{"id":133998,"date":"2004-01-23T00:00:00","date_gmt":"2004-01-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-anr-vs-sneha-khemka-anr-on-23-january-2004"},"modified":"2017-01-13T01:05:24","modified_gmt":"2017-01-12T19:35:24","slug":"union-of-india-anr-vs-sneha-khemka-anr-on-23-january-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-anr-vs-sneha-khemka-anr-on-23-january-2004","title":{"rendered":"Union Of India & Anr vs Sneha Khemka & Anr on 23 January, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India & Anr vs Sneha Khemka & Anr on 23 January, 2004<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: Doraiswamy Raju, S.B. Sinha.<\/div>\n
           CASE NO.:\nAppeal (crl.)  954 of 1997\n\nPETITIONER:\nUnion of India & Anr.\t\t\t\t\t\n\nRESPONDENT:\nSneha Khemka & Anr.\t\t\t\t\t\n\nDATE OF JUDGMENT: 23\/01\/2004\n\nBENCH:\nDoraiswamy Raju & S.B. Sinha.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
S.B. SINHA, J :\n<\/p>\n
\tWhether representation made by the detenu or on his
\nbehalf is required to be considered by all the authorities
\nis the sole question involved in this appeal which arises
\nout of a judgment and order dated 19.12.1995 passed by a
\nDivision Bench of the Calcutta High Court in Criminal
\nMiscellaneous Case No.5039 of 1995.\n<\/p>\n
\tThe husband of the first respondent herein was arrested
\non 17.6.1995 on the charge of having grossly undervalued
\nimported Floppy Disk Drives whereby customs duty to the
\nextent of Rs.21.53 lakhs was evaded.  During investigation
\nof the said case, the detenu made a confessional statement
\nbefore the Customs Officer but on being produced before the
\nChief Metropolitan Magistrate, Calcutta, he retracted
\ntherefrom.  He was granted bail in the aforementioned case.
\nThe first respondent herein thereafter filed a writ
\napplication before the Calcutta High Court for quashing the
\nstatement allegedly obtained from her husband by the Customs
\nOfficer.\n<\/p>\n
He was thereafter detained under Section 3(1) of the
\nConservation of Foreign Exchange and Prevention of Smuggling
\nActivities Act, (hereinafter referred to as ‘the COFEPOSA’,
\nfor the sake of brevity).  The said order of detention was
\nserved on him on 28.8.1995.\n<\/p>\n
The detenu, made three representations  firstly, on
\n4.9.1995 before the Joint Secretary, COFEPOSA which was
\nrejected on 21.9.1995; the second on 11\/12.9.1995 addressed
\nto Shri K.L. Verma, Joint Secretary to the Government of
\nIndia which upon obtaining the comments of the Sponsoring
\nAuthority was rejected on 9.10.1995; and the third on
\n14.9.1995, addressed to the Secretary to the Government of
\nIndia which was rejected by the Finance Minister on
\n16.10.1995.\n<\/p>\n
Questioning the validity or otherwise of the said order
\nof detention, the wife of the detenu, the first respondent
\nherein, filed a Criminal Miscellaneous Case before the
\nCalcutta High Court which was marked as Criminal
\nMiscellaneous  Case  No. 5039  of  1995, inter alia, praying
\nfor :\n<\/p>\n
“(a) a writ of and\/or order and\/or
\ndirection in the nature of Habeas Corpus
\ncalling upon the petitioners and each
\none of them to forthwith set the detenu
\nat liberty;\n<\/p>\n
(b) a writ of and\/or order and\/or
\ndirection in the nature of Mandamus
\ncommanding the petitioners and each one
\nof them to show cause as to why the
\norder of detention being No. F.\n<\/p>\n
No.673\/89\/95-CUS.VIII dated 22.8.95
\npassed by the petitioner No.2 be not
\nquashed and\/or set aside.\n<\/p>\n
(c) a writ or and\/or order and\/or
\ndirection in the nature of certiorary
\ncommanding the petitioners, their
\nservants, agents and associates and each
\none of them to transmit the records
\nrelating to the issuance of the order of
\ndetention being No.F.\n<\/p>\n
No.673\/89\/95\/Cus.VIII dated 22.8.1995 to
\nthe Hon’ble High Court so that the same
\nmay be quashed and\/or set aside and a
\nconscionable justice done;\n<\/p>\n
(d) a writ of and\/or order and\/or
\ndirection in the nature of prohibition
\nprohibiting or restraining the
\npetitioners each one of their agents,
\nservants and associates to forbear from
\ngiving any effect of further effect to
\nthe order of detention being
\nNo.F.No.673\/89\/95-Cus.VIII dated
\n22.8.1995.”\n<\/p>\n
\tA Division Bench of the High Court in the impugned
\njudgment  observed that the first representation made by the
\nJoint Secretary, who is the detaining authority, was not
\nplaced before the Central Government and was not considered
\nby it at all. As regard, the second representation also, the
\nHigh Court made an observation that the same had not been
\nindependently considered by the Central Government
\nirrespective of the stand taken by the Joint Secretary to
\nthe Government of India.  So far as the third representation
\nis concerned, it was observed that there was no clear
\nindication in the relevant file that the said representation
\nwas considered by the detaining authority independently.
