2020 Supreme(SC) 232

SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, HEMANT GUPTA, JJ.
ANKIT ASHOK JALAN – PETITIONER
VERSUS
UNION OF IDNIA AND ORS. – RESPONDENTS
WRIT PETITION (Criminal) No. 362 of 2019
Decided on : 04-03-2020

IMPORTANT POINT
Per Uday Umesh Lalit. J.
Specially empowered officer is bound to consider the representation without waiting for report of the Central advisory board.
Per Hemant Gupta, J.
It would be prudent and proper for the Detaining Authority to defer the decision on the representation to revoke the detention order, when the matter is being considered by Advisory Board.

Headnote:

Per Uday Umesh Lalit. J.

(a) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - section 11 r/w section 21, General clauses Act 1897 - In case of detention ordered by an officer specially empowered u/s 3, detenue has a right to make a representation to the said officer - Said officer obliged to consider the representation. (Para 12)

(b) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 11 - In situations where (1) after receipt of representation there is no sufficient time for its consideration before referring the matter to Advisory Board and (2) representation is received after the matter is referred to Advisory Board - No question of consideration of the representation before the receipt of report of the Advisory Board. (Para 17)

(c) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 11 - Specially empowered officer and the Government - Distinction - Government acts in dual capacity - One while considering the representation, and the other while taking appropriate decision after receipt of Advisory Board report - While government must wait for Advisory Board report, the specially empowered officer may not. (Para 21, 22)

(d) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 8 - Report of Advisory Board confidential and meant for appropriate Government to take statutory decision - Not so with specially empowered officer. (Para 23, 25)

(e) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 8 - Detaining authority, that is, specially empowered officer receiving representation on 27.11.2019 but considering the representation only on 14.01.2020 because report of the Central Advisory Board was awaited - Detaining Authority being not required to await report of Advisory Board for considering representation, the delay without valid explanation causing prejudice to detenue - Continued detention illegal. (Para 26, 28)

Per Hemant Gupta, J.

(f) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3 r/w section 21, General Clauses Act, 1897 - Detaining Authority has jurisdiction to revoke detention order - Consideration of Advisory Board - An additional safeguard and not a substitute for consideration of representation by appropriate Government. (Para 3)

(g) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3 - Government-Detaining Authority while considering representation for revocation of detention order only required to see if the order is in conformity with law - However, after receipt of Advisory Board recommendations Government required to examine sufficiency of cause for detention - Jurisdiction of dealing with representation as detaining authority and while considering recommendation of Advisory Board operate in two separate and distinct spheres. (Para 4, 15, 22)

(h) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3 - Consideration of representation of detenu by appropriate authority/ Detaining Authority - Entirely independent and has no connection to consideration by Advisory Board. (Para 6)

(i) Constitution of India - Article 22 r/w section 21, General Clauses Act, 1897 - Dual obligation of detaining Authority - To communicate to detenu as soon as may be, grounds on which the order of detention has been made; and secondly, to afford detenu earliest opportunity of making a representation against order of detention - Authority ordering detention has power to revoke the same - Detaining Authority is duty-bound to consider representation of detenu - Decision on representation - Independent of recommendation of Advisory Board. (Para 16, 19)

(j) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3 - It would be prudent and proper for the Detaining Authority to defer the decision on the representation to revoke the detention order, when the matter is being considered by Advisory Board - Instantly representation received after matter referred to Advisory Board - Deferment of consideration of representation till receipt of report of Advisory Board cannot be said to be delayed. (Para 23)

Facts of the case:

On 01.07.2019, Joint Secretary to the Government of India passed the Detention Orders after being satisfied that with a view to prevent the detenues from smuggling goods, abetting the smuggling of goods, and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, in future, it was necessary to make the said Detentions Orders.

The detenues were served with the Detention Orders, the grounds of detention and the relied upon documents on 02.07.2019.

On 18.07.2019 the cases of the detenues were referred to the Central Advisory Board along with the grounds of detention and relied upon documents.

On 22.07.2019 representation dated 17.07.2019 made on behalf of both the detenues, addressed to the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue was received.

Communication dated 05.12.2019 stated that the representation would be considered only after the receipt of the opinion of the Central Advisory Board.

Finding of the Court:

Per Uday Umesh Lalit. J.

Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board.

Per Hemant Gupta, J.

Deferment of consideration of representation till receipt of report of advisory Board cannot be said to be delayed.

Result: Per Uday Umesh Lalit. J. Petition allowed. Per Hemant Gupta, J. Petition dismissed.