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TMI Blog2020 (3) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... s otherwise than by engaging in transporting or concealing or keeping smuggled goods, in future, it was necessary to make the said Detentions Orders. b) The detenues were served with the Detention Orders, the grounds of detention and the relied upon documents on 02.07.2019. The grounds of detention, in para 12, recited as under:- "You ........... have the right to represent against your detention to the Detaining Authority, to the Central Government as well as to the Advisory Board. If you wish to avail this right, you should send your representation through the Jail Authorities where you are detained, in the manner indicated below: (a) Representation meant for the Detaining Authority should be addressed to the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, B-Wing, Janpath Bhawan, New Delhi-110001. (b) Representation meant for the Central Government should be addressed to the Director General, Central Economic Intelligence Bureau, Government of India, Ministry of Finance, Department of Revenue, 6th Floor, B-Wing, Janpath Bhawan, New Delhi-110001. (c) Representation meant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Detaining Authority vitiated the Detention Orders. The High Court thus quashed the Detention Orders and directed that the detenues be released forthwith. (g) In its Meeting dated 02.08.2019, the Central Advisory Board recorded that since the Detention Orders were quashed, there was no possibility of proceeding further in the matter. (h) The decision of the High Court was challenged in Criminal Appeal No.1746 of 2019 in this Court, which by its Judgment and order dated 22.11.2019 set aside the view taken by the High Court. While allowing the appeal, the detenues were directed to be taken into custody forthwith. The Detaining Authority was thereafter informed by the Jail Superintendent on 27.11.2019 that the detenues were received in custody in pursuance of the decision of this Court. (i) On 02.12.2019 a direction was issued to process the files of the detenues for reference to the Central Advisory Board. After obtaining appropriate approval, the case was referred to the Central Advisory Board on 05.12.2019 stating inter alia:- "Keeping in view the judgment dated 03.06.2015 of the Apex Court delivered in Crl.Appeal No.829 of 2015 arising out of SLP(Crl) No.248 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 02.08.2019, in the facts of the instant case, would not be of any significance. However, in their submission, after the decision of the High Court was set aside by this Court and the detenues were taken back in custody in November, 2019, the nonconsideration of and delay in disposal of said representation was more pronounced and relevant. It was submitted:- (a) A representation against an order of detention can be made to the Detaining Authority where the detention order has been passed by a specially empowered officer of the Central Government as well as to the Central Government and the Central Advisory Board. Para 12 of the grounds of detention, as extracted earlier, was in keeping with this well accepted principle. (b) The representation made to the Detaining Authority had to be considered by the Detaining Authority independently. The Detaining Authority was not right in waiting till the receipt of the report of the Central Advisory Board. (c) The consequential delay on part of the Detaining Authority in considering the representation thus violated the constitutional rights of the detenues. 7. On the other hand, Mr. K.M. Nataraj, learned Additional Solicitor Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dges of this Court, while considering the scope of Section 11 of the COFEPOSA Act and Section 21 of 1897 Act - The General Clauses Act, 1897, made following observations:- "7. ... .... The heading of Section 11 is "Revocation of Detention Orders". Sub-section (1) authorises revocation by two authorities, namely, - (a) if the order has been made by an officer of a State Government, the State Government or the Central Government may revoke the order; and (b) if the order has been made by an officer of the Central Government or by a State Government, revocation is permissible by the Central Government. Sub-section (1) of Section 11 indicates that the power conferred under it in the situations envisaged in Clauses (a) and (b) is exercisable without prejudice to the provisions of Section 21 of the General Clauses Act. That section provides that a power to issue orders includes a power exercisable in the like manner and subject to the like sanction and conditions, if any, to add, to amend, vary or rescind such orders. Under Section 21 of the General Clauses Act, therefore, the authority making an order of detention would be entitled to revoke that order by rescinding it. We agree with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government, solely in exercise of the powers conferred on him under Section 3 by the respective government and an order of detention passed by the State Government or the Central Government as the case may be through an officer who in addition to conferment of powers under Section 3 is also empowered under the Standing Rules framed under the Rules of Business of the government, to act on behalf of the government. (3) Whether by reason of the fact that an order of detention is passed by an officer of the State Government or the Central Government specially empowered to act under Section 3 of the Act, a detenu acquires a constitutional right to have his representation first considered by the very officer issuing the detention order before making a representation to the State Government and the Central Government." While considering the scheme of the COFEPOSA Act, including the ambit of Section 11, it was observed:- "19. We may now examine the scheme of the