{"id":211565,"date":"1988-09-07T00:00:00","date_gmt":"1988-09-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-another-vs-smt-sushila-mafatlal-shah-on-7-september-1988"},"modified":"2017-10-25T07:52:28","modified_gmt":"2017-10-25T02:22:28","slug":"state-of-maharashtra-another-vs-smt-sushila-mafatlal-shah-on-7-september-1988","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-another-vs-smt-sushila-mafatlal-shah-on-7-september-1988","title":{"rendered":"State Of Maharashtra & Another vs Smt. Sushila Mafatlal Shah & … on 7 September, 1988"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Maharashtra & Another vs Smt. Sushila Mafatlal Shah & … on 7 September, 1988<\/div>\n
Equivalent citations: 1988 AIR 2090, \t\t 1988 SCR Supl. (2) 827<\/div>\n
Author: S Natrajan<\/div>\n
Bench: Natrajan, S. (J)<\/div>\n
           PETITIONER:\nSTATE OF MAHARASHTRA & ANOTHER\n\n\tVs.\n\nRESPONDENT:\nSMT. SUSHILA MAFATLAL SHAH & OTHERS\n\nDATE OF JUDGMENT07\/09\/1988\n\nBENCH:\nNATRAJAN, S. (J)\nBENCH:\nNATRAJAN, S. (J)\nSEN, A.P. (J)\n\nCITATION:\n 1988 AIR 2090\t\t  1988 SCR  Supl. (2) 827\n 1988 SCC  (4) 490\t  JT 1988 (3)\t646\n 1988 SCALE  (2)774\n\n\nACT:\n    Conservation  of  foreign  Exchange\t and  Prevention  of\nSmuggling  Activities  Act, 1974: Sections 2, 3,  8  &\t11--\nOfficer\t of State\/Central Government specially empowered  to\npass  detention orders--Whether obligated to  inform  detenu\nthat  he has three fold opportunity to make  representations\nto  himself, the State Government and  Central\tGovernment--\nWhether there is any distinction between order of  detention\npassed by Officer of State Government and Officer of Central\nGovernment.\n%\n    Constitution of India, 1950 Article 22(5)--Detenu has  a\nright\tto   make  representation  to  State   and   Central\nGovernment--No further right to make  representation to\t the\nofficer who has made order of detention.\n\n\n\nHEADNOTE:\n    The\t detenu, D.N. Shah, was caught on 23.10.1986 in\t the\nact of transporting ten gold biscuits of foreign origin.  On\n2.2.1987 D.N .Capoor, Officer on Special Duty and ex-officio\nSecretary  to the Government of Maharashtra, in exercise  of\nthe powers specially conferred upon him by the Government of\nMaharashtra, passed an order of detention against D.N.\tShah\nunder  section 3(1) of the COFEPOSA Act. In the\t grounds  of\ndetention served on the detenu he was informed that he had a\nright  to make a representation to the State  Government  as\nalso to the Government of India.\n^\n    The detenu's representation addressed to D.N. Capoor was\nforwarded  by the Superintendent, Central Prison,  Nasik  to\nthe State Government who rejected the same.\n    In\tMarch, 1987, the detenu's mother, respondent No.  1,\nfiled a petition in the High Court of Bombay challenging the\ndetention  order inter alia on the ground that the order  of\ndetention  having  been passed under section  3(1)  by\tD.N.\nCapoor in his capacity as a specially empowered person,\t the\ndetenu\thad a right to make a representation, in  the  first\ninstance, to D.N. Capoor himself as the detaining  authority\nbefore availing of his right to make further representation,\nand  failure to notify him of this right  in the grounds  of\ndetention  violated article 22(5) of the  Constitution.\t The\n\t\t\t\t\t\t  PG NO 827\n\t\t\t\t\t\t  PG NO 828\nHigh Court accepted this contention and quashed the order of\ndetention.\n    Before  this  Court the appellant  contended  that:\t (1)\nneither Article 22(5) of the Constitution nor the provisions\nof  the COFEPOSA Act afforded scope for holding that  if  an\norder  of  detention  was passed by  a\tspecially  empowered\nofficer of the State Government or the Central Government, a\ndifferent kind of procedure had to be followed in the matter\nof   affording\topportunity  to\t the  detenu  to  make\t his\nrepresentation\tagainst the order of detention, and (2)\t the\nHigh  Court was not right in holding that the detenu  had  a\nright to have his representation considered by the very same\nofficer who had passed the order of detention.\n    The respondent, on the other hand, contended that unlike\nother  Preventive  Detention  Acts  such  as  the   National\nsecurity  Act, etc. there was no provision in  the  COFEPOSA\nAct  for  confirmation\tby the Government  of  an  order  of\ndetention  passed  by a specially  empowered  officer  under\nsection\t 3(1) of the Act and as such the officer issuing  an\norder  of detention constituted the Detaining  Authority  of\nthe detenu.\n    Allowing the appeal, it was,\n    HELD:  (1) On the plain language of Article 22(5),\tthat\narticle does not provide material for the detenu to  contend\nthat  in addition to his right to make a  representation  to\nthe  State Government and the Central Government, he  has  a\nfurther\t right under Article 22(5) to make a  representation\nto  D.N.  Capoor  himself  as  he  had\tmade  the  order  of\ndetention. [835G-H; 836A]\n    (2) Even if an order of detention is made by a specially\nempowered  officer  of the Central Government or  the  State\nGovernment  as\tthe  case  may\tbe,  it\t is  the   concerned\nGovernment  that  would constitute the\tDetaining  Authority\nunder  the  Act and not the officer concerned who  made\t the\norder  of  detention,\tand it is for  that  Government\t the\ndetenu should be afforded opportunity to make representation\nagainst the detention order at the earliest opportunity,  as\nenvisaged under Article 22(5). and not to the officer making\nthe order of detention. [840E-G]\n    (3)\t Though\t by  reason  of\t Section  3(1)\ta  specially\nempowered officer is entitled to pass an order of detention,\nhis   constitutional  obligation  is  only  to\t Communicate\nexpeditiously  to  the detenu the grounds of  detention\t and\n\t\t\t\t\t\t  PG NO 829\nalso  afford him opportunity to make representation  to\t the\nappropriate government against his detention. [840G-H]\n    (4)\t Unlike\t in  other preventive  detention  acts,\t the\nCOFEPOSA Act does not provide for approval by the Central or\nState  Government of an order of detention passed by one  of\nits  duly empowered officers and, consequently, an order  of\ndetention passed by an officer acquired 'deemed approval' by\nthe Government from the time of its issue, and by reason  of\nit,  the  Government  becomes the  detaining  authority\t and\nthereby\t  constitutionally   obligated\t to   consider\t the\nrepresentation\t made by the detenu with utmost\t expedition.\n[843A-B]\n    (5)\t In view of the fact that the Act confers powers  of\nrevocation  only upon the State Government and\tthe  Central\nGovernment and no provision is made for an officer making an\norder  of  detention to exercise powers of  revocation,\t any\ninsistence  upon  the  officer making  the  detention  order\nconsidering the representation of the detenu himself will be\nnothing but a futile and meaningless exercise.\n    (6) Since it has been pointed out that a detention order\npassed\tby an officer having empowerment under the  COFEPOSA\nAct  to make an order of detention would also constitute  an\norder  of the Government by reason of deemed approval,\tthis\nCourt  cannot accept or sustain the view taken by  the\tHigh\nCourt  that a detenu had a right to have his  representation\nconsidered by the very same officer who had passed the order\nof detention. [844H; 845A-B]\n    Kavita  v. State of Maharashtra, [1982] 1 SCR 138;\tSmt.\nMasuma\tv. State of Maharashtra.<\/a> [1982] I SCR  288;  Santosh\nAnand  v. Union of India, [1981] 2 SCC 420; Pushpa v.  Union\nof India, [1980] Supp. SCC 391; Abdul Karim v. .State of  W.\nBengal,\t [1969]\t 3  SCR 479; John Martin v.  State  of\tWest\nBengal,<\/a>\t [ 1975] 3 SCC 836; Jayanarayan Sukul v .  State  of\nW.B.,  [1970]  3  SCC 225; Haradhan Shah v. State  of  W  B.\n[1975]\t3 SCC 198; Satpal v. State of Punjab, [1982]  1\t SCC\n12; Raj Kishore Prasad, [1982] 3 SCC 10; P.K. Chakraharty v.\nState of W. Bengal, [1970] 1 SCR 543; Abdul Sukkur v.  State\nof  West  Bengal<\/a>  [1973]  1 SCR 680;  Vimal  Chand  v.\tShri\nPradhan,<\/a> [l979] 3 SCK 1007; Tarachand v. State of Rajasthan,\nAIR  1980 SC 2133; N.P. Umrao v. B.B. Gujral,<\/a> [1979]  2\t SCR\n315;  Devji Vellabhai Tandal v. Administrator, [1982] 3\t SCR\n222; State of Bombay v. Purshottam Jog Nayak,<\/a> [1952] SCR 674\nand  King Emperor v. Vimal Bhai Deshpande. ILR\t1946  Nagpur\n651.\n\t\t\t\t\t\t  PG NO 830\n\n\n\nJUDGMENT:\n<\/pre>\n
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 480
\nof 1988.\n<\/p>\n
    From  the Judgment and Order dated 23\/24.7.1987  of\t the
\nBombay High Court in Crl. W.P. No. 356\/1987.
