1. Preventive detention orders under COFEPOSA and PIT NDPS Acts — dispute regarding the obligation of specially empowered officers to consider representations under Article 22(5). (Para 2 , 3 , 16 , 18 )
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1995 Supreme(SC) 542
SUPREME COURT OF INDIA
A.M. AHMADI, C.J.I. AND S.C. AGRAWAL, S.P. BHARUCHA, K.S. PARIPOORNAN AND SUJATA V. MANOHAR, JJ.
Criminal Appeals Nos. 764-765 of 1994
KAMLESH KUMAR ISHWAR DAS PATEL
Versus
UNION OF INDIA AND OTHERS
With
Criminal Appeal No. 850 of 1994
UNION OF INDIA AND OTHERS .
Versus
ARIF U. PATEL
With.
Criminal Appeal No. 915 of 1994
UNION OF INDIA .
Versus
MEERA MOHIDEEN ..
With
Criminal Appeal No. 553 of 1995
HANSABEN JAYANTILAL SHAH
Versus
UNION OF INDIA AND OTHERS .
Criminal Appeals Nos. 764-765, 850 and 915 of 1994 {From the Judgment and Order dated 16/19-9-1994 of the Bombay High Court in Crl. W. P. No. 284 of 1994} and 553 of 1995, decided on April 17, 1995
Advocates appeared:
Ram Jethmalani, Senior Advocate (Ms H. Wahi, Ms N. Mukherjee and Ms S. Hazarika, Advocates, with him) for the Appellant in Cri. As. Nos. 764-65 of 1994. R.K. Jain, Senior Advocate (Manoj Goel and Ms Meenakshi Arora, Advocates, with him) for the Appellant in Crl. A. No. 553 of 1995.
K.T.S. Tulsi, Additional Solicitor General (Y.P. Mahajan, V.J. Francis, V.K. Verma, Krishan Mahajan and D.S. Mahra, Advocates, with him) for the Union of India. Ram Jethmalani, Senior Advocate (B. Kumar and K.K. Mani, Advocates, with him) for the Respondent in Crl. A. No. 850 of 1994.
A.S. Bhasme, Advocate, for Respondent in Nos. 3 and 4 in Crl. A. No. 553 of 1995. R.K. Jain, Senior Advocate (P.H. Parekh, Ms Sunita Sharma and N.K. Sahoo, Advocates, with him) for the Intervenor in Crl. As. Nos. 764-65 of 1994.
Important Points
Under Article 22(5) of the Constitution, a person preventively detained under COFEPOSA or PIT NDPS Acts has the right to make a representation to the detaining officer. The officer is obliged to consider it independently; failure to do so violates constitutional safeguards, rendering the detention illegal.
Subject
Constitutional Law - Preventive Detention
Act Referred
Headnote
Constitution of India 1950- Art. 22 (5) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3 - Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Orders for preventive detention passed by officers specially empowered by Central Government or State Government - Consideration of representation - Whether the said officer specially empowered to make order is also required to consider representation submitted by detenu ? - (Yes)
Held: Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order had been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation. (Para 22) __ (i) Constitution of India 1950 - Art: 22(5) - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 11 - Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Section 12 - Orders for detention passed by officers specially empowered by Central Government under COFEPOSA and PIT NDPS Act Whether the said officer is required to consider representation submitted by detenu? - (Yes) -This right of detenu is in addition to his right to make representation to State Government and Central Government - The person detained must be informed of his right to make a representation to the authority that has made the order at the time when he is served with grounds of detention - Failure to do so results in denial of right of person detained to take a representation. (Para 15)
(ii) Constitution of India - Art. 22(5) - Right to make representation - Nature of - Person detained has a right to make representation against order of detention not only to Advisory Board but also to detaining authority.
