Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Preventive Detention – Representation by detenue to the Central Government, the detaining authority and the Advisory Board – Central Govt. if bound to wait for the decision of the Advisory Board before deciding the representation – Whether there exists an incongruity between the Pankaj Kumar case and the Abdullah Kunhi case – Held: No – Since these two judgments exist symbiotically and apply to two separate authorities within the COFEPOSA Act, there exists no friction between the judgments – The mandate to wait for the decision of the Advisory Board, as per the Pankaj Kumar Judgment would apply to the Central Govt., however, the detaining authority, being independent of the Govt., can pass its decision without the decision of the Advisory Board – In the present case, the appellant-detenue sent a representation to both, the specially empowered officer and the Govt. – Detaining authority decided on the representation expeditiously without waiting for the decision of the Advisory Board, and hence, did not violate the Pankaj Kumar Judgment – The Govt. waited for the decision of the Advisory Board – This was also in accordance with the decision of the Abdullah Kunhi case, since the Govt., being a separate authority, is bound to wait for the decision of the Advisory Board – Thus, both, the detaining authority and the Govt. worked within the procedure established by law – Hence, the impugned detention order is not liable to be struck down on the ground of 60 days delay on the part of the Govt. in consideration of the representation made by the appellant – However, in the present case, the appellant was supplied with illegible documents in a foreign language – Also, the principle of parity is squarely applicable in this case, as the detention order was quashed against a similarly placed co-detenue – Impugned detention order liable to be set aside – Appellant was however, already released on grounds of expiry of the detention period – Constitution of India – Arts. 21, 22(5) – Preventive Detention Act, 1950 – s.3.
Constitution of India – Article 21, 22(5) – Held: In cases where illegible documents have been supplied to the detenue, a grave prejudice is caused to the him in availing his right to send a representation to the relevant authorities – Thus, the relief u/Article 22(5) and the relevant statutory provisions allowing for submitting a representation are vitiated – In cases of preventive detention, every procedural irregularity, keeping in mind the principles of Article
21 and 22(5), must be accrued in favour of the detenue. Criminal Law – Preventive detention laws – Abuse/misuse of – Held: Such laws must be very critically examined and must be used only in the rarest of rare cases.
Allowing the appeal, the Court
HELD: 1. Preventive detention laws in India are a colonial legacy, and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of rare cases. In cases of preventive detention, where the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the Courts must always give every benefit of doubt in favour of the detenue, and even the slightest of errors in procedural compliances must result in favour of the detenue. 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. [Paras 21, 22][802-E-G; 803-A-B]
2. 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? The Pankaj Kumar Case judgment was passed in the context of the Preventive Detention Act, 1960, and the Abdullah Kunhi Case was passed in the context of the COFEPOSA Act. Section 3 of the two acts provides for preventive detention. 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 between the COFEPOSA Act and the other preventive detention laws has been upheld by this Court in the case of Kamlesh Kumar Ishwardas Patel vs Union Of India & Ors. If the Pankaj Kumar judgment is read in light of this distinction between the specially empowered officer and the Government in the COFEPOSA Act, it is found that there exists no friction between the Pankaj Kumar Judgment and the Abdullah Kunhi Judgement, since the Pankaj Kumar Judgement, while mandating the central Government to not wait for the decision of the Advisory Board, only does so because the central Government is the detaining officer in the Preventive Detention Act. In simpler terms, this would mean that the mandate to not wait for the decision of the Advisory Board is effectively not for the central Government, but only for the detaining officer. In the COFEPOSA Act, since the detaining authority is separate from the Government, both, the Pankaj Kumar Judgment and the Abdullah Kunhi Judgment would apply, but in different spheres. The Pankaj Kumar Judgment, since it was rendered in the context of the Government being the detaining authority, would be applicable only to the detaining authority/specially empowered officer under the COFEPOSA Act. The Abdullah Kunhi Judgment however, since it was rendered in the context of the COFEPOSA Act, the mandate thereunder would squarely apply only to the Government, and not the detaining authority. In simpler terms, this would mean that the mandate to not wait for the Advisory Board would be applicable only to the detaining authority. The Government, however, as per the Abdullah Kunhi Case, must wait for the decision of the Advisory Board. Since these two judgments exist symbiotically and apply to two separate 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. Any apparent conflict, as contended by the appellant, stands resolved, and both sets of judgments operate symbiotically and harmoniously within the said Act, without there existing any tension between them. The mandate to wait for the decision of the Advisory Board, as per the Pankaj Kumar Judgment, would apply to the central Government, however, the detaining authority, being independent of the Government, can pass its decision without the decision of he Advisory Board. Since no conflict exists, the need to refer the point of law to a Larger Bench also ceases. [Paras 31, 33-35][811G-H; 813-F-G; 814-A-D; 815-B-D]
Pankaj Kumar Chakraborty And Ors. v. State of West Bengal (1969) 3 SCC 400 : [1970] 1 SCR 543; K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union Of India & Ors. (1991) 1 SCC 476 : [1991] 1 SCR 102 –
discussed.
3. If there exists no friction between the two Constitutional judgments of this Court, can the impugned detention order be quashed on grounds of the 60-day delay in consideration of the representation made by the appellant?
In the present case at hand, the appellant-detenue, availing his rights sent a representation to both, the specially empowered officer and the Government. The detaining authority in the present case decided on the representation expeditiously and without waiting for the decision of the Advisory Board, and hence, did not violate the Pankaj Kumar Judgment. The Government in the present case at hand, did decide to wait for the decision of the Advisory Board. This was also done in accordance with the decision of the Abdullah Kunhi case, since the Government, being a separate authority, is bound to wait for the decision of the Advisory Board. both, the detaining authority, and the Government, have worked precisely within the procedure established by law, and hence the impugned detention order is not liable to be struck down on this ground. [Paras 36-38][815D-H]
4. Whether the illegible documents written in Chinese submitted to the appellant herein are grounds enough for quashing the impugned detention order?
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. In cases of preventive detention, every procedural irregularity, keeping in mind the principles of Article 21 and Article 22(5) of the Constitution of India, must be accrued in favour of the detenue. In the present case at hand, the appellant detenue herein has been supplied with illegible documents in a foreign language. These are the very same documents that the authorities have relied upon to detain the appellant herein. Further, the principle of parity is squarely applicable in this case, since another co-detenue with identical circumstances, has already been granted the relief of quashing the detention order against him. While the appellant has already been released on grounds of expiry of the detention period, for the sake of clarity on the point of law, it is held that the impugned detention order is liable to be set aside. [Paras 39, 42, 43 and 45][816-B-C; 817-A-C; 818-A]
Kamlesh Kumar Ishwardas Patel vs Union Of India & Ors. (1995) 4 SCC 51 : [1995] 3 SCR 279; Harikisan v. The State Of Maharashtra & Ors. (1962) Supp. 2 SCR 918; Gian Chand v. Union Of India & Anr. (Crl.)
39 of 2011 – relied on.
Haradhan Saha v. State of W.B. [1975] 1 SCR 778; Ankit Ashok Jalan vs Union of India & Ors. (2020) 16 SCC 127 : [2020] 2 SCR 1047; Jayanarayan Sukul v. State Of West Bengal (1970) 1 SCC 219 : [1970] 3 SCR 225; Francis Coralie Mullin v. W.C. Khambra & Ors. (1980) 2 SCC 275 : [1980] 2 SCR 1095 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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