IMPORTANT POINT
In a preventive detention order, representation made to one authority is not required to be considered by all authorities.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1971-Section 3-Preventive detention order-Whether representation made by detenu or on his behalf before one authority is required to be considered by all authorities? No.
       Held : Each authority, concededly, is required to apply its mind on the materials placed on records and pass an order either rejecting or allowing the said representation. A representation of the detenu having regard to clause (5) of Article 22 of the Constitution of India must also be disposed of within a reasonable time. It is equally well-settled that the constitutional right to make a representation includes the right to obtain proper consideration thereof by the authority to whom it is made. Would that mean, as has been held by the High Court, that a representation made before one authority must also be considered by other authorities? The answer to the said question must be rendered in the negative. If it is to be assumed that the three different authorities before whom the representations are made are required to obtain copies of the representations made to the others; before a representation is considered, the concerned authority will have to make an enquiry from the authorities as to whether a representation had been made to it and if the answer thereof is in the affirmative, to obtain a copy thereof. Once such a enquiry is made and eventually if in the meanwhile an order on such representation has been passed by the concerned authority, the same would also be required to be obtained. Apart from the fact that such procedure is not contemplated, a great delay would ensue thereby which would run counter to the constitutional schemes, as the detenu has a fundamental right to have the same considered and obtain an order on his representation by the appropriate authority at the earliest opportunity. (Paras 16 to 19)
       The decisions of this Court whereupon reliance has been placed by the High Court, therefore, nowhere state that copy of the representation made by the detenu to one authority must be placed before all the authorities and all such authorities also should consider and pass orders on those representations, though really not made to any one of them. (Para 26)

JUDGMENT

S.B. Sinha, J.-Whether representation made by the detenu or on his behalf is required to be considered by all the authorities is the sole question involved in this appeal which arises out of a judgment and order dated 19.12.1995 passed by a Division Bench of the Calcutta High Court in Criminal Miscellaneous Case No. 5039 of 1995.

2. The husband of the first respondent herein was arrested on 17.6.1995 on the charge of having grossly undervalued imported Floppy Disk Drives whereby customs duty to the extent of Rs. 21.53 lakhs was evaded. During investigation of the said case, the detenu made a confessional statement before the Customs Officer but on being produced before the Chief Metropolitan Magistrate, Calcutta, he retracted therefrom. He was granted bail in the aforementioned case.

3. The first respondent herein thereafter filed a writ application before the Calcutta High Court for quashing the statement allegedly obtained from her husband by the Customs Officer.

4. He was thereafter detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (hereinafter referred to as the COFEPOSA , for the sake of brevity). The said order of detention was served on him on 28.8.1995.

5. The detenu, made three representations - firstly, on 4.9.1995 before the Joint Secretary, COFEPOSA which was rejected on 21.9.1995, the second on 11/12.9.1995 addressed to Shri K.L. Verma, Joint Secretary to the Government of India which upon obtaining the comments of the Sponsoring Authority was rejected on 9.10.1995; and the third on 14.9.1995, addressed to the Secretary to the Government of India which was rejected by the Finance Minister on 16.10.1995.

6. Questioning the validity or otherwise of the said order of detention, the wife of the detenu, the first respondent herein, filed a Criminal Miscellaneous Case before the Calcutta High Court which was marked as Criminal Miscellaneous Case No. 5039 of 1995, inter alia, praying for :

"(a) a writ of and/or order and/or direction in the nature of Habeas Corpus calling upon the petitioners and each one of them to forthwith set the detenu at liberty;

(b) a writ of and/or order and/or direction in the nature of Mandamus commanding the petitioners and each one of them to show cause as to why the order of detention being No. F. No. 673/89/95-CUS. VIII dated 22.8.95 passed by the petitioner No. 2 be not quashed and/or set aside.

(c) a writ of and/or order and/or direction in the nature of certiorary commanding the petitioners, their servants, agents and associates and each one of them to transmit the records relating to the issuance of the order of detention being No. F. No. 673/89/95/Cus. VIII dated 22.8.1995 to the Hon ble High Court so that the same may be quashed and/or set aside and a conscionable justice done;

(d) a writ of and/or order and/or direction in the nature of prohibition prohibiting or restraining the petitioners each one of their agents, servants and associates to forbear from giving any effect of further effect to the order of detention being No. F.No. 673/89/95- Cus. VIII dated 22.8.1995."

7. A Division Bench of the High Court in the impugned judgment observed that the first representation made by the Joint Secretary, who is the detaining authority, was not placed before the Central Government and was not considered by it at all. As regard, the second representation also, the High Court made an observation that the same had not been independently considered by the Central Government irrespective of the stand taken by the Joint Secretary to the Government of India. So far as the third representation is concerned, it was observed that there was no clear indication in the relevant file that the said representation was considered by the detaining authority independently. Relying on or on the basis of three decisions of this Court in Kamleshkumar Ishwardas Patel etc. vs. Union o

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2004 Supreme(SC) 89

IMPORTANT POINTIn a preventive detention order, representation made to one authority is not required to be considered by all authorities.

Cases Referred (6)

IMPORTANT POINT
In a preventive detention order, representation made to one authority is not required to be considered by all authorities.