quashing of the Detention Orders Since there was complete inaction on part of the Detaining Authority in the present case, to whom a representation was addressed in dealing with the representation as stated above, we hold that the constitutional rights of the detenues were violated and the detenues are entitled to redressal on that count. We, therefore, allow this Writ Petition and hold the continued detention of the detenues in terms of the Detention Orders to be illegal, invalid and unconstitutional. -it would be proper for the appropriate Government to wait till the report was received from the Advisory Board, while at the same time the Writ Petition (Criminal) No.362 of 2019 Ankit Ashok Jalan vs. Union of India & Ors. 62 specially empowered officer who had acted as the Detaining Authority would be obliged to consider the representation with utmost expedition.

Writ Petition (Criminal) No.362 of 2019
Ankit Ashok Jalan vs. Union of India & Ors.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO.362 OF 2019
ANKIT ASHOK JALAN …Petitioner
Versus
UNION OF IDNIA AND ORS. …Respondents
J U D G M E N T
Uday Umesh Lalit, J.

  1. This petition under Article 32 of the Constitution of India prays for
    quashing of the Detention Orders1
    dated 01.07.2019 and for a direction that
    the detenues be set at liberty.
  2. The facts leading to the filing of this petition, in brief, are as under:
    (a) On 01.07.2019, Joint Secretary to the Government of India,
    specially empowered under Section 3(1) of the COFEPOSA Act2
    passed
    the Detention Orders after being satisfied that with a view to prevent the
    1Nos.PD-12001/34/2019-COFEPOSA and PD-12001/35/2019-COFEPOSA, both dated
    01.07.2019, issued by the Respondent No.2 against Shri Ashok Kumar Jalan and Shri Amit
    Jalan respectively
    2The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    2
    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.
    b) The detenues were served with the Detention Orders, the grounds
    of detention and the relied upon documents on 02.07.2019. The grounds of
    detention, in para 12, recited as under:-
    “You ……….. have the right to represent against your detention
    to the Detaining Authority, to the Central Government as well as
    to the Advisory Board. If you wish to avail this right, you should
    send your representation through the Jail Authorities where you
    are detained, in the manner indicated below:
    (a) Representation meant for the Detaining Authority should be
    addressed to the Joint Secretary (COFEPOSA), Government
    of India, Ministry of Finance, Department of Revenue,
    Central Economic Intelligence Bureau, 6th Floor, B-Wing,
    Janpath Bhawan, New Delhi-110001.
    (b) Representation meant for the Central Government should be
    addressed to the Director General, Central Economic
    Intelligence Bureau, Government of India, Ministry of
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    3
    Finance, Department of Revenue, 6th Floor, B-Wing, Janpath
    Bhawan, New Delhi-110001.
    (c) Representation meant for the Advisory Board should be
    addressed to the Chairman, COFEPOSA Advisory Board,
    Delhi High Court, Sher Shah Road, New Delhi-110002.
    (c) On 18.07.2019 the cases of the detenues were referred to the
    Central Advisory Board3
    along with the grounds of detention and relied
    upon documents.
    (d) On 22.07.2019 representation dated 17.07.2019 made on behalf of
    both the detenues, addressed to the Joint Secretary (COFEPOSA),
    Government of India, Ministry of Finance, Department of Revenue was
    received through the Presidency Correctional Home, Alipore, Kolkata.
    The representation stated inter alia:-
    “9….(iii) To enable me to make an effective representation at
    the earliest opportunity, I may please be forthwith provided witha) a copy of the Retraction Petition of Shri Anand stated
    to be relied upon in the grounds of detention;
    b) a copy of the pen-drive or CD/DVD of the CCTV
    footage directed by the CMM to be submitted on 18th
    3 The Central Advisory Board, Delhi High Court, New Delhi
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    4
    June, 2019 may please be provided to me and may
    please be shown to me on a laptop or any other device.
  3. Kindly note that unless the aforesaid prayers are considered
    expeditiously, I am unable to make my final representation to the
    Central Government and the Advisory Board, etc. Therefore,
    the instant representation may please be considered as
    expeditiously as possible in true spirit of Article 22(5) read with
    Articles 14 & 21 of the Constitution of India.”
    (e) On 24.07.2019, the representation was forwarded to the Sponsoring
    Authority, namely, DRI, Kolkata for its comments which were received on
    29.07.2019. Said representation as well as the para-wise comments
    received from the Sponsoring Authority were forwarded on 31.07.2019 to
    the Central Advisory Board. The meeting of the Central Advisory Board
    was scheduled to be held on 02.08.2019.
    (f) On 02.08.2019 itself, Writ Petition No.1840 of 2019 preferred on
    behalf of the detenues was allowed by the High Court4
    on the grounds that
    when the detenues were in judicial custody and there was no imminent
    possibility of their release on bail and when not even a bail application was
    preferred by them, the power of preventive detention ought not to have
    4The High Court of Delhi at New Delhi
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    5
    been exercised; and, that non-placement of relevant material in the form of
    retraction petition of one Shri Anand and its non-consideration by the
    Detaining Authority vitiated the Detention Orders. The High Court thus
    quashed the Detention Orders and directed that the detenues be released
    forthwith.
    (g) In its Meeting dated 02.08.2019, the Central Advisory Board
    recorded that since the Detention Orders were quashed, there was no
    possibility of proceeding further in the matter.
    (h) The decision of the High Court was challenged in Criminal Appeal
    No.1746 of 2019 in this Court, which by its Judgment and order dated
    22.11.2019 set aside the view taken by the High Court. While allowing the
    appeal, the detenues were directed to be taken into custody forthwith. The
    Detaining Authority was thereafter informed by the Jail Superintendent on
    27.11.2019 that the detenues were received in custody in pursuance of the
    decision of this Court.
    (i) On 02.12.2019 a direction was issued to process the files of the
    detenues for reference to the Central Advisory Board. After obtaining
    appropriate approval, the case was referred to the Central Advisory Board
    on 05.12.2019 stating inter alia:-
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    6
    “Keeping in view the judgment dated 03.06.2015 of
    the Apex Court delivered in Crl.Appeal No.829 of
    2015 arising out of SLP(Crl) No.2489 of 2015 –
    Golam Biswas v. Union of India, the said
    representations will be considered for disposal by the
    competent authority only after receipt of opinion of
    the Hon’ble Board.”
  4. The instant writ petition was filed on or about 16th December,
    2019 challenging the stand taken in the communication dated 05.12.2019
    that the representation would be considered only after the receipt of the
    opinion of the Central Advisory Board. It was submitted that the
    representation ought to be considered independently by the Detaining
    Authority and without waiting for the report of the Central Advisory
    Board; and that the delay in consideration of such representation violated
    the rights of the detenues guaranteed by the Constitution of India. Soon
    thereafter, another representation reiterating the stand as aforesaid was
    made by the Advocate for the detenues on 18.12.2019.
  5. On 18.12.2019 notice was issued by this Court, whereafter, an
    affidavit in reply was filed on behalf of the respondents stating inter alia:-
    (a) On 06.01.2020 a report was submitted by the Central
    Advisory Board that there was sufficient cause for the detention of
    the detenues.
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    7
    (b) After considering the report of the Central Advisory Board
    and the other material on record, the Central Government
    confirmed the Detention Orders vide proceedings dated
    14.01.2020.
    (c) On the same date i.e. 14.01.2020 the Detaining Authority,
    namely, Joint Secretary (COFEPOSA) rejected the representations
    dated 17.07.2019 and 18.12.2019 made on behalf of the detenues.
    After referring to the decisions of this court in Golam Biswas v.
    Union of India and Another5
    and K.M. Abdulla Kunhi and B.L. Abdul
    Khader v. Union of India and others6
    it was stated that the
    representations were considered only after the receipt of the opinion of the
    Central Advisory Board dated 06.01.2020.
  6. We heard Mr. Mukul Rohatgi and Mr. Neeraj Kishan Kaul, learned
    Senior Advocates in support of the petition and Mr. K.M. Nataraj, learned
    Advocate Solicitor General for the respondents.
  7. The learned Counsel for the petitioner accepted that by the time
    representation dated 17.07.2019 was received by the Detaining Authority,
    the matter was referred to the Central Advisory Board and since the
    5 (2015) 16 SCC 177
    6 (1991) 1 SCC 476
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    8
    Detention Orders were set aside by the High Court on 02.08.2019, the nonconsideration of the representation till 02.08.2019, in the facts of the
    instant case, would not be of any significance. However, in their
    submission, after the decision of the High Court was set aside by this Court
    and the detenues were taken back in custody in November, 2019, the nonconsideration of and delay in disposal of said representation was more
    pronounced and relevant. It was submitted:-
    (a) A representation against an order of detention can be made
    to the Detaining Authority where the detention order has been passed
    by a specially empowered officer of the Central Government as well
    as to the Central Government and the Central Advisory Board. Para
    12 of the grounds of detention, as extracted earlier, was in keeping
    with this well accepted principle.
    (b) The representation made to the Detaining Authority had to
    be considered by the Detaining Authority independently. The
    Detaining Authority was not right in waiting till the receipt of the
    report of the Central Advisory Board.
    (c) The consequential delay on part of the Detaining Authority
    in considering the representation thus violated the constitutional rights
    of the detenues.
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    9
  8. On the other hand, Mr. K.M. Nataraj, learned Additional Solicitor
    General, for the respondents relied upon the decisions of this Court in
    Golam Biswas5
    and in K.M. Abdulla Kunhi6
    to submit that while the
    matter was pending consideration before the Central Advisory Board, the
    representation in question could not be considered and it could be
    considered only after the receipt of the report of the Central Advisory
    Board.
  9. In the instant case, the facts are clear that:-
    a) The Detaining Authority received a letter on 27.11.2019 that
    the detenues were received in custody. Thereafter the matter
    was again referred by the Central Government to the Central
    Advisory Board on 05.12.2019. The communication shows
    that it was decided that the representations would be
    considered only after receipt of the opinion of the Central
    Advisory Board.
    b) The opinion of the Central Advisory Board was submitted on
    06.01.2020. On 14.01.2020 the Central Government
    confirmed the Detention Orders and on the same date the
    Detaining Authority rejected the representations.
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    10
  10. Following questions therefore arise:-
    i) Whether the Detaining Authority was justified in deferring the
    consideration of the representation till the receipt of the
    opinion of the Central Advisory Board?
    ii) Whether the Detaining Authority ought to have considered the
    representation independently and without waiting for the
    report of the Central Advisory Board?
    iii) If the answer to the second question is yes, whether the time
    taken by the Detaining Authority from 27.11.2019 till
    14.01.2020 could be characterised as undue and avoidable
    delay violating the constitutional rights of the detenues?
  11. The learned counsel appearing for the parties placed for our
    consideration various decisions of this Court touching upon the aforesaid
    first two questions. We may broadly consider those decisions for
    answering the questions from two perspectives:-
    First, on the issue whether a representation can independently be
    made to and must be considered by the Detaining Authority, who is a
    specially empowered officer of the concerned Government.
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    11
    Secondly, whether, in certain circumstances, the Detaining
    Authority ought to defer consideration of such representation till the
    report is received from the Advisory Board.
