Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
ZAVAD ZAMA KHAN
DATE OF JUDGMENT04/05/1984
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
DESAI, D.A.
ERADI, V. BALAKRISHNA (J)
CITATION:
1984 AIR 1095 1984 SCR (3) 789
1984 SCC (3) 505 1984 SCALE (1)938
CITATOR INFO :
R 1986 SC 356 (3)
R 1988 SC 227 (9)
ACT:
Public Safety Laws-National Security Act (Act XLV of
1980) Section 14-Revocation of orders of detention-Due
compliance with requirement of section 8(1) read with
Article 22(5) of the Constitution though. complied with,
subsequent representation for revocation to Prime Minister
made through the counsel filed by the Central Government-
Whether non-passing of any order on the revocation
representation vitiates the detention.
HEADNOTE:
The facts are that the respondent made a representation
dated June 18, 1983 against an order of detention passed by
the District Magistrate, Moradabad dated November 6, 1982
for his detention under sub-s. (3) of s. 3 of the National
Security Act, 1980, and the same was duly forwarded by the
District Magistrate to the Advisory Board on June 21. 1983.
The State Government had in the mean while on June 13, 1983
made a reference tn the Advisory Board under s. 10 of the
Act i.e. within three weeks from the dale of detention
together with the order of detention and the grounds
therefor for its opinion. On June 23, 1983 the
representation was examined by the Joint Secretary, Home
Department who marked the file to the Home Secretary on June
27, 1983 who on his turn placed the file before the Chief
Minister for his comments on June 27, 1983. The Chief
Minister took to days to study the file and ultimately
passed an order rejecting the representation. On July 2,
1983 the State Government forwarded the representation made
together with the comments to the Government of India and
the Central Government rejected the same on July 19, 1983.
It appears that on July S, 1983 the respondent through
his counsel simultaneously addressed two representations for
revocation of his detention under s. 14 of the Act, one
addressed to the Prime Minister of India and the other to
the State Government. The representation made to the Central
Government addressed in the name of the Prime Minister was
received in the Prime Minister’s Secretariat on July 7, 1983
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and the grievance of the respondent before the High Court
was that the Central Government had not dealt with his
application for the revocation of the order of detention
under s. 14 of the Act. The High Court observed that the
right of the detenu to make a representation to the Central
Government for revocation of the order of detention under s.
14 of Act was intended to be an additional check or
safeguard against the improper exercise of its power of
detention by the detaining authority or the State Government
and therefore the failure on the part of the Central
Government to consider the same was tantamount to a denial
of the constitutional safeguard as contemplated by Art.
22(5)
790
of the Constitution. It accordingly held the continued
detention of the respondent to be illegal.
Aggrieved by the order, the State preferred an Special
Leave.
Allowing the appeal, the Court,
^
HELD: (1) The constitutional imperatives of Art. 22(5)
enjoin that where a detenu simultaneously makes
representation to the detaining authority as well as an
application under s. 14 of the Act, they must not be dealt
with by the appropriate Government at the same time and
there was no question of any conflict of jurisdiction. If
the Central Government were to revoke the order of detention
under s. 14 of the Act, there would be no representation for
the State Government to consider, or refer to the Advisory
Board under s. 8(b) of the Act nor will there arise any
question of Advisory Board making a report to it, or on
receipt of such a report, confirming the order of detention
under section 8(f). The other type of cases can be where
notwithstanding that the order of detention has been
confirmed under s. 8(f) the appropriate Government may, at
any time, revoke the same under s. 14. The power of
revocation conferred on the appropriate Government under s.
14 is independent of the power of confirming or setting
aside an order or detention under s. 8(f) [795H; 796A-D]
2. The power of revocation conferred on the Central
Government under s. 14 of the Act is a statutory power which
may be exercised on information received by tile Central
Government from its own sources including that supplied by
tile State Government under sub-s. (5) of s. 3, or from the
detenu in the form of a petition or representation. It is
for the Central Government to decide whether or Dot it
should revoke the order of detention in a particular case.
[796G-H]
Any lapse on the part of State Government in forwarding
the representation made by the detenu to the Central
Government for revocation of the order of detention under s.
