ANKIT ASHOK JALAN versus UNION OF INDIA AND ORS.

Citation: [2020] 2 S.C.R. 1047 · Decided: 04-03-2020 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Case Allowed

Cited by 2 judgment(s) · cites 9 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
1047
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
 [2020] 2 S.C.R. 1047
1047
A
B
C
D
E
F
G
H
1048
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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
A
B
C
D
E
F
G
H
1049
do so would result in denial of t

Excerpt shown. Read the full judgment & AI analysis in Lexace.