PRAMOD SINGLA versus UNION OF INDIA & ORS

Citation: [2023] 2 S.C.R. 793 · Decided: 10-04-2023 · Supreme Court of India · Bench: KRISHNA MURARI, V. RAMASUBRAMANIAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2023] 2 S.C.R. 793
793
PRAMOD SINGLA
v.
UNION OF INDIA & ORS.
(Criminal Appeal No. 1051 of 2023)
APRIL 10, 2023
[KRISHNA MURARI AND V. RAMASUBRAMANIAN, JJ.]
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 – Preventive Detention –
Representation by detenue to the Central Government, the detaining
authority and the Advisory Board – Central Govt. if bound to wait
for the decision of the Advisory Board before deciding the
representation – Whether there exists an incongruity between the
Pankaj Kumar case and the Abdullah Kunhi case – Held: No – Since
these two judgments exist symbiotically and apply to two separate
authorities within the COFEPOSA Act, there exists no friction
between the judgments – The mandate to wait for the decision of
the Advisory Board, as per the Pankaj Kumar Judgment would apply
to the Central Govt., however, the detaining authority, being
independent of the Govt., can pass its decision without the decision
of the Advisory Board – In the present case, the appellant-detenue
sent a representation to both, the specially empowered officer and
the Govt. – Detaining authority decided on the representation
expeditiously without waiting for the decision of the Advisory Board,
and hence, did not violate the Pankaj Kumar Judgment – The Govt.
waited for the decision of the Advisory Board – This was also in
accordance with the decision of the Abdullah Kunhi case, since the
Govt., being a separate authority, is bound to wait for the decision
of the Advisory Board – Thus, both, the detaining authority and the
Govt. worked within the procedure established by law – Hence, the
impugned detention order is not liable to be struck down on the
ground of 60 days delay on the part of the Govt. in consideration
of the representation made by the appellant – However, in the present
case, the appellant was supplied with illegible documents in a
foreign language – Also, the principle of parity is squarely applicable
in this case, as the detention order was quashed against a similarly
placed co-detenue – Impugned detention order liable to be set aside
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SUPREME COURT REPORTS
[2023] 2 S.C.R.
– Appellant was however, already released on grounds of expiry of
the detention period – Constitution of India – Arts. 21, 22(5) –
Preventive Detention Act, 1950 – s.3.
Constitution of India – Article 21, 22(5) – Held: In cases
where illegible documents have been supplied to the detenue, a grave
prejudice is caused to the him in availing his right to send a
representation to the relevant authorities – Thus, the relief u/Article
22(5) and the relevant statutory provisions allowing for submitting
a representation are vitiated – In cases of preventive detention, every
procedural irregularity, keeping in mind the principles of Article
21 and 22(5), must be accrued in favour of the detenue.
Criminal Law – Preventive detention laws – Abuse/misuse of
– Held: Such laws must be very critically examined and must be
used only in the rarest of rare cases.
Allowing the appeal, the Court
HELD: 1. Preventive detention laws in India are a colonial
legacy, and have a great potential to be abused and misused. Laws
that have the ability to confer arbitrary powers to the state, must
in all circumstances, be very critically examined, and must be
used only in the rarest of rare cases. In cases of preventive
detention, where the detenue is held in arrest not for a crime he
has committed, but for a potential crime he may commit, the
Courts must always give every benefit of doubt in favour of the
detenue, and even the slightest of errors in procedural
compliances must result in favour of the detenue. The detenue,
in cases of preventive detention under the COFEPOSA Act, has
the right to submit a representation to the detaining authority,
the Government, and the Advisory Board. These representations
then, as per Article 22(5) of the Constitution of India, must be
decided at the earliest opportunity possible. If the representation
is accepted either by the Government or the detaining officer,
the detenue is released, however, if the representation is rejected,
then the detention period is continued. [Paras 21, 22][802-E-G;
803-A-B]
2. Whether there exists an incongruity between the Pankaj
Kumar case and the Abdullah Kunhi Case and if such a friction
exists should the point of law be referred to a Larger Bench?
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The Pankaj Kumar Case judgment was passed in the context
of the Pre

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