\n    Dr. Y.S. Chitale, A.M. Khanwilkar ad A.S. Bhasme for the
\nAppellants.\n<\/p>\n
    U.R.  Lalit,  V.N. Ganpule and S.K.\t Angihotri  for\t the
\nRespondents.\n<\/p>\n
    The Judgment of the Court was delivered by
\n    NATARAJAN, J. Leave granted.\n<\/p>\n
    Being more concerned with the law adumerated by the High
\nCourt  of Bombay rather than with the quashing of the  order
\nof  detention  passed  against a  detenu  by  name  Bhadresh
\nMafatlal Shah, son of respondent No. 1 herein, under Section
\n3(1) of the Conservation of Foreign Exchange and  Prevention
\nof  Smuggling Activities Act, 1974 (hereinafter\t called\t the
\nCOFEPOSA Act) the State of Maharashtra has filed this appeal
\nby special leave against the order of the High Court in Crl.
\nWrit  Petition No. 356 of 1987. The High Court\thas  quashed
\nthe order of detention on the ground that Shri D.N.  Capoor,
\nOfficer\t on  Special Duty and Ex-officio  Secretary  to\t the
\nGovernment  of\tMaharashtra,  Home  Department\t(hereinafter
\nreferred to as D . N .Capoor only) who had passed the  order
\nof  detention had only communicated to the detenu  that\t “he
\nhad a right to make a representation to the State Government
\nas  also  to the Government of India against  the  order  of
\ndetention” and had failed to communicate that “he had also a
\nright  to make a representation to the\tDetaining  Authority
\nhim-self”  the\tconstitutional\tsafeguards  and\t imperatives
\nunder  Article\t22(5) had been violated in as  much  as\t the
\ndetenu\t had   been  deprived  of  his\tright  to   make   a
\nrepresentation\tto  the Detaining Authority  himself  before
\navailing of his right to make further representation to\t the
\nState  Government and the Central Government. The  principal
\nchallenge  in  this  appeal is to  the\tproposition  of\t law
\nenunciated by the High Court.\n<\/p>\n
    We\tmay  now have a look at the facts.  On\t21.8.86\t the
\ndetenu\twas  caught  in the act\t of  transporting  ten\tgold
\nbiscuits  of  foreign origin. On 23.10.86 the  Collector  of
\nCentral\t Excise\t and Customs sent a proposal  to  the  State
\nGovernment  for action being taken against the detenu  under
\n\t\t\t\t\t\t  PG NO 831
\nthe  COFEPOSA Act and on 17.11.86 he furnished, in  response
\nto Government’s query, some additional information about the
\ndetenu.\t On 2.2.87 an order of detention under Section\t3(1)
\nof the COFEPOSA Act was passed by D.N. Capoor in exercise of
\nthe powers specially conferred upon him by the Government of
\nMaharashtra for the purpose of Section 3 of the Act. In\t the
\ngrounds\t of detention the detenu was informed that he had  a
\nright  to make a representation to the State  Government  as
\nalso  to  the  Government  of India  against  the  order  of
\ndetention. On 15.2.87 the order of detention as well as\t the
\ngrounds of detention were served on the detenu.
\n    On\t 14.3.87  the  detenu  preferred  a   representation
\naddressed  to  D.N.  Capoor  and it  was  forwarded  by\t the
\nSuperintendent, Central Prison, Nasik with a covering letter
\ndated  17.3.87\tto  the\t Government.  The  Government  after
\ncalling for remarks from the Assistant Collector of  Customs
\nand Central Excise, Pune rejected the representation of\t the
\ndetenu\tby  order  dated  3.4.87  and  the  said  order\t was
\ncommunicated   to   the\t detenu\t on   4.4.87   through\t the
\nSuperintendent of the Central Prison, Nasik.
\n    In\tthe meanwhile on 12.3.87 the case of the detenu\t was
\nreferred to the Advisory Board. On 8.5.87 the Advisory Board
\nconsidered  the detenu’s case and sent a  report  justifying
\nthe detention and thereafter the State Government  confirmed
\nthe  detenu’s  detention. In the month of  March,  1987\t the
\nfirst respondent being the Detenu’s mother, filed a petition
\nunder Article 226 of the Constitution before the High  Court
\nof Bombay for a writ being issued for the order of detention
\nbeing  quashed. Though several grounds were set out  in\t the
\nwrit  petition,\t they  were all given  up  and\tthe  counsel
\nappearing on behalf of the detenu confined the challenge  to
\nthe  validity of the detention\torder on one  ground  alone.
\nThe ground of attack was to the following effect:\n<\/p>\n
    “as the order of detention had been passed by D.N.Capoor
\nin  his\t capacity  as a person specially  empowered  by\t the
\nGovernment  of Maharashtra to issue the order  of  detention
\nunder  Section\t3(1) of the COFEPOSA Act, the detenu  had  a
\nright to make a representation to him in the first  instance
\nand  only  thereafter to make representation  to  the  State
\nGovernment  or to the Central Government if need be. In\t the
\ngrounds of detention the detenu had only been informed\tthat
\nhe  had\t a  right  to make a  representation  to  the  State
\n\t\t\t\t\t\t  PG NO 832
\nGovernment  as also to the Government of India\tagainst\t the
\norder of detention, but he had not been communicated that he
\nhad  also a right to make a representation to the  Detaining
\nAuthority  i.e. D.N. Capoor him-self. Failure to notify\t the
\ndetenu\tof  his\t right\tto  make  a  representation  to\t the
\nDetaining  Authority violated the constitutional  provisions
\nof Article 22(5) inasmuch as the detenu had been deprived of
\nhis  right  to\tmake a second representation  to  the  State
\nGovernment  in\tthe event of the  Detaining  Authority\tD.N.
\nCapoor rejecting his representation.\n<\/p>\n
    This contention found acceptance with the High Court and
\nthe High Court made the Rule absolute and quashed the  order
\nof  detention. The challenge in this appeal is not  only  to
\nthe  release  of  the detenu but to  the  principle  of\t law
\nformulated  by\tthe  High Court to set aside  the  order  of
\ndetention.\n<\/p>\n
    Before  proceeding further we may state for purposes  of
\nrecord,\t that  an attempt was made by the State\t before\t the
\nHigh  Court  that D.N. Capoor had not passed  the  order  of
\ndetention  solely in exercise of his powers as\ta  specially
\nempowered  officer  of\tthe State to  make  an\torder  under
\nSection\t 3(1)  but also as an officer authorised to  act  On
\nbehalf\tof  the Government under the Standing  Rules  framed
\nunder\tthe   Rules  of\t Business  of  the   Government\t  of
\nMaharashtra.   The  High  Court\t declined  to  accept\tthis
\ncontention  as there was no proof that D.N. Capoor had\tbeen
\nempowered  under the Standing Rules to act on behalf of\t the
\nGovernment  and furthermore the Central\t Government  counsel
\nhad  also conceded that no such authorisation had been\tmade
\nin  favour  of D.N. Capoor under the Rules of  Business.  No
\nattempt\t was made before us to dispute this finding  of\t the
\nHigh  Court and therefore the settled position is  that\t the
\ndetention order had been passed by D.N. Capoor solely in his
\ncapacity as an officer specially empowered by the Government
\nto  exercise powers under Section 3(1) of the  COFEPOSA\t Act
\nand not as one empowered to act on behalf of the  Government
\nunder  the  Rules  of Business.\t Therefore  what  falls\t for
\nconsideration  in  the appeal is whether by reason  of\tD.N.
