Judgment:
Ashok Agarwal, J.
1. An inordinate and unexplained delay in considering the representation of the detenu by the Central Government, in our view, has rendered the continued detention of the detenu null and void.
2. Petitioner is the wife of the detenu Shri Mohanlal Manrupchand Jain. By the present habeas corpus petition, petitioner seeks to impugn an order of detention dated 8th September, 1994 passed by Shri K.L. Verma, Joint Secretary to the Government of India, being an officer especially empowered under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The order of detention was served on the detenu on the 12th September, 1994 and the detenu was incarcerated.
3. The material dates, which are relevant for deciding the controversy raised before us, are as under:---
On 25th of October, 1994 a representation alongwith a forwarding letter dated 24th of October, 1994, was handed over by Smt. A.M.Z. Ansari, Advocate, to the Superintendent of Prison requesting the later to obtain the signatures of the detenu on the representation and send the same to the concerned authorities. Six copies of the representation were handed over. The representation is addressed to Shri K.D. Verma, Joint Secretary, Government of India, Ministry of Finance, being the Detaining Authority and the Chairman and Members of the Central COFEPOSA Advisory Board. After obtaining the signatures on the representation three copies of the representation were forwarded, one to the Detaining Authority, second to the Central Government and the third to the Chairman, Central Advisory Board. This was on the 26th October, 1994. The representation was received by the COFEPOSA Cell of the Government of India on the 4th of November, 1994. The said representation was considered and rejected by the Detaining Authority on the 24th of November, 1994. The rejection letter dated the 25th of November, 1994 was sent to the Jail Authorities, which was received in Jail on the 15th of December, 1994 and the same was served on the detenu on the 16th of December, 1994.
4. In regard to the controversy raised before us regarding consideration of the representation by the Central Government, as we have already pointed out, three copies of the representation, which were addressed to the Detaining Authority and the Advisory Board were despatched by the jail authorities on the 26th of October, 1994. The representation was duly received by the COFEPOSA Cell on the 4th of November, 1994. A copy of the representation was also received by the Central Advisory Board. The Advisory Board held its meetings on the 11th and 14th November, 1994. On 25th of November, 1994 the Advisory Board opined that there was sufficient ground to pass an order of detention against the detenu. The Advisory Board also considered and rejected the representation of the detenu. The opinion of the Advisory Board alongwith the rejection of the representation dated 25th of November, 1994 was communicated by the Board to the COFEPOSA Cell of the Central Government on 28th of November, 1994. The representation of the detenu was, thereafter, placed before the Joint Secretary on the 28th of November, 1994, before the Additional Secretary on the 29th of November, 1994, before the Secretary on the 30th of November, 1994. and before the Honourable Minister on the very same day i.e. the 30th of November, 1994. On this date, the Honourable Minister considered the representation and rejected the same. The file of the rejection by the Minister was received by the COFEPOSA Cell on the 2nd of December, 1994. On 5th December, 1994 memo of rejection by the Central Government was issued and was, thereafter, served on the detenu by the jail authorities. As far as the delay on the part of the Central Government is concerned, it is contended that there has been a complete inaction on the part of the Central Government during the period 4th November, 1994 when the representation was received by the Central Government and 28th of November, 1994 when the file was received from the Advisory Board conveying its opinion in regard to the validity of the order of detention and the rejection of the representation. It is contended on behalf of the Central Government, and the contention is supported by the learned Public Prosecutor, that the representation was not addressed to the Central Government. The same was addressed only to the Detaining Authority and to the Advisory Board. The Central Government, therefore, was not obliged to consider the same the moment it came in possession of the same. It is, however, conceded that the said representation was required to be considered by the Central Government and the same was indeed considered after receipt of the opinion of the Advisory Board. The concerned file of the Advisory Board contained a copy of the representation addressed by the detenu and hence the Central Government was bound to, and did in fact, consider it and has rejected the same.
5. A short controversy which arises for our consideration is, whether the Central Government was justified in refusing to consider the representation of the detenu immediately after the same came in its possession and whether it was justified in waiting for the report of the Advisory Board before taking up the representation for its consideration? In this context, the relevant provisions of the Constitution of India and the COFEPOSA Act may be perused. Article 22(4) of the Constitution provides as under:---
'22. Protection against arrest and detention in certain cases- ... ... ..... ... ...
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-
(a) 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 such detention :
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of Clause (7) : or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clause (a) and (b) of Clause (7).
Article 22(5) of the Constitution provides as under :---
'(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.
Article 22(7) of the Constitution provides as under :---
'(7) Parliament may by law prescribe---
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of Clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of Clause (4).