  12. As regards the first issue, following decisions are noteworthy:-
    A) In Ibrahim Bachu Bafan vs. State of Gujarat and others7
    a
    Bench of three Judges of this Court, while considering the scope
    of Section 11 of the COFEPOSA Act and Section 21 of 1897
    Act8
    , made following observations:-
    “7. … …. The heading of Section 11 is “Revocation
    of Detention Orders”. Sub-section (1) authorises
    revocation by two authorities, namely, — (a) if the
    order has been made by an officer of a State
    Government, the State Government or the Central
    Government may revoke the order; and (b) if the
    order has been made by an officer of the Central
    Government or by a State Government, revocation is
    permissible by the Central Government. Sub-section
    (1) of Section 11 indicates that the power conferred
    under it in the situations envisaged in Clauses (a) and
    (b) is exercisable without prejudice to the provisions
    of Section 21 of the General Clauses Act. That section
    provides that a power to issue orders includes a power
    exercisable in the like manner and subject to the like
    sanction and conditions, if any, to add, to amend, vary
    or rescind such orders. Under Section 21 of the
    General Clauses Act, therefore, the authority making
    an order of detention would be entitled to revoke that
    order by rescinding it. We agree with the submission
    of Mr Jethmalani that the words “without prejudice to
    the provisions of Section 21 of the General clauses
    Act 1897” used in Section 11(1) of the Act give
    7 (1985) 2 SCC 24
    8 The General Clauses Act, 1897
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    12
    expression to the legislative intention that without
    affecting that right which the authority making the
    order enjoys under Section 21 of the General Clauses
    Act, an order of detention is also available to be
    revoked or modified by authorities named in clauses
    (a) and (b) of Section 11(1) of the Act. Power
    conferred under clauses (a) and (b) of Section 11(1)
    of the Act could not be exercised by the named
    authorities under Section 21 of the General Clauses
    Act as these authorities on whom such power has
    been conferred under the Act are different from those
    who made the orders. Therefore, conferment of such
    power was necessary as Parliament rightly found that
    Section 21 of the General Clauses Act was not
    adequate to meet the situation. Thus, while not
    affecting in any manner and expressly preserving the
    power under Section 21 of the General Clauses Act of
    the original authority making the order, power to
    revoke or modify has been conferred on the named
    authorities.”
    It was, thus, accepted that by virtue of Section 21 of 1897 Act, the
    authority making an order of detention would be entitled to revoke that
    order by rescinding it and that conferment of power under Section 11 of
    the COFEPOSA Act was done without affecting in any manner and
    expressly preserving the power under Section 21 of 1897 Act of the
    original authority making the order.
    B) A Bench of two Judges of this Court in State of Maharashtra
    and another vs. Smt. Sushila Mafatlal Shah and others9
    took
    9 (1988) 4 SCC 490
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    13
    a slightly different view. This Court framed following questions
    in para 11:-
    “11. ………
    (1) Does an order passed by an officer of the State
    Government or the Central Government, specially
    empowered for the purposes of Section 3(1) by
    the respective government, make him the
    detaining authority and not the State Government
    or the Central Government as the case may be,
    and obligate him to inform the detenu that he has
    a threefold opportunity to make his
    representations i.e. the first to himself and the
    other two to the State Government and the Central
    Government.
    (2) Whether for the purposes of the Act, there is any
    difference between an order of detention passed
    by an officer of the State Government or the
    Central Government, solely in exercise of the
    powers conferred on him under Section 3 by the
    respective government and an order of detention
    passed by the State Government or the Central
    Government as the case may be through an officer
    who in addition to conferment of powers under
    Section 3 is also empowered under the Standing
    Rules framed under the Rules of Business of the
    government, to act on behalf of the government.
    (3) Whether by reason of the fact that an order of
    detention is passed by an officer of the State
    Government or the Central Government specially
    empowered to act under Section 3 of the Act, a
    detenu acquires a constitutional right to have his
    representation first considered by the very officer
    issuing the detention order before making a
    representation to the State Government and the
    Central Government.”
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    14
    While considering the scheme of the COFEPOSA Act, including
    the ambit of Section 11, it was observed:-
    “19. We may now examine the scheme of the Act and
    have a closer look at the provisions set out above to
    find out whether the Act provides for a differentiation
    being made between detention orders made by the
    government and those made by specially empowered
    officers so as to confer an additional right of
    representation to detenus subjected to detention under
    detention orders falling in the latter category. At the
    outset, it needs no saying, that any government, be it
    Central or State, has to function only through human
    agencies viz. its officers and functionaries and that it
    cannot function by itself as an abstract body. Such
    being the case, even though Section 3(1) provides for
    an order of detention being made either by the Central
    Government or one of its officers or the State
    Government or by one of its officers, an order of
    detention has necessarily to be made in either of the
    situations only by an officer of the concerned
    government. It is in acceptance of this position we
    have to see whether an order of detention, if passed by
    an officer of the government specially empowered
    under Section 3(1) but not further empowered under
    Rules of Business of the government to act would
    have the effect of making the concerned officer the
    detaining authority and not the concerned government
    itself. The answer to the question has to be necessarily
    in the negative for the following reasons. It has been
    specifically provided in Section 2 (a) that irrespective
    of whether an order of detention is made by the
    Central Government or one of its duly authorised
    officers, the “appropriate government” as regard the
    detention order and the detenu will be the Central
    Government only and likewise whether an order of
    detention is made by a State Government or one of its
    duly authorised officers the “appropriate government”
    would be the State Government only as regards the
    detention order and the detenu concerned. Secondly,
    irrespective of whether an order of detention is made
    by the State Government or by one of its officers, the
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    15
    obligation to forward, within ten days a report to the
    Central Government in respect of the order is cast
    only upon the State Government. Thirdly, in the
    matter of making a reference of the case of a detenu to
    the Advisory Board under Section 8(b), the duty of
    making the reference is cast only on the Central
    Government or the State Government as the case may
    be, and not on the officer of the Central Government
    or the State Government if he makes the order of
    detention in exercise of the powers conferred on him
    under Section 3(1). Lastly, Section 11, which deals
    with the powers of revocation of the State
    Government and the Central Government provides
    that notwithstanding that an order of detention had
    been made by an officer of a State Government, the
    concerned State Government as well as the Central
    Government are entitled to revoke or modify the order
    of detention. Similarly, as per clause (b)
    notwithstanding that an order of detention has been
    made by an officer of the Central Government or by a
    State Government, the Central Government has been
    empowered to revoke or modify an order of detention.
    The section does not confer any power of revocation
    on an officer of the Central or State Government nor
    does it empower the Central or State Government to
    delegate the power of revocation to any of its officers.
    We may further add that even though Section 11
    specifies that the powers of revocation conferred on
    the Central Government/State Government are
    without prejudice to the provisions of Section 21 of
    the General clauses Act, this reservation will not
    entitle a specially empowered officer to revoke an
    order of detention passed by him because the order of
    the specially empowered officer acquires “deemed
    approval” of the State or Central Government, as the
    case may be, automatically and by reason of such
    deemed approval the powers of revocation, even in
    terms of Section 21 of the General clauses Act will
    fall only within the domain of the State Government
    and/or Central Government. In Sat Pal v. State of
    Punjab10 the nature of the power of revocation
    conferred on the State and the Central Government
    came to be construed and the court held that “(t)he
    10 (1982) 1 SCC 12
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    16
    power of revocation conferred on the appropriate
    government under Section 11 of the Act is
    independent of the power of confirming or setting
    aside an order of detention under Section 8(f)”. It was
    further adumbrated as follows: (SCC p. 17, para 10)
    “The power under Section 11(1)(b) may either
    be exercised on information received by the
    Central Government from its own sources
    including that supplied by the State Government
    under Section 3(2), or, from the detenu in the
    form of a petition or representation. It is for the
    Central Government to decide whether or not, it
    should revoke the order of detention in a
    particular case. The use of the words ‘at any
    time’ under Section 11, gives the power of
    revocation an overriding effect on the power of
    detention under Section 3.”
    These observations were made by the court when
    considering the question whether a detenu was
    entitled to concurrently make representations to the
    State Government and the Central Government
    against an order of detention passed by the State
    Government and whether in such circumstances the
    State Government could contend that the question of
    the Central Government considering the
    representation would arise only after the State
    Government had considered the representation and
    rejected it.
  13. Consequently, the resultant position emerging
    from the Act is that even if an order of detention is
    made by a specially empowered officer of the Central
    Government or the State Government as the case may
    be, the said order will give rise to obligations to be
    fulfilled by the government to the same degree and
    extent to which it will stand obligated if the detention
    order had been made by the government itself. If that
    be so, then it is the concerned government that would
    constitute the detaining authority under the Act and
    not the officer concerned who made the order of
    detention, and it is to that government the detenu
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    17
    should be afforded opportunity to make representation
    against the detention order at the earliest opportunity,
    as envisaged under Article 22(5) and not to the officer
    making the order of detention in order to provide the
    detenu an opportunity to make a further representation
    to the State Government and thereafter to the Central
    Government if the need arises for doing so. Though
    by reason of Section 3(1) a specially empowered
    officer is entitled to pass an order of detention, his
    constitutional obligation is only to communicate
    expeditiously to the detenu the grounds of detention
    and also afford him opportunity to make
    representation to the appropriate governments against
    his detention. The only further duty to be performed
    thereafter is to place the representation made by the
    detenu before the concerned officer or the Minister
    empowered under the Rules of Business of the
    government to deal with such representation if the
    detenu addresses his representation to the officer
    himself.”
    It was thus held that the constitutional obligation of a specially
    empowered officer entitled to pass an order of detention would only be to
    communicate expeditiously to the detenue the grounds of detention and
    also to afford him opportunity to make representation to the appropriate
    Governments against his detention. All the aforesaid three questions as
    posed in Para 11 were answered in the negative.
    C) In Amir Shad Khan vs. L. Hmingliana and others11, a Bench
    of Three Judges of this Court observed:-
    “3. ……… There can be no doubt that the
    representation must be made to the authority which
    has the power to rescind or revoke the decision, if
    11 (1991) 4 SCC 39
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    18
    need be. Our search for the authority must, therefore,
    take us to the statute since the answer cannot be found
    from Article 22(5) of the Constitution read in
    isolation. As pointed out earlier that clause casts an
    obligation on the authority making the detention order
    to afford to the detenu an earliest opportunity to make
    a representation against the detention order. If we are
    to go by the statement in the grounds of detention our
    search for that authority would end since the grounds
    of detention themselves state the authorities to which
    the representation must be made. The question must
    be answered in the context of the relevant provisions
    of the law. Now as stated earlier by clause (5) of
    Article 22 a dual obligation is cast on the authority
    making the detention order one of which is to afford
    to the detenu an earliest opportunity of making a
    representation against the order which obligation has
    been met by informing the detenu in the grounds of
    detention to whom his representation should be
    addressed. But the authority to which the
    representation is addressed must have statutory
    backing. In order to trace the source for the statutory
    backing it would be advantageous to notice the
    scheme of the Act providing for preventive detention.
    Section 2(b) defines a detention order to mean an
    order made under Section 3. Sub-section (1) of
    Section 3 empowers 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 that government, specially empowered
    for the purposes of this section by that government, to
    make an order of detention with respect to any person
    with a view to preventing him from acting in any
    manner prejudicial to the conservation or
    augmentation of foreign exchange or with a view to
    preventing him from doing any one of the five
    prejudicial acts enumerated thereunder. Sub-section
    (2) of that section provides that 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
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    19
    Central Government a report in respect of the order. It
    is evident from this provision that whenever a
    detention order is made by the State Government or
    its officer specially empowered for that purpose an
    obligation is cast on the State Government to forward
    a report to the Central Government in respect of that
    order within ten days. The purpose of this provision is
    clearly to enable the Central Government to keep an
    eye on the exercise of power under Section 3(1) by
    the State Government or its officer. Then comes subsection (3) which reads as under:
  14. (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.”
