# ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS

- **Citation:** [2020] 2 S.C.R. 1047
- **Court:** Supreme Court of India
- **Decided:** 2020-03-04
- **Bench:** Uday Umesh Lalit, Indu Malhotra, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ankit-ashok-jalan-v-union-of-india-and-ors-34319
- **Pages:** 70

## Headnote

Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974: s.3(1) - Detention order made under
s.3 by an officer specially empowered for that purpose by the
Government - Whether the representation can independently be
made to and must be considered by the Detaining Authority who is
a special empowered officer of the concerned government and
whether in certain circumstance the Detaining Authority ought to
defer consideration of such representation till the report is received
from the Advisory Board - Held: (Per Majority) Where the detention
order is made inter alia under s.3 by an officer specially empowered
for that purpose either by the Central Government or the State
Government, the person detained has a right to make a
representation to the said officer; and the said officer is obliged to
consider the said representation; and the failure on his part to do
so would result in denial of right conferred on the person detained
to make a representation - A specially empowered officer who passes
the order of detention, in exercise of special empowerment, has no
statutory role to play at the stage when the report is received from
the Advisory Board - The report is to be considered by the
appropriate Government and not by the specially empowered officer
- In terms of s.8, the report of the Advisory Board is meant only for
the consumption of the appropriate Government and apart from the
operative part of the report which is to be specified in a separate
paragraph as per sub-section (c), the mandate in terms of sub-section
(e) is to keep the report of the Advisory Board completely confidential
- Thus, a specially empowered officer who may have passed the
order of detention, by statutory intent is not to be privy to the report
nor does the statute contemplate any role for such specially
empowered officer at the stage of consideration of the opinion of
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the Advisory Board - Thus, the Detaining Authority is obliged to
consider the representation without waiting for the opinion of the
Central Advisory Board - In the instant case, there was no valid
explanation for non-consideration of the representation of detenues
from 27.11.2019 till 14.01.2020 - Therefore, complete inaction on
part of the Detaining Authority in considering the representation
caused prejudice to the detenues and violated their constitutional
rights - Detention orders are quashed - (Dissenting - Per Hemant
Gupta, J.) - s.3 empowers the Central Government, the State
Government or the specially empowered officer to make an order,
directing a person to be detained - Once the detention order has
been made by any of the authorities competent to detain in terms of
s.3(1), the representation to seek revocation of the detention order
can be considered and decided by the Detaining Authority dehors
the decision of the Advisory Board and the acceptance of
recommendation by the appropriate Government - The consideration
for revocation of a detention order is limited to examining whether
the order conforms with the provisions of law whereas the
recommendation of the Advisory Board is on the sufficiency of
material for detention, which alone is either confirmed or not
accepted by the appropriate Government - It would be a matter of
prudence and propriety for the Detaining Authority to defer the
decision on the representation to revoke the detention order, when
the matter is being considered by the Advisory Board, consisting of
three sitting Judges of the High Court - The consideration of the
representation by the Detaining Authority in these circumstances
cannot be said to be delayed as the representation was received
after the matter was referred to the Advisory Board.
Allowing the writ petitions, the Court
HELD:
Per Uday Umesh Lalit, J. (for himself and Indu Malhotra,
J.)
1. Where the detention order is made inter alia under
Section 3 of the COFEPOSA Act by an officer specia

## Text

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ANKIT ASHOK JALAN
v.
UNION OF INDIA AND ORS.
(Writ Petition (Criminal) No. 362 of 2019)
MARCH 04, 2020
[UDAY UMESH LALIT, INDU MALHOTRA
AND HEMANT GUPTA, JJ.]