6. Article 22(4) lays down the maximum period that a detenu can be detained without obtaining an opinion of the Advisory Board. Article 22(5) provides for an obligation on the part of the Detaining Authority to communicate to the detenu grounds of detention on which order of detention has been passed. It further enjoins on the Detaining Authority an obligation to afford the detenu the earliest opportunity of making a representation against the order. Article 22(7) prescribes the power conferred on the Parliament to enact law providing for detention for a period longer than three months without obtaining opinion of the Advisory Board in accordance with the provisions of sub-clause (a) of Clause (4), a maximum period for which any person can be detained under a law providing for preventive detention and the procedure to be followed by Advisory Boards in enquiries under Clause (a) of Clause (4).
7. Section 3 of the COFEPOSA Act provides for powers to pass orders of detention. Sub section (1) of section 3, in so far as is relevant, provides :---
'3(1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to the Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange ... ... ... ... it is necessary so to do, make an order directing that such person be detained.'
Sub-section (1) of section 3 thereafter contains a proviso with which we are not concerned, as far as the controversy at hand is in question.
Sub-section (2) of section 3 provides :---
(2) When any order of detention is made by a State Government or by an Officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.'
Sub-section (3) of section 3 provides, as under :---
'(3) For the purposes of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.'
8. Whereas sub-section (1) of section 3 provides for the power to pass orders of detention, sub-section (2) of section 3 provides that in case an order of detention is passed by a State Government or an officer empowered by the State Government, the State Government is enjoined to forward to the Central Government a report in respect of the order within a period of ten days. Sub-section (3) of section 3 enjoins upon the Detaining Authority to communicate the grounds of detention to the detenu as soon as may be after the detention of the detenu. The same is required to be communicated to the detenu within a period of five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
9. Section 8 of the Act provides for constitution and the functioning of Advisory Boards. Section 8 of the Act, in so far as is relevant, provides as under :---
'8. Advisory Boards-For the purposes of sub-clause (a) of Clause (4) and sub-clause (c) of Clause (7) of Article 22 of the Constitution.
(a) the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualification specified in sub-clause (a) of Clause (4) of Article 22 of the Constitution;
(b) save as otherwise provided in section 9, the appropriate Government shall, within five weeks from the date of detention of person under a detention order, make a reference in respect thereof to the Advisory Board constituted under Clause (a) to enable the Advisory Board to make the report under sub-clause (a) of Clause (4) of Article 22 of the Constitution:
(c) the Advisory Board to which a reference is made under Clause (b) shall after considering the reference and the material placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned;'. ... ... ... ... ... ...
(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.'
10. Sub-section (a) of section 8 provides for constitution of Advisory Boards by the Central Government and State Government. The same provides that the Board will consist of a Chairman and two other persons who are or who have been or are qualified to be appointed as Judges of a High Court, as provided under Clause (4) of Article 22 of the Constitution. Sub-section (b) of section 8 provides that except in cases provided under section 9, the appropriate Government shall, within five weeks from the date of detention of person under a detention order, make a reference in respect of the detention order to the Advisory Board. Sub-section (c) provides that the Advisory Board to which a reference is made should prepare its report specifying its opinion as to whether or not there is sufficient cause for the detention of the detenu and submit the same within eleven weeks from the date of detention of the person concerned. Sub-section (f) deals with the power of the appropriate Government after it receives the report of the Advisory Board. If the opinion is in favour of the detention order it empowers the appropriate Government to confirm the detention order and specify the period of detention. If, however, the opinion is against the detention order it enjoins upon the appropriate Government to revoke the detention order and cause the detenu to be released forthwith.
11. Section 11 deals with the powers of revocation of detention order. The same provides as under:---
'11. Revocation of detention order.---
(1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified-
(a) Notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government;
(b) Notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.
(2) The revocation of a detention order shall not bar the making of another order under section 3 against the same person.'
Section 11, thus, provides that an order of revocation can be passed not only by the Authority passing the order of detention as is contemplated by section 21 of the General Clauses Act but also by the Government. Sub-section (2) saves the power of passing a fresh order of detention even after an earlier order of detention has been revoked.
12. Section 2(a) defines appropriate Government as under :---
'2. Definitions.---In this Act, unless the context otherwise requires,-
(a) 'appropriate Government' means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government or a person detained under such order, the State Government:'
Hence, in case an order of detention is passed either by the Central Government or by an officer of the Central Government, the appropriate Government is the Central Government. In case the order of detention is passed either by the State Government or by an officer of the State Government, the appropriate Government is the State Government. The above provisions indicate that after a detenu is placed in detention he has been conferred with a right to make a representation to three authorities. He has a right to make a representation to the Detaining Authority, which is a right conferred under Article 22(5) of the Constitution, which right is reiterated by sub-section (3) of section 3. Sub-section (3) of section 3 emphasise the promptitude with which grounds of detention are required to be served on the detenu. The time provided in normal circumstances is a period of five days and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention. The detenu has a further right to make a representation to the Advisory Board and this is implicit by section 8(c) of the Act. He has a further right to make a representation to the appropriate Government which is implicit by the provisions of section 11 of the Act. The aforesaid right of a detenu to make a representation is coupled with an obligation on the part of the relevant authorities to expeditiously and without loss of time consider the representation and to inform the detenu of their decision in respect of the representation.
