{"id":162557,"date":"2000-12-12T00:00:00","date_gmt":"2000-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-keshava-vs-m-b-prakash-ors-on-12-december-2000"},"modified":"2016-07-24T22:52:31","modified_gmt":"2016-07-24T17:22:31","slug":"r-keshava-vs-m-b-prakash-ors-on-12-december-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-keshava-vs-m-b-prakash-ors-on-12-december-2000","title":{"rendered":"R. Keshava vs M.B. Prakash & Ors on 12 December, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
R. Keshava vs M.B. Prakash & Ors on 12 December, 2000<\/div>\n
Author: Sethi<\/div>\n
Bench: U C Banerjee, R P Sethi, K.T.Thomas<\/div>\n
           CASE NO.:\nAppeal (crl.) 1103 2000\n\n\nPETITIONER:\nR.  KESHAVA\n\n\tVs.\n\nRESPONDENT:\nM.B.  PRAKASH & ORS.\n\nDATE OF JUDGMENT:\t12\/12\/2000\n\nBENCH:\nU C Banerjee, R P Sethi, K.T.Thomas\n\n\n\n\nJUDGMENT:\n<\/pre>\n
L…..I………T…….T…….T…….T…….T…….T..J<\/p>\n
      SETHI, J.\n<\/p>\n
      Leave granted.  Alleging violation of Article 22(5) of
\nthe  Constitution  of India and relying upon a\tJudgment  of
\nthis  Court  in Smt.Gracy v.  State of Kerala & Anr.<\/a>   [1991
\n(2)  SCC  1],  the appellant has challenged  the  preventive
\ndetention of A.\t Maheshraj, a resident of Bangalore detained
\nunder  Section 3 of the Conservation of Foreign Exchange and
\nPrevention of Smuggling Act (hereinafter referred to as “the
\nAct”).\t It  is submitted that as the representation of\t the
\ndetenue to the Advisory Board has not been considered by the
\nappropriate   government,  his\t continuous  detention\t was
\nunconstitutional  and liable to be quashed.  It is contended
\nthat notwithstanding the non filing of the representation to
\nthe  appropriate  government,  a  duty\twas  cast  upon\t the
\nAdvisory  Board to transmit the representation, received  by
\nit,  to the government who had a corresponding obligation to
\nconsider  it  before  confirming  the  order  of  detention.
\nPlacing\t its  reliance upon a subsequent judgement  of\tthis
\nCourt in Jasbir Singh v.  Lt.Governor, Delhi & Anr.<\/a>[1999 (4)
\nSCC  228] and distinguishing the facts of the present  case,
\nthe  High  Court dismissed the habeas corpus petition  filed
\nbefore\tit  vide the judgment impugned in this\tappeal.\t  To
\nappreciate  the\t rival\tcontentions of the  learned  counsel
\nappearing  for the parties, it is necessary to refer to some
\nof  the admitted facts in this case, which are:\t On  receipt
\nof an intelligence report that a passenger wearing dark grey
\ncoloured  suit\ttravelling from Singapore was carrying\twith
\nhim  electronic goods which he shall attempt to get  cleared
\nwithout\t payment  of  duty,  the   officer  of\tthe  Customs
\nHeadquarters,  Preventive,  Bangalore  kept a watch  on\t the
\npassengers of Flight No.IC 958 which landed at 0930 hrs.  on
\n3.12.1999,   and   noticed  the\t   detenu   resembling\t the
\ndescriptions  already received.\t He checked his baggages and
\ncompleted formalities with Customs authorities.\t His luggage
\ncomprised  of two suit-cases, one small hand suit-case,\t one
\ngreen  coloured\t zipper handbag and one plastic\t cover.\t  He
\nhad, in his disembarkation Card, declared the goods with him
\nworth  Rs.35,000\/-.   Having  a reasonable belief  that\t the
\ndetenue\t had not made the correct declaration, the  officers
\nof  the Customs made inquiries from him.  Being\t suspicious,
\nthe  officers  opened the four baggages and checked  baggage
\nunder  Baggage\tTag  Nos.SQ 144161, SQ144162,  SQ144141\t and
\nSQ144164  and  on  examination found to\t contain  electronic
\ngoods,\t namely,  Mobile  Phones,   Mobile  Phones  in\t CRD
\ncondition,  computer parts in commercial quantity, having  a
\ntotal value of Rs.18,38,300\/-.\tThe detenu was informed that
\nas  he\thas  attempted to smuggle goods and tried  to  evade
