TMI Blog2015 (7) TMI 1396X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged to have been committed by the petitioner are directed against individuals and those crimes, which include a solitary case of murder, cannot be held sufficient to hold that the even tempo of the society was disturbed and consequently the public order - The ordinary law of land was sufficient to deal with the cases in which the detenu was involved and therefore the order of detention curtailing the freedom of the detenu should not have been issued - HELD THAT:- There were ample materials before the detaining authority to conclude, on the basis of materials produced, that the acts committed by the detenu are prejudicial to public order and that that was every likelihood and potentiality of the detenu in committing offences, disregarding the actions taken by the state to curtail him. The satisfaction arrived at by the detaining authority that the reach of the acts of the detenu, its degree, extent and magnitude has caused disturbance to the even tempo of life of the community so as to amount to disturbance of the public order cannot be doubted or faulted. We hold that the challenge raised by the detenu that his acts merely amount to violation of law and order cannot be sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist the acts of the detenu. It is a one sided assault by the detenu on the security person on his failure to open the gate. The assault on the security staff commenced from the public road and went on inside the apartment complex. It does not appear to us that the said document can be said to be so vital so as to have any relevance in the facts and circumstances of the instant case. Moreover, it is not the law that every document or material in the possession of the sponsoring authority must necessarily be placed by him before the detaining authority and in every case where any such document is not placed by the sponsoring authority before the detaining authority, the formation of opinion and the subjective satisfaction will get vitiated - Only when the said document is likely to affect the formation of opinion and the satisfaction of the detaining authority can it be said that it is a vital document. In the facts of the instant case, it does not appear to us that the wound certificate would have influenced the formation of opinion. The contention raised on this count also has to necessarily fail. The failure of the detaining authority to inform the detenu that he has a right o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 3rd respondent, requesting for initiation of action against the detenu under the Act. When Ext. P1 order dated 9.3.2015 was passed by the 2nd respondent, the detenu was in judicial custody in Crime No. 173 of 2015 of Peramangalam police station as he was arrested in the said case on 29.1.2015. Ext. P1 detention order was served on the detenu while he was in judicial custody. The order of approval was passed on 19.3.2015 u/s. 3(3) of the Act and Ext. P23 order of confirmation was passed on 23.4.2015. 3. Initiation of proceedings against the detenu is on the basis that he is a known rowdy , as defined under S. 2(p) of the Act 34 of 2007. As per Ext. P1 detention order, the sponsoring and detaining authority placed reliance on seven crimes committed by the petitioner. The details are as under:- 4. Out of the above, cases numbered as Sl. Nos. 1 to 7 were considered for arriving at the subjective satisfaction by the 2nd respondent. The crimes numbered as Sl. No's. 8 and 9 were not reckoned for arriving at the objective satisfaction. 5. We have heard the learned Senior counsel appearing for the petitioner Sri. B. Kumar, as instructed by Sri. O.V. Maniprasad, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detaining authority to inform the detenu that he has a right of representation before the detaining authority, is a constitutional requirement flowing from Article 22(5) of the Constitution of India, and failure to comply with the same will vitiate the order. 8. The learned Director General of Prosecution would support the order of detention and argued in terms of the counter affidavits filed. It was submitted that the detention was passed strictly in accordance with the provisions of Act 34 of 2007 and the Constitution of India after careful scrutiny of the reports of the sponsoring authority and thoughtful consideration of the entire aspects of the case. Much emphasis was placed on Crime No. 173 of 2015 of the Peramangalam Police Station, involving offence under S. 302 of the IPC, and it was submitted that the same has shocked the collective conscience of the community. It was submitted that the requisite satisfaction drawing the inference that the detenu be detained immediately, was arrived for safeguarding public safety, peace and tranquillity of the society. It was assiduously argued, that the order of detention is a precautionary measure and is based on a reasonable pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention, unless the said authority is satisfied that the antisocial activity committed by the detenu has affected public order. According to the learned Senior counsel, if the crimes committed by the detenu are ordinary crimes, he can very well be proceeded against under the ordinary law. To advance the above contention, the learned Senior Counsel has adverted to the Statement of objects and reasons which prompted the Kerala Legislature to pass the Act 34 of 2007 and submitted that it was for the purpose of curtailing organized criminal activity which had become a threat to both the economic and physical security of the State and Citizen. The initiation of proceedings is to be limited to organised criminal activity, submits the learned Senior counsel. 