TMI Blog1995 (4) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... ARIPOORNAN, K.S., MANOHAR SUJATA V., JJ. JUDGMENT When an order for preventive detention is passed by an officer especially empowered to do so by the Central Government or the State Government, is the said officer required to consider the representation submitted by the detenu? This is the common question that arises for consideration in these appeals in the context of orders for preventive detention passed by officers especially empowered by the Central Government under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [for short 'COFEPOSA Act'] and the Prevention of Illicit Traffic in Narcotic Drugs Psychotropic Substances Act, 1988 [for short 'PIT NDPS Act']. There is divergence in the decisions of this Court on this question. In Amir Shad Khan v. L. Hmingliana and Ors., [1991] 4 SCC 39, (decided by a bench of three Judges), it has been held that where an officer of the State Government or the Central Government has passed any detention order and on receipt of a representation he is convinced that the detention needs to be revoked he can do so. In State of Maharashtra v. Smt Sushila Mafatlal Shah Ors., [1988] 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority who is empow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no obligation on the part of the State Government to consider the representation. Rejecting the said contention, it was said : The right of representation under Article 22 is a valuable constitutional right and is not a mere formality. It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the viewpoint contended for by the respondent is correct,the constitutional right under Article 22(5) would be rendered illusory. Take for instance a case of detention of a person on account of mistaken identity. If the order of detention has been made against A and a different person B is arrested and detained by the police authorities because of similarity of names or some such cause, it cannot be reasonably said that the State Government should wait for the report of the Advisory Board before releasing the wrong person from detention. [p.487] The decision in Abdul Karim (supra) was reaffirmed by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment will not release the detenu the Govern-ment will send the case along with the detenu's representation to the Advisory Board. [p.232] (Emphasis supplied). All these cases related to orders of detention made by the District Magistrate under the Preventive Detention Act, 1950 which specifically provided [in Section 7(1)] that the authority making the order of detention shall afford to the person detained the earliest opportunity of making a representation against the order to the appropriate Government and for that reason there are observations by the court that the representation should be considered by the State Government though the orders of detention were made by the District Magistrate under Section 3(2) of the Preventive Detention Act. Although in these cases the focus was only on the question whether the representation should be considered by the State Government or the Advisory Board, and the court was not required to consider whether the detaining authority should also consider the representation, yet we find that in Pankaj Kumar Chakrabarty (supra) the court has said that the detaining authority must consider the representation when so made. Similarly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make a representation against the order of detention to the authorities who are required to consider such a representation. Having thus defined the nature of the right to make a representation recognised by Article 22(5) we may now proceed to examine the relevant provisions in the COFEPOSA Act and PIT NDPS Act. Section 3 of the COFEPOSA Act confers the power to make orders detaining certain persons and provides as under: Section 3. Power to make orders detaining certain persons.- (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from-. (i) smuggling goods, or (ii) abetting the smuggling of goods, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision for revocation of detention orders and is in the same terms as Section 11 of the COFEPOSA Act. The provisions in COFEPOSA Act and PIT NDPS Act differ from those contained in the National Security Act, 1980 as well as earlier preventive detention laws, namely, the Preventive Detention Act, 1950, the Maintenance of Internal Security Act, 1971 in some respects. Under sub-section (3) of Section 3 of the National Security Act, power has been conferred on the District Magistrate as well as the Commissioner of Police to make an order of detention, and sub-section (4) of Section 3 prescribes that the officer shall forthwith report the fact of making the order to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and that no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government. In Section 8(1) of the National Security Act it is prescribed that the authority making the order shall afford the person detained the earliest opportunity of making a repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the power that is available to the authority that has made the order of detention to revoke it. The power of revocation that is conferred on the Central Government and the State Government under clauses (a) and (b) of sub-section (1) of Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act is in addition to the power of revocation that is available to the authority that has made the order of detention. This is ensured by the words without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 