S. Naresh vs Union of India (UOI)

Arunachalam, J.—The Petitioner himself is the detenu. In this writ petition, he has prayed for the issue of a habeas corpus, for his production

before this Court for being set at liberty after quashing the impugned order of detention dated 14-2-1991 passed against him by the Respondent, in

exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as

amended), with a view to preventing him from engaging in transporting smuggled goods.

The facts which led to the passing of the impugned order of detention will have to be stated in brief. Acting on intelligence, on 20-1-1991, the

officers of the Directorate of Revenue Intelligence, Madras, intercepted a motorcycle, Yamaha bearing registration number TN--07-4835 at

Spencer Junction on Mount Road, Madras. The Petitioner was driving the motorcycle and one Suresh was the pillion rider. The Petitioner and

Suresh were searched by the officers. 30 gold bars with foreign markings were recovered from the Petitioner and 52 gold bars were seized from

Suresh. All the gold bars bore foreign markings. The Petitioner and Suresh did not have a permit or licence and therefore the gold bars were seized

on the reasonable belief that they have been smuggled into India in contravention of the provisions of the Customs Act. The Petitioner gave a

confessional statement on 20-1-1991 before the Senior Intelligence Officer, Directorate of Revenue Intelligence, Madras. The Petitioner''s house

was searched, but nothing incriminating was found. The Petitioner was arrested and produced before the concerned Magistrate. After follow up

action, the impugned order was clamped.

Mr. B. Kumar, learned Counsel representing the Petitioner urged a single contention pinpointing its sufficiency to vitiate the impugned order of

detention. He contended that the detenu presented a representation before the Advisory Board dated 24-3-1991, that being the only

representation made by the Petitioner. He would urge that inasmuch as the Constitution does not specify any particular mode of sending

representations or to whom it should be addressed, even if the representation had been presented or forwarded to the Advisory Board, the

detaining authority owed an obligation to consider and dispose of the said representation. He further added that the Advisory Board is a

constitutional functionary. The detaining authority must consider the representation at two stages, the first stage is consideration of the

representation of the detenu, independent of the opinion of the Advisory Board and in the second stage, the consideration would relate to

confirmation in the light of the opinion offered by the Advisory Board. According to the learned Counsel, the representation had not been disposed

of till the date of filing of supplementary affidavit of 12th July, 1991. On this ground we heard Mr. T. Srinivasamoorthy, learned Additional Central

Government Standing Counsel. He fairly stated that the representation had not been disposed of independently by the detaining authority, though

on the basis or a fax message received by him, he would bring to our notice, that the representation of the detenu dated 24-3-1991 addressed to

the Advisory Board was considered independently by the Central Government on the basis of the Advisory Board report and on considering the

representation and the documents available in the record, the decision was taken and the confirmation of the detention was made by the Central

Government. On the basis of the same fax message, he further contended, that as the representation was considered along with the Advisory

Board report, it was not felt necessary to send a separate reply to the detenu.

We have carefully considered the rival contentions of Mr. B. Kumar and Mr. T. Srinivasamoorthy. In Smt. Shalini Soni and Others Vs. Union of

India (UOI) and Others, the apex court while considering a similar issue stated as hereunder:

As we mentioned earlier the answer of the Respondents in regard to the ground based on the failure of the detaining authority to consider the

representation dated July 27, 1980 submitted by the detenu through his Advocate was not that the representation was never considered but that it

was not a representation at all. We are unable to agree with the submission made on behalf of the Respondents. The representation has not to be

made in any prescribed form. There is no formula nor any magical incantation like ''open sesame'' to be repeated or chanted in order to quality a

communication as a representation. So long as it contains a demand or a request for the release of the detenu in whatever form or language

couched and a ground or a reason is mentioned or suggested for such release, there is no option but to consider and deal with it as a

representation for the purpose of Article 22(5) of the Constitution. The communication dated July 27, 1980 contains a demand that the detenu

should be released forthwith. It mentions a reason for the demand for release, namely, that copies of statements, documents and materials relied

upon by the detaining authority in arriving at the requisite satisfaction was not furnished to the detenu and that the detention was therefore, illegal.

In the representation made by the detenu to the Advisory Board he has specifically stated, that the detention order is illegal and he had been

wrongly detained without justification. At more than one place in his representation, he had prayed for revocation of the order of detention.