    This provision is clearly intended to meet the
    obligation cast by Article 22(5) that the grounds of
    detention shall be communicated ‘as soon as may be’.
    The legislation has, therefore, fixed the outer limit
    within which the grounds of detention must be
    communicated to the detenu. Thus the first part of the
    obligation cast by Article 22(5) is met by Section 3(3)
    of the Act. Section 8 provides for the Constitution of
    Advisory Boards. This section is clearly to meet the
    obligation of sub-clause (a) of clause (4) and subclause (c) of clause (7) of Article 22 of the
    Constitution. Section 8(f) which has some relevance
    provides that 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
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    20
    person concerned, the appropriate government shall
    revoke the detention order and cause the person to be
    released forthwith. This provision clearly obliges the
    appropriate government to order revocation of the
    detention order if the Advisory Board reports want of
    sufficient cause for detention of that person. Then
    comes Section 11 which reads as under:
    “11. Revocation of detention orders.— (1)
    Without prejudice to the provisions of
    Section 21 of the General Clauses Act,
    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.”
    Sub-section (2) is not relevant for our purpose. It is
    obvious from a plain reading of the two clauses of
    sub-section (1) of Section 11 that where an order is
    made by an officer of the State Government, the State
    Government as well as the Central Government are
    empowered to revoke the detention order. Where,
    however, the detention order is passed by an officer of
    the Central Government or a State Government, the
    Central Government is empowered to revoke the
    detention order. Now this provision is clearly without
    prejudice to Section 21 of the General Clauses Act
    which lays down that where by any Central Act a
    power to issue orders is conferred, then that power
    includes a power, exercisable in the like manner and
    subject to the like sanction and conditions, if any, to
    rescind any order so issued. Plainly the authority
    which has passed the order under any Central Act is
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    21
    empowered by this provision to rescind the order in
    like manner. This provision when read in the context
    of Section 11 of the Act makes it clear that the power
    to rescind conferred on the authority making the
    detention order by Section 21 of the General Clauses
    Act is saved and is not taken away. Under Section 11
    an officer of the State Government or that of the
    Central Government specially empowered under
    Section 3(1) of the Act to make a detention order is
    not conferred the power to revoke it; that power for
    those officers has to be traced to Section 21 of the
    General Clauses Act. Therefore, 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 order
    needs to be revoked he can do so by virtue of Section
    21 of the General Clauses Act since Section 11 of the
    Act does not entitle him to do so. If the State
    Government passes an order of detention and later
    desires to revoke it, whether upon receipt of a
    representation from the detenu or otherwise, it would
    be entitled to do so under Section 21 of the General
    Clauses Act but if the Central Government desires to
    revoke any order passed by the State Government or
    its officer it can do so only under clause (b) of Section
    11(1) of the Act and not under Section 21 of the
    General Clauses Act. This clarifies why the power
    under Section 11 is conferred without prejudice to the
    provisions of Section 21 of the General Clauses Act.
    Thus on a conjoint reading of Section 21 of the
    General Clauses Act and Section 11 of the Act it
    becomes clear that the power of revocation can be
    exercised by three authorities, namely, the officer of
    the State Government or the Central Government, the
    State Government as well as the Central Government.
    The power of revocation conferred by Section 8(f) on
    the appropriate Government is clearly independent of
    this power. It is thus clear that Section 8(f) of the Act
    satisfies the requirement of Article 22(4) whereas
    Section 11 of the Act satisfies the requirement of the
    latter part of Article 22(5) of the Constitution. The
    statutory provisions, therefore, when read in the
    context of the relevant clauses of Article 22, make it
    clear that they are intended to satisfy the
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    22
    constitutional requirements and provide for
    enforcement of the right conferred on the detenu to
    represent against his detention order. Viewed in this
    perspective it cannot be said that the power conferred
    by Section 11 of the Act has no relation whatsoever
    with the constitutional obligation cast by Article
    22(5).”
    D. The apparent conflict between the decisions of this Court in
    Sushila Mafatlal Shah9
    and Amir Shad Khan11 came up for
    consideration before a Constitution Bench of this Court in
    Kamleshkumar Ishwardas Patel vs. Union of India and others12
    and the question was posed as under:-
    “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?”
    The matter was considered as under:-
    “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
    Vaidya13
    .) 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
    12 (1995) 4 SCC 51
    13 1951 SCR 167 = AIR 1951 SC 157
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    23
    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 representation that is to be
    made by the person detained is to enable him to
    obtain relief at the earliest opportunity, the said
    representation has to be made to the authority which
    can grant such relief, i.e., the authority which can
    revoke the order of detention and set him at liberty.
    The authority that has made the order of detention can
    also revoke it. This right is inherent in the power to
    make the order. It is recognised by Section 21 of the
    General Clauses Act, 1897 though it does not flow
    from it. It can, therefore, be said that Article 22(5)
    postulates that the person detained has a right to make
    a representation against the order of detention to the
    authority making the order. In addition, such a
    representation can be made to any other authority
    which is empowered by law to revoke the order of
    detention.
    … … …
  15. 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, which 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 within 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.
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    24
    … … …
  16. If the power of revocation is to be treated as the
    criterion for ascertaining the authority to whom
    representation can be made, then the representation
    against an order of detention made by an officer
    specially empowered by the State Government can be
    made to the officer who has made the order as well as
    to the State Government and the Central Government
    who are competent to revoke the order. Similarly, the
    representation against an order made by the State
    Government can be made to the State Government as
    well as to the Central Government and the
    representation against an order made by an officer
    specially empowered by the Central Government can
    be made to the officer who has made the order as well
    as to the Central Government.”
    After considering relevant decisions, this Court did not accept the
    law laid down in Sushila Mafatlal Shah9
    and observed:-
    “30. The decision in Sushila Mafatlal Shah9
    proceeds
    on two premises: (i) Article 22(5) does not confer a
    right to make a representation to the officer specially
    empowered to make the order; and (ii) under the
    provisions of the COFEPOSA Act when the order of
    detention is made by the officer specially empowered
    to do so, the detaining authority is the appropriate
    Government, namely, the Government which has
    empowered the officer to make the order, since such
    order acquires “deemed approval” by the Government
    from the time of its issue.
  17. With due respect, we find it difficult to agree with
    both the premises. Construing the provisions of
    Article 22(5) we have explained that the right of the
    person detained to make a representation against the
    order of detention comprehends the right to make
    such a representation to the authority which can grant
    such relief i.e. the authority which can revoke the
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    25
    order of detention and set him at liberty and since the
    officer who has made the order of detention is
    competent to revoke it, the person detained has the
    right to make a representation to the officer who made
    the order of detention. The first premise that such
    right does not flow from Article 22(5) cannot,
    therefore, be accepted.
  18. The learned Judges, while relying upon the
    observations in Abdul Karim14 and the decisions in
    Jayanarayan Sukul15
    , Haradhan Saha16 and John
    Martin17 have failed to notice that in these cases the
    Court was considering the matter in the light of the
    provisions contained in Section 7(1) of the Preventive
    Detention Act, 1950, whereby it was prescribed that
    the representation was to be made to the appropriate
    Government. The observations regarding
    consideration of the representation by the State
    Government in the said decisions have, therefore, to
    be construed in the light of the said provision in the
    Preventive Detention Act and on that basis it cannot
    be said that Article 22(5) does not postulate that the
    person detained has no right to make a representation
    to the authority making the order of detention.
  19. The second premise that the Central Government
    becomes the detaining authority since there is deemed
    approval by the Government of the order made by the
    officer specially empowered in that regard from the
    time of its issue, runs counter to the scheme of the
    COFEPOSA Act and the PIT NDPS Act which differs
    from that of other preventive detention laws, namely,
    the National Security Act, 1980, the Maintenance of
    Internal Security Act, 1971, and the Preventive
    Detention Act, 1950.
  20. In the National Security Act there is an express
    provision [Section 3(4)] in respect of orders made by
    the District Magistrate or the Commissioner of Police
    14 (1969) 1 SCC 433
    15 (1970) 1 SCC 219 [Jayanarayan Sukul vs. State of West Bengal]
    16 (1975) 3 SCC 198 [Haradhan Saha vs. The State of West Bengal and others]
    17 (1975) 3 SCC 836
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    26
    under Section 3(3) and the District Magistrate or the
    Commissioner of Police who has made the order is
    required to forthwith report the fact to the State
    Government to which he is subordinate. The said
    provision further prescribes that no such order shall
    remain in force for more than twelve days after the
    making thereof, unless, in the meantime, it has been
    approved by the State Government. This would show
    that it is the approval of the State Government which
    gives further life to the order which would otherwise
    die its natural death on the expiry of twelve days after
    its making. It is also the requirement of Section 3(4)
    that the report should be accompanied by the grounds
    on which the order has been made and such other
    particulars as, in the opinion of the said officer, have a
    bearing on the matter which means that the State
    Government has to take into consideration the
    grounds and the said material while giving its
    approval to the order of detention. The effect of the
    approval by the State Government is that from the
    date of such approval the detention is authorised by
    the order of the State Government approving the order
    of detention and the State Government is the
    detaining authority from the date of the order of
    approval. That appears to be the reason why Section
    8(1) envisages that the representation against the
    order of detention is to be made to the State
    Government. The COFEPOSA Act and the PIT NDPS
    Act do not require the approval of an order made by
    the officer specially empowered by the State
    Government or by the Central Government. The order
    passed by such an officer operates on its own force.
    All that is required by Section 3(2) of the COFEPOSA
    Act and the PIT NDPS Act is that the State
    Government shall within 10 days forward to the
    Central Government a report in respect of an order
    that is made by the State Government or an officer
    specially empowered by the State Government. An
    order made by the officer specially empowered by the
    State Government is placed on the same footing as an
    order made by the State Government because the
    report has to be forwarded to the Central Government
    in respect of both such orders. No such report is
    required to be forwarded to the Central Government
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    27
    in respect of an order made by an officer specially
    empowered by the Central Government. Requirement
    regarding forwarding of the report contained in
    Section 3(2) of the COFEPOSA Act and the PIT
    NDPS Act cannot, therefore, afford the basis for
    holding that an order made by an officer specially
    empowered by the Central Government or the State
    Government acquires deemed approval of that
    Government from the date of its issue. Approval,
    actual or deemed, postulates application of mind to
    the action being approved by the authority giving
    approval. Approval of an order of detention would
    require consideration by the approving authority of
    the grounds and the supporting material on the basis
    of which the officer making the order had arrived at
    the requisite satisfaction for the purpose of making
    the order of detention. Unlike Section 3(4) of the
    National Security Act there is no requirement in the
    COFEPOSA Act and the PIT NDPS Act that the
    officer specially empowered for the purpose of
    making of an order of detention must forthwith send
    to the Government concerned the grounds and the
    supporting material on the basis of which the order of
    detention has been made. Nor is it prescribed in the
    said enactments that after the order of detention has
    been made by the officer specially empowered for that
    purpose the Government concerned is required to
    apply its mind to the grounds and the supporting
    material on the basis of which the order of detention
    was made. The only circumstance from which
    inference about deemed approval is sought to be
    drawn is that the order is made by the officer specially
    empowered for that purpose by the Government
    concerned. Merely because the order of detention has
    been made by the officer who has been specially
    empowered for that purpose would not, in our
    opinion, justify the inference that the said order
    acquires deemed approval of the Government that has
    so empowered him, from the date of the issue of the
    order so as to make the said Government the detaining
    authority. By specially empowering a particular
    officer under Section 3(2) of the COFEPOSA Act and
    the PIT NDPS Act the Central Government or the
    State Government confers an independent power on
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    28
    the said officer to make an order of detention after
    arriving at his own satisfaction about the activities of
    the person sought to be detained. Since the detention
    of the person detained draws its legal sanction from
    the order passed by such officer, the officer is the
    detaining authority in respect of the said person. He
    continues to be the detaining authority so long as the
    order of detention remains operative. He ceases to be
    the detaining authority only when the order of
    detention ceases to operate. This would be on the
    expiry of the period of detention as prescribed by law
    or on the order being revoked by the officer himself or
    by the authority mentioned in Section 11 of the
    COFEPOSA Act and Section 12 of the PIT NDPS
    Act. There is nothing in the provisions of these
    enactments to show that the role of the officer comes
    to an end after he has made the order of detention and
    that thereafter he ceases to be the detaining authority
    and the Government concerned which had
    empowered him assumes the role of the detaining
    authority. We are unable to construe the provisions of
    the said enactments as providing for such a limited
    entrustment of power on the officer who is specially
    empowered to pass the order. An indication to the
    contrary is given in Section 11 of the COFEPOSA Act
    and Section 12 of the PIT NDPS Act which preserve
    the power of such officer to revoke the order that was
    made by him. This means that the officer does not go
    out of the picture after he has passed the order of
    detention. It must, therefore, be held that the officer
    specially empowered for that purpose continues to be
    the detaining authority and is not displaced by the
    Government concerned after he has made the order of
    detention. Therefore, by virtue of his being the
    detaining authority he is required to consider the
    representation of the person detained against the order
    of detention.
