Full Judgment Text
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PETITIONER:
SABIR AHMED
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT18/04/1980
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
PATHAK, R.S.
CITATION:
1980 SCR (3) 738 1980 SCC (3) 295
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974, Section 11, Scope of-Whether
Central Government is bound to consider the application of
the detenu’s representation and non-consideration thereof is
illegal-Whether it is a Constitutional right of the detenue.
HEADNOTE:
The petitioner challenged the detention of his brother
Dawood Hasan Sheikh Ibrahim, under the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
1974. The detention order was passed on October 2, 1979 by
the detaining authority. The representation made by the
detenu on November 14, 1979 to the detaining authority in
which inter alia he asked for supply of the copies of
documents and statements relied upon in the grounds of
detention, was rejected on December 10, 1979 by the Minister
of State in the Home Ministry of State Government, by virtue
of the authorisation to deal with the representations of
detenus by a Standing Order made by the Chief Minister on
December 3, 1979. In the meantime, the Advisory Board met
and considered the representation of the detenue and made a
report to the Government on December 6, 1979. The said
Minister had dealt with the representation and rejected it
after the Board had made its report to the Government.
On November 19, 1979, the detenu made an application to
the Central Government for revocation of the order of his
detention under section 11 of COFEPOSA and this has not been
dealt with by that Government.
The petitioner inter alia, contended that the detenu
had a right to move the Central Government for revocation of
the order of detention and non-consideration vitiates the
detention.
Allowing the petition, the Court
^
HELD: 1 Section 3(2) of COFEPOSA mandates the State
Government to send a report to the Central Government. But
it does not mean that the representation made by the detenu,
if any, should also be sent along with that report. [742 E]
2. The Central Government is under a duty to consider
the representation made to it by the detenu for revoking his
detention, even if it simply repeats the same allegations,
statement of facts, and arguments which were contained in
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the representation made to the detaining authority. It is
common experience that an argument or submission based on
certain facts, which does not appeal to a tribunal or
authority of first instance, may find acceptance with a
higher tribunal or supervisory authority. [742 E-F]
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3. Whether or not the detenu has under Section 11 a
legal right to make a representation to the Central
Government is not the real question. The nub of the matter
is, whether the power conferred by Section 11 on the Central
Government, carried with it a duty to consider any
representation made by the detenu, expeditiously. The power
under Section 11 may either be exercised if on information
received by the Central Government from its own sources
including that supplied under Section 3 by the State
Government, or, from the detenu in the form of a petition or
representation. Whether or not the Central Government on
such petition/representation revokes the detention is a
matter of discretion. But this discretion is coupled with a
duty, that duty is inherent in the very nature of the
jurisdiction. [742 F-H, 743 A]
4. The power under section 11 is a supervisory power.
It is 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. If this
statutory safeguard is to retain its meaning and efficacy,
the Central Government must discharge its supervisory
responsibility with constant vigilance and watchful care.
The report received under section 3, or any communication or
petition received from the detenu must be considered with
reasonable expedition. [743 A-B]
5. What is ’reasonable expedition’ is a question
depending on the circumstances of the particular case. No
hard and fast rule as to the measure of reasonable time can
be laid down. But it certainly does not cover the delay due
to negligence, callous inaction, avoidable redtapism and
unduly protracted procrastination. [743 B-C]
In the instant case, in the absence of a specific
denial in the counter-affidavit of the Central Govt.,
inescapable conclusion is that the Central Government has
not at all considered the representation made by the detenu
requesting for revocation of his detention under section 11
of COFEPOSA. [745 E-F]
Shyam Ambalal Siroya v. Union of India, [1980] 2 SCR
1078 and Tara Chand v. State of Rajasthan and Ors., (W.P.
No. 1639/79) decided on February 13, 1980 followed.
Dhana Alikhan v. State of West Bengal, [1975] Suppl
S.C.R. 124; distinguished.
Ram Bali Rajabhar v. State of West Bengal and Ors.,
[1975] 2 S.C.R. 63, referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 168 of 1980.
