TMI Blog1988 (9) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... because of these factors Dr. Chitale contended, and in our opinion very rightly, that if the view of the High Court is to be accepted it would often lead to a defeasance of the COFEPOSA Act itself and the purpose for which is was enacted. Thus we cannot accept or sustain the view taken by the High Court for quashing the order of detention passed against the detenu. We, therefore direct that notwithstanding our holding that the High Court was in error in quashing the order of detention made against the detenu, he will not be re-arrested and placed in custody for the rest of the period of detention. Appeal is allowed and the judgment and order of the High Court are set aside but, however, the detenu’s release will not be effected - 480 of 1988 - - - Dated:- 7-9-1988 - A.P. Sen and S. Natarajan, JJ. REPRESENTED BY: Dr. Y.S. Chitale, Senior Advocate, Mr. A.M. Khanwilkar and A.S. Bhasme, Advocates, with him, for the Appellants. Mr. U.R. Lalit, Senior Advocate, Mr. V.N. Ganpule and Mr. S.K. Agnihotri, Advocates, with him, for the Respondents. [Judgment per: Natarajan, J.]. - Leave granted. 2. Being more concerned with the law adumbsated by the High Court of Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .N. Capoor and it was forwarded by the Superintendent, Central Prison, Nasik with a covering letter dated 17.3.1987 to the Government. The Government after calling for remarks from the Assistant Collector of Customs and Central Excise, Pune rejected the representation of the detenu by order dated 3.4.1987 and the said order was communicated to the detenu on 4.4.1987 through the Superintendent of the Central Prison, Nasik. 5. In the meanwhile on 12.3.1987 the case of the detenu was referred to the Advisory Board. On 8.5.1987 the Advisory Board considered the detenu s case and sent a report justifying the detention and thereafter the State Government confirmed the detenu s detention. 6. In the month of March 1987 the first respondent being the detenu s mother, filed a petition under Article 226 of the Constitution before the High Court of Bombay for a writ being issued for the order of detention being quashed. Though several grounds were set out in the writ petition, they were all given up and the counsel appearing on behalf of the detenu confined the challenge to the validity of the detention order on one ground alone. The ground of attack was to the following effect :- as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise powers under Section 3(1) of the COFEPOSA Act and not as one empowered to act on behalf of the Government under the Rules of Business. Therefore what falls for consideration in the appeal is whether by reason of D.N. Capoor having passed the order of detention only in exercise of his special empowerment to act under Section 3(1) of the Act and not in exercise of any right given to him under the Rules of Business of the Government, he was under a constitutional obligation to communicate to and afford opportunity to the detenu to make a representation to himself in the first instance before the detenu availed of his right to make representations to the State Government and the Central Government. 9. It was urged by Dr. Chitale on behalf of the State, that neither Article 22(5) of the Constitution nor the provisions of the COFEPOSA Act afford scope for any differentiation being made between an order of detention passed by a specially empowered officer of the State Government or the Central Government, as the case may be, and an order of detention passed by the State Government or the Central Government itself, as the case may be, and for holding that if an order of detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Does an order passed by an officer of the State Government or the Central Government, specially empowered for the purposes of Section 3(1) by the respective Government, make him the Detaining Authority and not the State Government or the Central Government, as the case may be, and obligate him to inform the detenu that he has a three fold opportunity to make his representations i.e. the first to himself and the other two to the State Government and the Central Government. (2) Whether for the purposes of the Act, there is any difference between an order of detention passed by an officer of the State Government or the Central Government, solely in exercise of the powers conferred on him under Section 3 by the respective Government and an order of detention passed by the State Government or the Central Government, as the case may be, through an officer who in addition to conferment of powers under Section 3 is also empowered under the Standing Rules framed under the Rules of Business of the Government, to act on behalf of the Government: (3) Whether by reason of the fact that an order of detention is passed by an officer of the State Government or the Central Government specially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. Vide also John Martin v. State of West Bengal [1975 (3) SCC 836 at page 839], Jayanarayan Sukul v. State of West Bengal [1970 (3) SCR 225] and Haradhan Saha v. State of West Bengal [1975 (3) SCC 198]. 12. We can, therefore, conclude without further discussion that on the plain language of Article 22(5) that Article 22(5) does not provide material for the detenu to content that in addition to his right to make a representation to the State Government and the Central Government, he has a further right under Article 22(5) to make a representation to D.N. Capoor himself as he had made the order of detention. 