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Shyam Ambalal Siroya v. Union Of India And Others
Factual and Procedural Background
Virendra Ambalal Siroya was detained on August 31, 1979 by an order issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The grounds of detention were served on September 5, 1979. On September 17, 1979 the detenu’s counsel sought copies of documents and statements relied upon in the detention order. Although some documents were supplied on September 25, September 27 and October 3, 1979, an incomplete representation had already been submitted on September 22, 1979. After receiving all documents, the detenu submitted a second, complete representation on October 5, 1979 expressly requesting the Central Government to revoke the detention. This second representation was not forwarded to, nor considered by, the Central Government. The present writ petition, filed by the detenu’s brother, challenges the validity of the continued detention on that ground.
Legal Issues Presented
- Whether the failure of the detaining authority to forward the detenu’s representation dated October 5, 1979—seeking revocation under Section 11 of COFEPOSA—to the Central Government renders the detention illegal.
- Whether the Central Government’s power under Section 11 to revoke a detention order can be exercised “at any time,” including before confirmation of the order by the Advisory Board, thereby entitling the detenu to have such a representation considered promptly.
Arguments of the Parties
Petitioner’s Arguments
- The October 5, 1979 representation was expressly addressed to the Central Government requesting revocation under Section 11, yet it was never forwarded or considered.
- Non-consideration of this representation violates the statutory right of the detenu and therefore vitiates the detention.
Detaining Authority’s Position
- Admitted that the Central Government did not consider the representation but contended that such non-consideration does not invalidate the detention order.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court first noted that the October 5, 1979 representation was properly addressed to the Central Government through the Additional Secretary, Ministry of Finance, and clearly sought revocation of the detention order. Section 11 of COFEPOSA empowers the Central Government to revoke or modify a detention order “at any time,” implying a corresponding right of the detenu to have a revocation petition considered promptly.
The Court rejected the detaining authority’s assertion that failure by the Central Government to consider the representation was immaterial. It emphasized that a statutory duty rests on the Government to apply its mind to such petitions and either revoke the order or explicitly decline to do so within a reasonable time. Leaving the representation unattended for nearly four months breached this duty.
Given that the petition remained unforwarded and unattended, the Court concluded that the continued detention was not “according to the procedure” contemplated by law. It deemed it inappropriate, at this late stage, merely to remit the representation to the Central Government for consideration; instead, illegality of the ongoing detention had to be recognised.
Holding and Implications
HELD: The continued detention of Virendra Ambalal Siroya is unlawful due to the detaining authority’s failure to forward the October 5, 1979 representation to the Central Government; the Court ordered his release.
Implications: The decision reinforces the statutory obligation of detaining authorities to transmit and secure prompt consideration of revocation petitions under Section 11 of COFEPOSA. It has a direct effect of securing the detenu’s freedom; no broader precedent was formally articulated beyond the reaffirmation of procedural safeguards.
P.S Kailasam, J.— The petitioner is the brother of Virendra Ambalal Siroya who was detained by an order of detention dated August 31, 1979 issued by Additional Secretary to the Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu was served with the grounds of detention on September 5, 1979. The counsel for the detenu made an application on September 17, 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 September 22, 1979. The documents were supplied on September 25, 1979, September 27, 1979 and October 3, 1979. The detenu again made a second representation on October 5, 1979 and requested that the order of detention may be revoked by the Central Government.
2. Mr A.K Sen, the learned Counsel for the petitioner, submitted that the representation requesting the Central Government to order the revocation under Section 11 of the Act was not forwarded by the detaining authority to the Central Government and as such the detention is illegal. In the memorandum of grounds in his writ petition at para 14 the detenu submitted, that he made representation to the Central Government and that the Central Government had not considered the representation at all. In para 15 the detenu contended that the second representation was an application for revocation under Section 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 order. In reply the detaining authority stated in para 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 that merely because it was not considered by the Central Government, the detention order is vitiated in any way.”
3. It is clear from the statement that the representation was not forwarded to the Central Government. The plea on behalf of the detaining authority is that merely because the representation was not considered by the Central Government, the detention order would not be vitiated.
4. The representation of the detenu dated October 5, 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 para 5 runs as follows:
“The petitioner prays that:
(a) That the order of detention be revoked by the Central Government.
(b) This further representation be placed before COFEPOSA Advisory Board along with the earlier representation.
(c) That the Advisory Board be pleased to report to the Central Government to revoke the impugned order of detention.”
5. The request of the detenu is clear: He prayed for the revocation of the order of detention by the Central Government. It is not the case of the detaining authority that he did not understand the representation as being intended for 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 disputed that a communication to the Central Government can be properly addressed by sending it to the Additional Secretary, Government of India, Ministry of Finance.
6. It is, therefore, admitted that the 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 after the order of detention is confirmed by the detaining authority and the Advisory Board. The power, conferred on the Central Government by Section 11 is wide enough to enable the Central Government 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 implies 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 on behalf of the detenu that the petition of October 5, 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 entertain this plea as it was not pleaded in the memorandum of grounds that 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 Government was not forwarded to the Central Government and as such no action had been taken up to date. It may be permissible for the Central Government to take reasonable time for disposing any revocation petition. But it would not be justified in ignoring the representation for revocation 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.
7. The question that arises for consideration is, as to what will be the consequence if a properly addressed petition 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 the Central Government for disposal at this stage.
8. 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.
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