2004 Supreme(SC) 42

2004(1) Supreme 489
Supreme Court of India
(From Kerala High Court)
V.N. Khare, CJI., P. Venkatarama Reddi and S.B. Sinha, JJ.
A.C. Razia -Appellant
versus
Government of Kerala and Ors. -Respondents
Criminal Appeal No. 53 of 2004
(Arising out of Special Leave Petition (Crl.) No. 153 of 2003
With
Writ Petition (Crl.) No. 6 of 2003
Decided on 12-1-2004
Counsel for the Parties :
For the Appearing Parties : B. Kumar, P.P. Malhotra, T.L.V. Iyer, Sr. Advocates, P.K. Manohar, Ms. Pinky Anand, B.K. Prasad, Rajeev Sharma, K.R. Sasiprabhu, John Mathew, Advocates.

Important point
In preventive detention cases, there is no constitutional requirement-express or necessarily implied that the authority considering the representation should have before it all the documents referred to in detention order with translated version thereof but the Court has to be satisfied that there was due application of mind to the crucial aspects.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1985-Sections 3(2) and 11-Constitution of India-Article 22(4) and (5)-Detention of petitioner’s husband u/s 3(2)-Seizure of foreign currency-Detenu confessed to his involvement-However, statements retracted later on-Order of detention passed-Detenu served with order and grounds of detention together with copies of various documents referred to in the grounds-Representation addressed to detaining authority rejected by State Government-Representation addressed to Central Government also rejected-Case of detenu referred to Advisory Board-On basis of report received, Government confirmed detention order-Writ petition filed challenging detention order-Allegations that documents furnished to detenu were not translated into Malayalam rejected by High Court-Detenu submitted that improper disposal of representation vitiated the detention as many of the crucial documents were in Malayalam and officials of Central Government had not called for translated copies of documents-Rajendra Babu, J. allowed writ petition by quashing order of detention-However, G.P. Mathur, J. held that writ petition and SLP were liable to be dismissed-Whether there could be due application of mind on part of Central Government and proper disposal of representation in absence of English translated copies of documents relied on in detention order-(Yes) (Majority Opinion) (No, minority opinion).

       Majority Opinion [V.N. Khare, CJI and P. Venkatarama Reddi, J.]

       Held : The additional remedy or safeguard provided by Section 11 has been projected into the fabric of Article 22(5) so as to be absorbed into the ambit of safeguard provided by the latter part of Article 22(5). A provision like Section 11 may or may not be necessary to give effect to that safeguard, but, once a provision like Section 11 finds its place in the detention law, the detenu’s constitutional right to make representation gets amplified. His right extends to making representations to all those authorities who can grant him relief and the opportunity afforded to the detenu to submit such representations thus becomes a part of the guaranteed right under Article 22(5). That is how the ratio of the above decisions has to be understood. In fact, that is how it has been understood by the detaining authority in the instant case. We find at the end of the order a note to the effect that the detenu has the right to make representations to the detaining authority, the Central Government and COFEPOSA Advisory Board against the detention. (Para 19)

       The Government in exercise of the power under Section 11 does not consider the question of sufficiency or adequacy of the grounds but it would only see whether the detention order is within the parameters of the power conferred under the statute. In other words, it will not review the case as if it is an original or appellate authority. That is why the power under Section 11 has been described as supervisory in nature (Para 21)

       The proposition that the power conferred under Section 11 is supervisory does not however mean that the exercise of power is purely discretionary or that the process of consideration could be casual and superficial. No doubt, as laid down in Abdulla Kunhi’s case (vide para 19), there need not be a speaking order in disposing of such representation. However, the Government has a duty to consider the representation in proper perspective in order to see whether the order of detention is in conformity with law. The Government, should, quite apart from the points raised in the representation, apply its mind broadly to the question whether the detention is in accordance with law. For instance, if the material relied upon by the detaining authority does not ex facie establish a nexus with the pre-conditions for the exercise of the power or the conclusions of the detaining authority are found to be wholly perverse or the prescribed procedure has not been followed by the detaining authority, the appropriate Government acting under Section 11 has a duty to interfere and revoke the order of detention. In order to achieve this end, the Central Government must necessarily have regard to the representation, the report received from the State Government, the detention order and the material relied upon in the detention order or referred to in the representation. The exercise of the power under Section 11 should not be a mere formality or a farce. Care and vigilance should inform the action of the Government while discharging its supervisory responsibility. (Para 22)