13. Turning now to the COFEPOSA Act, the relevant provisions to be noticed are Sections 2, 3, 8 and 11. In Section 2 which is the definition section, the words appropriate government and detention order have been defined as under :- Section 2. (a) appropriate Government means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has been enacted to comply with the constitutional imperative in Article 22(4) enjoins the Central Government and the State Government to constitute one or more Advisory Boards and obligates the concerned government to refer to the Advisory Board the case of every detenu ordered to be detained by the said government within a period of five weeks from the date of detention. For our purposes it would suffice if clause (b) of Section 8 alone is quoted. The clause reads as follows :- Section 8(b) - Save as otherwise provided in Section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of Clause (4) of Article 22 of the Constitution. Section 11 which is the last of the Sections requiring notice pertains to the powers of revocation of the State Government or the Central Government, as the case may be. The relevant clause is in the following terms :- Section 11(1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897, a detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the detenu will be the Central Government only and likewise whether an order of detention is made by a State Government or one of its duly authorised officers the appropriate Government would be the State Government only as regards the detention order and the detenu concerned. Secondly, irrespective of whether an order of detention is made by the State Government or by one of its officers, the obligation to forward, within ten days a report to the Central Government in respect of the order is cast only upon the State Government. Thirdly, in the matter of making a reference of the case of a detenu to the Advisory Board under Section 8(b), the duty of making the reference is cast only on the Central Government or the State Government as the case may be, and not on the officer of the Central Government or the State Government if he makes the order of detention in exercise of the powers conferred on him under Section 3(1). Lastly, Section 11, which deals with the powers of revocation of the State Government and the Central Government provides that notwithstanding that on order of detention had been made by an officer of a State Government, the concerned State Government as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the State Government and whether in such circumstances the State Government could contend that the question of the Central Government considering the representation would arise only after the State Government had considered the representation and rejected it. 15. Consequently, the resultant position emerging from the Act is that even if an order of detention is made by a specially empowered officer of the Central Government or the State Government, as the case may be, the said order will give rise to obligations to be fulfilled by the Government to the same degree and extent to which it will stand obligated if the detention order had been made by the Government itself. If that be so, then it is the concerned Government that would constitute the Detaining Authority under the Act and not the officer concerned who made the order of detention, and it is to that Government the detenu should be afforded opportunity to make representation against the detention order at the earliest opportunity, as envisaged under Article 22(5) and not to the officer making the order of detention in order to provide the detenu an opportunity to make a further representation to the State Government and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Business of the Government to act on behalf of the Government. This difference in the conferment of powers upon the officers falling under the two categories cannot have any impact on the nature of the detention orders respectively passed by them because the common factor entitling the officers falling in the two classes in their empowerment under Section 3(1) of the Act. Without such empowerment an officer, even if he be empowered to act on behalf of the Government under the Rules of Business, cannot pass an order of detention against anyone. If this position is realised, then it follows that there is no scope for contending that a detention order made by an officer empowered to act under the Act but not having additional empowerment under the Rules of Business of the Government will not have the effect of making the government the detaining authority and instead would make the officer alone the detaining authority and by reason of it stand obligated to afford opportunity to the detenu to make a representation to himself before making his representation to the State Government and the Central Government. It is also relevant to note that the Act confers powers of revocation only up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, the COFEPOSA Act does not provide for approval by the Central or State Government of an order of detention passed by one of its duly empowered officers and, consequently, an order of detention passed by an officer 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. 18. We shall now see whether there is any logic or rationale behind the contention that since D.N. Capoor had made the order of detention, the detenu was entitled, as of right to make a representation to the very same officer and have the same considered by him in the first instance before the detenu availed of his right to make a representation to the State Government and then if need be to the Central Government also. The fallacy and misconception underlying such a contention has been lucidly brought out in Kavita v. Maharashtra [1982 (2) SCR 138 at 146] and again in Masuma v. Maharashtra [1982 (1) SCR 288 at 293]. The relevant passage in Kavita s case reads as under :- It was suggested that it would have been mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied in any provision of the COFEPOSA that the same person who acts for the State Government in making the order of detention must also consider the representation of the detenu: In fact, as pointed by Chinnappa Reddy, J. in Smt. Kavita v. State of Maharashtra [1982 (1) SCR 138] a Government business can never