Full Judgment Text
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PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
MEERA MOHIDEEN
DATE OF JUDGMENT14/04/1995
BENCH:
A.M. AHMADI, CJI, S.C. AGRAWAL S.P. BHARUCHA, K.S. PARIPOORNAN &MRS. SUJATA V. MANOHAR, JJ
ACT:
HEADNOTE:
JUDGMENT:
S.C. AGRAWAL, J.:
1. Leave granted in SLP (Crl.) No. 282/94.
2.When an order for preventive detention is passed by an
officer especially empowered to do so by the Central Govern-
ment or the State Government, is the said officer required
to consider the representation submitted by the detenu?
3.This the common question that arises for consideration in
these appeals in the context of orders for preventive
detention pased by officers especially empowered by the
Central Government under the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
(for short ’COFEPOSA Act’) and the prevention of illicit
Traffic in Narcotic Drugs & Psychotropic Substances Act,
1988 (for short ’PIT NDPS Act’). There is divergence in the
decisions of this Court on this question. In Amir Shad Khan
v. L. Hmingliana & Ors., SCC 39, (decided by a bench of
three Judges), it has been held that where an officer of the
State Government or the Central Government has passed any
detention order and on receipt of a representation he is
convinced that the detention needs to be revoked he can do
so. In State of Maharashtra v. Smt. Sushila Mafatlal Shah &
Ors., 1988 (4) SCC 490, (decided by a bench two Judges), a
different view has been expressed. It has been held that if
an order of detention is made by an officer specially
empowered by the Central Government or a State Government
the representation of the detenue is required to be
considered only by the Central Government or the State
Government and it is not required to be considered by the
officer who had made the order.
4. The question posed has to be considered in the light of
the provisions relating to preventive detention contained in
Article 22 of the Constitution as well as the provisions
contained in the relevant statutes.
5.The Constitution, while permitting Parliament and the
State Legislatures to enact a law providing for preventive
detention, prescribes certain safeguards in Article 22 for
the protection for the persons so detained. One such
protection is contained in sub-clause (a) of Clause (4) of
Article 22 which requires that no law providing for
preventive detention shall authorities the detention of a
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person for a period longer than three months unless an Advi-
sory Board consisting of persons who are, or have been, or
are qualified to be appointed as Judges of a High Court has
reported before the expiration of the said period of three
months that there is in its opinion sufficient cause for
detention. The other safeguard is contained in clause (5)
of Article 22 which provides as under:
"When any person is detained in pursuance of
an order made wider any law providing for
Preventive Detention, the authority providing
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 "
6. This provision has the same force and sanctity as any
other provision relating to fundamental rights. (See State
of Bombay v. Atma Ram Sridhar Vaidya 1951 SCR 167, at p.
186). Article 22(5) imposes a dual obligation on the
authority making the order of preventive detention :(i) to
communicate to the person detained
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as soon as may be the grounds on which the order of
detention has been made; and (ii) to afford the person
detained the earliest opportunity of making a representation
against the order of detention. Article 22(5) thus proceeds
on the basis that the person detained has a right to make a
representation against the order of detention and the
aforementioned two obligations are imposed on the authority
making the order of detention with a view to ensure that
right of die person detained to make a representation is a
real eight and he is able to take steps for redress of a
wrong which he thinks has been committed. Article 22(5)
does not, however, indicate the authority to whom the
representation is to be made. Since the object and purpose
of the representation that is to be made by the person
detained is to enable him to obtain relief at the earliest
opportunity, the said representation has to be made to the
authority which can grant such relief, i.e., the authority
which can revoke the order of detention and set him at
liberty. The authority that has made the order of detention
can also revoke it. This right is inherent in the power to
make the order. It Is recognised by Section 21 of the
General Clauses Act, 1897 though it does not flow from it.
It can, therefore, be said that Articles 22(5) postulates
that the person detained has a right to make a
representation against the order of detention to the au-
thority making the order. In addition, such a
representation can be made to any other authority who is
empowered by law to revoke the order of detention.
7. The learned Additional Solicitor General has urged that
the representation envisaged by Article 22(5) has to be made
to the Advisory Board referred to in Article 22(4) since the
only right that has been conferred on the person detained is
to have the matter of his detention considered by the
Advisory Board. The learned Additional Solicitor General
drew support from the words "making a representation against
the order" in Article 22(5) for this submission and
contended that the use of the word "a" in singular indicates
that only one representation is to be made and that
representation has to be made to the Advisory Board because
that is the only authority contemplated under the Constitu-
tion which is required to consider such representation. We
are unable to give such a restricted meaning to the words "
making a representation against the order " in Article 22(5)
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which is in the nature of the fundamental right affording
protection to the person detained. As stated earlier, the
object underlying the right to make a representation that is
envisaged by Article 22(5) is to enable the person detained
to obtain immediate relief If the construction placed by the
learned Additional Solicitor General is accepted relief may
not be available to the detenu till the matter is considered
by the Advisory Board and that would depend upon the time
taken by the appropriate Government in referring the matter
to the Advisory Board. Moreover reference is required to be
made to the Advisory Board only in cases where the period of
detention is going to be longer then three months and it is
not obligatory to make a reference to the Advisory Board if
the period of detention is less than three months. In such
a case the right to make a representation under clause (5)
of Article 22 would be rendered nugatory. A construction
which leads to such a result must be eschewed.
8. We may, in this context, briefly refer to some of the
decisions of this Court relat-
647
ing to consideration of the representation of the person
detained under Article 22(5).
