Full Judgment Text
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CASE NO.:
Appeal (crl.) 22 of 2003
PETITIONER:
Abdul Razak Dawood Dhanani
RESPONDENT:
Union of India & Ors.
DATE OF JUDGMENT: 17/04/2003
BENCH:
N. SANTOSH HEGDE & B.P. SINGH.
JUDGMENT:
J U D G M E N T
B.P. Singh, J.
This appeal by special leave is directed against the judgment
and order of the High Court of Judicature at Bombay dated 24th
July, 2002 in Criminal Writ Petition No.464 of 2002 dismissing
the writ petition filed on behalf of the detenu Mohd. Yusuf Razak
Dhanani by his father Shri Abdul Razak Dawood Dhanani
appellant herein, challenging his detention under the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act,
1974 (hereinafter referred to as ’COFEPOSA’).
It is not in dispute that the order of detention dated 20th
February, 2002 was passed by the Joint Secretary to the
Government of India, who was specially empowered under Section
3 (1) of the COFEPOSA in this behalf. The order of detention as
well as the grounds of detention were served on the detenu on 26th
February, 2002. The detenu on 12th April, 2002 submitted a
representation to the detaining authority, the Secretary to the
Government of India, Ministry of Finance as also to the Chairman
of the COFEPOSA Central Advisory Board. In the said
representation various grounds were raised challenging the order of
detention and praying that the order of detention be revoked as
there was no sufficient cause for the appellant’s detention. The
Advisory Board considered the case of the detenu on 19th April,
2002 but the opinion of the Advisory Board was not in favour of
the release of the detenu. Thereafter the detaining authority passed
an order on 6th May, 2002 rejecting the representation of the detenu
after fully considering the same. By order dated 8th May, 2002 the
representation of the detenu was rejected by the Central
Government after careful consideration.
The case of the appellant is that he made a second
representation on 19th April, 2002 but the same was not considered
and the order of detention was confirmed. Before the High Court
it was urged on behalf of the appellant that the detenu had made a
third representation on 14th May, 2002 but the appellant has not
made any submission before us with regard to the said third
representation, and therefore the finding of the High Court on this
aspect of the matter has not been challenged before us.
It was submitted before us by the appellant that in the
second representation of April 19, 2002 new grounds had been
taken by the detenu challenging the order of detention. This
representation had been sent to the Advisory Board with a request
that the same may be forwarded to all other authorities competent
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under the law to revoke the order of detention. Learned counsel
for the appellant submitted before us, relying upon the judgments
of this Court in Amir Shad Khan & Anr. V. L. Hmingliana &
Ors. AIR 1991 SC 1983 and Smt. Gracy V. State of Kerala &
Anr.: (1991) 2 SCC 1 that when such a representation is received
by the Advisory Board with a request to forward the same to the
appropriate authorities, the Advisory Board is under an obligation
to forward the same to the competent authorities. Learned
Additional Solicitor General did not dispute the proposition that in
such a case it is only appropriate that the Advisory Board must
forward the representation to the concerned authorities. In the
instant case the meeting of the Advisory Board took place on 19th
April, 2002 and the second representation also bears the same date.
The learned Additional Solicitor General submitted that all the
relevant materials, including the second representation which
formed part of the papers which came from the Advisory Board,
were considered by the Central Government while rejecting the
representation by order dated 8th May, 2002.
On the other hand counsel for the appellant submitted that
the power under Section 11 of COFEPOSA is independent of the
power to confirm the order of detention under Section 8 (f) of the
Act. Both of the powers have to be exercised separately. The
Advisory Board is under an obligation to forward the
representation to the concerned authorities if such a request is
made to it by the detenu while submitting his representation before
the Advisory Board, because the detenu has a constitutional right
to make a representation. The constitutional right to make a
representation is not confined to only one representation, and
therefore it is obligatory for the detaining authority as well as the
Central Government to consider and dispose of every
representation made by the detenu. He submitted that the order of
8th May, 2002 disposed of the first representation of 12th April,
2002 but did not dispose of the second representation made on 19th
April, 2002. The second representation of 19th April, 2002 may
have been considered by the Advisory Board or by the detaining
authority, since the detaining authority formally rejected the
representation dated 19th April, 2002 by a separate order dated 8th
May, 2002, but the Central Government did not pass a similar
order. So far as the second representation was concerned the same
was never considered or rejected, because the order of May 8,
2002 rejecting the representation specifically refers to the
representation dated 12th April, 2002 which was the first
representation. He also challenged the order confirming the
detention under Section 8(f) of the Act because the same was
passed without first disposing of the second representation which
was made by the detenu on 19th April, 2002.
