CASE NO.: Appeal (crl.) 1103 2000 PETITIONER: R. KESHAVA Vs. RESPONDENT: M.B. PRAKASH & ORS. DATE OF JUDGMENT: 12/12/2000 BENCH: U C Banerjee, R P Sethi, K.T.Thomas JUDGMENT:
L…..I………T…….T…….T…….T…….T…….T..J
SETHI, J.
Leave granted. Alleging violation of Article 22(5) of
the Constitution of India and relying upon a Judgment of
this Court in Smt.Gracy v. State of Kerala & Anr. [1991
(2) SCC 1], the appellant has challenged the preventive
detention of A. Maheshraj, a resident of Bangalore detained
under Section 3 of the Conservation of Foreign Exchange and
Prevention of Smuggling Act (hereinafter referred to as “the
Act”). It is submitted that as the representation of the
detenue to the Advisory Board has not been considered by the
appropriate government, his continuous detention was
unconstitutional and liable to be quashed. It is contended
that notwithstanding the non filing of the representation to
the appropriate government, a duty was cast upon the
Advisory Board to transmit the representation, received by
it, to the government who had a corresponding obligation to
consider it before confirming the order of detention.
Placing its reliance upon a subsequent judgement of this
Court in Jasbir Singh v. Lt.Governor, Delhi & Anr.[1999 (4)
SCC 228] and distinguishing the facts of the present case,
the High Court dismissed the habeas corpus petition filed
before it vide the judgment impugned in this appeal. To
appreciate the rival contentions of the learned counsel
appearing for the parties, it is necessary to refer to some
of the admitted facts in this case, which are: On receipt
of an intelligence report that a passenger wearing dark grey
coloured suit travelling from Singapore was carrying with
him electronic goods which he shall attempt to get cleared
without payment of duty, the officer of the Customs
Headquarters, Preventive, Bangalore kept a watch on the
passengers of Flight No.IC 958 which landed at 0930 hrs. on
3.12.1999, and noticed the detenu resembling the
descriptions already received. He checked his baggages and
completed formalities with Customs authorities. His luggage
comprised of two suit-cases, one small hand suit-case, one
green coloured zipper handbag and one plastic cover. He
had, in his disembarkation Card, declared the goods with him
worth Rs.35,000/-. Having a reasonable belief that the
detenue had not made the correct declaration, the officers
of the Customs made inquiries from him. Being suspicious,
the officers opened the four baggages and checked baggage
under Baggage Tag Nos.SQ 144161, SQ144162, SQ144141 and
SQ144164 and on examination found to contain electronic
goods, namely, Mobile Phones, Mobile Phones in CRD
condition, computer parts in commercial quantity, having a
total value of Rs.18,38,300/-. The detenu was informed that
as he has attempted to smuggle goods and tried to evade
custom duty, the baggage was liable to be confiscated under
the provisions of Customs Act, 1962. All the goods found in
the baggage of the detenu, as detailed in the Annexures to
Mahzar dated 3.12.1999 were seized, packed into suit case,
cartons and sealed with seal and signature of the detenue as
well as of the Mahzar witnesses. After investigation the
detaining authority, in exercise of the powers conferred
under Sections 3(1)(i) and 3(1)(iii) of the Act directed the
said A.Maheshraj to be detained and kept in custody in
Central Prison, Bangalore vide order dated 9.3.2000. The
grounds of detention were served upon the detenu in the
jail. The detenu was also informed that he can file a
representation against the detention order to the Government
of Karnataka or the Government of India. The detenu made a
representation to the Advisory Board and admittedly did not
make any representation either to the Government of India or
the State Government or any other authority. He did not
even request to the Advisory Board or the jail authorities
to forward his representation to any of the governments or
authority. In the writ petition filed on his behalf, the
appellant submitted: “The petitioner submits that the
detenue has made a representation to the Advisory Board
and/or any authority required to consider the same for his
release from detention at the earliest. The respondent No.1
be called upon to explain how the same has been considered.”
