Writ Petition No 146 of 1979 Under Article 32 of the Constitution R Jethmalani and Mrs K Hingorani for the Petitioner
U R Lalit
J L Jain and M N Shroff for the Respondents
The Judgment of the Court was delivered by BHAGWATI J
 This petition is directed against the validity of an order of detention dated 31st November 1978 made by the first respondent who is the Secretary to the Government of Maharashtra Home Department in exercise of the power conferred under sub section I of section 3 of the hereinafter referred to as the Act
The petitioner has urged several grounds before us but it is not necessary to refer to theme since there is one ground which is in our opinion sufficient to dispose of the petition in favour of the petitioner
To appreciate this ground it is necessary to state a few facts
On 13th November 1978 an order was made by the 1st respondent in exercise of the power conferred on him under sub section 1 old section 3 of the Act directing the detention of the petitioner
Pursuant to the order of detention the petitioner was arrested and he was immediately served with the grounds of detention which were embodied in a communication dated 13th November 1978 addressed by the 1st respondent to the petitioner
The grounds of detention were quite elaborate and they alleged various smuggling activities against the petitioner and several statements and documents were referred to and relied upon in support of those allegations
The petitioner by his 1009 advocate s letter dated 25th November 1978 requested the 1st respondent to furnish copies of the statements and documents referred to and relied upon in the grounds of detention and stated that he required the same for the purpose of enabling him to make a representation against the order of detention
It seems that a copy of this letter was also sent by the petitioner to the Collector of Customs
The Assistant Secretary to the Government of Maharashtra Home Department informed the petitioner s advocate by his letter dated 27th November 1978 that copies of the relevant documents and statements required by the petitioner for the purpose of making a representation against the order of detention may be obtained from the Collector of Customs
The petitioner thereupon addressed his advocate s letter dated 2nd December 1978 to the Collector of Customs requesting him Lo furnish copies of the relevant documents and statements
The Assistant Collector of Customs however replied by his letter dated 6th December 1978 stating that copies of the relevant documents and statements would be supplied after a show cause notice under the Customs Act 1926 was issued to the petitioner
The petitioner was thus unable to get copies of the relevant documents and statements from the Collector of Customs
The petitioner obviously could not wait for making a representation since the period of thirty days within which a representation must be made was expiring and he therefore sent a representation dated 49th December 1978 to the Home Secretary and it was received by the Home Department on 12th December 1978
The Asstt
Secretary Home Department by his letter dated 22nd December 1978 acknowledged that the representation of the petitioner was received on 12th December 1978 and intimated that the issue regarding the supply of copies of relevant documents and statements to the petitioner was under consideration of the Government and after this issue was decided the representation of the petitioner would be considered and a suitable reply would be given
Now it appears from the affidavit in reply filed by the 1st respondent that the case of the petitioner was in the meanwhile referred to the Advisory Board and since the meeting the Advisory Board was fixed on 20th December 1978 the representation of the petitioner was forwarded to the Advisory Board for its consideration
The Advisory Board reported to the 1st respondent that in its opinion there was sufficient cause for the detenion of the petitioner and this report was received by the 1st respondent on 6th January 1979
The 1st respondent after considering the report of the Advisory Board made an order dated 15th January 1979 confirming the detention of the petitioner
1010 The petitioner on these facts contended that the order confirming the detention of the petitioner was passed by the 1st respondent without considering the representation of the petitioner and the
detention of the petitioner was therefore unlawful as being in con travention of Article 22S of the Constitution
This contention has in our opinion great force and it must result in invalidation of the detention of the petitioner
It is now settled law that the power to preventively detain a person cannot be exercised except in accordance with the constitutional safegudards provided in clauses 4 and S of Article 22 and if any 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 rated in the law authorising preventive detention because even if they are not they would be deemed to be part of the law as a super imposition of the Constitution which is the supreme law of the land and they must be obeyed on pain of invalidation of the order of detention
The 1st respondent was therefore bound to observe these constitutional safeguards provided inter alia in clauses 4 and 5 of Article 22 in detaining the petitioner
We are concerned in this case only with a complaint of violation of the provisions of clause 5 of Article 22 and that clause reads as follows When any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be com municate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
 This Court explained the true meaning and import of this clause in Khudiram Das vs The State of West Bengall The constitutional imperatives enacted in this article are twofold 1 the detaining authority must as soon as may be that is as soon as practicable after the detention com municate to the detenu the grounds on which the order of detention has been made and 2 the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention
These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security
1 A I R 1975 section C 550 1011 It will therefore be seen that one of the basic requirements of clause 5 of Article 22 is that the authority making the order of detention must afford the detenu the earliest opportunity of making a representation against the order of detention
Now this requirement would become illusory unless there is a corresponding obligation on the detaining authority to consider the representation of the detenu as early as possible
It could never have been the intention of the constitution makers that the detenu should be given the earliest opportunity of making a representation against the order of detention but the detaining authority should be free not to consider the representation before confirming the order of detention
That would render the safeguard enacted by he constitution makers meaningless and futile
There can therefore be no doubt that the constitutional imperative enacted in clause S of article 22 requiring the earliest opportunity to be afforded to the detenu to make a representation 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 confirming the detention
The detaining authority must consider the representation of the detenu and come to its own conclusion whether 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 before the Advisory Board
The requirement of obtaining opinion E of the Advisory Board is an additional safeguard over and above the safeguard afforded to the detenu of Making a representation against the order of detention
