Ankit Ashok Jalan vs Union of India and Ors.

(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 – Thus, the Detaining Authority is obliged to consider the representation without waiting for the opinion of the Central Advisory Board – In the instant case, there was no valid explanation for non-consideration of the representation of detenues from 27.11.2019 till 14.01.2020 – Therefore, complete inaction on part of the Detaining Authority in considering the representation caused prejudice to the detenues and violated their constitutional rights – Detention orders are quashed – (Dissenting - Per Hemant Gupta, J.) – s.3 empowers the Central Government, the State Government or the specially empowered officer to make an order, directing a person to be detained – Once the detention order has been made by any of the authorities competent to detain in terms of s.3(1), the representation to seek revocation of the detention order can be considered and decided by the Detaining Authority dehors the decision of the Advisory Board and the acceptance of recommendation by the appropriate Government – The consideration for revocation of a detention order is limited to examining whether the order conforms with the provisions of law whereas the recommendation of the Advisory Board is on the sufficiency of material for detention, which alone is either confirmed or not accepted by the appropriate Government – It would be a matter of prudence and propriety for the Detaining Authority to defer the decision on the representation to revoke the detention order, when the matter is being considered by the Advisory Board, consisting of three sitting Judges of the High Court – The consideration of the representation by the Detaining Authority in these circumstances cannot be said to be delayed as the representation was received after the matter was referred to the Advisory Board. Allowing the writ petitions, the Court

HELD:

Per Uday Umesh Lalit, J. (for himself and Indu Malhotra, J.)

1. 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 part to do so would result in denial of the right conferred on the person detained to make a representation. Further, such right of the detenue has been taken to be in addition to the right to make the representation to the State Government and the Central Government. It must be stated that para 12 of the grounds of detention in the instant case is in tune with the law so declared by this Court. [Para 12][1079 D-G]

2.1 In Pankaj Kumar Chakrabarty, 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 appropriate authority but also unconstitutional. The contingency whether the representations were received before or after was again considered in para 29 of the decision in Haradhan Saha. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in following four categories:A) If the representation is received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form part of the documents to be placed before the Advisory Board.

B) If the representation is received just before the reference is made to the Advisory Board and there is no sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul and Haradhan Saha the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation.

C) If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha, the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board.

D) If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition. [Para 15][1096 B-H; 1097-A]

2.2 There can be no difficulty with regard to the applicability of the principles in the 1 st and the 4 th stage of the aforesaid categories. The difficulty may arise as regards the application of principles at the 2nd and the 3rd stage. But that difficulty was dealt with sufficient clarity in Jayanarayan Sukul and Haradhan Saha. If it is well accepted that the representation must be considered with utmost expedition; and the power 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. However, it was for the first time that the decision in K.M. Abdulla Kunhi 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.” Since the decision of this Court in K.M. Abdulla Kunhi was rendered by the Constitution Bench of this Court after considering all the earlier decisions on the point including those in Pankaj Kumar Chakrabarty, Jayanarayan Sukul and Haradhan Saha, the principles laid down therein are binding. [Para 16, 17, 18][1097 B-H]

3. In Pankaj Kumar Chakrabarty and in Jayanarayan Sukul, the orders of detention were passed by the District Magistrates under Section 3(ii) of 1950 Act. The relevant statutory provisions contemplated the concept of approval within 12 days of the passing of such orders of detention passed by the District Magistrates. In Haradhan Saha power was exercised by the District Magistrates under the provisions of the MISA, wherein similar concept of approval on part of the State Government within 12 days of the passing of the order of detention by the District Magistrate was contemplated. The distinction on that count was noted by this Court in para 34 of the decision in Kamlesh kumar. The orders of detention in these decisions were not passed by a specially empowered officer but by the concerned Government. The same logic regarding deemed approval was extended initially in Sushila Mafatlal Shah to cases where the orders of detention were passed not by the concerned Government but by a specially empowered officer. The matter was, however, corrected and the distinction in that behalf was succinctly dealt with in Kamleshkumar. [Para 20][1098 B-E]

4. It must also be borne in mind that in all cases, the appropriate Government would be acting in two capacities; one while considering the representation and the other while taking appropriate decision after 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 that it would be proper for the appropriate Government to wait till the report is received from the Advisory Board. But such may not be the case with the Detaining Authority who is a specially empowered officer. [Para 21][1098 E-G]

5. 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. 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. [Paras 22, 23][1098 G-H; 1100 D-F]

6. When K.M. Abdulla Kunhi was decided on 23.01.1991, the decision that was holding the field as to the role of a specially empowered officer who had passed an order of detention, was one rendered in Sushila Mafatlal Shah. The law that was holding the field was the concept of deemed approval as was explained in Sushila Mafatlal Shah and any representation made to such specially empowered officer who had passed the order of detention, in terms of the decision in Sushila Mafatlal Shah, could be considered by the appropriate Government itself and not separately by such specially empowered officer. The subsequent decision in Amir Shad Khan was rendered by a Bench of three Judges on 09.08.1991 and the apparent conflict in the decisions between Sushila Mafatlal Shah and Amir Shad Khan was resolved by the Constitution Bench of this Court in Kamleshkumar rendered on 17.04.1995, i.e. well after the decision in K.M. Abdulla Kunhi. Thus, if the law is now settled that a representation can be made to the specially empowered officer who had passed the order of detention in accordance with the power vested in him and the representation has to be independently considered by such Detaining Authority, the concerned principles adverted to in paragraph 16 of the decision in K.M. Abdulla Kunhi would not be the governing principles for such specially empowered officer. It must be stated that the discussion in K.M. Abdulla Kunhi was purely in the context where the order of detention was passed by the appropriate Government and not by the specially empowered officer. The principle laid down in said paragraph 16 has therefore to be understood in the light of the subsequent decision rendered by another Constitution Bench of this Court in Kamleshkumar. The Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board. [Paras 24, 25, 26][1100 F-H; 1101 A-F]