get through if the same individual has to act for the Government in every case or proceeding or transaction, however, advantageous it may be to do so. Moreover it would really be to the advantage of the detenu if his representation is not considered by the same individual but fresh mind is brought to bear upon it. We do not therefore, see any constitutional or legal infirmity in the representation having been considered by the Minister of State for Home." Mr. Lalit sought to distinguish these decisions by saying that in both the cases the secretary to Government issuing the order of detention had the authority to act on behalf of the Government under Rules of Business but D. N. Capoor had no such authority. Since we have pointed out that a detention order passed by an officer having empowerment under the COFEPOSA Act to make an order of detention would also constitute an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for contending that the High Court has not blazed a new trail in holding that since D.N. Capoor was the detaining authority he should have communicated to and afforded opportunity to the detenu to make the representation to himself in the first instance while informing him that he had a right to make representations to the State Government and the Central Government. The first two cases Jayanarain v. W. Bengal [1970 (3) SCR 225] and P.K. Chakrabarty v. W. Bengal [1970 (1) SCR 543] were cases pertaining to detention orders passed under the Preventive Detention Act by District Magistrates empowered under the Act to pass the detention orders. In both the cases the detention orders were quashed on the ground that the government had failed to consider the detenu s representation expeditiously and instead had sought umbrage for its action on the ground it had awaited the opinion of the Advisory Board to which it had forwarded the detenu s representation. While upholding the detenu s contentions in each of the two cases it was observed in passing that though Clause 5 (of Article 22) does not in express terms say so it follows from its provisions that it is the detaining authority which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or of the detaining authority (State Government in that case) to afford the earliest opportunity to make a representation and to consider the representation speedily. 23. The attempt of Mr. Lalit was to highlight the reference to the detaining authority in the general observations in the abovesaid cases by taking them out of their context and build up an argument that in all those decisions it has been laid down that there is a constitutional obligation on very detaining authority to afford opportunity to the detenu to make a representation to the detaining authority himself before making representations to the State Government and the Central Government. In order to point out the mis-conception in the argument of Mr. Lalit we have set out in brief the facts of each case as well. There was no controversy in any of those cases as to whether the detenu s representation should have been considered by the officer passing the order of detention or by the Government. On the other hand the challenge made in all those cases to the detention orders was on the ground there had been delay or failure on the part of the concerned Government in considering the representation. The observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The next decision in Pushpa v. Union of India [1980 (Suppl) SCC 391]. The decision was rendered by a single judge constituting the Vacation Bench of the Supreme Court. That was also a case of a detenu under the COFEPOSA Act against whom an order of detention had been passed by the Chief Secretary to the Delhi Administration who was specially empowered under Section 3 of the Act. The detention was challenged on the ground that the representation sent by the detenu had been considered by the Chief Secretary himself, though he was not competent to reject the representation and the representation had not been considered and rejected by the appropriate Government viz. the Administrator. The Court rejected the contention and held as follows :- There is nothing in the scheme of Article 22 or the provisions of the COFEPOSA which requires that the representation ought always to be considered by the appropriate Government notwithstanding the fact that the order of detention has been made by an officer spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go further into the matter for not following the ratio in Santosh Anand s case (supra) because it was dealing with an order of detention passed under the National Security Act and Section 8 of the said Act specifically provided that the detenu must be afforded opportunity at the earliest point of time to make a representation to the appropriate Government and to the detaining authority. Apart from this fact we have to point out that we do not find any material to substantiate the view taken by the Bench that Article 22(5) has been interpreted by the Court and furthermore Section 11 of the COFEPOSA Act envisages that a representation should be considered by the detaining authority, who on a consideration thereof can revoke the detention order and if the representation is rejected by the detaining authority it is open to the detenu to approach to State Government for revocation of the order etc. etc. On the contrary, it has been held by a Bench of three judges in N.P. Umrao v. B.B. Gujral [1979 (2) SCR 315 at page 321] that it is, therefore, well-settled that in case of preventive detention of a citizen, the Constitution by Article 22(5) as interpreted by this Court, enjoins that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejecting the same and that if the detenu had any grievance he should have moved the State Government under Section 11 to invoke its powers of revocation. In such circumstances this decision cannot also be treated as one having precedential value. 