\ncustom\tduty, the baggage was liable to be confiscated under
\nthe provisions of Customs Act, 1962.  All the goods found in
\nthe  baggage of the detenu, as detailed in the Annexures  to
\nMahzar\tdated 3.12.1999 were seized, packed into suit  case,
\ncartons and sealed with seal and signature of the detenue as
\nwell  as  of the Mahzar witnesses.  After investigation\t the
\ndetaining  authority,  in exercise of the  powers  conferred
\nunder Sections 3(1)(i) and 3(1)(iii) of the Act directed the
\nsaid  A.Maheshraj  to  be detained and kept  in\t custody  in
\nCentral\t Prison,  Bangalore vide order dated 9.3.2000.\t The
\ngrounds\t of  detention\twere served upon the detenu  in\t the
\njail.\tThe  detenu  was also informed that he\tcan  file  a
\nrepresentation against the detention order to the Government
\nof  Karnataka or the Government of India.  The detenu made a
\nrepresentation\tto the Advisory Board and admittedly did not
\nmake any representation either to the Government of India or
\nthe  State  Government or any other authority.\tHe  did\t not
\neven  request to the Advisory Board or the jail\t authorities
\nto  forward his representation to any of the governments  or
\nauthority.   In\t the writ petition filed on his behalf,\t the
\nappellant  submitted:\t“The  petitioner  submits  that\t the
\ndetenue\t has  made  a representation to the  Advisory  Board
\nand\/or\tany authority required to consider the same for\t his
\nrelease from detention at the earliest.\t The respondent No.1
\nbe called upon to explain how the same has been considered.”\n<\/p>\n
      The High Court found that the petition filed before it
\nwas  lacking  in particulars and directed the  appellant  to
\ngive   full   details\tof   the  representation   and\t its
\nconsideration  by  the\tBoard or by the Government  and,  if
\npossible  to place on record the copy of the  representation
\nsubmitted   by\t the  detenue.\t  The  appellant  filed\t  an
\napplication  seeking  permission  to  place  on\t record\t the
\nadditional  facts.   The prayer was allowed.  The  appellant
\nstated\tthat  the  detenue  had\t  submitted  to\t the  Senior
\nSuperintendent\tof Central Prison, Bangalore on 22nd  March,
\n2000  six copies of representation addressed to the Advisory
\nBoard.\tUpon inquiry he was informed that the representation
\naddressed to the Advisory Board was forwarded on 24th March,
\n2000.\tThe detenue also appeared before the Advisory  Board
\non  10.4.2000.\tAfter receipt of the report of the  Advisory
\nBoard the Government of Karnataka vide order dated 18.4.2000
\nconfirmed   the\t order\tof  detention.\t  As  the  fact\t  of
\nrepresentation\tfiled  by the detenu to the Chairman of\t the
\nAdvisory  Board\t was  not  within   the\t knowledge  of\t the
\nrespondents  1\tand 2, they did not consider  the  aforesaid
\nrepresentation before confirming the order of detention.  It
\nis true that the courts of law do not see the detention of a
\nperson without trial with favour but it is equally true that
\nour constitutional scheme itself contemplates the preventive
\ndetention,  however,  subject to rigours of law relating  to
\nsuch  detention and the guarantees enshrined in part III  of
\nthe  Constitution.   One  of the rights conferred  upon\t the
\ndetenu,\t  as   incorporated   in   Article  22(5)   of\t the
\nConstitution,  is to make representation and obligation upon
\nthe  appropriate government to consider such  representation
\nbefore\tconfirming the detention.  It is further  obligation
\nof the detaining authority to communicate to the detenue the
\ngrounds\t of  detention on which the order has been made\t and
\napprise\t him  of his right to make a representation  against
\nthe  order.   Order of preventive detention is liable to  be
\nquahsed if the constitutional obligations in terms of clause
\n(5) of Article 22 of the Constitution are not complied with.
