R.KESHAVA versus M.B. PRAKASH AND ORS.

Citation: [2000] SUPP. 5 S.C.R. 596 · Decided: 12-12-2000 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Dismissed

Judgment (excerpt)

A 
B 
R. KESHAVA 
v. 
M.B. PRAKASH AND ORS. 
DECEMBER 12, 2000 
[K.T. THOMAS, U.C. BANERJEE AND R.P. SETHI, JJ.] 
Constitution of India, 1950-Article 22(5)-Conservatiun of Foreign 
Exchange and Prevention of Smuggling Act, 1974- Sections 3 and 8(c; and 
C (/)-Detention under--Detenu, despite intimation, omitted to exercise his 
right to make representation to the appropriate Government-{.'onfirmation 
of detention by appropriate Government without considering the 
representation made to Advisory Board- ·Constitutionality and legality of-
Held, the order confirming detention is neither unconstitutional nor il/egal-
No duty is cast upon the Advisory Board to furnish the whole of the record 
D and the· representation addressed to it. 
E 
'M' was detained under Section 3 of the Conservation of Foreign 
Exchange and Prevention of Smuggling Act, and was informed that he can 
file a representation against the detention order to the State Government or 
the Government of India. He made representation to the Advisory Board and 
not to the State Government or the Government of India. He did not even make 
any request to forward the representation to any of the Governments. After 
receipt of the report of the Advisory Board, the order of detention was confirmed 
by respondents l & 2 without considering his representation made before 
the Advisory Board as the same was not within their knowledge. Appellant 
F filed writ petition before High Court challenging preventive detention of' M' 
alleging violation of Article 22(5) of the Constitution on the ground that as 
the representation of the detenu to the Advisory Board had not been considered 
by the appropriate Government, his continuous detention was unconstitutional 
and that notwithstanding non-filing of the representation to the appropriate 
Government, a duty was cast upon the Advisory Board to transmit the 
G representation received by it, to the Government which in turn obliged to 
consider it before confirming the order of detention. The petition was 
dismissed by the High Court. 
In appeal to this Court, the appellant contended that a duty was cast upon 
H 
596 
R. KESHAVA v. M.B, PRAKASH 
597 
) 
the Advisory Board to submit all records including the representation of the A 
Advisory Board to the appropriate Government; and that since the Government 
--
had not considered the whole of the record pertaining to the detention, the 
order of confirmation of detention is illegal and unconstitutional. 
Dismissing the appeal, the Court 
HELD: 1.1. The appropriate government was justified in confirming 
the order of detention on perusal of record and documents excluding the 
representation made by the detenu to the Advisory Board, in the absence of 
B 
the representation or the knowledge of the representation. For this alleged 
failure of the appropriate government, the order of detention of the appropriate C 
Government is neither rendered unconstitutional nor illegal. [607-CJ 
1.2. Order of preventive detention is liable to be quashed if the 
constitutional obligations in terms of clause (5) of Article 22 of the 
Constitution are not complied with. But, where despite intimation, the detenu 
omits to exercise his constitutional right, he cannot, thereafter allege its D 
violation on the ground that the authorities should have made an inquiry to 
ascertain as to whether he had made any representation to any person, 
authority or the Board. (601-A, B, CJ 
1.3. No duty is cast upon the Advisory Board to furnish the whole of the 
record and the representation addressed to it, to the Government along with 
its report prepared under Section 8 (c) of the Act. In the absence of 
constitutional or statutory provisions, it cannot be held that the Advisory Board 
was under an obligation to forward whole of the record of its proceedings to 
E 
F 
the State Government. The State Government while confirming the order of 
detention has to pursue the report of the Advisory Board along with other 
records, if any, in its possession, and cannot determine legality of the 
procedure adopted by the Advisory Board. Under Clause (f) of Section 8 of the 
Act, the Government is not bound by the report of the Advisory Board and in 
every case where the Advisory Board reports that there is, in its opinion, 
sufficient cause for the detention of a person, may confirm the detention order. G 
The word "may" used in this clause does not cast duty upon the appropriate 
Government to necessarily accept the o

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