Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 19
PETITIONER:
STATE OF MAHARASHTRA & ANOTHER
Vs.
RESPONDENT:
SMT. SUSHILA MAFATLAL SHAH & OTHERS
DATE OF JUDGMENT07/09/1988
BENCH:
NATRAJAN, S. (J)
BENCH:
NATRAJAN, S. (J)
SEN, A.P. (J)
CITATION:
1988 AIR 2090 1988 SCR Supl. (2) 827
1988 SCC (4) 490 JT 1988 (3) 646
1988 SCALE (2)774
ACT:
Conservation of foreign Exchange and Prevention of
Smuggling Activities Act, 1974: Sections 2, 3, 8 & 11--
Officer of State/Central Government specially empowered to
pass detention orders--Whether obligated to inform detenu
that he has three fold opportunity to make representations
to himself, the State Government and Central Government--
Whether there is any distinction between order of detention
passed by Officer of State Government and Officer of Central
Government.
%
Constitution of India, 1950 Article 22(5)--Detenu has a
right to make representation to State and Central
Government--No further right to make representation to the
officer who has made order of detention.
HEADNOTE:
The detenu, D.N. Shah, was caught on 23.10.1986 in the
act of transporting ten gold biscuits of foreign origin. On
2.2.1987 D.N .Capoor, Officer on Special Duty and ex-officio
Secretary to the Government of Maharashtra, in exercise of
the powers specially conferred upon him by the Government of
Maharashtra, passed an order of detention against D.N. Shah
under section 3(1) of the COFEPOSA Act. In the grounds of
detention served on the detenu he was informed that he had a
right to make a representation to the State Government as
also to the Government of India.
^
The detenu’s representation addressed to D.N. Capoor was
forwarded by the Superintendent, Central Prison, Nasik to
the State Government who rejected the same.
In March, 1987, the detenu’s mother, respondent No. 1,
filed a petition in the High Court of Bombay challenging the
detention order inter alia on the ground that the order of
detention having been passed under section 3(1) by D.N.
Capoor in his capacity as a specially empowered person, the
detenu had a right to make a representation, in the first
instance, to D.N. Capoor himself as the detaining authority
before availing of his right to make further representation,
and failure to notify him of this right in the grounds of
detention violated article 22(5) of the Constitution. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 19
PG NO 827
PG NO 828
High Court accepted this contention and quashed the order of
detention.
Before this Court the appellant contended that: (1)
neither Article 22(5) of the Constitution nor the provisions
of the COFEPOSA Act afforded scope for holding that if an
order of detention was passed by a specially empowered
officer of the State Government or the Central Government, a
different kind of procedure had to be followed in the matter
of affording opportunity to the detenu to make his
representation against the order of detention, and (2) the
High Court was not right in holding that the detenu had a
right to have his representation considered by the very same
officer who had passed the order of detention.
The respondent, on the other hand, contended that unlike
other Preventive Detention Acts such as the National
security Act, etc. there was no provision in the COFEPOSA
Act for confirmation by the Government of an order of
detention passed by a specially empowered officer under
section 3(1) of the Act and as such the officer issuing an
order of detention constituted the Detaining Authority of
the detenu.
Allowing the appeal, it was,
HELD: (1) On the plain language of Article 22(5), that
article does not provide material for the detenu to contend
that in addition to his right to make a representation to
the State Government and the Central Government, he has a
further right under Article 22(5) to make a representation
to D.N. Capoor himself as he had made the order of
detention. [835G-H; 836A]
(2) Even if an order of detention is made by a specially
empowered officer of the Central Government or the State
Government as the case may be, it is the concerned
Government that would constitute the Detaining Authority
under the Act and not the officer concerned who made the
order of detention, and it is for that Government the
detenu should be afforded opportunity to make representation
against the detention order at the earliest opportunity, as
envisaged under Article 22(5). and not to the officer making
the order of detention. [840E-G]
(3) Though by reason of Section 3(1) a specially
empowered officer is entitled to pass an order of detention,
his constitutional obligation is only to Communicate
expeditiously to the detenu the grounds of detention and
PG NO 829
also afford him opportunity to make representation to the
appropriate government against his detention. [840G-H]
(4) Unlike in other preventive detention acts, the
COFEPOSA Act does not provide for approval by the Central or
State Government of an order of detention passed by one of
its duly empowered officers and, consequently, an order of
detention passed by an officer acquired ’deemed approval’ by
the Government from the time of its issue, and by reason of
it, the Government becomes the detaining authority and
thereby constitutionally obligated to consider the
representation made by the detenu with utmost expedition.
[843A-B]
(5) In view of the fact that the Act confers powers of
revocation only upon the State Government and the Central
Government and no provision is made for an officer making an
order of detention to exercise powers of revocation, any
insistence upon the officer making the detention order
considering the representation of the detenu himself will be
nothing but a futile and meaningless exercise.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 19
(6) Since it has been pointed out that a detention order
passed by an officer having empowerment under the COFEPOSA
Act to make an order of detention would also constitute an
order of the Government by reason of deemed approval, this
Court cannot accept or sustain the view taken by the High
Court that a detenu had a right to have his representation
considered by the very same officer who had passed the order
of detention. [844H; 845A-B]
Kavita v. State of Maharashtra, [1982] 1 SCR 138; Smt.
Masuma v. State of Maharashtra. [1982] I SCR 288; Santosh
Anand v. Union of India, [1981] 2 SCC 420; Pushpa v. Union
of India, [1980] Supp. SCC 391; Abdul Karim v. .State of W.
Bengal, [1969] 3 SCR 479; John Martin v. State of West
Bengal, [ 1975] 3 SCC 836; Jayanarayan Sukul v . State of
W.B., [1970] 3 SCC 225; Haradhan Shah v. State of W B.
[1975] 3 SCC 198; Satpal v. State of Punjab, [1982] 1 SCC
12; Raj Kishore Prasad, [1982] 3 SCC 10; P.K. Chakraharty v.
