Union of India & Anr Vs. Sneha Khemka
& Anr  Insc 45 (23 January 2004)
Raju & S.B. Sinha. S.B. Sinha, J :
representation made by the detenu or on his behalf is required to be considered
by all the authorities is the sole question involved in this appeal which
arises out of a judgment and order dated 19.12.1995 passed by a Division Bench
of the Calcutta High Court in Criminal Miscellaneous Case No.5039 of 1995.
husband of the first respondent herein was arrested on 17.6.1995 on the charge
of having grossly undervalued imported Floppy Disk Drives whereby customs duty
to the extent of Rs.21.53 lakhs was evaded. During investigation of the said
case, the detenu made a confessional statement before the Customs Officer but
on being produced before the Chief Metropolitan Magistrate, Calcutta, he retracted therefrom. He was
granted bail in the aforementioned case.
first respondent herein thereafter filed a writ application before the Calcutta
High Court for quashing the statement allegedly obtained from her husband by
the Customs Officer.
thereafter detained under Section 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, (hereinafter referred to as 'the
COFEPOSA', for the sake of brevity). The said order of detention was served on
him on 28.8.1995.
made three representations firstly, on 4.9.1995 before the Joint Secretary,
COFEPOSA which was rejected on 21.9.1995; the second on 11/12.9.1995 addressed
to Shri K.L. Verma, Joint Secretary to the Government of India which upon
obtaining the comments of the Sponsoring Authority was rejected on 9.10.1995;
and the third on 14.9.1995, addressed to the Secretary to the Government of
India which was rejected by the Finance Minister on 16.10.1995.
the validity or otherwise of the said order of detention, the wife of the detenu,
the first respondent herein, filed a Criminal Miscellaneous Case before the
Calcutta High Court which was marked as Criminal Miscellaneous Case No. 5039 of
1995, inter alia, praying for :
a writ of and/or order and/or direction in the nature of Habeas Corpus calling
upon the petitioners and each one of them to forthwith set the detenu at
writ of and/or order and/or direction in the nature of Mandamus commanding the
petitioners and each one of them to show cause as to why the order of detention
being No. F. No.673/89/95-CUS.VIII dated 22.8.95 passed by the petitioner No.2
be not quashed and/or set aside.
writ or and/or order and/or direction in the nature of certiorary commanding
the petitioners, their servants, agents and associates and each one of them to
transmit the records relating to the issuance of the order of detention being No.F.
No.673/89/95/Cus.VIII dated 22.8.1995 to the Hon'ble High Court so that the
same may be quashed and/or set aside and a conscionable justice done;
writ of and/or order and/or direction in the nature of prohibition prohibiting
or restraining the petitioners each one of their agents, servants and
associates to forbear from giving any effect of further effect to the order of
detention being No.F.No.673/89/95-Cus.VIII dated 22.8.1995."
Division Bench of the High Court in the impugned judgment observed that the
first representation made by the Joint Secretary, who is the detaining
authority, was not placed before the Central Government and was not considered
by it at all. As regard, the second representation also, the High Court made an
observation that the same had not been independently considered by the Central
Government irrespective of the stand taken by the Joint Secretary to the
Government of India. So far as the third representation is concerned, it was
observed that there was no clear indication in the relevant file that the said
representation was considered by the detaining authority independently.
on or on the basis of three decisions of this Court in KamleshKumar Ishwardas
Patel etc. vs. Union of India and Others etc. [(1995) 4 SCC 51], Kubic Darusz
vs. Union of India and Others [(1990) 1 SCC 568] and Smt. Gracy vs. State of Kerala
and Another [(1991) 2 SCC 1], the High Court allowed the writ petition holding that
proposition of law has been well established that all the representations as
made to either of the three Authorities namely, the Detaining Authority, the
Central Government and the Advisory Board have to be considered by all the
three Authorities independently of each other and unless there be separate
consideration of each one, there will be no sufficient compliance of law in so
far as the provision under Article 22(5) of the Constitution of India is
concerned. In this view of the matter we are constrained to hold in the facts
and circumstances of the present case that the order of detention has been
rendered otiose in view of the non-consideration of all the representations by
all the three Authorities on account of which the detenu is liable to be
released from detention..." Mr. P.P. Malhotra, learned senior counsel
appearing on behalf of the appellant, would submit that the High Court went
wrong in taking the aforementioned view inasmuch representations made by or on
behalf of the detenu in terms of the provisions of the COFEPOSA are required to
be considered by the concerned authorities independently.
learned counsel would urge that the first two representations being made to the
Joint Secretary who was the detaining authority, the same were required to be
considered by him and not by the Central Government.
the third representation having been made to the Central Government, it was for
it to consider the same independent of the representations made by the detenu
before the detaining authority.