       There can be no hard and fast rule that the appropriate Government called upon to take a decision under Section 11 should necessarily have copies of all the documents relied upon by the detaining authority with the translated version thereof. In the context of the guarantee under Article 22(5), it was laid down that “if the documents which form the basis of the order of detention were not served on the detenu along with the grounds of the detention, in the eye of law, there would be no service of the grounds of detention and that circumstance would vitiate the detention and make it void ab initio (Para 24)

       We are of the view that the proposition laid down by this Court that the copies of translated documents forming the basis of the detention order should be furnished to the detenu in order to give effect to the guarantee enshrined in Article 22(5) cannot be imported while dealing with the question in the context of exercise of power of revocation under Section 11 on the basis of representation or otherwise. The question whether there was due consideration of representation has to be judged by general principles of administrative law. There is no constitutional requirement - express or necessarily implied that the authority considering the representation should have before it all the documents referred to in detention order with translated version thereof. But, the availability or non-availability of such documents with the empowered authority under Section 11 will only have bearing on the manner of consideration of representation, which in turn depends on the facts of a particular case. The endeavour of the Court in this regard is only to assess whether there was fair and proper consideration by the Government by applying its mind to the crucial aspects warranting its attention. The necessity or otherwise of having copies of documents should be viewed in that light. The Court has to be satisfied that there was due application of mind to the crucial aspects. The points raised by the detenu in the representation would naturally assume importance, as pointed out by Mathur, J. though the Government ought not to confine itself to the points highlighted in the representation alone. If, for the purpose of appreciating the points in the representation, the documents are required to be seen, naturally, the Central Government will be failing in its duty if it does not call for the documents with translation. (Para 24)

       In the representations made by the petitioner (detenu’s wife) - the English version of which were on the record of Central Government, the plea taken was that the statements were obtained under threat and coercion and that is why they retracted from the previous statements. Of course, certain other grounds were urged which are not relevant for the purpose of examining the issue with which we are concerned. On the facts alleged or points raised, there was really no need to have access to any of the documents referred to in the detention order. Having regard to this factual situation, we do not think that the Central Government should necessarily have the translated copies of the documents referred to and relied upon in the detention order and that the absence of such documents has vitiated the consideration of the representation, nor can it be said that there was no application of mind on the part of the Central Government for the simple reason that the translated copies of the documents were not available before it. The physical availability of such documents or translated version thereof, would have made no difference as regards the disposal of representation or the consideration of the question whether the detention was in conformity with law. As already stated, the very perusal of the detention order would give a clear picture of the incriminating material relied upon by the detaining authority. In the circumstances, to insist on the perusal of original or true copies of statements and other documents referred to in the detention order would amount to insisting on an empty formality. The constitutional guarantee does not go to that extent. (Para 26)

       Minority Opinion [S.B. Sinha, J.]

       It, therefore, does not appear that the appropriate authorities of the Central Government considered the representation and the documents referred to therein as also the necessity of such documents requiring regional language to be translated and the effect thereof. The said authority evidently had not considered the fact that the purported statements made by the witnesses under Section 108 of the Customs Act and the alleged confession of the detenu had been retracted as well as the effect thereof. The grounds of detention may contain the summary of the statements of the witnesses or the detenu; but despite the same entire statements are required to be supplied to the detenu. In the representation made by the detenu or on his behalf, it may be pointed out that the statements made by any person linking him with the alleged violation are factually incorrect or such statements have been misconstrued or misapplied by the detaining authority. A plea is also possible to be raised that the statement of a witness was misread by the detaining authority. The statements extracted in the ground of detention may contain some other lacuna and thus it would be no answer to the procedural safeguards contained in Article 22(5) of the Constitution. If such a factor is taken into consideration, we would be bringing in indirectly the “prejudice doctrine” in a prevention detention matter. Even such a contention has not been raised by the learned counsel appearing on behalf of the Central Government or the State of Kerala. In a matter of this nature only one question is required to be asked i.e. ‘whether translated copies of the primary documents were before the Central Government, and if the answer is in the negative; the order of detention must be quashed. The court exercising its power of judicial review would not embark into any other question nor would it itself examine the matter for the purpose of ascertaining as to whether there has been substantial compliance of constitutional requirements. A judicial review of a matter dealing with liberty of a citizen must receive stricter consideration keeping in view the human right aspect in mind. (Paras 62 to 66)

       The contention raised that by calling for the translated documents relied on by the detenu, a delay would be caused is of no moment. Such delay, if reasonable, is always condoned by the courts while exercising their jurisdiction of judicial review. For the reasons aforementioned, I respectfully dissent with the opinion of P.V. Reddi, J and I am of the opinion that the opinion of Rajendra Babu, J. laid down the law correctly in the facts and circumstances of the present case. (Paras 67 and 68)