State of W. Bengal, [1970] 1 SCR 543; Abdul Sukkur v. State
of West Bengal [1973] 1 SCR 680; Vimal Chand v. Shri
Pradhan, [l979] 3 SCK 1007; Tarachand v. State of Rajasthan,
AIR 1980 SC 2133; N.P. Umrao v. B.B. Gujral, [1979] 2 SCR
315; Devji Vellabhai Tandal v. Administrator, [1982] 3 SCR
222; State of Bombay v. Purshottam Jog Nayak, [1952] SCR 674
and King Emperor v. Vimal Bhai Deshpande. ILR 1946 Nagpur
651.
PG NO 830
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 480
of 1988.
From the Judgment and Order dated 23/24.7.1987 of the
Bombay High Court in Crl. W.P. No. 356/1987.
Dr. Y.S. Chitale, A.M. Khanwilkar ad A.S. Bhasme for the
Appellants.
U.R. Lalit, V.N. Ganpule and S.K. Angihotri for the
Respondents.
The Judgment of the Court was delivered by
NATARAJAN, J. Leave granted.
Being more concerned with the law adumerated by the High
Court of Bombay rather than with the quashing of the order
of detention passed against a detenu by name Bhadresh
Mafatlal Shah, son of respondent No. 1 herein, under Section
3(1) of the Conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 (hereinafter called the
COFEPOSA Act) the State of Maharashtra has filed this appeal
by special leave against the order of the High Court in Crl.
Writ Petition No. 356 of 1987. The High Court has quashed
the order of detention on the ground that Shri D.N. Capoor,
Officer on Special Duty and Ex-officio Secretary to the
Government of Maharashtra, Home Department (hereinafter
referred to as D . N .Capoor only) who had passed the order
of detention had only communicated to the detenu that "he
had a right to make a representation to the State Government
as also to the Government of India against the order of
detention" and had failed to communicate that "he had also a
right to make a representation to the Detaining Authority
him-self" the constitutional safeguards and imperatives
under Article 22(5) had been violated in as much as the
detenu had been deprived of his right to make a
representation to the Detaining Authority himself before
availing of his right to make further representation to the
State Government and the Central Government. The principal
challenge in this appeal is to the proposition of law
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 19
enunciated by the High Court.
We may now have a look at the facts. On 21.8.86 the
detenu was caught in the act of transporting ten gold
biscuits of foreign origin. On 23.10.86 the Collector of
Central Excise and Customs sent a proposal to the State
Government for action being taken against the detenu under
PG NO 831
the COFEPOSA Act and on 17.11.86 he furnished, in response
to Government’s query, some additional information about the
detenu. On 2.2.87 an order of detention under Section 3(1)
of the COFEPOSA Act was passed by D.N. Capoor in exercise of
the powers specially conferred upon him by the Government of
Maharashtra for the purpose of Section 3 of the Act. In the
grounds of detention the detenu was informed that he had a
right to make a representation to the State Government as
also to the Government of India against the order of
detention. On 15.2.87 the order of detention as well as the
grounds of detention were served on the detenu.
On 14.3.87 the detenu preferred a representation
addressed to D.N. Capoor and it was forwarded by the
Superintendent, Central Prison, Nasik with a covering letter
dated 17.3.87 to the Government. The Government after
calling for remarks from the Assistant Collector of Customs
and Central Excise, Pune rejected the representation of the
detenu by order dated 3.4.87 and the said order was
communicated to the detenu on 4.4.87 through the
Superintendent of the Central Prison, Nasik.
In the meanwhile on 12.3.87 the case of the detenu was
referred to the Advisory Board. On 8.5.87 the Advisory Board
considered the detenu’s case and sent a report justifying
the detention and thereafter the State Government confirmed
the detenu’s detention. In the month of March, 1987 the
first respondent being the Detenu’s mother, filed a petition
under Article 226 of the Constitution before the High Court
of Bombay for a writ being issued for the order of detention
being quashed. Though several grounds were set out in the
writ petition, they were all given up and the counsel
appearing on behalf of the detenu confined the challenge to
the validity of the detention order on one ground alone.
The ground of attack was to the following effect:
"as the order of detention had been passed by D.N.Capoor
in his capacity as a person specially empowered by the
Government of Maharashtra to issue the order of detention
under Section 3(1) of the COFEPOSA Act, the detenu had a
right to make a representation to him in the first instance
and only thereafter to make representation to the State
Government or to the Central Government if need be. In the
grounds of detention the detenu had only been informed that
he had a right to make a representation to the State
PG NO 832
Government as also to the Government of India against the
order of detention, but he had not been communicated that he
had also a right to make a representation to the Detaining
Authority i.e. D.N. Capoor him-self. Failure to notify the
detenu of his right to make a representation to the
Detaining Authority violated the constitutional provisions
of Article 22(5) inasmuch as the detenu had been deprived of
his right to make a second representation to the State
Government in the event of the Detaining Authority D.N.
Capoor rejecting his representation.
This contention found acceptance with the High Court and
the High Court made the Rule absolute and quashed the order
of detention. The challenge in this appeal is not only to
the release of the detenu but to the principle of law
formulated by the High Court to set aside the order of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 19
detention.
Before proceeding further we may state for purposes of
record, that an attempt was made by the State before the
High Court that D.N. Capoor had not passed the order of
detention solely in exercise of his powers as a specially
empowered officer of the State to make an order under
Section 3(1) but also as an officer authorised to act On
behalf of the Government under the Standing Rules framed
under the Rules of Business of the Government of
Maharashtra. The High Court declined to accept this
contention as there was no proof that D.N. Capoor had been
empowered under the Standing Rules to act on behalf of the
Government and furthermore the Central Government counsel
had also conceded that no such authorisation had been made
in favour of D.N. Capoor under the Rules of Business. No
attempt was made before us to dispute this finding of the
High Court and therefore the settled position is that the
detention order had been passed by D.N. Capoor solely in his
capacity as an officer specially empowered by the Government
to exercise powers under Section 3(1) of the COFEPOSA Act
and not as one empowered to act on behalf of the Government
under the Rules of Business. Therefore what falls for
consideration in the appeal is whether by reason of D.N.
Capoor having passed the order of detention only in exercise
of his special empowerment to act under Section 3(1) of the
Act and not in exercise of any right given to him under the
Rules of Business of the Government, he was under a
constitutional obligation to communicate to and afford
opportunity to the detenu to make a representation to
himself in the first instance before the detenu availed of
his right to make representations to the State Government
PG NO 833
and the Central Government.
