JUDGMENT

K. JAGANNATHA SHETTY, J.:— A Division Bench of this Court while expressing the view that the decisions in V. J. Jain v. Shri Pradhan, AIR 1979 SC 1501 :(1979) 4 SCC 401 and Om Prakash Bahl v. Union of India, W.P. No. 845 of 1979 decided on 15-10-1979 (Unreported), require re-consideration has referred these matters to the Constitution Bench.

2. It is convenient at this point to refer to the statement of law laid down in the aforesaid two cases. In both the cases, as in the present case, the persons were detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the Act). The detenu made representation to the appropriate Government. By then the Advisory Board was already constituted and it was scheduled to meet to consider the case of the detenu. The Government forwarded the detenus representation to the Advisory Board. The Advisory Board considered the case of the detenu and also the representation and submitted report expressing the opinion that there was sufficient cause for the detention of the person. The Government after considering that report confirmed the order of detention. It appears that the representation of the detenu was not considered before confirming the detention order and it came to be considered and rejected only thereafter. In V. J. Jains case, AIR 1979 SC 1501 this Court observed that the representation of the detenu should be considered by the detaining authority as early as possible before any order is made confirming the detention. The confirmation of the detention order without the consideration of representation would be invalid and the subsequent consideration of the representation would not cure the invalidity of the order of confirmation. This view has been reiterated in the unreported judgment in Om Prakash Bahl case, Decided on 15-10-1979.

3. The relevant facts of the present case may now be narrated: On 1 December, 1988, the officers of the Directorate of Revenue Intelligence upon getting information that the contraband gold has been secreted in the room occupied by K. M. Abdulla Kunhi, searched the room in the presence of independent witnesses. Another person called Mohammed Ali was also present inside the room. The officers recovered one Samsonite pouch and some bundles of Indian currencies amounting to Rs. 34,800/- from the table drawer in that room. Inside the said pouch, there were five gold biscuits of 24 ct. purity and of foreign origin. Under the Mahazar, the officers seized the gold biscuits along with the Indian currency. On 24 February 1989, the State Government passed two separate orders of detention under Section 3 (1) (iv) of the Act, directing the detention of K. M. Abdulla Kunhi, the common petitioner in W. P. (Crl) No. 508 of 1989 and SLP (Cri.) 2009 of 1989, and B. L. Mohammed Ali, the common petitioner in W. P. (Cri.) No. 542 of 1989 and SLP (Crl.) No. 2117 of 1989. On 9 March 1989, Mohammed Ali was taken into custody. Both of them were detained in Central prison, Bangalore. On 17th April 1989, the detenus made representations to the Government. The representations could not be immediately considered since they required translation and collection of information and comments from different authorities. In the meantime, the case was referred to the Advisory Board which had its meeting on 20 April 1989. The Board considered the case of the detenus and reported that there was sufficient cause for their detention. On 27 April 1989, the Government after accepting the report confirmed the detention orders of both the persons. On 7 May 1989, the Government considered and rejected the representation of Abdulla Kunhi and the same was communicated to him on 9 May 1989. The representation of Mohammed Ali was likewise considered and rejected on 6 May 1989. It appears he has made a similar representation to the Central Government which was also rejected on 23 May 1989.

4. The detention orders were challenged before the High Court of Karnatak