# y • • • VIMAL CHAND JAWANTRAJ JAIN v. SHRI PRADHAN AND ORS

- **Citation:** [1979] 3 S.C.R. 1007
- **Court:** Supreme Court of India
- **Decided:** 1979-05-04
- **Case number:** Writ Petition No. 146 of 1979
- **Bench:** P. N. Bhagwati, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/y-vimal-chand-jawantraj-jain-v-shri-pradhan-and-ors-7728
- **Pages:** 7

## Headnote

Conservation of Forei,::11 Exchange and Prevention of Sn1ug1-Jing Actil'ities
Act, 1974 (Act 52 of 1974)-Representation of the petitioner not considered
by the State Govenunent-Confinning the detention order 011 the basi,r of the
Advisory Bot1rd's report is int·a[id being in contravention of Article 22(5) of
A
the Constitu!ion-Subsieque11t consideration and rejection of the repre,~entation
C
could not cure the itn·alidity of confirn1ation of detention.
The detenu under the COFEPOSA challenged the orders detaining him as
violative of Art. 22(5) of the Constitution on the ground that his representa·
tion was neither considered nor disposed of by the Secretary to the Government
of Maharashtra, though the latter intimated by his letter dated 22nd December
1978, that the issue of copies of relevant documents and statement to him \Vas
D
under consideration of the Government and after that issue was decided the
petitioner's representation would be considered and a suitable reply would
be
given. The admitted fact was that the State Government confirmed the order
of detention solely on the basis of the report of the Advisory Board.
AllowiI!g the Writ Petition, the Court,
HELD : 1. The power to preventively detain a person cannot be exercised
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except in accordance with the constitutional safeguards provided. in
clauses
(4) and (5) of Article 22 and if an order of detention is made in violation of
such ·safeguards, it would be liable to be struck down as invalid. It is immaterial
whether these constitutional safeguards are incorporated in the Jaw authorising
preventive detention because even if they are not, they would be deemed to
be ro.rt of law as a super~imposition of the Constitution which is the supreme
la\v of the laud and they must be obeyed on pain of invalidation of the o: di:T
F
of detention. [1010 B-D].
2. The constitutional imperative enacted in clause (5) of Article 22 requiring the earliest opportunity to be afforded to the detenu to make a represento.-
tion carries with it by necessary implication a constitutional obligation on the
detaining authority to consider the representation as early as possible before
making an order confirn1ing the
detention. The detaining authority
must
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consider the representation of the detenu and come to its own conclusion whether it is necessary to detain him. If the detaining authority takes the
view,
on considering the representation of the detenu, that it is not necessary to detain
him, it would be wholly unnecessary for it to place the case of the detenu before thl Ad·visory Board. The requirement of obtaining opinion of the Advisory
Boord is an additional safeguard over and above the safeguard afforded to the
detenu of making a representation against the order of detention. The opinion
H
of the Advisory Board even if given after consideratio~ of the- represe,ntation of
the detenu need not necessarily be binding on the detaining authority. [1011 C-E]
1007
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1008
SUP>.EME COURT REPORTS
[1979] 3 s.c.R.
There are thus two distinct safeguards provided to a detenu: one is that his
cn~e n1u5t be referred to an Advisory Ilo.1rd for its opinion if it is sought to
ddain him fer a longer period than three months and the other is that he should
b:: afforded the earliest opportunity of making a representation
against the
orl~::r of ct,~tcntion and such representation should be conside-red by the detain~
ing auth(1J ity as early as possible before any order is m:ide
confirming
the
dctc>!1tion.
Neither safeguard is dependent on th.:! other and both have to be
ob'icrvtd by the detaining authority. The
detaining authority
is therefore,
bound to con~ider the representation of the detenu on its own and keeping in
view all the facts and
circumstances relating to the case, come to its· own
deci5icn whether to confirm the order of detention or to release the di.::tenu.
