PETITIONER:
SMT. MASUMA
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ANR.
DATE OF JUDGMENT12/08/1981
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
ERADI, V. BALAKRISHNA (J)
CITATION:
1981 AIR 1753 1981 SCR (1) 288
1981 SCC (3) 566 1981 SCALE (3)1154
CITATOR INFO :
R 1983 SC 311 (7)
R 1988 SC2090 (22)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974-Detention order passed by the
Secretary to Government, but the representation made by the
detenu considered by the Minister of State-Whether such a
consideration was not a valid and proper consideration and
therefore the detention itself was invalid-Constitution of
India, 1950, Article 22(5) read with Rule 15 of the Rules of
Business of Government of Maharashtra read with clauses 4, 5
and 6 of the Instructions issued thereunder and further
standing orders dated 18th July, 1980-Clause (b) of section
8 of COFEPOSA, explained.
HEADNOTE:
One Hasnain Mukhtar Hussain Lakdawala was detained by
the Government of Maharashtra by an order of detention dated
31st December, 1980 passed under section 3(1) of COFEPOSA,
1974. The order of detention was served on the detenu on
17th January, 1981 along with a communication dated 31st
December, 1980 and a letter dated 7th January, 1981 was also
served enclosing copies of the documents relied upon in the
grounds of detention. A letter dated 6th February, 1981
along with nine copies of the representation to be made by
the detenu sent by the detenu's advocate to the
Superintendent, Bombay Central Prison, though handed over to
the detenu by the prison authorities on the same day was
carried by the detenu to the Nasik Road Central Prison to
which he was shifted on that day. The requisite copies of
the representation duly signed by the detenu were forwarded
to the Government and the Chairman of the Advisory Board on
10th February, 1981. The State Government, however, rejected
the representation by its letter dated 25th February, 1981.
A copy of the representation sent to the Central Government
was also rejected on 26th February 1981. In the meantime,
the case of the detenu was referred to the Advisory Board
and on 11th March 1981, when the detenu was called for an
oral hearing, the detenu handed over four copies of a
further representation dated 11th March 1981, praying for
revocation of the detention order. The Advisory Board consi-
dered the case and by its report dated 12th March 1981
advised the State Government that there was sufficient cause
for the detention of the detenu, and through its letter
dated 16th March, 1981 apprised the detenu's advocate of the
position. The State Government thereafter confirmed the
order of detention. Hence the writ petition by the detenu's
wife.
Dismissing the petition, the Court,
^
HELD: 1:1. There was no constitutional or legal
infirmity in the representation of the detenu having been
considered by the Minister of State for Home. [294 B]
1:2. The only requirement of Article 22(5) of the
Constitution is that the representation of detenu must be
considered by the detaining authority which in
289
the present case was the State Government and this
requirement was clearly satisfied, because when the Minister
of State for Home considered the representation and rejected
it, he was acting for the State Government and the
consideration and rejection of the representation was by the
State Government. [293 G]
1:3. There is no requirement express or implied in any
provision of COFEPOSA that the same person who acts for the
State Government in making the order of detention must also
consider the representation of detenu. More- over, it would
really be to the advantage of the detenu, if his
representation is not considered by the same individual but
fresh mind is brought to bear upon it. [293 H-294 B]
In view of the clear provisions of Rule IS of the Rules
of Business of the Government of Maharashtra, clauses 4 to 6
of the Instructions issued by the Governor thereunder and
the two standing orders dated 18th July 1980 it was
immaterial, whether P.V. Nayak considered the representation
and disposed it of, or the Minister of State for Home did
so, since both had authority to act for the State Government
and whatever be the instrumentality, it would be the State
Government which would be considering and dealing with the
representation [292 D-H; 293 F]
Smt. Kavita v. State of Maharashtra, [1982] I S.C.R.
138, followed.