9. In Abdul Karim & Ors. v. State of West Bengal, 1969 (3)
SCR 479, it was urged on behalf of the State Government that
since the Advisory Board had been constituted to consider
the case of the detenues and to report to the State
Government whether there was sufficient cause for the
detention there was no obligation on the part of the State
Government to consider the representation. Rejecting the
said contention, it was said
"The right of representation under Article 22
is a valuable constitutional right and is not
a mere formality. It is, therefore, not
possible to accept the argument of the
respondent that the State Government is not
under a legal obligation to consider the
representation of the detenu or that the
representation must be kept in cold storage in
the archives of the Secretariat till the time
or occasion for sending it to the Advisory
Board is reached. If the viewpoint contended
for by the respondent is correct, the
constitutional right under Article 22(5) would
be rendered illusory. Take for instance a
case of detention of a person on account of
mistaken identity. If the order of detention
has been made against A and a different person
B is arrested and detained by the police
authorities because of similarity of names or
some such cause, it cannot be reasonably said
that the State Government should wait for the
report of the Advisory Board before releasing
the wrong person from detention." (page 487)
10. The decision in Abdul Karim (supra) was reaffirmed by
the Constitution Bench of this Court in Pankaj Kumar
Chakrabarty & Ors. v. State of West Bengal, 1970 (1) SCR
543, wherein it was observed:
"It is true that cl. (5) does not in positive
language provide as to whom the representation
is to be made and by whom, when made, it is to
be considered. But the expression "as soon as
may be" and "the earliest opportunity" in that
clause clearly indicate that the grounds are
to be served and the opportunity to make a
representation are provided for to enable the
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detenu to show that his detention is un-
warranted and since no other authority who
should consider such representation is
mentioned it can only be the detaining
authority to whom it is to be made which has
to consider it. Though cl.5 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 a representation and to
consider it when so made whether its order is
wrongful or contrary to die law enable it to
detain him." (p.548)
(Emphasis supplied)
11. Again in Jayanarayan Sukul v. State of West Bengal, 1970
(3) SCR 225, decided by the Constitution Bench, this Court
has held:
"Broadly stated, four principles are to be
followed in regard to representation of
detenus. First, the appropriate authority is
bound to give an opportunity to the detenu to
make a representation and to consider the
representation of the detenu as early as
possible. Secondly, the consideration of the
representation of the detenu by the
appropriate authority is entirely independent
of any action by the Advisory Board including
the consideration of the representation of the
detenu by the Advisory Board. Thirdly, there
should not be any delay in the matter of
consideration. It is true that no hard and
fast rule can be laid down as to the measure
of time taken by the appropriate authority for
consideration but it has to be
648
remembered that the Government has to be
vigilant in the governance of the citizens. A
citizen’s right raises a correlative duty of
the State. Fourthly, the appropriate
Government is to exercise its opinion and
judgment on the representation before the
sending the case along with the detenu’s
representation to the Advisory Board. If the
appropriate Government will release the detenu
the Government will not send the matter to the
Advisory Board. If however the Government
will not release the detenu the Government
will sent the case along with the detenu’s
representation to the Advisory Board." (p. 232
)
(Emphasis supplied)
12.All these cases related to orders of detention made by
the District Magistrate under the Preventive Detention Act,
1950 which specifically provided (in Section 7(1)) that the
authority making the order of detention shall afford to the
person detained the earliest opportunity of making a
representation against the order "to the appropriate
Government" and for the reason there are observations by the
Court that the representation should be considered by the
"State Government" though the orders of detention were made
by the District Magistrate under Section 3(2) of Preventive
Detention Act. Although in these Cases the focus was only
on the question whether the representation should be
considered by the State Government or the Advisory Board,
and the court was not required to consider whether the
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detaining authority should also consider the representation,
yet we find that in Pankaj Kumar Chakrabarty (supra) the
court has said that the "detaining authority" must consider
the representation when so made. Similarly, in Jayanarayan
Sukul (supra) the court has used the expression "appropriate
authority" in the first three principles as distinct from
the expression "appropriate Government" used in the fourth
principle. The expression "detaining authority" would mean
the authority which has made the order of detention and the
authority which has made an order for continuance of such
detention.
13.In Amir Shad Khan (supra) it has been held
"The right to make a representation against
the detention order thus flows from the
constitutional guarantee enshrined in Article
22(5) which casts on obligation on the
authority to ensure that the detenu is
afforded an earliest opportunity to exercise
that right, if he so desires. The necessity
of casting a dual obligation on the authority
making the detention order is obviously to
acquaint the detenu of what had weighed
withthe Detaining Authority for exercising
the extraordinary powers of detention without
trial conferred by Section 3(1) of the Act and
to give the detenu an opportunity to point out
any error in the exercise of that power so
that the said authority gets an opportunity to
undo the harm done by it, if at all, by
correcting the error at the earliest point of
time. Once it is realised that Article 22(5)
confers a right of representation, the next
question is to whom must the representation be
made. The grounds of detention clearly inform
the detenu that he can make a ,representation
to the State Government, the Central
Government as well as the Advisory Board.,
There can be no doubt that the representation
must be made to the authority which has the
power to rescind or revoke the decision, if
need be (p.46)
14.Articles 22(5) must, therefore, be construed to mean
that the person detained has a right to make a
representation again the order of detention which can be
made not only to the Advisory Board but also to
649
the detaining authority, i.e., the authority that has made
the order of detention or the order for continuance of such
detention, who is competent to give immediate relief by
revoking the said order as well as to any other authority
which is competent under law to revoke the order for
detention and thereby give relief to the person detained.