The subsequent consideration o.nd rejection of the representation could not cure
the in\alidity of the order of confirmation.
[1012C

## Text

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VIMAL CHAND JAWANTRAJ JAIN
v.
SHRI PRADHAN AND ORS.
May 4, 1979
[P. N. BHAGWATI AND R. S. PATHAK, JJ.]
Conservation of Forei,::11 Exchange and Prevention of Sn1ug1-Jing Actil'ities
Act, 1974 (Act 52 of 1974)-Representation of the petitioner not considered
by the State Govenunent-Confinning the detention order 011 the basi,r of the
Advisory Bot1rd's report is int·a[id being in contravention of Article 22(5) of
A
the Constitu!ion-Subsieque11t consideration and rejection of the repre,~entation
C
could not cure the itn·alidity of confirn1ation of detention.
The detenu under the COFEPOSA challenged the orders detaining him as
violative of Art. 22(5) of the Constitution on the ground that his representa·
tion was neither considered nor disposed of by the Secretary to the Government
of Maharashtra, though the latter intimated by his letter dated 22nd December
1978, that the issue of copies of relevant documents and statement to him \Vas
D
under consideration of the Government and after that issue was decided the
petitioner's representation would be considered and a suitable reply would
be
given. The admitted fact was that the State Government confirmed the order
of detention solely on the basis of the report of the Advisory Board.
AllowiI!g the Writ Petition, the Court,
HELD : 1. The power to preventively detain a person cannot be exercised
E
except in accordance with the constitutional safeguards provided. in
clauses
(4) and (5) of Article 22 and if an order of detention is made in violation of
such ·safeguards, it would be liable to be struck down as invalid. It is immaterial
whether these constitutional safeguards are incorporated in the Jaw authorising
preventive detention because even if they are not, they would be deemed to
be ro.rt of law as a super~imposition of the Constitution which is the supreme
la\v of the laud and they must be obeyed on pain of invalidation of the o: di:T
F
of detention. [1010 B-D].
2. The constitutional imperative enacted in clause (5) of Article 22 requiring the earliest opportunity to be afforded to the detenu to make a represento.-
tion carries with it by necessary implication a constitutional obligation on the
detaining authority to consider the representation as early as possible before
making an order confirn1ing the
detention. The detaining authority
must
G
consider the representation of the detenu and come to its own conclusion whether it is necessary to detain him. If the detaining authority takes the
view,
on considering the representation of the detenu, that it is not necessary to detain
him, it would be wholly unnecessary for it to place the case of the detenu before thl Ad·visory Board. The requirement of obtaining opinion of the Advisory
Boord is an additional safeguard over and above the safeguard afforded to the
detenu of making a representation against the order of detention. The opinion
H
of the Advisory Board even if given after consideratio~ of the- represe,ntation of
the detenu need not necessarily be binding on the detaining authority. [1011 C-E]
1007
A
B
c
D
1008
SUP>.EME COURT REPORTS
[1979] 3 s.c.R.
There are thus two distinct safeguards provided to a detenu: one is that his
cn~e n1u5t be referred to an Advisory Ilo.1rd for its opinion if it is sought to
ddain him fer a longer period than three months and the other is that he should
b:: afforded the earliest opportunity of making a representation
against the
orl~::r of ct,~tcntion and such representation should be conside-red by the detain~
ing auth(1J ity as early as possible before any order is m:ide
confirming
the
dctc>!1tion.
Neither safeguard is dependent on th.:! other and both have to be
ob'icrvtd by the detaining authority. The
detaining authority
is therefore,
bound to con~ider the representation of the detenu on its own and keeping in
view all the facts and
circumstances relating to the case, come to its· own
deci5icn whether to confirm the order of detention or to release the di.::tenu.
The subsequent consideration o.nd rejection of the representation could not cure
the in\alidity of the order of confirmation.
[1012C~G, 1013E].