\nThere  is  no  gainsaying  that preventive  detention  is  a
\nserious\t invasion  of  personal\t  liberty  and\tsuch  meagre
\nsafeguards,  as\t the Constitution has provided\tagainst\t the
\nimproper  exercise  of the power, must be zealously  watched
\nand   enforced\tby  the\t  courts.   However,  where  despite
\nintimation,  the detenu omits to exercise his constitutional
\nright,\the  cannot, thereafer, allege its violation  on\t the
\nground\tthat the authorities should have made an inquiry  to
\nascertain  as  to whether he had made any representation  to
\nany  person,  authority\t or the Board.\tThe  thrust  of\t the
\nargument  of the appellant revolves around the\tobservations
\nmade  by  this\tCourt  in Smt.Gracy’s case  (supra)  to\t the
\neffect:\t  “It  is  undisputed  that if\tthere  be  only\t one
\nrepresentation\tby  the\t detenu addressed to  the  detaining
\nauthority,  the obligation arises under Article 22(5) of its
\nconsideration  by the detaining authority independent of the
\nopinion\t  of  the  Advisory  Board   in\t addition   to\t its
\nconsideration  by  the\tAdvisory   Board  while\t giving\t its
\nopinion.   In other words, one representation of the  detenu
\naddressed only to the Central Government and not also to the
\nAdvisory Board does not dispense with the requirement of its
\nconsideration  also  by the Advisory Board.   The  question,
\ntherefore,   is:   whether  one\t of  the   requirements\t  of
\nconsideration  by  government  is dispensed  with  when\t the
\ndetenu’s  representation  instead of being addressed to\t the
\ngovernment  or\talso to the government is addressed only  to
\nthe  Advisory  Board  and submitted to\tthe  Advisory  Board
\ninstead\t of  the  government?\tOn  principle,\twe  find  it
\ndifficult   to\tuphold\tthe   learned  Solicitor   General’s
\ncontention  which  would  reduce the duty of  the  detaining
\nauthority  frome one of substance to mere form.\t The  nature
\nof  duty  imposed on the detaining authority  under  Article
\n22(5)  in  the\tcontext\t of   the  extraordinary  power\t  of
\npreventive  detention is sufficient to indicate that  strict
\ncompliance  is\tnecessary  to\tjustify\t interference\twith
\npersonal  liberty.  It is more so since the liberty involved
\nis  of a person in detention and not of free agent.  Article
\n22(5)  casts an important duty on the detaining authority to
\ncommunicate  the  grounds of detention to the detenu at\t the
\nearliest  to afford him the earliest opportunity of making a
\nrepresentation against the detention order which implies the
\nduty to consider and decide the representation when made, as
\nsoon  as  possible.   Article 22(5) speaks of  the  detenu’s
\n‘representation\t  against  the\torder’,\t  and  imposes\t the
\nobligation   on\t  the  detaining   authority.\t Thus,\t any
\nrepresentation\tof  the\t detenu\t against the  order  of\t the
\ndetention  has to be considered and decided by the detaining
\nauthority,  the requirement of its separate consideration by
\nthe  Advisory Board being an additional requirement  implied
\nby  reading together clauses (4) and (5) of Article 22\teven
\nthough\texpress\t mention  in Article 22(5) is  only  of\t the
\ndetaining authority.  Moreover, the order of detention is by
\nthe  detaining\tauthority  and\tso also\t the  order  of\t its
\nrevocation  if the representation is accepted, the  Advisory
\nBoard’s\t role  being merely advisory in nature\twithout\t the
\npower  to make any order itself.  It is not as if there\t are
\ntwo  separate and distinct provisions for representation  to
\ntwo  different authorities viz.\t the detaining authority and
\nthe  Advisory Board, both having independent power to act on
\nits own.\n<\/p>\n
      It being settled that the aforesaid dual obligation of
\nconsideration of the detenu’s representation by the Advisory
\nBoard  and  independently by the detaining  authority  flows
\nfrom  Article  22(5)  when only one representation  is\tmade
\naddressed  to the detaining authority, there is no reason to
\nhold  that  the\t detaining  authority is  relieved  of\tthis
\nobligation merely because the representation is addressed to
\nthe  Advisory  Board instead of the detaining authority\t and
\nsubmitted  to  the  Advisory Board during  pendency  of\t the
\nrefernece  before it.  It is difficult to spell out such  an
\ninference  from the contents of Article 22(5) in support  of
\nthe  contention\t of  the  learned  Solicitor  General.\t The
\ncontents  of  Article  22(5) as well as the nature  of\tduty
\nimposed\t thereby on the detaining authority support the view
\nthat so long as there is a representation made by the detenu
\nagainst\t  the  order  of   detention,  the  aforesaid\tdual
\nobligation  under  Article 22(5) arises irrespective of\t the
\nfact   whether\tthe  representation  is\t addressed  to\t the
\ndetaining  authority  or to the Advisory Board or  to  both.