11. The Counsel further contends that the definition of 'antisocial activity' in Section 2(a) and the definition of rowdy in Section 2(t) must assume importance and significance in this context and it was submitted that a true interpretation of the provision would exclude mere infractions of law and order. 12. The learned Counsel for the petitioner points out that Act 34 of 2007 has been enacted by the Kerala Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police Station registered on 28.6.2012 for offences punishable under S. 452, 323, 324, 326, 506(ii) r/w S. 34 of the IPC, it was submitted that the ordinary law of the land was enough to deal with the offender and did not warrant the passing of exhibit P1 order on its basis. It was submitted that proceedings as against the petitioner was quashed by this Court in a proceeding u/s.482 of the Code of Criminal Procedure accepting the terms of settlement entered into between the complainant and the accused. 17. Referring to Crime No. 950 of 2013 of Thrissur East police station, registered on 6.5.2013 under S. 354(i)(ii) IPC and S. 66(A) (B) of the IT Act, it is submitted that the brother of the detenu, (the petitioner in this writ petition) had set the law in motion when the detenu had posted some remarks in a social media website and pursuant to the filing of the charge sheet the said case was also quashed by exercising the inherent powers under S. 482 by this Court. 18. Referring to Crime No. 245 of 2012 of the Viyyur Police Station registered on 4.2.2012, for offence punishable under S. 338 of the IPC, it was submitted that the crime was registered when the advertising hoard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently to lead to passing of Exhibit P1 order. It is the submission of the learned Senior counsel that the crimes against the detenu are all insignificant and are routine crimes on individuals with no impact on the even tempo of the society and none of these crimes ought to have been taken into consideration for entertaining the latter subjective satisfaction and to arrive at a decision as to whether the detenu deserves to be detained to prevent him from indulging in anti-social activities. 23. On the other hand, the learned Director General of prosecution took us through the allegations in the individual crimes and submitted that the crimes committed by the detenu are coming under Chapters XVI (offences affecting human body), XVII (offences against property) and XXII (criminal intimidation) of the IPC and falling under section 2(t) of Act 34 of 2007 which are necessary for classifying the detenu as a 'known rowdy' under section 2(p) of the Act. It was submitted that the offences committed by the detenu are not stray acts affecting law and order but they have created panic in the locality. According to the learned Director General of Prosecution, the act committed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deem it fit to glance at the wealth of precedents on this point, which are relied on by the learned Senior Counsel for the petitioner and also the learned Director General of Prosecution to have a clear understanding of the principles. 25. In Ram Manohar Lohiya (Dr.) v. State of Bihar and another (AIR 1966 SC 740) : (1966 Crl.L.J. 608), it has been laid down by the Apex Court as follows: It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also comprehends disorders of less gravity than those affecting 'public order'. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. But using the expression 'maintenance of law and order' the District Magistrate was widening his own field of action and was add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. 27. In T. Devaki v. Government of Tamil Nadu and others, (1990 (2) SCC 456), it was held as follows:- [18]. The question which falls for consideration is whether single incident of murderous assault by the detenu and his associates on the Minister at the Seminar held at Dry Chilly Merchants' Association Kalai Arangam Hall was prejudicial to the maintenance of public order. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound to some extent affect the peace prevailing in the locality and it may also affect law and order problem but the same need not affect maintenance of public order. There is basic difference between law and order&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there by acted in a manner prejudicial to the maintenance of public order which affected even tempo of life of the community. Repetition of these words in the ground are not sufficient to inject the requisite degree of quality and potentiality in the incident in question. A solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so much as to bring the case within the purview of the Act. Such a solitary incident can only raise a law and order problem and no more. Moreover, there is no material on record to show that the reach and potentiality of the aforesaid incident was so great as to disturb the normal life of the community in the locality or it disturbed general peace and tranquillity. In the absence of such material it is not possible to hold that the incident at the seminar was prejudicial to the maintenance of public order. 