TMI Blog2006 (10) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Traffic Offenders and Slum Grabbers Act, 1985 (in short the 'Act'). The habeas corpus petition filed by the appellant who is brother-in-law of the detenu was dismissed by the High Court. The order of detention was passed on 7.10.2005 under sub-section (2) of Section 3 of the Act and the detenu was taken into custody that very day. Subsequently, the detenu was furnished with the grounds of detention dated 7.10.2005 which were also supplied to him that very day. The Detaining Authority submitted a report to the Government as required under law within 12 days from the date of order of detention, which passed an order approving the detention under Section 3(3) of the Act. The order of approval is dated 11.10.2005. The aforesaid order of detention was challenged before the High Court. During the pendency of the proceedings before the High Court the Advisory Board to whom the Government had referred the matter also approved the order of detention. The Government accepted the said report and passed an order in terms of Section 13 of the Act. The said order of the Government was not called in question by the detenu. Several points were urged in support of the habeas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning Authority should not have dealt with the representation and should have referred the matter to the State Government. In response, learned counsel for the State submitted that the High Court's view about the Detaining Authority not becoming functus officio is correct and in any event the detenu was intimated of his right to make a representation which was made and has been appropriately dealt with and in any event the detenu did not avail opportunity granted to him to make representation to the State Government. The High Court's judgment is in order. It was pointed out that the judgment of this Court in State of Maharashtra and Ors. v. Santosh Shankar Acharya (2000 (7) SCC 463) runs counter to Veeramani v. State of Tamil Nadu (1994 (2) SCC 337) which is a decision rendered by a Constitution Bench. We shall first deal with the plea taken by learned counsel for the State about Santosh Shankar Acharya's case (supra) running countered to Veeramani's case (supra). It has been noted that Veeramani's case (supra) was related to a detention under the COFEPOSA Act. In the said case in para 15 it was noted as follows:- 15. Yet another judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to revoke any 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided for under the other enactments. In such cases, in our view, the question of detaining authority revoking the order after such approval does not arise and the power preserved by virtue of the provisions under General Clauses Act is no more exercisable. The position is different under the Act. Under Section 3(3) of the Act the approval of the State Government is mandatory. There is no such provision in COFEPOSA. A combined reading of Sections 3 and 8 of the COFEPOSA shows that there are three authorities involved. The approval of the State Government under the Act is necessary because of Section 3(2) of the Act. A peculiar situation may arise if representation is made to three authorities. Suppose in a given case two of the authorities reject the representation and one authority accepts it. It is not conceivable that one is bound by the order of the other. Section 8 of the COFEPOSA deals with different situations and provides for a hierarchy. There is no such parallel provision in the Act. A reading of sub-section (3) of Section 3 of the Act makes it clear that the same becomes operative the moment it is passed. But it ceases to be operative unless it is approved wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in State of Maharashtra v. Sushila Mafatlal Shah (supra) and the judgment of Sushila Mafatlal Shah (Supra) has been directly considered and overruled in the Constitution Bench decision in Kamlesh Kumar's case (supra). It would also be appropriate to notice that even in Raj Kishore Prasad v. State of Bihar, (1982 (3) SCC 10), though the Court did not entertain the contention that detaining authority under the provisions of National Security Act has a right to consider the representation on the ground that the order of detention had been approved by the State Government yet it had been observed that constitutionally speaking a duty is cast on the detaining authority to consider the representation which would obviously mean that if such representation is made prior to the approval of the order of detention by the State Government. This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government and the State Government respectively. Therefore, the representation made to the President of India or the Governor would amount to representation to the Central Government and the State Government, but this cannot be allowed to create a smokescreen by an unscrupulous detenu to take the authorities by surprise, acting surreptitiously or with ulterior motives. In the present case, the order (grounds) of detention specifically indicated the authority to whom the representation was to be made. Such indication is also part of the move to facilitate an expeditious consideration of the representations actually made. 18. The respondent does not appear to have come with clean hands to the Court. In the writ petition there was no mention that the representation was made to the President; instead it was specifically stated in paragraph 23 that the representation was made by registered post to the first respondent on 11.5.2000 and a similar representation was made to the second respondent. Before the High Court in the writ petition the first and the second respondent were described as follows: 1. State of Tamil Nadu Rep. By its Secretary, Government of Tamil Nadu, Public (SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly concerned with such consideration. Paras 17 to 19 of Union of India and Anr. v. Chaya Ghoshal (Smt.) and Anr. (2005 (10) SCC 97) are also relevant. They read as follows: 17. While dealing with a habeas corpus application undue importance is not to be attached to technicalities, but at the same time where the court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings the Court has to take serious note of unclean approach. Whenever a representation is made to the President or the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but day to day administration at respective levels are carried on by the Heads of the Department- Ministries concerned and designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in a gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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