1980 (2) TMI 257 - SC - FEMA

Whether the representation requesting the Central Government to order the revocation under S. 11 of the Act was not forwarded by the detaining authority to the Central Government and as such the detention is illegal? Held that - It is clear that a representation properly addressed by the detenu to the Central Government was not forwarded to the Central Government and as such no action had been taken up to date. As to what will be the consequence if a properly addressed petition is not forwarded to the Central Government and as such left unattended for a period of nearly four months. We feel that in such circumstances the detention cannot be justified as being according to the procedure. In the circumstances we do not feel that we will be justified in sending the representation to the Central Government for disposal at this stage & feel that the continued detention of the detenu cannot be held to be according to procedure. Petition allowed.

Summary

Issues:
1. Non-forwarding of representation requesting revocation of detention order to the Central Government.
2. Validity of detention order in light of non-consideration of representation by the Central Government.
3. Proper addressing of representation to the Central Government.
4. Central Government's power to revoke detention order at any stage.
5. Duty of the Central Government to consider revocation petitions promptly.
6. Consequences of not forwarding a properly addressed petition to the Central Government.

Analysis:
The judgment pertains to a case where the petitioner, brother of a detained individual, challenged the detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu had made representations requesting revocation of the detention order by the Central Government. The key contention was that the detaining authority failed to forward these representations to the Central Government, leading to the non-consideration of the revocation requests. The detaining authority argued that the detention order should not be vitiated solely because the Central Government did not consider the representations.

The detenu's representation clearly sought the revocation of the detention order by the Central Government. The detaining authority did not dispute that the representation was properly addressed to the Central Government through the Additional Secretary, Ministry of Finance. The Supreme Court emphasized that the Central Government has the power to revoke a detention order at any stage, and the detenu's right to make such representations should be respected. It was highlighted that the Central Government must promptly consider any petition for revocation and either revoke the order or dismiss the petition.

The Court found that the detenu's properly addressed representation was not forwarded to the Central Government and remained unattended for nearly four months. In such circumstances, the Court held that the detention could not be justified as per the required procedure. Consequently, the Court ruled in favor of the petitioner, ordering the detenu's release as the continued detention was deemed to be procedurally flawed. The judgment underscored the importance of adherence to procedural requirements in matters of detention and the duty of the Central Government to promptly consider revocation petitions to uphold the rights of the detenu.