# A.C. RAZIA v. GOVERNMENT OF KERALA AND ORS

- **Citation:** [2004] 1 S.C.R. 437
- **Court:** Supreme Court of India
- **Decided:** 2004-01-12
- **Case number:** Criminal Appeal No. 53 of 2004
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-c-razia-v-government-of-kerala-and-ors-19848
- **Pages:** 33

## Headnote

A.C. RAZIA
A
v.
GOVERNMENT OF KERALA AND ORS.
JANUARY 12, 2004
[V.N. KHARE, C.J., P. VENKATARAMA REDD! AND S.B. SINHA, JJ.] B
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act. 1974-Section I I-Detention-Representation of detenuConsideration of-Power of Central Government-Extent of-Translated copy C
of Malayalam documents not supplied to the Central Government-Effect ofHeld (per majority). depends upon facts of each case-Translated contents of
documents extracted in detention order-Held. consideration of representation
of detenu not vitiated-Constitution of India-Articles 22(4) and (5).
One 'A' was intercepted and found possessing foreign currencies. In D
his statement under Section 108 of the Customs Act, 1962, 'A' stated that
the currencies were entrusted to him by the husband of the petitioner.
Accordingly, statement of husband of the petitioner was also recorded
under Section 108 of the Customs Act, 1962 in which he confessed the
offence. All statements recorded were in Malayalam. Both 'A' and the
husband of the petitioner subsequently retracted from their confessions. E
The documents whereby confessional statements were retracted were also
in Malayalam.
The State Government passed an order of detention of the husband
of the petitioner. The detention order elaborately referred to the contents
of the relevant documents including the statements recorded under Section F
108 of the Customs Act and retraction thereof.
The dentenu made representations in Malayalam to the State
Government and Central Government. The State Governinent as well as
the Central Government rejected the representation filed on behalf of the
detenu. The Advisory Board also confirmed the detention order. G
Thereafter, writ petition was filed challenging the order of detention, which
was dismissed by the High Court.
The wife of the detenu filed a special leave petition as well as writ
petition before this court. The petitioner contended that many of the
437
H
438
SUPREME COURT REPORTS
(2004] I S.C.R.
A documents were in Malayalam and no translation thereof was provided
>- \
to the officials of the Central Government who considered the
representation of the detenu. As the officials were not acquainted with
Malayalam language, they could not have applied their minds to the
relevant Malayalam documents and therefore, disposal of representation
was not made in accordance with law. The matter was before a two Judge
B Bench of this Court and in view of their different opinions, came to be
referred to the present 3 Judge Bench.
c
Dismissing the special leave petition and the writ petition by a
majority, the Court
HELD: Per Reddi, J. (for himself and Khare, C. J.)
I. I. The law of preventive det~ntion is a drastic law as it authorises
detention without trial in a Court of law and is an encroachment on the
liberty of an individual which is cherished freedom under the Constitution
D of India. At the same time, the need for such law in larger public or
national interest has been recognised by the Constitution. In order to
mitigate tht! rigour of the law, certain minimum safeguards have been
provided in the Constitution in order to ensure that there is no unjustified
detention and the detention should not continue unnecessarily. The
preventive detention laws such as COFEPOSA apart from ensuring the
E minimum safeguards expressly man.dated by the Constitution, have
supplemented to these safeguards especially by making provisions enabling
scrutiny and review of detention order by more than one authority on the
representation of the detenu or otherwise. By judicial interpretation, some
more ancillary safeguards to effectuate the constitutional guarantees
F flowing from Articles 21 and 22 of the Constitution of India have been
carved out. (477-D-E(
"·
1
1.2. The combined effect of the constitutional and statutory
provisions from the point of view of the detenu's right to make the
representation is to provide more than one forum to re-examine or r

## Text

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A.C. RAZIA
A
v.
GOVERNMENT OF KERALA AND ORS.
JANUARY 12, 2004
[V.N. KHARE, C.J., P. VENKATARAMA REDD! AND S.B. SINHA, JJ.] B
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act. 1974-Section I I-Detention-Representation of detenuConsideration of-Power of Central Government-Extent of-Translated copy C
of Malayalam documents not supplied to the Central Government-Effect ofHeld (per majority). depends upon facts of each case-Translated contents of
documents extracted in detention order-Held. consideration of representation
of detenu not vitiated-Constitution of India-Articles 22(4) and (5).
One 'A' was intercepted and found possessing foreign currencies. In D
his statement under Section 108 of the Customs Act, 1962, 'A' stated that
the currencies were entrusted to him by the husband of the petitioner.