\nCapoor having passed the order of detention only in exercise
\nof his special empowerment to act under Section 3(1) of\t the
\nAct and not in exercise of any right given to him under\t the
\nRules  of  Business  of\t the  Government,  he  was  under  a
\nconstitutional\tobligation  to\tcommunicate  to\t and  afford
\nopportunity  to\t the  detenu to\t make  a  representation  to
\nhimself in the\tfirst instance before the detenu availed  of
\nhis  right to make representations to the  State  Government
\n\t\t\t\t\t\t  PG NO 833
\nand the Central Government.\n<\/p>\n
    It was urged by Dr. Chitale on behalf of the State, that
\nneither Article 22(5) of the Constitution nor the provisions
\nof  the\t COFEPOSA Act afford scope for\tany  differentiation
\nbeing  made  between  an  order of  detention  passed  by  a
\nspecially  empowered officer of the State Government or\t the
\nCentral\t Government  as\t the case may be, and  an  order  of
\ndetention  passed  by the State Government  or\tthe  Central
\nGovernment itself, as the case may be, and for holding\tthat
\nif  an order of detention falls under the  former  category,
\nthe Constitution obligates a different kind of procedure  to
\nbe  followed in the matter of affording opportunity  to\t the
\ndetenu\tto  make his representations against  the  order  of
\ndetention. He also stated that the theory that a detenu\t had
\na  right to have his representation considered by  the\tvery
\nsame officer who had passed the order of detention has\tbeen
\nexploded  in  Kavita v. Maharashtra, [1982] 1 SCR  138\tSmt.
\nMasuma v. State of Maharashtra & Anr.,<\/a> [1982] 1 SCR 288\t and
\ntherefore  the High Court was not right in holding that\t the
\ndetenu\thad  such a right. He also urged that  if  the\tview
\ntaken  by the High Court was not corrected it would lend  to
\nseveral anomalies and even to the defeasance of the COFEPOSA
\nAct itself in certain situations.\n<\/p>\n
    Refuting  Dr.  Chitale’s contentions,  Mr.\tU.R.  Lalit,
\nlearned counsel appearing for the detenu stated that  unlike
\nin  other  Preventive Detention Acts such  as  the  National
\nSecurity  Act. etc., there is no provision in  the  COFEPOSA
\nAct  for  confirmation\tby the Government  of  an  order  of
\ndetention  passed  by an officer specially  empowered  under
\nSection\t 3(1)  of the COFEPOSA Act and as such\tthe  officer
\nissuing an order of detention under the Act constitutes\t the
\nDetaining  Authority of the detenu and hence  the  Detaining
\nAuthority  is under an obligation to afford  opportunity  to
\nthe detenu to make a representation to himself in the  first
\ninstance  before  the  detenu avails of his  right  to\tmake
\nrepresentation\tto  the\t State Government and  then  to\t the
\nCentral\t Government. Mr. Lalit relied upon the decisions  of
\nthis Court in Santosh Anand v. Union of India, [1981] 2\t SCC
\n420 and Pushpa v. Union of India, [1980] suppl. scc 391\t for
\nsustaining  the\t judgment  of the High\tCourt.\tYet  another
\nargument of Mr. Lalit was that since Article 22(5)  mandates
\nthe  affording of opportunity at the earliest point of\ttime
\nto  the\t detenu\t to  make his  representation,\tit  must  be
\ninterpretatively  construed that the Detaining Authority  is
\nunder  an  obligation to inform the detenu  and\t afford\t him
\nopportunity  to make a representation to the very  Authority
\nconcerned  and\tfailure to give such  an  opportunity  would
\n\t\t\t\t\t\t  PG NO 834
\namount\tto  a  denial to the detenu  of\t his  constitutional
\nrights.\n<\/p>\n
    We shall now examine the divergent contentions  advanced
\nbefore\tus  in greater detail. The questions that  fall\t for
\nconsideration may broadly be enunciated as under.
\n    (1)\t Does  an order passed by an officer  of  the  State
\nGovernment  or the Central Government,\tspecially  empowered
\nfor   the  purposes  of\t Section  3(1)\tby  the\t  respective
\nGovernment,  make  him the Detaining Authority and  not\t the
\nState  Government or the Central Government as the case\t may
\nbe,  and  obligate him to inform the detenu that  he  has  a
\nthree fold opportunity to make his representations i.e.\t the
\nfirst to  himself and the other two to the State  Government
\nand the Central Government.\n<\/p>\n
    (2)\t Whether for the purposes of the Act, there  is\t any
\ndifference  between  an\t order of  detention  passed  by  an
\nofficer\t of the State Government or the Central\t Government,
\nsolely\tin  exercise of the powers conferred  on  him  under
\nSection\t 3  by\tthe respective Government and  an  order  of
\ndetention  passed  by the State Government  or\tthe  Central
\nGovernment  as\tthe case may be through an  officer  who  in
\naddition  to  conferment of powers under Section 3  is\talso
\nempowered under the Standing Rules framed under the Rules of
\nBusiness  of  the  Government,\tto  act\t on  behalf  of\t the
\nGovernment:\n<\/p>\n
    (3)\t Whether  by  reason of the fact that  an  order  of
\ndetention is passed by an officer of the State Government or
\nthe  Central  Government specially empowered  to  act  under
\nSection\t 3  of the Act, a detenu acquires  a  constitutional
\nright  to  have his representation first considered  by\t the
\nvery  officer  issuing the detention order before  making  a
\nrepresentation\tto  the\t State Government  and\tthe  Central
\nGovernment.\n<\/p>\n
    The\t Constitution,\twhile recognising the  necessity  of
\nlaws   to  provide  for\t preventive  detention,\t  has\talso
\nprescribed  the\t safeguards  which should  be  observed\t for
\ndetaining  persons  without  trial under  laws\tenacted\t for
\nplacing persons under preventive detention. Article 22\tsets
\nout  the  imperatives that should be observed, but  for\t our
\npurpose, it is enough if Clause (S) of the Article is  alone
\nextracted. It is in the following terms.\n<\/p>\n
    “22(5).  When any person is detained in pursuance of  an
\norder made under any law providing for preventive detention
\n\t\t\t\t\t\t  PG NO 835
\nthe  authority\tmaking the order shall, as soon as  may\t be,
\ncommunicate  to such person the grounds on which  the  order
\nhas been made and shall afford him the earliest\t opportunity
\nof making a representation against the order.”
\nArticle 22(5) has been construed as under in Abdul Karim  v.
\nW. Bengal,<\/a> [1969] 3 SCR 479 at page 486.\n<\/p>\n
    “A\tperson detained under a law of preventive  detention
\nhas  a\tright  to obtain information as to  the\t grounds  of
\ndetention  and has also the right to make  a  representation
\nprotesting against an order of preventive detention. Article
\n22(5)  does not expressly say to whom the representation  is
\nto  be made and how the detaining authority is to deal\twith
\nthe  representation. But it is necessarily implicit  in\t the
\nlanguage of Art. 22(5) that the State Government to whom the
\nrepresentation\t is  made  should  properly   consider\t the
\nrepresentation\t  as   expeditiously   as   possible.\t The
\nConstitution of an Advisory Board under Section 8 of the Act
\ndoes  not  relieve  the\t State\tGovernment  from  the  legal
\nobligation  to consider the representation of the detenu  as
\nsoon as it is received by it. On behalf of the respondent it
\nwas  said that there was no express language in\t Art.  22(5)
\nrequiring    the   State   Government\tto   consider\t the
\nrepresentation\tof  the\t detenu.  But  it  is  a   necessary
\nimplication  of\t the language of Art. 22(5) that  the  State
\nGovernment  should consider the representation made  by\t the
\ndetenu\tas soon as it is made, apply its mind to it and,  if
\nnecessary,  take  appropriate action. In  our  opinion,\t the
\nconstitutional right to make a representation guaranteed  by
\nArt. ‘2(5) must be taken to include by necessary implication
\nthe  constitutional right to a proper consideration  of\t the
\nrepresentation by the authority to whom it is made.”\n<\/p>\n
    Vide also John Martin v. State of West Bengal,<\/a> [1975]  3
\nSCC 836 at 839; Jayanarayan Sukul v. State of W.B., [1970] 3
\nSCR  225 and Haradhan Saha v. State of W. B., [ 1975] 3\t SCC\n<\/p>\n
198.