2. The State Government did not commit any breach of
its constitutional or legal obligation in making a reference
to the Advisory Board without first determining the period
for which the detenu was to be detained. [296 G]
2:2. It is not at all necessary for the detaining
authority to apply its mind and consider at the time of
passing the order of detention or before making a reference
to the Advisory Board, as to what shall be the period of
detention and whether the detention is to be continued
beyond a period of three months or not. The only inhibition
on the detaining authority is that it cannot lawfully
continue the detention for a period longer than three months
unless the Advisory Board has, before the expiration of the
period of three months, reported that there is in its
opinion sufficient cause for such detention. [296 E-F]
2:3. The requirement of clause (4) of Article 22 of the
Constitution is satisfied by the enactment of section 8(b)
of the COFEPOSA. This provision for reference to the
Advisory Board is not confined to cases where the detaining
authority has already come to a decision that the detention
shall be continued for a period longer than three months. It
applies equally where the detaining authority has not yet
made up its mind as to how long the detention shall continue
or even where the detention is to continue for a period of
three months or less. Whenever any order of detention is
made, whether the detention is to continue for a period
longer than three months or a period of three months or less
or the detaining authority has not yet applied its mind and
determined how long the detention shall be continued, the
appropriate Government is bound within five weeks from the
date of detention to make a reference to the Advisory Board
and if it fails to do so, the continuance of the detention
after the expiration of the period of five weeks should be
rendered invalid. The Advisory Board is, in every such case
where a reference is made, required to submit its report
290
within eleven weeks from the date of detention and if it
reports that there is in its opinion no sufficient cause for
detention, the detaining authority is bound to release the
detenu forthwith, even though a period of three months may
not have expired since the date of detention. This is a
safeguard provided by the COFEPOSA, which is applicable in
all cases of detention, whether the detention is to be
continued beyond a period of three months or not and whether
or not the detaining authority has applied its mind and
determined, before making a reference to the Advisory Board,
as to what shall be the period of detention. [295 F-296 E]
3. The State Government, in the instant case, cannot be
said to be guilty of any unreasonable delay, at any stage,
in considering the representation of the detenu. [297D, 299
B, D]
JUDGMENT:
ORIGlNAL JURISDICTION: Writ Petition Criminal No. 1892
of 1981.
Under Article 32 of the Constitution of India
Ram Jethmalani, Vineet Kumar, M. G. Karmali and Naresh
K Sharma for the Petitioner.
The Judgment of the Court was delivered by
BHAGWATI J.: This is a petition for a writ of Habeas
Corpus for securing the release of one Hasnain Mukhtar
Hussain Lakdawala (hereinafter referred to as the detenu)
who has been detained by the Government of Maharashtra under
an order of detention dated 31st December 1980 made in
exercise of the powers conferred under section 3(1) of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act 1974 (hereinafter referred to as the
COFEPOSA. This order of detention though dated 31st December
1980 was served on the detenu on 17th January 1981 and
alongwith the order of detention, a communication, also
dated 31st December 1980, was served on the detenu
containing the grounds of detention. The Government of
Maharashtra also served on the detenu at the same time a
letter dated 7th January 1981 enclosing copies of the
documents relied upon in the grounds of detention. It
appears that on 6th February 1981 the advocate of the detenu
addressed a letter to the Superintendent, Bombay Central
Prison where the detenu was then confined and alongwith this
letter he forwarded nine copies of the representation which
was to be submitted by the detenu to the Government of
Maharashtra against the order of detention. This letter was
delivered by the authorities in charge of the Bombay Central
Prison to the detenu on 6th February 1981, but on the same
day the detenu was shifted from the Bombay Central Prison to
Nasik
291
Road Central Prison and the nine copies of the
representation were therefore carried by the detenu with him
to the Nasik Road Central Prison and from there, the
requisite number of copies of the representation duly signed
by the detenu were forwarded to the Government of
