VIMAL CHAND JAWANTRAJ JAIN versus SHRI PRADHAN AND ORS.

Citation: [1979] 3 S.C.R. 1007 · Decided: 04-05-1979 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Case Allowed
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Judgment (excerpt)

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VIMAL CHAND JAWANTRAJ JAIN 
v. 
SHRI PRADHAN AND ORS. 
May 4, 1979 
[P. N. BHAGWATI AND R. S. PATHAK, JJ.] 
Conservation of Forei,::11 Exchange and Prevention of Sn1ug1-Jing Actil'ities 
Act, 1974 (Act 52 of 1974)-Representation of the petitioner not considered 
by the State Govenunent-Confinning the detention order 011 the basi,r of the 
Advisory Bot1rd's report is int·a[id being in contravention of Article 22(5) of 
A 
the Constitu!ion-Subsieque11t consideration and rejection of the repre,~entation 
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could not cure the itn·alidity of confirn1ation of detention. 
The detenu under the COFEPOSA challenged the orders detaining him as 
violative of Art. 22(5) of the Constitution on the ground that his representa· 
tion was neither considered nor disposed of by the Secretary to the Government 
of Maharashtra, though the latter intimated by his letter dated 22nd December 
1978, that the issue of copies of relevant documents and statement to him \Vas 
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under consideration of the Government and after that issue was decided the 
petitioner's representation would be considered and a suitable reply would 
be 
given. The admitted fact was that the State Government confirmed the order 
of detention solely on the basis of the report of the Advisory Board. 
AllowiI!g the Writ Petition, the Court, 
HELD : 1. The power to preventively detain a person cannot be exercised 
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except in accordance with the constitutional safeguards provided. in 
clauses 
(4) and (5) of Article 22 and if an order of detention is made in violation of 
such ·safeguards, it would be liable to be struck down as invalid. It is immaterial 
whether these constitutional safeguards are incorporated in the Jaw authorising 
preventive detention because even if they are not, they would be deemed to 
be ro.rt of law as a super~imposition of the Constitution which is the supreme 
la\v of the laud and they must be obeyed on pain of invalidation of the o: di:T 
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of detention. [1010 B-D]. 
2. The constitutional imperative enacted in clause (5) of Article 22 requir-
ing the earliest opportunity to be afforded to the detenu to make a represento.-
tion carries with it by necessary implication a constitutional obligation on the 
detaining authority to consider the representation as early as possible before 
making an order confirn1ing the 
detention. The detaining authority 
must 
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consider the representation of the detenu and come to its own conclusion whe-
ther it is necessary to detain him. If the detaining authority takes the 
view, 
on considering the representation of the detenu, that it is not necessary to detain 
him, it would be wholly unnecessary for it to place the case of the detenu be-
fore thl Ad·visory Board. The requirement of obtaining opinion of the Advisory 
Boord is an additional safeguard over and above the safeguard afforded to the 
detenu of making a representation against the order of detention. The opinion 
H 
of the Advisory Board even if given after consideratio~ of the- represe,ntation of 
the detenu need not necessarily be binding on the detaining authority. [1011 C-E] 
1007 
A 
B 
c 
D 
1008 
SUP>.EME COURT REPORTS 
[1979] 3 s.c.R. 
There are thus two distinct safeguards provided to a detenu: one is that his 
cn~e n1u5t be referred to an Advisory Ilo.1rd for its opinion if it is sought to 
ddain him fer a longer period than three months and the other is that he should 
b:: afforded the earliest opportunity of making a representation 
against the 
orl~::r of ct,~tcntion and such representation should be conside-red by the detain~ 
ing auth(1J ity as early as possible before any order is m:ide 
confirming 
the 
dctc>!1tion. 
Neither safeguard is dependent on th.:! other and both have to be 
ob'icrvtd by the detaining authority. The 
detaining authority 
is therefore, 
bound to con~ider the representation of the detenu on its own and keeping in 
view all the facts and 
circumstances relating to the case, come to its· own 
deci5icn whether to confirm the order of detention or to release the di.::tenu. 
The subsequent consideration o.nd rejection of the representation could not cure 
the in\alidity of the order of confirmation. 
[1012C~G, 1013E]. 
Khudiratn Das v. State of West Bengal, AIR 1975 SC 550; Khairul Haque 
v. The State of West Bengal, W.P. 246/69 decided on 10-9-69; referred to. 
CRIMINAL ORIGINAL JURISDICTION : Writ Petition No. 
146 of 
1979. 
(Under Article 32 of the Constitution) 
R. Jethmalani and Mrs. K. Hingo
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