14 of the Act or non-consideration of the same by the
Central Government makes the continued detention of the
detenu bad. [793B-C]
In the present case, however, the detenu was not
deprived of the right of making a representation to the
detaining authority under Art. 22(5) of the Constitution
read with s. 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 Art.
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
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the order of detention under s. 14 of the Act. That being
so. it was not obligatory on the parr of the Central
Government to consider a second representation for
revocation under s. 14 of the Act. [797A-D]
791
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 57
of 1984.
From the Judgment and Order dated 25-10-1983 of the
Allahabad High Court in Habeas Corpus WP. No. 8420 of 1983.
Manjo Swarup and Dalveer Bhandari for the appellant.
Mrs. & Mr. Qamaruddin, Rizwan A. Hafiez and Desh Raj
for the respondent.
The Judgment of the Court was delivered by
SEN, J. The State Government of Uttar Pradesh has
preferred this appeal by special leave from the judgment and
order of the Allahabad High Court dated October 25, 1983 by
which the High Court issued a writ in the nature of habeas
corpus quashing an order of detention passed by the District
Magistrate, Moradabad dated November 6, 1982 for the
detention of the respondent under sub-s. (3) of s. 3 of the
National Security Act, 1980 on being satisfied that his
detention was necessary "with a view to preventing him from
acting in any manner prejudicial to the maintenance of
Public order."
It appears that the respondent is alleged to have
committed an offence of murder punishable under s. 302 and
of causing disappearance of evidence punishable under s. 201
of the Indian Penal Code, 1860 in connection with the
communal riots that occurred in the Moradabad city. On
November 6, 1982, the District Magistrate, Moradabad passed
the impugned order of detention but it could not be served
on the respondent as he was absconding. As required under
sub-s. (4) of s. 3, the District Magistrate forthwith made a
report of the fact to the State Government of Uttar Pradesh
that he had passed an order for the detention of the
respondent under sub-s. (3) of s. 3 of the Act, together
with the grounds on which the order had been made and such
other particulars as, in his opinion, had a bearing on the
matter. The State Government received the order of detention
on November 8, 1982 and approved of the same on November 11,
1982 under sub-s. (5) of s. 3, and as required thereunder,
forwarded a report to the Central Government on the next day
i.e. On November 12, 1982. The respondent surrendered to the
police on May 24, 1983 and the impugned order of detention
was served on him in District Jail,
792
Moradabad on June 1, 1983 and the grounds of detention were
furnished to him on June 2, 1983.
The respondent made a representation dated June 18,
1983 through the Superintendent, District Jail Moradabad and
he immediately forwarded the same to the District
Magistrate. On June 20, 1983 the District Magistrate
forwarded the representation to the Advisory Board and the
same was received by the Advisory Board on June 21, 1983.
The State Government had in the meanwhile on June 13,1983
made a reference to the Advisory Board under s. 10 of the
Act i.e. within three weeks from the date of detention
together with the order of detention, and the grounds
therefore, for its opinion. On June 23, 1983 the
representation of the respondent forwarded by the District
Magistrate together with his comments was examined by the
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Joint Secretary, Home Department. The file was placed before
the Home Secretary on June 27, 1983 who placed it before the
Chief Minister with his comments. The Chief Minister took
two days to study the file and ultimately passed an order
rejecting the representation on June 30, 1983. On July 2,
1983 the State Government forwarded the representation made
by the respondent together with its comments to the
Government of India and the Central Government rejected the
same on July 19, 1983.
On July 5, 1983 the respondent through his counsel D.S.
Misra simultaneously addressed two representations for
revocation of his detention under s. 14 of the Act, one
addressed to the Prime Minister of India and the other to
the State Government. It appears that the representation
made to the Central Government addressed in the name of the
Prime Minister was received in the Prime Minister
Secretariat on July 7, 1983 and the grievance of the
respondent was that the Central Government had not dealt
with his application for revocation of the order of
detention under s. 14 even now.
In his counter-affidavit by one M.L. Miglani, Desk
officer, Ministry of Home Affairs, New Delhi, it was stated
that the Central Government had fully discharged its
functions by expeditiously taking a decision on the earlier
representation directly ad dressed by the respondent and it
was under no statutory obligation to consider the subsequent
representation for revocation addressed by the respondent
through his counsel to the Prime Minister. I was not a
statutory representation for revocation of the impugned
793
order of detention under s. 14 and therefore it was not at
all necessary for the Central Government to deal with it.
