Holding

The order confirming preventive detention is valid; the Advisory Board has no duty to forward the detenu’s representation, and the Government’s confirmation without it does not violate Article 22(5).

Summary

The appellant challenged the preventive detention of Maheshraj under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974, arguing that his representation to the Advisory Board was not considered by the Karnataka Government, thereby violating Article 22(5) of the Constitution. The detenu had been informed of his right to make a representation to the State or Central Government but chose to address it only to the Advisory Board and did not request its forwarding. The Government confirmed the detention order without knowledge of the representation. The Supreme Court held that the Government was justified in confirming the detention on the basis of the record before it, as no statutory duty exists on the Advisory Board to forward the detenu’s representation, and the order was neither unconstitutional nor illegal. Consequently, the appeal was dismissed, upholding the High Court’s decision.

Issues considered

The adequacy of compliance with Article 22(5) when a detenu makes a representation only to the Advisory Board and not to the appropriate Government.
Whether the Advisory Board under Section 8(c) of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974, is statutorily obligated to forward the entire record, including the detenu’s representation, to the Government.
Whether a confirmation order of preventive detention that does not consider a representation made to the Advisory Board is unconstitutional or illegal.

Legislation cited

Constitution of Indias. Article 22(5)

Subjects

preventive detentionArticle 22(5)representationAdvisory BoardConservation of Foreign Exchange Actconstitutional validitydue process

Judgment

A R. KESHAVA
v.
M.B. PRAKASH AND ORS.

DECEMBER 12, 2000

B [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.

'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
E 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
B
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
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
E
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
the State Government. The State Government while confirming the order of
detention has to pursue the report of the Advisory Board along with other F
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 opinion for further detention. However,
where the Board reports that there is, in its opinion, no sufficient cause for
the detention of the person concerned, the appropriate Government has no
option but to revoke the detention order and cause the person to be released
forthwith. When the report of the Advisory Board opining that there exists H
598 SUPREME COURT REPORTS f200UJ .SCPP. 5 S.C.R.

A sufficient cause for detention of a person is not binding upon the appropriate
Government, there is no infirmity in its order passed without consideration
of the proceedings of the Advisory Board. The obligation of the appropriate
Government is restricted to the extent of examining the report conveying the

B
opinion of the Board regarding further detention of the detenu.
(605-B, C; 605-H; 606-A, B, c, DI

Jasbir Singh v. Lt. Governor, Delhi & Am:, f1999J 4 SCC 228, relied
-
on

Dr. Rahamatullah v. State of Bihar & Anr., (1981 J 4 SCC 559 and Smt.
..
C Gra,y v. State of Kera/a & Anr., [199112SCC1, distinguished.

Harbans Lal v. ML. Wadhawan & Ors., [1987) l SCC 151 and Nand
Lal Bajaj v. State of Punjab & Anr. [1981) 4 SCC 327, referred to.

2. The contention that the appropriate Government had not considered
D the whole of the record while confirming the detention order, is based upon
wrong assumption both on facts as well as on law. The Court is satisfied that
the order of confirmation was passed by the appropriate Government after
perusal of the whole record available with it and such power was not
mechanically exercised. The order of detention and its confirmation is based
upon the subjective satisfaction arrived at by objective considerations with
E reference to all the record pertaining to the matters relating to the
circumstances warranting the detention of the detenu.
[607-D, E; 608-E, Fl

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1103
F of2000.
From the Judgment and Order dated 21.7.2000 of the Kamataka High
Court in W.P. No. 42 of2000 (HC).

B.Kumar, Sr. Adv. and K.K. Mani for the Appellants.

G Mohan V. Katarki and N. Ganpathi for the Respondent.

The Judgment of the Court was delivered by

SETHI, J. Leave granted.