It was urged by Dr. Chitale on behalf of the State, that
neither Article 22(5) of the Constitution nor the provisions
of the COFEPOSA Act afford scope for any differentiation
being made between an order of detention passed by a
specially empowered officer of the State Government or the
Central Government as the case may be, and an order of
detention passed by the State Government or the Central
Government itself, as the case may be, and for holding that
if an order of detention falls under the former category,
the Constitution obligates a different kind of procedure to
be followed in the matter of affording opportunity to the
detenu to make his representations against the order of
detention. He also stated that the theory that a detenu had
a right to have his representation considered by the very
same officer who had passed the order of detention has been
exploded in Kavita v. Maharashtra, [1982] 1 SCR 138 Smt.
Masuma v. State of Maharashtra & Anr., [1982] 1 SCR 288 and
therefore the High Court was not right in holding that the
detenu had such a right. He also urged that if the view
taken by the High Court was not corrected it would lend to
several anomalies and even to the defeasance of the COFEPOSA
Act itself in certain situations.
Refuting Dr. Chitale’s contentions, Mr. U.R. Lalit,
learned counsel appearing for the detenu stated that unlike
in other Preventive Detention Acts such as the National
Security Act. etc., there is no provision in the COFEPOSA
Act for confirmation by the Government of an order of
detention passed by an officer specially empowered under
Section 3(1) of the COFEPOSA Act and as such the officer
issuing an order of detention under the Act constitutes the
Detaining Authority of the detenu and hence the Detaining
Authority is under an obligation to afford opportunity to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 19
the detenu to make a representation to himself in the first
instance before the detenu avails of his right to make
representation to the State Government and then to the
Central Government. Mr. Lalit relied upon the decisions of
this Court in Santosh Anand v. Union of India, [1981] 2 SCC
420 and Pushpa v. Union of India, [1980] suppl. scc 391 for
sustaining the judgment of the High Court. Yet another
argument of Mr. Lalit was that since Article 22(5) mandates
the affording of opportunity at the earliest point of time
to the detenu to make his representation, it must be
interpretatively construed that the Detaining Authority is
under an obligation to inform the detenu and afford him
opportunity to make a representation to the very Authority
concerned and failure to give such an opportunity would
PG NO 834
amount to a denial to the detenu of his constitutional
rights.
We shall now examine the divergent contentions advanced
before us in greater detail. The questions that fall for
consideration may broadly be enunciated as under.
(1) Does an order passed by an officer of the State
Government or the Central Government, specially empowered
for the purposes of Section 3(1) by the respective
Government, make him the Detaining Authority and not the
State Government or the Central Government as the case may
be, and obligate him to inform the detenu that he has a
three fold opportunity to make his representations i.e. the
first to himself and the other two to the State Government
and the Central Government.
(2) Whether for the purposes of the Act, there is any
difference between an order of detention passed by an
officer of the State Government or the Central Government,
solely in exercise of the powers conferred on him under
Section 3 by the respective Government and an order of
detention passed by the State Government or the Central
Government as the case may be through an officer who in
addition to conferment of powers under Section 3 is also
empowered under the Standing Rules framed under the Rules of
Business of the Government, to act on behalf of the
Government:
(3) Whether by reason of the fact that an order of
detention is passed by an officer of the State Government or
the Central Government specially empowered to act under
Section 3 of the Act, a detenu acquires a constitutional
right to have his representation first considered by the
very officer issuing the detention order before making a
representation to the State Government and the Central
Government.
The Constitution, while recognising the necessity of
laws to provide for preventive detention, has also
prescribed the safeguards which should be observed for
detaining persons without trial under laws enacted for
placing persons under preventive detention. Article 22 sets
out the imperatives that should be observed, but for our
purpose, it is enough if Clause (S) of the Article is alone
extracted. It is in the following terms.
"22(5). When any person is detained in pursuance of an
order made under any law providing for preventive detention
PG NO 835
the authority making the order shall, as soon as may be,
communicate 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."
Article 22(5) has been construed as under in Abdul Karim v.
W. Bengal, [1969] 3 SCR 479 at page 486.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 19
"A person detained under a law of preventive detention
has a right to obtain information as to the grounds of
detention and has also the right to make a representation
protesting against an order of preventive detention. Article
22(5) does not expressly say to whom the representation is
to be made and how the detaining authority is to deal with
the representation. But it is necessarily implicit in the
language of Art. 22(5) that the State Government to whom the
representation is made should properly consider the
representation as expeditiously as possible. The
Constitution of an Advisory Board under Section 8 of the Act
does not relieve the State Government from the legal
obligation to consider the representation of the detenu as
soon as it is received by it. On behalf of the respondent it
was said that there was no express language in Art. 22(5)
requiring the State Government to consider the
representation of the detenu. But it is a necessary
implication of the language of Art. 22(5) that the State
Government should consider the representation made by the
detenu as soon as it is made, apply its mind to it and, if
necessary, take appropriate action. In our opinion, the
constitutional right to make a representation guaranteed by
Art. ’2(5) must be taken to include by necessary implication
the constitutional right to a proper consideration of the
representation by the authority to whom it is made."
Vide also John Martin v. State of West Bengal, [1975] 3
SCC 836 at 839; Jayanarayan Sukul v. State of W.B., [1970] 3
SCR 225 and Haradhan Saha v. State of W. B., [ 1975] 3 SCC
198.
We can, therefore, conclude without further discussion
that on the plain language of Article 22(5) that Article
22(5) does not provide material for the detenu to contend
that in addition to his right to make a representation to
the State Government and the Central Government, he has a
further right under Article 22(5) to make a representation
PG NO 836
to D.N. Capoor himself as he had made the order of
detention.
Turning now to the COFEPOSA Act, the relevant provisions
to be noticed are Sections 2, 3, 8 and 11. In Section 2
which is the definition section, the words "appropriate
government" and "detention order" have been defined as
under:
"Section 2. (a) "appropriate Government" means, as
respects a detention order made by the Central Government or
by an officer of the Central Government or a person detained
under such order, the Central Government, and as respects a
detention order made by a State Government or by an officer
of a State Government or a person detained under such order,
the State Government:
(b) "detention order" means an order made under section
3".
