Summary
A COFEPOSA detenu, alleged to be part of a gold smuggling syndicate, challenged his detention because the Central Government took sixty days to reject his representation while awaiting the Advisory Board's report, and because documents supplied with the grounds were illegible and in Chinese. The Supreme Court held there is no conflict between Pankaj Kumar Chakraborty and K.M. Abdulla Kunhi warranting a larger Bench: under COFEPOSA the detaining authority and the Government are distinct, so the former must decide a representation without awaiting the Board while the latter may await its report, and the delay did not vitiate the detention. But supply of illegible foreign-language documents relied on for detention denied an effective representation under Article 22(5), and a co-detenu had been released on that ground, so on parity the detention order was set aside.
Issues
- Whether there is a conflict between the Constitution Bench decisions in Pankaj Kumar Chakraborty and Jayanarayan Sukul, holding that the Government must consider a detenu's representation independently without awaiting the Advisory Board, and K.M. Abdulla Kunhi and Ankit Ashok Jalan, holding that the Government may await the Board's report, warranting reference to a larger Bench.
- Whether a sixty-day delay by the Central Government in deciding a representation under the COFEPOSA Act while awaiting the Advisory Board's report vitiates the detention.
- Whether supply of illegible documents in a foreign language as grounds of detention entitles the detenu to quashing of the detention order.
Provisions considered
- Article 22(5), Constitution of IndiaA detenu's representation must be considered at the earliest; the grounds and supporting material must be communicated in a language and form he understands, failing which the right to make an effective representation is denied. (¶¶ 22, 39, 40, 42)
- Section 3, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974Unlike the Preventive Detention Act, no Government approval of a specially empowered officer's order is required, so the detaining authority and the Government remain separate bodies; the detaining authority must decide a representation without awaiting the Advisory Board, while the Government may await the Board's report. (¶¶ 31, 32, 33, 34, 35)
- Section 3 (approval of an officer's detention order within twelve days), Preventive Detention Act, 1950The requirement of Government approval makes the Government the detaining authority, which explains why Pankaj Kumar Chakraborty mandated independent and prompt consideration by the Government under that Act. (¶¶ 31, 32, 33)
Held
- Preventive detention laws are a colonial legacy with great potential for abuse and must be used only in the rarest cases; courts must give every benefit of doubt to the detenu and even slight procedural lapses must enure to his benefit. (¶¶ 21, 42, 44)
- Pankaj Kumar Chakraborty and Jayanarayan Sukul, decided under the Preventive Detention Act where the Government is the detaining authority, mandate independent consideration without awaiting the Advisory Board; under COFEPOSA, where the specially empowered officer and the Government are distinct, that mandate applies to the detaining authority, while Abdulla Kunhi, as explained in Ankit Ashok Jalan, permits the Government to await the Board's report. The two lines of decisions operate in separate spheres without conflict, so no reference to a larger Bench is needed. (¶¶ 30, 32, 33, 34, 35)
- The detaining authority decided the representation expeditiously and the Government awaited the Advisory Board's report in accordance with Abdulla Kunhi; both acted within the procedure established by law, and the sixty-day delay is no ground to quash the detention. (¶¶ 36, 37, 38)
- Supply of illegible documents in Chinese, which were the very documents relied on for detention, caused grave prejudice to the detenu's right to make a representation, as in Harikisan v. State of Maharashtra; a co-detenu's detention had already been quashed by the High Court on the same ground, and on the principle of parity recognised in Gian Chand the same relief must follow. (¶¶ 39, 40, 41, 42, 43)
Result
Appeal allowed; though the appellant had already been released on expiry of the detention period, the detention order dated 01.02.2022 under the COFEPOSA Act held liable to be set aside for supply of illegible foreign-language documents, and the High Court order dated 03.11.2022 declining to quash it set aside.