The High Court placing reliance on the decision of this
Court in Phillippa Anne Duke v. State of Tamil Nadu & Ors
and certain of its own decisions held that the respondent
had a right to make an application to the Central Government
for revocation of the order of detention and the failure on
the part of the Central Government to apply its mind to it
made the continued detention illegal.
The only question canvassed in the appeal before us is
that the judgment of the High Court betrays, complete lack
of awareness a of the nature of the constitutional
safeguards enshrined under Art. 22(5) of the Constitution.
It is urged that the constitutional imperatives enacted in
Art. 22(5) are two-fold; (1) The detaining authority must,
as soon as maybe i.e. as soon as practicable, after the
detention, communicate to the detenu the grounds on which
the order of detention has been made. And (2) The detaining
authority must afford the detenu the earliest opportunity of
making representation against the order of detention. In the
present ease, it is said that the requirements of Art. 22(5)
of the Constitution read with s. 8(1) of the Act had been
duly complied with. There is no question of any violation of
Art. 22(5) or of s. 8(1) and further that the grounds for
detention set out the facts with sufficient degree of
particularity and they did furnish sufficient nexus for
forming the subjective satisfaction of the detaining
authority. The order of detention cannot therefore be
challenged on the ground that the grounds furnished were not
adequate or sufficient for the subjective satisfaction of
the detaining authority, or for making an effective
representation. It is further urged that there being due
compliance with the constitutional requirements of Art.
22(5) and of s. 8(1), the High Court was wrong in holding
that the continued detention of the respondent was invalid
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merely because the Central Government refused to act on his
application for revocation of the order of detention under
s. 14 of the act. We find considerable force in the
submission.
We are not oblivious of the fact that this Court has in
certain cases given expression to the view that any lapse on
the part of the State Government in forwarding the
representation made for revo-
794
cation of his order of detention under s.11(1)(b) of the
COFEPOSA Act, 1974 or the failure of the Central Government
to expeditiously consider the same was a denial of the
constitutional right of being afforded "the earliest
opportunity of making a representation against the order" as
contemplated by Art. 22(5). At one time it was thought that
s. 14 of the Maintenance of Internal Security Act, 1971
which was in pari materia with s. 14 of the Act, did not
confer any right or privilege on the detenu but there is a
definite shift in the judicial attitude, for which there
appears to be no discernible basis. In Shyam Ambalal Siroya
v. Union of India & Ors., the contention was that because a
representation properly addressed to the Central Government
to order revocation under s. 11 of the COFEPOSA Act was not
forwarded by the detaining authority to the Central
Government, the detention was illegal. The Court construed
the power conferred on the Central Government to direct
revocation of an order of detention under s. 11 of that Act
to be "statutory". It was observed that the power of the
Central Government to revoke the order of detention implies
that the detenu can make a representation for exercise of
that power and a petition for revocation of an order of
detention should be dealt with reasonable expedition. Since
a representation properly addressed by the detenu of the
Central Government was not forwarded to the Central
Government, the continued detention of the detenu was held
to be illegal.
In Sabir Ahmed v. Union of India & Ors., the Court held
that non-consideration by the Central Government of a
representation for revocation made by the detenu under s. 11
of the COFEPOSA Act made the continued detention to be bad,
following the decision in Shyam Ambalal Siroya’s case,
supra. It was however observed that the power conferred by
s. 11 on the Central Government was a supervisory power and
it was intended to be an additional check or safeguard
against the improper exercise of its power of detention by
the detaining authority or the State Government.
In Rattan Singh v. State of Punjab & Ors, the Court
went still further. There was, in that case, a lapse on the
part of the State Government in forwarding the
representation simultaneously made by the detenu to the
Central Government for revocation of the order of detention
under s. 11 of the COFEPOSA Act. The
795
Court struck down the order of detention on the ground that
there was a denial of the right of making representation to
the Central Government for revocation of the order of
detention under s. 11 of the Act and this was tantamount to
a denial of the constitutional safeguard of Art. 22(5).