Section 3 is the Section which confers powers on the
Central Government and the State Government to make an
order, either by itself or through one of its officers
having the prescribed rank and specially empowered for the
purpose of the section by the Government to which he belongs
for detaining a person under preventive custody without
trial. The section reads as follows:
"Section 3 . ( 1) The Central Government or the State
Government or any officer of the Central Government, not
below the rank of a Joint Secretary to that Government,
specially empowered for the purposes of this section by that
Government, or any officer of a State Government, not below
the rank of a Secretary to that Government, specially
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 19
empowered for the purposes of this section by that
Government, may, if satisfied, with respect to any person
(including a foreigner), that with a view to preventing him
from acting in any manner prejudicial to the conservation or
augmentation of foreign exchange or with a view to
preventing him from--
(i) smuggling goods. or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping
smuggled goods, or
PG NO 837
(iv) dealing in smuggled goods otherwise than by
engaging in transporting or concealing or keeping
smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in
abetting the smuggling of goods,
it is necessary so to do, make an order directing that
such person be detained.
(2) When any order of detention is made by a State
Government or by an officer empowerd by a State Government,
the State Government shall, within ten days, forward to the
Central Government a report in respect of the order.
(3) For the purposes of clause (5) of article 22 of the
Constitution, the communication to a person detained in
pursuance of a detention order of the grounds on which the
order has been made shall be made as soon as may be after
the detention, but ordinarily not later than five days, and
in exceptional circumstances and for reasons to be recorded
in writing, not later than fifteen days, from the date of
detention."
Section 8, which has been enacted to comply with the
constitutional imperative in Article 22(4) enjoins the
Central Government and the State Government to constitute
one or more Advisory Boards and obligates the concerned
government to refer to the Advisory Board the case of every
detenu ordered to be detained by the said government within
a period of five weeks from the date of detention. For our
purposes it would suffice if clause (b) of section 8 alone
is quoted. The clause reads as follows:
"Section 8(b)--Save as otherwise provided in Section 9,
the appropriate Government shall, within five weeks from the
date of detention of a person under a detention order make a
reference in respect thereof to the Advisory Board
constituted under clause (a) to enable the Advisory Board to
make the report under sub-clause (a) of clause (4) of
Article 22 of the Constitution."
section 11 which is the last of the section requiring
PG NO 838
notice per tains to the powers of revocation of the
State Government or the Central Government as the
case may be. The relevant is in the following terms:
Section 11(1)--Without prejudice to the provisions of
Section 21 of the General Clauses Act, 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 omitted)’’
On a reading of the abovesaid provisions, it may be seen
that the power to detain a person under the Act has no; only
been conferred on the Central Government and the State
Government but provision had also been made for the Central
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 19
Government and the State Government to specially empower any
of its officers holding the minimum prescribed rank to pass
an order of detention under Section 3(1).
We may now examine the scheme of the Act and have a
closer look at the provisions set out above to find out
whether the Act provides for a differentiation being made
between detention orders made by the Government and those
made by specially empowered officers so as to confer an
additional right of representation to detenus subjected to
detention under detention orders falling in the latter
category. At the outset, it needs no saying, that in
Government be it Central or State, has to function only
through human agencies, viz. its officers and functionaries
and that it cannot function by itself as ar. abstract body.
Such being the case, even though Section 3(1) provides for
an order of detention being made either by the Central
Government or one of its officers or the State Government or
by one of its officers, an order of detention has
necessarily to be made in either of the situations only by
an officer of the concerned Government. It is in acceptance
of this position we have to see whether an order of
detention, if passed by an officer of the Government
specially empowered under Section 3(1) but not further
empowered under the Rules of of the Government to act would
PG NO 839
have the effect of making the concerned officer the
Detaining Authority and not the concerned Government itself.
The answer to the question has to be necessarily in the
negative for the following reasons. It has been specifically
provided in Section 2(a) that irrespective of whether an
order of detention is made by the Central Government or one
of its duly authorised officers, the "apropriate Government"
as regard the detention order and the detenu will be the
Central Government only and likewise whether an order of
detention is made by a State Government or one of its duly
authorised officers the "appropriate Government" would be
the State Government only as regards the detention order and
the detenu concerned. Secondly, irrespective of whether an
order of detention is made by the State Government or by one
of its officers, the obligation to forward, within ten days
a report to the Central Government in respect of the order
is cast only upon the State Government. Thirdly, in the
matter of making a reference of the case of a detenu to the
Advisory Board under Section 8(b), the duty of making the
reference is cast only on the Central Government or the
State Government as the case may be, and not on the officer
of the Central Government or the State Government if he
makes the order of detention in exercise of the powers
conferred on him under Section 3(1). Lastly, Section 11,
which deals with the powers of revocation of the State
Government and the Central Government provides that
notwithstanding that on order of detention had been made by
an officer of a State Government, the concerned State
Government as well as the Central Government are entitled to
revoke or modify the order of detention. Similarly, as per
Clause (b) notwithstanding that an order of detention has
been made by an officer of the Clentral Government or by a
State Government, the Central Government has been empowered
to revoke or modify an order of detention. The Section does
not confer any power of revocation on an officer of the
Central or State Government nor does it empower the Central
or State Government to delegate the power of revocation to
any of its officers. We may further add that even though
Section 11 specifies that the powers of revocation conferred
on the Central Government/State Government are without
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 19
prejudice to the provisions of Section 11 of the General
Clauses Act, this reservation will not entitle a specially
empowered officer to revoke an order of detention passed by
him because the order of the specially empowered officer
acquires deemed approval’ of the State or Central
Government, as the case may be, automatically and by reason
of such deemed approval the powers of revocation, even in
terms of Section 21 of the General Clauses Act will fall
only within the domain of the State Government and/or
Central Government. In satpal v.state of Punjab, [1982] 1
SCC 12 at page 17 the nature of the power of revocation
PG NO 840
conferred on the State and the Central Government came to be
construed and the Court held that the power of revocation
conferred on the appropriate Government under Section 11 of
the Act is independent of the power of cofirming or setting
aside an order of detention under Section 8(f)." It was
further adumbrated as follows. "The power under Section
11(l)(b) may either be exercised on information received by
the Central Government from its own sources including that
supplied by the State Government under Section 3(2), or,
from the detenu in the form of a petition or representation.