Accordingly, statement of husband of the petitioner was also recorded
under Section 108 of the Customs Act, 1962 in which he confessed the
offence. All statements recorded were in Malayalam. Both 'A' and the
husband of the petitioner subsequently retracted from their confessions. E
The documents whereby confessional statements were retracted were also
in Malayalam.
The State Government passed an order of detention of the husband
of the petitioner. The detention order elaborately referred to the contents
of the relevant documents including the statements recorded under Section F
108 of the Customs Act and retraction thereof.
The dentenu made representations in Malayalam to the State
Government and Central Government. The State Governinent as well as
the Central Government rejected the representation filed on behalf of the
detenu. The Advisory Board also confirmed the detention order. G
Thereafter, writ petition was filed challenging the order of detention, which
was dismissed by the High Court.
The wife of the detenu filed a special leave petition as well as writ
petition before this court. The petitioner contended that many of the
437
H
438
SUPREME COURT REPORTS
(2004] I S.C.R.
A documents were in Malayalam and no translation thereof was provided
>- \
to the officials of the Central Government who considered the
representation of the detenu. As the officials were not acquainted with
Malayalam language, they could not have applied their minds to the
relevant Malayalam documents and therefore, disposal of representation
was not made in accordance with law. The matter was before a two Judge
B Bench of this Court and in view of their different opinions, came to be
referred to the present 3 Judge Bench.
c
Dismissing the special leave petition and the writ petition by a
majority, the Court
HELD: Per Reddi, J. (for himself and Khare, C. J.)
I. I. The law of preventive det~ntion is a drastic law as it authorises
detention without trial in a Court of law and is an encroachment on the
liberty of an individual which is cherished freedom under the Constitution
D of India. At the same time, the need for such law in larger public or
national interest has been recognised by the Constitution. In order to
mitigate tht! rigour of the law, certain minimum safeguards have been
provided in the Constitution in order to ensure that there is no unjustified
detention and the detention should not continue unnecessarily. The
preventive detention laws such as COFEPOSA apart from ensuring the
E minimum safeguards expressly man.dated by the Constitution, have
supplemented to these safeguards especially by making provisions enabling
scrutiny and review of detention order by more than one authority on the
representation of the detenu or otherwise. By judicial interpretation, some
more ancillary safeguards to effectuate the constitutional guarantees
F flowing from Articles 21 and 22 of the Constitution of India have been
carved out. (477-D-E(
"·
1
1.2. The combined effect of the constitutional and statutory
provisions from the point of view of the detenu's right to make the
representation is to provide more than one forum to re-examine or review
G the case of the detenu and to afford him various means of redressal of his
grievance. (449-A(
Kamlesh Kumar fshwardas Patel etc. etc. v. Union of India and Ors.
;~
(1995( 4 SCC 51; Sk. Abdul Karim and Ors. v. State of West Bengal, (1969(
I SCC 433; Pankaj Kumar Chakrabarty v. State of W.B., (1969( 3 SCC 400;
H Amir Shad Khan v. L. Hming/iana and Ors., 11991 ( 4 SCC 39 and Razia Umar
A.C. RAZIA v.GOVERNMENTOF KERALA
439
) ~
Bakshi (Smt.) v. Union of India and Ors., 11980] Supp SCC 195, referred A
to.
1.3. The additional remedy or safeguards provided by Section 11
of COFEPOSA has been projected into the fabric of Article 22 (5) of the
Constitution of India so as to be absorbed into the ambit of safeguard
provided by the latter part of Article 22 (5) of the Constitution of India. B
A provision like Section 11 of COFEPOSA may or may not be necessary
to giyf! effect to that safeguard, but, once a provision like Section 11 finds
its place in the detention law, the detenu's constitutional right to make
representation gets amplified. His right extends to making representations
to all those authorities who can grant him relief and the opportunity C
afforded to the detenu to submit such representations thus becomes a part
of the guaranteed right under Article 22 (5) of the Constitution of India.
1452-C-DI
2.1. The Government in exercise of power under Section 11 of
CO FE POSA does not consider the question of sufficiency or adequacy of ['
the grounds but it would only see whether the detention order is within
the parameters of the power conferred under the statute. In other words,
it will not review the case as if it is an original or appellate authority. That
is why the power under Section 1 I of COFEPOSA has been described as
supervisory in nature. 1453-F]
Pankaj Kumar Chakrabarty v. State of W.B., 119691 3 SCC 400; KM.