    … … …
  21. It appears that the decision in Ibrahim Bachu
    Bafan7, a decision of a Bench of three Judges, was
    not brought to the notice of the learned Judges
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    29
    deciding Sushila Mafatlal Shah9. For the reasons
    aforementioned we are of the view that the decision in
    Sushila Mafatlal Shah9 insofar as it holds that where
    an order of detention made by an officer specially
    empowered for the purpose, representation against the
    order of detention is not required to be considered by
    such officer and it is only to be considered by the
    appropriate Government empowering such officer,
    does not lay down the correct law.
    … … …
  22. Having regard to the provisions of Article 22(5) of
    the Constitution and the provisions of the
    COFEPOSA Act and the PIT NDPS Act the question
    posed is thus answered: 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 has 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.
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    30
  23. With the judgment of the Constitution Bench of this Court in
    Kamleshkumar12
    , the law on the first issue is well settled that where the
    detention order is made inter alia under Section 3 of the COFEPOSA 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
    would result in denial of the right conferred on the person detained to
    make a representation. Further, such right of the detenue has been taken
    to be in addition to the right to make the representation to the State
    Government and the Central Government. It must be stated that para 12
    of the grounds of detention in the instant case, as quoted hereinabove, is in
    tune with the law so declared by this Court.
  24. We now move to the second issue and consider the decisions of
    this Court on the point:-
    A) In Pankaj Kumar Chakrabarty and others vs. The State of West
    Bengal18 a Constitution Bench of this Court considered the matter where
    orders of detention were passed by the District Magistrates under Section
    3(1)(a)(ii) and (iii) read with Section 3(2) of 1950 Act19. As stated in
    18 (1969) 3 SCC 400 = (1970) 1 SCR 543
    19 The Preventive Detention Act, 1950
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    31
    paragraph 2 of the decision, the case of the detenue was placed before the
    Advisory Board on 21.09.1968. A representation against the order of
    detention was made to the State Government on 21.10.1968. An opinion
    was given by the Advisory Board on 06.11.1968 that there was sufficient
    cause for detention of the person concerned, whereafter the order was
    confirmed on 11.11.1968. While in the case considered in paragraph 4,
    the representation was made after the case was referred to the Advisory
    Board. In the light of these facts, following two questions were framed:-
    “6. On these contentions two questions arise: (i)
    whether there is on the appropriate Government the
    obligation to consider the representation made by a
    detenue, and (2) if there is, whether it makes any
    difference where such a representation is made after
    the detenu’s case is referred to the Advisory Board.”
    The matter was, thereafter, considered and it was observed:-
    “10. It is true that clause 5 does not in positive
    language provide as to whom the representation is to
    be made and by whom, when made, it is to be
    considered. But the expressions “as soon as may be”
    and “the earliest opportunity” in that clause clearly
    indicate that the grounds are to be served and the
    opportunity to make a representation are provided for
    to enable the detenu to show that his detention is
    unwarranted and since no other authority who should
    consider such representation is mentioned it can only
    be the detaining authority to whom it is to be made
    which has to consider it. Though clause 5 does not in
    express terms say so it follows from its provisions that
    it is the detaining authority which has to give to the
    detenu the earliest opportunity to make a
    representation and to consider it when so made
    whether its order is wrongful or contrary to the law
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    32
    enabling it to detain him. The illustrations given in
    Sk. Abdul Karim case show that clause 5 of Article 22
    not only contains the obligation of the appropriate
    Government to furnish the grounds and to give the
    earliest opportunity to make a representation but also
    by necessary implication the obligation to consider
    that representation. Such an obligation is evidently
    provided for to give an opportunity to the detenu to
    show and a corresponding opportunity to the
    appropriate Government to consider any objections
    against the order which the detenu may raise so that
    no person is, through error or otherwise, wrongly
    arrested and detained. If it was intended that such a
    representation need not be considered by the
    Government where an Advisory Board is constituted
    and that representation in such cases is to be
    considered by the Board and not by the appropriate
    Government, clause 5 would not have directed the
    detaining authority to afford the earliest opportunity
    to the detenu. In that case the words would more
    appropriately have been that the authority should
    obtain the opinion of the Board after giving an
    opportunity to the detenu to make a representation
    and communicate the same to the Board. But what
    would happen in cases where the detention is for less
    than 3 months and there is no necessity of having the
    opinion of the Board? If Counsel’s contention were to
    be right the representation in such cases would not
    have to be considered either by the appropriate
    Government or by the Board and the right of
    representation and the corresponding obligation of the
    appropriate Government to give the earliest
    opportunity to make such representation would be
    rendered nugatory. In imposing the obligation to
    afford the opportunity to make a representation,
    clause 5 does not make any distinction between orders
    of detention for only 3 months or less and those for a
    longer duration. The obligation applies to both kinds
    of orders. The clause does not say that the
    representation is to be considered by the appropriate
    Government in the former class of cases and by the
    Board in the latter class of cases. In our view it is
    clear from clauses 4 and 5 of Article 22 that there is a
    dual obligation on the appropriate Government and a
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    33
    dual right in favour of the detenu, namely, (1) to have
    his representation irrespective of the length of
    detention considered by the appropriate Government
    and (2) to have once again that representation in the
    light of the circumstances of the case considered by
    the Board before it gives its opinion. If in the light of
    that representation the Board finds that there is no
    sufficient cause for detention the Government has to
    revoke the order of detention and set at liberty the
    detenu. Thus, whereas the Government considers the
    representation to ascertain whether the order is in
    conformity with its power under the relevant law, the
    Board considers such representation from the point of
    view of arriving at its opinion whether there is
    sufficient cause for detention. The obligation of the
    appropriate Government to afford to the detenu the
    opportunity to make a representation and to consider
    that representation is distinct from the Government’s
    obligation to constitute a Board and to communicate
    the representation amongst other materials to the
    Board to enable it to form its opinion and to obtain
    such opinion.
  25. This conclusion is strengthened by the other
    provisions of the Act. In conformity with clauses 4
    and 5 of Article 22, Section 7 of the Act enjoins upon
    the detaining authority to furnish to the detenu
    grounds of detention within five days from the date of
    his detention and to afford to the detenu the earliest
    opportunity to make his representation to the
    appropriate Government. Sections 8 and 9 enjoin
    upon the appropriate Government to constitute an
    Advisory Board and to place within 30 days from the
    date of the detention the grounds for detention, the
    detenu’s representation and also the report of the
    officer where the order of detention is made by an
    officer and not by the Government. The obligation
    under Section 7 is quite distinct from that under
    Sections 8 and 9. If the representation was for the
    consideration not by the Government but by the
    Board only as contended, there was no necessity to
    provide that it should be addressed to the Government
    and not directly to the Board. The Government could
    not have been intended to be only a transmitting
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    Ankit Ashok Jalan vs. Union of India & Ors.
    34
    authority nor could it have been contemplated that it
    should sit tight on that representation and remit it to
    the Board after it is constituted. The peremptory
    language in clause 5 of Article 22 and Section 7 of the
    Act would not have been necessary if the Board and
    not the Government had to consider the
    representation. Section 13 also furnishes an answer to
    the argument of Counsel for the State. Under that
    section the State Government and the Central
    Government are empowered to revoke or modify an
    order of dentention. That power is evidently provided
    for to enable the Government to take appropriate
    action where on a representation made to it, it finds
    that the order in question should be modified or even
    revoked. Obviously, the intention of Parliament could
    not have been that the appropriate Government should
    pass an order under Section 13 without considering
    the representation which has under Section 7 been
    addressed to it.
  26. For the reasons aforesaid we are in agreement
    with the decision in Sk. Abdul Karim case.
    Consequently, the petitioners had a constitutional
    right and there was on the State Government a
    corresponding constitutional obligation to consider
    their representations irrespective of whether they were
    made before or after their cases were referred to the
    Advisory Board and that not having been done the
    order of detention against them cannot be sustained.
    In this view it is not necessary for us to examine the
    other objections raised against these orders. The
    petition is therefore allowed, the orders of detention
    against Petitioners 15 and 36 are set aside and we
    direct that they should be set at liberty forthwith.”
    (Emphasis added)
    B. In Jayanarayan Sukul15
    , considered by another Constitution
    Bench of this Court, the order of detention was passed by the District
    Magistrate under the relevant provisions of 1950 Act. A representation
    was made by the detenue to the State Government on 23.06.1969. The
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    35
    case of the detenue was placed before the Advisory Board on 01.07.1969
    which reported on 13.08.1969 that there was sufficient cause for the
    detention. It was only thereafter that the representation was considered
    and rejected on 19.08.1969. In the context of these facts, it was
    observed:-
    “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 Khairul Haque
    v. State of W.B.20 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
    views 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.
    … … …
  27. 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
    20 W.P. No.246 of 1969, decided on 10-9-69
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    36
    in peril immediate action should be taken by the
    relevant authorities. (Emphasis added)
  28. 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 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
    Haque20 “It is obvious that the obligation to furnish
    the earliest opportunity to make a representation loses
    both its purpose and meaning”.
  29. 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 the 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
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    37
    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. (Emphasis Added)
  30. In the present case, the State of West Bengal is
    guilty of infraction of the constitutional provisions not
    only by inordinate delay of the consideration of the
    representation but also by putting of the consideration
    till after the receipt of the opinion of the Advisory
    Board. As we have already observed there is no
    explanation for this inordinate delay. The
    Superintendent who made the enquiry did not affirm
    an affidavit. The State has given no information as to
    why this long delay occurred. The inescapable
    conclusion in the present case is that the appropriate
    authority failed to discharge its constitutional
    obligation by inactivity and lack of independent
    judgment.”
    C) In Haradhan Saha16 yet another Constitution Bench of this Court
    considered the distinction between the consideration of representation by
    the Government and by the Advisory Board as under.