It is for the Central Government to decide whether or not,
it should revoke the order of detention in a particular
case. The use or the words ’at any time’ under Section 11,
gives the power of revocation an over-riding effect on the
power of detention under Section 3." These observations
were made by the Court when considering the question whether
a detenu was entitled to concurrently make representations
to the State Government and the Central Government against
an order of detention passed by the State Government and
whether in such circumstances the State Government could
contend that the question of the Central Government
considering the representation would arise only after the
State Government had considered the representation and
rejected it.
Consequently, the resultant position emerging from the
Act is that even if an order of detention is made by a
specially empowered officer of the Central Government or
the State Government as the case may be, the said order will
give rise to obligations to be fulfilled by the Government
to the same degree and extent to which it will stand
obligated if the detention order had been made by the
Govenment itself. If that be so, then it is the concerned
Government that woud constitute the Detaining Authority
under the Act and not the officer concerned who made the
order of detention, and it is to that Government the detenu
should be afforded opportunity to make representation
against the detention order at the earliest opportunity, as
envisaged under Article 22(5) and not to the officer making
the order of detention in order to provide the detenu an
opportunity to make a further representation to the State
Government and thereafter to the Central Government if the
need arises for doing so. Though an order of detention. his
constitutional obligation is only to communicate
expeditiously to the deter;u the grounds of detention and
also afford him opportunity to make representation to the
appropriate Governments against his detention. The only
further duty to be performed thereafter is to place the
representation made by the detenu before the concerned
officer or the Minister empowered under the Rules of
PG NO 841
Business of the Government to deal with such representation
if the detenu addresses his representation to the officer
himself.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 19
We may point out that unlike in other Preventive
Detention Acts such as the National Security Act,
Maintenance of Internal Security Act, Preventive Detention
Act etc. the COFEPOSA Act does not provide for any approval
by the Government of an order of detention passed by an
officer specially empowered to make a detention order. In
all the above said Acts, an order of detention passed by an
officer specially empowered under the Act will cease to have
force after the expiry of the number of days prescribed
under the relevant Act unless the said order is approved by
the Government within that period. On the contrary, the
COFEPOSA Act does not provide for the State Government or
Central Government passing an order of approving of a
detention order made by one of its officers and therefore
the detention order will continue to be operative for the
full period of detention unless the order is revoked by the
State Government or the Central Government or is quashed by
the Court for any reason. This is an additional factor to
show that an order of detention passed by an officer has the
same force and status as an order of detention passed by the
Government itself and this could happen only if an order of
detention made by an officer is treated as an order of
detention made by the Government itself, although through
the instrumentality of an officer empowered under Section 3.
It is also relevant to clarify at this juncture the
position as regards an order of detention passed by an
officer specially empowered under Section 3(1) vis-a-vis an
order of detention passed t y another officer who besides
being empowered to act under Section 3(1) i also conferred
authority under the Rules of Busines of the Government to
act on behalf of the Government this difference in the
conferment of powers upon the officers falling under the two
categories can not have any impact on the nature of the
detention orders respectively passed by them because the
common factor entitling the officers falling in the two
classes is their empowerment under Section 3(1) of the Act.
Without such empowerment an officer, even if he be empowered
to act on behalf of the Government under the Rules of
Business, cannot pass an order of detention against anyone.
If this position is realised. then it follows that there is
no scope for contending that the deiention order made by an
officer empowered to act under the Act but not having
additional empowerment under the Rules of Business of the
Government will not have the effect of making the Government
the detaining authority and instead would make the officer
PG NO 842
alone the detaining authority and by reason of it stand
obligated to afford opportunity to the detenu to make a
representation to himself before making his representation
to the State Government and the Central Government. It is
also relevant to note that the Act confers powers of
revocation only upon the State Government and the Central
Government and no provision is made for an officer making
an order of detention to exercise powers of revocation. When
such is the case, any insistence upon the officer making the
detention order considering the representation of the detenu
himself will be nothing but a futile and meaningless
exercise. It will therefore, not be to the advantage of the
detenu if it were to be held that in all cases where an
order of detenution is passed by an officer, the very
officer should consider the representation in the first
instance and only thereafter the detenu can approach the
State Government and the Central Government. Moreover, if
for argument’s sake it is to be assumed that an officer
passing an order of detention is uder a duty to afford the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 19
detenu an opportunity to make a representation to himself in
order to give relief to him, it may lead to the abuse of
powers vested in the officer. The possibility of an officer
misusing his powers and passing an order of detention
against a person and then revoking it in order to seek
profit for himself or for other ignoble means, however
remote it may be, cannot be ruled out. This aspect of the
matter has been touched upon in Raj Kishore Prasad, [1982] 3
SCC 10 and the Court which was dealing with the case of a
detenu detained under the Natioal Security Act has set out
the need as to why a representation made by a detenu against
an order of detention made by an officer of the Government
should be considered by the Government itself and not by the
officer concerned. The relevant passage reads as follows:
"The contention is that constitutionally speaking a duty
is cast on the detaining authority to consider the
representation. That is of course true. But in view of the
scheme of the Act, Parliament has now made it obligatory on
the appropriate Government to consider the representation.
This is done presumably to provide an effective check by
the appropriate Government on the exercise of power by
subordinate officers like the District Magistrate or the
Commissioner of Police. Therefore, if the appropriate
Government has considered the representation of the detenu
it cannot be said that there is contravention of Article
22(5) or there is failure to consider the representation by
the detaining authority."
PG NO 843
We have already pointed out that unlike in other
preventive detention acts, the COFEPOSA Act does not provide
for approval by the Central or State Government of an order
of detention passed by one of its duly empowered officers
and, consequently, an order of detention passed by an
officer acquiries ’deemed appvoal’ by the Government from
the time of its issue and by reason of it, the Government
becomes the detaining authority and thereby constitutionally
obligated to consider the representation made by the detenu
with utmost expedition.
