu was not A 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, B 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 C 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 nonest 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 D 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.” E

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 F Government. The consideration for revocation of a 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. G

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 H

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A 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.

B Devika Gujral Writ Petitions allowed.