27. In the light of our discussion our answer to the three posers formulated earlier has to be in the negative. It, therefore, follows that we cannot accept or sustain the view taken by the High Court for quashing the order of detention passed against the detenu. 28. Having settled the position of law, it only remains for us to consider whether the order of detention should be restored and the detenu sent back to custody. On this aspect of the matter Mr. Lalit fervently pleaded that this was not a case where the ends of justice required the detenu being arrested and placed in custody for the rest of the period of detention. He stated that the detenu was a young boy of 19/20 years and that he had already been in custody for 5 months and 3 weeks. It was further stated by him that no adverse information against the detenu had come to the notice of the authorities after he was set at liberty by the High Court. In such circumstances Mr. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of detention and had failed to communicate that he had also a right to make a representation to the Detaining Authority himself the constitutional safeguards and imperatives under Article 22(5) had been violated inasmuch as the detenu had been deprived of his right to make a representation to the Detaining Authority himself before availing of his right to make further representation to the State Government and the Central Government. The principal challenge in this appeal is to the proposition of law enunciated by the High Court. 3. We may now have a look at the facts. On 21.8.1986 the detenu was caught in the act of transporting ten gold biscuits of foreign origin. On 23.10.1986 the Collector of Central Excise and Customs sent a proposal to the State Government for action being taken against the detenu under the COFEPOSA Act and on 17.11.1986 he furnished, in response to Government s query, some additional information about the detenu. On 2.2.1987 an order of detention under Section 3(1) of the COFEPOSA Act was passed by D.N. Capoor in exercise of the powers specially conferred upon him by the Government of Maharashtra for the purpose of Section 3 of the Act. In the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Article 22(5) inasmuch as the detenu had been deprived of his right to make a second representation to the State Government in the event of the Detaining Authority D.N. Capoor rejecting his representation. 7. This contention found acceptance with the High Court and the High Court made the Rule absolute and quashed the order of detention. The challenge in this appeal is not only to the release of the detenu but to the principle of law formulated by the High Court to set aside the order of detention. 8. Before proceeding further we may state for purposes of record, that an attempt was made by the State before the High Court that D.N. Capoor had not passed the order of detention solely in exercise of his powers as a specially empowered officer of the State to make an order under Section 3(1) but also as an officer authorised to act on behalf of the Government under the Standing Rules framed under the Rules of Business of the Government of Maharashtra. The High Court declined to accept this contention as there was no proof that D.N. Capoor had been empowered under the Standing Rules to act on behalf of the Government and furthermore the Central Government counsel had also c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the detenu stated that unlike in other Preventive Detention Acts such as the National Security Act, etc., there is no provision in the COFEPOSA Act for confirmation by the Government of an order of detention passed by an officer specially empowered under Section 3(1) of the COFEPOSA Act and as such the officer issuing an order of detention under the Act constitutes the Detaining Authority of the detenu and hence the Detaining Authority is under an obligation to afford opportunity to the detenu to make a representation to himself in the first instance before the detenu avails of his right to make representation to the State Government and then to the Central Government. Mr. Lalit relied upon the decisions of this Court in Santosh Anand v. Union of India [1981 (2) SCC 420] and Pushpa v. Union of India [1980 (Suppl.) SCC 391] for sustaining the judgment of the High Court. Yet another argument of Mr. Lalit was that since Article 22(5) mandates the affording of opportunity at the earliest point of time to the detenu to make his representation, it must be interpretatively construed that the Detaining Authority is under an obligation to inform the detenu and afford him oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Article 22(5) has been construed as under in Abdul Karim v. W. Bengal [1969 (3) SCR 479 at page 486]. A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. Article 22(5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of Article 22(5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as possible. The constitution of an Advisory Board under Section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. On behalf of the respondent it was said that there was no express language in Article 22(5) requiring the State Government to conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poses 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 preventing him from - (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained. (2) When any order of detention is made by a State Government or by an officer 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 purposes of clause (5) of Article 22 of the Constitution, the communicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to find out whether the Act provides for a differentiation being made between detention orders made by the Government and those made by specially empowered officers so as to confer an additional right of representation to detenu subjected to detention under detention orders falling in the latter category. At the outset, it needs no saying, that any Government, be