NDLI: Ankit Ashok Jalan Vs. Union of India and Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Smuggling Activities Foreign Exchange
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9 Referred Case 10
Case Type	Writ Petition
Court	Supreme Court of India
Disposal Nature	Petition Allowed
Headnote	Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974: s.3(1) – Detention order made under s.3 by an officer specially empowered for that purpose by the Government – Whether the representation can independently be made to and must be considered by the Detaining Authority who is a special empowered officer of the concerned government and whether in certain circumstance the Detaining Authority ought to defer consideration of such representation till the report is received from the Advisory Board – Held: (Per Majority) Where the detention order is made inter alia under s.3 by an officer specially empowered for that purpose either by the Central Government or the State Government, the person detained has a right to make a representation to the said officer; and the said officer is obliged to consider the said representation; and the failure on his part to do so would result in denial of right conferred on the person detained to make a representation – A specially empowered officer who passes the order of detention, in exercise of special empowerment, has no statutory role to play at the stage when the report is received from the Advisory Board – The report is to be considered by the appropriate Government and not by the specially empowered officer – In terms of s.8, the report of the Advisory Board is meant only for the consumption of the appropriate Government and apart from the operative part of the report which is to be specified in a separate paragraph as per sub-section (c), the mandate in terms of sub-section (e) is to keep the report of the Advisory Board completely confidential – Thus, a specially empowered officer who may have passed the order of detention, by statutory intent is not to be privy to the report nor does the statute contemplate any role for such specially empowered officer at the stage of consideration of the opinion of vthe Advisory Board – Thus, the Detaining Authority is obliged to consider the representation without waiting for the opinion of the Central Advisory Board – In the instant case, there was no valid explanation for non-consideration of the representation of detenues from 27.11.2019 till 14.01.2020 – Therefore, complete inaction on part of the Detaining Authority in considering the representation caused prejudice to the detenues and violated their constitutional rights – Detention orders are quashed – (Dissenting - Per Hemant Gupta, J.) – s.3 empowers the Central Government, the State Government or the specially empowered officer to make an order, directing a person to be detained – Once the detention order has been made by any of the authorities competent to detain in terms of s.3(1), the representation to seek revocation of the detention order can be considered and decided by the Detaining Authority dehors the decision of the Advisory Board and the acceptance of recommendation by the appropriate Government – The consideration for revocation of a detention order is limited to examining whether the order conforms with the provisions of law whereas the recommendation of the Advisory Board is on the sufficiency of material for detention, which alone is either confirmed or not accepted by the appropriate Government – It would be a matter of prudence and propriety for the Detaining Authority to defer the decision on the representation to revoke the detention order, when the matter is being considered by the Advisory Board, consisting of three sitting Judges of the High Court – The consideration of the representation by the Detaining Authority in these circumstances cannot be said to be delayed as the representation was received after the matter was referred to the Advisory Board.
Judge	Hon'ble Mr. Justice Hemant Gupta Honble Mr. Justice Uday Umesh Lalit
Neutral Citation	2020 INSC 266
Petitioner	Ankit Ashok Jalan
Respondent	Union Of India And Ors.
SCR	[2020] 2 S.C.R. 1047
Judgement Date	2020-03-04
Case Number	362

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