Counsel for the appellant relied upon several decisions of
this Court and urged that a detenu has a constitutional right to
make as many representations as he wishes to make, and the
detaining authority as well as the Central Government are under a
constitutional obligation to dispose them of at the earliest. Counsel
refers to the decision of this Court in Ram Bali Rajbhar V. The
State of West Bengal & Ors. : (1975) 4 SCC 47. We find that the
said decision is clearly distinguishable because that was not a case
where an order of detention was sought to be quashed on the
ground of non-consideration of the second representation. In the
aforesaid decision this Court considered the scope of the power
and the manner of its exercise conferred by Section 14 of MISA. It
was held that the State Government can revoke or modify an order
of detention if it is satisfied on new or supervening conditions or
facts coming to light, that a revocation or modification had become
necessary. Section 14 of the Act vests a wider power than that
which the State Government may have possessed under the
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provisions of Section 21 of the General Clauses Act, 1897. It is
left to the Central Government in the exercise of its discretion,
either to exercise the power read with provisions of Section 21 of
the General Clauses Act or without the aid of Section 21 of the
General Clauses Act. It was further observed that it would be a
reasonable and judicious exercise of the power under Section 14 of
the Act to refer the case once again to the Advisory Board for its
opinion before a subsequent representation made on "fresh
materials" by a detenu is rejected. The subsequent reference
would result from a necessarily implied power of the Government
to act, so far as possible in a like manner to the one it has to adopt
in confirming or revoking the initial detention order under Section
12 of the Act. The Court did not quash the detention order but
only directed the Government to consider and take an early
decision upon the pending fresh representation of the petitioner. It
thus appears that this Court did not quash the order of detention
merely on the ground that the second representation was not
disposed of by the State Government expeditiously. Counsel then
relied on the judgment of this Court in State of Uttar Pradesh V.
Zavad Zama Khan : (1984) 3 SCC 505. This was again a case
under MISA, 1971 and this Court after referring to the judgment in
Sat Pal V. State of Punjab : (1982) 1 SCC 12 noticed the
observation appearing in that judgment which reads thus :
"The making of an application for revocation to
the Central Government under Section 11 of the
Act is, therefore, part of the constitutional right a
citizen has against his detention under a law
relating to preventive detention. While Article
22(5) contemplates the making of a representation
against the order of detention to the detaining
authority, which has to be referred by the
appropriate Government to the Advisory Board
constituted under Section 8(a) of the Act,
Parliament has, in its wisdom, enacted Section 11
and conferred an additional safeguard against
arbitrary executive action".
Thereafter this Court went on to hold :-
"The principle that emerges from all these
decisions is that the power of revocation conferred
on the Central Government under Section 14 of the
Act is a statutory power which may be exercised
on information received by the Central
Government from its own sources including that
supplied by the State Government under sub-
section (5) of Section 3 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. In the present case, the detenu was not
deprived of the right of making a representation to
the detaining authority under Article 22(5) of the
Constitution read with Section 8(1) of the Act.
Although the detenu had no right to
simultaneously make a representation against the
order of detention to the Central Government
under Article 22(5) and there was no duty cast on
the State Government to forward the same to the
Central Government, nevertheless the State
Government forwarded the same forthwith. The
Central Government duly considered that
representation which in effect was nothing but a
representation for revocation of the order of
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detention under Section 14 of the Act. That being
so, it was not obligatory on the part of the Central
Government to consider a second representation
for revocation under Section 14."
The aforesaid decision therefore does not help the appellant.
The appellant also relies upon the judgment of this Court in Smt.
