2023 (4) TMI 651 - SC - Indian Laws

Detention order - Smuggling - Gold - incongruity between the Pankaj Kumar case 1969 (5) TMI 56 - SUPREME COURT and the Abdullah Kunhi Case 1991 (1) TMI 244 - SUPREME COURT and if such a friction exists should the point of law be referred to a Larger Bench - friction between the two Constitutional judgments of this Court - illegible documents written in Chinese submitted to the appellant - grounds enough for quashing the impugned detention order or not? Whether there exists an incongruity between the Pankaj Kumar case and the Abdullah Kunhi Case and if such a friction exists should the point of law be referred to a Larger Bench? - HELD THAT - The detention order under both laws can be passed either by the Government or by the specially empowered officer. However under Section 3 of the Preventive Detention Act the specially empowered officer within 12 days of the detention has to seek for an approval from the Government for continued detention and only if the Government approves the same can the detention be continued. This process of seeking an approval from the Government is essentially a transfer of power from the empowered officer to the Government making the Government the detaining authority after the initial lapse of 12 days. In the COFEPOSA Act however no such approval is required from the Government and hence the detaining authority and the Government remain to be two separate bodies independent of each other. In the COFEPOSA Act since the detaining authority is separate from the Government both the Pankaj Kumar Judgment 1969 (5) TMI 56 - SUPREME COURT and the Abdullah Kunhi Judgment 1991 (1) TMI 244 - SUPREME COURT would apply but in different spheres - it can be clearly seen that any apparent conflict as contended by the appellant stands resolved and both sets of judgments operate symbiotically and harmoniously within the said Act without there existing any tension between them. The mandate to wait for the decision of the Advisory Board as per the Pankaj Kumar Judgment 1969 (5) TMI 56 - SUPREME COURT would apply to the central Government however the detaining authority being independent of the Government can pass its decision without the decision of he Advisory Board. Since no conflict exists the need to refer the point of law to a Larger Bench also ceases and hence we hold issue No.1 in favour of the Respondents. If there exists no friction between the two Constitutional judgments of this Court can the impugned detention order be quashed on grounds of the 60-day delay in consideration of the representation made by the appellant? - HELD THAT - In the present case at hand the appellant-detenue availing his rights sent a representation to both the specially empowered officer and the Government. The detaining authority in the present case decided on the representation expeditiously and without waiting for the decision of the Advisory Board - the detaining authority and the Government have worked precisely within the procedure established by law and hence the impugned detention order is not liable to be struck down on this ground - this Issue is held in favour of the respondent. Whether the illegible documents written in Chinese submitted to the appellant herein are grounds enough for quashing the impugned detention order? - HELD THAT - In cases where illegible documents have been supplied to the detenue a grave prejudice is caused to the detenue in availing his right to send a representation to the relevant authorities because the detenue while submitting his representation does not have clarity on the grounds of his or her detention. In such a circumstance the relief under Article 22(5) of the Constitution of India and the relevant statutory provisions allowing for submitting a representation are vitiated since no man can defend himself against an unknown threat. The principle of parity is squarely applicable in this case since another co-detenue with identical circumstances has already been granted the relief of quashing the detention order against him. In the case of Gian Chand v. Union Of India Anr this Court while deciding on a quashing of a detention order categorically held that in cases where a similarly placed co-detenue has already been granted the relief of a quashing of the detention order the principle of parity must apply and the same relief should be extended to other similarly placed detenues - issue decided in favour of the appellant. The preventive detention laws in India are a colonial legacy and as such are extremely powerful laws that have the ability to confer arbitrary power to the state. In such a circumstance where there is a possibility of an unfettered discretion of power by the Government this Court must analyze cases arising from such laws with extreme caution and excruciating detail to ensure that there are checks and balances on the power of the Government - the impugned detention order is liable to be set aside - appeal allowed.

Summary

Issues Involved:
1. Incongruity between the Pankaj Kumar case and the Abdullah Kunhi case and referral to a Larger Bench.
2. Quashing of the detention order on grounds of a 60-day delay in consideration of the representation.
3. Illegible documents in Chinese submitted to the appellant as grounds for quashing the detention order.

Summary:

Issue I: Incongruity between the Pankaj Kumar case and the Abdullah Kunhi case and referral to a Larger Bench
The Court examined whether there exists an incongruity between the Pankaj Kumar case and the Abdullah Kunhi case regarding the consideration of a detenue's representation. It was noted that under the Preventive Detention Act, the detaining authority and the Government are essentially the same, whereas under the COFEPOSA Act, they are separate entities. The Pankaj Kumar judgment mandates that the Government must act independently of the Advisory Board, but this applies only when the Government is the detaining authority. In the COFEPOSA Act, the detaining authority can decide without waiting for the Advisory Board, while the Government must wait for the Advisory Board's decision. The Court concluded that there is no friction between the judgments, and hence, no need to refer the point of law to a Larger Bench.

Issue II: Quashing of the detention order on grounds of a 60-day delay in consideration of the representation
The appellant contended that the 60-day delay by the Government in considering his representation was grounds for quashing the detention order. The Court found that the detaining authority had acted expeditiously and independently of the Advisory Board, in compliance with the Pankaj Kumar judgment. The Government's decision to wait for the Advisory Board's advice was in line with the Abdullah Kunhi case. Consequently, the Court held that the detention order could not be quashed on this ground.

Issue III: Illegible documents in Chinese submitted to the appellant as grounds for quashing the detention order
The appellant argued that the documents provided to him were illegible and in Chinese, which impeded his ability to make a representation. The Court emphasized that providing clear and comprehensible grounds for detention is crucial for the detenue's right to representation under Article 22(5) of the Constitution. It was noted that a co-detenue had already been granted relief on similar grounds. The Court held that the principle of parity applied and quashed the detention order against the appellant on this basis.

Conclusion:
The Court underscored the importance of procedural compliance in preventive detention cases to safeguard individual liberties. Despite the appellant's release due to the expiry of the detention period, the Court set aside the impugned detention order for clarity on the point of law and allowed the appeal.