\nRelying on or on the basis of three decisions of this Court
\nin KamleshKumar Ishwardas Patel etc. vs. Union of India and
\nOthers etc. [(1995) 4 SCC 51], Kubic Darusz vs. Union of
\nIndia and Others<\/a> [(1990) 1 SCC 568] and Smt. Gracy vs. State
\nof Kerala and Another<\/a> [(1991) 2 SCC 1], the High Court
\nallowed the writ petition holding that :\n<\/p>\n
“…The proposition of law has been
\nwell established that all the
\nrepresentations as made to either of the
\nthree Authorities namely, the Detaining
\nAuthority, the Central Government and
\nthe Advisory Board have to be considered
\nby all the three Authorities
\nindependently of each other and unless
\nthere be separate consideration of each
\none, there will be no sufficient
\ncompliance of law in so far as the
\nprovision under Article 22(5) of the
\nConstitution of India is concerned.  In
\nthis view of the matter we are
\nconstrained to hold in the facts and
\ncircumstances of the present case that
\nthe order of detention has been rendered
\notiose in view of the non-consideration
\nof all the representations by all the
\nthree Authorities on account of which
\nthe detenu is liable to be released from
\ndetention…”\n<\/p>\n
\tMr. P.P. Malhotra, learned senior counsel appearing on
\nbehalf of the appellant, would submit that the High Court
\nwent wrong in taking the aforementioned view inasmuch
\nrepresentations made by or on behalf of the detenu in terms
\nof the provisions of the COFEPOSA are required to be
\nconsidered by the concerned authorities independently.\n<\/p>\n
\tThe learned counsel would urge that the first two
\nrepresentations being made to the Joint Secretary who was
\nthe detaining authority, the same were required to be
\nconsidered by him and not by the Central Government.
\nSimilarly, the third representation having been made to the
\nCentral Government, it was for it to consider the same
\nindependent of the representations made by the detenu before
\nthe detaining authority.\n<\/p>\n
\tMr. Ganguli, learned senior counsel appearing on behalf
\nof the respondent, per contra, would submit that different
\nrepresentations may contain different grounds and in that
\nview of the matter unless the Central Government or for that
\nmatter, the detaining authority is possessed of the
\nrepresentation(s) made before other authorities, effective
\ndisposal thereof would not be possible.  The learned counsel
\nwould contend that the High Court having rendered its
\njudgment in terms of the binding precedent of this Court in
\nKamleshkumar Ishwardas Patel (supra), the same should not be
\ninterfered with.  In any event, Mr. Ganguli would submit
\nthat as several other contentions were raised by the
\nrespondent before the High Court, having regard to the fact
\nthat the period of detention is long over, this Court may
\nnot exercise its jurisdiction under Article 136 of the
\nConstitution of India.\n<\/p>\n
An order of detention under the COFEPOSA  can be
\npassed: (1) by an authority specially empowered by the
\nCentral Government; (2) by the State Government; (3) by the
\nCentral Government.\n<\/p>\n
\tThe detenu on being served with the order of detention
\nhaving regard to the constitutional protection contained in
\nclause (5) of Article 22 of the Constitution of India is
\nentitled to be afforded an earliest opportunity of making a
\nrepresentation there-against.  Clause (5) of Article 22 of
\nthe Constitution of India obligates the authority making the
\norder of preventive detention : (1) to communicate to the
\ndetenu the grounds on which the order of detention has been
\nmade; (2) to afford the detenu the earliest opportunity of
\nmaking a representation against the order of detention.\n<\/p>\n
\tA right to make a representation is, therefore, a facet
\nof fundamental right.  Article 22(5) of the Constitution
\ndoes not state as to before whom such representation is to
\nbe made, and provisions therefor are laid down in the
\nstatute under which the detenu has been detained.  It is now
\nwell-settled that the object and purpose of the
\nrepresentation is to enable the detenu to obtain relief at
\nthe earliest opportunity wherefor, he may make
\nrepresentation before such authority which can revoke the
\nsame by setting him at liberty.  The cleavage in opinion of
\nthis Court as to whether the detaining authority can pass an
\norder revoking the order of detention came up for