(Under Article 32 of the Constitution)
Harjinder Singh for the Petitioner.
M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
SARKARIA, J. This is a writ petition filed by one Sabir
Ahmed to challenge the detention of his brother, Dawood
Hasan Sheikh
740
Ibrahim, under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (hereinafter
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referred to as the COFEPOSA).
The detenu was in the custody of the Customs when on
September 8, 1979, he was produced before the Metropolitan
Magistrate, Esplanade Court, Bombay and was remanded to
judicial custody and later on granted bail by the Sessions
Judge by an order, dated September 28, 1979.
On October 2, 1979, an order of detention passed under
Section 3(1) of COFEPOSA by Shri Pradhan, the Secretary to
Maharashtra Government in the Home Department, was served on
him. The grounds of detention were also served on him on the
same date.
On November 14, 1979, the detenu made a representation
to the detaining authority, in which he inter alia asked for
supply of the copies of documents and statements relied upon
in the grounds of detention. The representation of the
detenu was not dealt with by Shri Pradhan, but by the
Minister of State in the Home Ministry of the State
Government, and was rejected on December 10, 1979. The
Minister is said to have been authorised to deal with the
representation of detenus by a Standing Order made by the
Chief Minister on December 3, 1979. In the meantime, the
Advisory Board met and considered the representation of the
detenu and made a report to the Government on December 6,
1979 for approval of the detention. The said Minister had
dealt with the representation and rejected it after the
Board had made its reports to the Government.
On November, 19, 1979, the detenu made an application
to the Central Government for revocation of the order of his
detention under Section 11 of COFEPOSA, and this has not
been dealt with by that Government till today.
Mr. Jeth Malani, appearing for the detenu, has made
four submissions.
(1) The Minister of State was not competent to dispose
of the representation of the detenu, because the Order dated
December 3, 1979, made by the Chief Minister did not invest
him with the necessary authority to dispose of the
representation.
(2) The representation has not been dealt with
expeditiously by the State Government. On the other hand, it
was mechanically sent for remarks to the customs Department
on November 18, 1979, and
741
thereafter the report of the Customs Department was received
by the State Government on November 28, 1979.
(3) The application of the detenu for obtaining copies
of the relevant documents was improperly rejected, and as a
result, he has been deprived of his constitutional right of
making an effective representation.
(4) The detenu had a right to move the Central
Government for revocation of the order of his detention. For
that purpose, he submitted a petition addressed to the
Central Government on November 19, 1979. But, the Central
Government has callously ignored it and has not dealt with
it so far. This delay and inaction for an indefinite period,
which now exceeds four months, vitiates the detention.
Reliance for this contention has been placed on two recent
judgments of this Court in Shyam Ambalal Siroya v. Union of
India & Ors. by a Bench of three learned Judges; and Tara
Chand v. The State of Rajasthan & Ors. (W. P. (Crl) No. 1639
of 1979, decided on February 13, 1980, by a Bench of two
learned Judges).
We will take the last contention first, because, in the
course of his arguments, the learned counsel for the
petitioner while reserving his arguments on other points,
has dealt with this point only.
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On the other hand, regarding contention 4, Mr. Datar,
appearing for the Central Government, submits that Section
11 of COFEPOSA merely confers a discretion on the Central
Government to revoke or modify an order of detention made by
the State Government. It does not confer any right or
privilege on the detenu to make a representation to the
Central Government under that Section.
In line with the same argument, Mr. Nain, appearing for
the respondent-State, submits that Section 11 merely gives a
power which is to be exercised by the Central Government suo
motu after receiving the report from the State Government
under Section 3(2). It is conceded that the power conferred
on the Central Government under Section 11 is a supervisory
power but that, according to the learned counsel, does not
mean that the detenu has been invested with a right to move
the Central Government for revoking the detention. Mr. Nain
further tried to distinguish the Syham Ambalal Siroya’s case
(ibid) on the ground that therein, the detaining authority
was the Central Government, while in the instant case, the
order was passed by the State Government.