13. As far as the controversy at hand is concerned, it is undisputed that the representation in question is not addressed to the Central Government and is addressed only to the Detaining Authority and the Advisory Board. As far as the petitioner is concerned, he has contended that the representation which was jointly addressed to the Detaining Authority and the Central Advisory Board, ought to have been promptly considered and decided by the Central Government. This is disputed by Shri Agrawal, who appears both for the Detaining Authority and the Central Government. According to him, Central Government was not obliged to consider the representation not addressed to it, up-till the stage it received the report from the Advisory Board. He does not dispute, rather he concedes, that there is a duty cast upon the Central Government to consider the said representation while performing its functions of either confirming the order of detention or revoking the same under section 8(f) and section 11 of the Act and this is only after it has received the report of the Advisory Board. According to Shri Agrawal the obligation to consider the representation at this stage by the Central Government is statutory. As far as the representation is concerned, the same form a part of the proceedings of the Advisory Board. After the Advisory Board opined that there was sufficient material to pass an order of detention against the detenu the record in respect of the proceedings was sent to the Central Government and the Central Government was required to pass its orders in the light of the provisions of section 8(f) of the Act. In view of the opinion of the Advisory Board that there was sufficient cause for the detention of the detenu the Central Government would proceed to confirm the order of detention and provide for the period during which the detenu was required to be detained. Despite the said opinion, it was still open to the Central Government to revoke the order of detention. For deciding this issue, it was necessary to consider the representation of the detenu which forms part of the proceedings before the Advisory Board. Hence, it was only at that stage and at no prior point of time, that the Central Government was obliged or called upon to consider the representation. Non-consideration of a representation not addressed to the Central Government at an early point of time would not affect the order of detention or the continued detention of the detenu.
14. It can no longer be disputed and it is not disputed before us that as far as the copy of the representation is concerned, though addressed to the Detaining Authority and to the Advisory Board, a copy of the same was duly received by the Central Government. We have on record an affidavit dated 26th June, 1995 sworn by Shri K.T. Dabir, Jailor Grade-II, attached to the Central Prison, Bombay where the detenu has been detained. In para 2 of the affidavit it is averred, as under :---
'2. With reference to additional ground No. XVI, I say and submit that on 25th October, 1994 detenu's advocate submitted to the Superintendent, Bombay Central Prison 6 copies of the representations addressed on behalf of the detenu to the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue (the Detaining Authority), Government of India itself and Chairman, Central Advisory Board, New Delhi. In a covering letter dated 24th October 1994 detenu's Advocate had requested that signature of the detenu be obtained on the copy of the representation and the same be sent to the respective addresses named herein before. Accordingly, signatures of the detenu were obtained on the copies of the representation addressed to the respective authorities on 25th October 1994 and on 26th October 1994 the same were sent by registered post A.D. to the respective addressees.'
15. The aforesaid averments are clear and unambiguous. Representations have been sent to three distinct authorities, (1) the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue (Detaining Authority), (2) the Government of India itself and (3) the Chairman, Central Advisory Board, New Delhi. We have a further affidavit on record of Shri K.L. Verma, Joint Secretary to the Government of India. In para 2, it is averred, as follows :---
'2. As regards Ground No. (XVII), it is submitted that the representation dated 25-10-1994 jointly addressed to the detaining authority and the Central Advisory Board was received in the Cofeposa Unit of the Ministry on 4-11-1994.'
In view of the aforesaid averments we find that a copy of the representation was duly received by the Central Government on the 4th of November, 1994.
16. The question as regards the requirement of consideration of representations by the relevant authorities has been a subject of consideration in various decisions of the Apex Court. In the case of Jayanarayan Sukul v. State of West Bengal, reported in : 1970CriLJ743 it has been observed, as follows:---
'10. There have been five recent decisions of this Court on the provisions of this Act particularly in regard to the right of the detenu to have his representation considered by the appropriate Government and the obligation of the appropriate Government in that behalf. In Sk. Abdul Karim v. The State of West Bengal, W.P. No. 327 of 1968, dated 31-1-1969 ; : 1969CriLJ1446 this Court held that the appropriate Government could not be said to discharge the obligation merely by forwarding the representation of the detenu to the Advisory Board. Article 22 of the Constitution guarantees the right of a detenu to have a proper consideration of the representation by the appropriate authority.'