\n    We\tcan, therefore, conclude without further  discussion
\nthat  on  the plain language of Article 22(5)  that  Article
\n22(5)  does not provide material for the detenu\t to  contend
\nthat  in addition to his right to make a  representation  to
\nthe  State Government and the Central Government, he  has  a
\nfurther\t right under Article 22(5) to make a  representation
\n\t\t\t\t\t\t   PG NO 836
\nto  D.N.  Capoor  himself  as  he  had\tmade  the  order  of
\ndetention.\n<\/p>\n
    Turning now to the COFEPOSA Act, the relevant provisions
\nto  be\tnoticed are Sections 2, 3, 8 and 11.  In  Section  2
\nwhich  is  the definition section,  the\t words\t“appropriate
\ngovernment”  and  “detention  order” have  been\t defined  as
\nunder:\n<\/p>\n
    “Section  2.  (a)  “appropriate  Government”  means,  as
\nrespects a detention order made by the Central Government or
\nby an officer of the Central Government or a person detained
\nunder such order, the Central Government, and as respects  a
\ndetention order made by a State Government or by an  officer
\nof a State Government or a person detained under such order,
\nthe State Government:\n<\/p>\n
    (b) “detention order” means an order made under  section
\n3″.\n<\/p>\n
    Section  3\tis the Section which confers powers  on\t the
\nCentral\t Government  and  the State Government\tto  make  an
\norder,\teither\tby  itself or through one  of  its  officers
\nhaving\tthe prescribed rank and specially empowered for\t the
\npurpose of the section by the Government to which he belongs
\nfor  detaining\ta person under\tpreventive  custody  without
\ntrial. The section reads as follows:\n<\/p>\n
      “Section 3 . ( 1) The Central Government or the  State
\nGovernment  or\tany officer of the Central  Government,\t not
\nbelow  the  rank of a Joint Secretary  to  that\t Government,
\nspecially empowered for the purposes of this section by that
\nGovernment, or any officer of a State Government, not  below
\nthe  rank  of  a Secretary  to\tthat  Government,  specially
\nempowered   for\t the  purposes\tof  this  section  by\tthat
\nGovernment,  may, if satisfied, with respect to\t any  person
\n(including a foreigner), that with a view to preventing\t him
\nfrom acting in any manner prejudicial to the conservation or
\naugmentation   of  foreign  exchange  or  with\ta  view\t  to
\npreventing him from–\n<\/p>\n
    (i) smuggling goods. or\n<\/p><\/blockquote>\n
    (ii) abetting the smuggling of goods, or\n<\/p><\/blockquote>\n
    (iii) engaging in transporting or concealing or  keeping
\nsmuggled goods, or
\n\t\t\t\t\t\t   PG NO 837\n<\/p><\/blockquote>\n
    (iv)  dealing  in  smuggled\t goods\totherwise  than\t  by
\nengaging      in  transporting\tor  concealing\tor   keeping
\nsmuggled goods, or\n<\/p><\/blockquote>\n
    (v) harbouring persons engaged in smuggling goods or  in
\nabetting the smuggling of goods,
\n    it\tis necessary so to do, make an order directing\tthat
\nsuch person be detained.<\/p><\/blockquote>\n
    (2)\t When  any  order of detention is made\tby  a  State
\nGovernment or by an officer empowerd by a State\t Government,
\nthe State Government shall, within ten days, forward to\t the
\nCentral Government a report in respect of the order.
\n    (3) For the purposes of clause (5) of article 22 of\t the
\nConstitution,  the  communication to a\tperson\tdetained  in
\npursuance  of a detention order of the grounds on which\t the
\norder  has been made shall be made as soon as may  be  after
\nthe detention, but ordinarily not later than five days,\t and
\nin exceptional circumstances and for reasons to be  recorded
\nin  writing, not later than fifteen days, from the  date  of
\ndetention.”\n<\/p>\n
    Section  8,\t which has been enacted to comply  with\t the
\nconstitutional\timperative  in\tArticle\t 22(4)\tenjoins\t the
\nCentral\t Government and the State Government  to  constitute
\none  or\t more Advisory Boards and  obligates  the  concerned
\ngovernment to refer to the Advisory Board the case of  every
\ndetenu ordered to be detained by the said government  within
\na  period of five weeks from the date of detention. For\t our
\npurposes  it would suffice if clause (b) of section 8  alone
\nis quoted. The clause reads as follows:\n<\/p>\n
    “Section 8(b)–Save as otherwise provided in Section  9,
\nthe appropriate Government shall, within five weeks from the
\ndate of detention of a person under a detention order make a
\nreference   in\trespect\t thereof  to  the   Advisory   Board
\nconstituted under clause (a) to enable the Advisory Board to
\nmake  the  report  under sub-clause (a)\t of  clause  (4)  of
\nArticle 22 of the Constitution.”\n<\/p>\n
    section  11\t which is the last  of the section requiring
\n\t\t\t\t\t\t   PG NO 838
\nnotice\t  per\t tains to the powers of revocation  of\tthe
\nState  Government or the\tCentral Government  as\tthe
\ncase may be. The relevant is in the following terms:\n<\/p>\n
    Section  11(1)–Without prejudice to the  provisions  of
\nSection\t 21  of the General Clauses Act, 1897,\ta  detention
\norder may, at any time, be revoked or modified–\n<\/p>\n
    (a)\t Notwithstanding that the order has been made by  an
\nofficer\t of a State Government, by that State Government  or
\nby the Central Government;\n<\/p>\n
    (b)\t Notwithstanding that the order has been made by  an
\nofficer of the Central Government or by a State\t Government.
\nby the Central Government.\n<\/p>\n
    (2 omitted)”
\n    On a reading of the abovesaid provisions, it may be seen
\nthat the power to detain a person under the Act has no; only
\nbeen  conferred\t on  the Central Government  and  the  State
\nGovernment but provision had also been made for the  Central
\nGovernment and the State Government to specially empower any
\nof its officers holding the minimum prescribed rank to\tpass
\nan order of detention under Section 3(1).\n<\/p>\n
    We\tmay  now examine the scheme of the Act\tand  have  a
\ncloser\tlook  at the provisions set out above  to  find\t out
\nwhether\t the Act provides for a differentiation\t being\tmade
\nbetween\t detention orders made by the Government  and  those
\nmade  by  specially empowered officers so as  to  confer  an
\nadditional  right of representation to detenus subjected  to
\ndetention  under  detention  orders falling  in\t the  latter
\ncategory.  At  the  outset,  it needs  no  saying,  that  in
\nGovernment  be\tit Central or State, has  to  function\tonly
\nthrough human agencies, viz. its officers and  functionaries
\nand that it cannot function by itself  as ar. abstract body.
\nSuch  being the case, even though Section 3(1) provides\t for
\nan  order  of  detention being made either  by\tthe  Central
\nGovernment or one of its officers or the State Government or
\nby  one\t of   its   officers,  an  order  of  detention\t has
\nnecessarily to be made\tin either of the situations only  by
\nan officer of the concerned Government. It is in  acceptance
\nof  this  position  we\thave to\t see  whether  an  order  of
\ndetention,  if\tpassed\tby  an\tofficer\t of  the  Government
\nspecially  empowered  under  Section 3(1)  but\tnot  further
\nempowered under the Rules of of the Government to act  would
\n\t\t\t\t\t\t   PG NO 839
\nhave  the  effect  of  making  the  concerned  officer\t the
\nDetaining Authority and not the concerned Government itself.
