TMI Blog1991 (8) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... ot unreasonable- On the contrary the action of the Detaining Authority and the State Government was unreasonable and resulted in a denial of the appellants' constitutional right. The impugned detention orders are, therefore, liable to be quashed. Appeal allowed. Set aside the order of the High Court and quash the detention orders on this single ground. - - - - - Dated:- 9-8-1991 - A.M. AHMADI, V. RAMASWAMI AND M.M. PUNCHHI, JJ. JUDGMENT Special leave granted. The events leading to the filing of these two appeals, briefly stated, are that on the afternoon of March 25, 1990, the officers of the Directorate of Revenue Intelligence being in possession of information intercepted a motor car at about 3.45 p.m. driven by the appellant Amir Shad Khan with the appellant Aziz Ahmad Khan as his companion. On search of the vehicle 1400 gold bars were recovered. The statements of the two appellants were recorded and thereafter they were formally arrested on March 28, 1990 and produced before the Chief Metropolitan Magistrate, Bombay. The Chief Metropolitan Magistrate granted remand. While the matter was under investigation a proposal was made to the first respondent. Secretary (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentations be sent to the State and Central Government for their kind consideration in view of the above facts so as to revoke and/or set aside my order of detention and order my release forth with. It is not disputed that the representation was considered and rejected by the State Government. It was, however, not forwarded to the Central Government and hence the Central Government had no occasion to consider the representation of the appellants for the revocation of the detention orders. As the detention orders were not revoked the appellants preferred separate habeas corpus writ petitions which were numbered Criminal Writ Petitions Nos. 530-31 of 1991 in the High Court of Bombay under Article 226 of the Constitution. The High Court on a detailed consideration of the various contentions raised by the appellants dismissed both the writ petitions. On the question whether the detention orders were vitiated as the Detaining Authority as well as the State Government had failed to forward their representations to the Central Government, the High Court answered in the negative for the reason that the detenus who had failed to follow the clear and specific instructions given in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on June 12, 1990. We may at this stage state that we are not concerned with the subsequent representation. The point which we have been called upon to consider is whether failure on the part of the Detaining Authority as well as the State Government to accede to the request of the appellants to take out copies of the representations and forward the same to the Central Government for consideration has resulted in violation of their constitutional/statutory right to have their representation considered by the Central Government, and if yes, whether the detention orders are liable to be quashed on that ground. The law of preventive detention is harsh to the person detained and, therefore, there can be no doubt that it must be strictly construed. Article 22(3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of clauses (1) and (2) of the said Article. Clause (4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of Article 22 reads as under: When any person is detained in pursuance of an order made under any law providing for preventive detention, the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As pointed out earlier that clause casts an obligation on the authority making the detention order to afford to the detenu an earliest opportunity to make a representation against the detention order. If we are to go by the statement in the grounds of detention our search for that authority would end since the grounds of detention themselves state the authorities to which the representation must be made. The question must be answered in the context of the relevant provisions of the law. Now as stated earlier by clause (5) of Article 22 a dual obligation is cast on the authority making the detention order one on which is to afford to the detenu an earliest opportunity of making a representation against the order which obligation has been met by informing the detenu in the grounds of detention to whom his representation should be addressed. But the authority to which the representation is addressed must have statutory backing. In order to trace the source for the statutory backing it would be advantageous to notice the scheme of the Act providing for preventive detention. Section 2(b) defines a detention order to mean an order made under section 3. Sub-section (1) of section 3 empowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (c) of clause 7 of Article 22 of the Constitution. Section 8(f) which has some relevance provides that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith. This provision clearly obliges the appropriate Government to order revocation of the detention order if the Advisory Board reports want of sufficient cause for detention of that person. Then comes section 11 which reads as under: Revocation of detention orders-- (1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified- (a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government. (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rifies why the power under section 11 is conferred without prejudice to the provisions of section 21 of the General Clauses Act. Thus on a conjoint reading of section 21 of the General Clauses Act and section 11 of the Act it becomes clear that the power of revocation can be exercised by three authorities, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government. The power of revocation conferred by section 8(f) on the appropriate Government is clearly independent of this power. It is thus clear that section 8(f) of the Act satisfies the requirement of Article 22(4) whereas section 11 of the Act satisfies the requirement of the latter part of Article 22(5) of the Constitution. The statutory provisions, therefore, when read in the context of the relevant clauses of Article 22, make it clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the right conferred on the detenu to represent against his detention order. Viewed in this perspective it cannot be said that the power conferred by section 11 of the Act has no relation whatsoever with the constitutional obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government whereas in our case only one representation was sent to the Detaining Authority with a request that copies thereof be taken out and sent to the State Government as well as the Central Government for their consideration. With respect, this distinction has nothing to do with the ratio of the decision; if at all, as rightly pointed out counsel for the appellants, the facts of this case are stronger than those of Razia Umar's case. In Rattan Singh's case the facts reveal that the detenu had written a letter to the Superintendent of Central Jail, Amritsar, enclosing therewith two representations one of which was addressed to the Joint Secretary, Department of Home, Government of Punjab, Chandigarh, and the other to the Secretary, Union Ministry of Finance, Department of Revenue, New Delhi. The Jail Superintendent was requested to forward the representations to the State Government as well as the Central Government. In the counter filed on behalf of the Central Government it was stated that no representation by or on behalf of the detenu had been received by the Central Government. It was contended that failure to forward the representation to the Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l right a citizen has against his detention under a law relating to preventive detention. It was, therefore, observed: It is, therefore, idle to contend that this State Government had no duty to forward the representation made by the detenu to the Central Government for revocation of his order of detention under section 11 of the Act. In taking this view the Court placed reliance on Rattan Singh's case Gracy's case may not be entirely apposite because the question which the court was required to consider in that case was that the representation made to the Advisory Board was not taken into consideration by the Central Government after the papers were laid before it with the opinion of the Advisory Board that there was sufficient cause to justify the preventive detention. That was, therefore, a case in which the representation was very much before the Central Government and it failed to consider the same before confirming and fixing the duration of the detention order. In that case, therefore, the question for consideration was whether it was incumbent on the part of the Central Government to consider a representation addressed to the Advisory Board notwithstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Affairs Ministry could not be treated as representations to the Central Government. It is, therefore, obvious that this decision turned on its special facts and is no authority for the proposition that the Detaining Authority or the State Government was under no obligation to forward the representations to the Central Government. It must be realised that when a person is placed under detention he has certain handicaps and if he makes a request that a representation prepared by him may be forwarded to the Central Government as well as the State Government for consideration after taking out copies thereof it would be a denial of his right to represent to the Central Government if the Detaining Authority as well as the State Government refuse to accede to his request and omit to forward his representation to the Central Government for consideration. It is difficult to understand why such a technical and rigid view should be taken by the concerned authorities in matters of personal liberty where a person is kept in preventive detention without trial. Detenus may be literate or illiterate, they may have access to legal advice or otherwise, they may or may not be in a position to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