learned senior counsel appearing on behalf of the respondent, per contra, would
submit that different representations may contain different grounds and in that
view of the matter unless the Central Government or for that matter, the
detaining authority is possessed of the representation(s) made before other
authorities, effective disposal thereof would not be possible. The learned
counsel would contend that the High Court having rendered its judgment in terms
of the binding precedent of this Court in Kamleshkumar Ishwardas Patel (supra),
the same should not be interfered with. In any event, Mr. Ganguli would submit
that as several other contentions were raised by the respondent before the High
Court, having regard to the fact that the period of detention is long over,
this Court may not exercise its jurisdiction under Article 136 of the
Constitution of India.
order of detention under the COFEPOSA can be passed:
an authority specially empowered by the Central Government;
the State Government;
the Central Government.
on being served with the order of detention having regard to the constitutional
protection contained in clause (5) of Article 22 of the Constitution of India
is entitled to be afforded an earliest opportunity of making a representation
there-against. Clause (5) of Article 22 of the Constitution of India obligates
the authority making the order of preventive detention :
communicate to the detenu the grounds on which the order of detention has been
afford the detenu the earliest opportunity of making a representation against
the order of detention.
right to make a representation is, therefore, a facet of fundamental right.
Article 22(5) of the Constitution does not state as to before whom such
representation is to be made, and provisions therefor are laid down in the
statute under which the detenu has been detained. It is now well-settled that
the object and purpose of the representation is to enable the detenu to obtain
relief at the earliest opportunity wherefor, he may make representation before
such authority which can revoke the same by setting him at liberty. The
cleavage in opinion of this Court as to whether the detaining authority can
pass an order revoking the order of detention came up for consideration before
a Constitution Bench of this Court in Kamleshkumar Ishwardas Patel (supra)
wherein this Court in no uncertain terms held that the revoking authority has
the requisite jurisdiction to revoke an order of detention.
service of the order of detention on the detenu, the detaining authority or the
State Government is obligated to forward to the Central Government a report
the latter is entitled to consider at its earliest opportunity, the validity or
otherwise thereof so as to enable it to intervene in appropriate cases by exercising
its power of revocation. Furthermore, the representation of the detenu, if any,
at a later stage is required to be considered by the Central Government in
terms of Section 11 of the Act which read thus :
Revocation of detention orders.-
prejudice to the provisions of section 21 of the General Clauses Act, 1897, a
detention order may, at any time, be revoked or modified
that the order has been made by an officer of a State Government, by that State
Government or by the Central Government;
that the order has been made by an officer of the Central Government or by a
State Government, by the Central Government.
The revocation of a detention order shall not bar the making of another detention
order under section 3 against the same person." A bare perusal of Section
11 of the Act would clearly shows that the authority vested in the Central
Government or the State Government to revoke an order of detention is without
prejudice to the provisions contained in Section 21 of the General Clauses Act,
1897. In terms of Section 21 of the General Clauses Act, an authority who
passes an order has the jurisdiction can revoke the same.
power of the State Government or the Central Government, therefore, is in
addition to the power of the detaining authority to revoke an order of
detention. A detenu in law, therefore, is entitled to make different
representations before different authorities at different times in terms of
statutory as also constitutional schemes.
authority, concededly, is required to apply its mind on the materials placed on
records and pass an order either rejecting or allowing the said representation.
A representation of the detenu having regard to clause (5) of Article 22 of the
Constitution of India must also be disposed of within a reasonable time.
equally well-settled that the constitutional right to make a representation
includes the right to obtain proper consideration thereof by the authority to whom
it is made.
that mean, as has been held by the High Court, that a representation made
before one authority must also be considered by other authorities? The answer
to the said question must be rendered in the negative. If it is to be assumed
that the three different authorities before whom the representations are made
are required to obtain copies of the representations made to the others; before
a representation is considered, the concerned authority will have to make an
enquiry from the authorities as to whether a representation had been made to it
and if the answer thereof is in the affirmative, to obtain a copy thereof.
such a enquiry is made and eventually if in the meanwhile an order on such
representation has been passed by the concerned authority, the same would also
be required to be obtained. Apart from the fact that such procedure is not
contemplated, a great delay would ensue thereby which would run counter to the
constitutional schemes, as the detenu has a fundamental right to have the same
considered and obtain an order on his representation by the appropriate
authority at the earliest opportunity.
in view the aforementioned principles, we may examine the decisions relied upon
by the High Court.
Darusz (supra), the question which arose was as to whether the grounds of
detention are required to be supplied to the detenu in the language understood
by him so as to enable him to make an effective representation and that the
representation submitted by him was required to be considered, acted upon or
replied by all the authorities.