The right to make a representation carries within it a
corresponding obligation on the authority making the order
of detention to inform the person detained of his right to
make a representation against the order of detention to the
authorities who are required to consider such a repre-
sentation.
15.Having thus defined the nature of the right to make a
representation recognised by Article 22(5) we may now
proceed to examine the relevant provisions in the COFEPOSA
Act in PIT NDPS Act.
16.Section 3 of the COFEPOSA Act confers the power to make
orders detaining certain persons and provides as under:
"Section 3. Power to make orders detaining
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certain persons.-
(1)The Central Government or the State
Government or any officer of the Central
Government, not below the rank of 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 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 prevention him from -
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(ii) engaging in transporting or concealing
or keeping smuggled goods, or
(iv) dealing in smuggled goods otherwise than
by engaging in transporting or concealing or
keeping smuggled goods,or
(v) habouring person engaged in smuggling
goods or in abetting the smuggling of goods,
it is necessary so to do, make and order
directing that such person be detained.
Provided that no order of detention shall be
made on any of the grounds specified in this
sub-section on which an order of detention may
be made under Section 3 of the Prevention of
Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 or under
Section 3 of the Jammu and Kashmir Preventio
n
of Illicit Traffic in Narcotic Drugs and Psy-
chotropic Substances Ordinance, 1988 (J.& K.
Ordinance 1 of 1988)
(2) When any order of detention is made a
State Government or by an officer empowered 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 purpose 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. "
650
17.Section 11 of the COFEPOSA Act, providing for revocation
of detention orders, is in the following terms :
" Section 11. Revocation of detention or-
ders.- (1) without prejudice to the provisions
of Section 21 of the General Clauses Act 1897
(10 of 1987), 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;
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(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 2 against the same person. "
18.Section 3 of the PIT NDPS Act is on the same lines as
Section 3 of COFEPOSA Act. There is slight difference in
sub-section (1) but sub-sections (2) and (3) are identical.
Section 12 of the PIT NDPS Act makes provision for
revocation of detention orders and is in the same terms as
Section 11 of the COFEPOSA Act.
19.The provisions in COFEPOSA Act and PIT NDPS Act differ
from those contained in the National Security Act, 1980 as
well as earlier preventive detention laws, namely, the
Preventive Detention Act, 1950, the Maintenance of Internal
Security Act, 1971 in some respects. Under sub-section (3)
of the National Security Act, power has been conferred on
the District Magistrate as well as the Commissioner of
Police to make an order of detention, and sub-section (4) of
Section 3 prescribes that the officer shall forth with
report the fact of making the order to the State Government
to which he is subordinate together with he grounds on which
the order has been made and such other particulars as, in
his opinion, have a bearing on the matter, and that no such
order shall remain in force for more than twelve days after
the making thereof unless, in the meantime, it has been
approved by the State Government. In Section 8(1) of the
National Security Act it is prescribed that the authority
making the order shall afford the person detained the
earliest opportunity of making a representation against the
order to the appropriate Government, Similar provisions were
contained in the Preventative Detention Act, 1950 and the
Maintenance of Internal Security Act, 1971. COFEPOSA Act and
the PIT NDPS Act do not provide for approval by the appro-
priate Government of the orders passed by the officer
specially empowered to pass such an order under Section 3.
The said Acts also do not lay down that the authority making
the order shall afford an opportunity to make a
representation to the appropriate Government.
20. Under Section 3 of the COFEPOSA Act and the PIT NDPS
Act an order of detention can be made by -
(i) The Central Government; or
(ii) an officer specially empowered by the
Central Government; or
(iii) the State Government; or
(iv) an officer specially empowered by the
State Government.
21. In view of Section 21 of the General
651
Clauses Act the authority which has made the order of
detention would be competent to revoke the said order.
Section 11 of the COFEPOSA Act and Section 12 of the PIT
NDPS Act provide for revocation of such an order by
authorities other than the authority which has made the
order. Under clause (a) of sub-section (1) of both these
sections an order made by an officer specially empowered by
the State Government can be revoked by the State Government
as well as by the Central Government and under clause (b) of
sub-section (1) an order made by an officer specially
empowered by the Central Government or an order made by the
State Government can be revoked by the Central Government.
This means that the Central Government has the power to
revoke orders made by -
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(i) the State Government;
(ii) an officer specially empowered by the
State Government; and
(iii) an officer specially empowered by the
Central Government.
22. Similarly, the State Government has the power to revoke
an order made by an officer specially empowered by the State
Government. In other words an order made by the officer
specially empowered by the State Government can be revoked
by the State Government as well as by the Central
Government, an order made by the State Government can be
revoked by the Central Government and an order made by the
officer specially empowered by the Central Government can be
revoked by the Central Government. The conferment of this
power on the Central Government and the State Government
does not, however, detract from the power that is available
to the authority that has made the order of detention to
revoke it. The power of revocation that is conferred on the
Central Government and the State Government under clauses
(a) and (b) of sub-section (1) of Section 11 of the COFEPOSA
Act and Section 12 of the PIT NDPS Act is in addition to the
power of revocation that is available to the authority that
has made the order of detention. This is ensued by the
words "without prejudice to the provisions of Section 21 of
the General Clauses Act, 1897 (10 of 97)" in sub-section (1)
of both of provisions.