\nconsideration before a Constitution Bench of this Court in
\nKamleshkumar Ishwardas Patel (supra) wherein this Court in
\nno uncertain terms held that the revoking authority has the
\nrequisite jurisdiction to revoke an order of detention.
\nUpon service of the order of detention on the detenu, the
\ndetaining authority or the State Government is obligated to
\nforward to the Central Government a report thereabout;
\nwhereafter the latter is entitled to consider at its
\nearliest opportunity, the validity or otherwise thereof so
\nas to enable it to intervene in appropriate cases by
\nexercising its power of revocation.  Furthermore, the
\nrepresentation of the detenu, if any, at a later stage is
\nrequired to be considered by the Central Government  in
\nterms of Section 11 of the Act which read thus :\n<\/p>\n
“11. Revocation of detention orders.-
\n(1) Without prejudice to the provisions
\nof section 21 of the General Clauses
\nAct, 1897, a detention order may, at any
\ntime, be revoked or modified <\/p>\n
(a)\tnotwithstanding that the order has
\nbeen made by an officer of a State
\nGovernment, by that State
\nGovernment or by the Central
\nGovernment;\n<\/p>\n
(b)\tnotwithstanding that the order has
\nbeen made by an officer of the
\nCentral Government or by a State
\nGovernment, by the Central
\nGovernment.\n<\/p>\n
(2) The revocation of a detention
\norder shall not bar the making of
\nanother detention order under section 3
\nagainst the same person.”\n<\/p>\n
\tA bare perusal of Section 11 of the Act would clearly
\nshows that the authority  vested in the Central Government
\nor the State Government to revoke an order of detention is
\nwithout prejudice to the provisions contained in Section 21
\nof the General Clauses Act, 1897. In terms of Section 21 of
\nthe General Clauses Act, an authority who passes an order
\nhas the jurisdiction can revoke the same.\n<\/p>\n
\tThe power of the State Government or the Central
\nGovernment, therefore, is in addition to the power of the
\ndetaining authority to revoke an order of detention.  A
\ndetenu in law, therefore, is entitled to make different
\nrepresentations before different authorities at different
\ntimes in terms of statutory as also constitutional schemes.\n<\/p>\n
\tEach authority, concededly, is required to apply its
\nmind on the materials placed on records and pass an order
\neither rejecting or allowing the said representation.  A
\nrepresentation of the detenu having regard to clause (5) of
\nArticle 22 of the Constitution of India must also be
\ndisposed of within a reasonable time.\n<\/p>\n
\tIt is equally well-settled that the constitutional
\nright to make a representation includes the right to obtain
\nproper consideration thereof by the authority to whom it is
\nmade.\n<\/p>\n
\tWould that mean, as has been held by the High Court,
\nthat a representation made before one authority must also be
\nconsidered by other authorities?  The answer to the said
\nquestion must be rendered in the negative.  If it is to be
\nassumed that the three different authorities before whom the
\nrepresentations are made are required to obtain copies of
\nthe representations made to the others; before a
\nrepresentation is considered, the concerned authority will
\nhave to make an enquiry from the authorities as to whether
\na representation had been made to it and if the answer
\nthereof is in the affirmative, to obtain a copy thereof.\n<\/p>\n
\tOnce such a enquiry is made and  eventually if in the
\nmeanwhile an order on such representation has been passed by
\nthe concerned authority, the same would also be required to
\nbe obtained.  Apart from the fact that such procedure is not
\ncontemplated, a great delay would ensue thereby which would
\nrun counter to the constitutional schemes, as the detenu has
\na fundamental right to have the same considered and obtain
\nan order on his representation by the appropriate authority
\nat the earliest opportunity.\n<\/p>\n
\tKeeping in view the aforementioned principles, we may
\nexamine the decisions relied upon by the High Court.\n<\/p>\n
\tIn Kubic Darusz (supra), the question which arose was
\nas to whether the grounds of detention are required to be
\nsupplied  to the detenu in the language understood by him so
\nas to enable him to make an effective representation and
\nthat the representation submitted by him was required to be
\nconsidered, acted upon or replied by all the authorities.
