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TMI Blog2016 (2) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... detention. Consequently, the order of confirmation as well is rendered non est by this vitiation. In view of the determination made on the above aspect of the debate, we do not consider it necessary to dilate on the other pleas raised on behalf of the detenu. In the result, the appeal succeeds. The impugned judgment and order is set aside. The orders of detention as well as the order of confirmation are hereby annulled. The detenu is directed to be set at liberty, if not wanted in any other case. - Criminal Apeal No. 829 OF 2015 - - - Dated:- 3-6-2015 - MR. PRAFULLA C. PANT AND MR. AMITAVA ROY, JJ For the Petitioner : Mr. Gopal Subramaniam, Sr. Adv., Mr. Pradeep Jain, Adv., Mr. A. Samad, Adv., Ms. Aakriti Mathur, Adv., Ms. Manjula Gupta, AOR, Mr. Rahul Raheja, Adv. For the Respondent : Ms. Pinky Anand, ASG, Mr. Tara Chandra Sharma, Adv., Ms. Rekha Pandey, Adv. And Mr. B. Krishna Prasad, AOR ORDER Leave granted. In challenge is the judgment and order dated 04.03.2015 rendered by the High Court of Delhi in Writ Petition (Criminal) No.1529 of 2014 sustaining the orders of detention dated 27.05.2014 and 13.06.2014 by the appropriate authority passed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncellation passed by the High Court. Pursuant to this order, the detenu surrendered on 11.06.2014 and was taken into custody. It is a matter of record that the orders of detention referred to hereinabove was served on him on 16.06.2014. As the pleaded facts and the documents on record would reveal, by then, the detaining authority on 27.05.2014 had passed an order under Section 3(1) of the Act for his detention with a view to prevent him from smuggling goods and effecting transportation and concealment of the smuggled goods in future. In a separate communication dated 27.05.2014 of the Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau (COFEPOSA Unit), signed by the Joint Secretary to the Government and addressed to the appellant, the materials taken note of in passing the said order were recorded. To reiterate, however, none of these two communications were served on the detenu on that date or immediately thereafter. It was on 12.06.2014, that a letter was addressed by the Additional Director General, Directorate of Revenue Intelligence, Kolkata senior unit to the Joint Secretary COFEPOSA, Central Economic Intelligence Burea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended on behalf of the respondents that after the rejection of the detnue's representation, the same was forwarded to the Advisory Board before which the proceedings were still pending. Mr. Gopal Subramaniam, learned senior counsel for the appellant, has emphatically urged that as the detenu's representation dated 08.07.2014 had remained pending when the matter was remitted to the Advisory Board, it was incumbent on the Central Government to forward the same along with all relevant records as needed before it (Advisory Board) for its effective consideration. According to the learned senior counsel, this omission on the part of the Central Government, per se, vitiates the order of detention and as such the same is liable to be declared constitutionally impermissible. To endorse this view, Mr. Subramaniam has placed reliance on two Constitution Bench decisions of this Court in Jayanarayan Sukul vs. State of West Bengal [(1970) 1 SCC 219] and K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India Ors, State of Karnataka Ors. [(1991) 1 SCC 476]. It is noticeable that the learned senior counsel for the appellant did raise two other contentions to oppugn the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispose of this appeal. We, thus, propose to adopt this course. To start with the dates setting out the intervening events are not in dispute. To repeat, the detenu had submitted his representation on 08.07.2014 and the same was pending consideration on merit before the Central Government on 18.07.2014, the date on which the matter was remitted to the Advisory Board under the Act. The representation was rejected on 21.07.2014 when the matter was pending before the Advisory Board. The Advisory Board concluded its proceedings and gave a finding sustaining the order of detention on 27.08.2014. Unmistakably, thus, the detenu's representation which was pending at the time of remittance of the matter to the Advisory Board was not forwarded to it and instead was rejected by the Central Government during the pendency of the proceedings before the Advisory Board. In Jayanarayan Sukul (supra), this Court, while dwelling on the principles bearing on the process of consideration of a representation of the detenu in preventive detention cases, not only underlined that there ought not to be any undue delay in the matter, if assumed that though no hard and fast rules could be laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nor it could be said that the government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the Government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The Constitution of the Board shows that it consists of eminent persons who are Judges or person qualified to be Judges of The High Court. It is therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the Government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and d ..... 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