\nThe  mode  of address is only a matter of form which  cannot
\nwhittle\t down the requirement of the constitutional  mandate
\nin  Article 22(5) enacted as one of the safeguards  provided
\nto the detenu in case of preventive detention.”\n<\/p>\n
      On facts we find that in that case the detenu had made
\na  representation  to the Advisory Board who  considered  it
\nbefore\tsending its opinion to the Central Government  along
\nwith   the  entire  record   including\tthe   representation
\nsubmitted  by the detenu.  The Central Government  confirmed
\nthe  order of detention without independent consideration of
\nthe  detenu’s  representation  sent to it  by  the  Advisory
\nBoard.\tOn the above facts the court formulated the point of
\nlaw for its consideration as under:  “Whether there has been
\nany  infraction of the guarantee under Article 22(5) of\t the
\nConstitution as a result of Central Government’s omission to
\nconsider  the  detenu’s\t representation independent  of\t its
\nconsideration\tby   the  Advisory   Board.    The   Central
\nGovernment’s stand is that the detenu’s representation being
\naddressed  to  the Advisory Board to which it was  submitted
\nduring\tpendency of the reference before the Advisory Board,
\nthere  was  no obligation on the Central Government also  to
\nconsider the same independently since the representation was
\nnot addressed to the Central Government.”\n<\/p>\n
      and  made\t observations as noted hereinabove.  In\t the
\ninstant\t case  the  respondent\tNo.1 in\t his  affidavit\t has
\ncategorically  stated:\t “I  respectfully  submit  that\t the
\nAdvisory Board has not forwarded the representation filed by
\nthe  detenu  to the State Government and consequently I\t did
\nnot  consider  the said representation filed by\t the  detenu
\nbefore the Advisory Board.\n<\/p>\n
      I\t respectfully  submit  that the Advisory  Board\t has
\nforwarded   its\t report\t along\t with  the  covering  letter
\ndt.12.4.2000,  to  the\tState\tGovernment.   However,\t the
\nrespondents 1 and 2 did not receive any representation given
\nto  the Advisory Board in as much as the Advisory Board\t has
\nnot  sent the copy of the representation of the detenue,  to
\nthe State Government.  Therefore, the State Government could
\nnot    consider\t  the\t said\t representation.    As\t the
\nrepresentations\t were addressed to the Advisory Board alone,
\nthere  is no obligation on the part of the Superintendent of
\nCentral\t Prison to forward the copy of the representation to
\nthe   State   Government   or\t the   Central\t Government.
\nConsequently,  the  third respondent has not  forwarded\t the
\nrepresentation\tto  the respondents 1 and 2.  I submit\tthat
\nthe Advisory Board will be having the records which are sent
\nby  the\t State\tGovernment such as the order  of  detention,
\ngrounds\t of detention and the documents relied upon.  Except
\nthese  documents, the State Government will not furnish\t any
\nother\tdocument  to  the   Advisory  Board.   However,\t the
\ndocuments which were produced by the detene in the course of
\nhearing\t before the Advisory Board, do not form part of\t the
\nrecords\t sent  by the State Government.\t In this  case,\t the
\nonly  extra  document which was produced by the detenue\t was
\nthe  representation.  The copy of the representation was not
\nsent  by  the Advisory Board to the State  Government  while
\nsending its report to the State Government.\n<\/p>\n
      In  the  absence of the representation of the  detenu,
\nthe  order of detention is stated to have been confirmed  on
\nthe  basis of other material available with the\t Government.