The opinion of the Advisory Board even if given after consideration of the representation is no substitute for the consideration of the representation by the detaining authority
This Court pointed out in Khairul Haque vs The State of West Bengal1
It is implicit in the language of Article 22 that the appropriate Government while discharging its duty to consider the representation cannot depend upon the views of the Board on such representation
It has to consider the representation on its own without being influenced by any such view of the Board
There was therefore no reason for the Government to wait for considering the petitioner s representation until it had received the report of the Advisory Board
As laid down in Sk
Abdul Karim vs State of West Bengal AIR 1969 SC lO28 supra the obligation of the appropriate Government under article 225 1 W P 245 of 1969 dec
On Sept 10 1969
1012 is to consider the representation made by the detenu as expeditiously as possible
The consideration by the Government of such representation has to be as aforesaid independent of any opinion which may be expressed by the Advisory Board
The fact that article 22 5 enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicity mean that such representation must when made be considered and disposed of as expeditiously as possible otherwise it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning
 There are thus two distinct safeguards provided to a detenu one is that his case must be referred to an Advisory Board for its opinion if it is sought to detain him for a longer period than three months and the other is he should be afforded the earliest opportunity of making a representation against the order of detention and such representation should be considered by the detaining authority as early as possible before any order is made confirming the detention
Neither safeguard is dependent on the other and both have to be observed by the detaining authority
It is no answer for the detaining authority to say that the representation of the detenu was sent by it to the Advisory Board and the Advisory Board has considered the representation and then made a report expressing itself in favour of detention
Even if the Advisory Board has glade a report stating that in its opinion there is sufficient cause for the detention the State Government is not bound by such opinion and it may still on considering the representation of the detenu or otherwise decline to confirm the order of detention and release the detenu
The detaining authority is therefore bound to consider 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 decision whether to confirm the order of detention or to release the detenu
Here in the present case the representation of the petitioner was received by the Home Department on 12th December 1978 and it was immediately forwarded to the Advisory Board because the meeting of the Advisory Board was fixed on 20th December 1978
The report of the Advisory Board stating that in its opinion there was sufficient cause for the detention of the petitioner was received by the 1st respondent on 6th January 1979 and on the basis of this report 1013 the 1st respondent confirmed the order of detention on 15th January 1979
There is nothing on the record to show that the 1st respondent considered the representation of the petitioner before making the order confirming the detention of the petitioner
We do not find anywhere in the affidavit of the 1st respondent in reply to the petition any statement that he considered the representation of the petitioner before making the order of confirmation dated 15th January 1979
On the contrary there is a positive statement in paragraph 16 of this affidavit that the detention order was confirmed after consideration of the report of the Advisory Board which was of the opinion that the detention should be continued
We called upon the learned advocate appearing on behalf of the 1st respondent to place before us the file relating to the detention C Of the petitioner and when this file was shown we found that there was an endorsement made on 12th March 1979 which showed that it was only on that date that the representation of the patitioner was considered by the 1st respondent and rejected
This is also borne out by the letter dated 12th March 1979 addressed by the Deputy Secretary Home Department to the petitioner stating that the representation was considered by the Advisory BoardGovernment and his request for release from detention could not be granted
It is therefore amply clear from the record that the representation of the petitioner was not considered by the 1st respondent before he confirmed the order of detention
The 1st respondent thus failed to comply with the constitutional obligation imposed upon him under clause 5 of E article 22
The subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation
The detention of the petitioner must therefore be held to be illegal and void These were the reasons for which we made our order dated 11th April 1979 quashing and setting aside the detention of the petitioner and directing that the petitioner be set at liberty forthwith


Summary:
The detenu under the COFEPOSA challenged the orders detaining him as violative of article 225 of the Constitution on the ground that his representation 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 was 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
ALLOWING the Writ Petition the Court  HELD 1
The power to preventively detain a person cannot be exercised 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 law authorising preventive detention because even if they are not they would be deemed to be part of law as a super imposition of the Constitution which is the supreme law of the land and they must be obeyed on pain of invalidation of the order of detention
IOlOB D
The constitutional imperative enacted in clause 5 of Article 22 requiring the earliest opportunity to be afforded to the detenu to make a representation 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 confirming the detention
The detaining authority must consider the representation of the detenu and come to its own conclusion whether 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 before the Advisory Board
The requirement of obtaining opinion of the Advisory Board is an additional safeguard over and above the safeguard afforded to the detenu of making a representation against the order of detention
The opinion of the Advisory Board even if given after consideration of the representation of the detenu need not necessarily be binding on the detaining authority
1011C E 1008 There are thus two distinct safeguards provided to a detenu one is that his case must be referred to an Advisory Board for its opinion if it is sought to detain him for a longer period than three months and the other is that he should be afforded the earliest opportunity of making a representation against the ord of detention and such representation should be considered by the detaining authority as early as possible before any order is made confirming the detention
Neither safeguard is dependent on the other and both have to be observed by the detaining authority
The detaining authority is therefore bound to consider 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 decision whether to confirm the order of detention or to release the detenu
The subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation
1012C G 10131E
Khudiram Das vs State of West Bengal   Khairul Haque vs The Slate of West Bengal WP 24669 decided on lO 9 69 referred to