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974: s.3(1) - Detention order made under
s.3 by an officer specially empowered for that purpose by the
Government - Whether the representation can independently be
made to and must be considered by the Detaining Authority who is
a special empowered officer of the concerned government and
whether in certain circumstance the Detaining Authority ought to
defer consideration of such representation till the report is received
from the Advisory Board - Held: (Per Majority) Where the detention
order is made inter alia under s.3 by an officer specially empowered
for that purpose either by the Central Government or the State
Government, the person detained has a right to make a
representation to the said officer; and the said officer is obliged to
consider the said representation; and the failure on his part to do
so would result in denial of right conferred on the person detained
to make a representation - A specially empowered officer who passes
the order of detention, in exercise of special empowerment, has no
statutory role to play at the stage when the report is received from
the Advisory Board - The report is to be considered by the
appropriate Government and not by the specially empowered officer
- In terms of s.8, the report of the Advisory Board is meant only for
the consumption of the appropriate Government and apart from the
operative part of the report which is to be specified in a separate
paragraph as per sub-section (c), the mandate in terms of sub-section
(e) is to keep the report of the Advisory Board completely confidential
- Thus, a specially empowered officer who may have passed the
order of detention, by statutory intent is not to be privy to the report
nor does the statute contemplate any role for such specially
empowered officer at the stage of consideration of the opinion of
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the Advisory Board - Thus, the Detaining Authority is obliged to
consider the representation without waiting for the opinion of the
Central Advisory Board - In the instant case, there was no valid
explanation for non-consideration of the representation of detenues
from 27.11.2019 till 14.01.2020 - Therefore, complete inaction on
part of the Detaining Authority in considering the representation
caused prejudice to the detenues and violated their constitutional
rights - Detention orders are quashed - (Dissenting - Per Hemant
Gupta, J.) - s.3 empowers the Central Government, the State
Government or the specially empowered officer to make an order,
directing a person to be detained - Once the detention order has
been made by any of the authorities competent to detain in terms of
s.3(1), the representation to seek revocation of the detention order
can be considered and decided by the Detaining Authority dehors
the decision of the Advisory Board and the acceptance of
recommendation by the appropriate Government - The consideration
for revocation of a detention order is limited to examining whether
the order conforms with the provisions of law whereas the
recommendation of the Advisory Board is on the sufficiency of
material for detention, which alone is either confirmed or not
accepted by the appropriate Government - It would be a matter of
prudence and propriety for the Detaining Authority to defer the
decision on the representation to revoke the detention order, when
the matter is being considered by the Advisory Board, consisting of
three sitting Judges of the High Court - The consideration of the
representation by the Detaining Authority in these circumstances
cannot be said to be delayed as the representation was received
after the matter was referred to the Advisory Board.
Allowing the writ petitions, the Court
HELD:
Per Uday Umesh Lalit, J. (for himself and Indu Malhotra,
J.)
1. Where the detention order is made inter alia under
Section 3 of the COFEPOSA Act by an officer specially
empowered for that purpose either by the Central Government
or the State Government, the person detained has a right to make
a representation to the said officer; and the said officer is obliged
to consider the said representation; and the failure on his part to
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do so would result in denial of the right conferred on the person
detained to make a representation. Further, such right of the
detenue has been taken to be in addition to the right to make the
representation to the State Government and the Central
Government. It must be stated that para 12 of the grounds of
detention in the instant case is in tune with the law so declared
by this Court. [Para 12][1079 D-G]
2.1 In Pankaj Kumar Chakrabarty, it was stated that the
obligation on part of the Government to consider representation
would be irrespective whether the representation was made before
or after the case was referred to the Advisory Board. As stated
in paragraph 18, this was stated so, as any delay in consideration
of the representation would not only be an irresponsible act on
part of the appropriate authority but also unconstitutional. The
contingency whether the representations were received before
or after was again considered in para 29 of the decision in
Haradhan Saha. In terms of these principles, the matter of
consideration of representation in the context of reference to
the Advisory Board, can be put in following four categories:-
A) If the representation is received well before the
reference is made to the Advisory Board and can be
considered by the appropriate Government, the
representation must be considered with expedition.
Thereafter the representation along with the decision taken
on the representation shall be forwarded to and must form
part of the documents to be placed before the Advisory
Board.
B) If the representation is received just before the
reference is made to the Advisory Board and there is no
sufficient time to decide the representation, in terms of
law laid down in Jayanarayan Sukul and Haradhan Saha
the representation must be decided first and thereafter the
representation and the decision must be sent to the
Advisory Board. This is premised on the principle that the
consideration by the appropriate Government is completely
independent and also that there ought not to be any delay
in consideration of the representation.
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS.
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C) If the representation is received after the reference is
made but before the matter is decided by the Advisory
Board, according to the principles laid down in Haradhan
Saha, the representation must be decided. The decision as
well as the representation must thereafter be immediately
sent to the Advisory Board.
D) If the representation is received after the decision of
the Advisory Board, the decisions are clear that in such
cases there is no requirement to send the representation
to the Advisory Board. The representation in such cases
must be considered with expedition. [Para 15][1096 B-H;
1097-A]
2.2 There can be no difficulty with regard to the applicability
of the principles in the 1st and the 4th stage of the aforesaid
categories. The difficulty may arise as regards the application of
principles at the 2nd and the 3rd stage. But that difficulty was dealt
with sufficient clarity in Jayanarayan Sukul and Haradhan Saha.