We shall now see whether there is any logic or rational
behind the contention that since D.N. Capoor had made the
order of detention, the detenu was entitled, as of right to
make a representation to the very same officer and have the
same considered by him, in the first instance before the
detenu availed of his right to make a representation to the
State Government and then if need be to the Central
Government also. The fallacy and misconception underlying
such a contention has been lucidly brought out in Kavita v.
Maharashtra, [1982] 2 SCR 138 at 146 and again in Masuma v.
Maharashtra, [1982] 1 SCR 288 at 293. The relevant passage
in Kavita’s case reads as under:
"It was suggested that it would have been more
appropriate if the representation had been considered by the
very individual who had exercised his mind at the initial
stage of making the order of detention, namely the Secretary
to the Government, Shri Samant.There is no substance in this
suggestion. The order of detention was not made by Shri
Samant as an Officer of the State Government specially
empowered in that behalf but by the State Government itself
acting through the instrumentality of Shri Samant, a
Secretary to Government auhorised to so act for the
Government under the Rules of Business. Governmental
business can never get through if the same individual has to
act for the Government at every stage of a proceeding or
transaction, however, advantageous it may be to do so. Nor
can it be said that it would be to the advantage of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 19
detenu to have the matter dealt with by the same individual
at all stages. It may perhaps be to the advantage of the
detenu if fresh minds are brought to bear upon the question
at different stages.
In Masuma’s case the same view has been expressed:
"It was the State Government which made the order of
PG NO 844
detention and not P.V. Nayak in his individual capacity. The
representation made by the detenu against the order of
detention was also therefore required to be considered by
the State Government and either it could be disposed of by
P.V. Nayak acting for the State Government under the
earlier Standing Order dated 18th July, 1980 or the Minister
of State for Home could dispose it of under the later
Standing Order dated 18th July. 1980. Whether P.V. Nayak
considered the representation and disposed it of or the
Minister of State for Home did so would be immaterial, since
both had authority to act for the State Government and
whatever be the instrumentality, whether P.V. Nayak or
the Minister of State for Home, it would be the State
Government which would be considering and dealing with
the representation. The only requirement of Article 22(5)
is that the representation of the detenu must be considered
by the detaining authority which in the present case is the
State Government and this requirement was clearly satisfied
because when the Minister of State for Home
considered the representation and rejected it, he was acting
for the State Government and the consideration and rejection
of the representation was by the State Government.
There is no requirement express or implied in any provision
of the COFEPOSA that the same person who acts for
the State Government in making the order of detention
must also consider the representation of the detenu: In
fact, as pointed by Chinnappa Reddy, J. in Smt. Kavita v.
state of Maharashtra, [1982] l SCR 138 a Government
business can never get through if the same individual has to
act for the Government in every case or proceeding or
transaction. however, advantageous it may be to do so. if
Moreover it would really be to the advantage of the detenu
if his representation is not considered by the same
individual but fresh mind is brought to bear upon it. We do
not therefore, see any constitutional or legal
infirmity in the representation having been considered by
the Minister of State for Home.’
Mr. Lalit sought to distinguish these decisions by
saying that in both the cases the Secretary to Government
issuing the order of detention had the authority to act on
behalf of the Government under the Rules of Business
but D.N. Capoor had no such authority. Since we have pointed
out that a detention order passed by an officer having
PG NO 845
empowerment under the COFEPOSA Act to make an order of
detention would also constitute an order of the Government
by reason of deemed approval, we find no merit in the
contention of Mr. Lalit. The ratio in these cases would have
equal application to cases of the nature we have on hand.
Leaving aside for a moment the absence of any basis in
law or rationale for the contention that if an order of
detention is made by a specially empowered officer of the
Government, the detenu acquires a right to have his
representation considered in the first instance by the very
same officer and if he is not afforded such an opportunity,
it will amount to a deprivation of his constitutional
rights, let us view the matter from a practical aspect and
on pragmatic considerations. If an order of detention is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 19
made by a specially empowered officer and if by the time the
representation of the detenu is received by him, the officer
is not there to consider the representation either by reason
of his proceedinng on leave or falling sick or transfer or
retirement or being placed under suspension or death, then
the inevitable consequence would be that the detenu has to
be invariably set at liberty solely on the ground that his
representation had not been considered by the very same
officer who had passd the order of detention. Can we
conceive of such a situation or permit such consequences to
follow when it is common knowledge that the services of a
government officer in the same post for any length of time
can never be guaranteed. As already stated, the officer may
fall sick or he may proceed on leave on other grounds or he
may retire from service or he may be transferred elsewhere
due to exigencies of service etc. If therefore, we are to
sustain the view taken by the High Court, it would lead to
the position that even if an order of detention is made on
very valid and justifiable grounds by a specially empowered
officer, the sustainment of the order would depend upon
extraneous factors such as the officer not falling sick or
going on leave or retiring from service or being transrred
etc. etc. Surely, the Act and the Constitution do not
envisage such situations. I. is because of these factors Dr.
Chitale contended, and in our opinion very rightly, that if
the view of the High Court is to be accepted it would often
lead to a defeasance of the COFEPOSA Act itself and the
purpose for which it was enacted.
We will now consider the decisions relied on by Mr.
Lalit for contending that the High Court has not balzed a
new trail in holding that since D.N. Capoor was the
detaining authority he should have communicated to and
afforded opportunity to the detenu to make the
representation to himself in the first instance while
informing him that he had a right to make representations to
PG NO 846
the State Government and the Central Government. The first
two cases Jayanarain v. W. Bengal, [1970] 3 SCR 225 and P.K.