23. If the power of revocation is to be treated as the
criterion for ascertaining the authority to whom
representation can be made, then the representation against
an order of detention made by an officer specially empowered
by the State Government can be made to the officer who has
made the order as well as to the State Government and the
Central Government who are competent to revoke the order.
Similarly, the representation against an order made by the
State Government can be made to the State Government as well
as to the Central Government and the representation against
an order made by an officer specially empowered by the
Central Government can be made to the officer who has made
the order as well as to the Central Government.
24. The learned Additional Solicitor General has, however,
submitted that the officer specially empowered under Section
3 of the COFEPOSA Act and PIT NDPS Act cannot be regarded as
the detaining authority and that though the order of deten-
tion is made by the officer specially empowered by the
Central Government or by the State Government the detaining
author-
652
ity is the appropriate Government which has empowered the
officer to make the order and, therefore, it is the
appropriate Government alone which can consider the
representation and revoke the same and a representation does
not lie to the officer who has made the order of detention.
According to the learned Additional Solicitor General the
only provision regarding revocation of detention orders is
that contained in Section 11 of the COFEPOSA Act and Section
12 of the PIT NDPS Act and under the said provisions the
Central Government and the State Government only have been
empowered to revoke an order of detention. This contention
fails to give effect to the words "without prejudice to the
provisions of Section 21 of the General Clauses Act, 1897
(10 of 1897)" in sub-section (1) of Section 11 of COFEPOSA
Act and Section 12 of PIT NDPS Act. As pointed out earlier
the use of these words preserves the power of the officer
making the order under Section 21 of the General Clauses Act
to revoke the order made by him. It cannot, therefore, be
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said that the conferment of the power of revocation on the
Central Government and the State Government under Section 11
has the effect of depriving the officer making the order of
detention of the power to revoke the order made by him. If
that is so the officer who has made the order of detention
is competent to consider the representation made by the
person detained against the order of detention made by such
officer.
25. We may, at this, take note of some of the decisions of
this Court which have a bearing on the question under
consideration.
26. In Ibrahim Bachu Bafan v. State of Gujarat Ors. (supra),
this Court, while construing the provisions of Section 11 of
the COFEPOSA Act, has held :
"The words "without prejudice to the
provisions of Section 21 of the General
Clauses Act 1897" used in Section 11(1) of the
Act give expression to the legislative
intention that without affecting that right
which the authority making the order enjoys
under Section 21 of the General Clauses Act,
an order of detention is also available to be
revoked or modified by authorities names in
clauses (a) and (b) of Section 11 (1) of the
Act. Power conferred under Clauses (a) and
(b) of Section 11 (1) of the Act could not be
exercised by the named authorities under
Section 21 of the General Clauses Act as these
authorities on whom such power has been
conferred under the Act are different from
those who made the orders. Therefore,
conferment of such power was necessary as
Parliament rightly found that Section 21 of
General Clauses Act was not adequate to meet
the situation. Thus, while not affecting in
any manner and expressly preserving the power
under Section 21 of the General Clauses Act of
the original authority making the order, power
to revoke or modify has been conferred on the
named authorities. (p. 28)
27.In Amir Shad Khan (supra) the majority view has been thus
expressed :
"Therefore, where an officer of the State
Government or the Central Government has
passed any detention order and on receipt of a
representation he is convinced that the
detention order needs to be revoked he can do
so by virtue of Section 21 of the General
Clauses Act since Section 11 of the Act does
not entitle him to do so. If the State
Government passes an order of detention and
later desires to revoke it, whether upon
receipt of a repre-
653
sentation from the detenu or otherwise, it
would be entitled to do so wider Section 21 of
the General Clauses Act but if the Central
Government desires to revoke an order passed
by the State Government or its officers it can
do so only under clause (b) of Section 11 (1)
of the Act and not under Section 21 of the
General Clauses Act. This clarifies why the
power under Section 11 is conferred without
prejudice to the provisions of Section 21 of
the General Clauses Act."
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(p. 49)
28.In Smt. Sushila Mafatlal Shah (supra) the order of
detention was passed under Section 3 of the COFEPOSA Act by
Shri. D.N. Capoor, Officer on Special Duty and Ex-officio
Secretary to the Government of Maharashtra, Home Department,
as the officer specially empowered by the Government of
Maharashtra under Section 3 of the COFEPOSA Act. It was
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 but it
was not communicated to the detenu that he had a right to
make a representation to the detaining authority himself It
was contended that this has resulted in denial of the right
to make a representation under Article 22(5). The said
contention was negatived by this Court (A.P. Sen and
Natarajan, JJ). After referring to the decisions of this
Court in Abdul Karim (supra), Jayanarayan Sukul (supra),
Haradhan Saha v. State, of West Bengal, 1975 (3) SCC 198 and
John Martin v. State of West Bengal, 1975 (3) SCC 836, it
was held that "on the plain language of Article 22(5) the
said Article does not provide material for the detenu to
contend that in addition to his right to make a rep-
resentation 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." (p.498) After taking note of the
provisions contained in the COFEPOSA Act and after observing
that unlike in other Preventive Detention Acts, e.g.,
National Security Act, Maintenance of Internal Security Act,
Preventive Detention Act, the COFEPOSA Act does not provide
for approval by the Government of an order of detention
passed by one of its duly empowered officers, the learned
Judges have expressed the view that "an order passed by an
officer acquires ’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. (p. 505) Reliance has also been
placed on the decisions in Kavita v. State of Maharashtra,
1981 (3) SCC 558 and Smt. Masuma v. State of Maharashtra
1981 (3) SCC 566.