\nThe  answer  to the question has to be necessarily  in\t the
\nnegative for the following reasons. It has been specifically
\nprovided  in  Section 2(a) that irrespective of\t whether  an
\norder of detention is made by the Central Government or\t one
\nof its duly authorised officers, the “apropriate Government”
\nas  regard  the detention order and the detenu will  be\t the
\nCentral\t Government  only and likewise whether an  order  of
\ndetention  is made by a State Government or one of its\tduly
\nauthorised  officers the “appropriate Government”  would  be
\nthe State Government only as regards the detention order and
\nthe  detenu concerned. Secondly, irrespective of whether  an
\norder of detention is made by the State Government or by one
\nof its officers, the obligation to forward, within ten\tdays
\na  report to the Central Government in respect of the  order
\nis  cast  only upon the State Government.  Thirdly,  in\t the
\nmatter of making a reference of the case of a detenu to\t the
\nAdvisory  Board under Section 8(b), the duty of\t making\t the
\nreference  is  cast only on the Central\t Government  or\t the
\nState Government as the case may be, and not on the  officer
\nof  the\t Central Government or the State  Government  if  he
\nmakes  the  order  of detention in exercise  of\t the  powers
\nconferred  on  him under Section 3(1). Lastly,\tSection\t 11,
\nwhich  deals  with  the powers of revocation  of  the  State
\nGovernment   and  the  Central\tGovernment   provides\tthat
\nnotwithstanding that on order of detention had been made  by
\nan  officer  of\t a State  Government,  the  concerned  State
\nGovernment as well as the Central Government are entitled to
\nrevoke\tor modify the order of detention. Similarly, as\t per
\nClause\t(b) notwithstanding that an order of  detention\t has
\nbeen  made by an officer of the Clentral Government or by  a
\nState Government, the Central Government has been  empowered
\nto revoke or modify an order of detention. The Section\tdoes
\nnot  confer  any power of revocation on an  officer  of\t the
\nCentral or State Government nor does it empower the  Central
\nor  State Government to delegate the power of revocation  to
\nany  of\t its officers. We may further add that\teven  though
\nSection 11 specifies that the powers of revocation conferred
\non  the\t Central  Government\/State  Government\tare  without
\nprejudice  to  the provisions of Section 11 of\tthe  General
\nClauses\t Act, this reservation will not entitle a  specially
\nempowered officer to revoke an order of detention passed  by
\nhim  because  the order of the specially  empowered  officer
\nacquires   deemed   approval’  of  the\tState\tor   Central
\nGovernment, as the case may be, automatically and by  reason
\nof  such deemed approval the powers of revocation,  even  in
\nterms  of  Section 21 of the General Clauses Act  will\tfall
\nonly  within  the  domain of  the  State  Government  and\/or
\nCentral\t Government. In satpal v.state\tof Punjab, [1982]  1
\nSCC  12\t at page 17 the nature of the  power  of  revocation
\n\t\t\t\t\t\t   PG NO 840
\nconferred on the State and the Central Government came to be
\nconstrued  and the Court held that the power  of  revocation
\nconferred on the appropriate Government under Section 11  of
\nthe Act is independent of the power of cofirming or  setting
\naside  an  order of detention under Section  8(f).”  It\t was
\nfurther\t adumbrated  as follows. “The  power  under  Section
\n11(l)(b) may either be exercised  on information received by
\nthe  Central Government from its own sources including\tthat
\nsupplied  by  the State Government under Section  3(2),\t or,
\nfrom the detenu in the form of a petition or representation.
\nIt  is for the Central Government to decide whether or\tnot,
\nit  should  revoke the order of detention  in  a  particular
\ncase.  The use or the words ‘at any time’ under Section\t 11,
\ngives the power of revocation  an over-riding effect on\t the
\npower  of  detention under Section 3.”\t These\tobservations
\nwere made by the Court when considering the question whether
\na  detenu was entitled to concurrently make  representations
\nto  the State Government and the Central Government  against
\nan  order  of detention passed by the State  Government\t and
\nwhether\t in  such circumstances the State  Government  could
\ncontend\t   that\t the  question\tof  the\t Central  Government
\nconsidering  the representation would arise only  after\t the
\nState  Government  had\tconsidered  the\t representation\t and
\nrejected it.\n<\/p>\n
    Consequently,  the resultant position emerging from\t the
\nAct  is\t that  even if an order of detention is\t made  by  a
\nspecially  empowered  officer of the Central  Government  or
\nthe State Government as the case may be, the said order will
\ngive  rise to obligations to be fulfilled by the  Government
\nto  the\t same  degree  and extent to  which  it\t will  stand
\nobligated  if  the  detention order had\t been  made  by\t the
\nGovenment  itself. If that be so, then it is  the  concerned
\nGovernment  that  woud constitute  the\tDetaining  Authority
\nunder  the Act and not the  officer concerned who  made\t the
\norder of detention, and it is to that Government the  detenu
\nshould\tbe  afforded  opportunity  to  make   representation
\nagainst the detention order at the earliest opportunity,  as
\nenvisaged under Article 22(5) and not to the officer  making
\nthe  order  of detention in order to provide the  detenu  an
\nopportunity  to make a further representation to  the  State
\nGovernment and thereafter  to the Central Government if\t the
\nneed arises for doing so.  Though an order of detention. his
\nconstitutional\t  obligation   is   only   to\t communicate
\nexpeditiously  to the deter;u the grounds of  detention\t and
\nalso  afford him opportunity to make representation  to\t the
\nappropriate  Governments  against his  detention.  The\tonly
\nfurther\t duty  to be  performed thereafter is to  place\t the
\nrepresentation\tmade  by  the detenu  before  the  concerned
\nofficer\t or  the  Minister  empowered  under  the  Rules  of
\n\t\t\t\t\t\t   PG NO 841
\nBusiness of the Government to deal with such  representation
\nif  the detenu addresses his representation to\tthe  officer
\nhimself.\n<\/p>\n
    We\tmay  point  out\t that  unlike  in  other  Preventive
\nDetention   Acts   such\t as  the  National   Security\tAct,
\nMaintenance  of Internal Security Act, Preventive  Detention
\nAct etc. the COFEPOSA Act does not provide for any  approval
\nby  the\t Government of an order of detention  passed  by  an
\nofficer\t specially empowered to make a detention  order.  In
\nall the above said Acts, an order of detention passed by  an
\nofficer specially empowered under the Act will cease to have
\nforce  after  the expiry of the number\tof  days  prescribed
\nunder the relevant Act unless the said order is approved  by
\nthe  Government\t within that period. On\t the  contrary,\t the
\nCOFEPOSA  Act does not provide for the State  Government  or
\nCentral\t Government  passing  an order\tof  approving  of  a
\ndetention  order made by one of its officers  and  therefore
\nthe  detention order will continue to be operative  for\t the
\nfull period of detention unless the order is revoked by\t the
\nState Government or the Central Government or is quashed  by
\nthe  Court for any reason. This is an additional  factor  to
\nshow that an order of detention passed by an officer has the
\nsame force and status as an order of detention passed by the
\nGovernment itself and this could happen only if an order  of
\ndetention  made\t by  an officer is treated as  an  order  of
\ndetention  made by the Government itself,  although  through
\nthe instrumentality of an officer empowered under Section 3.
\n    It\tis  also relevant to clarify at\t this  juncture\t the
\nposition  as  regards  an order of detention  passed  by  an
\nofficer specially empowered under Section 3(1) vis-a-vis  an
\norder  of detention passed t y another officer\twho  besides
\nbeing  empowered to act under Section 3(1) i also  conferred
\nauthority  under the Rules of Busines of the  Government  to
\nact  on\t behalf\t of the Government this\t difference  in\t the
\nconferment of powers upon the officers falling under the two
\ncategories  can\t not have any impact on the  nature  of\t the
\ndetention  orders  respectively passed by them\tbecause\t the
\ncommon\tfactor\tentitling the officers falling\tin  the\t two
\nclasses is their empowerment under Section 3(1) of the\tAct.
\nWithout such empowerment an officer, even if he be empowered
\nto  act\t on  behalf of the Government  under  the  Rules  of
\nBusiness, cannot pass an order of detention against  anyone.
\nIf this position is realised. then it follows that there  is
\nno scope for contending that the deiention order made by  an
\nofficer\t empowered  to\tact under the  Act  but\t not  having
\nadditional  empowerment under the Rules of Business  of\t the
\nGovernment will not have the effect of making the Government
\nthe  detaining authority and instead would make the  officer
\n\t\t\t\t\t\t   PG NO 842
\nalone  the  detaining authority and by reason  of  it  stand
\nobligated  to  afford opportunity to the detenu\t to  make  a
\nrepresentation\tto himself before making his  representation
\nto  the State Government and the Central Government.  It  is
\nalso  relevant\tto  note  that the  Act\t confers  powers  of
\nrevocation  only upon the State Government and\tthe  Central
\nGovernment  and no  provision is made for an officer  making
\nan order of detention to exercise powers of revocation. When
\nsuch is the case, any insistence upon the officer making the
\ndetention order considering the representation of the detenu
\nhimself\t will  be  nothing  but\t a  futile  and\t meaningless
\nexercise. It will therefore, not be to the advantage of\t the
\ndetenu\tif  it were to be held that in all  cases  where  an
\norder  of  detenution  is passed  by an\t officer,  the\tvery
\nofficer\t should\t consider the representation  in  the  first
\ninstance  and  only thereafter the detenu can  approach\t the
\nState  Government and the Central Government.  Moreover,  if
\nfor  argument’s\t sake it is to be assumed  that\t an  officer
\npassing\t an order of detention is uder a duty to afford\t the
\ndetenu an opportunity to make a representation to himself in
\norder  to give relief to him, it may lead to  the  abuse  of
\npowers vested in the officer. The possibility of an  officer
\nmisusing  his  powers  and passing  an\torder  of  detention
\nagainst\t a  person  and then revoking it in  order  to\tseek
\nprofit\tfor  himself  or for other  ignoble  means,  however
\nremote\tit may be, cannot be ruled out. This aspect  of\t the
\nmatter has been touched upon in Raj Kishore Prasad, [1982] 3
\nSCC  10 and the Court which was dealing with the case  of  a
\ndetenu\tdetained under the Natioal Security Act has set\t out
\nthe need as to why a representation made by a detenu against
\nan  order of detention made by an officer of the  Government
\nshould be considered by the Government itself and not by the
\nofficer concerned. The relevant passage reads as follows:\n<\/p>\n
    “The contention is that constitutionally speaking a duty
\nis   cast  on  the  detaining  authority  to  consider\t the
\nrepresentation.\t That is of course true. But in view of\t the
\nscheme of the Act, Parliament has now made it obligatory  on
\nthe  appropriate Government to consider the  representation.