'11. ... ... .... ... ... ... The obligation of the appropriate authority to consider the representation of the detenu under section 7 of the Act is entirely independent of any action of the Advisory Board or any consideration by the said Board of the representation of the detenu. In the case of Pankaj Kumar Chakrabarty, W.P. No. 377 of 1968, dated 1-5-1969, : [1970]1SCR543 (supra) this Court observed : 'The peremptory language in Clause (5) of Article 22 of the Constitution and section 7 of the Act would not have been necessary if the Board and not the Government had to consider the representation.'
'12. There is another reason why the appropriate Government is required to consider on its own the representation of the detenu. If the consideration of the representation of the detenu by the Board sufficed the constitutional guarantee section 7 of the Act would be robbed of its content. In Pankaj Kumar Chakrabarty's case, W.P. No. 377 of 1968, dated 1-5-1969 : [1970]1SCR543 (supra) this Court emphasised the aspect that the representation was addressed to the Government and not directly to the Advisory Board and it was for the reason that the appropriate authority was to exercise its opinion and judgment in an independent and honest manner.'
'13. It, therefore, follows that the appropriate authority is to consider the representation of the detenu uninfluenced by any opinion or consideration of the Advisory Board. In the case of Khaitrul Haque v. State of West Bengal, W.P. No. 246 of 1969, dated 10-9-1969 reported in (1969)2 S.C.W.R. 529 this Court observed that 'it is implicit in the language of Article 22 that the appropriate Government, while discharging its duty to consider the representation cannot depend upon the view of the Board on such representation.' The logic behind this proposition is that the Government should immediately consider the representation of the detenu before sending the matter to the Advisory Board and further that such action will then have the real flavour of independent judgment.'
... ... ... ... ... ..
'16. In view of the fact that there is a fundamental right of the detenu to have the representation considered by the appropriate Government such right will be rendered meaningless if the Government will not deal with the matter expeditiously but at its own will and convenience. ... ... ...
'18. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.'
'19. No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in the words of Shelat, J., who spoke for this Court in the case of Khairul Haque, W.P. No. 246 of 1969, dated 10-9-1969 reported in (1969)2 S.C.W.R. 529 (supra) 'it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning.'
'20. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.'
17. In the case of Dr. Rahamatullah v. State of Bihar and another, reported in : 1981CriLJ1698 , the Supreme Court has observed. as follows :---
'4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with ...' '... Sub-Article(5) provides, inter alias, that the detaining authority shall as soon as may be communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the appropriate authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or any unreasonably belated consideration of the representation tantamounts to non-compliance of sub-Article (5) of Article 22 of the Constitution.'
'The law is well settled that in case of preventive detention of a citizen, the obligation of the appropriate Government is two-fold; i) to afford the detenu the opportunity to make a representation and to consider the representation which may result in the release of the detenu, and
ii) to constitute a Board and to communicate the representation of the detenu along with other materials to the Board to enable it to form its opinion and to obtain such opinion. The former is distinct from the latter. As there is a two-fold obligation of the appropriate Government, so there is a two-fold right in favour of the detenu to have his representation considered by the appropriate Government and to have the representation once again considered by the Government in the light of the circumstances of the case considered by the Board for the purpose of giving its opinion (see : 1979CriLJ469 ).'
'5. In the instant case, the State Government did not discharge the first of the two-fold obligation and waited till the receipt of the Advisory Board's opinion. There was, as pointed out above, an unexplained period of twenty-four days of non-consideration of the representation. This shows there was no independent consideration of the representation by the State Government; on the contrary they deferred its consideration till they received the report of the Advisory Board. This is clear non-compliance of Article (5) as interpreted by this Court. The order of detention is, therefore, liable to be quashed on this ground alone.'
18. In the case of Mrs. Nafisa Khalifa Ghanam v. Union of India and others, reported in : (1982)1SCC422 , the Supreme Court has observed, as follows:
'7. Lastly, it was pointed out that although the representation was received by the detaining authority on February 25, 1980, the representation was rejected on March, 13, 1980, a day after the Advisory Board had given its opinion. The Collector's remarks which were sent for were available to the detaining authority as far back as on March 6, 1980 and there could be no reason for the detaining authority to have deferred its decision on the representation till the receipt of the opinion of the Advisory Board. This Court has held that the detenu has an independent constitutional right to have the representation considered by the detaining authority irrespective of whatever the Advisory Board may do. In the instant case, though the respondents do not admit that they awaited the decision of the Advisory Board, the facts put together lead to the irresistible inference that the detaining authority waited for the opinion of the Advisory Board.'