    “24. The representation of a detenu is to be
    considered. There is an obligation on the State to
    consider the representation. The Advisory Board has
    adequate power to examine the entire material. The
    Board can also call for more materials. The Board
    may call the detenu at his request. The constitution of
    the Board shows that it is to consist of Judges or
    persons qualified to be Judges of the High Court. The
    constitution of the Board observes the fundamental of
    fair play and principles of natural justice. It is not the
    requirement of principles of natural justice that there
    must be an oral hearing. Section 8 of the Act which
    casts an obligation on the State to consider the
    representation affords the detenu all the rights which
    are guaranteed by Article 22(5). The Government
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    38
    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 whether in the light of the representation
    there is sufficient cause for detention. (Emphasis
    Added)
    … … …
  31. Principles of natural justice are an element in
    considering the reasonableness of a restriction where
    Article 19 is applicable. At the stage of consideration
    of representation by the State Government, the
    obligation of the State Government is such as Article
    22(5) implies. Section 8 of the Act is in complete
    conformity with Article 22(5) because this section
    follows the provisions of the Constitution. If the
    representation of the detenu is received before the
    matter is referred to the Advisory Board, the detaining
    authority considers the representation. If a
    representation is made after the matter has been
    referred to the Advisory Board, the detaining
    authority will consider it before it will send
    representation to the Advisory Board.” (Emphasis
    Added)
    It was, thus, clarified that if the representation is received before the
    matter is referred to the Advisory Board, the Detaining Authority ought to
    consider such representation; and if the representation is made after the
    matter is referred to the Advisory Board, the Detaining Authority would
    first consider it and then send the representation to the Advisory Board.
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    39
    D) In Frances Coralie Mullin vs. W.C. Khambra21, a bench of two
    Judges of this Court considered the principles laid down in Jayanarayan
    Sukul15 and made following observations:-
    “5. We have no doubt in our minds about the role of
    the court in cases of preventive detention: it has to be
    one of eternal vigilance. No freedom is higher than
    personal freedom and no duty higher than to maintain
    it unimpaired. The Court’s writ is the ultimate
    insurance against illegal detention. The Constitution
    enjoins conformance with the provisions of Article 22
    and the Court exacts compliance. Article 22(5) vests
    in the detenu the right to be provided with an
    opportunity to make a representation. Here the Law
    Reports tell a story and teach a lesson. It is that the
    principal enemy of the detenu and his right to make a
    representation is neither high-handedness nor meanmindedness but the casual indifference, the mindless
    insensibility, the routine and the red tape of the
    bureaucratic machine. The four principles enunciated
    by the Court in Jayanarayan Sukul v. State of W.B. 15
    as well as other principles enunciated in other cases,
    an analysis will show, are aimed at shielding personal
    freedom against indifference, insensibility, routine
    and red tape and thus to secure to the detenu the right
    to make an effective representation. We agree: (1) the
    detaining authority must provide the detenu a very
    early opportunity to make a representation, (2) the
    detaining authority must consider the representation
    as soon as possible, and this, preferably, must be
    before the representation is forwarded to the Advisory
    Board, (3) the representation must be forwarded to the
    Advisory Board before the Board makes its report,
    and (4) the consideration by the detaining authority of
    the representation must be entirely independent of the
    hearing by the Board or its report, expedition being
    essential at every stage. We, however, hasten to add
    that the time-imperative can never be absolute or
    obsessive. The Court’s observations are not to be so
    understood. There has to be lee-way, depending on the
    21 (1980) 2 SCC 275
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    40
    necessities (we refrain from using the word
    “circumstances”) of the case. One may well imagine a
    case where a detenu does not make a representation
    before the Board makes its report making it
    impossible for the detaining authority either to
    consider it or to forward it to the Board in time or a
    case. where a detenu makes a representation to the
    detaining authority so shortly before the Advisory
    Board takes up the reference that the detaining
    authority cannot consider the representation before
    then but may merely forward it to the Board without
    himself considering it. Several such situations may
    arise compelling departure from the time-imperative.
    But no allowance can be made for lethargic
    indifference. No allowance can be made for needless
    procrastination. But, allowance must surely be made
    for necessary consultation where legal intricacies and
    factual ramifications are involved. The burden of
    explaining the necessity for the slightest departure
    from the time-imperative is on the detaining authority.
    … … …
  32. We have already expressed our agreement with the
    four principles enunciated in Jayanarayan Sukul v.
    State of W.B.15. We would make one observation.
    When it was said there that the Government should
    come to its decision on the representation before the
    Government forwarded the representation to the
    Advisory Board, the emphasis was not on the point of
    time but on the requirement that the Government
    should consider the representation independently of
    the Board. This was explained in Nagendra Nath
    Mondal v. State of W.B22
    . In Sukul case15 the court also
    made certain pertinent observations at pp. 231-232:
    (SCC p. 224, para 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
    22 (1972) 1 SCC 498
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    41
    circumstances of each case whether the
    appropriate Government has disposed of the
    case as expeditiously as possible….”
    E) In K.M. Abdullah Kunhi6
    , in view of the conflict between two
    decisions of this Court the matter was referred to the Constitution Bench
    as is clear from paragraphs 1 and 2 of said decision:-
    “1. A Division Bench of this Court while expressing
    the view that the decisions in V.J. Jain v. Shri
    Pradhan23and Om Prakash Bahl v. Union of India24
    require reconsideration has referred these matters to
    the Constitution Bench.
  33. 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 detenu’s 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. Jain
    case23 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
    23 (1979) 4 SCC 401
    24 W.P. No.845 of 1979, decided on October 15, 1979
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    42
    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 case24.”
    In that case the detention orders were passed by the State
    Government under Section 3(1)(iv) of the COFEPOSA Act. The
    representations were made by the detenues on 17.04.1989 which,
    however, could not be considered immediately as certain information and
    comments were required. In the meantime, the case was referred to the
    Advisory Board which in its report dated 20.04.1989 found that there was
    sufficient cause for the detention. On 27.04.1989, the detention was
    confirmed by the State Government. Thereafter, the representations were
    considered on 6th and 7th May, 1989 by the State Government and by the
    Central Government on 23.05.1989. In the backdrop of these facts, the
    question that arose was:-
    “5. The principal question for consideration is
    whether the confirmation of detention order upon
    accepting the report of the Advisory Board renders
    itself invalid solely on the ground that the
    representation of the detenu was not considered and
    the subsequent consideration of the representation
    would not cure that invalidity. At the outset it may be
    made clear that there is no argument addressed before
    us that there was unexplained delay in considering the
    representation of the detenu. Indeed, counsel for the
    petitioners very fairly submitted that they are not
    raising the question of delay. They also did not argue
    that the rejection of the representation after the
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    43
    confirmation of detention was not an independent
    consideration.”
    After considering the relevant decisions on the point, including
    Pankaj Kumar Chakrabarty18
    , Jayanarayan Sukul15, Haradhan Saha16
    and Frances Coralie Mullin21 this Court observed:-
    “15. In Frances Coralie Mullin case, the detenu’s
    representation was received by the detaining authority
    on December 26, 1979. Without any loss of time copy
    of the representation was sent to the customs
    authorities for their remarks which was obviously
    necessary because the information leading to the order
    of detention was collected by the customs authorities.
    The facts were undoubtedly complex since the
    allegations against the detenu revealed an
    involvement with an international gang of dope
    smugglers. The comments of the customs authorities
    were received on January 4, 1980. The Advisory
    Board was meeting on January 4, 1980 and so there
    could be no question of the detaining authority
    considering the representation of the detenu before the
    Board met, unless it was done in a great and undue
    haste. After obtaining the comments of the customs
    authorities, it was found necessary to take legal advice
    as the representation posed many legal and
    constitutional questions, so, after consultation with
    the Secretary (Law and Judicial) Delhi
    Administration, the representation was finally rejected
    by the Administrator on January 15, 1980. It was held
    that if there appeared to be any delay it was not due to
    any want of care but because the representation
    required a thorough examination in consultation with
    investigation agencies and advisers on law.
  34. We agree with the observations in Frances
    Coralie Mullin case. 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
    Writ Petition (Criminal) No.362 of 2019
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    44
    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 the 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. (Emphasis added)
    … … …
  35. 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
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    45
    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 conformity with the power under
    the statute. This has been explained in Haradhan
    Saha case, 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 of 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.
  36. 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 words ‘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
    Writ Petition (Criminal) No.362 of 2019
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    46
    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 Bahl and Khairul Haque cases.
    They cannot be considered to be good law and hence
    stand overruled.”
    Two situations were considered in paragraph 16 by this Court.
    One, where the representation is received just before the case is referred to
    the Advisory Board and there is no time to dispose of the representation
    before such reference; and second, where the representation is received
    after such reference to the Advisory Board. It was observed that, “……In
    both the situations there is no question of consideration of the
    representation before the receipt of report of the Advisory Board…. It is
    proper for the government in such situations to await the report of the
    Board.” The reasons for such observations were given in the latter part of
    paragraph 16 and in paragraphs 19 and 20.
    Writ Petition (Criminal) No.362 of 2019
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    47
    F) In Golam Biswas5
    , the order of detention under the COFEPOSA
    Act was passed on 27.05.2014. A representation was made to the Central
    Government on 08.07.2014. The reference was made to the Advisory
    Board on 18.07.2014 which reported on 27.08.2014 that there was
    sufficient cause for detention. Thereafter, the detention was confirmed on
    05.09.2014. In the meantime, the representation which was pending with
    the Central Government, was rejected on 21.07.2014. A bench of two
    Judges of this Court considered the submission in paragraph 11 and 15 as
    under:-
    “11. To start with the dates setting out the intervening
    events are not in dispute. To repeat, the detenu had
    submitted his representation on 8-7-2014 and the
    same was pending consideration on merit before the
    Central Government on 18-7-2014, the date on which
    the matter was remitted to the Advisory Board under
    the Act. The representation was rejected on 21-7-2014
    when the matter was pending before the Advisory
    Board. The Advisory Board concluded its proceedings
    and gave a finding sustaining the order of detention
    on 27-8-2014. Unmistakably, thus, the detenu’s
    representation which was pending at the time of
    remittance of the matter to the Advisory Board was
    not forwarded to it and instead was rejected by the
    Central Government during the pendency of the
    proceedings before the Advisory Board.
    … … …
  37. As admittedly, the detenu’s representation dated 8-
    7-2014, pending with the Central Government, the
    appropriate Government in the case, was not
    forwarded to the Advisory Board and was instead
    rejected during the pendency of the proceedings
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    48
    before the Advisory Board, we are constrained to hold
    that the detention of the detenu is constitutionally
    invalid. The rejection of the representation by the
    Central Government later on 21-7-2014 during the
    pendency of the proceedings before the Advisory
    Board is of no consequence to sustain the detention.
    Consequently, the order of confirmation as well is
    rendered non est by this vitiation. In view of the
    determination made on the above aspect of the debate,
    we do not consider it necessary to dilate on the other
    pleas raised on behalf of the detenu. In the result, the
    appeal succeeds. The impugned judgment and order is
    set aside. The orders of detention as well as the order
    of confirmation are hereby annulled. The detenu is
    directed to be set at liberty, if not wanted in any other
    case.”
    Thus, failure on part of the appropriate Government to forward the
    representation to the Advisory Board and rejection thereof while the
    proceedings were pending before the Advisory Board, were the points on
    which the relief was granted to the detenue.
