UNION OF INDIA AND ANR. versus HARISH KUMAR

Citation: [2007] 3 S.C.R. 994 · Decided: 14-03-2007 · Supreme Court of India · Bench: H.K. SEMA · Disposal: Appeal(s) allowed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

A 
UNION OF INDIA AND ANR. 
\ 
~ 
v. 
HARISH KUMAR 
MARCH 14, 2007 
B 
[H.K. SEMA AND B. SUDERSHAN REDDY, JJ.] 
~ 
Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974--s. 3 (J)-Detention under-Writ Petition-Allowed by 
c 
High Court-On the ground that non-consideration of representation of the 
detenue, vitiated the detention order being violative of Article 22(5) of the 
Constitution-No order of release as the period of detention already over-
On appeal, held: Detenue has the right to make representation to Central 
Government and its expeditious disposal under Article 22(5)-Thefailure on 
the part of Central Government to consider the representation does not 
D render the detention order void ab initio-/t is only the fiirther detention 
which is vitiated-In the facts of the present case. the belated consideration 
of the representation does not attract protection under Article 22(5) High 
' 
Court wrongly declared the detention order to be vitiated-There is no 
impediment to proceed against the detenue under SAFEMA-Constitution of 
E 
India, 1950-Articles 22(5) and 226-Smugglers and Foreign Exchange 
Manipulators (Forfeiture of Property) Act, 1976. 
Respondent was detained under section 3 (1) of Conservation of Foreign 
Exchange and Prevention of Smuggling Activities Act, 1974. The respondent 
through his brother filed Writ Petition assailing the legality of the detention 
F order. High Court allowed the petition holding that non-consideration of the 
representation of the detenue submitted to the Central Government vitiated 
\ 
.. 
the order of detention being violative of protection under Article 22 (5) of 
Constitution of lndia. However, it also observed that as the period of detention 
was already over, no direction for release of the detenue was required. Hence 
the present appeal. 
G 
Allowing the appeal, the Court 
,l. 
HELD: I.I. The right fo make a representation against the order of 
detention is the most cherished and valuable right conferred upon a detenue 
H 
994 
U.0.1. v. HARISH KUMAR 
995 
-
.) 
under Article 22(5) of the Constitution of India and if there has been any A 
infraction of such right the detenu is entitled to be released. The right of a 
person detained to make a representation against the order of detention is a 
comprehensive one. It comprehends that the person detained has the right to 
make a representation not only to the officer who made the order of detention 
but also to the State Government and the Central Government who are B 
competent to revoke the order of detention. In the instant case the 
representation had been considered by the Secretary, Government oflndia on 
4 
behalf of the Central Government and rejected the same whereas the writ 
• 
petition challenging the detention order had been filed as far back as on 
25.11.2002. The belated consideration of the representation does not satisfy 
the constitutional requirements as provided for under Article 22 (5) of the c 
Constitution. (Paras 8 and 13) [998-G, H; 1001-FJ 
1.2. Every person detained under the provisions of the Conservation of 
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 has a 
right to make a representation to the Central Government which is required 
to be considered and disposed of as expeditiously as possible. (Para 8) 
D 
" ' 
Kamlesh Kumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51, 
referred to. 
1.3. The failure on the part of the Central Government to independently 
consider the representation submitted by the detenu his detention renders E 
further detention of the detenu illegal. The initial order of detention passed 
under Section 3(1) of the COFEPOSA Act does not get vitiated. The very order 
of detention passed under Section 3(1) of the COFEPOSA Act cannot be 
declared void ab initio. [Para 8) [999-CJ 
1.4. An order of detention passed by the detaining authority on the basis F 
j. 
of material made available for its consideration and at its satisfaction does 
not get vitiated because ofa subsequent infraction of the detenu's right to 
make a representation and its disposal by the authorities. [Para 10) (999-G) 
Meena Jayendra Thakur v. Union of India, (1999) 8 SCC 177; Rajammal G 
v. State of Tamil Nadu and Anr., (1999) 1SCC417 and Smt. Santosh Anand 
+ 
v. Union of India and Ors., [1981) 2 SCC 420, relied on. 
1.5. The High Court at the most could have made such declaration and 
disposed of the writ petition requiring no further adjudi
Excerpt shown. Read the full judgment & AI analysis in Lexace.