In Kubic Dariusz v. Union of India AIR 1990 S.C. 605 the Supreme Court was concerned with a representation addressed to the Chairman,

Central Advisory Board, COFEPOSA, through the Superintendent, Central Jail, Dum Dum, by the detenu, direct. In the said representation, the

detenu therein, had prayed the concerned authority to provide him with the order of detention together with the grounds of detention in his language

(polish language) so that he could effectively present his defence. In this context the Supreme Court stated as hereunder:

Coming to the second submission, in the representation dated 13-6-1989 the detenu clearly requested that he be provided with the order of

detention together with the grounds of detention in his language (polish language) so that he could effectively present his defence. He called it a

''representation'' against his detention under COFEPOSA Act. Admittedly, this representation was not disposed of by the appropriate Government

and, indeed, has not been disposed of or acted upon till today. Mr. Mahajan submits that it having been addressed to the Chairman, Central

Advisory Board it need not have been dealt with by the Central Government and it could not be regarded as representation at all and the

Government smarted out of the trap by not admitting that the detenu did not know English. We are not inclined to accept this submission.

Admittedly, the representation was sent through the Superintendent, Central Jail, Dum Dum, Calcutta. There is no scope to hold that what has

been stated to be ''representation'' was not representation at all inasmuch as it only requested for translated copies of the grounds of detention and

the annexed documents in polish language. Supply of translated copies would have surely not affected the detention order ipso facto. In Smt.

Shalini Soni and Others Vs. Union of India (UOI) and Others, , it has been held that under Article 22(5) no pro forma for representation has been

prescribed and a request for release of the detenu, therefore, has to be deemed a representation; so also a request to supply copies of documents

etc. Opportunity to make a representation comprehends a request for supply of translated copies. Therefore, the detenu''s representation asking

for copies of documents must be held to have amounted to a representation and it was mandatory on the part of the appropriate Government to

consider and act upon it at the earliest opportunity and failure to do so would be fatal to the detention order.

In the same case, the Supreme Court further observed as follows:

In the instant case though the representation was addressed to the Chairman, Central Advisory Board the same was forwarded by the Jail

authorities and it must be taken to have been a representation to the appropriate Government which was to consider it before placing it before the

Advisory Board and the same having not been done Article 22(5) has to be held to have been violated.

Again at a later stage, the following observations were made:

In Vimalchand Jawantraj Jain Vs. Shri Pradhan and Others, it was held by this Court that under Article 22(5) independent of the reference to the

Advisory Board, the detaining authority must consider the representation at the earliest and come to its own conclusion before confirming the

detention order and consideration and rejection of the representation subsequent to report of the Advisory Board would not cure the defect. It was

clearly held that it is no answer for the detaining authority, to say that the representation of the detenu was sent by it to the Advisory Board and the

Advisory Board had considered the representation and then made a report in favour of detention. Even if the Advisory Board had made a report

upholding the detention the appropriate government is not bound by such opinion and it may still, on considering the representation of the detenu

and keeping in view all the facts and circumstances relating to the case, come to its own decision whether to confirm the order of detention or to

release the detune ;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 cannot, therefore, be said that the representation was disposed of

in accordance with law.

On facts, there is no dispute that the Advisory Board had forwarded the representation of the detenu to the detaining authority and the same had

not been considered independently except at the stage of confirmation on the basis of the opinion offered by the Advisory Board.

In Smt. Gracy v. State of Kerala and Anr. 1991 (1) S.C. 371 a similar question arose for consideration, before the apex court. The Supreme

Court took note of the fact, that the detenu was informed, that he had a right to make representation to the detaining authority, Central Government

and the Central Advisory Board against the detention order and that the mode of address of the representation to the Central Government and the

Central Advisory Board was also indicated in the detention order, along with the grounds. In that case, during the pendency of the reference

before the Advisory Board, the detenu made his representation on 24-3-1990 and addressed it to the Advisory Board. The Advisory Board

considered the reference relating to the detenu made by the Central Government and also the detenus'' representation submitted to it. The

Advisory Board gave the opinion that there was sufficient cause to justify his preventive detention. The Central Government then made the order

dated 24-4-1990 confirming the detention of the detenu therein and directed him to be detained for a period of two years, with effect from the

date of the original order of detention. It is admitted before the Supreme Court that the Advisory Board had considered the detenu''s

representation before sending its opinion to the Central Government along with the entire record including the representation submitted by the

detenu. It was also admitted, as has been done in this case, that the Central Government made the order of confirmation dated 24-4-1990 on

receipt of the opinion of the Advisory Board, but there was no independent consideration of the detenu''s representation by the Central

Government at any time. The only difference in the present case is that the fax message states, that there was independent consideration at the time

of confirmation of the order of detention, which in effect postulates, that the representation was not considered at two different stages, as

contemplated by law, but only at one stage, while confirming the order of detention, on the basis of the opinion of the Advisory Board, while taking

note in the process, the representation of the detenu. In that case, before the Supreme Court a specific stand was taken, that the obligation of

consideration of a representation independently would only arise if the representation was duly addressed to the Central Government. After

quoting the observations in its earlier decision in K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and Ors., State of Karnataka and

Ors. 1991 (1) S.C. 216 the Supreme Court observed as follows:

It is thus clear that the obligation of the Government to consider the representation is different and in addition to the obligation of the Board to

consider it at the time of hearing the reference before giving its opinion to the Government. Consideration of the representation by the Government

has to be uninfluenced by the view of the Advisory Board. In short, the detenu''s right to have the representation considered by the Government

under Article 22(5) is independent of the consideration of the detenu''s case and his representation by the Advisory Board.