Abdulla Kunhi v. Union of India, 11991 I 1 SCC 476; Sabir Ahmad v. Union
of India, 11980] 3 SCC 295 and Sat Pal v. State of Punjab, 11982] l SCC
12, referred to.
E
2.2. Obviously this supervisory power cannot be equated to the F
subjective satisfaction of the detaining authority or the power of the
Advisory Board to examine whether there is sufficient material for
detention. The range of consideration by the Advisory Board is thus wider.
1453-GI
2.3. The proposition that the powers conferred under Section 11 of
COFEPOSA is supervisory does not however mean that the exercise of
power is purely discretionary or that the process of consideration could
be casual an.d superficial. No doubt, there need not be a speaking order
in disposing of such representation. However, the Government has a duty
G
to consider the representation in proper perspective in order to see H
440
SUPREME COURT REPORTS
[2004] I S.C.R.
A whether the order of detention is in conformity with law. The Government,
"'" \
should, quite apart from the points raised in the representation, apply its
mind broadly to the question whether the detention is in accordance with
law. For .instance, if the material relied upon by the detaining authority
does not ex-facie establish a nexus with the preconditions for the exercise
B
of the power or the conclusions of the detaining authority are found to be
wholly perverse or the prescribed procedure has not been followed by the
detaining authority, the appropriate Government acting under Section 11
of CO FE POSA has a duty to interfere and revoke the order of detention.
In order to achieve this end, the Central Government must necessarily
have regard to the representation, the report received from the State
c Government, the detention order and the material relied upon in the
detention order or referred to in the representation. The exercise of the
power under Section 11 of COFEPOSA should not be a mere formality
or a farce. Care and vigilance should inform the action of the Government
while discharging its supervisory responsibility. 1453-H; 454-A-DI
D
Haradhan Saha v. State of West Bengal and Ors., (1975] 3 SCC 198;
K.M. Abdulla Kunhi v. Union of India, 11991] I SCC 476 and Sk. Abdul Karim
and Ors. v. State of West Bengal, 11969] I SCC 433, referred to.
3.1. The question whether any or all the documents which formed
the basis of the detention order should be before the Central Government
E or not, depends on the facts of each case. There can be no hard and fast
rule that the appropriate Government called upon to take a decision under
Section 11 of COFEPOSA should necessarily have copies of all the
documents relied upon by the detaining authority with the translated
version thereof. The proposition laid down by the Court that the copies
F of the translated documents forming the basis of the detention order should
be furnished to the detenu in order to give effect to the guarantee enshrined
)._.
t
in Article 22 (5) of the Constitution of India cannot be imported while
dealing with the question in the context of exercise of power of revocation
under Section 11 of COFEPOSA on the basis of representation or
G
otherwise. The question whether there was due consideration of
representation has to be judged by general principles of administrative
law. There is no constitutional requirement, express or necessarily implied,
..::-
that the authority considering the representation should have before it all
1the documents referred to in the detention order with translated version
,
thereof. But, the availability or non-availability of such documents with
H the empowered authority under Section I I, COFEPOSA will only have
,.
A.C. RAZIA v.GOVERNMENT OF KERA LA
441
...I('
bearing on the manner of consideration of representation, which in turn A
depends on the facts of a particular case. The endeavour of the Court in
this regard is only to assess whether there was fair and proper
consideration by the Government by applying its mind to the crucial
aspects warranting its attention. The necessity or otherwise of having
copies of documents should be viewed in that light. The Court has to be B
satisfied that there was due application of mind to the crucial aspects.
1455-A-GI
M Ahmedkut1y v. Union of India, [19901 2 SCC I and Shalini Soni v.
Union of India, 119801 4 SCC 544, distinguished.
L MS. Ummu Saleema v. State of West Bengal, [1981] 3 SCC 317, c
referred to.
3.2. The Government should have a clear idea of the nature of
incriminating material against the detenu. If the detention order does not
spell out the details thereof, but only makes a bare reference, the need to D
~
peruse the crucial documents or statements so as to judge the validity of
)
detention does arise; otherwise the Central Government will not be
fulfilling the supervisory re!ponsibility cast on it in the manner expected
of it. [456-B]
3.3 The qu.estion whether there could have been due application of E
mind and proper consideration of representation by the Government in
the absence of crucial documents/translated copies thereof has to be
decided on case to case basis. The approach cannot be abstract and
unrealistic. No inflexible rule of general application can be laid down.