  38. In the context of the second issue stated earlier, the principles that
    emerge from the decisions referred to above are:-
    A) In Pankaj Kumar Chakrabarty18, it was laid down:-
    “the petitioners had a constitutional right and there
    was on the State Government a corresponding
    constitutional obligation to consider their
    representations irrespective of whether they were
    made before or after their cases were referred to the
    Advisory Board”
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    49
    According to this decision it was immaterial whether the
    representations were made before or after the cases were referred to the
    Advisory Board.
    B) In Jayanarayan Sukul15
    , the reason for immediate consideration
    of the representation was stressed in para 18 as under:-
    “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.”
    Thereafter four principles that must be followed in regard to
    consideration of the representation of a detenue were dealt with in
    paragraph 20; the second principle being:-
    “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.”
    It was thus stated that the consideration of the representation must
    be entirely independent of the action by the Advisory Board.
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    50
    The 4th principle put the obligation upon the appropriate
    Government to consider the representation as :-
    “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.”
    C) In Haradhan Saha16
    , the qualitative difference between
    consideration of the representation by the Government on one hand and
    by the Advisory Board on the other, was clarified in para 24 as:-
    “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 whether in the light of
    the representation there is sufficient cause for
    detention.”
    The cases where the representations were received before the
    reference and after the reference were also dealt with in para 29 as :-
    “If the representation of the detenu is received before
    the matter is referred to the Advisory Board, the
    detaining authority considers the representation. If a
    representation is made after the matter has been
    referred to the Advisory Board, the detaining
    authority will consider it before it will send
    representation to the Advisory Board.”
    D) In Frances Coralie Mullin21, the principle that the consideration
    by the Detaining Authority of the representation must be entirely
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    51
    independent of the hearing by the Board or its report was again stressed
    with emphasis on “expedition being essential at every stage”
    Para 7 of the decision explained the principles in Jayanarayan
    Sukul15 as:-
    “when it was said there that the Government
    should come to its decision on the representation
    before the Government forwarded the representation
    to the Advisory Board, the emphasis was not on the
    point of time but on the requirement that the
    Government should consider the representation
    independently of the Board.”
  39. These decisions clearly laid down that the consideration of
    representations by the appropriate Government by the Board would
    always be qualitatively different and the power of consideration by the
    appropriate Government must be completely independent of any action by
    the Advisory Board. In para 12 of the decision in Pankaj Kumar
    Chakrabarty18 it was stated that the obligation on part of the Government
    to consider representation would be irrespective whether the
    representation was made before or after the case was referred to the
    Advisory Board. As stated in paragraph 18, this was stated so, as any
    delay in consideration of the representation would not only be an
    irresponsible act on part of the appropriate authority but also
    unconstitutional. The contingency whether the representations were
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    52
    received before or after was again considered in para 29 of the decision in
    Haradhan Saha16
    . In terms of these principles, the matter of
    consideration of representation in the context of reference to the Advisory
    Board, can be put in following four categories:-
    A) If the representation is received well before the reference is made
    to the Advisory Board and can be considered by the appropriate
    Government, the representation must be considered with expedition.
    Thereafter the representation along with the decision taken on the
    representation shall be forwarded to and must form part of the documents
    to be placed before the Advisory Board.
    B) If the representation is received just before the reference is made
    to the Advisory Board and there is no sufficient time to decide the
    representation, in terms of law laid down in Jayanarayan Sukul15 and
    Haradhan Saha16 the representation must be decided first and thereafter
    the representation and the decision must be sent to the Advisory Board.
    This is premised on the principle that the consideration by the appropriate
    Government is completely independent and also that there ought not to be
    any delay in consideration of the representation.
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    53
    C) If the representation is received after the reference is made but
    before the matter is decided by the Advisory Board, according to the
    principles laid down in Haradhan Saha16, the representation must be
    decided. The decision as well as the representation must thereafter be
    immediately sent to the Advisory Board.
    D) If the representation is received after the decision of the Advisory
    Board, the decisions are clear that in such cases there is no requirement to
    send the representation to the Advisory Board. The representation in such
    cases must be considered with expedition.
  40. There can be no difficulty with regard to the applicability of the
    principles in the 1st and the 4th stage of the aforesaid categories. The
    difficulty may arise as regards the application of principles at the 2nd and
    the 3rd stage. But that difficulty was dealt with sufficient clarity in
    Jayanarayan Sukul15 and Haradhan Saha16 as stated hereinabove. If it is
    well accepted that the representation must be considered with utmost
    expedition; and the power of the Government is completely independent
    of the power of the Advisory Board; and the scope of consideration is also
    qualitatively different, there is no reason why the consideration by the
    Government must await the decision by the Advisory Board. None of the
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    54
    aforesaid cases even remotely suggested that the consideration must await
    till the report was received from the Advisory Board.
  41. However, it was for the first time that the decision in K.M.
    Abdulla Kunhi6
    laid down in paragraph 16 that it would be proper for the
    Government in the two situations dealt with in said paragraph to await the
    report of the Board; those two situations being:-
    a) where the representation is received before the matter is referred
    to the Advisory Board and where there may not be sufficient time to
    dispose of the representation before referring the case to the Advisory
    Board, and
    b) where the representation is received after the case is referred to
    the Advisory Board.
    It was also laid down:-
    “In both the situations there is no question of
    consideration of the representation before the receipt of
    report of the Advisory Board.”
  42. Since the decision of this Court in K.M. Abdulla Kunhi6 was
    rendered by the Constitution Bench of this Court after considering all the
    earlier decisions on the point including those in Pankaj Kumar
    Chakrabarty18
    , Jayanarayan Sukul15 and Haradhan Saha16
    , we are bound
    by the principles laid down therein. When the learned counsel for the
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    55
    petitioner were so confronted, it was submitted by them that the decision in
    K.M. Abdulla Kunhi6 dealt with the matter relating to the consideration of
    representation by the appropriate Government and not in the context where
    power of detention was exercised by a specially empowered officer as the
    Detaining Authority. According to them, that would make a huge
    difference and put the matter in a qualitatively different compass.
  43. We now proceed to deal with these submissions.
  44. At the outset it must be stated that in Pankaj Kumar
    Chakrabarty18 and in Jayanarayan Sukul15 the orders of detention were
    passed by the District Magistrates under Section 3(ii) of 1950 Act. The
    relevant statutory provisions contemplated the concept of approval within
    12 days of the passing of such orders of detention passed by the District
    Magistrates. In Haradhan Saha16 power was exercised by the District
    Magistrates under the provisions of the MISA, wherein similar concept of
    approval on part of the State Government within 12 days of the passing of
    the order of detention by the District Magistrate was contemplated. The
    distinction on that count was noted by this Court in para 34 of the decision
    in Kamleshkumar12
    . The orders of detention in these decisions were not
    passed by a specially empowered officer but by the concerned
    Government. The same logic regarding deemed approval was extended
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    56
    initially in Sushila Mafatlal Shah9
    to cases where the orders of detention
    were passed not by the concerned Government but by a specially
    empowered officer. The matter was, however, corrected and the distinction
    in that behalf was succinctly dealt with in Kamleshkumar12
    .
  45. It must also be borne in mind that in all cases, the appropriate
    Government would be acting in two capacities; one while considering the
    representation and the other while taking appropriate decision after a report
    is received from the Advisory Board that there is sufficient cause for
    detention. Since the decision would be required to be taken in these two
    capacities, it was observed in K.M. Abdulla Kunhi6
    that it would be proper
    for the appropriate Government to wait till the report is received from the
    Advisory Board in cases dealt with in paragraph 16 of the decision. But
    such may not be the case with the Detaining Authority who is a specially
    empowered officer.
  46. A specially empowered officer who passes the order of detention,
    in exercise of special empowerment, has no statutory role to play at the
    stage when the report is received from the Advisory Board. The report is
    to be considered by the appropriate Government and not by the specially
    empowered officer. It may also be relevant at this stage to consider the
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    57
    element of confidentiality associated with the report of the Advisory
    Board. Section 8 of the COFEPOSA Act states:-
    “8. Advisory Board.- 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 qualifications specified in subclause (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 a 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 materials placed before it and
    after calling for such further information as it may
    deem necessary for 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;
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    58
    (d) When there is a difference of opinion among the
    members forming the Advisory Board the opinion
    of the majority of such members shall be deemed
    to be the opinion of the majority of such members
    shall be deemed to be the opinion of the Board;
    (e) a person against whom an order of detention has
    been made under this Act shall not be entitled to
    appear by any legal practitioner in any matter
    connected with the reference to the Advisory
    Board, and the proceedings of the Advisory Board
    and its report, excepting that part of the report in
    which the opinion of the Advisory Board is
    specified, shall be confidential;
    (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.”
  47. In terms of Section 8, the report of the Advisory Board is meant
    only for the consumption of the appropriate Government and apart from
    the operative part of the report which is to be specified in a separate
    paragraph as per sub-section (c), the mandate in terms of sub-section (e) is
    to keep the report of the Advisory Board completely confidential. Thus, a
    specially empowered officer who may have passed the order of detention,
    by statutory intent is not to be privy to the report nor does the statute
    contemplate any role for such specially empowered officer at the stage of
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    59
    consideration of the opinion of the Advisory Board. The report of the
    Advisory Board may provide some qualitative inputs for the appropriate
    Government but none to the specially empowered officer who acted as the
    Detaining Authority. If that be so, would a specially empowered officer
    who had passed the order of detention be bound by what has been laid
    down by this Court in paragraph 16 of the decision in K.M. Abdulla
    Kunhi6
    in the context of the appropriate Government?
  48. It must also be stated here that when K.M. Abdulla Kunhi6 was
    decided on 23.01.1991, the decision that was holding the field as to the
    role of a specially empowered officer who had passed an order of
    detention, was one rendered in Sushila Mafatlal Shah9
    . The law that was
    holding the field was the concept of deemed approval as was explained in
    Sushila Mafatlal Shah9 and any representation made to such specially
    empowered officer who had passed the order of detention, in terms of the
    decision in Sushila Mafatlal Shah9, could be considered by the appropriate
    Government itself and not separately by such specially empowered officer.
    The subsequent decision in Amir Shad Khan11 was rendered by a Bench of
    three Judges on 09.08.1991 and the apparent conflict in the decisions
    between Sushila Mafatlal Shah9 and Amir Shad Khan11 was resolved by
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    60
    the Constitution Bench of this Court in Kamleshkumar12 rendered on
    17.04.1995, i.e. well after the decision in K.M. Abdulla Kunhi6
    .
  49. Thus, if the law is now settled that a representation can be made to
    the specially empowered officer who had passed the order of detention in
    accordance with the power vested in him and the representation has to be
    independently considered by such Detaining Authority, the concerned
    principles adverted to in paragraph 16 of the decision in K.M. Abdulla
    Kunhi6 would not be the governing principles for such specially
    empowered officer. It must be stated that the discussion in K.M. Abdulla
    Kunhi6 was purely in the context where the order of detention was passed
    by the appropriate Government and not by the specially empowered
    officer. The principle laid down in said paragraph 16 has therefore to be
    understood in the light of the subsequent decision rendered by another
    Constitution Bench of this Court in Kamleshkumar12
    .
  50. In the light of the aforesaid discussion, our answer to first two
    questions is that the Detaining Authority ought to have considered the
    representation independently and without waiting for the report of the
    Central Advisory Board.