If it is well accepted that the representation must be considered
with utmost expedition; and the power of the Government is
completely independent of the power of the Advisory Board; and
the scope of consideration is also qualitatively different, there is
no reason why the consideration by the Government must await
the decision by the Advisory Board. None of the aforesaid cases
even remotely suggested that the consideration must await till
the report was received from the Advisory Board. However, it
was for the first time that the decision in K.M. Abdulla Kunhi laid
down in paragraph 16 that it would be proper for the Government
in the two situations dealt with in said paragraph to await the
report of the Board; those two situations being:- a) where the
representation is received before the matter is referred to the
Advisory Board and where there may not be sufficient time to
dispose of the representation before referring the case to the
Advisory Board, and b) where the representation is received after
the case is referred to the Advisory Board. It was also laid down:-
"In both the situations there is no question of consideration of
the representation before the receipt of report of the Advisory
Board." Since the decision of this Court in K.M. Abdulla Kunhi
was rendered by the Constitution Bench of this Court after
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considering all the earlier decisions on the point including those
in Pankaj Kumar Chakrabarty, Jayanarayan Sukul and Haradhan
Saha, the principles laid down therein are binding. [Para 16, 17,
18][1097 B-H]
3. In Pankaj Kumar Chakrabarty and in Jayanarayan Sukul,
the orders of detention were passed by the District Magistrates
under Section 3(ii) of 1950 Act. The relevant statutory provisions
contemplated the concept of approval within 12 days of the passing
of such orders of detention passed by the District Magistrates.
In Haradhan Saha power was exercised by the District
Magistrates under the provisions of the MISA, wherein similar
concept of approval on part of the State Government within 12
days of the passing of the order of detention by the District
Magistrate was contemplated. The distinction on that count was
noted by this Court in para 34 of the decision in Kamlesh kumar.
The orders of detention in these decisions were not passed by a
specially empowered officer but by the concerned Government.
The same logic regarding deemed approval was extended initially
in Sushila Mafatlal Shah to cases where the orders of detention
were passed not by the concerned Government but by a specially
empowered officer. The matter was, however, corrected and the
distinction in that behalf was succinctly dealt with in
Kamleshkumar. [Para 20][1098 B-E]
4. It must also be borne in mind that in all cases, the
appropriate Government would be acting in two capacities; one
while considering the representation and the other while taking
appropriate decision after a report is received from the Advisory
Board that there is sufficient cause for detention. Since the
decision would be required to be taken in these two capacities, it
was observed in K.M. Abdulla Kunhi that it would be proper for
the appropriate Government to wait till the report is received
from the Advisory Board. But such may not be the case with the
Detaining Authority who is a specially empowered officer. [Para
21][1098 E-G]
5. A specially empowered officer who passes the order of
detention, in exercise of special empowerment, has no statutory
role to play at the stage when the report is received from the
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Advisory Board. The report is to be considered by the appropriate
Government and not by the specially empowered officer. It may
also be relevant at this stage to consider the element of
confidentiality associated with the report of the Advisory Board.
In terms of Section 8, the report of the Advisory Board is meant
only for the consumption of the appropriate Government and apart
from the operative part of the report which is to be specified in a
separate paragraph as per sub-section (c), the mandate in terms
of sub-section (e) is to keep the report of the Advisory Board
completely confidential. Thus, a specially empowered officer who
may have passed the order of detention, by statutory intent is
not to be privy to the report nor does the statute contemplate
any role for such specially empowered officer at the stage of
consideration of the opinion of the Advisory Board. The report
of the Advisory Board may provide some qualitative inputs for
the appropriate Government but none to the specially empowered
officer who acted as the Detaining Authority. [Paras 22, 23][1098
G-H; 1100 D-F]
6. When K.M. Abdulla Kunhi was decided on 23.01.1991,
the decision that was holding the field as to the role of a specially
empowered officer who had passed an order of detention, was
one rendered in Sushila Mafatlal Shah. The law that was holding
the field was the concept of deemed approval as was explained in
Sushila Mafatlal Shah and any representation made to such
specially empowered officer who had passed the order of
detention, in terms of the decision in Sushila Mafatlal Shah, could
be considered by the appropriate Government itself and not
separately by such specially empowered officer. The subsequent
decision in Amir Shad Khan was rendered by a Bench of three
Judges on 09.08.1991 and the apparent conflict in the decisions
between Sushila Mafatlal Shah and Amir Shad Khan was resolved
by the Constitution Bench of this Court in Kamleshkumar
rendered on 17.04.1995, i.e. well after the decision in K.M. Abdulla
Kunhi. Thus, if the law is now settled that a representation can
be made to the specially empowered officer who had passed the
order of detention in accordance with the power vested in him
and the representation has to be independently considered by
such Detaining Authority, the concerned principles adverted to
in paragraph 16 of the decision in K.M. Abdulla Kunhi would not
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be the governing principles for such specially empowered officer.