However, if in a given case, the perusal of certain documents becomes F
f
._,o(
necessary, it is no answer to say that the translation involves delay. It is
'
trite to say that where there is reasonable explanation for delay, the
detention does not get invalidated. (456-C-D]
4.1. When the detention order itself makes an elaborate reference
to the statements/letters of the concerned persons which were either relied G
upon or rejected by the detaining authority in the detention order, the
authority exercising the power under Section 11 of CO FE POSA, would,
-\,
in no way be handicapped in dealing with the issue in general and the
representation in particular. (456-G]
4.2. Having regard to the factual situation, it cannot be said that H
442
SUPREME COURT REPORTS
[2004] I S.C.R.
A the Central Government should necessarily have the translated copies of
the documents referred to and relied upon in. the detention order and that
the absence of such documents has vitiated the consideration of the
representation, nor can it be said that there was no application of mind
on the part of the Central Government for the simple reason that the
B translated copies of the documents were not available before it.
1457-B-CI
Per Sinha, J. (dissenting)
I. I. The consideration of the matter on the basis of a report made
C in terms of Section 3(2) of COFEPOSA and on a representation made by
the detenu or on his behalf, bears fundamental difference. Having regard
to the federal structure of our Constitution, the Central Government
exercises its supervisory power only while considering a report in terms
of Section 3(2) of COFEPOSA although the power of detention is
concurrent. However, while exercising its jurisdiction under Section
D 1 l(l)(b) of COFEPOSA, on a representation of the detenu, having regard
to the fundamental right of detenu under Article 22(5) of the Constitution
of India, the probe must the deeper. Whereas the power of supervision is
conferred on the Central Government while passing an order on the basis
>
of a report made under Section 3(2) of COFEPOSA, its function under
Section l l(l)(b) of COFEPOSA while considering a representation is
E wider. The Government is required to determine whether the order of
detention is admissible under law or not. All facts which are relevant for
the purpose of giving relief to the detenu are required to be considered.
In that view of the matter, the quality of an order passed by the Central
Government in terms of Section ll(l)(b) of COFEPOSA cannot be
F different from that of the authority which had passed the order.
1458-D, E, G; 464-H; 465-AI
Kam/esh Kumar lshwardas Pμtel etc. etc. v. Union of India and Ors.,
119951 4 sec 51, referred to.
G
1.2. Section 11 of COFEPOSA confers power upon the statutory
authorities to consider representations for the purpose of grant of relief
and as such there cannot be any justification for placing any limitation
thereupon. It, therefore, must be held that while exercising such a power
the Central Government must have before it the basic, primary and
material documents which are necessary for the purpose of grant of relief
H to the detenu. It may be added that the documents which are not material
(
A.C. RAZIA v.GOVERNMENT OF KERA LA
443
need not be considered. 1465-H; 466-A, Bl
Abdul Sathar Ibrahim Manik etc. v. Union of India and Ors., AIR 119911
SC 2261, referred to.
A
1.3. The contention that the jurisdiction of an authority dealing with
liberty of a citizen and the jurisdiction of an authority in administrative B
matter would be on the same footing may not be correct. Liberty of a
citizen must be protected with deeper consideration than an administrative
order. Any order passed without application of mind will be a nullity.
Thus, the Central Government must be possessed of correct translated
copies of the basic documents at the time of disposal of a representation
under COFEPOSA. 1466-DI
C
2. A right of making representation for revocation of the order of
detention in terms of Section 11 of COFEPOSA is a constitutional right
under Article 22(3) of the Constitution of India. 1462-BI
Amir Shad Khan v. l. Hmingliana and Ors., 1199114SCC39; Razia D
Umar Bakshi (Smt.) v. Union of India and Ors., 119801 Supp. SCC 195; Smt.
Gracy v. State of Kera/a and Anr., 1199112 SCC 1; Kamlesh Kumar Ishwardas
Patel etc. etc. v. Union of India and Ors., [19951 4 SCC 51; John Martin v.
State of West Bengal, 119751 3 SCC 836 and Kundanbhai Dulabhai Shaikh
etc., v. Distt. Magistrate, Ahmedabad and Ors. etc., jl 9961 3 SCC 194,
refurredt~
E
3.1. rt is well settled that the documents on the basis whereof the
detaining authority arrived at his subjective satisfaction must be supplied
to the detenu as on the basis thereof opinion has been formed to the effect
that the order of preventive detention is required to be passed against the
detenu. The detaining authority is, thus, required to supply all documents F
as a part of the ground or pari passu with the ground. The detenu, there
cannot be any doubt whatsoever, has a right to demand copies of the
documents which have not been supplied to him. Such documents can be
subdivided into two parts, namely (a) the documents which had been relied
upon by the detaining authority as forming the basis of detention; (b) G
additional documents which may be required by the detenu to show that
order of preventive detention was unwarranted. If the documents so
supplied are in a language which is unknown to the detenu, the correct
translated copies thereof must be made available to him. Even the copies
of the documents supplied must the legible and complete.