19. In the case of Raghavendra Singh v. Superintendent, District Jail, Kanpur and others, reported in : 1986CriLJ493 , it is observed by the Supreme Court, as under :---
'3. ... ... ... .. The nature of the power of revocation conferred by the statues on the Central Government under section 11 of the COFEPOSA Act which in terms is similar to section 14 of the National Securities Act, was explained by this Court in Sat Pal v. State of Punjab, (supra) in the following words :---
'The making of an application for revocation to the Central Government under section 11 of the Act is, therefore, part of the constitutional right a citizen has against his detention under a law relating to preventive detention. While Article 22(5) contemplates the making of a representation against the order of detention to the detaining authority, which has to be referred by the appropriate Government to the Advisory Board constituted under section 8(a) of the Act. Parliament has, in its wisdom, enacted section 11 and conferred an additional safeguard against arbitrary executive action.'
We must also add that this is not a case of repeated representations to the Central Government as was the case in State of U.P. v. Zaved Zama Khan, : 1984CriLJ922 . In that case, it was held that where an earlier representation to the Central Government has been properly disposed of, the fact that the second representation to the Central Government was not so disposed of would not entitle the detenu to be released. The appeal is, therefore, allowed and the appellant is directed to be set at liberty forthwith.'
20. In the case of K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and others, reported in : 1991CriLJ790 , it is observed by the Supreme Court, thus :-
'11. It is now beyond the pale of controversy that the constitutional right to make representation under Clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in Clause (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient cause for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. The right to have the representation considered by the Government, is safeguarded by Clause (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under Clause (4) of Article 22 read with section 8(c) of the Act. See: S.K. Abdul Karim v. State of West Bengal, : 1969CriLJ1446 : ..... ..... ..... ..... and Haradhan Saha v. State of West Bengal, : 1974CriLJ1479 .'
'12. The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words 'as soon as may be' occurring in Clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. This has been emphasised and re-emphasised by a series of decisions of this Court. See Jayanarayan Sukul v. State of West Bengal, : 1970CriLJ743 : ..... ..... ..... ..... and Aslam Ahmed Zahire Ahmed Shaikh v. Union of India, : 1989CriLJ1447 .'
'16. We agree with the observations in Frances Coralie Mullin case, : 1980CriLJ548 . The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the Government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the Government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The constitution of the Board shows that it consists of eminent persons who are Judges or persons qualified to be Judges of the High Court. It is, therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the Government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the Government as early as possible.'
'17. The crucial question that remains for consideration is whether the Government should consider and dispose of the representation before confirming the detention. This Court in V.J. Jain case, : 1979CriLJ1131 , has observed (at p. 405) that it is a constitutional obligation under Clause (5) of Article 22 to consider the representation before confirming the order of detention. If it is not so considered, the confirmation becomes invalid and the subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation. To reach this conclusion, the Court has relied upon two earlier Judgments of this Court : (1) Khudiram Das v. State of West Bengal, : [1975]2SCR832 ; and (ii) Khairul Haque v. State of West Bengal, W.P. Case No. 246/69 decided on 10-9-1969 (Unreported).' Now reported in (1969)2 S.C.W.R. 529.
.. .... .... ... ... ... ...
'19. There is no Constitutional mandate under Clause (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention. Indeed, there is no justification for imposing this restriction on the power of the Government. As observed earlier, the Government's consideration of the representation is for a different purpose, namely, to find out whether the detention is in confirmity with the power under the statute. This has been explained in Haradhan Saha, : 1974CriLJ1479 , where Ray, C.J., speaking for the Constitution Bench observed that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking order in disposing such representation. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government.'
'20. It is necessary to mention that with regard to liberty of citizens the Court stands guard over the facts and requirements of law, but Court cannot draw presumption against any authority without material. It may be borne in mind that the confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation. Secondly, there may be cases where the Government has to consider the representation only after confirmation of detention. Clause (5) of Article 22 suggests that the representation could be received even after confirmation of the order of detention. The word's 'shall' afford him the earliest opportunity of making a representation against the order in Clause (5) of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under section 8 of the Act. But if the detenu does not exercise his right to make representation at that stage, but presents it to the Government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statute. The confirmation of the order of detention is not conclusive as against the detenu. It can be revoked suo motu under section 11 or upon a representation of the detenu. It seems to us therefore, that so long as the representation is independently considered by the Government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention. The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention. Nor it could be presumed that such consideration is not an independent consideration. With all respect, we are not inclined to subscribe to the views expressed in V.J. Jain, Om Prakash Bahal and Khairul Haque cases. They cannot be considered to be good law and hence stand overruled.'