The High Court found that the petition filed before it
was lacking in particulars and directed the appellant to
give full details of the representation and its
consideration by the Board or by the Government and, if
possible to place on record the copy of the representation
submitted by the detenue. The appellant filed an
application seeking permission to place on record the
additional facts. The prayer was allowed. The appellant
stated that the detenue had submitted to the Senior
Superintendent of Central Prison, Bangalore on 22nd March,
2000 six copies of representation addressed to the Advisory
Board. Upon inquiry he was informed that the representation
addressed to the Advisory Board was forwarded on 24th March,
2000. The detenue also appeared before the Advisory Board
on 10.4.2000. After receipt of the report of the Advisory
Board the Government of Karnataka vide order dated 18.4.2000
confirmed the order of detention. As the fact of
representation filed by the detenu to the Chairman of the
Advisory Board was not within the knowledge of the
respondents 1 and 2, they did not consider the aforesaid
representation before confirming the order of detention. It
is true that the courts of law do not see the detention of a
person without trial with favour but it is equally true that
our constitutional scheme itself contemplates the preventive
detention, however, subject to rigours of law relating to
such detention and the guarantees enshrined in part III of
the Constitution. One of the rights conferred upon the
detenu, as incorporated in Article 22(5) of the
Constitution, is to make representation and obligation upon
the appropriate government to consider such representation
before confirming the detention. It is further obligation
of the detaining authority to communicate to the detenue the
grounds of detention on which the order has been made and
apprise him of his right to make a representation against
the order. Order of preventive detention is liable to be
quahsed if the constitutional obligations in terms of clause
(5) of Article 22 of the Constitution are not complied with.
There is no gainsaying that preventive detention is a
serious invasion of personal liberty and such meagre
safeguards, as the Constitution has provided against the
improper exercise of the power, must be zealously watched
and enforced by the courts. However, where despite
intimation, the detenu omits to exercise his constitutional
right, he cannot, thereafer, allege its violation on the
ground that the authorities should have made an inquiry to
ascertain as to whether he had made any representation to
any person, authority or the Board. The thrust of the
argument of the appellant revolves around the observations
made by this Court in Smt.Gracy’s case (supra) to the
effect: “It is undisputed that if there be only one
representation by the detenu addressed to the detaining
authority, the obligation arises under Article 22(5) of its
consideration by the detaining authority independent of the
opinion of the Advisory Board in addition to its
consideration by the Advisory Board while giving its
opinion. In other words, one representation of the detenu
addressed only to the Central Government and not also to the
Advisory Board does not dispense with the requirement of its
consideration also by the Advisory Board. The question,
therefore, is: whether one of the requirements of
consideration by government is dispensed with when the
detenu’s representation instead of being addressed to the
government or also to the government is addressed only to
the Advisory Board and submitted to the Advisory Board
instead of the government? On principle, we find it
difficult to uphold the learned Solicitor General’s
contention which would reduce the duty of the detaining
authority frome one of substance to mere form. The nature
of duty imposed on the detaining authority under Article
22(5) in the context of the extraordinary power of
preventive detention is sufficient to indicate that strict
compliance is necessary to justify interference with
personal liberty. It is more so since the liberty involved
is of a person in detention and not of free agent. Article
22(5) casts an important duty on the detaining authority to
communicate the grounds of detention to the detenu at the
earliest to afford him the earliest opportunity of making a
representation against the detention order which implies the
duty to consider and decide the representation when made, as
soon as possible. Article 22(5) speaks of the detenu’s
‘representation against the order’, and imposes the
obligation on the detaining authority. Thus, any
representation of the detenu against the order of the
detention has to be considered and decided by the detaining
authority, the requirement of its separate consideration by
the Advisory Board being an additional requirement implied
by reading together clauses (4) and (5) of Article 22 even
though express mention in Article 22(5) is only of the
detaining authority. Moreover, the order of detention is by
the detaining authority and so also the order of its
revocation if the representation is accepted, the Advisory
Board’s role being merely advisory in nature without the
power to make any order itself. It is not as if there are
two separate and distinct provisions for representation to
two different authorities viz. the detaining authority and
the Advisory Board, both having independent power to act on
its own.