H Alleging violation of Article 22(5) of the Constitution of India and
relying upon a Judgment of this Court in Smt. Gracy v. State of Kera/a &
R. KESHA VA v. M.B. PRAKASH [SETHI, J.] 599
'/ (
Anr., [ 1991) 2 sec 1, the appellant has challenged the preventive detention A
of A. Maheshraj, a resident of Bangalore detained under Section 3 of the
Conservation of Foreign Exchange and Prevention of Smuggling Act
(hereinafter referred to as "the Act"). It is submitted that as the representation
• of the detenue to the Advisory Board has not been considered by the
appropriate government, his continuous detention was unconstitutional and B
liable to be quashed. It is contended that notwithstanding the non filing of
the representation to the appropriate government, a duty was cast upon the
Advisory Board to transmit the representation, received by it, to the
government who had a corresponding obligation to consider it before
confirming the order of detention. Placing its reliance upon a subsequent
judgement of this Court in Jasbir Singh v. lt. Governor, Delhi & Anr., [1999] C
4 SCC 228 and distinguishing the facts of the present case, the High Court
dismissed the habeas corpus petition filed before it vide the judgment
impugned in this appeal.

To appreciate the rival contentions of the learned counsel appearing for
the parties, it is necessary to refer to some of the admitted facts in this case, D
which are:

On receipt of an intelligence report that a passenger wearing dark grey
coloured suit travelling from Singapore was carrying with him electronic
goods which 'he shall attempt to get cleared without payment of duty, the E
officer of the Customs Headquarters, Preventive, Bangalore kept a watch on
the passengers of Flight No.IC 958 which landed at 0930 hrs. on 3.12.1999,
and noticed the detenu resembling the descriptions already received. He
checked his baggages and completed formalities with Customs authorities.
His luggage comprised of two suit-cases, one small hand suit-case, one green
coloured zipper handbag and one plastic cover. He had, in his disembarkation F
Card, declared the goods with him worth Rs. 35,000. Having a reasonable
belief that the detenue had not made the correct declaration, the officers of
the Customs made inquiries from him. Being suspicious, the officers opened
the four baggages and checked baggage under Baggage Tag Nos.SQ 144161,
SQ144162, SQ144141 and SQ144164 and on examination found to contain G
electronic goods, namely, Mobile Phones, Mobile Phones in CRD condition,
computer parts in commercial quantity, having a total value of Rs. 18,38,300.
The detenu was informed that as he has attempted to smuggle goods and
tried to evade custom duty, the baggage was liable to be confiscated under
the provisions of Customs Act, 1962. All the goods found in the baggage
of the detenu, as detailed in the Annexures to Mahzar dated 3.12.1999 were H
600 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A seized, packed into suit case, cartons and sealed with seal and signature of
the detenue as well as of the Mahzar witnesses. After investigation the
detaining authority, in exercise of the powers conferred under Sections 3( I )(i)
and 3( I )(iii) of the Act directed the said A.Maheshraj to be detained and kept
in custody in Central Prison, Bangalore vide order dated 9.3.2000. The grounds .
B of detention were served upon the detenu in the jail. The detenu was also
informed that he can file a representation against the detention order to the
Government of Karnataka or the Government of India. The detenu made a
representation to the Advisory Board and admittedly did not make any
representation either to the Government of India or the State Government or
any other authority. He did not even request to the Advisory Board or the
C jail authorities to forward his representation to any of the governments or
authority.

In the writ petition filed on his behalf, the appellant submitted:

"The petitioner submits that the detenue has made a representation
D to the Advisory Board and/or any authority required to consider the
same for his release from detention at the earliest. The respondent
No. I be called upon to explain how the same has been considered."

The High Court found that the petition filed before it was lacking in
particulars and directed the appellant to give full details of the representation
E and its consideration by the Board or by the Government and, if possible to
place on record the copy of the representation submitted by the detenue. The
appellant filed an application seeking permission to place on record the
additional facts. The prayer was allowed. The appellant stated that the detenue
had submitted to the Senior Superintendent of Central Prison, Bangalore on
F 22nd March, 2000 six copies of representation addressed to the Advisory
Board. Upon inquiry he was informed that the representation addressed to the
Advisory Board was forwarded on 24th March, 2000. The detenue also
appeared before the Advisory Board on 10.4.2000. After receipt of the report
of the Advisory Board the Government ofKarnataka vide order dated 18.4.2000
confirmed the order of detention. As the fact of representation filed by the
G detenu to the Chairman of the Advisory Board was not within the knowledge
of the respondents I and 2, they did not consider the aforesaid representation
before confirming the order of detention.