Chakrabarty v. W. Bengal, [1970] 1 SCR 543 were cases
pertaining to detention orders passed under the Preventive
Detention Act by District Magistrate empowered under the Act
to pass the detention orders. In both the cases the
detention orders were quashed on the ground that the
government had failed to consider the detenu’s
representation expeditiously and instead had sought umbrage
for its action on the ground it had awaited the opinion of
the Advisory Board to which it had forwarded the detenu’s
representation. While upholding the detenu’s contentions in
each of the two cases it was observed in passing that
"though Clause 5 (of Article 22) does not in express terms
say so it follows from its provisions that it is the
detaining authority which has to give to the detenu the
earliest opportunity to make representation and to consider
it when so made ..... " Abdus Sukkur v. The State of West
Bengal, [1973] 1 SCR 680 was a case relating to a detention
order passed under the West Bengal (Prevention of Violent
Activities) Act, by the District Magistrate, Bardna. Since
the State Government had failed to consider the
representation made by the detenu for a period of 27 days
without giving satisfactory explanation for the delay, the
detention order was quashed. In so doing the Court observed
that ’the requirement about the giving of earliest
opportunity to a detenu to make a representation against the
detention order would plainly be reduced to a farce and
empty formality if the authority concerned after giving such
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 19
an opportunity pays no prompt attention to the
representation which is submitted by the detenu as a result
of that opportunity."
Vimal Chand v. Shri Pradhan & Ors., [ 1979] 3 SCR 1007
was a case where an order of detention was passed under the
COFEPOSA Act by the Secretary, Government of Maharashtra,
Home Department in exercise of the power conferred on him
under Section 3(1) of the Act. The detention order was
quashed by this Court on the ground that the Government had
failed to consider the detenu’s representation expeditiously
and instead had postponed consideration of the
representation till the report of the Advisory Board was
received. In the Course of the judgment it was observed
that the detenu must be afforded the earliest opportunity of
making a representation would be rendered illusory "unless
there is a corresponding obligation of the detaining
authority to consider the representation of the detenu as
early as possible."
In Tarachand v. State of Rajasthan, AIR 1980 SC 2133 the
PG NO 847
grievance of the detenu detained under the COFEPOSA Act was
that he had sent representations to the detaining authority
viz.
The State Government and the Central Government on
23.2.1980 but there was a delay of 1 month and 5 days in his
representation reaching the State Government and even then
the State Government had failed to consider his
representation and pass orders. While striking down the
detention order the Court observed that "it is well settled
that in case of preventive detention of a citizen, Article
22(5) of the Constitution enjoins that the obligation of the
appropriate Government or of the detaining authority (State
Government in that case) to afford the earliest opportunity
to make a representation and to consider the representation
speedily."
The attempt of Mr. Lalit was to highlight the reference
to the "detaining authority" in the general observations in
the abovesaid cases by taking them out of their context and
build up an argument that in all those decisions it has been
laid down that there is a constitutional obligation on every
detaining authority to afford opportunity to the detenu to
make a representation to the detaining authority himself
before making representations to the State Government and
the Central Government. In order to point out the mis-
conception in the argument of Mr. Lalit we have set out in
brief the facts of each case as well. There was no
controversy in any of those cases as to whether the detenu’s
representation should have been considered by the officer
passing the order of detention or by the Government. On the
other hand the challenge made in all those cases to the
detention orders was on the ground there had been delay or
failure on the part of the concerned Government in
considering the representation. The observations in these
decisions, therefore, do not have any relevance to the
debate in this case.
We then come to two other decisions of this Court which
apparently lend support to Mr. Lalit’s contention. The more
decisive one is Santosh Anand v. Union of India, L1981] 2
SCC 420. In that case an order of detention made by the
Chief Secretary, Delhi Administration, acting as an officer
specially empowered under Section 3 of the COFEPOSA Act was
challenged on two grounds, viz. (a) that it was obligatory
upon the detaining authority (Administrator) to consider the
representation before sending it to the Advisory Board and
(b) that in any event the detenu’s representation ought to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 19
have been considered and rejected by the detaining authority
itself, namely, by the Chief Secretary but the same had been
straight away considered and rejected by the Administrator,
who under Section 2(f) of the Act was the State Government
PG NO 848
for the Union Territory of Delhi, thus depriving the detenu
of his remedy to approach the Administrator as a higher
authority after the rejection of his representation by the
detaining authority.
The Court came to the view "that the continued detention
of the detenu under the order dated April 3, 1979 is liable
to be quashed on the second ground about which facts are
clear and there is no difficulty in accepting the same." The
Court further held as follows:
"Under Article 22(5), as interpreted by this Court, as
also under the provisions of Section 11 of the COFEPOSA it
is clear that a representation should be considered by the
detaining authority, who on a consideration thereof can
revoke the detention order and if the representation is
rejected by the detaining authority it is open to the detenu
to approach the State Government for revocation of the order
and failing that it is open to him to approach the Central
Government to get the detention order revoked."
The Court further observed as follows:
"It is thus very clear to us that the representation
could be said to have been considered by the Chief Secretary
at the highest but he did not take the decision to reject
the same himself and for that purpose the papers were
submitted to the Administrator who ultimately rejected the
same. There is no affidavit filed by the Chief Secretary
before us stating that he had rejected the representation
The representation was, therefore, not rejected by the
detaining authority and as such the constitutional sateguard
under Article 22(5), as interpreted by this Court, cannot be
said to have been strictly observed or complied with."
The next decision is Pushpa v. Union of India, [1980]
Suppl SCC 391. The decision was rendered by a single judge
constituting the Vacation Bench of the Supreme Court. That
was also a case of a detenu under the COFEPOSA Act against
whom an order of detention had been passed by the Chief
Secretary to the Delhi Administration who was specially
empowered under Section 3 of the Act. The detention was
challenged on the ground that the representation sent by the
detenu had been considered by the Chief Secretary himself,
though he was not Competent to reject the representation
and the representation had not been considered and rejected
by the appropriate Government viz. the Administrator. The
Court rejected the contention and held as follows:
PG NO 849
"There is nothing in the scheme of Article 22 or the
provisions of the COFEPOSA which requires that the
representation ought always to be considered by the
appropriate Government notwithstanding the fact that the
order of detention has been made by an officer specially
empowered in that behalf. Undoubtedly the power to revoke
the detention order under Section 11 is conferred on the
State Government and the Central Government whenever an
order of detention is made by an officer of the State
Government but that does not imply that the initial
representation which a detenu has a right to make after the
grounds of detention are furnished to him, must of necessity
be made and considered by the State Government. In fact, the
representation can and ought to be made to the detaining
authority because it is he who has to apply his mind to the
facts of the case and it is he who has furnished the grounds
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 19
of detention on which he has acted and it is he who has to
be convinced that the action taken by him is unjustified and
required reconsideration. After all the purpose of a
representation is to convince the authority to reconsider
its decision which has resulted in the detention of the
detenu. The representation is not in the form of an appeal
to the higher authority and, therefore ipso facto it must go
to the State Government. Undoubtedly it would be open to the
detenu to make a representation under Section 11 requesting
either the State Government or the Central Government, as
the case may be, to revoke the order of detention. But the
initial representation that a detenu has a right to make on
receipt of the grounds of detention would ordinarily be
addressed to the detaining authority because it is that
authority which has taken a decision adverse to the detenu
and which has to be persuaded to re-consider the same.
