Holding

Non‑consideration of a properly addressed representation under section 11 of COFEPOSA invalidates the detention order as not being in accordance with procedure.

Summary

The petitioner’s brother was detained on 31 August 1979 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). He made two representations to the Central Government, invoking section 11 of the Act for revocation of the detention, but the detaining authority failed to forward these representations to the Central Government, which left them unattended for several months. The petitioner filed a writ petition under Article 32 of the Constitution alleging that the non‑consideration of the representations vitiated the detention order. The Supreme Court held that the Central Government has a statutory duty to consider any representation under section 11 and that failure to do so renders the detention not in accordance with procedure. Consequently, the Court ordered the release of the detenu and allowed the petition.

Issues considered

Whether the failure of the detaining authority to forward a representation under section 11 of COFEPOSA to the Central Government vitiates the detention order.
Whether the Central Government’s duty to consider revocation petitions under section 11 is mandatory and must be exercised with reasonable expedition.
Whether a detention order can be sustained when the statutory procedure for revocation is not complied with.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 11, s. 3(1)

Subjects

detentionCOFEPOSArepresentationrevocationprocedural fairnessArticle 32foreign exchangesmugglingconstitutional law

Judgment

1078
l
A SHYAM AMBALAL SIROYA
v.
UNION OF INDIA AND OTHERS
February 20, 1980
8 (S. MURTAZA FAZAL ALI, P. S. KAILASAM AND A. D. KOSHAL, JJ.]
Conservation of Foreign Exchange and Prevention of S1nuggling Activities
A.ct. 1974--Sectton 11-Detenu's representation for revocation of dete1Jtion
order not considered by Government-Non-consideration, if vitiates the order. '
The petitioner's brother was detained by an order of detention dated 31st
August, 1979 under s. 3 (I) of the Comervation of Foreign Exchange and
c Prevention of Smuggling Activities Act, 1974 and the grounds of detention
were served on him on 5th September, 1979. An -application was made on
17th September, 1979 for supply of documents and statements recorded and
relied on in the grounds of detention. On 22nd September, 1979 he made an
mcomplete representation. The dcx:uments were supplied on 25th September,
27th September and 3rd October, 1979. The detenu made a second repr06en-
tation on 5th October, 1979 requesting that the order of detention be revoked
D by the Central Government but no action was taken on them till the date of
hearing.
In the writ petition it was alleged that the first representation as well as the
second representation requesting for the revocation of the order under e. 11
of the Act were not considered by the Central Government and that non-
consideration of .the representation vitiated the detention order. The detaining
S authority on the other hand contended that th'e mere f1act that the representa-
tion was not considered by the Central Government did not vitiate the order
of detention.
Allowing the petition,
HEID : The continued detention of the detenu cannot be held to be accord-
ing to procedure. [1081FJ
(I
If a properly addressed petition is left unattended for a long period of
time the detention order cannot be justified as being accordir-g to procedure.
[1081 El
The power conferred on the Central Government by section 11 of the
Act is wide enough to 'enable that Government to revoke the detention order
at any stage for the words used are a detention order may at any tlme be
revoked or nlodified. Any petition for revoca.tion of an order of detention
should be dealt with with reasonable expedition. It may be permissible for
the (~entra1 Government to take reasonable time for disposing of a petition
for revocation of an order of detention but it would not be justified in ignoring
the representation because a statutory duty is cast upon the Central Govern~
ment. It is necessary that the Government should apply its mind and either
H revoke the order of detention or dismiss the petition. [1080G·HJ
In the instant case the representation which was properly addressed by the
detenu to the Central Government was not forwarded to that Government and
SHYAM AMBALAL v. UNION (Kailasam, J.) 1079

as such no action had be'en taken till the date of hearing. There is no justifica~ A
tion in sending the representa.tion to the Central Govemm'ent at this very late
• stage. [IOSIC&E]

