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TMI Blog2000 (12) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... ng obligation to consider it before confirming the order of detention. Placing its reliance upon a subsequent judgement of this Court in Jasbir Singh v. Lt.Governor, Delhi & Anr.[1999 (4) SCC 228] and distinguishing the facts of the present case, the High Court dismissed the habeas corpus petition filed before it vide the judgment impugned in this appeal. To appreciate the rival contentions of the learned counsel appearing for the parties, it is necessary to refer to some of the admitted facts in this case, which are: On receipt of an intelligence report that a passenger wearing dark grey coloured suit travelling from Singapore was carrying with him electronic goods which he shall attempt to get cleared without payment of duty, the officer of the Customs Headquarters, Preventive, Bangalore kept a watch on the passengers of Flight No.IC 958 which landed at 0930 hrs. on 3.12.1999, and noticed the detenu resembling the descriptions already received. He checked his baggages and completed formalities with Customs authorities. His luggage comprised of two suit-cases, one small hand suit-case, one green coloured zipper handbag and one plastic cover. He had, in his disembarkation Card, dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication seeking permission to place on record the additional facts. The prayer was allowed. The appellant stated that the detenue had submitted to the Senior Superintendent of Central Prison, Bangalore on 22nd March, 2000 six copies of representation addressed to the Advisory Board. Upon inquiry he was informed that the representation addressed to the Advisory Board was forwarded on 24th March, 2000. The detenue also appeared before the Advisory Board on 10.4.2000. After receipt of the report of the Advisory Board the Government of Karnataka vide order dated 18.4.2000 confirmed the order of detention. As the fact of representation filed by the detenu to the Chairman of the Advisory Board was not within the knowledge of the respondents 1 and 2, they did not consider the aforesaid representation before confirming the order of detention. It is true that the courts of law do not see the detention of a person without trial with favour but it is equally true that our constitutional scheme itself contemplates the preventive detention, however, subject to rigours of law relating to such detention and the guarantees enshrined in part III of the Constitution. One of the rights conferred upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and not of free agent. Article 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible. Article 22(5) speaks of the detenu's 'representation against the order', and imposes the obligation on the detaining authority. Thus, any representation of the detenu against the order of the detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses (4) and (5) of Article 22 even though express mention in Article 22(5) is only of the detaining authority. Moreover, the order of detention is by the detaining authority and so also the order of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration by the Advisory Board. The Central Government's stand is that the detenu's representation being addressed to the Advisory Board to which it was submitted during pendency of the reference before the Advisory Board, there was no obligation on the Central Government also to consider the same independently since the representation was not addressed to the Central Government." and made observations as noted hereinabove. In the instant case the respondent No.1 in his affidavit has categorically stated: "I respectfully submit that the Advisory Board has not forwarded the representation filed by the detenu to the State Government and consequently I did not consider the said representation filed by the detenu before the Advisory Board. I respectfully submit that the Advisory Board has forwarded its report along with the covering letter dt.12.4.2000, to the State Government. However, the respondents 1 and 2 did not receive any representation given to the Advisory Board in as much as the Advisory Board has not sent the copy of the representation of the detenue, to the State Government. Therefore, the State Government could not consider the said representation. As t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned." Clause (f) of the said Section reads: "In every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith." A perusal of the aforesaid Section and other relevant provisions of the Act makes it abundantly clear that no duty is cast upon the Advisory Board to furnish the whole of the record and the representation addressed to it only to the Government along with its repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 the person concerned, the appropriate government has no option but to revoke the detention order and cause the person to be released forthwith. When the report of the Advisory Board opining that there exists sufficient cause for detention of a person is not binding upon the appropriate government, there is no infirmity in its order passed without consideration of the proceedings of the Advisory Board. The obligation of the appropriate government is restricted to the extent of examining the report conveying the opinion of the Board regarding further detention of the detenu. Similarly the observations made by this Court in Harbans Lal v. M.L. Wadhawan & Ors. [1987 (1) SCC 151 to the effect that the non submission of the entire record being the requirement of law, cannot be held to be good law on the point. In Jasbir Singh's case (supra) similar argument based upon Gracy's c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was illegal and unconstitutional. The submission is based upon wrong assumption both on facts as well as on law. Reliance was placed on the words "since the Advisory Board has not sent the records to the State Government" appearing in the affidavit, to contend that the State Government had passed the order of confirmation without consideration of the record. The appellant did not notice the earlier part of that sentence in the context of which those words were used. This part reads: "Thus, as the respondents 1 and 2 did not have knowledge about the representations filed by the detenue, the said representations were not considered by the respondents 1 and 2." The emphasis of submission in the objections was with respect to the non submission of the record pertaining to the representation filed by the detenu only upon which the appellant had built his case. The failure of the respondent to comply with the court directions dated 15.11.2000 was also made the basis of such a contention. In our order dated 29th November, 2000, we felt that the Principal Secretary to the Government of Karnataka had not complied with our directions, directing him to intimate us as to & ..... X X X X Extracts X X X X X X X X Extracts X X X X
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