Therefore, if the detenu made the representation to the
third respondent who had passed the detention order it was
open to him to consider the same and after applying his mind
to accept or reject the same. The failure to submit the
representation addressed to the detaining authority and
considered by him, to the State Government, would not
vitiate the detention order."
PG NO 850
Though these authorities lend apparent force to the
contentions of Mr. Lalit we are of the view that they cannot
be taken as decisive pronouncements on the question of law
raised for consideration before us.
In Santosh Anand’s case (supra) the challenge to the
order of detention was on the grounds and this aspect of
the matter has been noticed in Raj Kishor Prasad’s case
(supra), while differentiating the decision. The Bench,
however, did not go further into the matter for not
following the ratio in Santosh Anand’s case (supra) because
it was dealing with an order of detention passed under the
National Security Act and Section 8 of the said Act
specifically provided that the detenu must be afforded
opportunity at the earliest point of time to make a
representation to the appropriate Government and to the
detaining authority. Apart from this fact we have to point
out that we do not find any material to substantiate the
view taken by the Bench that Article 22(5) has been
interpreted by the Court and furthermore Section 11 of the
COFEPOSA Act envisages that a representation should be
considered by the detaining authority, who on a
consideration thereof can revoke the detention order and
if the representation is rejected by the detaining authority
it is open to the detenu to approach the State Government
for revocation of the order etc. etc. On the contrary, it
has been held by a Bench of three judges in N.P. Umrao v.
B.B. Gujral, [197912 SCR 315 at page 321 that "it is,
therefore, well-settled that in case of preventive
detention of a citizen, the Constitution by Article 22(5) as
interpreted by this Court, enjoins that the obligation of
the appropriate Government to afford the detenu the
opportunity to make a representation and to consider that
representation is distinct from the Government’s obligation
to constitute a Board and to communicate the representation
amongst other materials, to the Board to enable it to form
its opinion and to obtain such opinion." It is pertinent to
note that in that case the order of detention was made by
the Additional Secretary to the Government of India,
Ministry of Finance (Department of Revenue) but even so the
Court held that the Government was the appropriate authority
to consider the representation made by the detenu and the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 19
Government had fulfilled its constitutional obligation in
that behalf. Besides we have already pointed out that
Section 11 confers powers of revocation only on the State
Government and the Central Government and the Act does not
envisage or contemplate an officer of the State Government
or the Central Government passing an order of detention also
exercising powers of revocation. We must, therefore, hold
that the decision in Santosh Anand’s case (supra) must
stand confined to the facts of that case and it cannot be
PG NO 851
treated as one in which a principle of law of general
application in all cases has been enunciated. In fact we may
appositely refer in this connection to a decision by a Bench
of three Judges of this Court in Devji Vellabbhai Tandal v.
Administrator, [1982] 3 SCC 222 where it was held that it is
only the administrator in the Union Territory of Delhi who
is entitled to consider the representation of a detenu and
reject the same or accept the same and revoke the order of
detention. The pronouncement in this case, being one made by
a Bench of three Judges, carries with it more binding force
than the view taken in Santosh Anand’s case.
Turning now to Pushpa’s case, apart from being a
judgment rendered by a single judge constituting the
Vacation Bench of the Court, can be distinguished on facts.
The two representations made by the detenu, in that case,
one through an advocate and the other by the detenu himself
were both addressed to the Chief Secretary himself and
secondly no representation was made by the detenu to the
appropriate Government. These factors had influenced the
Court to hold that the Chief Secretary had acted within his
competence in considering the representation addressed to
him and in rejecting the same and that if the detenu had any
grievance he should have moved the State Govenment under
Section 11 to invoke its powers of revocation. In such
circumstances this decision cannot also be treated as one
having precedential value.
In the light of our discussion our answer to the three
posers formulated earlier has to be in the negative. It,
therefore, follows that we cannot accept or sustain the view
taken by the High Court for quashing the order of detention
passed against the detenu.
Having settled the position of law, it only remains for
us to consider whether the order of detention should be
restored and the detenu sent back to custody. On this aspect
of the matter Mr. Lalit fervently pleaded that this was not
a case where the ends of justice required the detenu being
arrested and placed in custody for the rest of the period of
detention. He stated that the detenu was a young boy of
19/20 years and that he had already been in custody for 5
months and 3 weeks. It was further stated by him that no
adverse information against the detenu had come to the
notice of the authorities after he was set at liberty by the
High Court. In such circumstances Mr. Lalit pleaded that the
Court may allow the appeal by the State only in so far as
the settlement of the question of law is concerned and not
going to the extent of ordering the re-arrest of the detenu.
In support of his submission the learned counsel placed
PG NO 852
reliance on State
of Bombay v. Purshottam Jog Nayak, [1952] SCR 674,at 676
where the Court, following the precedent in King Emperor v.
Vimal Bhai Deshpande, ILR 1946 Nagpur 651 at 655 proceeded
to decide the appeal after making it clear that the State
shall not in any event re-arrest the detenu B who had
earlier been detained under Section 3 of the Preventive
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 19
Detention Act of I950. Dr. Chitale had no serious objection
to the Court following the same procedure in this case. We,
therefore direct that notwithstanding our holding that the
High Court was in error in quashing the order of detention
made against the detenu, he will not be re-arrested and
placed in custody for the rest of the period of detention.
In the result the appeal is allowed and the judgment and
order of the High Court are set aside but, however, the
detenu’s release will not be effected.
R. S . S . Appeal allowed.