1459-G-H; 460-A-BI H
444
SUPREME COURT REPORTS
[2004] I S.C.R.
A
McNabb v. U.S., 318 US 332; Mohinuddin@ Main Master v. District
Magistrate, Beed and Ors., 1198714SCC58 and Sat Pal v. State of Punjab
and Ors., 1198211 SCC 12, referred to.
3.2. The judicial review of a matter dealing with liberty of a citizen
must receive stricter consideration keeping in view the human rights aspect
B in mind. In a matter of this nature only one question is required to be
asked i.e. "whether translated copies of the primary documents were
before the Central Government,;' and ifthe answer is in the negative; the
order of detention must be quashed. The court exercising its power of
judicial review would not embark into any other question nor would it
C itself examine the matter for the purpose of ascertaining as to whether
there has been substantial compliance of constitutional requirements.
1469-A-BI
D
E
International Transport Roth GmbH v. Secretat)' of State for the Home
Department, (2002) 3 WLR 344, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 53
of 2004.
From the Judgment and Order dated 29.11.2002 of the Kerala High
Court in O.P. No. 21952 of 2002(S ).
WITH
W.P. (Crl.) No. 6 of 2003.
B. Kumar, P.P. Malhotra, T.L. V. Iyer, P.K. Manohar, Ms. Pinky Anand,
F B.K. Prasad, Rajeev Sharma and K.R. Sasiprabhu, John Mathew for the
t
(
appearing parties.
>-. ,
The following Judgments of the Court was delivered by
P. VENKATARAMA REDDI, J. Leave granted in S.L.P.(crl.) No.
G 153 of 2003.
Questioning the detention of the petitioner's husband by name, P. Mohd.
Kutty under the provisions of Conservation of Foreign Exchange and
t
,
Prevention of Smuggling Activities Act (COFEPOSA}, Writ Petition (Crl.)
No.6 of 2003 has been filed by her praying for the issuance of a writ of
H habeas corpus. The detention order was also challenged in the High Court of
A.C. RAZIA v GOVERNMENT OF KERALA [P. VENKATARAMA REDDL J.] 445
~
Kerala by way of a petition filed under Article 226. The Writ Petition was A
dismissed on 29.11.2002. The said judgment has been challenged in the
Special Leave Petition. The Special Leave Petition came up for hearing before
a bench consisting of Rajendra Babu, J. and G.P. Mathur, J. Rajendra Babu,
J. allowed the writ petition by quashing the order of detention. However,
Mathur, J. held that the writ petition and the SLP were liable to be dismissed. B
In view of this difference of opinion, the matter has been placed before this
"y
three Judge Bench.
On 24.12.2000 the baggage of one Anodiyil Mammu, who was waiting
to take the flight to Dubai, was inspected at Trivandrum International Airport.
He is related to the detenu. On such inspection, foreign currencies were c
found in a brief case and various other articles which he was carrying. Some
of the foreign currency notes were concealed in a cardboard carton. The
foreign currency was seized and the statement of Mr. Mammu was recorded
under Section I 08 of the Customs Act. He stated that the foreign currency
was entrusted to him by P. Mohd. Kutty i.e. the detenu for conveying it to D
Dubai and handing it over to one Shafeek for which he was to be paid some
remuneration. He gave various details as to how and from where he got the
carton and foreign currency. On the same day and the next day, the statements
of Mohd. Kutty, the detenu and various other persons, who were directly or
indirectly involved in this operation, were recorded under Section I 08 of the
Customs Act and they were substantially in conformity with the version of E
A. Mammu. Initially, Mohd. Kutty confessed to his involvement. However,
the statements were retracted later on. Anodiyil Mammu claimed the ownership
...
of foreign currency in his representation dated 15.01.2001 and thus retracted
from earlier statement. On the basis of the information together with the
supporting material received from the Directorate of Revenue (Intelligence), F
the order of detention was passed by the Government of Kerala (Home
~ ~
Department) on 19.4.200 I. However, the detenu could only be arrested on
24.6.2002. The detenu was served with the order and grounds of detention
together with the copies of various documents referred to in the grounds. The
representation addressed to the detaining authority was sent by the detenu's
wife on 13.7.2002 and the same was rejected by the State Government. The G
representation addressed to the Central Government was also rejected on
29.7.2002. The case of the detenu was referred to the Advisory Board and on
the basis of the report received, the Government confirmed the detention
order on 6.9.2002. At that stage the writ petition under Article 226 was filed
in the Kerala High Court ch~llenging the detention.