    We now come to the 3rd question. The facts in the instant case
    indicate that the comments of the Sponsoring Authority in respect of the
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    61
    representation were already received by the Detaining Authority. After
    receipt of letter on 27.11.2019 that the detenues were received in custody,
    the time for considering the representation started ticking for the
    Detaining Authority. But the representation was considered only on
    14.01.2020 and the reason for such delayed consideration is that the report
    of the Central Advisory Board was awaited. We have already found that
    the Detaining Authority was obliged to consider the representation
    without waiting for the opinion of the Central Advisory Board. Thus,
    there was no valid explanation for non-consideration of the representation
    from 27.11.2019 till 14.01.2020. We must, therefore, hold that complete
    inaction on part of the Detaining Authority in considering the
    representation caused prejudice to the detenues and violated their
    constitutional rights.
  51. We are conscious that the view that we are taking, may lead to
    some incongruity and there could be clear dichotomy when the
    representations are made simultaneously to such specially empowered
    officer who had passed the order of detention and to the appropriate
    Government. If we go by the principle in paragraph 16 in K.M. Abdulla
    Kunhi6
    it would be proper for the appropriate Government to wait till the
    report was received from the Advisory Board, while at the same time the
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    62
    specially empowered officer who had acted as the Detaining Authority
    would be obliged to consider the representation with utmost expedition.
    At times a single representation is prepared with copies to the Detaining
    Authority namely the specially empowered officer and to the appropriate
    Government as well as to the Advisory Board. In such situations there
    will be incongruity as stated above, which may be required to be corrected
    at some stage. However, such difficulty or inconsistency cannot be the
    basis for holding that a specially empowered officer while acting as a
    Detaining Authority would also be governed by the same principles as laid
    down in paragraph 16 of K.M. Abdulla Kunhi6
    .
  52. Since there was complete inaction on part of the Detaining
    Authority in the present case, to whom a representation was addressed in
    dealing with the representation as stated above, we hold that the
    constitutional rights of the detenues were violated and the detenues are
    entitled to redressal on that count. We, therefore, allow this Writ Petition
    and hold the continued detention of the detenues in terms of the Detention
    Orders to be illegal, invalid and unconstitutional.
  53. This Writ Petition is therefore allowed. The Detention Orders are
    quashed and the detenues are directed to be set at liberty forthwith, unless
    Writ Petition (Criminal) No.362 of 2019
    Ankit Ashok Jalan vs. Union of India & Ors.
    63
    their custody is required in connection with any other proceedings or
    crime.
    ……………………….J.
    [Uday Umesh Lalit]
    ……………………….J.
    [Indu Malhotra]
    New Delhi;
    March 04, 2020.
    IN THE SUPREME COURT OF INDIA
    CRIMINAL ORIGINAL JURISDICTION
    WRIT PETITION (CRIMINAL) NO. 362 OF 2019
    ANKIT ASHOK JALAN …..APPELLANT(S)
    VERSUS
    UNION OF INDIA & ORS. …..RESPONDENT(S)
    J U D G M E N T
    HEMANT GUPTA, J.
  54. I have gone through the detailed judgment authored by Brother Justice
    Lalit, but am unable to persuade myself to agree with the views
    expressed by him. For the sake of brevity the facts are not repeated
    here.
  55. In my view, the decision in K. M. Abdulla Kunhi and B.L. Abdul
    Khader v. Union of India and Others
    1
    covers the issue raised, as
    once the matter has been sent to the Advisory Board, the
    representation received thereafter is required to be forwarded to it as
    well. However, the Detaining Authority retains its right to revoke this
    detention order dehors the opinion of the Central Advisory Board.
    1 (1991) 1 SCC 476
    1
  56. Section 3 of the Conservation of Foreign Exchange and Prevention of
    Smuggling Activities Act, 19742
    empowers the Central Government, the
    State Government or the specially empowered Officer of the rank not
    below the rank of the Joint Secretary of the Central Government or
    Secretary of the State Government, to make an order, directing a
    person to be detained. The Detaining Authority has jurisdiction to
    revoke the detention order in view of Section 21 of the General Clauses
    Act, 18973
    , whereas, an appropriate Government passes an order of
    revocation of detention or confirmation of the order of detention on
    receipt of the report of the Advisory Board. The consideration for the
    Detaining Authority for revocation, is to see whether the detention
    order is in conformity with the power under law whereas, the Advisory
    Board considers the representation to examine whether there is
    sufficient cause for detention. The consideration of the Advisory Board
    is an additional safeguard and not a substitute for the consideration of
    the representation by the appropriate Government.
  57. The first part of the consideration of representation, as to whether the
    order of detention is in conformity with power under the law, does not
    make a distinction as to whether the Detaining Authority is the Central
    or State Government or a specially empowered Officer in that behalf.
    The consideration for detention by the Detaining Authority is confined
    to examining whether the order of detention is in conformity with the
    2 for short “COFEPOSA Act”
    3 for short “1897 Act”
    2
    power under the law. On the other hand, the Advisory Board examines
    if there is sufficient cause for detention. Therefore, once the
    Government as a Detaining Authority is examining the representation
    of the detenu for revocation of the detention order, it is only required
    to examine whether such detention order is in conformity with power
    under law, whereas, after the recommendation of the Advisory Board,
    the Government would be examining whether there is sufficient cause
    for detention. The exercise of jurisdiction by the Government, whilst
    dealing with the representation as a detaining authority and whilst
    considering the Advisory Board’s recommendation, is in two separate
    and distinct spheres.
  58. The Constitution Bench in Jayanarayan Sukul v. State of West
    Bengal
    4 considered the detention order under the Preventive
    Detention Act, 1950. This Court in the aforesaid case, culled out four
    principles to be followed with regard to the representation of detenu.
    Such four principles have been recapitulated in the order passed by
    the Hon’ble Justice Lalit. The power of detention under the aforesaid
    Act was not vested under the State or Central Government but on the
    District Magistrate or Additional District Magistrate specially
    empowered by the State Government. The opinion of the Advisory
    Board was required to be considered by the appropriate Government
    who may either confirm the detention order or if in the opinion of the
    Advisory Board, no sufficient cause for detention is found, then revoke
    4 (1970) 1 SCC 219
    3
    the detention order. In this factual background, this Court held as
    under:
    “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 the 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.”
    (Emphasis supplied)
  59. The second part of the consideration of representation of the detenu
    by the appropriate authority i.e. the Detaining Authority is entirely
    independent and has no connection to the consideration by the
    Advisory Board. It has been held that there should not be any delay in
    4
    the matter of consideration, but at the same time it has been stated
    that there is no hard and fast rule that can be laid down as to the
    time taken by the appropriate authority for consideration, however
    the Government has to be vigilant with regard to the rights of the
    citizens. Such rights raise a corelative duty on the State.
  60. A two Judge Bench of this Court, in Vimalchand Jawantraj Jain v.
    Shri Pradhan and Others
    5
    , examined a case where a specially
    empowered officer of the State Government had passed a detention
    order. The representation to seek revocation of the detention was
    sent to such Officer as the Detaining Authority. The order confirming
    the detention of the detenu was passed after considering the report
    of the Advisory Board, by the detaining authority. The Advisory Board
    reported that there were sufficient causes for the detention of the
    detenu and after considering such report the order of detention was
    confirmed. In these circumstances, it was argued that the order of
    detention had been confirmed by the specially empowered Officer
    without considering the representation of the detenu. The Bench
    approved the earlier judgment of this Court in Khairul Haque v.
    The State of W.B.
    6
    , wherein it was held as under:
    “3……The fact that Article 22(5) enjoins upon the
    Detaining Authority to afford to the detenu the earliest
    opportunity to make a representation must implicitly
    mean that such representation, must, when made, be
    5 (1979) 4 SCC 401
    6 W.P. No. 246 of 1969 decided on 10-9-69
    5
    considered and disposed of as expeditiously as possible,
    otherwise, it is obvious that the obligation to furnish the
    earliest opportunity to make a representation loses both
    its purpose and meaning.”
  61. This Court in Vimalchand Jawantraj Jain after quoting from Khairul
    Haque’s case, held as under:
    “4. There are thus two distinct safeguards provided to a
    detenu; one is that his case must be referred to an
    Advisory Board for its opinion if it is sought to detain him
    for a longer period than three months and the other is he
    should be afforded the earliest opportunity of making a
    representation against the order of detention and such
    representation should be considered by the Detaining
    Authority as early as possible before any order is made
    confirming the detention. Neither safeguard is dependent
    on the other and both have to be observed by the
    Detaining Authority. It is no answer for the Detaining
    Authority to say that the representation of the detenu
    was sent by it to the Advisory Board and the Advisory
    Board has considered the representation and then made
    a report expressing itself in favour of detention. Even if
    the Advisory Board has glade a report stating that in its
    opinion there is sufficient cause for the detention, the
    State Government is not bound by such opinion and it
    may still on considering the representation of the detenu
    or otherwise, decline to confirm the order of detention
    and release the detenu. The Detaining Authority is,
    therefore, bound to consider the representation of the
    detenu on its own and keeping in view all the facts and
    circumstances relating to the case, come to its own
    decision whether to confirm the order of detention or to
    release the detenu.”
    (Emphasis supplied)
  62. In these circumstances, this Court held that the representation of the
    detenu was not considered by the Detaining Authority before the
    Advisory Board recommended confirmation of the order of the
    6
    detention, thus the Detaining Authority had failed to complete the
    constitutional obligation imposed upon him in terms of Clause (5) of
    Article 22.
  63. In Frances Coralie Mullin v. W.C. Khambra and Others
    7
    an order
    of detention was passed by the Administrator, Union Territory of Delhi.
    It was found that the representation submitted by the detenu was
    forwarded to the Advisory Board. Considering the case of
    Jayanarayan Sukul, the two Judge Bench of this Court held as under:
    “5…… We agree : (1) the Detaining Authority must
    provide the detenu a very early opportunity to make a
    representation, (2) the Detaining Authority must consider
    the representation as soon as possible, and this,
    preferably, must be before the representation is
    forwarded to the Advisory Board, (3) the representation
    must be forwarded to the Advisory Board before the
    Board makes its report, and (4) the consideration by the
    Detaining Authority of the representation must be
    entirely independent of the hearing by the Board or its
    report, expedition being essential at every stage. We,
    however, hasten to add that the time-imperative can
    never be absolute or obsessive. The Court’s observations
    are not to be so understood. There has to be lee-way,
    depending on the necessities (we refrain from using the
    word “circumstances”) of the case. One may well
    imagine, a case where a detenu does not make a
    representation before the Board makes its report making
    it impossible for the Detaining Authority either to
    consider it or to forward it to the Board in time or a case
    where a detenu makes a representation to the Detaining
    Authority so shortly before the Advisory Board takes up
    the reference that the Detaining Authority cannot
    consider the representation before then but may merely
    forward it to the Board without himself considering it.
    Several such situations may arise compelling departure
    from the time-imperative. But no allowance can be made
    7 (1980) 2 SCC 275
    7
    for lethargic indifference. No allowance can be made for
    needless procrastination. But, allowance must surely be
    made for necessary consultation where legal intricacies
    and factual ramifications are involved. The burden of
    explaining the necessity for the slightest departure from
    the time- imperative is on the Detaining Authority.”
    (Emphasis supplied)
  64. The judgments of this Court in Vimalchand Jawantraj Jain and
    Frances Coralie Mullin were considered by the Constitution Bench in
    K. M. Abdulla Kunhi wherein, the judgment in Vimalchand
    Jawantraj Jain, Khairul Haque and Om Prakash Bahl v. Union of
    India
    8 were overruled and that of Frances Coralie Mullin was
    approved. The Constitution Bench held as under:
    “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 Clauses (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,
    8 W.P. NO. 845 of 1979 decided on October 15, 1979
    8
    on the other hand, considers the representation and the
    case of the detenu to examine whether there is sufficient
    case 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
    cl. (4) of Article 22 read with Section 8(c) of the Act…..”