ORIGINAL JURISDICTION : Writ Petition (Cr!.) No. 1414 of 1979.
Under Article 32 of the Constitution.
• Ram Jethamalani and Harjinder Singh for the Petitioner. B
U. R. Lalit, E. C. Agarwala and M. N. Shroff for the Respondent.
·fhe Judgment of the Court was delivered by
KAILASAM, J. The petitioner is brother of Virendra Ambalal Siroya
who was detained by an order of detention dated 31-8-1979 issued by
Additional Secretary to the Government of India under S. 3 (1) of the c
Conservation of Foreign Exchange and Prevention of Smuggling Acti-
vities Act, 1974. The detenu was served with the grounds of deten-
tion on 5-9-1979. The counsel for the detenu made an application on
17-9-1979 for supply of documents, and statements recorded and
relied on in the grounds of detention. Before the documents were
supplied, an incomplete representation was made by the detenu on D
22-9-1979. The documents were supplied on 25-9-1979, 27-9-1979
lllld 3-10-1979. The detenu again made a second representation on
5-10-1979 and requested that the order of detention may be revoked
by the Central Government.
Mr. A. K. Sen, the learned counsel for the petitioner, submitted E
that the representation requesting the Central Government to order the
revocation under S. 11 of the Act was not forwarded by the_ detaining
authority to the Central Government and as such the detention is ille-
gal, In the memorandum of grounds in his writ petition at paragraph
XIV the detenu submitted that he made representation to the Central
Government and that the Central Government had not considered the F
representation at all. In paragraph XV the detenu contended that the
second representation was an application for revocation under S. 11 of
the Act wherein he specifically requested that the Central Government
should revoke the order. The said representation was not considered
by the Central Government. It was submitted that non-consideration
of the representation by the Central Government vitiated the detention G
-0rder. In reply the detaining authority stated in paragraph 15 as
follows:-
"It is submitted that the consideration of representation of
the detenu by the detaining authority is perfectly valid and
legal and in accordance with the law. It is, however, denied H
that merely because it was not considered by the Central
Government, the detention order is vitiated in any way."
1080 SUPREME COURT NEPORTS [1980] 2 S.C.R.

.\ It is clear from the statement that the representation was not for-
warded to the Central Government. The plea on behalf of the detain-
ing authority is 'that merely because the representation was not con-
sidered by the Central Government, the detention order would not be
vitiated.

n The representation of the detenu dated 5-10-1979 is marked as
Annexure 'E'. It states that it is a further representation in the matter
of his detention. After setting out the various grounds, the relief
asked for in paragraph 5 runs as follows : -
"The petitioner prays that :
(a) That the order of detention be revoked by the Cen-
c tral Government.
( b) This further representation be placed before
COFEPOSA Advisory Board alongwith the earlier
representation.
( c) That the Ad~isory Board be pleased to repqrt to the
D Central Government to revoke the impugned order of
detention."

The request of the detenu is clear : He prayed for the revocation 0f
the order of detention by the Central Government. It is not the case
of the detaining authority that he did not understand the representa-
E tion as being intended fur the Central Government. On the other hand,
his plea is that the mere fact that the Central Government has not
considered the representation would not vitiate the order of detention.
The detaining authority is the Additional Secretary, Government of
India, Ministry of Finance and it is not d;sputed that a communication
1
lo the Central Government can be properly addressed by sending it to
F the Additional Secretary, Government of India, Ministry of Finance.
It is admitted that th" representation was properly addressed to the
Central Government. The Central Government is empowered to
revoke the order of detention at any stage. It was submitted that the
order of revocation by the Central Government can only be passed
G after the order of detention in confirmed by the detaining authority and
the Advisory Board. The power conferred on the Central Govern-
ment by S. 11 is wide enough to enable the Central Governnwnt to
revoke the detention order at any stage for the words used · are a
detention order may at any time be revoked or modified. The power
of the Central Government to revoke the order of detention imp1ies
II that the detenu can make a representation for exercise of that power.
Any petition for revocation of an order of detention should be dealt
with reasonable expedition. In this case it is the main ground urged
SHYAM AMBALAL v. UNION (Kailasam, J.) 1081

on behalf of the detenu that the petition of the 5th of October, 1979
> was not forwarded to the Central Government and consequently no
order has been passed on that petition up to date. In the course of
arguments, Mr. A. K. Sen on behalf of the detenu submitted that even
the earlier representation was addressed to the Central Government
which was also not forwarded. We do not think that we should enter-
• tain this plea as it was not pleaded in the memorandum of grounds that B
the first representation was to the Central Government but made for
the first time in the Court before us. In any event, it is clear that a
~ ,. representation properly addressed by the detenu to the Central Govern-
__l· ment was not forwarded to the Central Government und as such no
action had been taken up to date. It may be permissible for the Cent-
" ral Government to take reasonable time for disposing any revocation c
petition. But it would not be justified in ignoring th_e representation
for revocntion of the detention as a statutory duty is cast upon the
Central Government. It is necessary that the Government should
apply its mind and either revoke the order of detention or dismiss the
petition, declining to order for revocation.
D
The question that arises for consideration is, as to what will be the
consequence if a properly addressed petitioU" is not forwarded to the
Central Government and as such left unattended for a period of nearly
four months. We feel that in such circumstances the detention cannot
be justified as being according to the procedure. In the circumstances
we do not feel that we will be justified in sending the representation to E
the Central Government for disposal at this stage.
/
Taking all the facts and circumstances of the case, we feel that the
continued detention of the detenu cannot be held to be according to
·~.
procedure. His release has already been ordered.
p
P.B.R. Petition allowed.

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