Court observed that indisputably, the representation may be made by the detenu
to the appropriate Government and it is the appropriate Governent that has to
consider the representation within a reasonable time holding :
if the Advisory Board had made a report upholding the detention the appropriate
Government is not bound by such opinion and it may still, on considering the
representation of the detenu and keeping in view all the facts and circumstances
relating to the case, come to its own decision whether to confirm the order of
detention or to release the detenu; as in that case there was nothing to show
that the Government considered the representation before making the order
confirming the detention. The Constitutional obligation under Article 22(5) was
not complied with. In the instant case there was no consideration before and
even after the Advisory Board considered the case of the detenu. It can not
therefore, be said that the representation was disposed of in accordance with
law." In Smt. Gracy (supra), the detenu's case was referred to the Central
Advisory Board by the Central Government and during the pendency of the
reference before it, a representation was made to the Advisory Board. The
Advisory Board considered the reference relating to the detenu made by the
Central Government and also the detenu's representation submitted to it and
opined that there was sufficient cause to justify his preventive detention. The
order of Central Government confirming his detention was passed thereafter.
This Court, in the fact situation obtaining therein, held that the detenu has a
dual right to get his representation disposed of by the Advisory Board and the
detaining authority independently stating :
contents of Article 22(5) as well as the nature of duty imposed thereby on the
detaining authority support the view that so long as there is a representation
made by the detenu against the order of detention, the aforesaid dual
obligation under Article 22(5) arises irrespective of the fact whether the
representation is addressed to the detaining authority or to the Advisory Board
or to both. The mode of address is only a matter of form which cannot whittle
down the requirement of the constitutional mandate in Article 22(5) enacted as
one of the safeguards provided to the detenu in case of preventive
detention." The Constitution Bench of this Court in Kamleshkumar Ishwardas
Patel (supra) was dealing with a situation where the Joint Secretary to the
Government of India, Ministry of Finance, who was the specially empowered
officer to make an order of detention under Section 3 of the COFEPOSA Act,
forwarded the representation made to him by the Central Government which was
eventually rejected by the latter.
J. speaking for the Bench noticed the provisions of Sections 3 and 11 of the
COFEPOSA Act as also Section 21 of the General Clauses Act and upon considering
a large number of decisions answered the question thus :
the detention order has been made under Section 3 of the COFEPOSA Act and the
PIT NDPS Act by an officer specially empowered for that purpose either by the
Central Government or the State Government the person detained has a right to
make a representation to the said officer and the said officer is obliged to
consider the said representation and the failure on his part to do so results
in denial of the right conferred on the person detained to make a
representation against the order of detention. This right of the detenu is in
addition to his right to make the representation to the State Government and
the Central Government where the detention order has been made by an officer
specially authorized by a State Government and to the Central Government where
the detention order has been made by an officer specially empowered by the
Central Government, and to have the same duly considered. This right to make a
representation necessarily implies that the person detained must be informed of
his right to make a representation to the authority that has made the order of
detention at the time when he is served with the grounds of detention so as to
enable him to make such a representation and the failure to do so results in
denial of the right of the person detained to make a reprsentation." In
that case, inter alia, the following question had arisen for consideration
before the Full Bench of the High Court "(3) Does failure to take
independent decision on revocation of order of detention by the specially
empowered officer under the COFEPOSA Act and merely forwarding the same with
recommendation to reject, result in non-compliance with constitutional
safeguard under Article 22(5) of the Constitution ? Referring to Sat Pal vs.
State of Punjab and Others [(1982) 1 SCC 12], Raj Kishore Prasad vs. State of
Bihar [(1982) 3 SCC 10] as also the decision in Santosh Anand vs. Union of
India [(1981) 2 SCC 420], it was held :
found that the representation of the person detained was not considered by the
officer making the order of detention the High Court was in error in holding
that the said failure on the part of the detaining authority to consider and
decide the representation is not fatal to the order of detention. We are,
therefore, unable to uphold the answer given by the Full Bench to Question No.3
and, in our view, the said question should be answered in the affirmative. On
that basis it has to be held that since there was a denial of the
constitutional safeguard provided to the detenu under Article 22(5) of the
Constitution on account of the failure on the part of the officer who had made
the order of detention to independently consider the representation submitted
by the detenu against his detention and to take a decision on the said
representation the further detention of the detenu Ishwardas Bechardas Patel is
rendered illegal..." The decisions of this Court whereupon reliance has
been placed by the High Court, therefore, nowhere state that copy of the
representation made by the detenu to one authority must be placed before all the
authorities and all such authorities also should consider and pass orders on
those representations, though really not made to any one of them.
impugned judgment and order, therefore, cannot be sustained, which is set aside
ordinarily we would have remitted the matter back to the High Court for
consideration on other questions raised in the writ petition by the respondent
herein but as the period of detention has long expired, we do not intend to do
so. We, therefore, do not wish to express any opinion on the validity or
otherwise of the order of detention.
appeal is disposed of with the aforementioned observations. No costs.