\nMr.B.  Kumar, Senior Advocate who appeared for the appellant
\nsubmitted  that\t a duty was cast upon the Advisory Board  to
\nsubmit\tall  records  including the  representation  of\t the
\nAdvisory  Board\t to the appropriate government.\t We are\t not
\nimpressed with such a general submission and the proposition
\nof law.\t Section 8 of the Act provides that for the purposes
\nof  sub-clause\t(a)  of clause (4), and\t sub-clause  (c)  of
\nclause\t(7)  of Article 22 of the Constitution, the  Central
\nGovernment  and\t each  State   Government  shall,   whenever
\nnecessary,  constitute one or more Advisory Boards and shall
\nwithin\tfive  weeks  of\t the detention of a  person  make  a
\nreference   in\trespect\t thereof  to  the   Advisory   Board
\nconstituted  to\t enable such Board to make a report  to\t the
\neffect.\t  Clause (c) of Section 8 of the Act provides:\t“The
\nAdvisory Board to which a reference is made under clause (b)
\nshall  after  considering  the reference and  the  materials
\nplaced\tbefore\tit  and\t after\t calling  for  such  further
\ninformation  as\t it may deem necessary from the\t appropriate
\nGovernment or from any person called for the purpose through
\nthe appropriate Government or from the person concerned, and
\nif  in any particular case, it considers it essential so  to
\ndo or if the person concerned desires to be heard in person,
\nafter  hearing him in person, prepare its report  specifying
\nin a separate paragraph thereof its opinion as to whether or
\nnot  there  is\tsufficient cause for the  detention  of\t the
\nperson\tconcerned  and submit the same within  eleven  weeks
\nfrom  the date of detention of the person concerned.” Clause\n<\/p>\n
(f) of the said Section reads:\n<\/p>\n
      “In  every case where the Advisory Board has  reported
\nthat  there  is\t in  its opinion sufficient  cause  for\t the
\ndetention  of  a  person,  the\tappropriate  Government\t may
\nconfirm\t the  detention order and continue the detention  of
\nthe person concerned for such period as it thinks fit and in
\nevery  case where the Advisory Board has reported that there
\nis  in its opinion no sufficient cause for the detention  of
\nthe  person  concerned,\t the  appropriate  Government  shall
\nrevoke\tthe  detention\torder  and cause the  person  to  be
\nreleased forthwith.”\n<\/p>\n
      A\t perusal of the aforesaid Section and other relevant
\nprovisions of the Act makes it abundantly clear that no duty
\nis  cast upon the Advisory Board to furnish the whole of the
\nrecord\tand  the representation addressed to it only to\t the
\nGovernment along with its report prepared under Section 8(c)
\nof the Act.  It may be appropriate for the Board to transmit
\nthe  whole record along with the report, if deemed expedient
\nbut  omission to send such record or report would not render
\nthe  detention\tillegal\t or  cast  an  obligation  upon\t the
\nappropriate  government to make inquiries for finding out as
\nto  whether  the detenu has made any representation, to\t any
\nperson\tor authority, against his detention or not.  We\t are
\nof  the opinion that in Gracy’s case (supra) it was not held
\nthat  any such duty was cast upon the Board but even if\t the
\nobservations  are  stretched  to that extent, we  feel\tthat
\nthose  observations were uncalled for in view of the  scheme
\nof the Act and the mandate of the Constitution.\t In Nand lal
\nBajaj  v.   State of Punjab & Anr.  [1981 (4) SCC 327]\tthis
\nCourt  made the following observations:\t “The matter can  be
\nviewed\tfrom  another  angle.\tWe were\t informed  that\t the
\nAdvisory Board did not forward the record of its proceedings
\nto  the State Government.  If that be so, then the procedure
\nadopted was not in consonance with the procedure established
\nby law.\t The State Government while confirming the detention
\norder under Section 12 of the Act has not only to peruse the
\nreport\tof the Advisory Board, but also to apply its mind to
\nthe material on record.\t If the record itself was not before
\nthe  State  Government, it follows that the order passed  by
\nthe State Government under Section 12 of the Act was without
\ndue application of mind.  This is a serious infirmity in the
\ncase  which  makes  the continued detention  of\t the  detenu
\nillegal.”\n<\/p>\n
      In  view of the constitutional and legal position,  as
\nnoted  by  us,\twe  find  it difficult\tto  agree  with\t the
\nreasoning  in the aforesaid observations.  In the absence of
\nconstitutional\tor  statutory provisions, we are  unable  to
\nobserve\t that the Advisory Board was under an obligation  to
\nforward\t the  whole of the record of its proceedings to\t the
\nState Government.  The State Government while confirming the
\norder  of detention has to peruse the report of the Advisory
\nBoard  along with other records, if any, in its\t possession,
\nand  cannot determine the legality of the procedure  adopted
\nby the Advisory Board.\tUnder Clause (f) of Section 8 of the
\nAct,  the  Government  is  not bound by the  report  of\t the
\nAdvisory  Board\t and in every case where the Advisory  Board
\nreports\t that there is, in its opinion, sufficient cause for
\nthe  detention of a person, may confirm the detention order.
