K.M. ABDULLA KUNHI AND B.L. ABDUL KHADER versus UNION OF INDIA AND ORS., STATE OF KARNATAKA AND ORS.

Citation: [1991] 1 S.C.R. 102 · Decided: 23-01-1991 · Supreme Court of India · Bench: B.C. RAY · Disposal: Disposed off

Cited by 3 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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B 
K.M. ABDULLA KUNHI AND B.L. ABDUL KHADER 
v. 
UNION OF INDIA AND ORS., STATE OF KARNATAKA 
AND ORS. 
JANUARY 23, 1991 
(B.C. RAY, M.H. KANIA, K. JAGANNATHA SHETTY, 
L.M. SHARMA AND J.S. VERMA, JJ.] 
Conservation of Foreign Exchange and Prevention of Smuggling 
~ 
Activities Act, J974-Sections 3, 8, JO and J 1-Detention order con-
firmed before consider.ation of representation of detenu-Whether 
C 
valid-Representation received but considered by Government after 
receiving report of Advisory Board-Whether. valid. 
D 
Constitution of India J950: Articles 22(4) and (5)_..:.Preventive 
detention-Rights of detenu-What are. 
A Division Bench of this Court in V.J. Jain v. Shri Pradhan and 
Ors., [1979] 4 SCC 401 observed that the representation of the detenu 
should be considered by the detaining authority as early as possible 
before any order is made confirming the detention. The confirmation of 
the detention order without the consideration of representation would 
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be invalid and the subsequent consideration of the representation would 
not cure the invalidity of the order of confirmation. This view was 
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reiterated in the later case of Om Prakash Bahl v. Union of India, W .P. 
No. 845of1979 decided on 15.10.1979. 
As the aforesaid view required reconsideration, the instant SLPs 
F 
and WPs had been referred to and heard by a constitutional bench. 
On December 1, 1988, the officers of the Directorate of Revenue 
Intelligence upon getting information that contraband gold has been 
secreted in the room of petitioner No. 1 searched the room in the pre-
sence of independent witnesses. Another person was also pre~ent inside 
G 
the room. The officers recovered one Samsonite pouch, and some 
bundles of Indian currencies from the table drawer in that room. Inside 
the said pouch, there were five gold biscuits of 24 ct. purity and of 
foreign origin, and seized the same under a Mahazar. 
On 24th February, 1989, that State Government passed two sepa-
H 
rate orders of detention under section 3(l)(iv) of the Conservation of 
K.M.A. KUNHI v. U.0.1. 
103 
Foreign Exchange and Prevention of Smuggling Activities Act 1974 and 
the petitioners were taken into custody and detained in the Central 
·prison. On 17th April, 1989, the detenus made representation to the 
Government, which could not be immediately considered since they 
required translation, and collection of information and comments. In 
the meanwhile, the matter was referred to the Advisory Board, which 
had its meeting on 20th April, 1989 considered the case of the detenus, 
and reported that there was sufficient cause for detention. On .27th 
April, 1989, the Government accepted the report and confirmed the 
deteqtion orders. On 6th and 7th May, 1989 the Government consi-
dered and rejected the representation of the detenus and they were 
informed of the same. 
The detention orders were challenged in the High Court through a 
writ petitiOn but the High Court dismissed the same. 
In the appeals and writ petition to this Court, the main question 
A 
B 
c 
for consideration was, whether the confirmation of detention order 
upon accepting the report of the Advisory Board renders itself invalid 
D 
solely on the ground that the representation of the detenu was not 
considered, and the subsequent consideration of the representation 
would not cure that invalidity. 
Disposing of the matters, the Court, 
HELD: l(a) With regard to liberty of citizens the Court stands 
guard over the facts and requirements of law, but Court cannot draw 
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_. 
presumption against any authority without material. [USG] 
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(b) The confirmation of detention does not preclude the Govern-
ment from revoking the order of detention upon considering the rep-
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resen~tion of the detenu. [USG] 
(c) There may be cases where the Government has to consider the 
representation only after the conimnation of the detention. [ 1 lSH] 
2(a) There are two constitutional safeguards, viz: Clause (4) of G 
Article 22, and Clause (S) of Article 22. The former requires that if a 
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detenu is liable to be detained for a longer period than thrfe months, his 
case shall be referred to the Advisory Board which, must report before 
the expiration of the said period of three months that there is in its 
opinion sufficient cause for such detention. The latter provides that 
when any person is detained in pursuance of an order made under any 
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A 
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c 
104 
SUPREME COURT REPORTS 
[1991] 1 S.C.R. 
law providing for

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