H
446
SUPREME COURT REPORTS
(2004] I S.C.R.
A
The only point raised in the course of the arguments in the High Court
was that the documents furnished to the detenu were not translated into
Malayalam on account of which he was unable to make proper representation
against his detention. This contention was rejected by the Division Bench of
the High Court, relying on the averm:nts in the counter-affidavit filed by the
B State. The High Court referred to the fact that the documents duly translated
into Malayalam were in fact furnished to the detenu and he acknowledged
the same on 24.6.2002. The High Court also observed that the detenu was
familiar with the English language. The contention, which was rejected by
the High Court, has not been reiterated before this Court. However, the only
contention urged is that the disposal of the representation by the Central
C Government was not proper. As many of the crucial documents were in
Malayalam, the officials of the Central Government who dealt with the case
being unacquainted with Malayalam language, should have called for translated
copies of the documents. The authorities of Central Government would not
have, therefore, perused the relevant documents and in this sense there was
no proper application of mind. It is submitted that the improper disposal of
D the representation has vitiated the detention and the continued detention is
violative of Articles 21 and 22 of the Constitution.
Rajenclra Babu, 1. was of the view that for a proper consideration by
the Central Government, there shall be full and independent application of
E mind on the representation and on all the documents which formed the basis
of detention order. The grounds of detention and the documents upon which
it is based should be 'strictly scrutinized'. For this purpose, the necessary
docu.ments should be translated into the language which could be understood
by the concerned official without which full and independent application of
mind cannot be ensured. Since the detaining authority had not placed the
F representation and the alleged documents in a translated form before the
(
Central Government, the appellant's representation was not properly evaluated
).., ,
and therefore the guarantee under Article 22(5) was violated.
G.P. Mathur, J. observed that the power under Section 11 to revoke the
order of detention is some kind of a supervisory power. If so, while considering
G the representation, it is not necessary for the Central Government to look into
and thoroughly examine all those documents which have been supplied to the
detenu along with grounds of detention. The principle that the documents
which are not material and to which only casual reference was made in the
grounds need not be supplied to the detenu will equally apply in the matter
H of consideration of representation by the Central Government. Basically, the
-1' .
A.C. RAZIA v.GOVERNMENTOF KERALA [P. VENKATARAMA REDD!. J.J 447
Central Government is required to examine· the pleas raised by the detenu in A
his representation and in the present case the detenu hardly raised any specific
plea which would require perusal and examination of the document copies of
which were supplied to the detenu. If the translation is to be insisted, it would
often lead to delay and that itself may become a ground· to invalidate the
1 detention.
The only question on which the arguments have been addressed before
us is whether there could be due application of mind on the part of the
Central Government and proper disposal of the representation in the absence
B
of English translated copies of documents relied on in the detention order?
Though the answer to this question lies in a narrow compass, arguments on C
certain wider issues were addressed before us, keeping in view the differing
view-points expressed by the two Hon'ble Judges. The questions debated
relate to the ambit of the guarantee incorporated in Article 22(5) vis-a-vis the
consideration of representation by the Central Government and the nature
and extent of power under Section 11 ·of COFEPOSA Act. We have felt that
it is desirable to marshal the thoughts on the subject and restate the principles D
with clarity. Hence, this wider discussion.
The law of preventive detention is a drastic law as it authorizes detention
without trial in a court of law and is an encroachment on the liberty of an
individual which is a cherished freedom under our Constitution. At the same
time, the need for such law in larger public or national interest has been E
recognized by the Constitution. In order to mitigate the rigour of the law,
certain minimum safeguards have been provided in the Constitution in order
to ensure that there is no unjustified detention and the detention should not
continue unnecessarily. The preventive detention laws such as the COFEPOSA
Act, with which we are concerned, apart from ensuring the minimum F
safeguards expressly mandated by the Constitution, have supplemented to
these safeguards especially by making provisions enabling scrutiny and review·
of detention order by more than one authority on the representation of the
detenu or otherwise. By judicial interpretation, some more ancillary safeguards
to effectuate the constitutional guarantees flowing from Articles 21 and 22
have been carved out.
