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TMI Blog1995 (4) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... ree 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 SCC 490, (decided by a bench two Judges), a different view has been expressed. It has been held that if an order of detention is made by an officer specially empowered by the Central Government or a State Government the representation of the detenu is required to be considered only by the Central Government or the State Government and it is not required to be considered by the officer who had made the order. The question posed has to be considered in the light of the provisions relating to preventive detention contained in Article 22 of the Constitution as well as the provisions contained in the relevant statutes. The Constitution, while permitting Parliament and the State Legislatures to enact a law providing for preventive detention, prescribes certain safeguards in Article 22 for the protection of the persons so detained. One such protection is contained in sub- clause (a) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough 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 empowered by law to revoke the order of detention. The learned Additional Solicitor General has urged that the repre-sentation envisaged by Article 22(5) has to be made to the Advisory Board referred to in Article 22(4) since the only right that has been conferred on the person detained is to have the matter of his detention considered by the Advisory Board. The learned Additional Solicitor General drew sup-port from the words "making a representation against the order" in Article 22(5) for this submission and contended that the use of the word "a" in singular indicates that only one representation is to be made and that representation has to be made to the Advisory Board because that is the only authority contemplated under the Constitution which is required to consider such representation. We are unable to give such a restricted meaning to the words "making a representation against the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Constitution Bench of this Court in Pankaj Kumar Chakrabarty and Ors. v. State of West Bengal, [1970] 1 SCR 543, wherein it was observed : "It is true that cl.(5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expression "as soon as may be" and "the earliest opportunity" in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that this detention is unwarranted and since no other authority who should consider such representation is mentioned it can only be the detaining authority to whom it is to be made which has to consider it. Though cl. 5 does not in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 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, in Jayanarayan Sukul (supra) the court has used the expression "appropriate authority" in the first three principles as distinct from the expression "appropriate Government" used in the fourth principle. The expression "detaining authority" would mean the authority which has made the order of detention and the authority which has made an order for continuance of such detention. In Amir Shad Khan (supra) it has been held: "The right to make a representation against the detention order thus flows from the constitutional guarantee enshrined in Article 22(5) which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires. The necessity of casting a dual obligation on the authority making the detention order is obviously to acquaint the detenu of what had weighed with the Detaining Authority for exercising the extraordinary power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Provided that no order of detention shall be made on any of the grounds specified in this sub-section on which an order of detention may be made under Section 3 of the Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988 or under Section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (J.& K. Ordinance 1 of 1988). (2) When any order of detention is made a State Government or by an officer empowered by a State Government, the State Government shall, within ten da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 representation against the order to the appropriate Government. Similar provisions were contained in the Preventive Detention Act, 1950 and the Maintenance of Internal Security Act, 1971. COFEPOSA Act and the PIT NDPS Act do not provide for approval by the appropriate Government of the orders passed by ths officer specially empowered to pass such an order under Section 3. The said Acts also do not lay down that the authority making the order shall afford an opportunity to make a representation to the appropriate Government. Under Section 3 of the COFEPOSA Act and the PIT NDPS Act an order of detention can be made by - (i) The Central Government; or (ii) an officer specially empowered by the Central Government; or (iii) the State Government; or (iv) an officer specially empowered by the State Government. In view of Section 21 of the General Clauses Act the authority which has made the order of detention would be competent to revoke the said order. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milarly, 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 specially empowered by the Central Government can be made to the officer who has made the order as well as to the Central Government. The learned Additional Solicitor general has, however, submitted that the officer specially empowered under Section 3 of the COFEPOSA Act and PIT NDPS Act cannot be regarded as the detaining authority and that though the order of detention is made by the officer specially em-powered by the Central Government or by the State Government the detaining authority is the appropriate Government which has empowered the officer to make the order and, therefore, it is the appropriate Government alone which can consider the representation and revoke the same and a representation does not lie to the officer who has made the order of detention. According to the learned Additional Solicitor General the only provision regarding revocation of detention orders is that contained in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act and under the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 convinced that the detention order needs to be revoked he can do so by virtue of Section 21 of the General Clauses Act since Section 11 of the Act does not entitle him to do so. If the State Government passes an order of detention and later desires to revoke it, whether upon receipt of a representation from the detenu or otherwise, it would be entitled to do so under Section 21 of the General Clauses Act but if the Central Government desires to revoke an order passed by the State Government or its officer it can do so only under clause (b) of Section 11(1) of the Act and not under Section 21 of the General Clauses Act. This clarifies why the power under Section 11 is conferred without prejudice to the provisions of Section 21 of the General Clauses Act." [p.49] In Smt. Sushila Mufatlal Shah (supra) the order of detention was passed under Section 3 of the COFEPOSA Act by Shri D.N. Capoor, Officer