TMI Blog1981 (11) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technicality. Appeal dismissed. - W.P.(CRL.) 4691 OF 1981 - - - Dated:- 10-11-1981 - A.P. SEN AND BAHARUL ISLAM, JJ. JUDGMENT 1. This petition under Article 32 of the Constitution by one Sat Pal seeks issuance of a writ of habeas corpus challenging the validity of the order of detention passed by the State Government of Punjab on May 12, 1981, under Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the Act'), on being satisfied that his detention was necessary with a view to preventing him from smuggling goods. The question at issue is whether the failure of the State Government of Punjab 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 with reasonable despatch renders his continued detention invalid. 2. It appears that the detenu was apprehended on June 28, 1981, and served with the order of dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al did not arise. It, therefore; appears that till September 8, 1981, the representation endorsed to the Central Government remained unattended to in the Punjab Secretariat. This was indeed a serious lapse on the part of the State Government, and it is quite evident that it has no explanation to offer. In his counter affidavit, Shri Kuldip Singh Janjua, IAS, Joint Secretary to the State Government of Punjab, Home Department, has not controverted the allegation made by the detenu that his counsel had forwarded two copies of the representation, one addressed to the State Government and the other to the Central Government, with request for the onward transmission of the other representation to the Central Government. He merely adverts to the fact that the State Government had taken all the necessary steps to deal with the representation made by the detenu to it. There is no explanation given for not forwarding the other representation to the Central Government. 4. In his supplementary-affidavit dated October 6, 1981, Shri N.I. Ramanathan, Under Secretary to the Government of India, Ministry of Finance. Department of Revenue, COFEPOSA Unit, has disclosed that the State Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made by an officer of the Central Government or by a State Government. Under Clause (a) thereof, the State Government may likewise exercise such power in relation to an order made by an officer of the State Government. Under Section 11(1)(b) of the Act, the Central Government, therefore, has the overriding power to revoke a detention order, at any time, made by the State Government, or an officer of the State Government, under Sub-section (1) of Section 3 of the Act. That is as it should be, as under our federal structure the center must always keep a vigilant eye in the matter of life and liberty of a citizen guaranteed under Article 21. 7. Ours is a Constitution where there is a combination of federal structure with unitary features while in a Unitary State there is only one Government; federal State involves multi-governments, namely, national or federal government and the governments of component States. A federal State, in short, is a fusion of several States into a single State in regard to matters affecting common interest leaving each component State to enjoy autonomy in regard to other matters. Under our Constitution, certain powers vest in the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The power under Section 11(1)(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 time' in Section 11, gives the power of revocation and overriding effect on the power of detention under Section 3. Ordinarily, the Central Government would in a case like the present under the Act, like to await the report of the Advisory Board under Section 8(c), before taking any action under Section 11(1)(b) but the circumstances may differ, and there may be a case where the Central Government finds that the order of detention passed under Section 3 is mala fide or constitutes an abuse of power on the part of the State Government or an officer of the State Government specially empowered in that behalf, it may 'at any time', revoke the order of detention. The detenu has therefore the right to approach the Central Government by a representation for revocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus. Section 11(a) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must therefore be held illegal and the detenu set free. The decision in Rattan Singh's case (supra), is, however, distinguishable on facts. In that case, the representation made to the Central Government for revocation of the order of detention was not forwarded at all to the Central Government and, therefore, the continued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s case (supra), that there was a duty cast on the State Government to forward the representation to the Central Government forthwith and failure to do so may render the continued detention illegal. Failure to comply with the second condition does not make the order of detention valid, merely because there is compliance with the first. These considerations, however, do not arise in the present case. 14. We are also constrained to record our disapproval of the disdainful attitude displayed by Shri Kuldip Singh Janjua, IAS, Joint Secretary to the Government of Punjab, Home Department. In his counter-affidavit there is no denial of the allegation made by the detenu and indeed, there is no explanation for not forwarding the representation to the Central Government till September 23, 1981. There is instead a statement to the effect: ...the time imperative can never be absolute or obsessive. The occasional observations that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula. We are at a loss to appreciate the propriety of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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