It must be stated that the discussion in K.M. Abdulla Kunhi was
purely in the context where the order of detention was passed by
the appropriate Government and not by the specially empowered
officer. The principle laid down in said paragraph 16 has therefore
to be understood in the light of the subsequent decision rendered
by another Constitution Bench of this Court in Kamleshkumar.
The Detaining Authority ought to have considered the
representation independently and without waiting for the report
of the Central Advisory Board. [Paras 24, 25, 26][1100 F-H; 1101
A-F]
7. The facts in the instant case indicate that the comments
of the Sponsoring Authority in respect of the representation were
already received by the Detaining Authority. After receipt of letter
on 27.11.2019 that the detenues were received in custody, the
time for considering the representation started ticking for the
Detaining Authority. But the representation was considered only
on 14.01.2020 and the reason for such delayed consideration is
that the report of the Central Advisory Board was awaited. It is
already held that the Detaining Authority was obliged to consider
the representation without waiting for the opinion of the Central
Advisory Board. Thus, there was no valid explanation for nonconsideration of the representation from 27.11.2019 till
14.01.2020. Therefore, complete inaction on part of the Detaining
Authority in considering the representation caused prejudice to
the detenues and violated their constitutional rights. [Para
26][1101 E-H]
8. There could be clear dichotomy when the representations
are made simultaneously to such specially empowered officer who
had passed the order of detention and to the appropriate
Government. If we go by the principle in paragraph 16 in K.M.
Abdulla Kunhi it would be proper for the appropriate Government
to wait till the report was received from the Advisory Board, while
at the same time the specially empowered officer who had acted
as the Detaining Authority would be obliged to consider the
representation with utmost expedition. At times a single
representation is prepared with copies to the Detaining Authority
namely the specially empowered officer and to the appropriate
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Government as well as to the Advisory Board. In such situations
there will be incongruity as stated above, which may be required
to be corrected at some stage. However, such difficulty or
inconsistency cannot be the basis for holding that a specially
empowered officer while acting as a Detaining Authority would
also be governed by the same principles as laid down in paragraph
16 of K.M. Abdulla Kunhi. [Para 27][1102 A-D]
9. Since there was complete inaction on part of the Detaining
Authority in the present case, to whom a representation was
addressed in dealing with the representation in above manner,
the constitutional rights of the detenues were violated and the
detenues are entitled to redressal on that count. Therefore, the
continued detention of the detenues in terms of the Detention
Orders is held illegal, invalid and unconstitutional. [Para 28][1102
D-F]
K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union
of India and others (1991) 1 SCC 476 : [1991] 1 SCR
102 - held inapplicable
Golam Biswas v. Union of India and Another (2015) 16
SCC 177; Ibrahim Bachu Bafan v. State of Gujarat and
others (1985) 2 SCC 24 : [1985] 2 SCR 891; State of
Maharashtra and another v. Smt. Sushila Mafatlal Shah
and others (1988) 4 SCC 490 : [1988] 2 Suppl. SCR
827; Amir Shad Khan v. L. Hmingliana and others
(1991) 4 SCC 39 : [1991] 3 SCR 443; Kamleshkumar
Ishwardas Patel vs. Union of India and others [1951]
SCR 167; Pankaj Kumar Chakrabarty and others v.
The State of West Bengal (1969) 3 SCC 400 : [1970] 1
SCR 543; Frances Coralie Mullin v. W.C. Khambra
(1980) 2 SCC 275 : [1980] 2 SCR 1095; Jayanarayan
Sukul (1970) 1 SCC 219 : [1970] 3 SCR 225; Haradhan
Saha v. The State of West Bengal and others (1975) 3
SCC 198 : [1975] 1 SCR 778 - referred to
Per Hemant Gupta, J. (Dissenting)
1. Section 3 of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 empowers the
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Central Government, the State Government or the specially
empowered Officer of the rank not below the rank of the Joint
Secretary of the Central Government or Secretary of the State
Government, to make an order, directing a person to be detained.