\nThis Court observed that indisputably, the representation
\nmay be made by the detenu to the appropriate Government and
\nit is the appropriate Governent that has to consider the
\nrepresentation within a reasonable time holding :\n<\/p>\n
“…Even if the Advisory Board had made
\na report upholding the detention the
\nappropriate Government is not bound by
\nsuch opinion and it may still, on
\nconsidering the representation of the
\ndetenu and keeping in view all the facts
\nand circumstances relating to the case,
\ncome to its own decision whether to
\nconfirm the order of detention or to
\nrelease the detenu; as in that case
\nthere was nothing to show that the
\nGovernment considered the representation
\nbefore making the order confirming the
\ndetention. The Constitutional obligation
\nunder Article 22(5) was not complied
\nwith. In the instant case there was no
\nconsideration before and even after the
\nAdvisory Board considered the case of
\nthe detenu. It can not therefore, be
\nsaid that the representation was
\ndisposed of in accordance with law.”\n<\/p>\n
\tIn Smt. Gracy (supra), the detenu’s case was referred
\nto the Central Advisory Board by the Central Government and
\nduring the pendency of the reference before it, a
\nrepresentation was made to the Advisory Board.  The Advisory
\nBoard considered the reference relating to the detenu made
\nby the Central Government and also the detenu’s
\nrepresentation submitted to it and opined that there was
\nsufficient cause to justify his preventive detention.  The
\norder of Central Government confirming his detention was
\npassed thereafter.  This Court, in the fact situation
\nobtaining therein, held that the detenu has a dual right to
\nget his representation disposed of by the Advisory Board and
\nthe detaining authority independently stating :\n<\/p>\n
“…The contents of Article 22(5) as
\nwell as the nature of duty imposed
\nthereby on the detaining authority
\nsupport the view that so long as there
\nis a representation made by the detenu
\nagainst the order of detention, the
\naforesaid dual obligation under Article
\n22(5) arises irrespective of the fact
\nwhether the representation is addressed
\nto the detaining authority or to the
\nAdvisory Board or to both.  The mode of
\naddress is only a matter of form which
\ncannot whittle down the requirement of
\nthe constitutional mandate in Article
\n22(5) enacted as one of the safeguards
\nprovided to the detenu in case of
\npreventive detention.”\n<\/p>\n
\tThe Constitution Bench of this Court in Kamleshkumar
\nIshwardas Patel (supra) was dealing with a situation where
\nthe Joint Secretary to the Government of India, Ministry of
\nFinance, who was the specially empowered officer to make an
\norder of detention under Section 3 of the COFEPOSA Act,
\nforwarded the representation made to him by the Central
\nGovernment which was eventually rejected by the latter.
