1979 (5) TMI 146 - SC - FEMA

Validity of an order of detention challenged - Held that - It is amply clear from the record that the representation of the petitioner was not considered by the 1st respondent before he confirmed the order of detention. The 1st respondent thus failed to comply with the constitutional obligation imposed upon him under clause (5) of E Art. 22. The subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation. The detention of the petitioner must, therefore, be held to be illegal and void. These were the reasons for which we made our order dated 11th April, 1979 quashing and setting aside the detention of the petitioner and directing that the petitioner be set at liberty forthwith. Appeal allowed.

Summary

Issues:
Violation of constitutional safeguards under Article 22(5) in the detention order.

Detailed Analysis:
The judgment pertains to a petition challenging the validity of a detention order dated 31st November, 1978, issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The petitioner contended that the detention order was confirmed without considering his representation, thus violating Article 22(5) of the Constitution. The court emphasized that preventive detention must adhere to constitutional safeguards, including providing the detenu with the earliest opportunity to make a representation against the order. The detaining authority is obligated to consider the representation before confirming detention, independent of the Advisory Board's opinion. In this case, the detaining authority failed to consider the petitioner's representation before confirming the detention, rendering the detention unlawful (Para 1-2).

The court referenced previous judgments to highlight that the detaining authority must consider the detenu's representation promptly and independently, without waiting for the Advisory Board's opinion. The detenu should be afforded the earliest opportunity to make a representation, which must be considered expeditiously to uphold the purpose and meaning of the constitutional safeguard. The detaining authority is mandated to evaluate the representation and decide on detention based on all relevant factors. Both the Advisory Board's opinion and the detenu's representation are crucial aspects to be independently considered by the detaining authority (Para 3-4).

In the present case, the detaining authority confirmed the detention without considering the petitioner's representation. The court noted that the representation was forwarded to the Advisory Board before being considered by the detaining authority. It was only after the detention was confirmed that the representation was evaluated and rejected, which did not rectify the initial violation of failing to consider the representation before confirming detention. Consequently, the court held the detention order to be illegal and void, leading to the quashing of the detention and the petitioner's immediate release (Para 5).

In conclusion, the court allowed the writ petition, emphasizing the importance of complying with constitutional safeguards, particularly in cases of preventive detention. The judgment underscores the detaining authority's obligation to promptly consider the detenu's representation before confirming detention, ensuring a fair and lawful process in preventive detention cases (Para 6).