KAMLESHKUMAR ISHWARDAS PATEL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE order of reference which has occasioned the constitution of this Full Bench has been passed by Mohta, J. , sitting with Bahuguna, J. , and the three questions which have been referred to for the consideration of this Full Bench are as under:-

(2.) WE have heard very interesting arguments advanced by Mr. Karmali for the petitioner, by Mr. Agrawal for the Union of India and by Mrs. Ranjana Desai for the State of Maharashtra and while we have derived considerable assistance from them, we have never entertained any doubt throughout the course of the arguments that the answers to question No. 1 and also question No. 2 must be in the affirmative.

(3.) ARTICLE 22 (5) categorically provides that when a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making an 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". This clause does not specify as to whom the representation is to be made and how the representation is to be dealt with, but then as was pointed out by Chief Justice Kania as early as in 1950 in (A. K. Gopalan v. State of Madras) A. I. R. 1950 S. C. 27 at 41, a preventive detention law which does not make provision as regards these two points, cannot be challenged on that ground alone as being opposed to Article 22 (5 ). The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act for short), while providing in section 3 (3) for the communication to the persons detained in pursuance of a detention order of the grounds on which the order has been made, has not specified in so many words as to whom or to which authority a representation against the order is to be made by the detenu. Some other Acts, e. g. section 8 of the National Security Act, 1980, make specific provisions as to the authority to whom such a representation is to be made. But what has not been done expressly in the COFEPOSA Act has nevertheless been done impliedly or indirectly by the provisions of section 11 of the Act which provide for the Authorities which may revoke or otherwise modify a detention order and it would be trite to say that a representation can and must obviously be made to such Authorities empowered to revoke or modify the order, for their consideration as to whether the detention order warrants such revocation or modification.