on Special Duty and Ex-officio Secretary to the Government of Maharashtra, Home Department, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the Government which has empowered the officer to make the order, since such order acquires 'deemed approval' by the Government from the time of its issue. With due respect we find it difficult to agree with both the premises. Construing the provisions cf Article 22(5) we have explained that the right of the person detained to make a representation against the order of detention comprehends the right to make such a representation to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty and since the officer who has made the order of detention is competent to revoke it, the person detained has the right to make a representation to the officer who made the order of detention. The first premises that such right does not flow from Article 22(5) cannot, therefore, be accepted. The learned judges, while relying upon the observations in Abdul Karim (supra) and the decisions in Jayanarayan Sukui (supra), Haradhan Saha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. That appears to be the reason why Section 8(1) envisages that the representation against the order of detention is to be made to the State Government. The COFEPOSA Act and the PIT NDPS Act do not require the approval of an order made by the officer specially empowered by the State Government or by the Central Government. The order passed by such an officer operates on its own force. All that is required by Section 3(2) of COFEPOSA Act and PIT NDPS Act is that the State Government shall within 10 days forward to the Central Government a report in respect of an order that is made by the State Government or an officer specially empowered by the State Government. An order made by the officer specially empowered by the State Government is placed on the same footing as an order made by the State Government because the report has to be forwarded to the Central Government in respect of both such orders. No such report is required to be forwarded to the Central Government in respect of an order made by an of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ceases to be the detaining authority only when the order of detention ceases to operate. This would be on the expiry of the period of detention as prescribed by law or on the order being revoked by the officer himself or by the authority mentioned in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act. There is nothing in the provisions of these enactments to show that the role of the officer comes to an end after he has made the order of detention and that thereafter he ceases to be the detaining authority and the concerned government which had empowered him assumes the role of the detaining authority. We are unable to construe the provisions of the said enactment as providing for such a limited entrustment of power on the officer who is specially empowered to pass the order. An indication to the contrary is given in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act which preserve the power of such officer to revoke the order that was made by him. This means that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PS 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 question posed is thus answered : Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a repre-sentation against the order of detention. This right of the detenue is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 an inde-pendent power to revoke in view of Section 11 of COFEPOSA Act read with Section 21 of the General Clauses Act. Question No. 2 was also answered in the affirmative and it was held that the observations in Amir Shad Khan (supra) regarding the power of revocation by such officer under the COFEPOSA Act were binding on the High Court. Question No. 3 was answered in the negative and it was held that the failure on the part of the officer making the order of detention to consider the representation made by the detenu was of no consequence because the representation of the detenu was, in fact, in effect and in substance considered by the Finance Minister who was an appropriate authority for the purpose of consideration of such representation. The matter was thereafter considered by the Division Bench of the High Court and by judgment dated September 16/19, 1994 the writ petition was dismissed. These appeals have been filed against the judgment of the Full Bench dated August 26, 1994 as well as the judgment of the Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 representation yet if in fact and in effect the appropriate Government has finally considered the representation of the detenu it cannot be said that there is contravention of Article 22(5). In Sat Pal v. State of Punjab, (supra) the order of detention was made by the State Government of Punjab under Section 3 of the COFEPOSA Act and the detenu had made two representations, one was addressed to the Joint Secretary, Government of Punjab and the other was endorsed to the Central Government through the Secretary, Ministry of Finance, Department of Revenue, New Delhi. Both the representations were for-warded by the Superintendent, Central Jail to the Joint Secretary, State Government of Punjab with an endorsement that one of them be forwarded to the Central Government. The State Government rejected the representations but there was a delay on the part of the State Government in forwarding the representation to the Central Government and ultimately the Central Government also rejected the said representation and these was no delay on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking 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 the representation is not fatal to the order of detention. We are, therefore, unable to uphold the answer given by the Full Bench to question No. 3 and, in our view, the said question should be answered in the affirmative. On that basis it has to be held that since there was a denial of the constitutional safeguard provided to the detenu under Article 22(5) of the Constitution on account of the failure on the part of the officer who had made the order of detention to independently consider the repre-sentation submitted by the detenu against his detention and to take a decision on the said representation the further detention of the detenue Ishwardas Bechardas Patel is rendered illegal. The appeals, therefore, deserve to be allowed. Crl.A.No. 850 and 915 of 1994 In both the appeals the orders of detention were made under Section 3 of the PIT NDPS Act by the officer specially empowered by the Central Government to make such an order. In the grounds of detention the detenu was only informed that he can make a representation to the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenues have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the nature of the activities of the detenues the cases do not justify interference with the orders of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenues are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "jeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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