Act and have a closer look at the provisions set out above to find out whether the Act provides for a differentiation being made between detention orders made by the government and those made by specially empow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment and the Central Government provides that notwithstanding that an order of detention had been made by an officer of a State Government, the concerned State Government as well as the Central Government are entitled to revoke or modify the order of detention. Similarly, as per clause (b) notwithstanding that an order of detention has been made by an officer of the Central Government or by a State Government, the Central Government has been empowered to revoke or modify an order of detention. The section does not confer any power of revocation on an officer of the Central or State Government nor does it empower the Central or State Government to delegate the power of revocation to any of its officers. We may further add that even though Section 11 specifies that the powers of revocation conferred on the Central Government/State Government are without prejudice to the provisions of Section 21 of the General clauses Act, this reservation will not entitle a specially empowered officer to revoke an order of detention passed by him because the order of the specially empowered officer acquires "deemed approval" of the State or Central Government, as the case may be, automatically a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity, as envisaged under Article 22(5) and not to the officer making the order of detention in order to provide the detenu an opportunity to make a further representation to the State Government and thereafter to the Central Government if the need arises for doing so. Though by reason of Section 3(1) a specially empowered officer is entitled to pass an order of detention, his constitutional obligation is only to communicate expeditiously to the detenu the grounds of detention and also afford him opportunity to make representation to the appropriate governments against his detention. The only further duty to be performed thereafter is to place the representation made by the detenu before the concerned officer or the Minister empowered under the Rules of Business of the government to deal with such representation if the detenu addresses his representation to the officer himself." 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 agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated thereunder. Sub-section (2) of that section provides that when any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. It is evident from this provision that whenever a detention order is made by the State Government or its officer specially empowered for that purpose an obligation is cast on the State Government to forward a report to the Central Government in respect of that order within ten days. The purpose of this provision is clearly to enable the Central Government to keep an eye on the exercise of power under Section 3(1) by the State Government or its officer. Then comes subsection (3) which reads as under: 3. (3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without prejudice to Section 21 of the General Clauses Act which lays down that where by any Central Act a power to issue orders is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to rescind any order so issued. Plainly the authority which has passed the order under any Central Act is empowered by this provision to rescind the order in like manner. This provision when read in the context of Section 11 of the Act makes it clear that the power to rescind conferred on the authority making the detention order by Section 21 of the General Clauses Act is saved and is not taken away. Under Section 11 an officer of the State Government or that of the Central Government specially empowered under Section 3(1) of the Act to make a detention order is not conferred the power to revoke it; that power for those officers has to be traced to Section 21 of the General Clauses Act. Therefore, where an officer of the State Government or the Central Government has passed any detention order and on receipt of a representation he is convinced that the detention order needs to be revoked he can do so by virtue of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision has the same force and sanctity as any other provision relating to fundamental rights. (See: State of Bombay v. Atma Ram Shridhar Vaidya 1951 SCR 167 = AIR 1951 SC 157.) Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law laid down in Sushila Mafatlal Shah (1988) 4 SCC 490 and observed:- "30. The decision in Sushila Mafatlal Shah (1988) 4 SCC 490 proceeds on two premises: (i) Article 22(5) does not confer a right to make a representation to the officer specially empowered to make the order; and (ii) under the provisions of the COFEPOSA Act when the order of detention is made by the officer specially empowered to do so, the detaining authority is the appropriate Government, namely, the Government which has empowered the officer to make the order, since such order acquires "deemed approval" by the Government from the time of its issue. 