\nThe  word “may” used in this clause does not cast duty\tupon
\nthe appropriate government to necessarily accept the opinion
\nfor  further  detention.  However, where the  Board  reports
\nthat  there is, in its opinion, no sufficient cause for\t the
\ndetention   of\tthe  person   concerned,   the\t appropriate
\ngovernment  has no option but to revoke the detention  order
\nand  cause  the person to be released forthwith.   When\t the
\nreport\tof  the\t Advisory Board opining\t that  there  exists
\nsufficient  cause  for detention of a person is not  binding
\nupon  the  appropriate government, there is no infirmity  in
\nits order passed without consideration of the proceedings of
\nthe  Advisory  Board.\tThe obligation\tof  the\t appropriate
\ngovernment  is\trestricted  to the extent of  examining\t the
\nreport\tconveying the opinion of the Board regarding further
\ndetention of the detenu.  Similarly the observations made by
\nthis  Court in Harbans Lal v.  M.L.  Wadhawan & Ors.<\/a>   [1987
\n(1)  SCC  151 to the effect that the non submission  of\t the
\nentire\trecord being the requirement of law, cannot be\theld
\nto be good law on the point.  In Jasbir Singh’s case (supra)
\nsimilar\t argument based upon Gracy’s case was considered and
\ndisposed   of\tby  observing:\t  “But\tthe   question\t for
\nconsideration  is  when\t the  representation  has  not\tbeen
\naddressed  to the Central Government but is addressed to the
\nAdvisory  Board\t can it be said that the Central  Government
\nalso  owes an obligation to consider the same and decide one
\nway  or\t the  other.   The   detaining\tauthority  was\t the
\nLt.Governor  of Delhi.\tIn such a case if the representation
\nhad not been addressed to the Central Government even though
\nindicated in the grounds of detention then it cannot be said
\nthat  any representation made by the detenu to the  Advisory
\nBoard  ought  to  have\tbeen   considered  by  the   Central
\nGovernment.”\n<\/p>\n
      The  reliance of the learned counsel of the  appellant
\non  the judgment of this Court in Dr.Rahamatullah v.   State
\nof Bihar & Anr.<\/a>\t [1981 (4) SCC 559] is misplaced inasmuch as
\nin  that  case the point of law as canvassed before us,\t was
\nnot in issue.  The detention in that case was quashed on the
\nground of non consideration of the report by the appropriate
\ngovernment  and delay in the compliance of the provisions of
\nthe  Act.  We are satisfied that the detenu in this case was
\napprised  of  his  right  to   make  representation  to\t the
\nappropriate  government\/authorities  against  his  order  of
\ndetention  as mandated in Article 22(5) of the Constitution.
\nDespite\t knowledge,  the  detenu  did\tnot  avail  of\t the
\nopportunity.   Instead\tof  making a representation  to\t the
\nappropriate  government\t or  the confirming  authority,\t the
\ndetenu\tchose  to address a representation to  the  Advisory
\nBoard  alone even without a request to send its copy to\t the
\nconcerned  authorities\tunder  the Act.\t In the\t absence  of
\nrepresentation or the knowledge of the representation having
\nbeen  made  by\tthe detenu, the appropriate  government\t was
\njustified in confirming the order of detention on perusal of
\nrecord\tand  documents excluding the representation made  by
\nthe  detenu to the Advisory Board.  For this alleged failure
\nof the appropriate government, the order of detention of the
\nappropriate  government is neither rendered unconstitutional
\nnor  illegal.\tTaking\ta cue from the objections  filed  by
\nSh.M.B.\t  Prakash,  Principal Secretary to Government,\tHome
\nand  Transport Department of the State of Karnataka, it\t was
\nargued\ton  behalf of the detenu that as the Government\t had
\nallegedly  not considered the whole of the record pertaining
\nto the detention, the order of confirmation of detention was
\nillegal\t and unconstitutional.\tThe submission is based upon
\nwrong  assumption both on facts as well as on law.  Reliance
\nwas  placed  on the words “since the Advisory Board has\t not
\nsent  the records to the State Government” appearing in\t the
\naffidavit,  to contend that the State Government had  passed
\nthe  order  of\tconfirmation without  consideration  of\t the
\nrecord.\t  The  appellant did not notice the earlier part  of
\nthat sentence in the context of which those words were used.