21. In the case of Smt. Gracy v. State of Kerala and another, reported in : 1991(54)ELT161(SC) , it is observed, as follows :---
'2. .. ... ... ... ... ... The detenu was informed that he had a right to make representation to the detaining authority, Central Government and the Central Advisory Board against the detention order. The mode of address of the representation to the Central Government and the Central Advisory Board was also indicated in the detention order along with the grounds of detention in accordance with Article 22(5) of the Constitution of India. The detenu's case was referred by the Central Government to the Central Advisory Board on 2-3-1990. During pendency of the reference before the Advisory Board, the detenu made his representation on 24-3-1990 and addressed it to the Advisory Board. The Advisory Board considered the reference relating to the detenu made by the Central Government and also the detenu's representation submitted to it. The Advisory Board gave the opinion that there was sufficient cause to justify his preventive detention. The Central Government then made the order dated 24-4-1990 confirming his detention and directed that the detenu Noor alias Babu be detained for a period of two years w.e.f. 30-1-1990.'
'3. It is admitted that the Advisory Board considered the detenu's representation before sending its opinion to the Central Government along with the entire record including the representation submitted by the detenu. It is also admitted that the Central Government made the order of confirmation dated 24-4-1990 on receipt of the opinion of the Advisory Board, but there was no independent consideration of the detenu's representation by the Central Government at any time. In the counter-affidavit filed initially by Shri A.K. Roy, Under Secretary to the Government of India, this fact was not clearly stated and, therefore, we directed an additional affidavit to be filed. In the additional affidavit filed by Shri A.K. Roy, it has not been disputed that the Central Government did not at any time consider independently the detenu's representation addressed to and given to the Advisory Board. In the additional affidavit, the stand of the Central Government in this behalf has been stated thus :---
'... Since the detenu in the present case has not made any representation to the Central Government, the assertion in para 2 of the grounds of petition that no opportunity was afforded by the Central Government to the said detenu is vehemently denied. The question of consideration of a representation and providing of an opportunity would only arise when a representation is duly made to the Central Government.'
'4. On the above facts, the question is: Whether there has been any infraction of the guarantee under Article 22(5) of the Constitution as a result of Central Government's omission to consider the detenu's representation independent of its consideration by the Advisory Board? The Central Government's stand is that the detenu's representation being addressed to the Advisory Board to which it was submitted during pendency of the reference before the Advisory Board, there was no obligation on the Central Government also to consider the same independently since the representation was not addressed to the Central Government.'
'5. The Constitutional mandate in Article 22(5) was considered recently by a Constitution Bench in K.M. Abdulla Kunhi and B.L. Abdulla Khader v. Union of India, State of Karnataka, : 1991CriLJ790 , in view of some conflict in earlier decisions of this Court regarding the detaining authority's obligation to consider the detenu's representation independently of the Advisory Board's duty in this behalf.
'6. It is thus clear that the obligation of the Government to consider the representation is different and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the Government. Consideration of the representation by the Government has to be uninfluenced by the view of the Advisory Board. In short, the detenu's right to have the representation considered by the Government under Article 22(5) is independent of the consideration of the detenu's case and his representation by the Advisory Board. This position in law is also not disputed before us.'
... ... .. ... .. ... ...
'8. ... ... ... ... The nature of duty imposed on the detaining authority under Article 22(5) in the context of the extra ordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and not of a free agent. Article 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implied the duty to consider and decide the representation when made, as soon as possible. Article 22(5) speaks of the detenu's 'representation against the order', and imposes the obligation on the detaining authority. Thus, any representation of the detenu against the order of his detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together Clauses (4) and (5) of Article 22, even though express mention in Article 22(5) is only of the detaining authority. Moreover, the order of detention is by the detaining authority and so also the order of its revocation if the representation is accepted, the Advisory Board's role being merely advisory in nature without the power to make any order itself. It is not as if there are two separate and distinct provisions for representation to two different authority viz. the detaining authority and the Advisory Board, both having independent power to act on its own.'
'9. It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of his obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention of the learned Solicitor General. The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention.'
22. In the case of Moosa Husein Sanghar v. State of Gujarat and others, reported in : 1993(44)ECC215 the Supreme Court has observed as follows :---
'4. Shri Krishna Rao, in our view, is right in his submission that even though the representation was addressed to the Advisory Board but since it was forwarded to the Advisory Board through the State Government, it was incumbent upon the State Government to have considered the said representation and it could not return the same to the appellant without considering it on the ground that it was not addressed to it but was addressed to the Advisory Board. Reference, in this context, may be made to the decisions of this Court in Kubic Dariusz v. Union of India, : 1990CriLJ796 and Smt. Gracy v. State of Kerala, : 1991(54)ELT161(SC) . In K. Dariusz v. Union of India (supra), the representation of the detenu was addressed to the Chairman, Advisory Board and it was argued on behalf of the Union of India that the said representation need not have been dealt with by the Central Government. Rejecting the said contention, it was held : AIR1990SC605 :---
'In the instant case though the representation was addressed to the Chairman. Central Advisory Board, the same was forwarded by the Jail authorities and it must be taken to have been a representation to the appropriate Government which was to consider it before placing it before the Advisory Board and the same having not been done Article 22(5) has to be held to have been violated.'