\nThis  is  done presumably to provide an effective  check  by
\nthe  appropriate  Government  on the exercise  of  power  by
\nsubordinate  officers  like the District Magistrate  or\t the
\nCommissioner  of  Police.  Therefore,  if  the\t appropriate
\nGovernment  has considered the representation of the  detenu
\nit  cannot  be said that there is contravention\t of  Article
\n22(5) or there is failure to consider the representation  by
\nthe detaining authority.”\n<\/p>\n
\t\t\t\t\t\t   PG NO 843
\n    We\thave  already  pointed\tout  that  unlike  in  other
\npreventive detention acts, the COFEPOSA Act does not provide
\nfor approval by the Central or State Government of an  order
\nof  detention passed by one of its duly\t empowered  officers
\nand,  consequently,  an\t order of  detention  passed  by  an
\nofficer\t acquiries ‘deemed appvoal’ by the  Government\tfrom
\nthe  time of its issue and by reason of it,  the  Government
\nbecomes the detaining authority and thereby constitutionally
\nobligated to consider the representation made by the  detenu
\nwith utmost expedition.\n<\/p>\n
    We shall now see whether there is any logic or  rational
\nbehind\tthe contention that since D.N. Capoor had  made\t the
\norder of detention, the detenu was entitled, as of right  to
\nmake a representation to the very same officer and have\t the
\nsame  considered  by him, in the first instance\t before\t the
\ndetenu availed of his right to make a representation to\t the
\nState  Government  and\tthen  if  need\tbe  to\tthe  Central
\nGovernment  also. The fallacy and  misconception  underlying
\nsuch a contention has been lucidly brought out in Kavita  v.
\nMaharashtra, [1982]  2 SCR 138 at 146 and again in Masuma v.
\nMaharashtra,<\/a> [1982]  1 SCR 288 at 293. The relevant  passage
\nin Kavita’s case reads as under:\n<\/p>\n
    “It\t  was  suggested  that\tit  would  have\t been\tmore
\nappropriate if the representation had been considered by the
\nvery  individual who had exercised his mind at\tthe  initial
\nstage of making the order of detention, namely the Secretary
\nto the Government, Shri Samant.There is no substance in this
\nsuggestion.  The  order of detention was not  made  by\tShri
\nSamant\tas  an\tOfficer of the\tState  Government  specially
\nempowered in that behalf but by the State Government  itself
\nacting\tthrough\t the  instrumentality  of  Shri\t Samant,   a
\nSecretary  to  Government  auhorised  to  so  act  for\t the
\nGovernment   under  the\t Rules\tof  Business.\tGovernmental
\nbusiness can never get through if the same individual has to
\nact  for  the Government at every stage of a  proceeding  or
\ntransaction,  however, advantageous it may be to do so.\t Nor
\ncan  it\t be said that it would be to the  advantage  of\t the
\ndetenu to have the matter dealt with by the same  individual
\nat  all\t stages. It may perhaps be to the advantage  of\t the
\ndetenu if fresh minds are brought to bear upon the  question
\nat different stages.\n<\/p>\n
    In Masuma’s case the same view has been expressed:
\n    “It\t was  the State Government which made the  order  of
\n\t\t\t\t\t\t   PG NO 844
\ndetention and not P.V. Nayak in his individual capacity. The
\nrepresentation\tmade  by  the detenu against  the  order  of
\ndetention  was also therefore required to be  considered  by
\nthe  State Government and either it could be disposed of  by
\nP.V.  Nayak  acting  for  the  State  Government  under\t the
\nearlier Standing Order dated 18th July, 1980 or the Minister
\nof  State  for\tHome could dispose it  of  under  the  later
\nStanding  Order\t dated 18th July. 1980. Whether\t P.V.  Nayak
\nconsidered  the\t representation and disposed it\t of  or\t the
\nMinister of State for Home did so would be immaterial, since
\nboth  had  authority  to act for the  State  Government\t and
\nwhatever  be  the  instrumentality, whether  P.V.  Nayak  or
\nthe  Minister  of  State for Home, it  would  be  the  State
\nGovernment  which  would  be considering  and  dealing\twith
\nthe  representation. The only requirement of  Article  22(5)
\nis that the representation of the detenu must be  considered
\nby the detaining authority which in the present case is\t the
\nState Government and this requirement was clearly  satisfied
\nbecause\t   when\t  the\tMinister   of\tState\t for\tHome
\nconsidered the representation and rejected it, he was acting
\nfor the State Government and the consideration and rejection
\nof   the  representation  was  by  the\t State\t Government.
\nThere is no requirement express or implied in any  provision
\nof   the  COFEPOSA  that  the  same  person  who  acts\t for
\nthe  State  Government\tin making  the\torder  of  detention
\nmust  also  consider the representation of  the\t detenu:  In
\nfact,  as pointed by Chinnappa Reddy, J. in Smt.  Kavita  v.
\nstate  of  Maharashtra,\t [1982]\t l  SCR\t 138  a\t  Government
\nbusiness can never get through if the same individual has to
\nact  for  the  Government in every  case  or  proceeding  or
\ntransaction.  however, advantageous it may be to do  so.  if
\nMoreover  it would really be to the advantage of the  detenu
\nif  his\t representation\t is  not  considered  by  the\tsame
\nindividual but fresh mind is brought to bear upon it. We  do
\nnot\t       therefore, see any constitutional  or  legal
\ninfirmity  in the representation having been  considered  by
\nthe Minister of State for Home.’
\n    Mr.\t Lalit\tsought\tto distinguish\tthese  decisions  by
\nsaying\tthat in\t both the cases the Secretary to  Government
\nissuing\t the order of detention had the authority to act  on
\nbehalf\tof the Government under the\tRules  of  Business
\nbut D.N. Capoor had no such authority. Since we have pointed
\nout  that  a  detention order passed by\t an  officer  having
\n\t\t\t\t\t\t   PG NO 845
\nempowerment  under  the\t COFEPOSA Act to make  an  order  of
\ndetention  would also constitute an order of the  Government
\nby  reason  of\tdeemed approval, we find  no  merit  in\t the
\ncontention of Mr. Lalit. The ratio in these cases would have
\nequal application to cases of the nature we have on hand.
\n    Leaving  aside for a moment the absence of any basis  in
\nlaw  or\t rationale for the contention that if  an  order  of
\ndetention  is made by a specially empowered officer  of\t the
\nGovernment,  the  detenu  acquires  a  right  to  have\t his
\nrepresentation considered in the first instance by the\tvery
\nsame officer and if he is not afforded such an\topportunity,
\nit  will  amount  to a\tdeprivation  of\t his  constitutional
\nrights,\t let us view the matter from a practical aspect\t and
\non  pragmatic  considerations. If an order of  detention  is
\nmade by a specially empowered officer and if by the time the
\nrepresentation of the detenu is received by him, the officer
\nis not there to consider the representation either by reason
\nof  his proceedinng on leave or falling sick or transfer  or
\nretirement  or being placed under suspension or death,\tthen
\nthe  inevitable consequence would be that the detenu has  to
\nbe  invariably set at liberty solely on the ground that\t his
\nrepresentation\thad  not been considered by  the  very\tsame
\nofficer\t who  had  passd  the order  of\t detention.  Can  we
\nconceive of such a situation or permit such consequences  to
\nfollow\twhen it is common knowledge that the services  of  a
\ngovernment  officer in the same post for any length of\ttime
\ncan never be guaranteed. As already stated, the officer\t may
\nfall sick or he may proceed on leave on other grounds or  he
\nmay  retire from service or he may be transferred  elsewhere
\ndue  to exigencies of service etc. If therefore, we  are  to
\nsustain\t the view taken by the High Court, it would lead  to
\nthe  position that even if an order of detention is made  on
\nvery valid and justifiable grounds by a specially  empowered
\nofficer,  the  sustainment of the order\t would\tdepend\tupon
\nextraneous  factors such as the officer not falling sick  or
\ngoing  on leave or retiring from service or being  transrred
\netc.  etc.  Surely,  the Act and  the  Constitution  do\t not
\nenvisage such situations. I. is because of these factors Dr.