It is true that the courts of law do not see the detention of a person
without trial with favour but it is equally true that our constitutional scheme
H itself contemplates the preventive detention, however, subject to rigours of
R. KESHA VA v. M.B. PRAKASH [SETHI. l.J 60!

law relating to such detention and the guarantees enshrined in part lll of the A
Constitution. One of the rights conferred upon the detenu, as incorporated
in Article 22(5) of the Constitution, is to make representation and obligation
upon the appropriate government to consider such representation before
confirming the detention. It is further obligation of the detaining authority to
communicate to the detenue the grounds of detention on which the order has B
been made and appraise him of his right to make a representation against the
order. Order of preventive detention is liable to be quahsed if the constitutional
obligations :n terms of clause (5) of Article 22 of the Constitution are not
complied with. There is no gainsaying that preventive detention is a serious
invasion of personal liberty and such meagre safeguards, as the Constitution
has provided against the improper exercise of the power, must be zealously C
watched and enforced by the courts. However, where despite intimation, the
detenu omits to exercise his constitutional right, he cannot, thereafer, allege
its 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.
D
The thrust of the argument of the appellant revolves around the
observations made by this Court in Smt.Gracy's case (supra) to the effect:

"It is undisputed that if there be only one representation by the
detenu addressed to the detaining authority, the obligation arises E
under Article 22(5) of its consideration by the detaining authority
independent of the opinion of the Advisory Board in addition to its
consideration by the Advisory Board while giving its opinion. In
other words, one representation of the detenu addressed only to the
Central Government and not also to the Advisory Board does not
dispense with the requirement of its consideration also by the Advisory F
Board. The question, therefore, is: whether one of the requirements of
consideration by government is dispensed with when the detenu's
representation instead of being addressed to the government or also
to the government is addressed only to the Advisory Board and
submitted to the Advisory Board instead of the government? On G
principle, we find it difficult to uphold the learned Solicitor General's
contention which would reduce the duty of the detaining authority
from one of substance to mere form. The nature of duty imposed on
the detaining authority under Article 22(5) in the context of the
extraordinary power of preventive detention is sufficient to indicate
that strict compliance is necessary to justify interference with personal H
602 Sl:PREME COURT REPORTS [2000J SCP!'. 5 S.C.R.

A liberty. It is more so since the liberty involved is of a person in
detention and not of free agent. Article 22(5) casts an important duty
on the detaining authority to communicate the grounds of detention
to the detenu ·1t the earliest to afford him the earliest opportunity of
making a representation against the detention order which implies the
duty to consider and decide the representation when made. as soon
B as possibk. Article 22(5) speaks of the detenu's 'representation against
the order', and imp'Jses the obligation on the detaining authority.
Thus, any representation of the detenu against the order of the
detention has to be considered and decided by the detaining authority,
the requirement of its separate consideration by the Advisory Board
c being an additional requirement implied by reading together clauses
(4) and (5) of Article 22 even though express mention in Article 22(5)
is only of the detaining authority. Moreover, the order of detention is
by the detaining authority and so also the order of its revocation if
the representation is accepted, the Advisory Board's role being merely
advisory in nature without the power to make any order itself. It is not
D as if there are two separate and distinct provisions for representation
to two different authorities viz. the detaining authority and the
Advisory Board, both having independent power to act on its own.

It being settled that the aforesaid dual obligation of consideration of
the detenu's representation by the Advisory Board and independently
E by the detaining authority flows from Article 22(5) when only one
representation is made addressed to the detaining authority, there is
no reason to hold that the detaining authority is relieved of this
obligation merely because the representation is addressed to the
Advisory Board instead of the detaining authority and submitted to
the Advisory Board during pendency of the reference before it. It is
F
difficult to spell out such an inference from the contents of Article
22( 5) in support of the contention of the learned Solicitor General. The
contents of Article 22(5) as well as the nature of duty imposed thereby
on the detaining authority support the view that so long as there is
a representation made by the detenu against the order of detention,
G the afore,aid dual obligation under Article 22(5) arises irrespective of
the fact whether the representation is addressed to the detaining
authority or to the Advisory Board or to both. The mode of address
is only a matter of form which cannot whittle down the requirement
of the constitutional mandate in Article 22(5) enacted as one of the
safeguards provided to the detenu in case of preventive detention." ~