'5. ... ... ... ... ...
'6. It must, therefore, be held that merely because the representation was addressed to the Advisory Board and not to the State Government did not absolve the State Government from the constitutional obligation flowing from Article 22(5) to consider the said representation.'. ... ... ... ...
'8. ... ... ... The appropriate Government would not be justified in postponing the consideration of the representation while the matter is pending consideration before the Advisory Board because the obligation of the Government to consider the representation is different from that of the Advisory Board.'
23. It is clear from the aforesaid decisions and more particular from the case of Smt. Gracy v. State of Kerala, (supra) that the contents of Article 22(5) as well as the nature of duty imposed thereby on the Detaining Authority support the view that so long as there is a representation made by the detenu against the order of detention, a dual obligation under Article 22(5) read with Article 22(4) arises irrespective of the fact whether the representation is addressed to the Detaining Authority or to Advisory Board or to both. Any representation of the detenu against the order of detention has to be considered and decided by the Detaining Authority, the requirement of its separate consideration by the Advisory Board being an additional requirement. The mode of addresses is only a matter for form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention.
24. In addition to the above requirement of consideration of representation by the Detaining Authority and the Advisory Board a further obligation is cast on the Central Government to consider the representation and decide the same and this is implicit from section 11 which empowers the Central Government, at any time, to revoke or modify a detention order.
25. As far as the facts of the present case are concerned, though the representation was addressed to the Detaining Authority and the Advisory Board a copy of the said representation was independently sent to and was received by the Central Government. If the same was received by the Central Government we see no reason why the Central Government should fail to consider the same expeditiously and without loss of time. Can the Central Government, on the facts of the present case, be heard to say that though the representation has been received by it, it will refuse to consider the same and await the report of the Advisory Board and will proceed to consider the same only thereafter. A decision of the Central Government, on the representation of the detenu, has to be an independent consideration unbiased by the opinion or decision of the Advisory Board. It was, therefore, not necessary for the Central Government to await the decision of the Advisory Board before taking up for consideration the representation of the detenu. Mrs. Nafisa Khalifa Ghanam v. Union of India and others (supra).
26. Shri Agrawal, in order to get over the situation he has found himself, has strenuously contended that in case it is ordered by a judicial pronouncement that the representation addressed to the Detaining Authority should also have been considered by the Central Government, in that event the right of the detenu to approach by way of independent representation to the Central Government will stand scuttled in view of the law laid down by the Supreme Court in State of U.P. v. Zaved Zama Khan's, case, : 1984CriLJ922 . In the aforesaid case it has been observed, as follows :---
'7. The only question canvassed in the appeal before us is that the judgment of the High Court betrays complete lack of awareness of the nature of the constitutional safeguards enshrined under Article 22(5) of the Constitution. It is urged that the constitutional imperatives enacted in Article 22(5) are two-fold : (1) The detaining authority must, as soon as may be i.e. as soon as practicable, after the detention, communicate to the detenu the grounds on which the order of detention has been made. And (2) The detaining authority must afford the detenu the earliest opportunity of making representation against the order of detention. In the present case, it is said that the requirements of Article 22(5) of the Constitution read with section 8(1) of the Act had been duly complied with. There is no question of any violation of Article 22(5) or of section 8(1) and further that the grounds for detention set out the facts with sufficient degree of particularity and they did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority. The order of detention cannot therefore be challenged on the ground that the grounds furnished were not adequate or sufficient for the subjective satisfaction of the detaining authority, or for making an effective representation. It is further urged that there being due compliance with the constitutional requirements of Article 22(5) and of section 8(1), the High Court was wrong in holding that the continued detention of the respondent was invalid merely because the Central Government refused to act on his application for revocation of the order of detention under section 14 of the Act. We find considerable force in the submission.'
... ... ... ...
