- (1.) This petition is directed against the validity of an order of detention dated 13th Nov. 1978 made by the first respondent who is the Secretary to the Government of Maharashtra Home Department in exercise of the power conferred under sub-sec. (1) of S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act.) The petitioner has urged several grounds before us but it is not necessary 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.
(2.) On 13th Nov. an order was made by the lst respondent in exercise of the power conferred on him under sub-sec. (1) of S. 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 Nov. 1978 addressed by the lst respondent to the petitioner. The grounds of detention were quite elaborate and they alleged various smuggling activities against the petitioner and several statements and documents were referred to and relied upon in support of those allegations. The petitioner, by his Advocate's letter dated 25th Nov. 1978, requested the 1st 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 seems 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 Dec. 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 Dec. 1978 stating that copies of the relevant documents and statements would be supplied after a show cause notice under the Customs Act, 1962 was issued to the petitioner. The petitioner was thus unable to get copies of the relevant document and statements from the Collector of Customs. The petitioner obviously could not wait for making a representation since the period of thirty days within which a representation must be made was expiring and he, therefore, sent a representation, D/- 4-9th Dec. 1978 to the Home Secretary and it was received by the Home Department. He by his letter dated 22nd Dec. 1978 acknowledged that the representation of the petitioner was received on 12th Dec. 1978 and intimated that the issue regarding the supply of the copies of relevant document's and statements to the petitioner was under consideration of the Government and after the 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 1st respondent that the case of the petitioner was in the meanwhile referred to the Advisory Board and since the meeting of the Advisory Board was fixed on 20th Dec. 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 detention of the petitioner and this report was received by the 1st respondent on 6th Jan. 1979. The lst respondent, after considering the report of the Advisory Board, made an order dated 15th Jan. 1979 confirming the detention of the petitioner.
(3.) 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 Art. 22 (5) of the Constitution. This contention has in our opinion great force and its must result in invalidation of the detention of the petitioner. It is now settled law that the power to preventively detain a person cannot be exercised except in accordance with the constitutional safeguards provided in clauses (4) and (5) of Art. 22 and if any 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 law authorising preventive detention, because even if they are not, they would be deemed to be part of the law as a super-imposition 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 the constitutional safeguards provided inter alia in clauses (4) and (5) of Art. 22 in detaining the petitioner. We are concerned in this case only with a complaint of violation of the provisions of clause (5) of Art. 22 and that clause reads as follows:- "When any person is detained in pursuance of an order 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." This Court explained the true meaning and import of this clause in Khudiram Das v. The State of West Bengal (AIR 1975 SC 550 (at p. 554) :- "The constitutional imperatives enacted in this article are two-fold : (1) 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 drawn his night of personal liberty in the name of public good and social security." 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 would become illusory unless there is a corressponding obligation 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 the 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 detneu 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, it would be wholly unnecessary for it to place the case of the detneu 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 by the detaining authority (sic). This Court pointed out in Khairul Haque v. The State of West Bengal, W. P. No. 246 of 1969, D/- 10-9-1969. "It is implicit in the language of Article 22 that the appropriate Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation 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) the obligation of the appropriate Government under Art. 22 (5) 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 detenu the earliest opportunity to make a representation must implicitly 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.";