Maharashtra and the Chairman of the Advisory Board on 10th
February 1981. This representation was however rejected by
the Government of Maharashtra by its letter dated 25th
February 1981. It appears that a copy of the representation
was also sent by the detenu to the Central Government and by
its letter dated 26th February 1981 the Central Government
too rejected the representation. In the meantime, the case
of the detenu was referred to the Advisory Board and on 11th
March 1981, the detenu was called for an oral hearing by the
Advisory Board and at this meeting the detenu handed over to
the Chairman and Members of the Advisory Board four copies
of a further representation dated 11th March 1981 addressed
by him jointly to the Chairman and the Members of the
Advisory Board and the Government of Maharashtra praying
that the Government of Maharashtra may be pleased to revoke
the order of detention and set the detenu at liberty. The
Advisory Board considered the case of the detenu and by a
letter dated 16th March 1981, the Secretary of the Advisory
Board intimated to the advocate of the detenu that the
Advisory Board had by its report dated 12th March 1981
advised the Government of Maharashtra that there was
sufficient cause for the detention of the detenu. The State
Government thereafter in exercise of the powers conferred
under clause (f) of section 8 passed an order dated 23rd
March 1981 reciting the opinion given by the Advisory Board
and confirming the order of the detention. The petitioner
who is the wife of the detenu thereupon preferred the
present writ petition challenging the order of detention
made by the Government of Maharashtra as also the
continuance of the detention under the subsequent order
dated 23rd March 1981.
There were several grounds urged on behalf of the
petitioner in support of the petition and each one of them
was seriously pressed before us by Mr. Jethmalani on behalf
of the petitioner. The first ground was that the order of
detention was made by one P. V. Nayak, Secretary to
Government, Revenue and Forest Department and Ex-officio
Secretary to Government, Home Department while the
representation made by the detenu against the order of
detention was considered and disposed of by the Minister of
State for Home Affairs not by P. V. Nayak and hence there
was no effective consideration of the representation of the
detenu as required by law. The argument on behalf of the
detenu was that the representation of a
292
detenu must be considered by the same person who has passed
the order of detention and since in the present case, the
representation was considered by a different person, it was
not a valid and proper consideration of the representation
and the continuance of the detention of the detenu was
therefore invalid There was also another related ground
urged on behalf of the petitioner and it was that the
Minister of State for Home affairs who considered the
representation of the detenu was not competent to do so,
both by reason of lack of authority as also in view of the
fact that the case had already been dealt with by P. V.
Nayak. We do not think there is any substance in either of
these two grounds. If we look at the order of the detention,
it is clear that it was not made by P. V. Nayak in his indi-
vidual capacity as an officer of the State Government but it
was made by him as representing the State Government. It was
the State Government which made the order of detention
acting through the instrumentality of P. V. Nayak, Secretary
to Government who was authorised so to act for and on behalf
of and in the name of the State Government under the Rules
of Business. Rule 15 of the Rules of Business of the
Government of Maharashtra provided that those Rules may “to
such extent as necessary be supplemented by instructions to
be issued by the Governor on the advice of the Chief
Minister” and in exercise of the power conferred under this
Rule, the Governor of Maharashtra issued Instructions for
the more convenient transaction of the business of the
Government. Clauses (4), (5) and (6) of these Instructions
as they stood at the material time provided inter alia as
under:
4. Except as otherwise provided in these
Instructions, cases shall ordinarily be disposed
of by, or under the authority, of the Minister-in-
charge, who may by means of standing orders give
such directions as he thinks fit for the disposal
of cases in the Department, Copies of such
standing orders shall be sent to the Governor and
the Chief Minister.
5 Each Minister shall arrange with the Secretary of
the Department what matters or classes of matters
are to be brought to his personal notice.
6. Except as otherwise provided in these
instructions, cases shall be submitted by the
Secretary in the Department to which the case
belongs to the Minister-in-charge.