31. With due respect, we find it difficult to agree with both the premises. Construing the provisions of Article 22(5) we have explained that the right of the person detained to make a representation against the order of detention comprehends the right to make such a representation to the authority which can grant such relief i.e. the authority which can revoke the order of detention and set him at liberty and since the officer who has made the order of detention is competent to revoke it, the person detained has the right to make a representatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirement of Section 3(4) that the report should be accompanied by the grounds on which the order has been made and such other particulars as, in the opinion of the said officer, have a bearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention. The effect of the approval by the State Government is that from the date of such approval the detention is authorised by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approval. That appears to be the reason why Section 8(1) envisages that the representation against the order of detention is to be made to the State Government. The COFEPOSA Act and the PIT NDPS Act do not require the approval of an order made by the officer specially empowered by the State Government or by the Central Government. The order passed by such an officer operates on its own force. All that is required by Section 3(2) of the COFEPOSA Act and the PIT NDPS Act is that the State Government shall within 10 days forward to the Central Government a report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake the said Government the detaining authority. By specially empowering a particular officer under Section 3(2) of the COFEPOSA Act and the PIT NDPS Act the Central Government or the State Government confers an independent power on the said officer to make an order of detention after arriving at his own satisfaction about the activities of the person sought to be detained. Since the detention of the person detained draws its legal sanction from the order passed by such officer, the officer is the detaining authority in respect of the said person. He continues to be the detaining authority so long as the order of detention remains operative. He ceases to be the detaining authority only when the order of detention ceases to operate. This would be on the expiry of the period of detention as prescribed by law or on the order being revoked by the officer himself or by the authority mentioned in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act. There is nothing in the provisions of these enactments to show that the role of the officer comes to an end after he has made the order of detention and that thereafter he ceases to be the detaining authority and the Government c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation. 12. With the judgment of the Constitution Bench of this Court in Kamleshkumar (1995) 4 SCC 51, 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to consider it. Though clause 5 does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enabling it to detain him. The illustrations given in Sk. Abdul Karim case show that clause 5 of Article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is, through error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, clause 5 would not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard to enable it to form its opinion and to obtain such opinion. 11. This conclusion is strengthened by the other provisions of the Act. In conformity with clauses 4 and 5 of Article 22, Section 7 of the Act enjoins upon the detaining authority to furnish to the detenu grounds of detention within five days from the date of his detention and to afford to the detenu the earliest opportunity to make his representation to the appropriate Government. Sections 8 and 9 enjoin upon the appropriate Government to constitute an Advisory Board and to place within 30 days from the date of the detention the grounds for detention, the detenu's representation and also the report of the officer where the order of detention is made by an officer and not by the Government. The obligation under Section 7 is quite distinct from that under Sections 8 and 9. If the representation was for the consideration not by the Government but by the Board only as contended, there was no necessity to provide that it should be addressed to the Government and not directly to the Board. The Government could not have been intended to be only a transmitting authority nor could it have been contemplated that it should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Advisory Board. In the case of Khairul Haque v. State of W.B. - W.P. No.246 of 1969, decided on 10-9-69 this Court observed that "it is implicit in the language of Article 22 that the appropriate Government, while discharging its duty to consider the representation cannot depend upon the views of the Board on such representation". The logic behind this proposition is that the Government should immediately consider the representation of the detenu before sending the matter to the Advisory Board and further that such action will then have the real flavour of independent judgment. ... ... ... 18. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may still exercise the power to release the detenu. (Emphasis Added) 21. In the present case, the State of West Bengal is guilty of infraction of the constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting of the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment." C) In Haradhan Saha - (1975) 3 SCC 198 [Haradhan Saha vs. The State of West Bengal and others] yet another Constitution Bench of this Court considered the distinction between the consideration of representation by the Government and by the Advisory Board as under. "24. