Constitution of India, 1950
Articles 21 & 22(5)—Quashing of detention order—Ground—In cases of preventive detention, every procedural irregularity, keeping in mind the principles of Article 21 and Article 22(5) of the Constitution, must be accrued in favour of detenue—Appellant detenue has been supplied with illegible documents in a foreign language (Chinese)—Illegible documents written in Chinese submitted to the appellant are grounds enough for quashing the impugned detention order—Principle of parity is squarely applicable, since another co-detenue with identical circumstances, has already been granted the relief of quashing the detention order against him.
[Paras 39 to 43]
Article 22(5)—Preventive detention—Protection of individual and civil liberties—Duty of Court—Preventive detention laws in India are a colonial legacy, and as such, are extremely powerful laws that have the ability to confer arbitrary power to the state—In such a circumstance, where there is a possibility of an unfettered discretion of power by the Government, the Apex Court must analyze cases arising from such laws with extreme caution and excruciating detail, to ensure that there are checks and balances on the power of the Government—Every procedural rigidity, must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of detenue—Courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties—Act of protecting civil liberties, is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our Constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British state.
[Para 44]
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
Section 3—Preventive detention—Question as to whether there exists an incongruity between the Pankaj Kumar case [(1969) 3 SCC 400] and the Abdullah Kunhi Case [(1991) 1 SCC 476] and if such a friction exists should the point of law be referred to a Larger Bench—Mandate to wait for the decision of Advisory Board, as per the Pankaj Kumar Judgment, would apply to the Central Government, however, the detaining authority, being independent of the Government, can pass its decision without the decision of Advisory Board—Since no conflict exists, the need to refer the point of law to a Larger Bench also ceases.
[Paras 22 to 35]
Section 3—Preventive detention—Question as to if there exists no friction between the two Constitutional judgments of the Apex Court, can the impugned detention order be quashed on grounds of the 60-day delay in consideration of the representation made by appellant—Appellant-detenue, availing his rights sent a representation to both, the specially empowered officer and the Government—Detaining authority decided on representation expeditiously and without waiting for the decision of Advisory Board—Government, being a separate authority, decided to wait for the decision of the Advisory Board—It can be seen that both, the detaining authority, and the Government, have worked precisely within the procedure established by law, and hence the impugned detention order is not liable to be struck down on this ground.
[Paras 36 to 38]