293
Pursuant to the instructions contained in these
clauses, Shri A. R. Antulay, Chief Minister of Maharashtra
and Minister incharge of the Home Department, issued a
Standing order dated 18th July 1980 directing that cases
under sub-section (I) of section 3 of the COFEPOSA Act need
not be submitted to him or to the Minister of State for the
Home Department and that such cases may be allotted to and
disposed of by any of the six officers mentioned there one
of them being P. V. Nayak. On the same day, another Standing
order was issued by Sh. A. R. Antulay Chief Minister of
Maharashtra and Minister-in-charge of Home Department in
pursuance of the provisions contained in Rule 6 of the Rules
of Business, directing inter alia that all cases
appertaining to the COFEPOSA Act and all other matters
arising under the provisions of that Act may be allotted to
the Minister of State for Home Affairs. This latter Standing
order provided that nothing contained in it shall affect the
directions contained in the earlier Standing order issued on
the same day. It will therefore be seen that P. V. Nayak was
authorised under the earlier Standing order dated 18th July
1980 to deal with and dispose of cases under sub-section (I)
of section 3 of the COFEPOSA and it was in exercise of the
authority thus conferred upon him that P. V.
Nayak acting for the State Government made the order of
detention against the assessee under sub-section (I) of
section 3. [t was the State Government which made the order
of detention and not P. V. Nayak in his individual capacity.
The representation made by the detenu against the order of
detention was also therefore required to be considered by
the State Government and either it could be disposed of by
P. V. Nayak acting for the State Government under the
earlier Standing order dated 18th July 1980 or the Minister
of State for Home could dispose it of under the later
Standing order dated 18th July 1980. Whether P. V. Nayak
considered the representation and disposed it of or the
Minister of State for Home did so would be immaterial, since
both had authority to act for the State Government and
wherever be the instrumentality, whether P. V. Nayak or the
Minister of State for Home, it would be the State Government
which would be considering and dealing with the
representation. The only requirement of Article 22 (5) is
that the representation of the detenu must be considered by
the detaining authority which in the present case is the
State Government and this requirement was clearly satisfied
because when the Minister of State for Home considered the
representation and rejected it, he was acting for the State
Government and the consideration and rejection of the
representation was by the State Government. There is no
requirement express or implied in any provision of the
COFEPOSA that the same person who acts for
294
the State Government in making the order of detention must
also consider the representation of the detenu. In fact, as
pointed out by Chinnappa Reddy, J. in Smt. Kavita v. State
of Maharashtra(l) a Government business can never get
through if the same individual has to act for the Government
in every case or proceeding or transaction, however
advantageous it may be to do so.” Moreover it would really
be to the advantage of the detenu if his representation is
not considered by the same individual but fresh mind is
brought to bear upon it. We do not therefore see any
constitutional or legal infirmity in the representation
having been considered by the Minister of State for Home.
The next contention of Mr. Jethmalani on behalf of the
petitioner was that there was nothing to show that the
decision to confirm the order of detention and continue the
detention of the detenu was taken by the State Government as
required by clause (f) of section 8 and hence the
continuance of the detention was invalid. lt is really
difficult to appreciate this contention urged on behalf of
the petitioner. It is clear from the annexures to the writ
petition that after receipt of the opinion of the Advisory
Board that there was in its opinion sufficient cause for the
detention of the detenu, the State Government in exercise of
the powers conferred under clause (f) of section 8, made an
order dated 23rd March 1981 confirming the detention order
and continuing the detention of the detenu. This order was
expressed to be made “By order and in the name of the
Governor of Maharashtra” and was authenticated by the Under
Secretary to the Government of Maharashtra Home Department.