\nChitale contended, and in our opinion very rightly, that  if
\nthe view of the High Court is to be accepted it would  often
\nlead  to  a defeasance of the COFEPOSA Act  itself  and\t the
\npurpose for which it was enacted.\n<\/p>\n
    We\twill  now consider the decisions relied\t on  by\t Mr.
\nLalit  for contending that the High Court has not  balzed  a
\nnew  trail  in\tholding\t that  since  D.N.  Capoor  was\t the
\ndetaining  authority  he  should have  communicated  to\t and
\nafforded   opportunity\t to   the   detenu   to\t  make\t the
\nrepresentation\tto  himself  in\t the  first  instance  while
\ninforming him that he had a right to make representations to
\n\t\t\t\t\t\t   PG NO 846
\nthe  State Government and the Central Government. The  first
\ntwo cases Jayanarain v. W. Bengal, [1970] 3 SCR 225 and P.K.
\nChakrabarty  v.\t W.  Bengal, [1970] 1 SCR   543\t were  cases
\npertaining  to detention orders passed under the  Preventive
\nDetention Act by District Magistrate empowered under the Act
\nto  pass  the  detention  orders.  In  both  the  cases\t the
\ndetention   orders  were  quashed on  the  ground  that\t the
\ngovernment    had   failed   to\t  consider   the    detenu’s
\nrepresentation expeditiously and instead had sought  umbrage
\nfor  its action on the ground it had awaited the opinion  of
\nthe  Advisory Board to which it had forwarded  the  detenu’s
\nrepresentation. While upholding the detenu’s contentions  in
\neach  of  the  two cases it was\t observed  in  passing\tthat
\n“though Clause 5 (of Article  22) does not in express  terms
\nsay  so\t it  follows  from its provisions  that\t it  is\t the
\ndetaining  authority  which has to give to  the\t detenu\t the
\nearliest opportunity to make representation and to  consider
\nit when so made …..\t” Abdus Sukkur v. The State of\tWest
\nBengal,<\/a> [1973] 1 SCR 680 was a case relating to a  detention
\norder  passed under the West Bengal (Prevention\t of  Violent
\nActivities) Act, by the District Magistrate,  Bardna.  Since
\nthe   State   Government   had\tfailed\t to   consider\t the
\nrepresentation\tmade by the detenu for a period of  27\tdays
\nwithout\t giving satisfactory explanation for the delay,\t the
\ndetention order was quashed. In so doing the Court  observed
\nthat   ‘the  requirement  about\t the  giving   of   earliest
\nopportunity to a detenu to make a representation against the
\ndetention  order  would plainly be reduced to  a  farce\t and
\nempty formality if the authority concerned after giving such
\nan   opportunity   pays\t  no   prompt\tattention   to\t the
\nrepresentation which is submitted by the detenu as a  result
\nof that opportunity.”\n<\/p>\n
    Vimal  Chand v. Shri Pradhan & Ors.,<\/a> [ 1979] 3 SCR\t1007
\nwas a case where an order of detention was passed under\t the
\nCOFEPOSA   Act by the Secretary, Government of\tMaharashtra,
\nHome  Department in exercise of the power conferred  on\t him
\nunder  Section\t3(1)  of the Act. The  detention  order\t was
\nquashed by this Court on the ground that the Government\t had
\nfailed to consider the detenu’s representation expeditiously
\nand    instead\t had   postponed   consideration   of\t the
\nrepresentation\ttill  the report of the Advisory  Board\t was
\nreceived.  In\tthe Course of the judgment it  was  observed
\nthat the detenu must be afforded the earliest opportunity of
\nmaking\ta representation would be rendered illusory  “unless
\nthere  is  a  corresponding  obligation\t of  the   detaining
\nauthority  to consider the representation of the  detenu  as
\nearly as possible.”\n<\/p>\n
    In Tarachand v. State of Rajasthan, AIR 1980 SC 2133 the
\n\t\t\t\t\t\t   PG NO 847
\ngrievance of the detenu detained under the COFEPOSA Act\t was
\nthat he had sent representations to the detaining  authority
\nviz.\n<\/p>\n
    The\t State\t Government and the  Central  Government  on
\n23.2.1980 but there was a delay of 1 month and 5 days in his
\nrepresentation\treaching the State Government and even\tthen
\nthe   State   Government   had\tfailed\t to   consider\t his
\nrepresentation\tand  pass orders. While\t striking  down\t the
\ndetention order the Court observed that “it is well  settled
\nthat  in case of preventive detention of a citizen,  Article
\n22(5) of the Constitution enjoins that the obligation of the
\nappropriate Government or of the detaining authority  (State
\nGovernment in that case) to afford the earliest\t opportunity
\nto make a representation and to consider the  representation
\nspeedily.”\n<\/p>\n
    The attempt of Mr. Lalit was to highlight the  reference
\nto the\t“detaining authority” in the general observations in
\nthe abovesaid cases by taking them out of their context\t and
\nbuild up an argument that in all those decisions it has been
\nlaid down that there is a constitutional obligation on every
\ndetaining  authority to afford opportunity to the detenu  to
\nmake  a\t representation to the detaining  authority  himself
\nbefore\tmaking representations to the State  Government\t and
\nthe  Central  Government.  In order to point  out  the\tmis-
\nconception  in the argument of Mr. Lalit we have set out  in
\nbrief  the  facts  of  each  case  as  well.  There  was  no
\ncontroversy in any of those cases as to whether the detenu’s
\nrepresentation\tshould have been considered by\tthe  officer
\npassing the order of detention or by the Government. On\t the
\nother  hand  the challenge made in all those  cases  to\t the
\ndetention  orders was on the ground there had been delay  or
\nfailure\t  on  the  part\t of  the  concerned  Government\t  in
\nconsidering  the representation. The observations  in  these
\ndecisions,  therefore,\tdo  not have any  relevance  to\t the
\ndebate in this case.\n<\/p>\n
    We then come to two other decisions of this Court  which
\napparently lend support to Mr. Lalit’s contention. The\tmore
\ndecisive  one is Santosh Anand v. Union of India,  L1981]  2
\nSCC  420.  In that case an order of detention  made  by\t the
\nChief Secretary, Delhi Administration, acting as an  officer
\nspecially empowered under Section 3 of the COFEPOSA Act\t was
\nchallenged  on two grounds, viz. (a) that it was  obligatory
\nupon the detaining authority (Administrator) to consider the
\nrepresentation\tbefore sending it to the Advisory Board\t and\n<\/p>\n
(b)  that in any event the detenu’s representation ought  to
\nhave been considered and rejected by the detaining authority
\nitself, namely, by the Chief Secretary but the same had been
\nstraight away considered and rejected by the  Administrator,
\nwho under Section 2(f) of the Act was  the State  Government
\n\t\t\t\t\t\t   PG NO 848
\nfor the Union Territory of Delhi, thus depriving the  detenu
\nof  his\t remedy to approach the Administrator  as  a  higher
\nauthority  after the rejection of his representation by\t the
\ndetaining authority.\n<\/p>\n
    The Court came to the view “that the continued detention
\nof the\tdetenu under the order dated April 3, 1979 is liable
\nto  be\tquashed on the second ground about which  facts\t are
\nclear and there is no difficulty in accepting the same.” The
\nCourt further held as follows:\n<\/p>\n
    “Under  Article 22(5), as interpreted by this Court,  as
\nalso  under the provisions of Section 11 of the COFEPOSA  it
\nis  clear that a representation should be considered by\t the
\ndetaining  authority,  who on a\t consideration\tthereof\t can
\nrevoke\tthe  detention order and if  the  representation  is
\nrejected by the detaining authority it is open to the detenu
\nto approach the State Government for revocation of the order
\nand  failing that it is open to him to approach the  Central
\nGovernment to get the detention order revoked.”\n<\/p>\n
    The Court further observed as follows:\n<\/p>\n
    “It\t is  thus very clear to us that\t the  representation
\ncould be said to have been considered by the Chief Secretary
\nat  the\t highest but he did not take the decision to  reject
\nthe  same  himself  and for that  purpose  the\tpapers\twere
\nsubmitted  to the Administrator who ultimately rejected\t the
\nsame.  There  is no affidavit filed by the  Chief  Secretary
\nbefore\tus stating that he had rejected\t the  representation
\nThe  representation  was,  therefore, not  rejected  by\t the
\ndetaining authority and as such the constitutional sateguard
\nunder Article 22(5), as interpreted by this Court, cannot be