The Detaining Authority has jurisdiction to revoke the detention
order in view of Section 21 of the General Clauses Act, 1897,
whereas, an appropriate Government passes an order of
revocation of detention or confirmation of the order of detention
on receipt of the report of the Advisory Board. The consideration
for the Detaining Authority for revocation, is to see whether the
detention order is in conformity with the power under law
whereas, the Advisory Board considers the representation to
examine whether there is sufficient cause for detention. The
consideration of the Advisory Board is an additional safeguard
and not a substitute for the consideration of the representation
by the appropriate Government. [Para 3][1103 B-E]
2.The first part of the consideration of representation, as
to whether the order of detention is in conformity with power
under the law, does not make a distinction as to whether the
Detaining Authority is the Central or State Government or a
specially empowered Officer in that behalf. The consideration
for detention by the Detaining Authority is confined to examining
whether the order of detention is in conformity with the power
under the law. On the other hand, the Advisory Board examines
if there is sufficient cause for detention. The exercise of
jurisdiction by the Government, whilst dealing with the
representation as a detaining authority and whilst considering
the Advisory Board's recommendation, is in two separate and
distinct spheres. [Para 4][1103 E-H; 1104 A]
3. In view of K. M. Abdulla Kunhi, once the detention order
has been made by any of the authorities competent to detain in
terms of Section 3 (1) of the COFEPOSA Act, the representation
to seek revocation of the detention order can be considered and
decided by the Detaining Authority dehors the decision of the
Advisory Board and the acceptance of recommendation by the
appropriate Government. The consideration for revocation of a
detention order is limited to examining whether the order
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conforms with the provisions of law whereas the recommendation
of the Advisory Board is on the sufficiency of material for
detention, which alone is either confirmed or not accepted by the
appropriate Government. [Para 22][1115 E-G]
4. It is a matter of prudence and propriety for the Detaining
Authority to defer the decision on the representation to revoke
the detention order, when the matter is being considered by the
Advisory Board, consisting of three sitting Judges of the High
Court.The consideration of the representation by the Detaining
Authority in these circumstances cannot be said to be delayed as
the representation was received after the matter was referred to
the Advisory Board. [Para 23][1115-G; 1116-A]
K. M. Abdulla Kunhi and B.L. Abdul Khader v. Union
of India and Others (1991) 1 SCC 476 : [1991] 1 SCR
102 - relied on
Jayanarayan Sukul v. State of West Bengal (1970) 1
SCC 219 : [1970] 3 SCR 225; Vimalchand Jawantraj
Jain v. Shri Pradhan and Others (1979) 4 SCC 401 :
[1979] 3 SCR 1007; Khairul Haque v. The State of W.B.
W.P. No. 246 of 1969 decided on 10-9-69; Frances
Coralie Mullin v. W.C. Khambra and Others (1980) 2
SCC 275 : [1980] 2 SCR 1095; Om Prakash Bahl v.
Union of India W.P. NO. 845 of 1979 decided on
October 15, 1979; Kamleshkumar Ishwardas Patel v.
Union of India and Others (1995) 4 SCC 51 : [1995] 3
SCR 279; State of Maharashtra & Anr. v. Sushila
Mafatlal Shah and others (1988) 4 SCC 490 : [1988] 2
Suppl. SCR 827; Amir Shad Khan v. L. Hmingliana and
Others (1991) 4 SCC 39 : [1991] 3 SCR 443; Golam
Biswas v. Union of India and Another (2015) 16 SCC
177 - referred to
Case Law Reference
Per Uday Umesh Lalit, J.
(2015) 16 SCC 177
referred to
Para 4
[1991] 1 SCR 102
held inapplicable
Para 4
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[1985] 2 SCR 891
referred to
Para 11
[1988] 2 Suppl. SCR 827
referred to
Para 11
[1991] 3 SCR 443
referred to
Para 11
[1995] 3 SCR 279
referred to
Para 11
[1951] SCR 167
referred to
Para 11
[1970] 1 SCR 543
referred to
Para 13
[1980] 2 SCR 1095
referred to
Para 13
[1970] 3 SCR 225
referred to
Para 13
[1975] 1 SCR 778
referred to
Para 13
Per Hemant Gupta, J.
[1991] 1 SCR 102
relied on
Para 2
[1970] 3 SCR 225
referred to
Para 5
[1979] 3 SCR 1007
referred to
Para 7
[1980] 2 SCR 1095
referred to
Para 10
[1995] 3 SCR 279
referred to
Para 16
[1988] 2 Suppl. SCR 827
referred to
Para 16
[1991] 3 SCR 443
referred to
Para 16
(2015) 16 SCC 177
referred to
Para 20
CRIMINAL ORIGINAL JURISDICTION: Writ Petiton
(Criminal) No.362 of 2019.
[Under Article 32 of the Consitution of India]
Mukul Rohatgi, Neeraj Kishan Kaul, Sr. Advs., Saurabh Kirpal,
Sanjay Agarwal, Karan Bharioke, Nikhil Rohatgi, Ashish Batra, Sarthak
Sachdev, Watan Sharma, Amit K. Nain, Advs. for the Petitioner.