G
The twin constitutional safeguards related to preventive detention are
enshrined in clauses (4) and (5) of Article 22. Clause (4) prescribes a ban on
the law authorising preventive detention for a period longer than 3 months
unless the Advisory Board reports before the expiration of a period of 3
months that in its opinion there is sufficient cause for such detention. This I-I
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A is 'however subject to the exception laid down in sub-Clause (a) cif Article
22(7). The Advisory Board is composed of persons who are, or have been or
are qualified to be Judges of the High Court. The proviso to Clause (4)
further mandates that the detention cannot extend beyond the maximum period
prescribed by a law made by the Parliament vide clause (7) of Article 22.
B
We are concerned here with clause (5) of Article 22. The dual rights
under clause -(5) are : (i) the right to be informed as soon as may be of the
grounds on which the order has been made, that is to say, the grounds on
which the subjective satisfaction has been formed by the detaining authority
and (ii) the right to be afforded the earliest opportunity of making a
C representation against the order of detention. By judicial craftsmanship certain
anciilary and concomitant rights have been read into this Article so as to
effectuate the guarantees/safeguards envisaged by the Constitution under
Clause (5) of Article 22. For instance, it has been laid down by this Court
that the grounds of detention together with the supporting documents should
be made available to the detenu in a language known to the detenu. The duty
D to apprise the detenu of the right to make representation to one or more
authorities who have power to reconsider or revoke the detention has been
cast on the detaining authority. So also the duty to consider the representation
(
filed by or on behalf of the detenu with reasonable expedition has been
emphasized in more than one case and where there was inordinate delay in
E the disposal of representation, the detention was set aside on that very ground.
In COFEPOSA Act and cognate Acts, we find an array of statutory
safeguards with regard to detention "in tune with the constitutional
requirements"'.
F
Sub-section (2) of Section 3 of COFEPOSA Act casts an obligation on
the State Government to forward to the Central Government within I 0 days
)"; •
the report in respect of the detention order. It is obvious that this provision
is meant to enable the Central Government to address itself to the issue of
detention at the earliest opportunity and to intervene in appropriate cases by
exercising its power of revocation under Section 11. Section 3(3) of the Act
G provides that the grounds of detention shall be furnished ordinarily not later
than 5 days after the detention. Section 8 provides for constitution of Advisory
Board, the procedure to be followed by the Board and the action to be taken
by the Government on receipt of the opinion of the Board. Section 10
prescribes the maximum period of detention which is one year or two years,
H I.
Sec para 8 of[l991] 4 sec 476, K.Al Abdulla Kunhi v. UO.I.
A.C. RAZIA v.GOVERNMENTOF KERALA [P. VENKATARAMA REDDI. J.] 449
depending on the applicability of Section 9. Section 11 empowers the State A
Government or the Central Government, as the case may be, to revoke the
detention order without prejudice to the power of the detaining authority to
rescind the same under Section 21 of the General Clauses Act.
The combined effect of the constitutional and statutory provisions from
the point of view of the detenu's right to make the representation is to B
provide more than one forum to re-examine or review the case of the detenu
and to afford him various means of redressal of his grievance. Thus, the
maner could be examined by (i) the Advisory Board, (ii) the detaining authority
and (iii) the State or Central Governments acting under Section 11 or on
receipt of Advisory Board's opinion. This is apart from the power of the C
Central Government to examine the validity of detention acting suo motu on
receipt of report under Section 3(2). Under Section 11 which is of immediate
relevance in the present case, the Central Government has the power to
revoke the orders made by (i) the State Government, (ii) an officer specially
empowered by the State Government and (iii) an officer specially empowered
by the Central Government. The order passed by an officer specially D
empowered by a State Government can be revoked by the State Government
as well. "The conferment of this power on the Central and the State
Governments does not, however, detract from the power that is available to
the authority that has made the order of detention to revoke it". This is
ensured by the words "without prejudice to the provisions of Section 21 of E
the General Clauses Act" in sub-section (I) of Section 11 (vide observations
of the Constitution Bench in paragraph 22 in the case of Kamlesh Kumar v.
Union of India, [ 1995] 4 SCC 51.
Whether the right to make a representation to the State or the Central
Government under Section 11 becomes an integral part of Article 22(5) or it F
remains to be a statutory safeguard only is the next aspect which merits
discussion. Clause (5) of Article 22 does not, in express tem1s, spell out the
authority to whom the representation has to be made. Does it contemplate the
representation being made to and cons.idered by the detaining authority?
