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TMI Blog2023 (4) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... ders Pvt. Ltd. and was likely to arrive at Delhi Cargo Complex in the New Delhi Airport. 5. On 18.11.2021 and 19.11.2021, acting on the said intelligence, the purported consignment was examined by the officers of Respondent No.4 and 80.126 kgs of 24 carat foreign origin gold was recovered from the said consignment in the form of 'E' and 'I' shaped plates with a market value of Rs.39,31,38,219/-. 6. The appellant being a suspect, his shop was checked by DRI officials and 7 pieces of gold weighing 5.409 KGs with a market value of Rs.2,64,44,680/-was recovered from his premises. 7. The Respondent authority also conducted searches at four different places of the abovementioned syndicate and arrested 4 foreign nationals on grounds of finding incriminating evidence against them. 8. On 20.11.2021, the appellant along with other members of the syndicate was arrested by the officers of respondent no.4 authority, whereupon they were produced before the Ld. CMM, Patiala House Courts, New Delhi and were subsequently remanded to judicial custody. 9. The appellant then sought for bail before the learned CMM, and vide order dated 13.12.2021 he was granted bail. 10. Vide four separate order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compulsion to wait for the recommendation of the Advisory Board and must act independently and without delay in deciding the representation of the detenue. III. Further, the Ld. Counsel for the appellant contends that the decisions of this Court in the case of K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union Of India & Ors. (1991) 1 SCC 476 and Ankit Ashok Jalan vs Union Of India & Ors. (2020) 16 SCC 127 Judgment, both of which are Constitution Bench judgments, which state that the central Government must wait for the decision of the Advisory Board, are in direct contravention with Constitution Bench judgments of this Court in Pankaj Kumar Chakraborty And Ors. v. State of West Bengal (1969) 3 SCC 400 and the Jayanarayan Sukul v State Of West Bengal (1970) 1 SCC 219, and due to the apparent conflict, the issue needs to be referred to a Larger Bench. IV. It was also contended that the documents supplied to the appellant herein as grounds for his preventive detention were illegible and in Chinese language, and hence on this ground also the impugned detention order as against the appellant must be quashed. ARGUMENTS ADVANCED BY THE RESPONDENTS 19. Learned ASG, Mr. K.M Natraj appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SUE 1- Whether there exists an incongruity between the Pankaj Kumar case and the Abdullah Kunhi Case and if such a friction exists should the point of law be referred to a Larger Bench? 22. For the purpose of deciding this question, we must first elaborate on the rights accrued to a detenue against his preventive detention in terms of his representation. The detenue, in cases of preventive detention under the COFEPOSA Act, has the right to submit a representation to the detaining authority, the Government, and the Advisory Board. These representations then, as per Article 22(5) of the Constitution of India, must be decided at the earliest opportunity possible. If the representation is accepted either by the Government or the detaining officer, the detenue is released, however, if the representation is rejected, then the detention period is continued. 23. In the case at hand, the appellant herein, who is under preventive detention, submitted a representation to the Central Government, the detaining authority and the Advisory Board. It is the case of the appellant that while the detaining authority considered the representation of the appellant authority in an expeditious manner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dul Karim case [Abdul Karim v. State of W.B., (1969) 1 SCC 433] 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 have directed the detaining authority to afford the earliest opportunity to the detenu. In that case the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sit tight on that representation and remit it to the Board after it is constituted. The peremptory language in clause (5) of Article 22 and Section 7 of the Act would not have been necessary if the Board and not the Government had to consider the representation. Section 13 also furnishes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appropriate authority failed to discharge its Constitutional obligation by inactivity and lack of independent judgment." 27. In the Harardhan Saha Case (Supra), yet another Constitution Bench of this Court considered the distinction between the consideration of the representation made by the detenue in cases of preventive detention, and it was stated that if the representation was made before the matter is referred to the Advisory Board, the detaining authority must consider such representation, but if the representation is made after the matter is referred to the Advisory Board, the detaining authority would first consider it and then send it to the Advisory Board. The relevant paragraph from the said judgment is being reproduced hereunder: "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 examine the entire material. The Board can also call for more materials. The Board may call the detenu at his request. The Constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. The Constitution of the Board obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions 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 mean-mindedness 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. [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92] 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 representation, (2) the detaining authority must consider the representation as soon as possible, and this, preferably, must be before the representation is forwarded to the Advisory Board, (3) the representation must be forwarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances, had held that the Government must wait for the decision of the Advisory Board before making its decision on the representation. The relevant paragraph of the abovementioned judgment is being extracted hereunder: "We agree with the observations in Frances Coralie Mullin case [(1980) 2 SCC 275 : 1980 SCC (Cri) 419] . The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from- (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained: 2 [Provided that no order of detention shall be made on any of the grounds specified in this sub-section on which an order of detention may be made under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 or under section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (J&K Ordinance 1 of 1988).] (2) 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, forwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approved by the State Government under this section, the State Government shall, as soon as may be, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government has a bearing on the necessity for the order. 32. As can be seen from the provisions of the abovementioned Acts, the detention order under both laws can be passed either by the Government, or by the specially empowered officer. However, under Section 3 of the Preventive Detention Act, the specially empowered officer, within 12 days of the detention, has to seek for an approval from the Government for continued detention, and only if the Government approves the same can the detention be continued. This process of seeking an approval from the Government is essentially a transfer of power from the empowered officer to the Government, making the Government the detaining authority after the initial lapse of 12 days. In the COFEPOSA Act however, no such approval is required from the Government, and hence the detaining authority and the Government remain to be two separate bodies independent of each other. This difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te authorities within the COFEPOSA Act, there exists no friction between the judgments, and hence there is no necessity for this point of law to be referred to a Larger Bench since the same is already settled. This application of both the judgments in two separate spheres within the same act has been clarified in the Ashok Jalan Judgment (supra), the relevant extract from the said judgment is being extracted hereunder: "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 para 16 in K.M. Abdulla Kunhi [K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 : 1991 SCC (Cri) 613] it would be proper for the appropriate Government to wait till the report was received from the Advisory Board, while at the same time the specially empowered officer who had acted as the detaining authority would be obliged to consider the representation with utmost expedition. At times a single representation is prepared with copies to the detaining authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be struck down on this ground. We therefore hold Issue II in favour of the respondent. ISSUE III- Whether the illegible documents written in Chinese submitted to the appellant herein are grounds enough for quashing the impugned detention order? 39. In cases where illegible documents have been supplied to the detenue, a grave prejudice is caused to the detenue in availing his right to send a representation to the relevant authorities, because the detenue, while submitting his representation, does not have clarity on the grounds of his or her detention. In such a circumstance, the relief under Article 22(5) of the Constitution of India and the relevant statutory provisions allowing for submitting a representation are vitiated, since no man can defend himself against an unknown threat. 40. In the case of Harikisan v. The State Of Maharashtra & Ors. (1962) Supp. 2 SCR 918, this Court held that in cases of preventive detention, as per the principles enshrined under Article 22(5) of the Constitution Of India, the detaining authority must explain the grounds of detention to the detenue, and must provide the material in support of the same and in the language understood by the detenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been mentioned above, preventive detention laws in India are a colonial legacy, and as such, are extremely powerful laws that have the ability to confer arbitrary power to the state. In such a circumstance, where there is a possibility of an unfettered discretion of power by the Government, this Court must analyze cases arising from such laws with extreme caution and excruciating detail, to ensure that there are checks and balances on the power of the Government. Every procedural rigidity, must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenue. The Courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties. This act of protecting civil liberties, is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our Constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British state. 45. In light of the abovementioned discussion, while t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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