The Supreme Court went on to observe as follows:

It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Article 22(5)

of its consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory

Board while giving its opinion. In other words, one representation of the detenu addressed only to the Central Government and not also to the

Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board. The question, therefore, is: whether one

of the requirement of the Consideration by the Government is dispensed with when the detenu''s representation instead of being addressed to the

Government or also to the Government is addressed only to the Advisory Board instead of the Government? On principle, we find it difficult to

uphold the learned Solicitor General''s contention which would reduce the duty of the detaining authority from one of substance to mere form. The

nature of duty imposed on the detaining authority under Article 22(5) in the context of the extraordinary power of preventive detention is sufficient

to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in

detention and not of a free agent. Article 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the

detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider

and decide the representation when made, as soon as possible. Article 22(5) speaks of the detenu''s ''representation against the order'' and

imposes the obligation on the detaining authority. Thus, any representation of the detenu against the order of his detention has to be considered and

decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by

reading together Clauses (4) and (5) of Article 22, even though express mention in Article 22(5) is only of the detaining authority. Moreover, the

order of detention is by the detaining authority and so also the order of its revocation if the representation is accepted, the Advisory Board''s role

being merely advisory in nature without the power to make any order itself. It is not as if there are two separate and distinct provisions for

representation to two different authorities viz., the detaining authority and the Advisory Board, both having independent power to act on its own.

It being settled that the aforesaid dual obligation of consideration of the detenu''s representation by the Advisory Board and independently by the

detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold

that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the

detaining authority and submitted to the advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from

the contents of Article 22(5) in support of the contention of the learned Solicitor General. The contents of Article 22(5) as well as the nature of

duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of

detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining

authority or to the Advisory Board or 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.

In Rahamatullah v. State of Bihar 1981 S.C. 2069 while dealing with the dual right of the detenu on the two fold obligation cast on the

appropriate Governments, the Supreme Court observed as follows:

The law is well settled that in case of preventive detention of a citizen, the obligation of the appropriate government is two-fold: (i) to afford the

detenu the opportunity to make a representation and to consider the representation, which may result in the release of the detenu, and (ii) to

constitute a Board and to communicate the representation of the detenu along with other materials to the Board to enable it to form its opinion and

to obtain such opinion. The former is distinct from the latter. As there is a two-fold obligation of the appropriate Government, so there is a two-

fold right in favour of the detenu to have his representation considered by the appropriate government and to have the representation once again

considered by the Government in the light of the circumstances of the case considered by the Board for the purpose of giving its opinion (See

Narendra Purshotam Umrao Vs. B.B. Gujral and Others, and Pankaj Kumar Chakrabarty and Others Vs. The State of West Bengal,

The same view was reiterated in Mohinuddin v. District Magistrate 1987 SCC (Cri) 674 after taking note of its earlier pronouncement in Narendra

Purshotam Umrao case 1979 S.C.C. (Cri) 557. In that case, the representation was processed together with the report of the Advisory Board

forwarded to the Chief Minister''s Secretariat. Though the ultimate decision in that case rested on the wholly unexplained and unduly long delay in

disposing of the representation by the state Government, it was pointed out by reference to earlier cases that it is implicit in the language of Article

22 that the appropriate government, while discharging its duty to consider the representation, cannot depend upon the view of the Board on such

representation and it has to consider the representation on its own without being influenced by any such view of the board. In other words, the

consideration by the Government of such representation has to be independent of any opinion which may be expressed by the Advisory Board.

In Writ Petition No. 119 of 1989 Ramahari Shinde v. State of Karnataka and Ors. 1979 S.C.C. (Cri) 557 by order dated 15-1-1990, a

Division Bench of the Karnataka High Court, while considering the effect of non-consideration of representation Board, by the detaining authority,

observed as follows:

It is true that the Petitioner had not made an independent representation to the Government and the representation to the Government and the

representation had been made to the Advisory Board on 4-4-1989 but the said representation had been forwarded to the Government by the

Advisory Committee. In the representation, in the last portion, the Petitioner had made a prayer for his release from detention. The competent

authority for considering that request was only the Stale Government. Once that representation was sent to the Government, irrespective of the fact

that it was not addressed to the Government, it was obligatory on the part of the Government to consider the said representation, but the same had

not been done.