It recited in so many terms that it was the State Government
which was confirming the order of detention and continuing
the detention of the detenu and no material has been placed
before us on behalf of the detenu to displace the
correctness of this recital. There can therefore be no doubt
that the ord r confirming the detention of the detenu was
made by the State Government. Moreover, we have the
statement on oath made by C. V. Karnik, Assistant Secretary
to the Government of Maharashtra, Home Department that “the
Government of Maharashtra thereafter under clause (f) of
section 8 of the said Act confirmed the said detention order
by an order dated 23rd March 1981.”
lt was then contended by Mr. Jethmalani on behalf of
the petitioner that under clause (b) of section 8 it as the
obligation of
295
the State Government to make a reference to the Advisory
Board A within five weeks from the date of detention of the
detenu and there was nothing to show that the State
Government had made such a reference to the Advisory Board.
This contention is also without substance and totally
futile, because it is clear from the statement of C. V.
Karnik in his affidavit that it was the State Government
which referred the case of the detenu to the Advisory Board
under clause (b) of section 8 and no material has been
placed before us on behalf of the detenu controverting the
correctness of this statement. Mr. Jethmalani also raised
another contention in this connection and it was that,
before making a reference to the Advisory Board, the State
Government had not applied its mind to the question whether
it was necessary to detain the detenu for a period longer
than three months and this non application of mind vitiated
the reference to the Advisory Board and the subsequent order
of confirmation following upon it. The argument of Mr.
Jethmalani was that it was only if the State Government
decided to detain a person for a period longer than three
months that it was required to refer the case of such person
to the Advisory Board and it was therefore necessary for the
State Government in every case of detention to apply its
mind and consider at least before making a reference to the
Advisory Board whether the detention was to be continued for
a period longer than three months. We are of the view that
this argument is not well founded and must be rejected. It
is clear that under clause (4) of Article 22 no law
providing for preventive detention can authorise the
detention of a person for a period longer than three months
unless the Advisory Board has reported before the expiration
of the period of three months that there is in its opinion
sufficient cause for such detention. This requirement of
clause (4) of Article 22 is satisfied by the enactment of
section 8 iq the COFEPOSA. Section 8 clause (b) provides
that in case of every detention the appropriate Government
shall, within five weeks from the date of detention, make a
reference to the Advisory Board and the Advisory Board is
required to make a report as to whether or not there is
sufficient cause for the detention of the detenu and submit
the same to the appropriate Government within eleven weeks
from the date of detention of the detenu. The period of
eleven weeks from the date of detention is prescribed for
the submission of the report obviously because under clause
(4) of Article 22 no detention can lawfully continue for a
period longer than three months unless the Advisory Board
has reported before the expiration of the period of three
months that there is in its opinion sufficient cause for
such detention. But one thing is clear that this provision
for reference to the Advisory Board is not confined to cases
where
296
the detaining authority has already come to a decision that
the detention shall be continued for a period longer than
three months. It applies equally where the detaining
authority has not yet made up its mind as to how long the
detention shall continue or even where the detention is to
continue for a period of three months or less. Whenever any
order of detention is made, whether the detention is to
continue for a period longer than three months or a period
of three months or less or the detaining authority has not
yet applied its mind and determined how long the detention
shall be continued, the appropriate Government is bound
within five weeks from the date of detention to make a
reference to the Advisory Board and if it fails to do so,
the continuance of the detention after the expiration of the
period of five weeks would be rendered invalid. The Advisory
Board is, in every such case where a reference is made,
required to submit its report within eleven weeks from the
date of detention and if it reports that there is in its
opinion no sufficient cause for detention the detaining
authority is bound to release the detenu forthwith, even
though a period of three months may not have expired since
the date of detention. This is a safeguard provided by the
COFEPOSA Act, which is applicable in all cases of detention,
whether the detention is to be continued beyond a period of
three months or not and whether or not the detaining
authority has applied its mind and determined, before making
a reference to the Advisory Board, as to what shall be the
period of detention. We are clearly of the view that it is
not at all necessary for the detaining authority to apply
its mind and consider at the time of passing the order of
detention or before making a reference to the Advisory
Board, as to what shall be the period of detention and
whether the detention is to be continued beyond a period of
three months or not. The only inhibition on the detaining
authority is that it cannot lawfully continue the detention
for a period longer than three months unless the Advisory
Board has, before the expiration of the period of three
months, reported that three is in its opinion sufficient
cause for such detention. We must therefore hold that the
State Government did not commit any breach of its
constitutional or legal obligation in making a reference to
the Advisory Board without first determining the period for
which the detenu was to be detained.