742
Both the learned counsel, appearing for the
respondents, relied upon the decision of this Court in Mohd.
Dhana Ali Khan v. State of West Bengal Counsel further
submitted that what has been said by Fazal Ali, J. in Mohd.
Dhana Ali Khan’s case, conflicts with the ratio of Shyam
Ambalal Siroya’s and Tarachand relied upon by the
petitioner. It is urged that on account of this conflict,
the matter should be referred to a larger Bench for
reconsideration. It is maintained that the last mentioned
two cases have not been correctly decided. If the ratio of
these two decisions-proceeds the argument-is liberally
applied, then it means that the detenu has a right to vex
the Central Government by making endless representations
even where no new facts have come to light.
In the alternative, Mr. Nain contended that only in a
case where the representation is based on the discovery of
new matter or facts, the Central Government may be required
to consider it. The proper course for the Court even in such
cases, according to Mr. Nain, is to issue a direction to the
Central Government to consider the representation within a
period specified by it and not to quash the detention. In
this connection reference was made to Ram Bali Rajbhar v.
The State of West Bengal & Ors.
It is true that Section 3(2) of COFEPOSA mandates the
State Government to send a report to the Central Government.
But it does not mean that the representation made by the
detenu, if any, should also be sent along with that report.
There appears to be no substance in the contention that the
Central Government is under no duty to consider a
representation made to it by the detenu for revoking his
detention, if it simply repeats the same allegations,
statement of facts, and arguments which were contained in
the representation made to the detaining authority. It is
common experience that an argument or submission based on
certain facts, which does not appeal to a tribunal or
authority of first instance, may find acceptance with a
higher tribunal or supervisory authority. Whether or not the
detenu has under section 11 a legal right to make a
representation to the Central Government is not the real
question. The nub of the matter is, whether the power
conferred by Section 11 on the Central Government, carries
with it a duty to consider any representation made by the
detenu, expeditiously. The power under section 11 may either
be exercised if on information received by the Central
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Government from its own sources including that supplied
under Section 3 by the State Government, or, from the detenu
in the form of a petition or representation. Whether or not
the
743
Central Government on such petition/representation revokes
the detention is a matter of discretion. But this discretion
is coupled with a duty. That duty is inherent in the very
nature of the jurisdiction. The power under section 11 is a
supervisory power. It is 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. If this statutory safeguard is to retain its
meaning and efficacy, the Central Government must discharge
its supervisory responsibility with constant vigilance and
watchful care. The report received under Section 3, or any
communication or petition received from the detenu must be
considered with reasonable expedition. What is ’reasonable
expedition’ is a question depending on the circumstances of
the particular case. No hard and fast rule as to the measure
of reasonable time can be laid down. But it certainly does
not cover the delay due to negligence, callous inaction,
avoidable redtapism and unduly protracted procrastination.
The plea specifically taken by the writ petitioner in
Ground No. XXII of his affidavit, runs as under:
"The petitioner says that he made a representation
to the Central Government for revocation of the
detention order under section 11 of the COFEPOSA. The
Central Government has not considered the said
representation and thus the detenu’s continued
detention is illegal."
Earlier, in paragraph 7 of his affidavit, also, he had
mentioned that he had sent a communication to the Central
Government, Department of Revenue, COFEPOSA Branch, asking
for revocation of the detention order, but no reply had been
received. In spite of the fact that this ground was
specifically taken, Mr. R.K. Thawani, Deputy Secretary to
the Government of India, Ministry of Finance, has not in his
counter-affidavit said anything with regard to this plea or
the facts alleged in the affidavit of the writ-petitioner.
The conclusion is, therefore inescapable that the Central
Government has not at all considered the petition made by
the detenu requesting for revocation of his detention under
section 11. According to the allegations in the writ
petition, this written communication was sent by the detenu
to the Central Government on November 19, 1979. We are now
in the middle of March, 1980.
Contrary to the counter-affidavit filed by Mr. S. M.