The Karnataka High Court took note of the decision of this Court in Geetha v. The State of Tamil Nadu 1989 L.W. (Crl.) 368 which reads as

follows:

The only ground urged by the learned Counsel for the Petitioner is that his sole representation, which he addressed to the Advisory Board was

not considered independently by the Government, which fact is accepted by the learned Additional Public Prosecutor. It is well-settled law now

that when a representation sent by the detenu either to the Advisory Board or to any other agency as soon as it reaches the Government, it is the

duty of the Government to consider the representation independently in Compliance with Article 22(5) of the Constitution. The non-consideration

of the representation by the Government which passed the detention order is violative of the constitution and renders the order of detention as null.

The decision of the Supreme Court in Dr. Rahamatullah Vs. State of Bihar and Another, case was also noticed by the Karnataka High Court. In

the decision of the Karnataka High Court, it is stated, that it was contended by the Advocate-General that as the decision of the Government to

confirm the order of detention was taken only after considering the opinion of the Advisory Board, such a decision would tantamount to the

consideration of the representation of the detenu by the Government, even if an independent consideration was required in law. The Division Bench

of the Karnataka High Court observed:

The first obligation is to consider the representation itself applying its mind to the contends of the representation and the second obligation is to

consider the representation with the assistance of the Advisory Board.

It was pointed out before the Karnataka High Court that the representation of the detenu to the Advisory Board was made only on 4-4-1989 and

the Advisory Board itself met on 6-4-1989 for consideration of the representation of the detenu and therefore there was no time available for the

Government to consider the representation independently particularly for the reason that the representation had reached the Government only with

opinion of the advisory Board. The Karnataka High Court observed as follows:

Even so, it appears to us that after the representation reached the Government, there was obligation on the part of the Government to consider the

representation independently. It is not the case of the Respondent that this obligation had been discharged by the Government. Therefore, in view

of the ratio in Dr. Rahamatullah Vs. State of Bihar and Another, it should beheld that the Government had failed to consider the representation

made by the Petitioner independently.

It may be that in some cases when the representation is forwarded by the Advisory Board along with its opinion, there is bound to be some

overlapping. Even so, on the basis of the law enunciated by the Supreme Court, the detaining authority is bound to consider the representation

independently at two stages and the stage of confirmation cannot be mixed with the earlier stage where the law contemplates independent

application of mind by the detaining authority, sans the opinion of the Advisory Board.

In Writ Petition No. 15802 of 1989 V.M. Mohammed Iqbal v. Shri. Mahendra Prasad and the Union of India by order dated 30-4-1990, a

Division Bench of this Court after referring to the judgment of another Division Bench of this Court in Geetha v. State of Tamil Nadu 1989 L.W.

(Crl.) 368 and the decision of the Division Bench of the Karnataka High Court in writ petition No. 119 of 1989 (referred to supra) and after taking

note of the law enunciated by the Supreme Court in Kubic Darusz v. Union of India and Ors. 1990 S.C.C. (Crl.) 227 : AIR 1990 S.C. 605 held

as follows:

The learned Standing Counsel appearing for the Respondents stated that what was averred by the Petitioner in his affidavit in this regard was not

true and that on the other hand, the representation sent by him to the Advisory Board was considered by the Government, which amounted to

consideration of the representation sent to the Advisory Board. We do not find any force in this argument of the learned Standing Counsel. The

representation was not at all considered by the second Respondent. There is clear and categorical admission in the reply affidavit of the first

Respondent that the representation was considered only by the Advisory Board and that the detaining authority considered only the opinion of the

Advisory Board, and not the representation.

The fax message placed before us by Mr. T. Srinivasamoorthi shows that the representation of the detenu dated 24-3-1991 addressed to the

Advisory Board was considered by the Central Government on the basis of the Advisory Board report and on considering the representation and

the documents available in the record, the decision was taken and confirmation of the detention was made by the Central Government Though the

word ''independent'' has been used in the fax message, it is apparent that the detaining authority had considered the representation of the detenu

only for the confirmation of the order of detention based on the opinion of the Advisory Board and not independently without being influenced by

the opinion offered by the Advisory Board, at the earliest stage.

We are satisfied that the impugned order of detention cannot be allowed to survive any longer. The impugned order of detention is quashed.

The Petitioner is directed to be set at liberty forthwith unless his detention is required in connection with any other case. This writ petition is

allowed.