29.The learned Additional Solicitor General has pleaded for
acceptance of the law laid down in Smt. Sushila Mafatlal
Shah (supra). We regret our inability to do so.
30.The decision of Smt. Sushila Mafatlal Shah (supra)
proceeds on two premises : (i) Article 22(5) does not confer
a right to make a representation to the officer specially
empowered to make the order ; and (11) under the provisions
of the COFEPOSA Act when the order of detention is made by
the officer specially empowered to do so, the detaining
authority is the appropriate Government, namely, the
Government which has empowered the officer, to make the
order, since such order acquires
654
‘deemed approval’ by the Government from the time of its
issue.
31.With due respect we find it difficult to agree with both
the premises. Construing the provisions of Article 22(5) we
have explained that the right of the persons detained to
make a representation against the order of detention
comprehends the right to make such a representation to the
authority which can grant such relief, i.e., the authority
which can revoke the order of detention and set him at
liberty and since the officer who has made the order of de-
tention is competent to revoke it, the person detained has
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the right to make a representation to the officer who made
the order of detention. The first premises that such right
does not flow from Article 22(5) cannot therefore, be
accepted.
32. The learned Judges, while relying upon the observations
in Abdul Karim (supra) and the decisions in Jayanarayan
Sukul (supra), Haradhan Saha (supra) and John Martin (supra)
have failed to notice that in these cases the court was
considering the matter in the light of the provisions con-
tained in Section 7(1) of the Preventive Detention Act,
1950, whereby it was prescribed that the representation was
to be made to the appropriate Government. The observations
regarding consideration of the representation by the State
Government in the said decisions have, therefore, to be
construed in the light of the said provision in the
Preventive Detention Act and on that basis it cannot be said
that Article 22(5) does not postulate that the person
detained has no right to make a representation to the
authority making the order of detention.
33. The second premise that the Central Government becomes
the detaining authority since there is deemed approval by
the Government of the order made by the officer specially
empowered in that regard from the time of its issue, runs
counter to the scheme of the COFEPOSA Act and the PIT NDPS
Act which differs from that of other preventive detention
laws, namely, the National Security Act, 1980, the Main-
tenance of Internal Security Act, 1971, and the Preventive
Detention Act, 1950.
34. In the National Security Act there is an express
provision [Section 3(4)] in respect of orders made by the
District Magistrate or the Commissioner of Police under
Section 3(3) and the District Magistrate or the Commissioner
of Police who has made the order is required to forthwith
report the fact to the State Government to which he is
subordinate. The said provision further prescribes that no
such order shall remain in force for more than twelve days
after the making thereof, unless, in the meantime, it has
been approved by the State Government. This would show that
it is the approval of the State Government which gives
further life to the order which would otherwise die its
natural death on the expiry of twelve days after its making.
It is also the requirement of Section 3(4) that the report
should be accompanied by the grounds on which the order has
been made and such other particulars as, in the opinion of
the said officer, have a bearing on the matter which means
that the State Government has to take into consideration the
grounds and the said material while giving its approval to
the order of detention. The effect of the approval by the
State Government is that from the date of such approval the
detention is authorised by the order of the State Government
approving the order of detention and the State
655
Government is the detaining authority from the date of the
order of approval. That appears to be the reason why
Section 8(1) envisages that the representation against the
order of detention is to be made to the State Government.
The COFEPOSA Act and the PIT NDPS Act do not require the
approval of an order made by the officer specially empowered
by the State Government or by the Central Government. The
order passed by such an officer operates on its own force.
All that is required by Section 3(2) of COFEPOSA Act and PIT
NDPS Act is that the State Government shall within 10 days
forward to the Central Government a report in respect of an
order that is made by the State Government or an officer
specially empowered by the State Government. An order made
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by die officer specially empowered by the State Government
is placed on the same footing as an order made by the State
Government because the report has to be forwarded to the
Central Government in respect of both such orders. No such
report is required to be forwarded to the Central Government
in respect of an order made by an officer specially
empowered by the Central Government. Requirement regarding
forwarding of the report contained in Section 3(2) of the
COFEPOSA Act and the PIT NDPS Act cannot, therefore, affords
the basis for holding that an order made by an officer
specially empowered by the Central Government or the State
Government acquires deemed approval of that government from
the date of its issue. Approval, actual or deemed,
postulates application of mind to the action being approved
by the authority giving approval. Approval of an order of
detention would require consideration by the approving au-
thority of the grounds and the supporting material on the
basis of which the officer making the order had arrived at
the requisite satisfaction for the purpose of making the
order of detention. Unlike Section 3(4) of the National
Security Act there is no requirement in the COFEPOSA Act and
the PIT NDPS Act that the officer specially empowered for
the purpose of making of an order of detention must forth-
with send to the concerned government the grounds and the
supporting material on the basis of which the order of
detention has been made. Nor is it prescribed in the said
enactments that after the order of detention has been made
by the officer specially empowered for that purpose the
concerned government is required to apply its mind to the
grounds and the supporting material on the basis of which
the order of detention was made. The only circumstance from
which inference about deemed approval is sought to be drawn
is that the order is made by the officer specially empowered
for that purpose by the concerned government. Merely
because the order of detention has been made by the officer
who has been specially empowered for that purpose would not,
in our opinion, justify the inference that the said order
acquires deemed approval of the government that has so
empowered him, from the date of the issue of the order so as
to make the said government the detaining authority. By
specially empowering a particular officer under Section 3(2)
of the COFEPOSA Act and the PIT NDPS Act the Central
Government or the State Government confers an independent
power on the said officer to make an order of detention
after arriving at his own satisfaction about the activities
of the person sought to be detained. Since the detention of
the person detained draws its legal sanction from the order
passed by such officer, the officer is the detaining
authority in respect
656
of the said person. He continues to be the detaining
authority so long as the order of detention remains
operative. He ceases to be the detaining authority only
when the order of detention ceases to operate. This would
be on the expiry of the period of detention as prescribed by
law or on the order being revoked by the officer himself or
by the authority mentioned in Section 11 of the COFEPOSA Act
and Section 12 of the PIT NDPS Act. There is nothing in the
provisions of these enactments to show that the role of the
officer comes to an end after he has made the order of
detention and that thereafter he ceases to be the detaining
authority and the concerned government which had empowered
him assumes the role of the detaining authority. We are
unable to construe the provisions of the said enactments as
providing for such a limited entrustment of power on the
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officer who is specially empowered to pass the order. An
indication to the contrary is given in Section 11 of the
COFEPOSA Act and Section 12 of the PIT NDPS Act which
preserve the power of such officer to revoke the order that
was made by him. This means that the officer does not go
out of the picture after he has passed the order of
detention. It must, therefore, be held that the officer
specially empowered for that purpose continues to the
detaining authority and is not displaced by the concerned
government after he has made the order of detention.