Mr. Jethmalani on behalf of the petitioner lastly
submitted that there was unreasonable delay on the part of
the State Government in considering the representation of
the detenu and this delay was fatal to the validity of the
continuance of the detention. This contention is also
without substance and must be rejected. It is no
297
doubt true that the advocate of the detenu sent nine copies
of the representation to the detenu on 6th February, 1981
and these nine copies came to be forwarded to various
authorities only on 10th February, 1981 but the affidavit of
B. B. Mulay, Jailer attached to the Bombay Central Prison,
shows that these nine copies were handed over by B. B. Mulay
to the detenu as soon as they were received by him from the
emissary of the detenu’s advocate and the detenu got B these
documents on the same day, namely 6th February, 1981. B. B.
Mulay asked the detenu to sign the representation and hand
over the same for being forwarded to the State Government
but the detenu stated that he would sign the representation
only after going through it and he therefore carried the
nine copies of the representation with him to the Nasik
Central Jail where he was shifted in the evening of 6th
February, 1981 and it was only on 10th February, 1981 that
he signed all the nine copies of the representation and
handed over the same to C. P. Gaekwad, Jailer, In-charge of
the Nasik Central Prison and according to the affidavit of
C. P. Gaekwad, these nine copies of the representation duly
signed by the detenu were forwarded to the respective
authorities on the same day. There was therefore no un-
reasonable delay on the part of the State authorities at
this stage.
Proceeding further we find that the representation sent
by the detenu was received in the Home Department of the
State Government on 13th February, 1981 and on the same day,
a letter was addressed by the Home Department to the
Collector of Customs calling for his remarks in regard to
the various allegations contained in the representation and
para-wise comments were received from the Customs Department
on 21st February, 1981. Now, it cannot be said that the
Government acted unreasonably in forwarding the
representation of the detenu to the Collector of Customs and
waiting for the para-wise comments of the Customs
Authorities, since there were various allegations made in
the representation which called for the comments of the
Customs Department and without such comments, the State
Government could not fairly and properly consider the
representation of the detenu. It may be noted that the
communication from the Home Department dated 13th February,
1981 could not have reached the Collector of Customs until
16th February, 1981 because 14th and 15th February were
Saturday and Sunday and therefore closed holidays. The reply
of the Customs Authorities which was received on 21st
February 1981 must have been despatched on 20th February and
therefore the Customs Authorities did not have more than
four or five days within which to give their comments in
regard to the various allegations contained in the repre-
298
sentation of the detenu and this time taken by the Customs
Authorities cannot be regarded as unreasonable. We do not
think that in these circumstances the State Government could
be said to be guilty of any unreasonable delay so far as the
period between 13th February and 21st February, 1981 is
concerned.
There was also no unreasonable delay after 21st
February, 1981. The affidavit of C. V. Karnik shows that the
representation of the detenu was immediately put up before
the Minister of State for Home for consideration, in the
light of the comments received from the Customs Authorities
and the representation was considered and rejected by the
Minister of State for Home on 23rd February, 1981 and
necessary intimation to that effect was conveyed to the
detenu by a letter dated 25th February 1981. It is
impossible to hold in these circumstances that there was any
unreasonable delay on the part of the State Government in
considering the representation of the detenu and this
contention of Mr. Jethmalani must be rejected.
These were all the contentions urged on behalf of the
petitioner and since there is no substance in them, the
petition fails and is dismissed.
S. R. Petition dismissed.
299