97) in sub-section (1) of both the provisions. If the power of revocation is to be treated as the criterion for ascertaining the authority to whom representation can be made, then the representation against an order of detention made by an officer specially empowered by the State Government can be made to the officer who has made the order as well as to the State Government and the Central Government who are competent to revoke the order. Similarly, the representation against an order made by the State Government can be made to the State Government as well as to the Central Government and the representation against an order made by an officer speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative intention that without affecting that right which the authority making the order enjoys under Section 21 of the General Clauses Act, an order of detention is also available to be revoked or modified by authorities names in clauses (a) and (b) of Section 11(1) of the Act. Power conferred under clauses (a) and (b) of Section 11(1) of the Act could not be exercised by the named authorities under Section 21 of the General Clauses Act as these authorities on whom such power has been conferred under the Act are different from those who made the orders. Therefore, conferment of such power was necessary as Parliament rightly found that Section 21 of the General Clauses Act was not adequate to meet the situation. Thus, while not affecting in any manner and expressly preserving the power under Section 21 of the General Clauses Act of the original authority making the order, power to revoke or modify has been conferred on the named authorities. (p.28] In Amir Shad Khan (supra) the majority view has been thus ex-pressed : Therefore, where an officer of the State Government or the Central Government has passed any detention order and on receipt of a representation he is conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the COFEPOSA Act does not provide for approval by the Government of an order of detention passed by one of its duly empowered officers, the learned Judges have expressed the view that an order passed by an officer acquires 'deemed approval' by the government from the time of its issue and by reason of its the Government becomes the detaining authority and thereby constitutionally obligated to consider the representation made by the detenu with utmost expedition. (p.505) Reliance has also been placed on the decisions in Kavita v. State of Maharashtra, [1981] 3 SCC 558 and Smt. Mamma v. State of Maharashtra, [1981] 3 SCC 566. The learned Additional Solicitor General has pleaded for acceptance of the law laid down in Smt. Sushila Mafatlal Shah (supra). We regret out inability to do so. The decision in Smt. Sushila Mafatlal Shah (supra) proceeds on two premises: (i) Article 22(5) does not confer a right to make a representation to the officer specially empowered to make the order; and (ii) under the provisions of the COFEPOSA Act when the order of detention is made by the officer specially empowered to do so, the detaining authority is the appropriate Government, namely, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner of Police who has made the order is required to forthwith report the fact to the State Government to which he is subordinate. The said provision further prescribes that no such order shall remain in force for more than twelve days after the making thereof, unless, in the mean- time, it has been approved by the State Government. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making. It is also the requirement of Section 3(4) that the report should be accompanied by the grounds on which the order has been made and such other particulars as, in the opinion of the said officer, have a bearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention. The effect of the approval by the State Government is that from the date of such approval the detention is authorised by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approval. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of which the order of detention was made. The only circumstance from which inference about deemed approval is sought to be drawn is that the order is made by the officer specially empowered for that purpose by the concerned govern-ment. Merely because the order of detention has been made by the officer who has been specially empowered for that purpose would not, in our opinion, justify the inference that the said order acquires deemed approval of the government that has so empowered him, from the date of the issue of the order so as to make the said government the detaining authority. By specially empowering a particular officer under Section 3(2) of the COFEPOSA Act and the PIT NDPS Act the Central Government or the State Government confers an independent power on the said officer to make an order of detention after arriving at his own satisfaction about the activities of the person sought to be detained. Since the detention of the person detained draws its legal sanction from the order passed by such officer, the officer is the detaining authority in respect of the said person. He continues to be the detaining authority so long as the order of detention remains operative. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to the notice of the learned Judges deciding Smt. Sushila Mafatial Shah (supra). For the reasons aforementioned we are of the view that the decision in Smt. Sushila Mafatial Shah (supra). In so far as it holds that where an order of detention made by an officer specially empowered for the purpose representation against the order of detention is not required to be considered by such officer and it is only to be considered by the appropriate Government empowering such officer does not lay down the correct law. The learned Additional Solicitor General has also placed reliance on the decision in John Martin v. State of West Bengal, (supra) wherein the court was dealing with an order of detention made under the Maintenance of Internal Security Act, 1971 which contained an express provision in Section 8(1), for the representation to be made against the detention order to the appropriate Government. The said decision can, therefore, have no application to a detention under the COFEPOSA Act and the PIT NDPS Act which do not contain such a provision. Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e forwarded the said representation with his recommendation that the representation may be rejected. A writ petition was filed in the Bombay High Court by the appellant who is the son of the detenu. By order dated July 20, 1994 a Division Bench of the High Court referred the following three questions to the Full Bench for consideration : (1) Has the specially empowered officer under the COFEPOSA Act also an independent power to revoke the order of detention. In view of Section 11 of the COFEPOSA Act read with Section 1 of the General Clauses Act? (2) Are observations in Amir Shad Khan regarding power of revocation of specially empowered officer under the COFEPOSA Act not binding on this Court? (3) Does failure to take independent decision on revocation of order of detention by the specially empowered officer under the COFEPOSA Act and merely forwarding the same with recommen-dation to reject, result in non- compliance with constitutional safeguard under Article 22(5) of the Constitution? By the judgment of the Full Bench dated August 26, 1994 the question No. 1 was answered in the affirmative and it was had that the specially empowered officer under the COFEPOSA Act has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution. The said contention was accepted by this Court and it was observed : It is thus clear to us that the representation could be said to have been considered by the Chief Secretary at the highest but he did not take the decision to reject the same himself and for that purpose the papers were submitted to the Administrator who ultimately rejected the same. There is no affidavit filed by the Chief Secretary before us stating that he had rejected the representation. The representation was, therefore, not rejected by the detaining authority and as such the constitutional safeguard under Article 22(5), as interpreted by this Court, cannot be said to have been strictly observed or complied with. [p.422] The Full Bench of the Bombay High Court has taken note of the decision in Smt. Santosh Anand (supra) but has placed reliance on the later decisions of this Court in Sat Pal v. State of Punjab, [1982] 1 SCC 12 and Rajkishore Prasad v. State of Bihar, [1982] 3 SCC 10, to hold that the Court must look at the substance of the matter and not act on mere technicality and that even though the constitutionally speaking a duty is cast on the detaining authority to consider the represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide an effective check by the appropriate Government on the exercise of power by subordinate officers like the District Magistrate or the Commissioner of Police. It was held that if the appropriate Government has considered the representation of the detenu it cannot be said that there is contravention of Article 22(5) or there is failure to consider the representation by the detaining authority. The decision in Santosh Anand (supra) was noticed and it was distinguished on the ground that under the national Security Act there is a specific provision in Section 8 which requires that the detaining authority shall afford the earliest opportunity to make a representation against the order not to the detaining authority but to the appropriate Government. The decisions in Sat Pal (supra) and Rajkishore Prasad (supra) on which the High Court has placed reliance do not, therefore, detract from the law laid down in Santosh Anand (supra). Having found that the representation of the person detained was not considered by the officer making the order of detention the High Court was in error in holding that the said failure on the part of the detaining authority to consider and decide t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention was dismissed by the Bombay High Court by judgment dated October 27, 1993. One of the contentions that has been urged on behalf of the appellant before this Court was that he had addressed a joint representation dated September 14, 1993 to the detaining authority, the Central Government and the Advisory Board and the same was sub-mitted through the Superintendent, Bombay Central Prison and that the said representation was rejected by the Central Government and it was not [ considered and decided independently by the detaining authority himself. These facts are not disputed on behalf of the respondents. Since the appellant had submitted a representation to the detaining authority, name- ly, the officer who was specially empowered to make an order of detention, and the said officer did not consider the representation there has been a denial of the constitutional safeguard guaranteed under Article 22(5) of the Constitution. As a result the detention of the appellant has to be held to be illegal and the said appeal has to be allowed. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenues ..... X X X X Extracts X X X X X X X X Extracts X X X X
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