28. A Constitution Bench of the Apex Court in Madhu Limaye v. Ved Murti, [1970] 3 SCC 739] has laid down as follows: [21]. In dealing with the phrase 'maintenance of public order' in the context of preventive detention, we confined the expression in the relevant Act to what was include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is nothing in the two incidents set out in the grounds in the present case to suggest that either of them was of that kind and gravity which would jeopardise the maintenance of public order. No doubt bombs were said to have been carried by those who are alleged to have committed the two acts stated in the grounds. Possibly that was done to terrify the respective victims and prevent them from offering resistance. But it is not alleged in the grounds that they were exploded to cause terror in the locality so that those living there would be prevented from following their usual avocations of life. The two incidents alleged against the petitioner, thus, pertained to specific individuals, and therefore, related to and fell within the area of law and order. In respect of such acts the drastic provisions of the Act are not contemplated to be resorted to and the ordinary provisions of our penal laws would be sufficient to cope with them. 31. In Subhash Bhandari v. District Magistrate, Lucknow, ([1987] 4 SCC, 685), it was held as follows: A solitary act of omission or commission can be taken into consideration for being subjectively satisfied, by the detaining authority to pass an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 14) and held that the crystallised legal position is that the case is affecting the public order are those which have great potentiality to disturb peace and tranquillity of a particular locality or in the words of Hidayatullah, J. disturb the even tempo of the life of the community of that specified locality. 34. In Shaji v. State of Kerala and Others (2014 Crl. L.J. 2029), a Division Bench of this Court after analysing numerous Apex Court Decisions had held as follows: [11]. Principles laid down in the aforesaid judgment shows that public order is distinct and different from law and order and the Apex Court has consciously observed that public order may well be paraphrased in the context of legislations such as the Act as public tranquillity . Therefore, any act, which adversely affects the public tranquillity of an area is an act affecting public order of the area. Insofar as this case is concerned, the facts narrated in Ext. P1 order itself would show that various crimes have been allegedly committed by the detenu, in public places and in day light and as a result, the people in the locality are terrorized and that because of these acts, tranquillity in the are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority for the purpose of arriving at the subjective satisfaction. If the entertainment of the latter subjective satisfaction is vitiated by mala fides or total absence of materials or by materials that are to be legally eschewed, certainly the powers of judicial review vested in this Court can be invoked and the order of detention on the basis of such subjective satisfaction can be set aside. But if there are materials before the detaining authority, it is not open to this Court to sit in appeal over the subjective satisfaction entertained by the detaining authority. 37. We have thoughtfully considered the contention of the learned Director General of Prosecution, that the objectionable activities of the detenu have to be judged in the light of the socio economic and cultural perspective of the civil society and it has to be ascertained as to whether the totality of the circumstances have had any prejudicial effect on the society as a whole. It was also submitted by the learned Director General of Prosecution that if the detaining authority after appraisal of the facts and circumstances come to the conclusion that the activities of the detenu are prejudicial to the maintenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e detention of the detenu was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The District Magistrate has also recorded that he passed the order after considering all the relevant factors and with due circumspection as he found that his activities had become unmanageable and were creating serious public disorder. It is trite that the order of detention is a precautionary measure and is based on a reasonable prognosis of the future behaviour of the person based on his past conduct and judged in the light of the circumstances prevailing on the date of passing of the detention order. 39. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a jurisdiction of suspicion , and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of the individual liberty. (See Ayya alias Ayub v. State of U.P. and Anr. (1989 (Cri.L.J) 991). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sturbed the even tempo of the society and thus to disturb the public order has to fail. Ground No. (i) to (iv) are found against the detenu. Ground No. (v). 42. The next contention raised by the learned counsel is that Ext. P1 order of detention was passed by the 2nd respondent on 9.3.2015 on which day, the detenu was under judicial custody. He was arrested on 29.1.2015 in connection with Crime No. 173 of 2015 of Peramangalam police station. According to the learned Senior counsel, the detention order is vitiated as the detaining authority has not satisfied herself as to whether there was any possibility of the detenu being enlarged on bail. Reliance is placed on Ext. P6 and P7 bail orders as per which the Court of Session, Thrissur had dismissed the application for bail filed by the detenu. According to the learned Senior counsel, a perusal of Exts. P6 and P7 would reveal that the detenu was not likely to be enlarged on bail in the near future. There were no material before the detaining authority to conclude that the detenu even contemplated approaching the higher Court for bail. There were no materials or facts available with the detaining authority showing the possibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the learned Director General of Prosecution there was material before the detaining authority to come to the conclusion that there was every likelihood for the detenu to get himself released on bail and that in that event, he would again indulge in anti social activities. It was pointed out that the settled law is that the detaining authority was only required to be aware that the detenu was in custody though no bail application was in fact filed and there was likelihood of the detenu being released on bail. The learned Director General of Prosecution has relied on Abdul Sathar Ibrahim Malik V. Union of India (AIR 1981 SC 2261) to substantiate his contentions. 