    (Emphasis supplied)
  65. Later, while considering the Frances Coralie Mullin case, the
    Constitution Bench held that the time-imperative for consideration of
    the representation of a detenu can never be absolute or obsessive, it
    depends upon the necessities under which the representation is made.
    If there is not enough time to dispose of the representation, the
    representation may also be forwarded to the Advisory Board along with
    the case of the detenu. This Court held as under:
    “16. We agree with the observations in Frances Coralie
    Mullin case. 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 the situations there is no question
    of consideration of the representation before the receipt
    9
    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 person 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.”
    (Emphasis supplied)
  66. Later in the same judgment, it was held that there is no constitutional
    mandate to consider the representation before confirming the order of
    the detention. As long as, the Government i.e. the Detaining Authority
    considers the representation without delay and without an unbiased
    mind, there is no basis for concluding that there has been an absence
    of independent consideration, before the confirmation of detention.
    The Court held that there is no justification for imposing the restriction
    on the power of the Detaining Authority. It was held as under:
    10
    “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 conformity with the
    power under the statute. This has been explained in
    Haradhan Saha case, 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.”
    (Emphasis supplied)
  67. The Constitution Bench of this Court in K.M. Abdulla Kunhi further
    examined the situation that if the detenu makes a representation after
    his detention is confirmed according to the procedure laid down under
    Section 8 of the COFEPOSA Act, the Government still has to consider
    such representation and assess whether the detention is not within the
    power conferred under the law. The Court held as under:
    “20. The words ‘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
    11
    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.”
    (Emphasis supplied)
  68. The aforesaid judgment arises out of the fact that the detention order
    was passed by the Government, however, it will not make any
    difference if the detention order had been passed by a specially
    empowered Officer. The consideration for revocation of a detention
    order is only whether such detention order conforms to the law. Such
    consideration is applicable to all detaining authorities, be it the Central
    Government or the State Government or any specially empowered
    Officer of the two. No distinction can be drawn between a specially
    empowered Officer or the State and Central Governments as the
    consideration herein for revocation of a detention order is restricted to
    whether or not the detention order conforms to the law.
  69. Subsequently, the matter was again placed before the Constitution
    Bench in Kamleshkumar Ishwardas Patel v. Union of India and
    Others
    9 on account of the divergent views in the State of
    Maharashtra & Anr. v. Sushila Mafatlal Shah and others
    10 and
    9 (1995) 4 SCC 51
    10 (1988) 4 SCC 490
    12
    Amir Shad Khan v. L. Hmingliana and Others
    11
    . It was held that
    Clause (5) of Article 22 imposes a dual obligation on the authority
    making the order of preventive detention. Firstly, to communicate to
    the detenu as soon as may be, the grounds on which the order of
    detention has been made; and secondly, to afford the detenu the
    earliest opportunity of making a representation against the order of
    detention. It was held that in terms of Section 21 of the 1897 Act, the
    authority which has ordered the detention has the power to revoke the
    same. Further, the detenu has the liberty to submit his representation
    to the authority which is competent to revoke the detention. This Court
    held as under:
    “14. 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 within 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.”
  70. The Constitution Bench held that when a detention order has been
    passed by an Officer specially empowered for that purpose, the detenu
    11 (1991) 4 SCC 39
    13
    has a right to make a representation against the order of detention to
    the said Officer. The failure of the Detaining Authority in considering
    such representation results in the denial of the right conferred on the
    detenu to make a representation against the order of detention. This
    right of the detenu is in addition to his right to make a representation
    to the State and the Central Government.
  71. In Criminal Appeal Nos. 764-765 of 1994, the Constitution Bench of this
    Court in Kamleshkumar Ishwardas Patel considered three questions
    which were examined by the Full Bench of the Bombay High Court. The
    first question was whether a specially empowered officer had an
    independent power to revoke the order of detention. The second
    question is not relevant for consideration in the present case. The third
    question examined was whether the failure to take an independent
    decision on the revocation of a detention order by the specially
    empowered officer and merely forwarding the same with a
    recommendation to reject, results in non-compliance with the
    constitutional safeguard under Article 22(5) of the Constitution. The
    order of the High Court on first question was confirmed and that on the
    third question was set aside.
  72. An argument was raised in respect of the third question that failure on
    the part of the Detaining Authority to consider the representation of
    the detenu results in a denial of the right of detenu to make a
    representation recognized under Clause (5) of Article 22, which renders
    14
    the detention illegal. In the aforesaid case, it was found that the
    representation of the detenu was not considered by the Officer making
    the order of detention and the High Court erred in holding that the
    failure on part of the Detaining Authority to consider and decide the
    representation is not vital to the order of detention. Thus, the
    aforesaid judgment is to the effect that the Detaining Authority is dutybound to consider the representation of the detenu which is a
    constitutional mandate under Clause (5) of Article 22 of the
    Constitution. Such representation has to be decided independently to
    the recommendation of the Advisory Board and can be accepted
    dehors the recommendation of the Advisory Board. Thus, the right of
    detenu is to seek consideration of his representation by the Detaining
    Authority, including the specially empowered Officer or by State or
    Central Government. It is constitutionally mandated by Clause (5) of
    Article 22. Further, as mentioned earlier, the Detaining Authority which
    includes the State Government or the Central Government, examines
    whether the detention order is in conformity with law whereas, the
    appropriate government while considering the recommendation of the
    Advisory Board examines whether there was sufficient cause for the
    detention of the detenu. The appropriate government at that stage
    examines the report of the Advisory Board in respect of the sufficiency
    of material with regard to detention. The consideration by the
    Detaining Authority is separate and distinct to the consideration of the
    15
    revocation of the detention order and the consideration by the
    appropriate Government at the time of assessing the recommendation
    of the Advisory Board. Thus, it is immaterial if the detention order was
    passed by a specially empowered Officer or the State Government or
    the Central Government as all such authorities have similar jurisdiction
    to revoke the detention order. Clause (5) of Article 22 protects the right
    of the detenu by giving him the right to submit representation, which is
    required to be considered by the Detaining Authority, provided it is not
    delayed without any reason. On the other hand, the detention of the
    detenu beyond three months can be only on the basis of the report of
    the Advisory Board in respect of sufficiency of material to detain the
    detenu beyond the period of three months. Such right is conferred on
    the detenu by clause (4) of Article 22 of the Constitution.
  73. The judgment in K. M. Abdulla Kunhi had been examined by another
    Division Bench judgment in Golam Biswas v. Union of India and
    Another
    12
    , wherein the specially empowered Officer passed two orders
    of detention. A representation was submitted seeking revocation of the
    detention order. The consideration of detention of the detenu was
    referred to the Advisory Board on 8.7.2014. The order of detention was
    confirmed by the Central Government on 5.9.2014 and the
    representation was rejected by the Central Government on 21.7.2014.
    Thus, referring to K. M. Abdulla Kunhi and reiterating that there is
    no time limit to dispose of the representation, this Court held as under:
    12 (2015) 16 SCC 177
    16
    “14. As the quoted text would reveal, in essence, it was
    reiterated that if a representation is received by an
    appropriate authority and there is no time to dispose of
    the same having regard to the time-frame fixed by the
    Act for reference of the matter to the Advisory Board, the
    representation must also be forwarded to the Advisory
    Board along with the records of the detenu. This assumes
    significance, in our comprehension, in view of the binding
    nature of the opinion of the Advisory Board, in case, on a
    consideration of the materials on record it decides to
    hold against the detention. In case the Advisory Board
    holds that the detention order is invalid, it is not open for
    the appropriate Government to continue therewith and it
    has to essentially revoke the same though the converse
    may not be the same. In other words, if the Advisory
    Board upholds the order of detention, it would still be
    open to the Central Government, depending on the
    merits of each case, to release the detenu. The fact that
    the opinion of the Advisory Board against continuance of
    the order of detention is final vis-à-vis the appropriate
    Government, in our opinion, is the motivating imperative
    for requiring the appropriate Government to forward the
    pending representation to the Advisory Board so as to
    enable it to traverse the entire panorama of grounds
    taken against the detention order for an effective, timely
    and meaningful consideration of the case of the detenu.
    This requirement as has been essentially recognised and
    mandated by two decisions of the Constitution Bench of
    this Court, does not, in any way, undermine the
    appropriate Government’s authority to consider and
    dispose of such representation of any detenu under the
    preventive detention law. The right of the Central
    Government or for that matter any appropriate
    Government to consider and dispose of a representation
    of a detenu, preventively detained, has to be
    harmoniously construed with the obligation cast on it to
    forward a pending representation to the Advisory Board
    as has been consistently held in Jayanarayan Sukul
    [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 :
    1970 SCC (Cri) 92] and K.M. Abdulla Kunhi [K.M. Abdulla
    Kunhi v. Union of India, (1991) 1 SCC 476 : 1991 SCC
    (Cri) 613]”
    17
  74. This Court held that the representation of the detenu was not
    forwarded to the Advisory Board and instead rejected during the
    pendency of the proceedings before the Advisory Board. Thus, the
    Court was constrained to hold that the detention of the detenu was
    constitutionally invalid. It was held as under:
    “15. As admittedly, the detenu’s representation dated 8-
    7-2014, pending with the Central Government, the
    appropriate Government in the case, was not forwarded
    to the Advisory Board and was instead rejected during
    the pendency of the proceedings before the Advisory
    Board, we are constrained to hold that the detention of
    the detenu is constitutionally invalid. The rejection of the
    representation by the Central Government later on 21-7-
    2014 during the pendency of the proceedings before the
    Advisory Board is of no consequence to sustain the
    detention. Consequently, the order of confirmation as
    well is rendered non est by this vitiation. In view of the
    determination made on the above aspect of the debate,
    we do not consider it necessary to dilate on the other
    pleas raised on behalf of the detenu. In the result, the
    appeal succeeds. The impugned judgment and order is
    set aside. The orders of detention as well as the order of
    confirmation are hereby annulled. The detenu is directed
    to be set at liberty, if not wanted in any other case.”
  75. In view of the aforesaid judgment, I am of the opinion that once the
    detention order has been made by any of the authorities competent to
    detain in terms of Section 3 (1) of the COFEPOSA Act, the
    representation to seek revocation of the detention order can be
    considered and decided by the Detaining Authority dehors the decision
    of the Advisory Board and the acceptance of recommendation by the
    appropriate Government. The consideration for revocation of a
    18
    detention order is limited to examining whether the order conforms
    with the provisions of law whereas the recommendation of the Advisory
    Board is on the sufficiency of material for detention, which alone is
    either confirmed or not accepted by the appropriate Government.
  76. It would be a matter of prudence and propriety for the Detaining
    Authority to defer the decision on the representation to revoke the
    detention order, when the matter is being considered by the Advisory
    Board, consisting of three Hon’ble sitting Judges of the High Court. The
    consideration of the representation by the Detaining Authority in these
    circumstances cannot be said to be delayed as the representation was
    received after the matter was referred to the Advisory Board.
  77. Thus, I do not find any merit in the present writ petition. The same is
    dismissed.
    ……………………………..J
    (HEMANT GUPTA)
    NEW DELHI;
    MARCH 4, 2020.
    19