H \

l

j
_,
_
R. KESHA VA v. M.B. PRAKASH [SETHI, J.] 603
On facts we find that in that case the detenu had made a representation A
to the Advisory Board who considered it before sending its opinion to the
Central Government along with the entire record including the representation
submitted by the detenu. The Central Government confirmed the order of
detention without independent consideration of the detenu's representation
sent to it by the Advisory Board. On the above facts the court formulated B
the point of !aw for its consideration as under:

"Wht.:ther there has been any infraction of the guarantee under Artick
22(5) of the Constitution as a result of Central Government's omission
to consider the detenu's representation independent of its consideration
by the Advisory Board. The Central Government's stand is that the C
detenu' s representation being addressed to the Advisory Board to
which it was submitted during pendency of the reference bdore the
Advisory Board, there was no obligation on the Central Government
also to consider the same independently since the representation was
not addressed to the Central Government."
D
and made observations as noted hereinabove.

In the instant case the respondent No. I in his affidavit has categorically
stated:

"I respectfuUy submit that the Advisory Board has not forwarded the E
representation filed by the detenu to the State Government and
consequently l did not consider the said representation filed by the
detenu before the Advisory Board.

I respectfully submit that the Advisory Board has forwarded its report
along with the covering letter dt.12.4.2000, to the State Government. F
However, the respondents l and 2 did not receive any representation
given to the Advisory Board in as much as the Advisory Board has
not sent the copy of the representation of the detenue, to the State
Government. Therefore, the State Government could not consider the
said representation. As the representations were addressed to the
Advisory Board alone, there is no obligation on the part of the
G
Superintendent of Central Prison to forward the copy of the
representation to the State Government or the Central Governme11t.
Consequently, the third respondent has not forwarded the
representation to the respondents I and 2. l submit that the Advisory
Board will be having the records which are sent by the State Government H
604 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A such as the order of detention, grounds of detention and the documents
relied upon. Except these documents, the State Government will not
furnish any oth<:r document to the Advisory Board. However, the
documents which were produced by the detenu in the course of
hearing before the Advisory Board, do not form part of the records
sent by the State Government. In this case, the only extra document
B which was produced by the detenue was the representation. The copy
of the representation was not sent by the Advisory Board to the State
Government while sending its report to the State Government.

In the absence of the representation of the detenu, the order of detention
C is stated to have been confirmed on the basis of other material available with
the Government.

Mr. B. Kumar. Senior Advocate who appeared for the appellant submitted
that a duty was cast upon the Advisory Board to submit all records including
the representation of the Advisory Board to the appropriate government. We
D are not impressed with such a general submission and the proposition of law.
Section 8 of the Act provides that for the purposes of sub-clause (a) of clause
(4 ), and sub-clause ( c) of clause (7) of Article 22 of the Constitution, the
Central Government and each State Government shall, whenever necessary,
constitute one or more Advisory Boards and shall within five weeks of the
E detention of a person make a reference in respect thereof to the Advisory
Board constituted to enable such Board to make a report to the effect. Clause
(c) of Section 8 of the Act provides:

"The Advisory Board to which a reference is made under clause (b)
shall after considering the reference and the materials placed before
p it and after calling for such further information as it may deem necessary
from the appropriate Government or from any person called for the
purpose through the appropriate Government or from the person
concerned, and if in any particular case, it considers it essential so to
do or if the person concerned desires to be heard in person, after
hearing him in person, prepare its report specifying in a separate
G paragraph thereof its opinion as to whether or not there is sufficient
cause for the detention of the person concerned and submit the same
within eleven weeks from the date of detention of the person
concerned." Clause (t) of the said Section reads:

"In every case where the Advisory Board has reported that there is
H in its opinion sufficient cause for the detent10n of a person, the
R. KESHA VA v. M.B. PRAKASH [SETHI, J.J 605

appropriate Government may confirm the detention order and continue A
the detention of the person concerned for such period as it thinks fit
and in every case where the Advisory Board has reported that there
is in its opinion no sufficient cause for the detention of the person
concerned, the appropriate Government shall revoke the detention
order and cause the person to be released forthwith."
B
A perusal of the aforesaid Section and other relevant provisions of the
Act makes it abundantly clear that no duty is cast upon the Advisory Board
to furnish the whole of the record and the representation addressed to it only
to the Government along with its report prepared under Section 8( c) of the
Act. It may be appropriate for the Board to transmit the whole record along C
with the report, if deemed expedient but omission to send such record or
report would not render the detention illegal or cast an obligation upon the
appropriate government to make inquiries for finding out as to whether the
detenu has made any representation, to any person or authority, against his
detention or not. We are of the opinion that in Gracy's case lSupra) it was
not held that any such duty was cast upon the Board but even if the D
observations are stretched to that extent, we feel that those observations
were uncalled for in view of the scheme of the Act and the mandate of the
Constitution.

In Nand Lal Bajaj v. State of Punjab & Anr., [1981] 4 SCC 327 this Court E
made the following observations:

"The matter can be viewed from another angle. We were informed that
the Advisory Board did not forward the record of its proceedings to
the State Government. If that be so, then the procedure adopted was
not in consonance with the procedure established by law. The State F
Government while confirming the detention order under Section 12 of
the Act has not only to peruse the report of the Advisory Board, but
also to apply its mind to the material on record. If the record itself was
not before the State Government, it follows that the order passed by
the State Government under Section 12 of the Act was without due
application of mind. This is a serious infirmity in the case which makes G
the continued detention of the detenu illegal."

In view of the constitutional and legal position, as noted by us, we find
it difficult to agree with the reasoning in the aforesaid observations. In the
absence of constitutional or statutory provisions, we are unable to observe
that the Advisory Board was under an obligation to forward the whole of the H
606 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A record of its proceedings to the State Government. The State Government
while confirming the order of detention has to peruse the report of the
Advisory Board along with other records, if any, in its possession, and cannot
determine the legality of the procedure adopted by the Advisory Board. Under
Clause (t) of Section 8 of the Act, the Government is not bound by the report
B 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. The word "rnay" used in this clause does not cast
duty upon the appropriate government to necessarily accept the opinion for
further detention. However, where the Board reports that there is. in its
opinion, no sufficient cause for the detention of the person concerned, the
C appropriate government has no option but to revoke the detention order and
cause the person to be released forthwith. When the report of the Advisory
Board opining that there exists sufficient cause for detention of a person is
not binding upon the appropriate government, there is no infirmity in its order
passed without consideration of the proceedings of the Advisory Board. The
D obligation of the appropriate government is restricted to the extent of examining
the report conveying the opinion of the Board regarding further detention of
the detenu. Similarly the observations made by this Court in Harbans Lal v.
Ml. Wadhawan & Ors., [1987] l SCC 151 to the effect that the non submission
of the entire record being the requirement of law, cannot be held to be good
law on the point.
E In Jasbir Singh'> case (supra) similar argument based upon Gracy's case
was considered and disposed of by observing:

·'But the question for consideration is when the representation has
not been addressed to the Central Government but is addressed to the
Advisory Board can it be said that the Central Government also owes
F
an obligation to consider the same and decide one way or the other.
The detaining authority was the Lt. Governor of Delhi. In such a case
if the representation had not been addressed to the Central Government
even though indicated in the grounds of detention then it cannot be
said that any representation made by the detenu to the Advisory
G Board ought to have been considered by the Central Government."
The reliance of the learned counsel of the appellant on the judgment
of this Court in Dr. Ruhamatullah v. State v/Bihar & Anr., [1981] 4 SCC 559]
is misplaced inasmuch as in that case the point of law as canvassed before
us, was not in issue. The detention in that case was quashed on the ground
H of non consideration of the report by the appropriate government and delay
R. KESHA VA v. M.B. PRAKASH [SC: IHI, J.] 607

in the compliance of the provisions of the Act. A
We are satisfied that the detenu in this case was apprised of his right
to make representation to the appropriate government/authorities against his
order of detention as mandated in Article 22(5) of the Constitution. Despite
knowledge, the detenu did not avail of the opportunity. Instead of making a
representation to the appropriate government or the confirming authority, the B
detenu chose to address a representation to the Advisory Board alone even
without a request to send its copy to the concerned authorities under the Act.
In the absence of representation or the knowledge of the representation
having been made by the detenu, the appropriate government was justified
in confirming the order of detention on perusal of record and documents C
excluding the representation made by the detenu to the Advisory Board. For
this alleged failure of the appropriate government, the order of detention of
the appropriate government is neither rendered unconstitutional nor illegal.