it Central or State, has to function only through human agencies, viz. its officers and functionaries and that it cannot function by itself as an abstract body. Such being the case, even though Section 3(1) provides for an order of detention being made either by the Central Government or by one of its officers or the State Government or by one of its officers, an order of detention has necessarily to be made in either of the situations only by an officer of the concerned Government. It is in acceptance of this position we have to see whether an order of detention, if passed by an officer of the Government specially empowered under Section 3(1) but not further empowered under the Rules of Business of the Government to act would have the effect of making the concerned officer the Detaining Authority and not the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him because the order of the specially empowered officer acquires deemed approval of the State or Central Government, as the case may be, automatically and by reason of such deemed approval the powers of revocation, even in terms of Section 21 of the General Clauses Act will fall only within the domain of the State Government and/or Central Government. In Satpal v. State of Punjab [1982 (1) SCC 12 at page 17] the nature of the power of revocation conferred on the State and the Central Government came to be construed and the Court held that the power of revocation conferred on the appropriate Government under Section 11 of the Act is independent of the power of confirming or setting aside an order of detention under Section 8(f) . It was further adumbrated as follows. The power under Section 11(l)(b) may either be exercised on information received by the Central Government from its own sources including that supplied by the State Government under Section 3(2), or, from the detenu in the form of a petition or representation. It is for the Central Government to decide whether or not, it should revoke the order of detention in a particular case. The use of the words at any t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct etc. the COFEPOSA Act does not provide for any approval by the Government of an order of detention passed by an officer specially empowered to make a detention order. In all the above said Acts, an order of detention passed by an officer specially empowered under the Act will cease to have force after the expiry of the number of days prescribed under the relevant Act unless the said order is approved by the Government within that period. On the contrary, the COFEPOSA Act does not provide for the State Government or Central Government passing an order of approving of a detention order made by one of its officers and therefore the detention order will continue to be operative for the full period of detention unless the order is revoked by the State Government or the Central Government or is quashed by the Court for any reason. This is an additional factor to show that an order of detention passed by an officer has the same force and status as an order of detention passed by the Government itself and this could happen only if an order of detention made by an officer is treated as an order of detention made by the Government itself, although through the instrumentality of an officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to give relief to him, it may lead to the abuse of powers vested in the officer. The possibility of an officer misusing his powers and passing an order of detention against a person and then revoking it in order to seek profit for himself or for other ignoble means, however remote it may be, cannot be ruled out. This aspect of the matter has been touched upon in Raj Kishore Prasad [1982 (3) SCC 10] and the Court which was dealing with the case of a detenu detained under the National Security Act has set out the need as to why a representation made by a detenu against an order of detention made by an officer of the Government should be considered by the Government itself and not by the officer concerned. The relevant passage reads as follows :- The contention is that constitutionally speaking a duty is cast on the detaining authority to consider the representation. That is of course true. But in view of the scheme of the Act, Parliament has now made it obligatory on the appropriate Government to consider the representation. This is done presumably to provide an effective check by the appropriate Government on the exercise of power by subordinate officers like the District M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame individual at all stages. It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages. In Masuma s case the same view has been expressed : It was the State Government which made the order of detention and not P.V. Nayak in his individual capacity. The representation made by the detenu against the order of detention was also therefore required to be considered by the State Government and either it could be disposed of by P.V. Nayak acting for the State Government under the earlier Standing Order dated 18th July 1980 or the Minister of State for Home could dispose it of under the later Standing Order dated 18th July 1980. Whether P.V. Nayak considered the representation and disposed it of or the Ministry of State for Home did so would be immaterial, since both had authority to act for the State Government and whatever be the instrumentality, whether P.V. Nayak or the Minister of State for Home, it would be the State Government which would be considering and dealing with the representation. The only requirement of Article 22(5) is that the representation of the detenu must be considered by the detaining authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider the representation either by reason of his proceeding on leave or falling sick or transfer or retirement or being placed under suspension or death, then the inevitable consequence would be that the detenu has to be invariably