\nAgrawal, J. speaking for the Bench noticed the provisions of
\nSections 3 and 11 of the COFEPOSA Act as also Section 21 of
\nthe General Clauses Act and upon considering a large number
\nof decisions answered the question thus :\n<\/p>\n
“Where the detention order has been
\nmade under Section 3 of the COFEPOSA Act
\nand the PIT NDPS Act by an officer
\nspecially empowered for that purpose
\neither by the Central Government or the
\nState Government the person detained has
\na right to make a representation to the
\nsaid officer and the said officer is
\nobliged to consider the said
\nrepresentation and the failure on his
\npart to do so results in denial of the
\nright conferred on the person detained
\nto make a representation against the
\norder of detention.  This right of the
\ndetenu is in addition to his right to
\nmake the representation to the State
\nGovernment and the Central Government
\nwhere the detention order has been made
\nby an officer specially authorized by a
\nState Government and to the Central
\nGovernment where the detention order has
\nbeen made by an officer specially
\nempowered by the Central Government, and
\nto have the same duly considered.  This
\nright to make a representation
\nnecessarily implies that the person
\ndetained must be informed of his right
\nto make a representation to the
\nauthority that has made the order of
\ndetention at the time when he is served
\nwith the grounds of detention so as to
\nenable him to make such a representation
\nand the failure to do so results in
\ndenial of the right of the person
\ndetained to make a reprsentation.”\n<\/p>\n
\tIn that case, inter alia, the following question had
\narisen for consideration before the Full Bench of the High
\nCourt<\/p>\n
“(3)\tDoes failure to take independent
\ndecision on revocation of order
\nof detention by the specially
\nempowered officer under the
\nCOFEPOSA Act and merely
\nforwarding the same with
\nrecommendation to reject, result
\nin non-compliance with
\nconstitutional safeguard under
\nArticle  22(5) of the
\nConstitution ?\n<\/p>\n
\tReferring to Sat Pal vs. State of Punjab and Others<\/a>
\n[(1982) 1 SCC 12], Raj Kishore Prasad vs. State of Bihar
\n[(1982) 3 SCC 10] as also the decision in Santosh Anand vs.
\nUnion of India [(1981) 2 SCC 420], it was held :\n<\/p>\n
“…Having found that the
\nrepresentation of the person detained
\nwas not considered by the officer making
\nthe order of detention the High Court
\nwas in error in holding that the said
\nfailure on the part of the detaining
\nauthority to consider and decide the
\nrepresentation is not fatal to the order
\nof detention.  We are, therefore, unable
\nto uphold the answer given by the Full
\nBench to Question No.3 and, in our view,
\nthe said question should be answered in
\nthe affirmative.  On that basis it has
\nto be held that since there was a denial
\nof the constitutional safeguard provided
\nto the detenu under Article 22(5) of the
\nConstitution on account of the failure
\non the part of the officer who had made
\nthe order of detention to independently
\nconsider the representation submitted by
\nthe detenu against his detention and to
\ntake a decision on the said
\nrepresentation the further detention of
\nthe detenu Ishwardas Bechardas Patel is
\nrendered illegal…”\n<\/p>\n
\tThe decisions of this Court whereupon reliance has been
\nplaced by the High Court, therefore, nowhere state that copy
\nof the representation made by the detenu to one authority
\nmust be placed before all the authorities and all such
\nauthorities also should consider and pass orders on those
\nrepresentations, though really not made to any one of them.\n<\/p>\n
\tThe impugned judgment and order, therefore, cannot be
\nsustained, which is set aside accordingly.\n<\/p>\n
However, ordinarily we would have remitted the matter
\nback to the High Court for consideration on other questions
\nraised in the writ petition by the respondent herein but as
\nthe period of detention has long expired, we do not intend
\nto do so.   We, therefore, do not wish to express any
\nopinion on the validity or otherwise of the order of
\ndetention.\n<\/p>\n
This appeal is disposed of with the aforementioned
\nobservations.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India & Anr vs Sneha Khemka & Anr on 23 January, 2004 Author: S.B. Sinha Bench: Doraiswamy Raju, S.B. Sinha. CASE NO.: Appeal (crl.) 954 of 1997 PETITIONER: Union of India & Anr. RESPONDENT: Sneha Khemka & Anr. DATE OF JUDGMENT: 23\/01\/2004 BENCH: Doraiswamy Raju & S.B. Sinha. JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-133998","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India & Anr vs Sneha Khemka & Anr on 23 January, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-of-india-anr-vs-sneha-khemka-anr-on-23-january-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India & Anr vs Sneha Khemka & Anr on 23 January, 2004 - 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