K. M. Nataraj, ASG, Sharath Nambiar, Kanu Agarwal, Vinayak
Sharma, Shreekanth P.S., Ms. Priyanka S. Bhat, B. Krishna Prasad,
Advs. for the Respondents.
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS.
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 The Judgments* of the Court were delivered by
UDAY UMESH LALIT, J.
1. This petition under Article 32 of the Constitution of India prays
for quashing of the Detention Orders1 dated 01.07.2019and for a direction
that the detenues be set at liberty.
2. The facts leading to the filing of this petition, in brief, are as
under:
(a) On 01.07.2019, Joint Secretary to the Government of India,
specially empowered under Section 3(1) of the COFEPOSA Act2 passed
the Detention Orders after being satisfied that with a view to prevent
the detenues from smuggling goods, abetting the smuggling of goods,
and dealing in smuggled goods otherwise than by engaging in transporting
or concealing or keeping smuggled goods, in future, it was necessary to
make the said Detentions Orders.
b) The detenues were served with the Detention Orders, the
grounds of detention andthe relied upon documents on 02.07.2019. The
grounds of detention, in para 12, recited as under:-
"You ........... have the right to represent against your detention
to the Detaining Authority, to the Central Government as well as
to the Advisory Board. If you wish to avail this right, you should
send your representation through the Jail Authorities where you
are detained, in the manner indicated below:
(a) Representation meant for the Detaining Authority should
be addressed to the Joint Secretary (COFEPOSA),
Government of India, Ministry of Finance, Department of
Revenue, Central Economic Intelligence Bureau, 6th Floor,
B-Wing, Janpath Bhawan, New Delhi-110001.
(b) Representation meant for the Central Government should
be addressed to the Director General, Central Economic
Intelligence Bureau, Government of India, Ministry of
Finance, Department of Revenue, 6th Floor, B-Wing,
Janpath Bhawan, New Delhi-110001.
1 Nos.PD-12001/34/2019-COFEPOSA and PD-12001/35/2019-COFEPOSA, both
dated 01.07.2019, issued by the Respondent No.2 against Shri Ashok Kumar Jalan and
Shri Amit Jalan respectively
2 The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974
*Ed. Note : One Judgment delivered by Uday Umesh Lalit, J. (for himself and Indu
Malhotra, J.). The other Judgment delivered by Hemant Gupta, J.
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(c) Representation meant for the Advisory Board should be
addressed to the Chairman, COFEPOSA Advisory Board,
Delhi High Court, Sher Shah Road, New Delhi-110002.
(c) On 18.07.2019 the cases of the detenues were referred to
the Central Advisory Board3 along with the grounds of detention and
relied upon documents.
(d) On 22.07.2019 representation dated 17.07.2019 made on behalf
of both the detenues, addressed to the Joint Secretary (COFEPOSA),
Government of India, Ministry of Finance, Department of Revenue was
received through the Presidency Correctional Home, Alipore, Kolkata.
The representation stated inter alia:-
"9....(iii) To enable me to make an effective representation at the
earliest opportunity, I may please be forthwith provided witha)
a copy of the Retraction Petition of Shri Anand stated to be
relied upon in the grounds of detention;
b)
a copy of the pen-drive or CD/DVD of the CCTV footage
directed by the CMM to be submitted on 18th June, 2019 may
please be provided to me and may please be shown to me on
a laptop or any other device.
10. Kindly note that unless the aforesaid prayers are considered
expeditiously, I am unable to make my final representation to the
Central Government and the Advisory Board, etc. Therefore, the
instant representation may please be considered as expeditiously
as possible in true spirit of Article 22(5) read with Articles 14 &
21 of the Constitution of India."
(e) On 24.07.2019, the representation was forwarded to the
Sponsoring Authority, namely, DRI, Kolkata for its comments which were
received on 29.07.2019. Said representation as well as the para-wise
comments received from the Sponsoring Authority were forwarded
on31.07.2019 to the Central Advisory Board. The meeting of the Central
Advisory Board was scheduled to be held on 02.08.2019.
(f) On 02.08.2019 itself, Writ Petition No.1840 of 2019 preferred
on behalf of the detenues was allowed by the High Court4 on the grounds
that when the detenues were in judicial custody and there was no
3 The Central Advisory Board, Delhi High Court, New Delhi
4 The High Court of Delhi at New Delhi
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS.
[UDAY UMESH LALIT, J.]