Doubts in this respect have been cleared by the Constitution Bench in Kam/esh
Kumar's case (supra) which is also a case arising under COFEPOSA Act. In G
that case, the stand taken by the Union of India speaking through Additional
Solicitor General was that the use of the word 'a' in singular indicates that
only one representation is to be made and that representation is meant to be
placed before the Advisory Board which is the only authority contemplated
under the Constitution to consider such a representation. This contention was H
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[2004] I S.C.R.
A unhesitatingly rejected by the Court and it was observed that if such a restricted
interpretation is to be given to the expression "making a representation against
the order", the guarantee under clause (5) of Article 22 may be rendered
nugatory. The Constitution Bench, having noted that Article 22(5) does not
specify the authority to whom the representation is to be made, ruled thus :
B
c
D
"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 recognized 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 representaiion can be
made to any other authority which is empowered by law to revoke
the order of detention."
Adverting to the cases beginning with S.K. Abdul Karim, (1969) l SCC
433 in which it was held that the representation should be considered by the
State Government it was explained that all those cases related to orders of
E detention made by the District Magistrate under the Preventive Detention Act
which specifically provides in Section 7( 1) that the authority making the
order of detention shall afford to the person detained the earliest opportunity
of making a representation against the order to the 'appropriate government'.
It was observed that in those cases, the court was not required to consider
)I.
F whether the detaining authority should also consider the representation.
However, it was noticed that in Pankaj Kumar Chakrabarty v. State of W.B.,
)';
[ 1969] 3 SCC 400, the Constitution Bench did say that the detaining authority
must consider the representation when so made. Approving the majority view
taken in Amir Shad Khan v. l. Hmingliana, (1991] 4 SCC 39, the legal
position as to the content of the right under Article 22(5) in the context of
G the opportunity to make representation has been succinctly stated thus in
Kamlesh Kumar:
"A11icle 22(5) must, therefore, be construed to mean that the person
/
detained has a right to make a representation against the order of
H •emphasis supplied
\
~(
)
\
A.C. RAZIA v.GOVERNMENT OF KERALA [P. VENKATARAMA REDDI, J.) 45 J
detention which can be made not only to the Advisory Board but also A
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 B
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."
We get even a clearer idea of the exposition of law in this regard by
referring to the three Judge Bench decision in Amir Shad Khan's case (supra)
which was approvingly cited by the Constitution Bench in Kamlesh Kumar's
case (supra). The following passage makes the legal position clear:
c
"Thus on a conjoint reading of Section 21 of the General Clauses Act D
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 S(f) on the appropriate Government is clearly independent
of this power. It is thus clear that Section S(f) of the Act satisfies the E
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 constitutional requirements and provide for enforcement p
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)."
Again, after referring to the observations in Razia Umar Bakshi v. G
Union of India, [1980) 3 SCR 1398, Ahmadi J. (as he then was) speaking for
the majority observed thus :-
"This observation would show that the power of revocation conferred
by Section 11 of the Act has a nexus with the right of representation
conferred on the detenu by Article 22(5) and, therefore, the State H
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Government when requested to forward a copy of the representation
to the Central Government is under an obligation to do so."
It is interesting to note that Punchi, J., though agreed with the conclusion
of the majority, was not inclined to hold that Section 11 of COFEPOSA Act
was part of the constitutional guarantee under Article 22(5). The learned
B Judge made the following crucial remarks:-
c
"Have Section 11 of the Act repealed, it causes no affectation to the
constitutional guarantee under Article 22(5) of the Constitution.
Correspondingly, Section 11 of the Act derives no sustenance from
the said article. Both operate in mutually exclusive fields, though not
as combatants."
The reasoning of the Constitution Bench in Kamlesh Kumar's case
(supra) proceeded on similar lines as the majority view in Amir Shad Khan's
case (supra).
D
The emerging result of the above discussion is that the additional remedy
or safeguard provided by Section 11 has been projected into the fabric of
Article 22(5) so as to be absorbed into the ambit of safeguard provided by
the latter part of Article 22(5). A provision like Section 11 may or may not
be necessary to give effect to that safeguard, but, once a provision like
E Section 11 finds its place in the detention law, the detenu's constitutional
right to make representation gets amplified. His right extends to making
representations to all those authorities who can grant him relief and the
opportunity afforded to the detenu to submit such representations thus becomes
a part of the guaranteed right under Article 22(5). That is how the ratio of
the above decisions has to be understood. Jn fact, that is how it has been
F understood by the detaining authority in the instant case. We find at the end
of the order a note to the effect that the detenu has the right to make
representations to the detaining authority, the Central Government and
COFEPOSA Advisory Board against the detention.