1999 Supreme(SC) 1096

1999(8) Supreme 284
Supreme Court of India
(From Bombay High Court)
G.B. Pattanaik, M. Srinivasan & N.Santosh Hegde, JJ.
Meena Jayendra Thakur -Appellant
versus
Union of India & Ors. -Respondents
Criminal Appeal No. 368 of 1996
Decided on 22-9-1999
Counsel for the Parties :
For the Appellant : V.S. Kotwal, S.R. Chitnis, Sr. Advocates, M.R. Kotwal, P.N. Gupta, Advocates.
For the Respondent in U.O.I. : N.N. Goswami, Sr. Advocate, (Y.P. Mahajan) Advocate for P. Parmeshwaran, Advocate.
For the State : I.G. Shah, Sr. Advocate and G. B. Sathe, Advocate.

Important Points
1. The authority issuing a declara­tion under Section 9 of COFEPOSA Act must intimate the detenu that he has right of opportunity to represent to the declaring authority and non-intimation of the same infringes upon the constitutional right of the detenu to make a representation under Article 22(5) and, therefore, the notification issued under Section 9(i) becomes invalid and the continued detention pursuant to such declaration and the opinion of the Advisory Board within the extended period as well as the confirmation by the State Government are vitiated.
2. Procedural default of non-intimation, by declaring authority under Section 9(i) of COFEPOSA, to detenue about his right to representation would amount to violation of Article 22(5) of Constitution vitiating continued detention, would not, however, invalidate original order u/s 3(i) of COFEPOSA.

Headnote:(i) Conservation of Foreign Exchange and Prevention of Smug­gling Activities Act, 1974-Section 9(i) r/w Section 3(i)-Constitution of India-Article 22-Preventive detention-Declaration under Section 9(i)-Declaring authority’s duty to inform detenu about his right to representation against declaration -Failure on part of declaring authority - Legal consequences-Declaring authority must intimate detenu that he has right of opportunity to represent to declaring authority - Non-intimation would infringe constitutional right of detenu under Article 22(5) and would invalidate declaration and continued detention-Such procedural default, however, would not render initial order under Section 3(i) void.

       Held : There cannot be any dispute that he right to make a representation of a detenu is the most valuable right conferred upon him under Article 22 of the Constitution and if there has been any infraction of such right then certainly the detenu is entitled to be released. The question, therefore, arises as to whether when a declaration is made under Section 9(i) of the Act which in turn extends the period of detention without being confirmed whether the officer issuing the declaration under Section 9(i) is also required to inform the detenue that he has a right to make a representation to him. Under the consti­tutional scheme engrafted in Article 22, no law providing for prevent­ing detention can authorise the detention of a person for a longer period than three months unless the Advisory Board reports before expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention. When an authority issues a declaration under Section 9(i) of the Act, the said authority has the necessary powers to revoke the declaration on a representation being made by the detenu against such declaration. Consequently, if the detenu is not intimated of his right to make a representation to the authority issuing the declaration under Section 9(i) then certain­ly his valuable constitutional right gets infringed. (Para 8)

       The authority issuing a declara­tion under Section 9 of COFEPOSA Act must intimate the detenu that he has right of opportunity to represent to the declaring authority and non-intimation of the same infringes upon the constitutional right of the detenu to make a representation under Article 22(5) and, therefore, the notification issued under Section 9(i) becomes invalid and the continued detention pursuant to such declaration and the opinion of the Advisory Board within the extended period as well as the confirmation by the State Government are vitiated. But the further question that requires to be answered is whether the initial order of detention issued under Section 3(i) of the COFEPOSA Act can be held to be ab initio void on the aforesaid infraction of the right of the detenu. Article 22(4) itself provides for a law for pre­ventive detention authorising detention up to a period of three months. The infraction of the constitutional right to make a representation on account of non-intimating the detenu about his right to make a repre­sentation or the opinion of the Advisory Board and the order of deten­tion not being made within the period prescribed under law does not get into the satisfaction of the detaining authority while making an order of detention under Section 3(i) of the COFEPOSA Act. If the detaining authority on the basis of materials before him did arrive at his satisfaction with regard to the necessity for passing an order of detention and the order is passed thereafter, the same cannot be held to be void because of a subsequent infraction of the detenu’s right or of non-compliance of the procedure prescribed under law. On such infraction and for non-compliance of the procedure prescribed under law, the further detention becomes illegal. But it does not affect the validity of the order of detention itself issued under Section 3(i) of the Act by the detaining authority. In view of our aforesaid conclu­sion, the question of setting aside the order of detention issued on 5.2.92 does not arise and further the detenu being no longer under detention, question of issuing any other direction does not arise. (Para 10)

       Held further, though there has been an infraction of the right of detenu under Article 22 as the declaring authority had not informed that he had right of representation against the order of declaration, we are of the view that it will not by itself vitiate the initial order of detention. (Para 12)

       (ii) Constitution of India-Article 22(5) r/w Section 9(i) of COFEPO­SA-Preventive detention-Right of accused to be informed about his right to represent-Failure on part of Authority making declaration u/s 9(i) of COFEPOSA would amount to infringement of constitutional right of accused vitiating declaration and continued detention. (Paras 10 & 12)

       (iii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(i)-Preventive detention-Delay in exe­cuting detention order-When not fatal-Detention order passed on 5-2-1992-Order executed on 3.8.1993 - Earlier detenue was evading arrest-Detenue came to be arrested in some other case on 23.7.1993-Detention order got executed immediately on coming to know of arrest and custody in jail-Delay sufficiently explained-Delay could not vitiate detention.

       Held : Unreasonable delay in executing the order creates a doubt regarding the genuineness of the detaining authority as regards the immediate necessity of detaining the petitioner in order to prevent him from carrying on the prejudi­cial activity referred to in the grounds of detention and as such the order of detention had not been passed in lawful exercise of the power vested in him. But the question has to be examined in the light of the facts and circumstances of each case and further it has to be consid­ered whether the alleged delay is on account of the reasons beyond the control of the detaining authority. From the affidavit filed in the present case, it transpires that the detenu had been evading execution and with best of efforts, the order of detention could not be served upon him. After the detenu was arrested in some other case, when it was brought to the notice of the detaining authority, the detaining authority then considered the desirability of the execution of the order of detention issued earlier and directed the concerned officer to execute the same. Thus, there has been sufficient explanation for the delay in execution of the order of detention and further just before the execution, the detaining authority was made aware of the fact that the detenu has been arrested and still the detaining author­ity thought it necessary to execute the order of detention. Therefore, it cannot be said that the delay vitiated the deten­tion. (Para 13)

       (iv) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(i)-Preventive detention-Validity of-Silver seized from a vessel and persons in vessel arrested-State­ments u/s 108 of Customs Act by arrested persons that silver was handed over to them by detenu-Detention order solely on basis of statement - Detenu’s plea that statements were retracted and detention not valid-Not tenable-By date of issuance of order of detention those persons made further statements indicating that original statements u/s 108 of Customs Act were correct and not the retracted statements. (Paras 15 & 16)