9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (3) TMI 248 - SC - Indian LawsDetention of goods - Smuggling - Detention Orders passed with a view to prevent the detenues from smuggling goods, abetting the smuggling of goods, and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods - Whether the Detaining Authority was justified in deferring the consideration of the representation till the receipt of the opinion of the Central Advisory Board? - HELD THAT - By virtue of Section 21 of 1897 Act, the authority making an order of detention would be entitled to revoke that order by rescinding it and that conferment of power under Section 11 of the COFEPOSA Act was done without affecting in any manner and expressly preserving the power under Section 21 of 1897 Act of the original authority making the order - It was thus held that the constitutional obligation of a specially empowered officer entitled to pass an order of detention would only be to communicate expeditiously to the detenue the grounds of detention and also to afford him opportunity to make representation to the appropriate Governments against his detention. With the judgment of the Constitution Bench of this Court in KAMLESHKUMAR ISHWARDAS PATEL VERSUS UOI 1995 (4) TMI 283 - SUPREME COURT , the law on the first issue is well settled that where the detention order is made inter alia under Section 3 of the COFEPOSA Act by an officer specially empowered for that purpose either by the Central Government or the State Government, the person detained has a right to make a representation to the said officer; and the said officer is obliged to consider the said representation; and the failure on his part to do so would result in denial of the right conferred on the person detained to make a representation. Further, such right of the detenue has been taken to be in addition to the right to make the representation to the State Government and the Central Government. It must be stated that para 12 of the grounds of detention in the instant case, as quoted hereinabove, is in tune with the law so declared by this Court. The law on the first issue is well settled that where the detention order is made inter alia under Section 3 of the COFEPOSA Act by an officer specially empowered for that purpose either by the Central Government or the State Government, the person detained has a right to make a representation to the said officer; and the said officer is obliged to consider the said representation; and the failure on his part to do so would result in denial of the right conferred on the person detained to make a representation. Further, such right of the detenue has been taken to be in addition to the right to make the representation to the State Government and the Central Government. It must be stated that para 12 of the grounds of detention in the instant case, is in tune with the law so declared by this Court. Whether the Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board? - HELD THAT - If the representation is received before the matter is referred to the Advisory Board, the Detaining Authority ought to consider such representation; and if the representation is made after the matter is referred to the Advisory Board, the Detaining Authority would first consider it and then send the representation to the Advisory Board - In that case the detention orders were passed by the State Government under Section 3(1)(iv) of the COFEPOSA Act. The representations were made by the detenues on 17.04.1989 which, however, could not be considered immediately as certain information and comments were required. In the meantime, the case was referred to the Advisory Board which in its report dated 20.04.1989 found that there was sufficient cause for the detention. On 27.04.1989, the detention was confirmed by the State Government. Thus, failure on part of the appropriate Government to forward the representation to the Advisory Board and rejection thereof while the proceedings were pending before the Advisory Board, were the points on which the relief was granted to the detenue. In terms of Section 8, the report of the Advisory Board is meant only for the consumption of the appropriate Government and apart from the operative part of the report which is to be specified in a separate paragraph as per sub-section (c), the mandate in terms of sub-section (e) is to keep the report of the Advisory Board completely confidential. Thus, a specially empowered officer who may have passed the order of detention, by statutory intent is not to be privy to the report nor does the statute contemplate any role for such specially empowered officer at the stage of consideration of the opinion of the Advisory Board. The report of the Advisory Board may provide some qualitative inputs for the appropriate Government but none to the specially empowered officer who acted as the Detaining Authority. Once the detention order has been made by any of the authorities competent to detain in terms of Section 3 (1) of the COFEPOSA Act, the representation to seek revocation of the detention order can be considered and decided by the Detaining Authority dehors the decision of the Advisory Board and the acceptance of recommendation by the appropriate Government. The consideration for revocation of a detention order is limited to examining whether the order conforms with the provisions of law whereas the recommendation of the Advisory Board is on the sufficiency of material for detention, which alone is either confirmed or not accepted by the appropriate Government. Petition dismissed.
Issues Involved:
1. Whether the Detaining Authority was justified in deferring the consideration of the representation till the receipt of the opinion of the Central Advisory Board. 2. Whether the Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board. 3. If the answer to the second question is yes, whether the time taken by the Detaining Authority from 27.11.2019 till 14.01.2020 could be characterised as undue and avoidable delay violating the constitutional rights of the detenues. Detailed Analysis: Issue 1: Whether the Detaining Authority was justified in deferring the consideration of the representation till the receipt of the opinion of the Central Advisory Board. The court examined various precedents to determine if the Detaining Authority could defer the consideration of the representation until receiving the report from the Central Advisory Board. It was noted that the law, as established in multiple judgments, required the Detaining Authority to consider the representation independently and expeditiously, irrespective of the Advisory Board's proceedings. The court highlighted that the role of the Detaining Authority and the Advisory Board is qualitatively different, with the former assessing the legality of the detention order and the latter evaluating the sufficiency of the cause for detention. Issue 2: Whether the Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board. The court concluded that the Detaining Authority must consider the representation independently and without waiting for the Advisory Board's report. This conclusion was based on the principle that the consideration of the representation by the Detaining Authority is a distinct process from the Advisory Board's review. The court cited the Constitution Bench judgment in Kamleshkumar Ishwardas Patel v. Union of India, which clarified that a detenu has the right to make a representation to the Detaining Authority, and the failure to consider such representation independently would violate the detenu's constitutional rights. Issue 3: If the answer to the second question is yes, whether the time taken by the Detaining Authority from 27.11.2019 till 14.01.2020 could be characterised as undue and avoidable delay violating the constitutional rights of the detenues. The court found that the delay from 27.11.2019 to 14.01.2020 in considering the representation was undue and avoidable. The Detaining Authority's inaction during this period, while waiting for the Advisory Board's report, was deemed a violation of the detenues' constitutional rights. The court emphasized that the Detaining Authority should have acted on the representation without waiting for the Advisory Board's opinion, as mandated by the Constitution and established legal precedents. Conclusion: The court held that the Detaining Authority's failure to consider the representation independently and the undue delay in addressing the representation violated the constitutional rights of the detenues. Consequently, the court quashed the Detention Orders and directed the immediate release of the detenues unless they were required in connection with any other proceedings or crimes.
|