Sule, Under-Secretary to the Government of Maharashtra, Home
Department, Mr. Nain submitted that, in his opinion, the
Central Government did not consider the
representation/petition of the detenu because it
744
might be labouring under a misapprehension that once a writ
petition for habeas corpus has been filed on behalf of the
detenu and the court is seized of the case, anything done by
the Government thereafter might amount to contempt of court.
The apologetic explanation imagined by him contrary to the
stand taken in Mr. Sule’s counter-affidavit, is hardly an
excuse for not performing, its statutory duty by the Central
Government. Although, about four months have gone by since
the despatch of the representation by the detenu, yet the
Central Government has not applied its mind to it. It has
just ignored it.
The ratio of Tara Chand’s case and Shyam Ambalal
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Siroya’s case applied with all its force to the facts of the
instant case. The decision in Mohd. Dhana Ali Khan, (supra)
stands on its own peculiar facts. In principle, there is no
conflict between the ratio of that case and the two
subsequent decisions aforesaid.
In Tara Chand’s case, the order of detention was passed
by the Government of Rajasthan, and the detenu had addressed
a representation to the President, who forwarded it to the
Finance Ministry of the Union Government for necessary
action. It was common ground that the representation was not
considered by the Union of India, nor was any order passed
on it. On these facts, Murtaza Fazal Ali, J., speaking for
the Court, held that section 11(1) of the COFEPOSA "clearly
enjoins that the Central Government may revoke or modify an
order passed by the State Government...Once a representation
is made to the Central Government, it is duty bound to
consider the same in order to exercise its discretion either
in rejecting or accepting it. If there is inordinate delay
in considering the representation that would clearly amount
to violation of the provisions of Article 22(5) so as to
render the detention unconstitutional and void."
The ratio of Tara Chand’s case was followed in Shyam
Ambalal Siroya’s case, wherein a stand similar to the one
before us was taken by the Central Government in the
counter-affidavit filed on its behalf. The stand taken was
that the detention order was not vitiated merely because the
Central Government had not considered the representation of
the detenu made to it for revocation of the detention under
section 11 of the COFEPOSA. The Court rejected this
contention with this observation:
"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. Any petition
for revocation of an order of detention should be dealt
with reasonable expedition.....It may be permissible
for the Central Government to take reason.
745
able time for disposing any revocation petition. But it
would not be justified in ignoring the representation
for revocation of the detention as a statutory duty is
cast upon the Central Government. It is necessary that
the Government should apply its mind and either revoke
the order of detention or dismiss the petition,
declining to order for revocation."
In that case, the representation addressed to the
Central Government was not forwarded to the Central
Government and, as such, was left unattended for nearly four
months.
It is true that in Shyam Ambalal Siroya’s case, the
detaining authority was a Additional Secretary to the
Central Government. But he did not derive his authority to
pass the detention order from the rules of business framed
by the Central Government under Article 77(3) of the
Constitution. Such authority was given to him under the
statute itself. It is, therefore, not correct to say that in
that case, the order passed by the detaining authority was
to be deemed an order passed by the Central Government
itself. In any case, so far as the ratio of that decision is
concerned, this is a distinction without a difference.
Shyam Amdalal Siroya’s case was a decision rendered by
a Bench of three learned Judges. We are bound by the ratio
of the two aforesaid decisions. Respectfully following the
same, we hold that since a representation made by the detenu
to the Central Government has been ignored and left
unattended for a period of about four months, the detention
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cannot be justified as being according to procedure
prescribed by law. In view of the stand taken by the
respondent-State in the counter-affidavit filed on its
behalf, we do not feel inclined, in the circumstances of the
case, to issue a direction to the Central Government to
consider and dispose of the representation of the detenu,
now.
We, therefore, allow this writ petition and set aside
the detention and direct release of the detenu.
These, then, are the reasons which we now give in
support of our order, dated March 14, 1980, by which we
allowed Sabir Ahmed’s writ petition and ordered the detenu’s
release.
S.R. Petition allowed.
746