Therefore, by virtue of his being the detaining authority he
is required to consider the representation of the person
detained against the order of detention.
35. In Kavita v. State of Maharashtra (supra) the order of
detention was made by the Government of Maharashtra and not
by an officer specially empowered by the State Government.
Similarly in Smt. Masuma (supra) it was held that the order
of detention was not made by P.V. Nayak in his individual
capacity as an officer of the State Government but it was
made by him as representing the State Government and that it
was the State Government which had made the order of
detention action through the instrumentality of P.V. Nayak,
Secretary to Government who was authorised to act for and on
behalf of and in the name of the State Government under the
Rules of Business. The said decisions did not relate to an
order made by an officer specially empowered for the purpose
and do not have a bearing on the question whether the
representation against an order made by an officer specially
empowered for that purpose is required to be considered by
such officer.
36. It appears that the decision in Ibrahim Bachu Bafan
(supra), a decision of a bench of three-Judges, was not
brought to the notice of the learned Judges deciding Smt.
Sushila Mafatlal Shah (supra). For the reasons
aforementioned we are of the view that the decision in Smt.
Sushila Mafatlal Shah (supra) in far as it holds that where
an order of detention made by an officer specially empowered
for the purpose representation against the order of
detention is not required to be considered by such officer
and it is only to be considered by the appropriate
Government empowering such officer does not lay down the
correct law.
37. The learned Additional Solicitor General has also
placed reliance on the decision in John Martin v. State of
West Bengal (supra) wherein the court was dealing with an
order of detention made under the Maintenance of Internal
Security Act, 1971
657
which contained an express provision in Section 8(1), for
the representation to be made against the detention order to
the appropriate Government. The said decision can,
therefore, have no application to a detention under the
COFEPOSA Act and the PIT NDPS Act which do not contain such
a provision.
38.Having regard to the provisions of Article 22(5) of the
Constitution and the provisions of the COFEPOSA Act and the
PIT NDPS Act the question posed is thus answered : Where the
detention order has been made under Section 3 of the
COFEPOSA Act and the PIT NDPS Act 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 results in denial of the
right conferred on the person detained to make a
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representation against the order of detention. This right
of the detenu is in addition to his right to make the
representation to the State Government and the Central
Government where the detention order has been made by an
officer specially authorised by a State Government and to
the Central Government where the detention order has been
made by an officer specially empowered by the Central
Government, and to have the same duly considered. This
right to make a representation necessarily implies that the
person detained must be informed of his right to make a
representation to the authority that has made the order of
detention at the time when he is served with the grounds of
detention so as to enable him to make such a representation
and the failure to do so results in denial of the right of
the person detained to make a representation.
39.The appeals may now be taken up for consideration in the
light of the answer given to the question posed for
consideration.
Crl. A. Nos. 764-765 of 1994
40.Crl.A. Nos. 764-765 of 1994 relate to the detention of
Ishwardas Bechardas Patel under order dated January 21, 1994
under Section 3 of the COFEPOSA Act made by Shri Mahendra
Prasad, Joint Secretary to the Government of India, Ministry
of Finance, Department of Revenue, as the officer specially
empowered by the Central Government. The grounds of de-
tention were served on the detenu on February 5, 1994. On
February 21, 1994 the detenu made a representation to the
officer who had made the order of detention namely, Shri
Mahendra Prasad, Joint Secretary to the Government of India,
as well as to the Advisory Board. On March 22, 1994 the
detenu was informed that the said representation was
considered by the Central Government and the same has been
rejected. The officer who made the order of detention did
not, however, consider the said representation though it was
addressed to him and he forwarded the said representation
with his recommendation that the presentation may be
rejected. A writ petition was filed in the Bombay High
Court by the appellant who is the son of the detenu. By
order dated July 20, 1994 Division Bench of the High Court
referred the following three questions to the 11 Bench for
consideration:
(1) Has the specially empowered officer
under the COFEPOSA Act also an
658
independent power to revoke the order of
detention in view of Section 11 of the
COFEPOSA Act read with Section 1 of the
General Clauses Act?