It being settled that the aforesaid dual obligation of
consideration of the detenu’s representation by the Advisory
Board and independently by the detaining authority flows
from Article 22(5) when only one representation is made
addressed to the detaining authority, there is no reason to
hold that the detaining authority is relieved of this
obligation merely because the representation is addressed to
the Advisory Board instead of the detaining authority and
submitted to the Advisory Board during pendency of the
refernece before it. It is difficult to spell out such an
inference from the contents of Article 22(5) in support of
the contention of the learned Solicitor General. The
contents of Article 22(5) as well as the nature of duty
imposed thereby on the detaining authority support the view
that so long as there is a representation made by the detenu
against the order of detention, the aforesaid dual
obligation under Article 22(5) arises irrespective of the
fact whether the representation is addressed to the
detaining authority or to the Advisory Board or to both.
The mode of address is only a matter of form which cannot
whittle down the requirement of the constitutional mandate
in Article 22(5) enacted as one of the safeguards provided
to the detenu in case of preventive detention.”
On facts we find that in that case the detenu had made
a representation to the Advisory Board who considered it
before sending its opinion to the Central Government along
with the entire record including the representation
submitted by the detenu. The Central Government confirmed
the order of detention without independent consideration of
the detenu’s representation sent to it by the Advisory
Board. On the above facts the court formulated the point of
law for its consideration as under: “Whether there has been
any infraction of the guarantee under Article 22(5) of the
Constitution as a result of Central Government’s omission to
consider the detenu’s representation independent of its
consideration by the Advisory Board. The Central
Government’s stand is that the detenu’s representation being
addressed to the Advisory Board to which it was submitted
during pendency of the reference before the Advisory Board,
there was no obligation on the Central Government also to
consider the same independently since the representation was
not addressed to the Central Government.”
and made observations as noted hereinabove. In the
instant case the respondent No.1 in his affidavit has
categorically stated: “I respectfully submit that the
Advisory Board has not forwarded the representation filed by
the detenu to the State Government and consequently I did
not consider the said representation filed by the detenu
before the Advisory Board.
I respectfully submit that the Advisory Board has
forwarded its report along with the covering letter
dt.12.4.2000, to the State Government. However, the
respondents 1 and 2 did not receive any representation given
to the Advisory Board in as much as the Advisory Board has
not sent the copy of the representation of the detenue, to
the State Government. Therefore, the State Government could
not consider the said representation. As the
representations were addressed to the Advisory Board alone,
there is no obligation on the part of the Superintendent of
Central Prison to forward the copy of the representation to
the State Government or the Central Government.
Consequently, the third respondent has not forwarded the
representation to the respondents 1 and 2. I submit that
the Advisory Board will be having the records which are sent
by the State Government such as the order of detention,
grounds of detention and the documents relied upon. Except
these documents, the State Government will not furnish any
other document to the Advisory Board. However, the
documents which were produced by the detene in the course of
hearing before the Advisory Board, do not form part of the
records sent by the State Government. In this case, the
only extra document which was produced by the detenue was
the representation. The copy of the representation was not
sent by the Advisory Board to the State Government while
sending its report to the State Government.
In the absence of the representation of the detenu,
the order of detention is stated to have been confirmed on
the basis of other material available with the Government.
Mr.B. Kumar, Senior Advocate who appeared for the appellant
submitted that a duty was cast upon the Advisory Board to
submit all records including the representation of the
Advisory Board to the appropriate government. We are not
impressed with such a general submission and the proposition
of law. Section 8 of the Act provides that for the purposes
of sub-clause (a) of clause (4), and sub-clause (c) of
clause (7) of Article 22 of the Constitution, the Central
Government and each State Government shall, whenever
necessary, constitute one or more Advisory Boards and shall
within five weeks of the detention of a person make a
reference in respect thereof to the Advisory Board
constituted to enable such Board to make a report to the
effect. Clause (c) of Section 8 of the Act provides: “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 from the appropriate
Government or from any person called for the purpose through
the appropriate Government or from the person concerned, and
if in any particular case, it considers it essential so to
do or if the person concerned desires to be heard in person,
after hearing him in person, prepare its report specifying
in a separate paragraph thereof its opinion as to whether or
not there is sufficient cause for the detention of the
person concerned and submit the same within eleven weeks
from the date of detention of the person concerned.” Clause
(f) of the said Section reads:
“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.”