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. The Court's writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Article 22(5) vests in the detenu the right to be provided with an opportunity to make a representation. Here the Law Reports tell a story and teach a lesson. It is that the principal enemy of the detenu and his right to make a representation is neither high-handedness nor meanmindedness but the casual indifference, the mindless insensibility, the routine and the red tape of the bureaucratic machine. The four principles enunciated by the Court in Jayanarayan Sukul v. State of W.B. -(1970) 1 SCC 219 [Jayanarayan Sukul vs. State of West Bengal] as well as other principles enunciated in other cases, an analysis will show, are aimed at shielding personal freedom against indifference, insensibility, routine and red tape and thus to secure to the detenu the right to make an effective representation. We agree: (1) the detaining authority must provide the detenu a very early opportunity to make a represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinent observations at pp. 231-232: (SCC p. 224, para 19) "No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible...." E) In K.M. Abdullah Kunhi (1991) 1 SCC 476, in view of the conflict between two decisions of this Court the matter was referred to the Constitution Bench as is clear from paragraphs 1 and 2 of said decision:- "1. A Division Bench of this Court while expressing the view that the decisions in V.J. Jain v. Shri Pradhan (1979) 4 SCC 401 and Om Prakash Bahl v. Union of India W.P. No.845 of 1979, decided on October 15, 1979 require reconsideration has referred these matters to the Constitution Bench. 2. It is convenient at this point to refer to the statement of law laid down in the aforesaid two cases. In both the cases, as in the present case, the persons were detained under the Conservation of Foreign Exchange and Prevention of Smuggli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before us that there was unexplained delay in considering the representation of the detenu. Indeed, counsel for the petitioners very fairly submitted that they are not raising the question of delay. They also did not argue that the rejection of the representation after the confirmation of detention was not an independent consideration." After considering the relevant decisions on the point, including Pankaj Kumar Chakrabarty (1969) 3 SCC 400 = (1970) 1 SCR 543, Jayanarayan Sukul (1970) 1 SCC 219 [Jayanarayan Sukul vs. State of West Bengal], Haradhan Saha (1975) 3 SCC 198 and Frances Coralie Mullin (1980) 2 SCC 275 this Court observed:- "15. In Frances Coralie Mullin case, the detenu's representation was received by the detaining authority on December 26, 1979. Without any loss of time copy of the representation was sent to the customs authorities for their remarks which was obviously necessary because the information leading to the order of detention was collected by the customs authorities. The facts were undoubtedly complex since the allegations against the detenu revealed an involvement with an international gang of dope smugglers. The comments of the customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his request. The constitution of the Board shows that it consists of eminent persons who are Judges or persons 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 disposed of by the government as early as possible. (Emphasis added) ... ... ... 19. There is no constitutional mandate under clause (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. As long as the government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention. Indeed, there is no justification for imposing this restriction on the power of the government. As observed earlier, the gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the validity of the detention or confirmation of the detention. The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention. Nor it could be presumed that such consideration is not an independent consideration. With all respect, we are not inclined to subscribe to the views expressed in V.J. Jain, Om Prakash Bahl and Khairul Haque cases. They cannot be considered to be good law and hence stand overruled." Two situations were considered in paragraph 16 by this Court. One, where the representation is received just before the case is referred to the Advisory Board and there is no time to dispose of the representation before such reference; and second, where the representation is received after such reference to the Advisory Board. It was observed that, "......In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board.... It is proper for the government in such situations to await the report of the Board." The reasons for such observations were given in the latter part of paragraph 16 and in paragraphs 19 and 20. F) In Gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if not wanted in any other case." 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. 14. In the context of the second issue stated earlier, the principles that emerge from the decisions referred to above are:- A) In Pankaj Kumar Chakrabarty (1969) 3 SCC 400 = (1970) 1 SCR 543, it was laid down:- "the petitioners had a constitutional right and there was on the State Government a corresponding constitutional obligation to consider their representations irrespective of whether they were made before or after their cases were referred to the Advisory Board" According to this decision it was immaterial whether the representations were made before or after the cases were referred to the Advisory Board. B) In Jayanarayan Sukul (1970) 1 SCC 219, the reason for immediate consideration of the representation was stressed in para 18 as under:- "The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being essential at every stage" Para 7 of the decision explained the principles in Jayanarayan Sukul (1970) 1 SCC 219 as:- "when it was said there that the Government should come to its decision on the representation before the Government forwarded the representation to the Advisory Board, the emphasis was not on the point of time but on the requirement that the Government should consider the representation independently of the Board." 