Case Note & Summary
The appeals arose from orders of preventive detention passed by officers specially empowered by the Central Government under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) and the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 (PIT NDPS Act). The common question before the Supreme Court was whether such an officer is required to consider the representation submitted by the detenu. There was a divergence of judicial opinion: Amir Shad Khan v. L. Hmingliana, a three-judge bench decision, held that the officer can revoke the detention order, while State of Maharashtra v. Smt Sushila Mafatlal Shah, a two-judge bench decision, held that the representation need be considered only by the Central or State Government. The Constitution Bench examined Article 22 of the Constitution, particularly clause (5), which provides that when any person is detained under a law providing for preventive detention, the authority making the order shall as soon as may be communicate the grounds and afford the earliest opportunity of making a representation. The Court observed that Article 22(5) imposes a dual obligation on the authority making the order: to communicate the grounds and to afford the earliest opportunity of making a representation. It further observed that Article 22(5) does not indicate the authority to whom the representation is to be made, but since the object is to obtain relief at the earliest opportunity, the representation has to be made to the authority which can grant relief, i.e., the authority which can revoke the order of detention. The authority that has made the order can also revoke it, a right inherent in the power to make the order and recognised by Section 21 of the General Clauses Act, 1897. The learned Additional Solicitor General argued that the representation under Article 22(5) has to be made to the Advisory Board only, relying on the use of the word 'a' in singular. The Court rejected this restricted construction, stating that it would render the right to representation illusory, especially where detention is for less than three months and no reference to Advisory Board is required. The Court referred to Abdul Karim v. State of West Bengal, Pankaj Kumar Chakrabarty v. State of West Bengal, and Jayanarayan Sukul v. State of West Bengal, which held that the right of representation is a valuable constitutional right and the representation must be considered by the detaining authority. The provided excerpt of the judgment ends before the final decision was announced. The Court's reasoning in the excerpt indicates that the representation must be addressed to an authority that can grant relief, and the authority making the order has the power to revoke under the General Clauses Act. The final holding on whether the officer specially empowered under COFEPOSA and PIT NDPS is required to consider the representation is not included in the provided text.
Headnote
A) Constitutional Law - Preventive Detention - Article 22(5) of Constitution of India - Detenu's Right to Make Representation - Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: to communicate grounds as soon as may be and to afford the earliest opportunity of making a representation; the representation must be made to an authority which can grant relief, including the authority making the order which can revoke it under Section 21 of General Clauses Act, 1897 - Held that the right to representation is a valuable constitutional right and not a mere formality; restricting it only to Advisory Board would render it nugatory for detentions less than three months or cause delay (Paras Not mentioned). B) Statutory Interpretation - Preventive Detention Laws - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 - Authority to Consider Representation - The question whether an officer specially empowered to pass a detention order under these Acts is required to consider representation was considered in light of Article 22(5); conflicting decisions in Amir Shad Khan and Sushila Mafatlal Shah were noted; the provided excerpt of the judgment ends before final determination, but the Court's reasoning indicated that representation must go to authority that can grant relief (Paras Not mentioned).
Issue of Consideration
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?
Final Decision
The provided excerpt of the judgment ends before the final decision was announced. The Court addressed the common question of whether an officer specially empowered to pass a preventive detention order under COFEPOSA and PIT NDPS is required to consider the detenu's representation. The Court rejected the argument that the representation need only be made to the Advisory Board, holding that Article 22(5) imposes a dual obligation on the authority making the order and that the representation must be made to an authority that can grant relief, including the authority making the order. The final holding on the specific question regarding officers specially empowered under the Acts is not included in the provided text.
Law Points
- Article 22(4) and Article 22(5) safeguards
- dual obligation of authority making order
- representation to authority which can grant relief
- right inherent in power to make order
- Section 21 General Clauses Act
- advisory board not only authority
- preventive detention
- detenu's representation