'13. The principle that emerges from all these decisions is that the power of revocation conferred on the Central Government under section 14 of the Act is a statutory power which may be exercised on information received by the Central Government from its own sources including that supplied by the State Government under sub-section (5) of section 3 or from the detenu in the form of a petition for representation. It is for the Central Government to decide whether or not it should revoke the order of detention in a particular case. In the present case, the detenu was not deprived of the right of making a representation to the detaining authority under Article 22(5) of the Constitution read with section 8(1) of the Act. Although the detenu had no right to simultaneously make a representation against the order of detention to the Central Government under Article 22(5) and there was no duty cast on the State Government to forward the same to the Central Government, nevertheless the State Government forwarded the same forthwith. The Central Government duly considered that representation which in effect was nothing but a representation for revocation of the order of detention under section 14 of the Act. That being so it was not obligatory on the part of the Central Government to consider a second representation for revocation under section 14. We may profitably refer to Phillippa Anne Duke's, case, : 1982CriLJ1389 (supra), where in somewhat similar circumstances it was held that failure of the Central Government to consider a representation for revocation of an order of detention under section 11(1)(b) of the COFEPOSA Act handed over to the Prime Minister during her visit to England did not render the continued detention invalid. It was observed :---
'Representation from whatever source addressed to whomsoever officer of one or other department of the Government cannot be treated as a representation to the Government under section 11(1)(b) of the COFEPOSA Act.'
27. Shri Agrawal has further gone on to contend that the representation addressed to one authority need not be considered by other authority to whom it is not specifically addressed, though such clear proposal is made in the grounds, possibly detenu might as well avail such right in later point of time. The obligation of the Central Government to consider the representation addressed to the Advisory Board is because entire record of Board comes to the Government for confirmation and as such as held in Gracys case, : 1991(54)ELT161(SC) (supra) the obligation to consider representation will obviously arise after receipt of the record from the Board.
28. Placing reliance on the above decision, Shri Agrawal, contended that in case the present representation, which is not addressed to the Central Government, were considered and decided against the detenu the detenu may well contend that the Central Government had no business to consider a representation not addressed to it. He did not require or call upon the Central Government to consider the same. The consideration and rejection of the same has deprived him of making a fresh representation on fresh grounds to the Central Government causing injustice to him.
29. We are afraid we see no merit in the aforesaid contention. The answer to the submission is to be found in the very Judgment of the Supreme Court. In that case, a representation was made to the State Government and there was no duty cast on the State Government to forward the same to the Central Government. Nonetheless the State Government forwarded the same to the Central Government and the Central Government in turn considered and rejected the same. Hence, though not called upon, though not addressed to the Central Government, the representation was duly considered by the Central Government and was rejected by it. On these facts, it was held that a further representation addressed by the detenu to the Central Government was not required to be considered by the Central Government. Strictly speaking, this question will not arise in the present case as the representation in question has, in fact, been sent and served upon the Central Government by the detenu himself. Central Government was therefore bound to entertain the same immediately. Moreover, once it is conceded that the Central Government is obliged to consider the said representation after the same is forwarded to it by the Advisory board, we see no reason why the representation should not be considered expeditiously and without loss of time and why the same should be considered only after receipt of the opinion of the Advisory Board. The contention based on the aforesaid decision, therefore, is devoid of merit and the same is rejected.
30. Having recorded our finding that the Central Government was enjoined with a duty to consider the representation the moment the same was served upon it, irrespective of the fact that the same was not addressed to it, and once it is further held that the Central Government was not justified in awaiting the opinion of the Advisory Board before taking up for consideration the said representation, it follows that there has been a complete inaction on the part of the Central Government from the 4th of November, 1994 when the representation was served upon it and 28th of November, 1994 when the decision of the Advisory Board was communicated to it. The inaction on the part of the Central Government during the aforesaid period has naturally infringed the right of the detenu for the expeditious consideration of his representation by the Central Government against the order of detention. This has violated the right of the detenu conferred by Article 22(5) of the Constitution of India and section 11 of the COFEPOSA Act. This has, therefore, rendered the continued detention of the detenu null and void.
31. For the foregoing reasons the petition succeeds. The impugned order of detention F.No. 673/134/94-Cus. VIII dated 8th September, 1994 passed by Shri K.L. Verma, Joint Secretary to the Government of India, is quashed and set aside. The detenu Shri Mohanlal Manrupchand Jain is directed to be set at liberty forthwith unless required in some other case. Rule is made absolute.
32. At this stage Shri Agrawal, appearing on behalf of respondent Nos. 1 and 2 and Shri Page, the learned Public Prosecutor, appearing for the respondent Nos. 3 and 4, have prayed for a certificate of fitness under Article 133(1) of the Constitution of India to appeal to the Supreme Court. It is contended that there is no case in the field deciding the point whether a representation addressed to the Detaining Authority and not to the Central Government is required to be considered by the Central Government. The present case being the first in point of time is likely to have large-scale ramifications on pending petitions.
33. In our Judgment, we have decided the question posed for our consideration based on decisions already rendered particularly and on facts arising in the present case. The case, therefore, does not involve an important question of law of general importance. It is always open to the parties aggrieved to impugn this order in the Apex Court. We. however, do not find this a fit case to grant the certificate prayed for. The prayer is, in the circumstances, rejected. The issue of certified copy is, however, expedited.