15. These decisions clearly laid down that the consideration of representations by the appropriate Government by the Board would always be qualitatively different and the power of consideration by the appropriate Government must be completely independent of any action by the Advisory Board. In para 12 of the decision in Pankaj Kumar Chakrabarty (1969) 3 SCC 400 = (1970) 1 SCR 543 it was stated that the obligation on part of the Government to consider representation would be irrespective whether the representation was made before or after the case was referred to the Advisory Board. As stated in paragraph 18, this was stated so, as any delay in consideration of the representation would not only be an irresponsible act on part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Government is completely independent of the power of the Advisory Board; and the scope of consideration is also qualitatively different, there is no reason why the consideration by the Government must await the decision by the Advisory Board. None of the aforesaid cases even remotely suggested that the consideration must await till the report was received from the Advisory Board. 17. However, it was for the first time that the decision in K.M. Abdulla Kunhi (1991) 1 SCC 476 laid down in paragraph 16 that it would be proper for the Government in the two situations dealt with in said paragraph to await the report of the Board; those two situations being:- a) where the representation is received before the matter is referred to the Advisory Board and where there may not be sufficient time to dispose of the representation before referring the case to the Advisory Board, and b) where the representation is received after the case is referred to the Advisory Board. It was also laid down:- "In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board." 18. Since the decision of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter a report is received from the Advisory Board that there is sufficient cause for detention. Since the decision would be required to be taken in these two capacities, it was observed in K.M. Abdulla Kunhi (1991) 1 SCC 476 that it would be proper for the appropriate Government to wait till the report is received from the Advisory Board in cases dealt with in paragraph 16 of the decision. But such may not be the case with the Detaining Authority who is a specially empowered officer. 22. A specially empowered officer who passes the order of detention, in exercise of special empowerment, has no statutory role to play at the stage when the report is received from the Advisory Board. The report is to be considered by the appropriate Government and not by the specially empowered officer. It may also be relevant at this stage to consider the element of confidentiality associated with the report of the Advisory Board. Section 8 of the COFEPOSA Act states:- "8. Advisory Board.- For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7) of article 22 of the Constitution,- (a) The Central Government and each State Government shall, whenever necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate Government shall revoke the detention order and cause the person to be released forthwith." 23. 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. If that be so, would a specially empowered officer who had passed the order of detention be bound by what has been laid down by this Court in paragraph 16 of the decision in K.M. Abdulla Kunhi6 in the context of the appropriate Government? 24. It must also be stated here that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Detaining Authority. After receipt of letter on 27.11.2019 that the detenues were received in custody, the time for considering the representation started ticking for the Detaining Authority. But the representation was considered only on 14.01.2020 and the reason for such delayed consideration is that the report of the Central Advisory Board was awaited. We have already found that the Detaining Authority was obliged to consider the representation without waiting for the opinion of the Central Advisory Board. Thus, there was no valid explanation for non-consideration of the representation from 27.11.2019 till 14.01.2020. We must, therefore, hold that complete inaction on part of the Detaining Authority in considering the representation caused prejudice to the detenues and violated their constitutional rights. 27. We are conscious that the view that we are taking, may lead to some incongruity and there could be clear dichotomy when the representations are made simultaneously to such specially empowered officer who had passed the order of detention and to the appropriate Government. If we go by the principle in paragraph 16 in K.M. Abdulla Kunhi (1991) 1 SCC 476 it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers the Central Government, the State Government or the specially empowered Officer of the rank not below the rank of the Joint Secretary of the Central Government or Secretary of the State Government, to make an order, directing a person to be detained. The Detaining Authority has jurisdiction to revoke the detention order in view of Section 21 of the General Clauses Act, 1897- for short "1897 Act", whereas, an appropriate Government passes an order of revocation of detention or confirmation of the order of detention on receipt of the report of the Advisory Board. The consideration for the Detaining Authority for revocation, is to see whether the detention order is in conformity with the power under law whereas, the Advisory Board considers the representation to examine whether there is sufficient cause for detention. The consideration of the Advisory Board is an additional safeguard and not a substitute for the consideration of the representation by the appropriate Government. 