44. A perusal of Ext. P1 order would reveal that the detaining authority was aware of the fact that the detenu had preferred application for bail before the Sessions Court, Thrissur. Reference is also made to the filing and dismissal of Crl.M.C. No. 272 of 2015 and Crl.M.C. 487 of 2015 which were dismissed on 18.2.2015 and 7.3.2015 respectively. The Crime No. 173 of 2015 was registered on 29.1.2015. It is stated in Ext. P1 order that the detenu is financially very well off and there is every likelihood of the detenu appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction should be that of a reasonable person. It cannot be said that the conclusion arrived at by the detaining authority was unreasonable or irrelevant or without materials. Subjective satisfaction being a condition precedent for the exercise of the power of preventive detention conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. A Court cannot go into correctness or otherwise of the facts stated or allegations levelled in the grounds in support of detention. A Court of Law is 'the last appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based. That, however, does not mean that the subjective satisfaction of Detaining Authority is wholly immune from judicial reviewability. By judicial decisions, courts have carved out areas, though limited, within which the validity of subjective satisfaction can be tested judicially. The Apex Court has reiterated in a catena of cases that the Courts have to carefully av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the case of a person in custody, a detention order can be validly passed (1) If the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him; (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities, and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show awareness of custody and/or possibility of release on bail. 47. In Ahmad Nassar V. State of Tamil Nadu and Others (AIR 1999 SC 3897) it was observed as follows: [46]. ............................ Thus in spite of rejection of the bail application by a court, it is open to the detaining authority to come to his own satisfaction based on the contents of the bail application keeping in mind the circumstances that there is likelihood of the detenu being released on bail. Merely because no bail application was then pending is no premise to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng public order, the nature and conditions of bail order passed and the possibilities of imminent release on bail, it cannot be said that the subjective satisfaction of the detaining authority was not exercised in the proper manner. We are therefore of the opinion that the challenge raised in respect of ground No. 5 also has to fail. Ground No. (vi) 49. The next contention raised by the learned senior counsel appearing for the petitioner is that exhibit P1 detention order is vitiated as the said order was passed as per the dictates of the higher authorities for extraneous purpose and with malicious intention. According to the learned counsel crime number 173/2015 of the police station is just another ordinary crime but for some extraneous reasons undue publicity was given to divert the attention of the people from more pressing matters. The Chief Minister of the State, Ministers including the Home Minister, the Opposition leader etc had visited the home of the deceased and had given public statements. Relying on exhibit P8 and P9 newspaper clippings it was contended that the home Minister of the State had visited the house of the deceased and had given a press statement that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence act to a newspaper report cannot be treated as proved of the facts reported therein . 52. Similar observation was also passed by the Supreme Court in Dr. B. Singh V. Union of India and others (2004 (3) SCC 363) wherein it was held that, information of fact found in a newspaper, Journal or Magazine or any other form of communication cannot be regarded as gospel truth. It was held that newspaper reports per se do not constitute legally acceptable evidence. After going through exhibit P1 detention order, we do not think that the detaining authority has abdicated its responsibility. The contention of the petitioner has to fail on this ground as well. Ground No. (vii) 53. The next ground urged by the learned Senior counsel appearing for behalf of the petitioner is that the sponsoring authority had had suppressed vital materials which were in favour of the detenu regarding the incident leading to crime No. 173/2015 in which the security staff had met with his death allegedly at the hands of the detenu. According to the learned Senior counsel, the sponsoring authority have placed before the detaining authority a lopsided version and the fact that the detenu had also sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation before the said authority and the said authority 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 representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Advisory Board. According to the learned Senior Counsel, the right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the District Magistrate, who has made the order of detention, at the time when he is served with the grounds of detention. Failure to inform the detenu of this right so as to enable him to make such a representation results in denial of the right of the person detained to make a representation. This would vitiate the entire detention order, is the submission. Reliance was placed on the Constitution Bench decision of the Apex Court in Kamaleshkumar Iswardas Patel and Others V. State of Kerala (1995 SCC (Cri.) 643) to substantiate the said contention. 