2000 Supreme(SC) 2016

2000(8) Supreme 473
SUPREME COURT OF INDIA
K.T. Thomas, U.C. Banerjee and R.P. Sethi, JJ.
R. Keshava -Appellant
versus
M.B. Prakash & Ors. -Respondents
Criminal Appeal No. 1103 of 2000
(Arising out of SLP (Crl.) No. 3035 of 2000)
Decided on 12-12-2000
Counsel for Parties :
For the Appellant : B. Kumar, Sr. Advocate and K.K. Mani, Advocate.
For the Respondents : Mohan V. Katarki and N. Ganpathi, Advocates.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Act-Section 3 read with Section 8-Constitution of India-Article 22(5) -Preventive detention order-Legality of-Detenu making representation to Advisory Board-No representation made to appropriate Government-Neither representation was addressed to appropriate Government nor Advisory Board was requested by detenu to forward it to appropriate Government-Advisory Board s recommendation for detention-Board not sending representation to Government along with its report-Government confirming detention order-Detenu s plea that detention order unconstitutional since his representation had not been considered by Government-Plea untenable-Advisory Board not bound to send representation to Government-Government was not aware of representation-Government s obligation is restricted to the extent of examining report conveying opinion of Advisory Board--Order of detention valid.

       Order of preventive detention is liable to be quashed if the constitutional obliga tions in terms of clause (5) of Article 22 of the Constitution are not complied with. There is no gainsaying that preventive detention is a serious invasion of personal liberty and such meagre safeguards, as the Constitution has provided against the improper exercise of the power, must be zealously watched and enforced by the courts. However, where despite intimation, the detenu omits to exercise his constitutional right, he cannot, thereafter, allege its violation on the ground that the authorities should have made an inquiry to ascertain as to whether he had made any representation to any person, authority or the Board. (Para 6)

       A perusal of Section 8 and other relevant provisions of the Act makes it abundantly clear that no duty is cast upon the Advisory Board to furnish the whole of the record and the representation addressed to it only to the Government along with its report prepared under Section 8(c) of the Act. It may be appropriate for the Board to transmit the whole record along with the report, if deemed expedient but omission to send such record or report would not render the detention illegal or cast an obligation upon the appropriate government to make inquiries for finding out as to whether the detenu has made any representation, to any person or authority, against his detention or not. In the absence of constitutional or statutory provisions, we are unable to observe that the Advisory Board was under an obligation to forward the whole of the record of its proceedings to the State Government. The State Government while confirming the order of detention has to peruse the report of the Advisory Board along with other records, if any, in its possession, and cannot determine the legality of the procedure adopted by the Advisory Board. Under Clause (f) of Section 8 of the Act, the Government is not bound by the report of the Advisory Board and in every case where the Advisory Board reports that there is, in its opinion, sufficient cause for the detention of a person, may confirm the detention order. The word "may" used in this clause does not cast duty upon the appropriate Government to necessarily accept the opinion for further detention. However, where the Board reports that there is, in its opinion, no sufficient cause for the detention of the person concerned, the appropriate Government has no option but to revoke the detention order and cause the person to be released forthwith. When the report of the Advisory Board opining that there exists sufficient cause for detention of a person is not binding upon the appropriate Government, there is no infirmity in its order passed without consideration of the proceedings of the Advisory Board. The obligation of the appropriate Government is restricted to the extent of examining the report conveying the opinion of the Board regarding further detention of the detenu. (Paras 12 & 13)

       The detenu in this case was apprised of his right to make representation to the appropriate Government/authorities against his order of detention as mandated in Article 22(5) of the Constitution. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate Government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to send its copy to the concerned authorities under the Act. In the absence of representation or the knowledge of the representation having been made by the detenu, the appropriate Government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenu to the Advisory Board. For this alleged failure of the appropriate Government, the order of detention of the appropriate Government is neither rendered unconstitutional nor illegal. (Para 16)

       (ii) Constitution of India-Article 22(5)-Conservation of Foreign Exchange and Prevention of Smuggling Act-Section 3-Preventive detention -Detenu sending representation to Advisory Board addressed to it-Board not sending nor obliged to send representation to Government-Government unaware of representation confirming detention-No violation of Article 22(5)-Detention order valid. (Paras 6, 12, 13 & 16)