set at liberty solely on the ground that his representation had not been considered by the very same officer who had passed the order of detention. Can we conceive of such a situation of permit such consequences to follow when it is common knowledge that the services of a Government officer in the same post for any length of time can never be guaranteed. As already stated, the officer may fall sick or he may proceed on leave on other grounds or he may retire from service or he may be transferred elsewhere due to exigencies of service etc. If therefore, we are to sustain the view taken by the High Court, it would lead to the position that even if an order of detention is made on very valid and justifiable grounds by a specially empowered officer, the sustainment of the order would depend upon extraneous factors such as the officer not falling sick or going on leave or retiring from service or being transferred etc. etc. Surely, the Act and the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by the detenu as a result of that opportunity. 21. Vimal Chand v. Shri Pradhan Ors. [1979 (3) SCR 1007] was a case where an order of detention was passed under the COFEPOSA Act by the Secretary, Government of Maharashtra, Home Department in exercise of the power conferred on him under Section 3(1) of the Act. The detention order was quashed by this Court on the ground that the Government had failed to consider the detenu s representation expeditiously and instead had postponed consideration of the representation till the report of the Advisory Board was received. In the course of the judgment it was observed that the detenu must be afforded the earliest opportunity of making a representation would be rendered illusory unless there is a corresponding obligation of the detaining authority to consider the representation of the detenu as early as possible. 22. In Tarachand v. State of Rajasthan [AIR 1980 SC 2133] the grievance of the detenu detained under the COFEPOSA Act was that he had sent representations to the detaining authority viz. the State Government and the Central Government on 23.2.1980 but there was a delay of 1 month and 5 days in his representation r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Administrator, who under Section 2(f) of the Act was the State Government for the Union Territory of Delhi, thus depriving the detenu of his remedy to approach the Administrator as a higher authority after the rejection of his representation by the detaining authority. The Court came to the view that the continued detention of the detenu under the order dated April 3,1979 is liable to be quashed on the second ground about which facts are clear and there is no difficulty in accepting the same . The Court further held as follows: Under Article 22(5), as interpreted by this Court, as also under the provisions of Section 11 of the COFEPOSA it is clear that a representation should be considered by the detaining authority, who on a consideration thereof can revoke the detention order and if the representation is rejected by the detaining authority it is open to the detenu to approach the State Government for revocation of the order and failing that it is open to him to approach the Central Government to get the detention order revoked. The Court further observed as follows :- It is thus very clear to us that the representation could be said to have been considered by the Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority to reconsider its decision which has resulted in the detention of the detenu. The representation is not in the form of an appeal to the higher authority and, therefore ipso facto it must go to the State Government. Undoubtedly it would be open to the detenu to make a representation under Section 11 requesting either the State Government or the Central Government, as the case may be, to revoke the order of detention. But the initial representation that a detenu has a right to make on receipt of the grounds of detention would ordinarily be addressed to the detaining authority because it is that authority which has taken a decision adverse to the detenu and which has to be persuaded to re-consider the same. Therefore, if the detenu made the representation to the third respondent who had passed the detention order it was open to him to consider the same and after applying his mind to accept or reject the same. The failure to submit the representation addressed to the detaining authority and considered by him, to the State Government, would not vitiate the detention order." Though these authorities lend apparent force to the contentions of Mr. Lalit we are of the view that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government and the Act does not envisage or contemplate an officer of the State Government or the Central Government passing an order of detention also exercising powers of revocation. We must, therefore, hold that the decision in Santosh Anand s case (supra) must stand confined to the facts of that case and it cannot be treated as one in which a principle of law of general application in all cases has been enunciated. In fact we may appositely refer in this connection to a decision by a Bench of three Judges of this Court in Devji Vellabbhai Tandal v. Administrator [1982 (3) SCC 222] where it was held that it is only the administrator in the Union Territory of Delhi who is entitled to consider the representation of a detenu and reject the same or accept the same and revoke the order of detention. The pronouncement in this case, being one made by a Bench of three Judges, carries with it more binding force than the view taken in Santosh Anand s case. 26. Turning now to Pushpa s case, apart from being a judgment rendered by a single judge constituting the Vacation Bench of the Court, can be distinguished on facts. The two representations made by the detenu, in that case, one throug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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