Khudiratn Das v. State of West Bengal, AIR 1975 SC 550; Khairul Haque
v. The State of West Bengal, W.P. 246/69 decided on 10-9-69; referred to.
CRIMINAL ORIGINAL JURISDICTION : Writ Petition No.
146 of
1979.
(Under Article 32 of the Constitution)
R. Jethmalani and Mrs. K. Hingorani for the Petitioner.
U. R. Lalit, J. L. Jain and M. N. Shroff for the Respondents.
The Judgment of the Court was delivered by
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BHAGWATI, J., This petition is directed against the validity of an
order of detention dated 31st November, 1978 made by the lirst respondent who is the Secretary to the Govermnent of Maharas'.,tra, Home
·Department in exercise of the power conferred under sub-section (1)
of section 3 of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 197 4 (hereinafter referred to as the Act).
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The petitioner has urged several grounds before us but it is not neces•
Fary to refer to them since there is one ground which is in our opinion
sufficient to dispose of the petition in favour of the petitioner.
To
appreciate this ground, it is necessary to state a few facts.
On 13th November, 1978, an order was made by the !st respon-
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dent in exercise of the power conferred on him under sub-section (I)
of section 3 of the Act directing the detention of the petitioner. Pursuant to the order of detention, the petitioner was arrested and he was
immediately served with the grounds of detention which were embodied
in a communication dated 13th November, 1978 addressed by the !st
respondent to the petitioner.
The grounds of detention were quite
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elaborate and they alleged various smuggling activit;es against the petitioner and several statements and documents were referred to and
relied upon in support of those allegations.
The petitioner, by hi•
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VIMAL CHAND v. SHRI PRADHAN (Bhagwati, J.)
1009
advocate's Jetter dated 25th November, 1978, requested the ]st respondent to furnish copies of the statements and documents referred to
.and relied upon in the grounds of detention and stated that he required
the same for the purpose of enabling him to make a representation
against the order of -detention.
It se~ms that a copy of this letter
was also sent by the petitioner to the Collector of Customs.
The
Assistant Secretary to the Government of Maharashtra, Home Department, informed the petitioner's advocate by his letter dated 27th
November, 1978 that copies of the relevant documents and statements
required by the petitioner for the purpose of making a representation
against the order of detention may be obtained from the Collector of
Customs. The petitioner thereupon addressed his advocate's
letter
dated 2nd December, 1978 to the Collector of Customs requesting him
to furnish copies of the relevant documents and
statements.
The
Assistant Collector of Customs, however, replied by his letter dated
6th December, 1978 stating that copies of the relevant documents and
statements would be supplied after a show cause notice under the
Customs Act, 1926 was issued to the petitioner. The petitioner was
thus unable to get copies of the relevant documents and statements
from the Collector of Customs.
The petitioner obviously could 11ot
wait for making a representation since the period of thirty days within
which a representation must be made was expiring and he, therefore,
~ent a representation dated 4 /9th December, 1978 to the Home
Secretary and it was received by the Home Department on 12th December 1978. The Asstt. Secretary, Ho;ne Department, by his letter dated
22nd December, 1978, acknowledged that the representation of the
petitioner was received on 12th December, 1978 and intimated that
the issue regarding the supply of copies of relevant documents and
'
statements to the petitioner was under consideration of the Government
.and alter this issue was decided, the representation of the petitioner
would be considered and a suitable reply would be given.
Now it
appears from the affidavit in reply filed by the !st respondent that
the case of the petitioner was in the meanwhile referred to the Advisory
Board and since the meeting the Advisory Board was fixed on 20th
December, 1978, the representation of the petitioner was forwarded
to the Advisory Board for its consideration.
The Advisory Board
reported to the 1st respondent that in its opinion there was sufficient
cause for the detenion of the petitioner, and this report was received
by the 1st respondent on 6th January, 1979.
The !st respondent,
.alter considering the report of the Advisory Board made an order dated
15th January, 1979 confirming the detention of the petitioner.
