2004 (1) TMI 389 - SC - Companies Law

Whether representation made by the detenu or on his behalf is required to be considered by all the authorities? Held that - The 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.

Summary

Issues Involved:
1. Whether the representation made by the detenu or on his behalf is required to be considered by all the authorities.

Issue-wise Detailed Analysis:

1. Requirement for Consideration of Representation by All Authorities:
The primary issue in this case is whether the representation made by the detenu or on his behalf must be considered by all the authorities. The detenu was arrested for undervaluing imported Floppy Disk Drives, leading to customs duty evasion. He was detained under section 3(1) of the COFEPOSA Act. The detenu made three representations: the first to the Joint Secretary, COFEPOSA, the second to the Joint Secretary to the Government of India, and the third to the Secretary to the Government of India. The High Court observed that the first and second representations were not considered by the Central Government independently, and the third representation was not clearly indicated to have been independently considered by the detaining authority.

2. High Court's Judgment:
The High Court, relying on precedents, held that all representations made to either the Detaining Authority, the Central Government, and the Advisory Board must be independently considered by each authority. The failure to do so would render the detention order otiose and necessitate the release of the detenu.

3. Appellant's Argument:
The appellant argued that the High Court erred in its view. It was contended that representations made to the Joint Secretary (detaining authority) should be considered by him and not the Central Government, and the representation made to the Central Government should be considered independently of those made to the detaining authority.

4. Respondent's Argument:
The respondent contended that different representations might contain different grounds, and effective disposal requires that all authorities consider all representations. The High Court's judgment was in line with the precedent set by the Supreme Court in Kamleshkumar Ishwardas Patel's case.

5. Supreme Court's Analysis:
The Supreme Court analyzed the statutory and constitutional provisions, particularly Article 22(5) of the Constitution and Section 11 of the COFEPOSA Act. The Court emphasized that the right to make a representation is a fundamental right, and each authority must consider the representation independently. However, the Court clarified that it does not mean that a representation made to one authority must be considered by all authorities. Such a procedure would cause unnecessary delays and run counter to the constitutional scheme.

6. Precedents Considered:
The Court examined precedents such as Kubic Darusz v. Union of India, Smt. Gracy v. State of Kerala, and Kamleshkumar Ishwardas Patel v. Union of India. These cases established that the detenu has a right to have their representation considered by the authority to whom it is made. However, they do not mandate that all authorities must consider every representation made to any one of them.

7. Conclusion:
The Supreme Court concluded that the High Court's judgment could not be sustained as it misinterpreted the requirement for consideration of representations. The impugned judgment was set aside, but the Court refrained from remitting the matter back to the High Court due to the expiration of the detention period. The appeal was disposed of with no costs.

Final Judgment:
The Supreme Court set aside the High Court's judgment, clarifying that each authority must independently consider representations made to it, but not those made to other authorities. The appeal was disposed of without remitting the matter back to the High Court, considering the detention period had expired.