7. The facts in the instant case indicate that the comments of the Sponsoring Authority in respect of the representation were already received by 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. It is already held 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 nonconsideration of the representation from 27.11.2019 till 14.01.2020. Therefore, complete inaction on part of the Detaining Authority in considering the representation caused prejudice to the detenues and violated their constitutional rights. [Para 26][1101 E-H]

8. 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 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 namely the specially empowered officer and to the appropriate Government as well as to the Advisory Board. In such situations there will be incongruity as stated above, which may be required to be corrected at some stage. However, such difficulty or inconsistency cannot be the basis for holding that a specially empowered officer while acting as a Detaining Authority would also be governed by the same principles as laid down in paragraph

16 of K.M. Abdulla Kunhi. [Para 27][1102 A-D]

9. Since there was complete inaction on part of the Detaining Authority in the present case, to whom a representation was addressed in dealing with the representation in above manner, the constitutional rights of the detenues were violated and the detenues are entitled to redressal on that count. Therefore, the continued detention of the detenues in terms of the Detention Orders is held illegal, invalid and unconstitutional. [Para 28][1102 D-F]

K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and others (1991) 1 SCC 476 : [1991] 1 SCR

102 – held inapplicable

Golam Biswas v. Union of India and Another (2015) 16 SCC 177; Ibrahim Bachu Bafan v. State of Gujarat and others (1985) 2 SCC 24 : [1985] 2 SCR 891; State of Maharashtra and another v. Smt. Sushila Mafatlal Shah and others (1988) 4 SCC 490 : [1988] 2 Suppl. SCR 827; Amir Shad Khan v. L. Hmingliana and others (1991) 4 SCC 39 : [1991] 3 SCR 443; Kamleshkumar Ishwardas Patel vs. Union of India and others [1951] SCR 167; Pankaj Kumar Chakrabarty and others v. The State of West Bengal (1969) 3 SCC 400 : [1970] 1 SCR 543; Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCC 275 : [1980] 2 SCR 1095; Jayanarayan Sukul (1970) 1 SCC 219 : [1970] 3 SCR 225; Haradhan Saha v. The State of West Bengal and others (1975) 3 SCC 198 : [1975] 1 SCR 778 – referred to

Per Hemant Gupta, J. (Dissenting)

1. Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 empowers 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, 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. [Para 3][1103 B-E]

2.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 Authority is the Central or State Government or a specially empowered Officer in that behalf. The consideration for detention by the Detaining Authority is confined to examining whether the order of detention is in conformity with the power under the law. On the other hand, the Advisory Board examines if there is sufficient cause for detention. The exercise of jurisdiction by the Government, whilst dealing with the representation as a detaining authority and whilst considering the Advisory Board’s recommendation, is in two separate and distinct spheres. [Para 4][1103 E-H; 1104 A]

3. In view of K. M. Abdulla Kunhi, 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 of the detention order can be considered and decided by the Detaining Authority dehors the decision of the Advisory Board and the acceptance of recommendation by the appropriate Government. The consideration for revocation of a detention order is limited to examining whether the order conforms with the provisions of law whereas the recommendation of the Advisory Board is on the sufficiency of material for detention, which alone is either confirmed or not accepted by the appropriate Government. [Para 22][1115 E-G]

4. It is a matter of prudence and propriety for the Detaining Authority to defer the decision on the representation to revoke the detention order, when the matter is being considered by the Advisory Board, consisting of three sitting Judges of the High Court.The consideration of the representation by the Detaining Authority in these circumstances cannot be said to be delayed as the representation was received after the matter was referred to the Advisory Board. [Para 23][1115-G; 1116-A] K. M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and Others (1991) 1 SCC 476 : [1991] 1 SCR

102 – relied on

Jayanarayan Sukul v. State of West Bengal (1970) 1 SCC 219 : [1970] 3 SCR 225; Vimalchand Jawantraj Jain v. Shri Pradhan and Others (1979) 4 SCC 401 : [1979] 3 SCR 1007; Khairul Haque v. The State of W.B. W.P. No. 246 of 1969 decided on 10-9-69; Frances Coralie Mullin v. W.C. Khambra and Others (1980) 2 SCC 275 : [1980] 2 SCR 1095; Om Prakash Bahl v. Union of India W.P. NO. 845 of 1979 decided on October 15, 1979; Kamleshkumar Ishwardas Patel v. Union of India and Others (1995) 4 SCC 51 : [1995] 3 SCR 279; State of Maharashtra & Anr. v. Sushila Mafatlal Shah and others (1988) 4 SCC 490 : [1988] 2 Suppl. SCR 827; Amir Shad Khan v. L. Hmingliana and Others (1991) 4 SCC 39 : [1991] 3 SCR 443; Golam Biswas v. Union of India and Another (2015) 16 SCC

177 – referred to