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SUPREME COURT REPORTS
(1979] 3 S.C.R.
The petitioner on these facts contended that the order confirming the detention of the petitioner was passed by the 1st respondent
without considering the representation of the
petitioner
and
the
detention of the petitioner was, therefore, unlawful as being in contravention of Article 22 ( 5) of the Constitution.
This
contention
has in our opinion great force and it must result In invalidation of
the detention of the petitioner. It is" now settled Jaw that the power
to preventively detain a person cannot be exercised except in accordance with the constitutional safegudards provided in clauses ( 4) and
(5) of Article 22 and if any order of detention is made in vio1ation
of such safeguards, it would be liable to be struck down as invalid.
It is immaterial whether these constitutional safeguards are incorporated in the law authorising preventive detention, because even if
they are not, they would be deemed to be part of the law as a superimposition of the Constitution which is the supreme law of the land'
and they must be obeyed on pain of invalidation of the order of
detention.
The 1st respondent was, therefore, bound to observe theconstitutional safeguards provided inter alia in clauses ( 4) and ( 5)
of Article 22 in detaining the petitioner.
We are concerned in this;
case only with a complaint of violation of the provisions of clause (5)
of Article 22 and that clause reads as follows :
"When any person is detained in pursuance of an order·
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made under any law providing for preventive detention, the
authority making the order shall, as soon as may be, communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity
of making a representation against the order."
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This Court explained the true meaning and import of this clause 111:
Khudiram Das v. The State of West Bengal(') :
"The constitutional im!"'ratives enacted in this article are
twofold : (!) the detaining authority must, as soon as may
be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of
detention has been made, and (2) the detaining authority
must afford the detenu the earliest opportunity of making a
representation against the order of detention.
These are
the barest minimum safeguards which must be observed
before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal
liberty in the name of public good and social security."
(!)A. I. R. 1975 S. C. 550.
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VIMAL CHAND v. SHRI PRADHAN (Bhagwati, J.)
1011
It will, therefore, be seen that one of the basic requirements of
clause (5) of Article 22 is that the authority making the order of
detention must afford the detenu the earliest opportunity of making a
representation against the order of detention.
Now this requirement
wonld become illusory unless there is a corresponding o!Jligation on
the detaining authority to consider the representation of the detenu
as early as possible. It could never have been the intention of the
constitution makers that the detenu should be given the earliest
opportunity of making a representation against the order of detention but the detaining authority should be free not to consider the
representation before confirming the order of detention.
That would
render the safeguard enacted by he constitution-makers meaningless
and futile.
There can, therefore, be no doubt that the constitutional
imperative enacted in clause (5) of Art. 22 requiring the earliest
opportunity to be afforded to the detenu to make a representation
carries with it by necessary implication a constitutional obligation
on the detaining authority to consider the representation as
early
as possible before making an order confirming the detention.
The
detaining authority must consider the representation of the detenu
and come to its own conclusion whether it is necessary to detain
him. If the detaining authority takes the view, on considering the
representation of the detenu, that it is not necessary to detain him,
it would be wholly unnecessary for it to place the case of the detenu
before the Advisory Board. The requirement of obtaining opinion
of the Advisory Board is an additional safeguard over and above the
safeguard afforded to the detenu of making a representation against
the order of detention.
The opinion of the Advisory Board even if
given after consideration of the representation is no substitute for the
consideration of the representation by the detaining authority.
This
Court pointed out in Khairul Haque v. The State of West Bengal(')
"It is implicit in the language of Article 22 that the
appropriate Gove_mment, while discharging its duty to consider the representation, cannot depend upon the views of
the Board on such representation.
It has to consider the
r•epresentation on its own without being influenced by any
such view of the Board. There was, therefore, no reason
for the Government to wait for considering the petitioner's
representation until it had received
the report
of
the
Advisory Board.
As laid down in Sk. Abdul Karim v.