Soon thereafter, the Court in Sat Pal v. State of
Punjab & Ors examined the nature of the power of revocation
conferred on the Central Government under s. 11 of the
COFEPOSA; Act and held that it was supervisory in nature,
and it was observed:
"That is, as it should be, under our federal
structure the Centre must always keep a vigilant eye in
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the matter of life and liberty of a citizen guaranteed
under Article 21.
Ours is a Constitution, where there is a
combination of federal structure with unitary features
while in a unitary State there is only one Government;
federal State involves multi-Governments namely,
national or federal Government and the Governments of
component States. A federal State, in short, is a
fusion of several States into a single State in regard
to matters affecting common interest leaving each
component State to enjoy autonomy in regard to other
matters. Under our Constitution: certain powers vest in
the Central Government leaving certain to its component
units to exercise autonomy in spheres assigned to them
in the Constitution itself. The component States are .
not merely delegates or agents of the federal
Government. Both federal and State Governments draw
their authority from the same source, the Constitution
The conferment of executive power on the States in
relation to a subject with respect to which the
legislatures of the States have no power to make a law
under Art. 258(2) must necessarily be subject to the
administrative control of the Union under Arts. 256 and
247(1), to the giving of such directions to the States
as may appear to the Government of India to be
necessary for that purpose."
It was then observed that the constitutional
imperatives of Art. 22(5) enjoin that where a detenu
simultaneously makes a re-
796
presentation to the detaining authority as well as an
application for revocation under s. 11 of the Act they must
both be dealt with by the appropriate Government at the same
time and there was no question of any conflict of
jurisdiction. To illustrate, it was said that if the Central
Government were to revoke an order of detention under s. 11
of the Act, there would be no representation for the State
Government to consider, or refer the Advisory Board under s.
8(b), nor will there arise any question of Advisory Board
submitting a report to it, or on receipt of such a report
confirming the order of detention under s. 8(f). It was
further observed that the other types of cases would be
where notwithstanding that the order of detention has been
confirmed under s. 8(f), the appropriate Government may, at
any time, revoke the same under s. 11 of the Act. It was
accordingly held that the power of revocation conferred on
the appropriate Government under s. 11 is independent of the
power of confirming or setting aside an order of detention
under s. 8(f).
As to the nature of the power of revocation conferred
on the Central Government under s. 11 of the COFEPOSA Act,
it was stated:
"The making of an application for revocation to
the Central Government under s. 11 of the Act is
therefore part of the constitutional right a citizen
has against this detention under a law relating to
preventive detention. While Art. 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 s. 8(a) of the Act, Parliament,
has in its wisdom, enacted s. 11 and conferred an
additional safeguard against arbitrary executive
action.
The principle that emerges from all these decisions is
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that the power of revocation conferred on the Central
Government under s. 14 of the Act is a statutory power which
may be exercised on information received by the Central
Government from its own source including that supplied by
the State Government under sub-s. (5) of s. 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
797
case, In the present case, the detenu was not deprived of
the right of making a representation to the detaining
authority under Art. 22(5) of the Constitution read with s.
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 Art. 22(5) and
there was no duty cast on the State Government to forward
the same to the Central Government, nevertheless the State
Government forward the same forthwith. The Central
Government duly considered that representation which in
effect was nothing but a Representation for revocation of
the order of detention under s. 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 s. 14. We may profitably refer to Phillippa
Anne Duke’s case, supra, where in somewhat similar
circumstances it was held that failure of the Central
Government to consider a representation for revocation of an
order of detention under s. 11(1)(b) of the COFEPOSA Act
handed over to t he Prime Minister during her visit to
England did not render the continued detention invalid. It
was observed:
"Representations from whatever source addressed to
whomsoever officer of one or other department of the
Government cannot be treated as a representation to the
Government under s. 11(8)(b) of the COFEPOSA Act."
The result therefore is that the appeal succeeds and is
allowed. The judgment and order of the High Court is set
aside and the order of detention passed by the District
Magistrate under sub-s. (3) of s. 3 of the National Security
Act, 1980 is maintained.
S.R. Appeal allowed.
798