Held: Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority., i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries with it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation. (Para 7)
Legal Category Hierarchy
- constitutional law
- administrative law
- crime and sentencing
- practice and procedure
Table of Contents
2. Whether representations must be considered by the detaining officer or only by the appropriate Government as the ultimate detaining authority. (Para 3 , 7 , 24 )
3. Article 22(5) is a fundamental right; representations must be made to authorities capable of granting relief, including officers with independent revocation powers. (Para 4 , 5 , 6 , 7 , 9 , 10 , 11 , 12 , 13 , 14 , 21 , 22 , 24 , 26 , 27 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 )
4. Specially empowered officers are detaining authorities obligated to independently consider representations; failure to do so or inform the detenu violates Article 22(5). (Para 14 , 34 , 38 )
5. Detention orders set aside where officers failed to independently consider representations or inform detenus of such right; other appeals dismissed. (Para 46 )
6. To which authority must a representation under Article 22(5) of the Constitution be made?
A representation must be made to the authority capable of granting relief, specifically the authority that has the power to revoke the detention order and set the person at liberty. (Para 6 , 14 )
7. Do specially empowered officers under COFEPOSA or PIT NDPS Acts have the power to revoke detention orders?
Yes. Under Section 21 of the General Clauses Act, the authority making the order is competent to revoke it. This power is expressly preserved by the without prejudice clause in Sections 11 and 12 of the respective Acts. (Para 6 , 21 , 22 , 24 , 26 , 27 )
8. Is the Government considered the detaining authority when an officer is specially empowered to pass the order?
No. A specially empowered officer exercises independent power based on their own satisfaction. The order does not acquire deemed approval by the Government; the officer remains the detaining authority as long as the order is operative. (Para 33 , 34 )
9. What is the legal consequence if a detaining officer merely forwards a representation to the Government without independently deciding on it?
Such failure results in a denial of the constitutional safeguard under Article 22(5), rendering the detention illegal, as the officer is obligated to independently consider and decide the representation. (Para 38 , 42 , 46 )
10. Must the detenu be informed of the right to represent to the detaining officer specifically?
Yes. The detenu must be informed of the right to make a representation to the authority that made the order at the time the grounds of detention are served. (Para 14 , 38 )
JUDGMENT
S.C. AGRAWAL, J.- Leave granted in SLP (Crl) No. 282 of 1994.
2. When an order for preventive detention is passed by an officer especially empowered to do so by the Central Government or the State Government, is the said officer required to consider the representation submitted by the detenu?
3. This is the common question that arises for consideration in these appeals in the context of orders for preventive detention passed by officers especially empowered by the Central Government under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA Act") and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short PIT NDPS Act). There is divergence in the decisions of this Court on this question. In Amir Shad Khan v. L. Hmingliana {(1991) 4 SCC} (decided by a Bench of three Judges) it has been held that where an officer of the State Government or the Central Government has passed any detention order and on receipt of a representation he is convinced that the detention needs to be revoked he can do so. In State of Maharashtra v. Sushila Mafatlal Shah {(1988) 4 SCC 490 } (decided by a two-Judge Bench) a different view has been expressed. It has been held that if an order of detention is made by an officer specially empowered by the Central Government or a State Government the representation of the detenu is required to be considered only by the Central Government or the State Government and it is not required to be considered by the officer who had made the order.
4. The question posed has to be considered in the light of the provisions relating to preventive detention contained in Article 22 of the Constitution as well as the provisions contained in the relevant statutes.
5. The Constitution, while permitting Parliament and the State Legislatures to enact a law providing for preventive detention, prescribes certain safeguards in Article 22 for the protection of the persons so detained. One such protection is contained in sub-clause (a) of clause (4) of Article 22 which requires that no law providing for preventive detention shall authorise the detention of a person for a period longer than three months unless an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for the detention. The other safeguard is contained in clause (5) of Article 22 which provides as under :
"22. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
6. This provision has the same force and sanctity as any other provision relating to fundamental rights. (See: State of Bombay v. Atma Ram Shridhar Vaidya {1951 SCR 167, 186}.) Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the rep