A perusal of the aforesaid Section and other relevant
provisions of the Act makes it abundantly clear that no duty
is cast upon the Advisory Board to furnish the whole of the
record and the representation addressed to it only to the
Government along with its report prepared under Section 8(c)
of the Act. It may be appropriate for the Board to transmit
the whole record along with the report, if deemed expedient
but omission to send such record or report would not render
the detention illegal or cast an obligation upon the
appropriate government to make inquiries for finding out as
to whether the detenu has made any representation, to any
person or authority, against his detention or not. We are
of the opinion that in Gracy’s case (supra) it was not held
that any such duty was cast upon the Board but even if the
observations are stretched to that extent, we feel that
those observations were uncalled for in view of the scheme
of the Act and the mandate of the Constitution. In Nand lal
Bajaj v. State of Punjab & Anr. [1981 (4) SCC 327] this
Court made the following observations: “The matter can be
viewed from another angle. We were informed that the
Advisory Board did not forward the record of its proceedings
to the State Government. If that be so, then the procedure
adopted was not in consonance with the procedure established
by law. The State Government while confirming the detention
order under Section 12 of the Act has not only to peruse the
report of the Advisory Board, but also to apply its mind to
the material on record. If the record itself was not before
the State Government, it follows that the order passed by
the State Government under Section 12 of the Act was without
due application of mind. This is a serious infirmity in the
case which makes the continued detention of the detenu
illegal.”
In view of the constitutional and legal position, as
noted by us, we find it difficult to agree with the
reasoning in the aforesaid observations. In the absence of
constitutional or statutory provisions, we are unable to
observe that the Advisory Board was under an obligation to
forward the whole of the record of its proceedings to the
State Government. The State Government while confirming the
order of detention has to peruse the report of the Advisory
Board along with other records, if any, in its possession,
and cannot determine the legality of the procedure adopted
by the Advisory Board. Under Clause (f) of Section 8 of the
Act, the Government is not bound by the report of the
Advisory Board and in every case where the Advisory Board
reports that there is, in its opinion, sufficient cause for
the detention of a person, may confirm the detention order.
The word “may” used in this clause does not cast duty upon
the appropriate government to necessarily accept the opinion
for further detention. However, where the Board reports
that there is, in its opinion, no sufficient cause for the
detention of the person concerned, the appropriate
government has no option but to revoke the detention order
and cause the person to be released forthwith. When the
report of the Advisory Board opining that there exists
sufficient cause for detention of a person is not binding
upon the appropriate government, there is no infirmity in
its order passed without consideration of the proceedings of
the Advisory Board. The obligation of the appropriate
government is restricted to the extent of examining the
report conveying the opinion of the Board regarding further
detention of the detenu. Similarly the observations made by
this Court in Harbans Lal v. M.L. Wadhawan & Ors. [1987
(1) SCC 151 to the effect that the non submission of the
entire record being the requirement of law, cannot be held
to be good law on the point. In Jasbir Singh’s case (supra)
similar argument based upon Gracy’s case was considered and
disposed of by observing: “But the question for
consideration is when the representation has not been
addressed to the Central Government but is addressed to the
Advisory Board can it be said that the Central Government
also owes an obligation to consider the same and decide one
way or the other. The detaining authority was the
Lt.Governor of Delhi. In such a case if the representation
had not been addressed to the Central Government even though
indicated in the grounds of detention then it cannot be said
that any representation made by the detenu to the Advisory
Board ought to have been considered by the Central
Government.”
The reliance of the learned counsel of the appellant
on the judgment of this Court in Dr.Rahamatullah v. State
of Bihar & Anr. [1981 (4) SCC 559] is misplaced inasmuch as
in that case the point of law as canvassed before us, was
not in issue. The detention in that case was quashed on the
ground of non consideration of the report by the appropriate
government and delay in the compliance of the provisions of
the Act. We are satisfied that the detenu in this case was
apprised of his right to make representation to the
appropriate government/authorities against his order of
detention as mandated in Article 22(5) of the Constitution.