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[2020] 2 S.C.R.
imminent possibility of their release on bail and when not even a bail
application was preferred by them, the power of preventive detention
ought not to have been exercised; and, that non-placement of relevant
material in the form of retraction petition of one Shri Anand and its nonconsideration by the Detaining Authority vitiated the Detention Orders.
The High Court thus quashed the Detention Orders and directed that
the detenues be released forthwith.
(g) In its Meeting dated 02.08.2019, the Central Advisory Board
recorded that since the Detention Orders were quashed, there was no
possibility of proceeding further in the matter.
(h) The decision of the High Court was challenged in Criminal
Appeal No.1746 of 2019 in this Court, which by its Judgment and order
dated 22.11.2019 set aside the view taken by the High Court. While
allowing the appeal, the detenues were directed to be taken into custody
forthwith. The Detaining Authority was thereafter informed by the Jail
Superintendent on 27.11.2019 that the detenues were received in custody
in pursuance of the decision of this Court.
(i) On 02.12.2019 a direction was issued to process the files of
the detenues for reference to the Central Advisory Board. After obtaining
appropriate approval, the case was referred to the Central Advisory
Board on 05.12.2019 stating inter alia:-
"Keeping in view the judgment dated 03.06.2015 of the Apex
Court delivered in Crl.Appeal No.829 of 2015 arising out of
SLP(Crl) No.2489 of 2015 - Golam Biswas v. Union of India, the
said representations will be considered for disposal by the
competent authority only after receipt of opinion of the Hon'ble
Board."
3. The instant writ petition was filed on or about 16th December,
2019 challenging the stand taken in the communication dated 05.12.2019
that the representation would be considered only after the receipt of the
opinion of the Central Advisory Board. It was submitted that the
representation ought to be considered independently by the Detaining
Authority and without waiting for the report of the Central Advisory
Board; and that the delay in consideration of such representation violated
the rights of the detenues guaranteed by the Constitution of India. Soon
thereafter, another representation reiterating the stand as aforesaid was
made by the Advocate for the detenues on 18.12.2019.
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4. On 18.12.2019 notice was issued by this Court,whereafter, an
affidavit in reply was filed on behalf of the respondents stating inter
alia:-
(a) On 06.01.2020 a report was submitted by the Central Advisory
Board that there was sufficient cause for the detention of the
detenues.
(b) After considering the report of the Central Advisory Board
and the other material on record, the Central Government
confirmed the Detention Ordersvideproceedings dated 14.01.2020.
(c) On the same date i.e. 14.01.2020 the Detaining Authority,
namely, Joint Secretary (COFEPOSA) rejected the representations
dated 17.07.2019 and 18.12.2019 made on behalf of the detenues.
After referring to the decisions of this court in Golam Biswas v.
Union of India and Another5 and K.M. Abdulla Kunhi and B.L.
Abdul Khader v. Union of India and others6 it was stated that the
representations were considered only after the receipt of the opinion of
the Central Advisory Board dated 06.01.2020.
5. We heard Mr. Mukul Rohatgi and Mr. Neeraj KishanKaul,
learned Senior Advocates in support of the petition and Mr. K.M. Nataraj,
learned Advocate Solicitor General for the respondents.
6. The learned Counsel for the petitioner accepted that by the
time representation dated 17.07.2019 was received by the Detaining
Authority, the matter was referred to the Central Advisory Board and
since the Detention Orders were set aside by the High Court on
02.08.2019, the non-consideration of the representation till 02.08.2019,
in the facts of the instant case, would not be of any significance.However,
in their submission, after the decision of the High Court was set aside by
this Court and the detenues were taken back in custody in November,
2019, the non-consideration of and delay in disposal of said representation
wasmore pronounced and relevant. It was submitted:-
(a) A representation against an order of detention can be made to
the Detaining Authority where the detention order has been passed
by a specially empowered officer of the Central Government as
well as to the Central Government and the Central Advisory Board.
5 (2015) 16 SCC 177
6 (1991) 1 SCC 476
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS.
[UDAY UMESH LALIT, J.]
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Para 12 of the grounds of detention, as extracted earlier, was in
keeping with this well accepted principle.
(b) The representation made to the Detaining Authority had to be
considered by the Detaining Authority independently. The
Detaining Authority was not right in waiting till the receipt of the
report of the Central Advisory Board.
(c) The consequential delay on part of the Detaining Authority in
considering the representation thus violated the constitutional rights
of the detenues.
7. On the other hand, Mr. K.M. Nataraj, learned Additional Solicitor
General, for the respondents relied upon the decisions of this Court in
Golam Biswas5 and in K.M. Abdulla Kunhi6 to submit that while the
matter was pending consideration before the Central Advisory Board,
the representation in question could not be considered and it could be
considered only after the receipt of the report of the Central Advisory
Board.