Taking a cue from the objections filed by Sh. M.B. Prakash, Principal
Secretary to Government, Home and Transport Department of the State of D
Karnataka, it was argued on behalf of the detenu that as the Government had
allegedly not considered the whole of the record pertaining to the detention,
the order of confirmation of detention was illegal and unconstitutional. The
submission is based upon wrong assumption both on facts as well as on law.
Reliance was placed on the words "since the Advisory Board has not sent
the records to the State Government" appearing in the affidavit, to contend E
that the State Government had passed the order of confirmation without
consideration of the record. The appellant did not notice the earlier part of
that sentence in the context of which those words were used. This part reads:

"Thus, as the respondents I and 2 did not have knowledge about the
representations filed by the detenue, the said representations were
F
not considered by the respondents I and 2."

The emphasis of submission in the objections was with respect to the non
submission of the record pertaining to the representation filed by the detenu
only upon which the appellant had built his case. The failure of the respondent G
to comply with the court directions dated l 5.11.2000 was also made the basis
of such a contention. In our order dated 29th November, 2000, we felt that
the Principal Secretary to the Government of Karnataka had not complied with
l our directions, directing him to intimate us as to "what all records were with
the Government/what all records were considered by the Government before
passing the order of confinnation". Prima facie we felt that our order had been H
608 SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.

A flouted by said Sh.M.B. Prakash which necessitated the issuance of notice
to him to show cause why adverse remarks shall not be made against him for
flouting the court directions. In response to our notice an affidavit has been
filed in this Court on 5th December, 2000 wherein it is specifically stated:

"In response to the notice issued to me to show cause why adverse
B remarks shall not be made against me, I respectfully submit that while
passing the order of confirmation, the following documents were with
Government:

(a) The entire file concerning the Detention Order in No.HTD 2 SCF
2000 containing the following among other documents:
c (i) Detention order dated 9.3.2000.

(ii) Grounds of detention dated 9.3.2000, along with entire documents
relied upon in the Grounds of detention.
(iii) Reference dated 3.4.2000 referring the case to the Advisory Board.
D (iv) Report and opinion dated 12.4.2000 of the Advisory Board.

(v) While confirming the order of the detention, Government
considered the report and opinion dated 12.4.2000 of the Advisory
Board."

E In the presence of the aforesaid affidavit we cannot give any credence
to the ipse dixit of the appellant and his effort to aim arrows in the darkness
to find out some ground even though he is not sure about any one of such
ground to challenge the order of detemion. We are satisfied that the order
of confirmation was passed by the appropriate government after perusal of
the whole record available with it and such power was not mechanically
F exercised as alleged. The order of detention and its confirmation appears to
have been based upon the subjective satisfaction arrived at by objective
considerations with reference to all the record pertaining to the matters
relating to the circumstances warranting the detention of the detenu.

G We do not find any error of law or jurisdiction in the order of the High
Court, the detaining authority and the confirming authority. The present
appeal being misconceived is, therefore, dismissed.

Shri M.B. Prakash, Principal Secretary to the Government of Karnataka
has realised his mistake of not referring to the documents upon the basis of
H which the confirmation order was passed and has stated:
R. KESHA YA v. M.B. PRAKASH [SETHI, J.l 609

"I respectfully submit that inadvertently I did not refer to the file and A
documents now mentioned above in my earlier affidavit. This omission
is neither deliberate nor intentional. I deeply regret for the same. I
sincerely tender my unconditional apology."

In view of above, no further action is required to be taken in the matter.
We close the matter, so far as, Sh.M.B. Prakash is concerned, reminding him B
to be careful in compliance of the orders of this Court in future.

K.K.T. Appeal dismissed.