(2)Are observations in Amir Shad Khan
regarding power of revocation of specially
empowered officer under the COFEPOSA Act not
binding on this Court?
(3)Does failure to take independent decision
of revocation of order of detention by the
specially empowered officer under the COFEPOSA
Act and merely forwarding the same with rec-
ommendation to reject, result in noncompliance
with constitutional safeguard under Article
22(5) of the Constitution?
41. By the judgment of the Full Bench dated August 26, 1994
the question No. 1 was answered in the affirmative and it
was held that the specially empowered officer under the
COFEPOSA Act has an independent power to revoke in view of
Section 11 of COFEPOSA Act read with Section 21 of the
General Clauses Act. Question No.2 was also answered in the
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affirmative and it was held that the observations in Amir
Shad Khan (supra) regarding the power of revocation by such
officer under the COFEPOSA Act were binding on the High
Court. Question No.3 was answered in the negative and it
was held that the failure on the part of the officer making
the order of detention to consider the representation made
by the detenu was of no consequence because the repre-
sentation of the detenu was, in fact, in effect and in
substance considered by the Finance Minister who was an
appropriate authority for the purpose of consideration of
such representation. The matter was thereafter considered
by the Division Bench of the High Court and by judgement
dated September 16/19, 1994 the writ petition was dismissed.
These appeals have been filed against the judgment of the
Full Bench dated August 26, 1994 as well as the judgment of
the Division Bench dated September 16/19, 1994.
42. Shri Ram Jethmalani, the learned senior counsel
appearing for the appellant, has assailed the finding
recorded by the Full Bench on question No.3 and has sub-
mitted that the failure on the part of the officer who made
the order of detention to consider the representation of the
detenu results in denial of the right of the detenu to make
a representation recognised by Article 22(5) and the said
denial renders the detention of the detenu illegal and
without the authority of law. In support of his aforesaid
submission Shri Jethmalani has placed reliance on the
decision in Smt. Santosh Anand v. Union of India, 1981 (2)
SCC 420. In that case the order of detention was made by
the Chief Secretary, Delhi Administration, acting as the
specially empowered officer under Section 3 of the COFEPOSA
Act. A representation was made by the detenu to the detain-
ing authority, namely, the Chief Secretary, and the Chief
Secretary forwarded the same to the Administrator with the
endorsement under his signature to the effect "the rep-
resentation may be rejected" and the said representation was
rejected by the Administrator. It was contended that there
was non-consideration of the representation and rejection by
the detaining authority which resulted in denial of the
constitutional safeguard under Article 22(5) of the
Constitution. The said contention was accepted by this
Court and it was observed ;
659
"It is thus clear to us that the representa-
tion 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 safeguard under Article 22(5),
as interpreted by this Court, cannot be said
to have been strictly observed or complied
with."
[p.422]
43.The Full Bench of the Bombay High Court has taken not of
the decision in Smt. Santosh Anand (supra) but has placed
reliance on the later decision of this Court in Sat Pal v.
State of Punjab 1982 (1) SCC 12 and Rajkishore Prasad v.
State of Bihar, 1982 (3) SCC 10, to hold that the Court must
look at the substance of the matter and not act on mere
technicality and that even though the constitutionally
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speaking a duty is cast on the detaining authority to
consider the representation yet if in fact and in effect the
appropriate Government has finally considered the
representation of the detenu it cannot be said that there is
contravention of Article 22(5).
44.In Sat Pal v. State of Punjab (supra) the order of
detention was made by the State Government of Punjab under
Section 3 of the COFEPOSA Act and the detenu had made two
representations, one was addressed to the Joint Secretary,
Government of Punjab and the other was endorsed to the
Central Government through the Secretary Ministry of
Finance, Department of Revenue, New Delhi. Both the
representations were forwarded by the Superintendent,
Central Jail to the Joint Secretary, State Government of
Punjab with an endorsement that one of them be forwarded to
the Central Government. The State Government rejected the
representations but there was a delay on the part of the
State Government in forwarding the representation to the
Central Government and ultimately the, Central Government
also rejected the said representation and there was no delay
on the part of the Central Government in considering the
representation. This Court held that there was no denial of
making a representation to the Central Government and the
delay on the part of the State Government in forwarding the
representation to the Central Government, by itself, was not
sufficient to invalidate the order of detention. Sat Pal
(supra) was, therefore, not a case of non-consideration of
the representation by one of the authorities who was
required to consider the said representation.
45.In Rajkishore Prasad v. State of Bihar (supra) the order
of detention was made by the District Magistrate under
Section 3(2) of the National Security Act. The detenu made
a representation to the detaining authority (District
Magistrate) but in the meantime the case of the detenu was
referred to the Advisory Board and the representation was
rejected by the State Government after the matter had been
considered by the Advisory Board. The Court, while
upholding the contention urged on behalf of the detenu that
constitutionally speaking a duty is cast on the detaining
authority to consider the representation, has referred to
Section 8(1) of the National Security Act which provides for
making of representation against the order, not to the
detaining authority but to the appro-
660
priate Government, and has observed that this was 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.
It was held that 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. The decision in Santosh Anand (supra) was
noticed and it was distinguished on the ground that under
the National Security Act there is a specific provision in
Section 8 which requires that the detaining authority shall
afford the earliest opportunity to make a representation
against the order not to the detaining authority but to the
appropriate Government.
