1. Challenge to detention order under COFEPOSA — repeated writ petitions and representations — request for a fresh Advisory Board to consider a subsequent representation. (Para 4 )
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1999 Supreme(SC) 1289
1999(9) Supreme 294
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
Dr. A.S. Anand, CJI., G.T. Nanavati, K.T. Thomas, D.P. Wadhwa and S. Rajendra Babu, JJ.
Makhan Lal Gokul Chand -Petitioner
versus
The Administrator, Union Territory of Delhi & Anr. -Respondents
Writ Petition (Crl.) No. 608 of 1983
Decided on 2-11-1999
Counsel for the Parties :
For the Petitioner : Harjinder Singh, Ms. Rani Jethmalani, Ms. Gauri Karuna Dass, Ms. Leena Prasad, Advocates.
For the Respondents : Ms. Rekha Pandey, Advocate.
The State is not obligated to constitute a fresh Advisory Board to consider a detenu's representation if it contains no fresh material, grounds, or subsequent events, particularly when the detention order has already been upheld in previous legal challenges.
Headnote:(i) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3-Preventive detention-Legality of order-Consideration of representation of detenue-View expressed in Ram Bali Rajbhar v. The State of West Bengal & Ors., (1975) 3 SCR 63 lays down correct law and does not call for any reconsideration-No conflict in decision between Ram Bali Rajbhar and Pushpa v. Union of India & Ors., AIR 1979 SC. (Para 2)
(ii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3-Preventive detention-Legality of order-Detenu filed three writ petitions one after another challenging same detention order but without success-Subsequent representation seeking Constitution of fresh Advisory Board to consider his representation-Rejection of representation-Writ petition challenging order of detention-No fresh material brought on record-No subsequent events pointed out warranting fresh consideration-Rejection of representation justified-Attitude of detenu deprecated-Detenue on parole after 10 months detention-More than 16 years already passed-Cancellation of parole and sending him to undergo remaining period of two months not warranted on peculiar facts of case. (Paras 5, 6 and 7)
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2. Whether failure to constitute a fresh Advisory Board to consider a subsequent representation, after previous challenges were dismissed, renders the detention order invalid. (Para 4 )
3. A representation containing no fresh material or subsequent events does not obligate the state to constitute a fresh Advisory Board for its consideration. (Para 5 )
4. No obligation exists to constitute a fresh Advisory Board for a representation that offers no new material or subsequent events following previous dismissals. (Para 5 )
5. Writ petition dismissed — direction that the detenu need not be taken into custody for the remaining detention period. (Para 8 )
6. Does the consideration of multiple representations by the same Advisory Board during one sitting invalidate the process?
No. If facts show that multiple representations were placed before and considered by the same Advisory Board during its sitting, it does not necessarily run contrary to established law. (Para 2 )
7. When is the state obligated to constitute a fresh Advisory Board to consider a detenu's representation?
The state is not obligated to constitute a fresh Advisory Board if the representation contains no fresh material, new grounds, or subsequent events that warrant reconsideration after previous challenges have failed. (Para 5 )
8. Can the court waive the remaining period of detention for a detenu already on parole for a significant duration?
Yes, in peculiar facts and circumstances, the court may determine that it is in the interest of justice not to cancel parole and not to require the detenu to undergo the remaining detention period. (Para 7 , 8 )
ORDER
On 27th September, 1983 a three Judge Bench of this Court doubted the correctness of the wide observations made in the case of Ram Bali Rajbhar v. The State of West Bengal & Ors.1, and being of the opinion that the view expressed in Pushpa v. Union of India & Ors.2, ran in the teeth of the judgment in Rajbhar s case (supra) referred the matter to a larger Bench. The referring Bench noticing that the detenu had already suffered detention for a period of 10 months out of the 12 months period of detention imposed by the order dated 15th December, 1982, directed the detenu to be released on parole.
2. Mr. Harjinder Singh, learned counsel appearing for the petitioner has taken us through the judgments in Rajbhar s case and Pushpa s case (supra). A careful perusal of both the judgments, however, shows that there is no conflict between the two. The view expressed in Rajbhar s case (supra), in our opinion, lays down the correct law and does not call for any reconsideration. Insofar as the view expressed in Pushpa s case (supra) is concerned it, deserves to be noticed that the learned Single Judge, deciding the petition during the vacation, did not say anything which may be considered as running contrary to the view expressed in Rajbhar s case (supra). On facts it was found in that case that two representations had been made by the detenu against the order of detention and both the representations were placed before the same Advisory Board when it met and the Board considered the representations at that sitting. The argument raised in that case that the second representation had not been considered by an Advisory Board was thus found, on facts, as not valid. The Court, under those circumstances, declined to examine the contention whether personal appearance of the detenu to explain his case before the Advisory Board, since he had filed detailed written representation, infringed any of the rights of the detenu.
3. Learned counsel appearing for the parties have been unable to point out any area of conflict between Rajbhar s case and Pushpa s case. In fairness to the learned counsel it must be noticed that they submitted that the reference does not require to be answered. We agree.
4. Coming, however, to the facts of the present case. It is found that representations had been made by the petitioner against the order of detention which were considered by the detaining authority and the Advisory Board. The representations were rejected. The order of detention and the order of rejection of the representations was challenged through Writ Petition No. 6/1983, which was dismissed by the Delhi High Court on 1st February, 1983. The order of the Delhi High Court was challenged through Special Leave Petition No. 379/1983 in this Court. Together with the Special Leave Petition No. 379/1983, another writ petition, being Writ Petition (Crl.) No. 182/1983, was also filed under Article 32 of the Constitution of India, once again putting in issue the same order of detention which had been uphold by the Delhi High Court. The Special Leave Petition as well as the Writ Petition stood dismissed by a three Judge Bench of this Court on 23rd February, 1983. The petitioner thereafter filed yet another writ petition being Writ Petition (Crl.) No. 363/1983 challenging the order of detention on some "additional grounds". That writ petition was also dismissed by this Court on 27th April, 1983. After dismissal of the third writ petition on 27th April, 1983 the petitioner appears to have sent a representation, on 7th May, 1983, to the first respondent invoking powers under Section 21 of the General Clauses Act read with Section 11 of the COFEPOSA. The petitioner also requested for the constitution of a fresh Advisory Board to consider his representation. On 23rd May, 1983, the representation of the petitioner was rejected by the Delhi Administration after due consideration. This fourth writ petition has been filed thereafter challenging the same order of d