\nThis  part reads:  “Thus, as the respondents 1 and 2 did not
\nhave  knowledge\t about\tthe  representations  filed  by\t the
\ndetenue, the said representations were not considered by the
\nrespondents 1 and 2.”\n<\/p>\n
      The  emphasis of submission in the objections was with
\nrespect\t to  the non submission of the record pertaining  to
\nthe  representation filed by the detenu only upon which\t the
\nappellant had built his case.  The failure of the respondent
\nto  comply  with the court directions dated  15.11.2000\t was
\nalso  made  the\t basis of such a contention.  In  our  order
\ndated  29th  November,\t2000,  we felt\tthat  the  Principal
\nSecretary  to  the Government of Karnataka had not  complied
\nwith  our  directions,\tdirecting him to intimate us  as  to
\n“what  all records were with the Government\/what all records
\nwere  considered by the Government before passing the  order
\nof  confirmation”.   Prima facie we felt that our order\t had
\nbeen flouted by said Sh.M.B.  Prakash which necessitated the
\nissuance  of notice to him to show cause why adverse remarks
\nshall  not  be\tmade  against him  for\tflouting  the  court
\ndirections.  In response to our notice an affidavit has been
\nfiled  in  this\t Court on 5th December, 2000 wherein  it  is
\nspecifically  stated:  “In response to the notice issued  to
\nme  to\tshow  cause why adverse remarks shall  not  be\tmade
\nagainst\t me,  I respectfully submit that while\tpassing\t the
\norder  of  confirmation, the following documents  were\twith
\nGovernment:\n<\/p>\n
      (a)  The entire file concerning the Detention Order in
\nNo.HTD\t2  SCF\t2000 containing the  following\tamong  other
\ndocuments:\n<\/p>\n
      i) Detention order dated 9.3.2000.\n<\/p>\n
      ii)  Grounds  of detention dated 9.3.2000, along\twith
\nentire documents relied upon in the Grounds of detention.\n<\/p>\n
      iii)Reference dated 3.4.2000 referring the case to the
\nAdvisory Board.\n<\/p>\n
      iv) Report and opinion dated 12.4.2000 of the Advisory
\nBoard.\n<\/p>\n
      v)  While\t confirming  the  order\t of  the  detention,
\nGovernment considered the report and opinion dated 12.4.2000
\nof the Advisory Board.”\n<\/p>\n
      In  the presence of the aforesaid affidavit we  cannot
\ngive any credence to the ipse dixit of the appellant and his
\neffort to aim arrows in the darkness to find out some ground
\neven  though he is not sure about any one of such ground  to
\nchallenge the order of detention.  We are satisfied that the
\norder\tof  confirmation  was\tpassed\tby  the\t appropriate
\ngovernment  after perusal of the whole record available with
\nit and such power was not mechanically exercised as alleged.
\nThe  order of detention and its confirmation appears to have
\nbeen  based  upon the subjective satisfaction arrived at  by
\nobjective  considerations  with reference to all the  record
\npertaining  to\tthe  matters relating to  the  circumstances
\nwarranting the detention of the detenu.\n<\/p>\n
      We do not find any error of law or jurisdiction in the
\norder  of  the High Court, the detaining authority  and\t the
\nconfirming authority.  The present appeal being misconceived
\nis, therefore, dismissed.\n<\/p>\n
      Shri  M.B.   Prakash,  Principal\t Secretary  to\t the
\nGovernment  of\tKarnataka  has realised his mistake  of\t not
\nreferring  to  the  documents upon the basis  of  which\t the
\nconfirmation   order   was  passed   and  has  stated:\t  “I
\nrespectfully  submit  that inadvertently I did not refer  to
\nthe  file  and documents now mentioned above in\t my  earlier
\naffidavit.    This  omission  is   neither  deliberate\t nor
\nintentional.   I  deeply regret for the same.\tI  sincerely
\ntender my unconditional apology.”\n<\/p>\n
      In  view of above, no further action is required to be
\ntaken  in  the\tmatter.\t  We close the matter,\tso  far\t as,
\nSh.M.B.\t  Prakash is concerned, reminding him to be  careful
\nin compliance of the orders of this Court in future.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India R. Keshava vs M.B. Prakash & Ors on 12 December, 2000 Author: Sethi Bench: U C Banerjee, R P Sethi, K.T.Thomas 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, […]<\/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-162557","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nR. Keshava vs M.B. 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