Despite knowledge, the detenu did not avail of the
opportunity. Instead of making a representation to the
appropriate government or the confirming authority, the
detenu chose to address a representation to the Advisory
Board alone even without a request to send its copy to the
concerned authorities under the Act. In the absence of
representation or the knowledge of the representation having
been made by the detenu, the appropriate government was
justified in confirming the order of detention on perusal of
record and documents excluding the representation made by
the detenu to the Advisory Board. For this alleged failure
of the appropriate government, the order of detention of the
appropriate government is neither rendered unconstitutional
nor illegal. Taking a cue from the objections filed by
Sh.M.B. Prakash, Principal Secretary to Government, Home
and Transport Department of the State of Karnataka, it was
argued on behalf of the detenu that as the Government had
allegedly not considered the whole of the record pertaining
to the detention, the order of confirmation of detention was
illegal and unconstitutional. The submission is based upon
wrong assumption both on facts as well as on law. Reliance
was placed on the words “since the Advisory Board has not
sent the records to the State Government” appearing in the
affidavit, to contend that the State Government had passed
the order of confirmation without consideration of the
record. The appellant did not notice the earlier part of
that sentence in the context of which those words were used.
This part reads: “Thus, as the respondents 1 and 2 did not
have knowledge about the representations filed by the
detenue, the said representations were not considered by the
respondents 1 and 2.”
The emphasis of submission in the objections was with
respect to the non submission of the record pertaining to
the representation filed by the detenu only upon which the
appellant had built his case. The failure of the respondent
to comply with the court directions dated 15.11.2000 was
also made the basis of such a contention. In our order
dated 29th November, 2000, we felt that the Principal
Secretary to the Government of Karnataka had not complied
with our directions, directing him to intimate us as to
“what all records were with the Government/what all records
were considered by the Government before passing the order
of confirmation”. Prima facie we felt that our order had
been flouted by said Sh.M.B. Prakash which necessitated the
issuance of notice to him to show cause why adverse remarks
shall not be made against him for flouting the court
directions. In response to our notice an affidavit has been
filed in this Court on 5th December, 2000 wherein it is
specifically stated: “In response to the notice issued to
me to show cause why adverse remarks shall not be made
against me, I respectfully submit that while passing the
order of confirmation, the following documents were with
Government:
(a) The entire file concerning the Detention Order in
No.HTD 2 SCF 2000 containing the following among other
documents:
i) Detention order dated 9.3.2000.
ii) Grounds of detention dated 9.3.2000, along with
entire documents relied upon in the Grounds of detention.
iii)Reference dated 3.4.2000 referring the case to the
Advisory Board.
iv) Report and opinion dated 12.4.2000 of the Advisory
Board.
v) While confirming the order of the detention,
Government considered the report and opinion dated 12.4.2000
of the Advisory Board.”
In the presence of the aforesaid affidavit we cannot
give any credence to the ipse dixit of the appellant and his
effort to aim arrows in the darkness to find out some ground
even though he is not sure about any one of such ground to
challenge the order of detention. We are satisfied that the
order of confirmation was passed by the appropriate
government after perusal of the whole record available with
it and such power was not mechanically exercised as alleged.
The order of detention and its confirmation appears to have
been based upon the subjective satisfaction arrived at by
objective considerations with reference to all the record
pertaining to the matters relating to the circumstances
warranting the detention of the detenu.
We do not find any error of law or jurisdiction in the
order of the High Court, the detaining authority and the
confirming authority. The present appeal being misconceived
is, therefore, dismissed.
Shri M.B. Prakash, Principal Secretary to the
Government of Karnataka has realised his mistake of not
referring to the documents upon the basis of which the
confirmation order was passed and has stated: “I
respectfully submit that inadvertently I did not refer to
the file and documents now mentioned above in my earlier
affidavit. This omission is neither deliberate nor
intentional. I deeply regret for the same. I sincerely
tender my unconditional apology.”
In view of above, no further action is required to be
taken in the matter. We close the matter, so far as,
Sh.M.B. Prakash is concerned, reminding him to be careful
in compliance of the orders of this Court in future.