K. Aruna Kumari Vs. Government of Andhra Pradesh and Ors. :
(1988) 1 SCC 296. We have carefully perused the judgment and
we find that even this judgment does not support the case of the
appellant. This was again a case of detention under the Prevention
of Blackmarketing and Maintenance of Supplies of Essential
Commodities Act, 1980 in paragraph 9 of the report, the following
observation is made:
"So far as the second representation filed by
Madhava Rao’s cousin Lakshmana Rao is
concerned, it has, in fact, been disposed of by the
Central Government but about 3 months later after
its filing. It was argued that Section 14 of the Act
clothes the authority with the power of revoking
the detention order, and such a power carries with
it the duty to exercise it whenever and as soon as
changed or new factors call for the exercise of that
power. Reliance was placed on the observations of
this Court at page 786 (SCC p. 207) in Haradhan
Saha V. State of West Bengal and those in
paragraph 9 of the judgment in Sat Pal V. State of
Punjab . It is true that such a power coupled with
the duty exists but the duty to exercise it arises
only where new and relevant facts and
circumstances come to light. This was not so here,
and as observed in para 13 of the judgment in
State of U.P. V. Zavad Zama Khan , there is no
right in favour of the detenu to get his successive
representations based on the same grounds rejected
earlier to be formally disposed of again. In any
event no period of limitation is fixed for disposal
of an application under Section 14 and as we have
seen earlier the second representation filed by
Lakshmana Rao indeed, was considered and
rejected".
It thus appears from the aforesaid judgment that even the
statutory power vested in the Central Government to revoke the
order of detention may be exercised in its discretion only in cases
where "fresh materials" or "changed or new factors" call for the
exercise of that power, and there is no right in favour of the detenu
to get his successive representations based on the same grounds
rejected earlier to be formally disposed of again. This principle
finds affirmation in a judgment rendered by a constitution bench of
this Court in Makhan lal Gokul Chand V. Administrator, Union
Territory of Delhi and Anr. : (1999) 9 SCC 504 in which this
Court found that the petitioner challenged the order of detention
and failed thrice, and yet filed another representation which did not
disclose any fresh material, nor were any subsequent events
pointed out which may have warranted a "fresh" consideration of
the representation made by the detenu. It was only a change in the
language of the representation. The Delhi Administration was,
therefore found, justified in rejecting the representation since there
were no "fresh grounds" nor any "fresh material" or "subsequent
events" brought out in the last representation. There was,
therefore, no obligation on the part of the State to get that
representation considered by a "fresh Advisory Board" and,
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therefore, the exercise of this discretion by the State in rejecting
the representation and not constituting a "fresh" Advisory Board
could not be faulted. The writ petition was accordingly dismissed.
Faced with this situation counsel for the appellant submitted
that even if a detenu does not have a constitutional right to make a
second representation, in the facts of this case it must be held that
since the first representation was pending when the second
representation was received, it was a part of, or continuation of the
first representation. In any case, it was material before the Central
Government which it was bound to consider.
The learned Additional Solicitor General submitted that the
principle is well established that there is no constitutional right of a
detenu to make successive representations, nor is there a
corresponding obligation on the competent authority to consider
and dispose of such representation by a separate order, unless the
subsequent representation discloses "fresh grounds" or "fresh
material" or any "subsequent event" which may justify the
consideration of another representation. A mere reiteration of the
same grounds on the same material is not sufficient, and in such a
case there is no legal obligation even to consider such a
representation. He further submitted that Article 22(5) speaks of
"a representation" and therefore another representation can be
considered only if new grounds based on fresh materials are
brought to the notice of the competent authority. Having regard to
the authorities, we find considerable force in the submission urged
by the learned Additional Solicitor General.
We have, therefore, carefully perused the first representation
dated 12th April, 2002 as well as the second representation dated
19th April, 2002. We requested counsel for the appellant to point
out any new ground based on fresh material or any subsequent
event which justify a reconsideration of the matter on the basis of
the second representation. Having carefully scrutinized the two
representations we do not find any new ground or fresh material in
the second representation made by the detenu. The same grounds
and the same materials as stated in the first representation have
been stated in the second representation, except for the difference
in language and the manner of presentation. Having not found any
new ground or fresh material or any subsequent event justifying a
consideration of the second representation of the detenu, we are
not persuaded to hold that in these circumstances the Central
Government was bound to consider the second representation and
pass a separate order disposing of the same. In fact all the grounds
stated in the second representation were also stated in the first
representation which was rejected by the Central Government after
obtaining opinion of the Advisory Board and after due
consideration. There was, therefore, no obligation on the part of
the Central Government to pass a similar order again on the basis
of the second representation which did not contain any new or
fresh grounds justifying a fresh consideration.
We, therefore, find no merit in this appeal and the same is
accordingly dismissed.
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