8. In the instant case, the facts are clear that:-
a) The Detaining Authority received a letter on 27.11.2019 that
the detenues were received in custody. Thereafter the matter
was again referred by the Central Government to the Central
Advisory Board on 05.12.2019. The communication shows that
it was decided that the representations would be considered
only after receipt of the opinion of the Central Advisory Board.
b) The opinion of the Central Advisory Board was submitted on
06.01.2020. On 14.01.2020 the Central Government confirmed
the Detention Orders and on the same date the Detaining
Authority rejected the representations.
9. Following questions thereforearise:-
i) Whether the Detaining Authority was justified in deferring the
consideration of the representation till the receipt of the opinion
of the Central Advisory Board?
ii) Whether the Detaining Authority ought to have considered the
representation independently and without waiting for the report
of the Central Advisory Board?
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iii) If the answer to the second question is yes, whether the time
taken by the Detaining Authority from 27.11.2019 till 14.01.2020
could be characterised as undue and avoidable delay violating
the constitutional rights of the detenues?
10. The learned counsel appearing for the parties placed for our
consideration various decisions of this Court touching upon the aforesaid
first two questions. We may broadly consider those decisions for
answering the questions from two perspectives:-
First, on the issue whether a representation can independently be
made to and must be considered by the Detaining Authority, who is a
specially empowered officer of the concerned Government.
Secondly, whether, in certain circumstances, the Detaining
Authority ought to defer consideration of such representation till the
report is received from the Advisory Board.
11. As regards the first issue, following decisions are noteworthy:-
A) In Ibrahim BachuBafan vs. State of Gujarat and others7
a Bench of three Judges of this Court, while considering
the scope of Section 11 of the COFEPOSA Act and Section
21 of 1897 Act8,made following observations:-
"7........ The heading of Section 11 is "Revocation of
Detention Orders". Sub-section (1) authorises revocation
by two authorities, namely, - (a) if the order has been
made by an officer of a State Government, the State
Government or the Central Government may revoke the
order; and (b) if the order has been made by an officer of
the Central Government or by a State Government,
revocation is permissible by the Central Government. Subsection (1) of Section 11 indicates that the power conferred
under it in the situations envisaged in Clauses (a) and (b) is
exercisable without prejudice to the provisions of Section
21 of the General Clauses Act. That section provides that a
power to issue orders includes a power exercisable in the
like manner and subject to the like sanction and conditions,
if any, to add, to amend, vary or rescind such orders. Under
7 (1985) 2 SCC 24
8 The General Clauses Act, 1897
ANKIT ASHOK JALAN v. UNION OF INDIA AND ORS.
[UDAY UMESH LALIT, J.]
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Section 21 of the General Clauses Act, therefore, the
authority making an order of detention would be entitled to
revoke that order by rescinding it. We agree with the
submission of Mr Jethmalani that the words "without
prejudice to the provisions of Section 21 of the General
clauses Act 1897" used in Section 11(1) of the Act give
expression to the legislative intention that without affecting
that right which the authority making the order enjoys under
Section 21 of the General Clauses Act, an order of detention
is also available to be revoked or modified by authorities
named in clauses (a) and (b) of Section 11(1) of the Act.
Power conferred under clauses (a) and (b) of Section 11(1)
of the Act could not be exercised by the named authorities
under Section 21 of the General Clauses Act as these
authorities on whom such power has been conferred under
the Act are different from those who made the orders.
Therefore, conferment of such power was necessary as
Parliament rightly found that Section 21 of the General
Clauses Act was not adequate to meet the situation. Thus,
while not affecting in any manner and expressly preserving
the power under Section 21 of the General Clauses Act of
the original authority making the order, power to revoke or
modify has been conferred on the named authorities."
It was, thus, accepted that by virtue of Section 21 of 1897 Act,
theauthority making an order of detention would be entitled to
revoke that order by rescinding it and that conferment of power under
Section 11 of the COFEPOSA Act was done without affecting in any
manner and expressly preserving the power under Section 21of 1897
Actof the original authority making the order.
B) A Bench of two Judges of this Court in State of
Maharashtra and another vs. Smt. Sushila Mafatlal
Shah and others9 took a slightly different view. This Court
framed following questions in para 11:-
"11. .........
(1) Does an order passed by an officer of the State
Government or the Central Government, specially
9 (1988) 4 SCC 490
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empowered for the purposes of Section 3(1) by the
respective government, make him the detaining
authority and not the State Government or the Central
Government as the case may be, and obligate him to
inform the detenu that he has a threefold opportunity to
make his representations i.e.