46.The decisions in Sat Pal (supra) and Rajkishore Prasad
(supra) on which the High Court has placed reliance do not,
therefore, detract from the law laid down in Santosh Anand
(supra). Having found that the representation of the person
detained was not considered by the officer making the order
of detention the High Court was in error in holding that the
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said failure on the part of the detaining authority to
consider and decide the representation is not fatal to the
order of detention. We are, therefore, unable to uphold the
answer given by the Full Bench to question No. 3 and, in our
view, the said question should be answered in the affirma-
tive. On that basis it has to be held that since there was
a denial of the Constitutional safeguard provided to the
detenu under Article 22(5) of the Constitution on account on
the failure on the part of the officer who had made the
order of detention to independently consider the repre-
sentation submitted by the detenu against his detention and
to take a decision on the said representation the further
detention of the detenu Ishwardas Bechardas Patel is
rendered illegal. The appeals, therefore, deserve to be
allowed.
Crl. A. 850 and 915 of 1994
47.In both the appeals the orders of detention were made
under Section 3 of the PIT NDPS Act by the officer specially
empowered by the Central Government to make such an order.
In the grounds of detention the detenu was only informed
that he can make a representation to the Contra] Government
or the Advisory Board. The detenu was not informed that he
can make a representation to the officer who had made the
order of detention. As a result the detenu could not make a
representation to the officer who made the order of
detention. The Madras High Court, by the judgments under
appeal dated November 18, 1994 and January 17, 1994, allowed
the writ petitions filed by the detenues and has set aside
the order of detention on the view that the failure on the
part of the detaining authority to inform the detenu that he
has a right to make a representation to the detaining
authority himself has resulted in denial of the con-
stitutional right guaranteed under Article 22(5) of the
Constitution. In view of our answer to the common question
posed the said decisions of the Madras High Court setting
aside the order of detention of the detenues must be upheld
and these appeals are liable to be dismissed.
661
Crl. A. No. 553/95
[Arising out of SLP (Crl.) No. 282/94]
48.By order dated July 27, 1993 made under Section 3 of the
COFEPOSA Act by Shri Mahendra Prasad, Joint Secretary to the
Government of India, an officer who had been specially
empowered under Section 3(1) of the COFEPOSA Act Jayantilal
Somchand Shah, the husband of the appellant, was ordered to
be detained. The writ petition filed by the appellant chal-
lenging the said detention was dismissed by the Bombay High
Court by judgment dated October 27, 1993. One of the con-
tentions that has been urged on behalf of the appellant
before this Court was that he had addressed a joint
representation dated September 14, 1993 to the detaining au-
thority, the Central Government and the Advisory Board and
the same was submitted through the Superintendent, Bombay
Central Prison and that the said representation was rejected
by the Central Government and it was not considered and de-
cided independently by the detaining authority himself These
facts arc not disputed on behalf of the respondents. Since
the appellant had submitted a representation to the
detaining authority, namely, the officer who was specially
empowered to make an order of detention, and the said
officer did not consider the representation there has been a
denial of the constitutional safeguard under Article 22(5)
of the Constitution. As a result the detention of the
appellant has to he held to be illegal and the said appeal
has to be allowed.
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49.At this stage it becomes necessary to deal with the
submission of the learned Additional Solicitor General that
some of the detenues have been indulging in illicit
smuggling of narcotic drugs and psychotropic substances on a
large scale and are involved in other anti-national
activities which are very harmful to the national economy.
He has urged that having regard to the nature of the
activities of the detenues the cases do not justify
interference with the orders of detention made against them.
We are not unmindful of the harmful consequences of the
activities in which the detenues are alleged to be involved.
But while discharging our constitutional obligation to
enforce the fundamental rights of the people, more espe-
cially the right to personal liberty, we cannot allow
ourselves to be influenced by these considerations. It has
been said that history of liberty is the history of proce-
dural safeguards. The framers of the Constitution, being
aware that preventive detention involves a serious
encroachment on the right to personal liberty, took care to
incorporate, in clauses (4) and (5) of Article 22, certain
minimum safeguards for the protection of persons sought to
be preventively detained. These safeguards arc required to
be "jealously watched and enforced by the Court." Their
rigour cannot be modulated on the basis of the nature of the
activities of a particular person. We would, in this
context, reiterate what was said earlier by this Court while
rejecting a similar submission :
"May be that the detenu is a smuggler whose
tribe (and how their numbers increase)
deserves no sympathy since its activities have
paralysed the Indian economy. But the laws of
Preventive Detention afford only a modicum of
safeguards to persons detained under them and
if freedom and liberty are to have any meaning
in our democratic set-up, it is essential that
at least those safeguards are not denied to
the detenues. "
[See :Rattan Singh v. State of Punjab,]
662
1981 (4) SCC 481 at p. 4881
50. We have, therefore no hesitation in rejecting this
contention.
51.In the result, Crl. A. Nos. 850 and 915 of 1994 are
dismissed, Crl. A. Nos. 764-765 of 1994, Crl. No. 553/95
(arising out of SLP (Crl.) No. 282/94) are allowed and the
detenues, namely, Ishwardas Bechardas Patel [father of the
appellant in Crl. A. Nos. 764-765 of 1994] an Jayantilal
Somchand Shah [husband of the appellant in Crl. A. No. 553
of 1995 (arising out of SLP (Crl.) No. 282/94] are ordered
to be set free, unless they are required in connection with
any other matter.
664