UNION OF INDIA AND ANR. versus SNEHA KHEMKA AND ANR.

Citation: [2004] 1 S.C.R. 1074 · Decided: 23-01-2004 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Disposed off

Judgment (excerpt)

A 
B 
UNION OF INDIA AND ANR. 
V. 
SNEHA KHEMKA AND ANR. 
JANUARY 23, 2004 
[DORAISWAMY RAJU AND S.B. SINHA, JJ.] 
Constitution of India, 1950; Article 22(5)/Conservation of Foreign 
Exchange. and Prevention of Smuggling Activities, Act; Sections 3 and //: 
C Detention of accused-Representations-Rejected by the authorities 
concerned-Validity of the order of detention-Challenge to-Writ Petition 
allowed by High Court holding that non-consideration of representations by 
all the three aulhorities rendered the order of detention otiose-On appeal, 
Held: no such procedure contemplated-It would result in delay-The 
representation has to be considered by the authority concerned and not by all 
D the authorities-General Clauses Act, 1897-Section 21. 
The issue which arose in this appeal was as to whether representation 
made by the detenu or on his behalf to the authorities concerned is 
required to be c:onsidered necessarily by all the authorities. 
E 
It was contended for the appellant-Union of India that the 
representations could only be considered by the authority concerned. 
On behalf of the respondent, it was submitted that representations 
might contain different grounds and therefore unless the Central 
Government or the detaining authority obtain the representations made 
F before other authorities, effective disposal thereof would not be possible; 
and that having regard to the fact that the period of detention was long 
over and that several other contentions were raised before the High Court, 
the Supreme Court may not exercise its jurisdiction under Article 136 of 
the Constitution. 
G 
H 
Disposing of the appeal, the Court 
HELO: I.I. A right to make a representation is a facet of 
fundamental right. Article 22(5) of the Constitution does not state as to 
before whom such representation is to be made, and provisions therefor 
1074 
U.0.1. v. SNEHA KHEMKA 
1075 
are laid down in the statute under which the detenu has been detained. A 
Upon service of the order of detention on the detenu, the detaining 
authority or the State Government is obligated to forward to the Central 
Government a report thereabout; whereafter the latter is entitled to 
consider it at its earliest opportunity, the validity or otherwise thereof so 
as to enable it to intervene in appropriate cases by exercising its power of B 
revocation. Further more, the representation of the detenu, if any, at a 
later stage is required to be considered by the Central Government in 
terms of Section II of the Act. 11079-G, H; 1080-BI 
Kamlesh Kumar lshwardas !'ate! etc. v. Union of India and Ors. etc., 
119951 4 sec 51, followed. 
c 
1.2. In terms of Section 11 of the COFEPOSA Act the authority 
vested in the Central Government or the State Government to revoke an 
order of detention is without prejudice to the provisions contained in 
Section 21 of the General Clauses Act, 1897. In terms of Section 21 of the 
General Clauses Act, an authority who passes an order has the jurisdiction D 
to revoke the same. A representation of the detenu having regard to clause 
(5) of Article 22 of the Constitution of India must also be disposed of within 
a reasonable time. It is equally well-settled that the constitutional right to 
make a representation includes the right to obtain proper consideration 
thereof by the authority to whom it is made. 11080-E, F; 1081-A, B] 
1.3. If it is to be assumed that the three different authorities before 
whom the representations are made are required to obtain copies of the 
representations made to the others, before a representation is considered, 
the authority concerned will have to make an enquiry from the authorities 
E 
as to whether a representation had been made to it and if the answer F 
thereof is in the affirmative, to obtain a copy thereof. Once such an enquiry 
is made and eventually if in the meanwhile an order on such representation 
has been passed by the authority concerned, the same would also be 
required to be obtained. Apart from the fact that such procedur~ is not 
contemplated, a great delay would ensue thereby which would run counter 
to the constitutional scheme, as the detenu has a fundamental right to have G 
the same considered and obtain an order on his representation by the 
appropriate authority at the earliest opportunity. 11081-C, D, El 
Kamlesh Kumar lshwardas Pale/ e/c. v. Union of India and Ors. etc., 
1199514 sec 51, followed. 
H 
1076 
SUPREME COURT REPORTS 
[2004] I S.C.R. 
A 
Kubic Daru

Excerpt shown. Read the full judgment & AI analysis in Lexace.