2020 (3) TMI 1300 - HC - Indian Laws

Whether the Detaining Authority was justified in deferring the consideration of the representation till the receipt of the opinion of the Central Advisory Board? - Whether the Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board? - HELD THAT - From the judgment in ANKIT ASHOK JALAN VERSUS UNION OF IDNIA AND ORS. 2020 (3) TMI 248 - SUPREME COURT it is evident that the Apex Court held that the principle laid down by the Apex Court in paragraph 16 of the decision in KM ABDULLA KUNHI AND ABDUL KHADER VERSUS UNION OF INDIA 1991 (1) TMI 244 - SUPREME COURT virtually to the effect that the appropriate Government should wait till the opinion of the Central Advisory Board is received, has to be understood in the light of the subsequent decision rendered by another Constitution Bench of the Apex Court in KAMLESHKUMAR ISHWARDAS PATEL VERSUS UOI. 1995 (4) TMI 283 - SUPREME COURT . Thus, it is evident that the Apex Court has laid down the law that despite the pendency of the case of the detenu before the Advisory Board, the Detaining Authority receiving a representation is bound to consider that representation independently and to pass orders thereon, within a reasonable time, without waiting for the report of the Advisory Board. Thus, in the light of the decision of the Apex Court in Ankit Ashok Jalan s case the position is that the Detaining Authority ought not to have waited for the report of the Advisory Board and it ought to have considered Ext.P4 representation independently, within a reasonable time. Whether the time taken by the Detaining Authority from 27-11-2019 till 14-1-2020 could be characterised as undue and avoidable delay violating the constitutional rights of the detenues? - HELD THAT - Due to complete inaction on the part of the Detaining Authority on the representation received pending consideration of the case of the detenues before the Central Advisory Board, it can only be held that the constitutional rights of the detenues were violated. In such circumstances, it was held that the continued detention of the detenues in terms of the detention order would be illegal, invalid and unconstitutional. The same situation is obtained in this case. In the light of the indisputable facts obtained from the counter affidavits filed in this case, it can be seen that pendency of the case of the detenu before the Advisory Board was the reason for the Detaining Authority to withhold consideration of the representation. Once the Advisory Board s opinion was obtained the Detaining Authority considered the representation and then rejected it and in between there occurred a delay of more than 60 days in consideration of the representation. It is to be noted that in Ankit Ashok Jalan s case the delay occurred in such consideration was only 47 days. Nonetheless, after laying down the law, as mentioned hereinbefore, the Apex Court allowed the writ petition, held the continued detention of the detenues concerned in terms of the detention orders challenged before the Apex Court, to be illegal, invalid and unconstitutional and thereupon quashed the detention orders. The constitutional right of the detenu was violated and therefore, continued detention of the detenu and order of confirmation would be illegal, invalid and unconstitutional - petition allowed.

Summary

Issues Involved:
1. Validity of the Detention Order under COFEPOSA Act.
2. Delay in Consideration of Representation by the Detaining Authority.
3. Violation of Constitutional Rights under Article 22(5) of the Constitution of India.

Detailed Analysis:

1. Validity of the Detention Order under COFEPOSA Act:
The habeas corpus writ petition was filed to challenge the detention of Prakash Thampi under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The detention order aimed to prevent him from smuggling goods and engaging in related activities. The grounds for detention were outlined in Ext.P2, and the order was executed on 11-10-2019. The case was referred to the COFEPOSA Advisory Board for its opinion, and the Board confirmed the detention, leading to the Central Government confirming the order under Section 8(f) of the COFEPOSA Act.

2. Delay in Consideration of Representation by the Detaining Authority:
The petitioner contended that the Detaining Authority took an undue delay of 68 days to consider Ext.P4 representation, which was filed on 1-11-2019 and rejected on 8-1-2020. The petitioner argued that the Detaining Authority should have considered the representation independently and without waiting for the Advisory Board's opinion. This contention was supported by the Supreme Court's decision in Ankit Ashok Jalan v. Union of India, which held that the Detaining Authority must consider representations within a reasonable time, even if the case is pending before the Advisory Board.

3. Violation of Constitutional Rights under Article 22(5) of the Constitution of India:
Article 22(5) of the Constitution mandates that a detained person must be given the earliest opportunity to make a representation against the detention order, and this representation must be considered expeditiously. The Supreme Court in Rama Dhondu Borade v. V.K. Saraf emphasized that any delay in considering the representation would violate the constitutional rights of the detenu. In the present case, the delay of more than 60 days in considering the representation was deemed undue and avoidable, resulting in a violation of the detenu's constitutional rights.

Conclusion:
The High Court held that the delay in considering the representation violated the constitutional rights of the detenu, making the continued detention illegal, invalid, and unconstitutional. Consequently, the detention order (Ext.P1) and the confirmation order (Ext.P7) were quashed. The detenu, Prakash Thampi, was ordered to be set at liberty forthwith unless required in connection with any other case. The court emphasized that the decision in Ankit Ashok Jalan’s case was binding and applicable to the present case, necessitating the quashing of the detention orders.