KAMLESHKUMAR ISHWARDAS PATEL ETC. ETC. versus UNION OF INDIA AND ORS. ETC. ETC.

Citation: [1995] 3 S.C.R. 279 · Decided: 17-04-1995 · Supreme Court of India · Bench: A.M. AHMADI
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Judgment (excerpt)

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KAMLESHKUMAR ISHWARDAS PATEL ETC. ETC. 
A 
v. 
UNION OF INDIA AND ORS. ETC. ETC. 
APRIL 17, 1995 
[A.M. AHMADI, CJ, S.C. AGRAWAL, S.P. BHARUCHA, 
K.S. PARIPOORNAN AND SUJATA V. MANOHAR, JJ.] 
ConseTVation of Foreign Exchange and Prevention of Smuggling Ac-
tivities Ac4 1974-Sections 3 and JI. 
Prevention of Illicit Traffic in Narcotics Drugs & Psychotropic Sub-
' 
stance Act, 198lf-Sections 3 and 12-Detention Orde,-.Detenu's right to 
make representation-To whom representation is to be made-Who is em-
powered to revoke the detention order. 
B 
c 
Constitution of India, 1951>-Article 22(4) and (5)--Preventive Deten- D 
tiorr-Nature and scope of rights of Detenue. 
The common question arising for consideration in the appeals was 
when an order for preventive detention is passed by an officer especially 
empowered to do so by the Central Government or the State Government, E 
whether the said officer is required to consider the representation sub· 
milted by the detenue. 
Answering the question in affirmative; allowing the appeals on behalf 
of the Detenues and dismissing the appeals of the Union of India, this 
Court 
F 
HELD : 1. The Constitution prescribes certain safeguards in Article 
22 for the protection of persons detained. One is contained in sub-clanse 
o 
(a) of Clanse (4) of Article 22 and the other in Clause (5) of Article 22. 
The former requires that no law providing for preventive detention shall 
authorise the detention of a person for a period longer than' three months G 
unless an Advisory Board has reported before the expiration of the said 
--i 
period of three months that there is, in its opinion, sufficient cause for 
detention. The latter provides that where any person is detained in pur· 
suance of an order made under any law providing for Preventive Detention, 
the authority making the order shall, as soon as may be, communicate to H 
279 
280 
SUPREME COURT REPORTS 
[1995] 3 S.C.R. 
A such person on the grounds on which the order has been made and shall 
afford him the earliest opportunity of making a representation against the 
order. [284·H, 285-A, B, CJ 
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2. Article 22(5) must be construed to mean that the person detained 
has a right to make a representation against the order of detention not only 
to the Advisory Board but also to the detaining authority i.e. the authority 
that has made the order of detention of the order for continuance of such 
detention, wh.o is competent under law to revoke the order for detention and 
thereby give relief to the person detained. The right to make a repre· 
sentatim; carries within it a corresponding obligation on the authority 
C making the order of detention to inform the person detained of his right to 
make a representation against the order of detention to the authorities who 
are required to consider such a representation. [289-H, 290-A] 
State of Bombay v.Atma Ram Sridhar Vaidya, [1951] SCR 161;Abdul 
Karim and Ors. v. State of West Bengal, [1969) 3 SCR 479; Pankaj Kumar 
D Chakrabarty and Ors. v. State of West Bengal, [1970] 1 SCR 543; Jayanarayan 
Sukul v. State of West Bengal, [1970] 3 SCR 225 and Amir Shad Khan v. L. 
Hmingliana and Ors., [1991] 4 SCC 39, referred to. 
3. The power to revoke an order of detention that is conferred on the 
E Central Government and the State Government under clauses (a) and (b) 
of sub-section (1) of section 11 of the conservation of Foreign Exchange 
and Prevention of Smuggling Activities (COFEPOSA) Act and Section 12 
of the Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic 
Substances (PIT NDPS) Act is in addition to the power of revocation that 
is available to the authority that has made the order of detention. The 
F conferment of the said power on the Central Government and the State 
Government does not detract from the power that is available to the 
authority that has made the order of detention to revoke it. [293-F, El 
4. The use of the words "without prejudice to the provision of Section 
G 21 of the General Clauses Act, 1897" in sub· section (1) of Section 11 of 
the CO~'EPOSA Act and sub-section (1) of section 12 of the PIT NDPS Act 
preserve the power of the officer making the order under Section 21 of the 
General Clauses Act to revoke the order made by him. [294-E] 
5. It is not correct to say that Article 22(5) does not confer a right to 
H make representation to the officer specially empowered to make the order. 
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K.l. PATEL v. U.0.1. 
281
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