State of West Bengal (AIR 1969 SC 1028) (supra), the
obligation of the appropriate Government under Art. 22 ( 5)
(1) W. P. 245 of 1969, dee. on Sept. 10, 1969.
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SUPREME COURT REPORTS
[1979] 3 S.C.R.
is to consider the representation made by the detenu as expeditiously as possible.
The consideration by the Government of such representation has
to be,
as
aforesaid,
independent of any opinion which may be expressed by
the Advisory Board.
The fact that Art. 22(5) enjoins upon the detaining
authority to afford to the dctenu the earliest opportunity
to make a representation must implicity mean
that such
representation, must, when made, be considered and disposed of as expeditiously as possible,
otherwise,
it
is
obvious that the obligation to furnish the earliest opportunity to make a representation loses both its
purpose and
meaning."
There are thus two distinct safeguards provided to a detenu; one
is that his case must be referred to an Advisory Board for iis opinion
if it is sought to detain him for a longer period than three months
and the other is he should be afforded the earliest opportunity of
making a representation against the order of detention and
such
representation should be considered by the detaining authority as
early as possible before any order is. made confirming the detention.
Neilhc;· safeguard is dependent on the other and both have
to be
observed by the detaining authority. It is no answer for the detaining authority to say that the representation of the detenu was sent
by it to the Advisory Board and the Advisory Board has considered
the representation and then made a report expressing itself in favour
of detention.
Even if the Advisory Board has made a report stating that in its opinion there is sufficient cause for the detention, the
State Government is not bound by such opinion and it may still on
considering the representation of the detenu or otherwise,
decline
to confirm the order of detention and release the detenu. The detaining authority is, therefore, bound to consider the representation of
the detenu on its own and keeping in view all the facts and circumstances relating to the case, come to its own decision
whether to
confirm the order of detention or to release the detenu.
Here in the present case, the representation of the petitioner was
received by the Home Department on 12th December, 1978 and it
was immediately forwarded to the Advisory
Board
because the
meeting of the Advisory Board was fixed on 20th December, 1978.
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The report of the Advisory Board stating that in its opinion there was
sufficient cause for the detention of the petitioner was received by the
!st respondent on 6th January, 1979 and on the basis of this report,
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VIMAL CHAND v. SHRI PRADHAN (Bhagwati, J.)
I 013
the 1st respondent confirmed the order of detention on 15th January,
1979. There is nothing on the record to show that the 1st respondent
consider·ed the representation of the petitioner before making the order
confirming the detention of the petitioner. We do not find anywhere in
the affidavit of the 1st respondent in reply to the petition any statement
that he considered the representation of the petitioner before making
the order of confirmation dated 15th January, 1979. On the contrary,
there is a positive statement in paragraph 16 of this affidavit that the
detention order was confirmed after consideration of the report of the
Advisory Board which was of the opinion that the detention should be
continued. We called upon the learned advocate appearing on behalf
of the 1st respondent to place before us the file relating to the detention
of the petitioner and when this file was shown,, we found that there
was an endorsement made on 12th March, 1979 which showed that it
was only on that date that the representation of the patitim1er
was
considered by the 1st respondent and rejected. This is also borne out
by the letter dated 12th March, 1979 addressed by the Deputy Secretary, Home Department to the petitioner stating that the representation was considered by the "Advisory Board/Government" and his·
request for release from detention could not be granted. It is, therefore, amply clear from the record that the representation of the petitioner WGS not considered by the !st respondent before he confirmed
the order of detention. The !st respondent thus failed to comply with
the constitutional obligation imposed upon him under clause ( 5) of
Art. 22. The subsequent consideration and rejection of the representation could not cure the invalidi~y of the order of confirmation.
The
detention of the petitioner must, therefore, be held to be illegal and
void.
These were the reasons for which we made our order dated 11th
April, 1979 quashing and setting aside the detention of the petitioner
and directing that the petitioner be set at liberty forthwith .
S.R.
Writ petition allowed_
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