55. It was submitted by the learned Senior counsel that the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voke it, is the submission raised by the learned Senior Counsel. This right is inherent in the power to make the order. It is submitted that the said right is recognised by Section 21 of the General Clauses Act, 1897, though it does not flow from it. On these premises, it is contended 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. This aspect, according to the learned Senior counsel, was considered by the Constitution bench in Kamaleshkumar Iswardas Patel (supra) and the question was answered as follows: Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT Narcotic Drugs Psychotropic Substances Act the question posed is thus answered: Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT Narcotic Drugs Psychotropic Substances Act by an officer specially empowered for that purpose either by the Central Government or the State Government the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der S. 3 of the National Security Act, 1980. [3] - Power to make orders detaining certain persons (1) The Central Government or the State Government may,-- (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or (b) ------------------------------------. (2) -------------------------------------. Explanation. --------------------------. (3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said subsection: Provided that the period specified in an order made by the State Government under this subsection shall not, in the first instance, exceed three months, but the State Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the PIT NDPS Act do not provide for approval by the appropriate Government of the orders passed by the officer specially empowered to pass such an order under Section 3. 62. On the other hand, Act 34 of 2007 operates in the same manner as the National Security Act, 1980. S. 3 of Act 34 of 2007 reads as follows:- [3] - Power to make orders for detaining Known Goondas and Known Rowdies (1) ............. ........ (2) .................... (3) When any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government. (emphasis supplied by us) 63. A proper appraisal of the scheme of Act 34 of 2007 would reveal that as and when an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his right to represent to the Government and before Advisory board against his detention. Section 7(3) provides that it is the duty of the Superintendent of jail where the detenu is housed to afford reasonable opportunity/assistance in making a representation against the detention order to the Government or to the Advisory board. 66. Section 13 of Act 34 of 2007 reads as under: [13]. Revocation of detention order (1) A detention order may, at any time, be revoked or modified by the Government. Section 13 of Act 34 of 2007 stipulates that a detention order may, at any time, be revoked or modified by the Government. 67. All these provisions are extracted by us to bring out the fact that Act 34 of 2007 is more in tune with the National Security act 1980, the Maintenance of Internal Security Act 1971 and the Preventive Detention Act, 1950. 68. There is specific provision in Act 34 of 2007 that in respect of orders made by the authorised officer under section 3(2) to forthwith report the fact to the Government to which he is subordinate. Section 3(3) also provides that no order shall remain in force for more than 12 days after the making thereof unless in the meanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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: 1. [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 Narcotic 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 by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. (3). For the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the picture after he has passed the order of detention. It is on the strength of the aforesaid provisions that Kamaleshkumar Ishwardas Patel (supra) laid down that the officer specially empowered for that purpose continues to be the detaining authority and is not displaced by the government concerned after he has made the order of detention. It was therefore, held in the Constitution bench decision that by virtue of him being the detaining authority he is required to consider the representation of the person detained against the order of detention. 71. We deem it apposite to extract the paragraph 34 of the Judgement in Kamaleshkumar Eashwardas Patel (supra) for a clear understanding of the legal position. In this cardinal paragraph of the Judgement, the Constitution Bench of the Apex Court discusses the reason for holding that the officer empowered by the Government must inform the person detained of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the detenu. [34]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g material on the basis 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 government. 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 Narcotic Drugs Psychotropic Substances 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... COFEPOSA Act and PIT NDPS Act cannot be the basis for holding that an order made by an Officer specially empowered by the Central Government or the State Government acquires deemed approval of that Government from the date of its issue. It was held in the above judgment that 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 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 or on the order being revoked by the Officer himself or by the authority mentioned in S. 11 of the COFEPOSA Act and S. 12 of the PIT NDPS Act. It was specifically observed that there was 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. It was in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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