4. The first part of the consideration of representation, as to whether the order of detention is in conformity with power under the law, does not make a distinction as to whether the Detaining Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, 'the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu." (Emphasis supplied) 6. The second part of the consideration of representation of the detenu by the appropriate authority i.e. the Detaining Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore any order is made confirming the detention. Neither safeguard is dependent on the other and both have to be observed by the Detaining Authority. It is no answer for the Detaining Authority to say that the representation of the detenu was sent by it to the Advisory Board and the Advisory Board has considered the representation and then made a report expressing itself in favour of detention. Even if the Advisory Board has glade a report stating that in its opinion there is sufficient cause for the detention, the State Government is not bound by such opinion and it may still on considering the representation of the detenu or otherwise, decline to confirm the order of detention and release the detenu. The Detaining Authority is, therefore, bound to consider the representation of the detenu on its own and keeping in view all the facts and circumstances relating to the case, come to its own decision whether to confirm the order of detention or to release the detenu." (Emphasis supplied) 9. In these circumstances, this Court held that the representation of the detenu was not considered by the Detaining Authority before the Advisory Board recommended confirmation of the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lie Mullin were considered by the Constitution Bench in K. M. Abdulla Kunhi wherein, the judgment in Vimalchand Jawantraj Jain, Khairul Haque and Om Prakash Bahl v. Union of India W.P. NO. 845 of 1979 decided on October 15, 1979 were overruled and that of Frances Coralie Mullin was approved. The Constitution Bench held as under: "11. It is now beyond the pale of controversy that the constitutional right to make representation under Clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in Clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, 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 disposed of by the Government as early as possible." (Emphasis supplied) 13. Late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under Section 8 of the Act. But if the detenu does not exercise his right to make representation at that stage, but presents it to the government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statute. The confirmation of the order of detention is not conclusive as against the detenu. It can be revoked suo motu under Section 11 or upon a representation of the detenu." (Emphasis supplied) 15. The aforesaid judgment arises out of the fact that the detention order was passed by the Government, however, it will not make any difference if the detention order had been passed by a specially empowered Officer. The consideration for revocation of a detention order is only whether such detention order conforms to the law. Such consideration is applicable to all detaining authorities, be it the Central Government or the State Government or any specially empowered Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g such representation results in the denial of the right conferred on the detenu to make a representation against the order of detention. This right of the detenu is in addition to his right to make a representation to the State and the Central Government. 18. In Criminal Appeal Nos. 764-765 of 1994, the Constitution Bench of this Court in Kamleshkumar Ishwardas Patel considered three questions which were examined by the Full Bench of the Bombay High Court. The first question was whether a specially empowered officer had an independent power to revoke the order of detention. The second question is not relevant for consideration in the present case. The third question examined was whether the failure to take an independent decision on the revocation of a detention order by the specially empowered officer and merely forwarding the same with a recommendation to reject, results in non-compliance with the constitutional safeguard under Article 22(5) of the Constitution. The order of the High Court on first question was confirmed and that on the third question was set aside. 19. An argument was raised in respect of the third question that failure on the part of the Detaining Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of the report of the Advisory Board in respect of sufficiency of material to detain the detenu beyond the period of three months. Such right is conferred on the detenu by clause (4) of Article 22 of the Constitution. 20. The judgment in K. M. Abdulla Kunhi had been examined by another Division Bench judgment in Golam Biswas v. Union of India and Another (2015) 16 SCC 177, wherein the specially empowered Officer passed two orders of detention. A representation was submitted seeking revocation of the detention order. The consideration of detention of the detenu was referred to the Advisory Board on 8.7.2014. The order of detention was confirmed by the Central Government on 5.9.2014 and the representation was rejected by the Central Government on 21.7.2014. Thus, referring to K. M. Abdulla Kunhi and reiterating that there is no time limit to dispose of the representation, this Court held as under: "14. As the quoted text would reveal, in essence, it was reiterated that if a representation is received by an appropriate authority and there is no time to dispose of the same having regard to the time-frame fixed by the Act for reference of the matter to the Advisory Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Government, the appropriate Government in the case, was not forwarded to the Advisory Board and was instead rejected during the pendency of the proceedings before the Advisory Board, we are constrained to hold that the detention of the detenu is constitutionally invalid. The rejection of the representation by the Central Government later on 21-7- 2014 during the pendency of the proceedings before the Advisory Board is of no consequence to sustain the 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." 22. In view of the aforesaid judgment, I am of the opinion that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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