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TMI Blog2001 (5) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... m Singapore via Bombay by Air India flight No. AI-111. After clearing immigration formalities, they collected their baggage from the conveyor belt and kept it in one trolley. Two hand bags were kept in another trolley. While detenu Bhagat Ram Bhola was pushing the trolley with two handbags, his son the other detenu was pushing the other trolley on which zipper suitcases were placed and they walked through green channel. As both of them reached the exit gate of the customs arrival hall, both of them were intercepted by a Customs Officer on the basis of prior specific information and they were asked whether they were carrying any dutiable goods or any electronic goods to which both of them replied in negative. They were served with notice under section 102 of the Customs Act, 1962 (Customs Act) informing that their baggage and person would be searched and if they desired such search would be conducted in the presence of a Magistrate or a Gazetted Officer of Customs. There was a denial by them. Their baggage were opened and examined and were found to contain large quantities of dutiable and/or electronic goods. As the detenu could not produce any evidence documentary or otherwise to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o kindly revoke the detention order under section 11 ibid or in the alternate, I may be supplied the above information and documents to enable me to make an effective and purposeful representation before the Hon ble Advisory Board." In other words, the first prayer was for revocation and in case it was not possible, a further request was made to supply some information/ documents in order to enable the detenu to make effective and purposeful representation before the Advisory Board. Representation was considered by the Central Government and was rejected vide order dated 26-6-2000. A copy of the representation was received by home department on 29-6-2000 and as noted above the same was considered and rejected by the detaining authority on the same date. It is submitted that when the representation was forwarded to the Government as requested by the detenu, it has to be seen as to whether there was delay in consideration of the representation by the authority after receipt from the other department. Only if there is delay in disposal of representation after that date, the same becomes fatal and not otherwise. Reliance is placed on Sat Pal v. State of Punjab 1982 (1) SCC 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvisory Board to consider and report on the sufficiency of the cause for detention and the right to have the earliest opportunity of making a representation against the order of detention, preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law. The action of executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct, the failure to conform to which should lead to detention. In case of preventive detention of citizen, article 22(5) enjoins the obligation of the appropriate Government or of the detaining authority to accord the detenu the earliest opportunity to make a representation and to consider that repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade." (p. 1988) ". . . This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention. . . ." (p. 1988) In Vijay Narain Singh v. State of Bihar AIR 1984 SC 1334, Justice Chinnappa Reddy in his concurring majority view said : ". . . I do not agree with the view that those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. It is too perilous a proposition. Our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter in such matters. . . ." (p. 1336) ". . . There are two sentinels, one at either end. The Legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servations have been made which also throw considerable light on the issue. "14. In view of the constitutional and legal position, as noted by us, we find it difficult to agree with the reasoning in the aforesaid observations. In the absence of constitutional or statutory provisions, we are unable to observe that the Advisory Board was under an obligation to forward the whole of the record of its proceedings to the State Government. The State Government while confirming the order of detention has to peruse the report of the Advisory Board along with other record, if any, in its possession, and cannot determine the legality of the procedure adopted by the Advisory Board. Under clause ( f ) of section 8 of the Act, the government is not bound by the report of the Advisory Board and in every case where the Advisory Board reports that there is, in its opinion, sufficient cause for the detention of a person may confirm the detention order. The word may used in this clause does not cast duty upon the appropriate government to necessarily accept the opinion for further detention. However, where the Board reports that there is, in its opinion, no sufficient cause for the detention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of detention under section 11 of the Act, unlike in Rattan Singh s case [1981] 4 SCC 481. There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority, as well as of the right of making a representation to the Central Government for revocation of the order of detention under section 11 of the Act. The representations that he made were duly considered by the State Government and the Central Government. The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technically." (p. 19) Sat Pal s case ( supra ) was also noticed in Kamleshkumar Ishwardas Patel s case ( supra ). It was observed as under : "44. In Sat Pal v. State of Punjab, the order of detention was made by the State Government of Punjab under section 3 of the COFEPOSA Act and the detenu had made two representations one was addres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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