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Section 11 – The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974

The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974

 

11. Revocation of detention orders –

 

(1) Without prejudice to provisions of section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified –

 

(a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government ;

 

(b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.

 

(2) The revocation of a detention order shall not bar the making of another detention order under section 3 against the same person.

 

COMMENTS

 

Representation – Disposal of

 

There is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the words “as soon as may be” occurring in article 22 (5) of the constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. [Rama Dhondu Borado Vs. V.K. Sarf, Commissioner of Police & Ors., JT 1989 (2) 579 ]. What is reasonable despatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. In case the gap between the receipt of the representation and its consideration by the authority is so unreasonable and the explanation offered by the authority is so unsatisfactory, such order could vitiate the order of detention.[ibid].

 

In a detention matter the Government is required to deal with the representation of a detenu expeditiously without avoidable delay. Undue and unexplained delay in disposing of the representation vitiates the detention order.[Hussain Erumban vs. Union of India, (1993) 3 crimes 627 (Delhi)]. It is settled law that the representation made by the detenu for seeking revocation of te detention order must be dealt with promptly and in right earnest by the authorities concerned and they are not supposed to deal with the representation in a casual manner and allow the same to remain unattended for any period of time. If there occurs any undue delay in dealing with the representation it is incumbent upon the authorities to explain such delay. [ibid].

 

Detaining Authority – Duty of

 

In smt. Gracy vs. State of Kerala, (1991 ) 41 DLT1, the Supreme Court observed that the detaining authority is obliged to consider the representation even if the same was simply addressed to the Advisory Board and not to him. “It being settled that the aforesaid deal obligation of consideration of the detenu’s representation by the Advisory Board and independently by the detaining authority flows from article 22 (5) when only one representation is made and addressed to the detaining authority there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of article 22 (5) in support of the contention of the learned Solicitor General. The contents of article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under article 22 (5) arises irrespective of the fact whether the represe

ntation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in article 22 (5) enacted as one of the safeguard provided to the detenu in case of preventive detention.”It is clear that once the detenu makes a representation, it has to be considered by the detaining authority independent of its consideration by the Advisory Board.[ Yashvir Singh vs. Administrator, Delhi & Ors., (1993) 3 Crimes 441 (Delhi)].

 

 

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The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974

 

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