\nsaid to have been strictly observed or complied with.”\n<\/p>\n
    The\t next decision is Pushpa v. Union of  India,  [1980]
\nSuppl  SCC 391. The decision was rendered by a single  judge
\nconstituting the Vacation  Bench of the Supreme Court.\tThat
\nwas  also a case of a detenu under the COFEPOSA Act  against
\nwhom  an  order of detention had been passed  by  the  Chief
\nSecretary  to  the Delhi Administration\t who  was  specially
\nempowered  under  Section 3 of the Act.\t The  detention\t was
\nchallenged on the ground that the representation sent by the
\ndetenu\thad been considered by the Chief Secretary  himself,
\nthough\the was not  Competent to reject\t the  representation
\nand the representation had not been considered and  rejected
\nby  the appropriate Government viz. the\t Administrator.\t The
\nCourt rejected the contention and held as follows:\n<\/p>\n
\t\t\t\t\t\t   PG NO 849
\n    “There  is\tnothing in the scheme of Article 22  or\t the
\nprovisions   of\t the  COFEPOSA\twhich  requires\t  that\t the
\nrepresentation\t ought\talways\tto  be\tconsidered  by\t the
\nappropriate  Government\t notwithstanding the fact  that\t the
\norder  of  detention has been made by an  officer  specially
\nempowered  in that behalf. Undoubtedly the power  to  revoke
\nthe  detention\torder under Section 11 is conferred  on\t the
\nState  Government  and the Central  Government\twhenever  an
\norder  of  detention  is made by an  officer  of  the  State
\nGovernment  but\t that  does  not  imply\t that  the   initial
\nrepresentation which a detenu has a right to make after\t the
\ngrounds of detention are furnished to him, must of necessity
\nbe made and considered by the State Government. In fact, the
\nrepresentation\tcan  and ought to be made to  the  detaining
\nauthority because it is he who has to apply his mind to\t the
\nfacts of the case and it is he who has furnished the grounds
\nof  detention on which he has acted and it is he who has  to
\nbe convinced that the action taken by him is unjustified and
\nrequired  reconsideration.  After  all\tthe  purpose  of   a
\nrepresentation\tis to convince the authority  to  reconsider
\nits  decision  which has resulted in the  detention  of\t the
\ndetenu.\t The representation is not in the form of an  appeal
\nto the higher authority and, therefore ipso facto it must go
\nto the State Government. Undoubtedly it would be open to the
\ndetenu to make a representation under Section 11  requesting
\neither\tthe State Government or the Central  Government,  as
\nthe  case may be, to revoke the order of detention. But\t the
\ninitial representation that a detenu has a right to make  on
\nreceipt\t of  the grounds of detention  would  ordinarily  be
\naddressed  to  the detaining authority because\tit  is\tthat
\nauthority  which has taken a decision adverse to the  detenu
\nand  which  has\t to be persuaded to  re-consider  the  same.
\nTherefore,  if\tthe detenu made the  representation  to\t the
\nthird  respondent who had passed the detention order it\t was
\nopen to him to consider the same and after applying his mind
\nto  accept  or reject the same. The failure  to\t submit\t the
\nrepresentation\taddressed  to the  detaining  authority\t and
\nconsidered  by\thim,  to the  State  Government,  would\t not
\nvitiate the detention order.”\n<\/p>\n
\t\t\t\t\t\t   PG NO 850
\n    Though  these  authorities lend apparent  force  to\t the
\ncontentions of Mr. Lalit we are of the view that they cannot
\nbe  taken as decisive pronouncements on the question of\t law
\nraised for consideration before us.\n<\/p>\n
    In\tSantosh\t Anand’s case (supra) the challenge  to\t the
\norder  of  detention was on the grounds and this  aspect  of
\nthe  matter  has been noticed in Raj  Kishor  Prasad’s\tcase
\n(supra),  while\t differentiating the  decision.\t The  Bench,
\nhowever,  did  not  go\tfurther\t into  the  matter  for\t not
\nfollowing the ratio in Santosh Anand’s case (supra)  because
\nit  was dealing with an order of detention passed under\t the
\nNational  Security  Act\t and  Section  8  of  the  said\t Act
\nspecifically  provided\tthat the detenu\t  must\tbe  afforded
\nopportunity  at\t the  earliest\tpoint  of  time\t to  make  a
\nrepresentation\tto  the appropriate Government\tand  to\t the
\ndetaining  authority. Apart from this fact we have to  point
\nout  that  we do not find any material to  substantiate\t the
\nview  taken  by\t the  Bench  that  Article  22(5)  has\tbeen
\ninterpreted  by the Court and furthermore Section 11 of\t the
\nCOFEPOSA  Act  envisages  that a  representation  should  be
\nconsidered   by\t  the\tdetaining  authority,\twho   on   a
\nconsideration  thereof can  revoke the\tdetention order\t and
\nif the representation is rejected by the detaining authority
\nit  is open to the detenu to approach the  State  Government
\nfor  revocation of the order etc. etc. On the  contrary,  it
\nhas  been held by a Bench of three judges in N.P.  Umrao  v.
\nB.B.  Gujral,<\/a>  [197912\tSCR 315 at page\t 321  that  “it\t is,
\ntherefore,   well-settled   that  in  case   of\t  preventive
\ndetention of a citizen, the Constitution by Article 22(5) as
\ninterpreted  by this Court, enjoins that the  obligation  of
\nthe   appropriate  Government  to  afford  the\tdetenu\t the
\nopportunity  to make a representation and to  consider\tthat
\nrepresentation is distinct from the Government’s  obligation
\nto constitute a Board and to communicate the  representation
\namongst other materials, to the\t Board to enable it to\tform
\nits opinion and to obtain such opinion.” It is pertinent  to
\nnote  that in that case the order of detention was  made  by
\nthe  Additional\t Secretary  to\tthe  Government\t of   India,
\nMinistry of Finance (Department of Revenue) but even so\t the
\nCourt held that the Government was the appropriate authority
\nto  consider the representation made by the detenu  and\t the
\nGovernment  had fulfilled its constitutional  obligation  in
\nthat  behalf.  Besides\twe have already\t pointed   out\tthat
\nSection\t  11 confers powers of revocation only on the  State
\nGovernment  and the Central Government and the Act does\t not
\nenvisage  or contemplate an officer of the State  Government
\nor the Central Government passing an order of detention also
\nexercising  powers of revocation. We must,  therefore,\thold
\nthat  the  decision in Santosh\tAnand’s\t case  (supra)\tmust
\nstand  confined to the facts of that case and  it cannot  be
\n\t\t\t\t\t\t   PG NO 851
\ntreated\t as  one  in which a principle\tof  law\t of  general
\napplication in all cases has been enunciated. In fact we may
\nappositely refer in this connection to a decision by a Bench
\nof three Judges of this Court in Devji Vellabbhai Tandal  v.
\nAdministrator, [1982] 3 SCC 222 where it was held that it is
\nonly  the administrator in the Union Territory of Delhi\t who
\nis  entitled to consider the representation of a detenu\t and
\nreject\tthe same or accept the same and revoke the order  of
\ndetention. The pronouncement in this case, being one made by
\na Bench of three Judges, carries with it more binding  force
\nthan the view taken in Santosh Anand’s case.
\n    Turning  now  to  Pushpa’s\tcase,  apart  from  being  a
\njudgment  rendered  by\ta  single  judge  constituting\t the
\nVacation Bench of the Court, can be distinguished on  facts.
\nThe  two representations made by the detenu, in\t that  case,
\none through an advocate and the other by the detenu  himself
\nwere  both  addressed  to the Chief  Secretary\thimself\t and
\nsecondly  no  representation was made by the detenu  to\t the
\nappropriate  Government.  These factors had  influenced\t the
\nCourt to hold that the Chief Secretary had acted within\t his
\ncompetence  in considering the representation  addressed  to
\nhim and in rejecting the same and that if the detenu had any
\ngrievance  he  should have moved the State  Govenment  under
\nSection\t 11  to\t invoke its powers of  revocation.  In\tsuch
\ncircumstances  this decision cannot also be treated  as\t one
\nhaving precedential value.\n<\/p>\n
    In\tthe light of our discussion our answer to the  three
\nposers\tformulated  earlier has to be in the  negative.\t It,
\ntherefore, follows that we cannot accept or sustain the view
\ntaken by the High Court for quashing the order of  detention
\npassed against the detenu.\n<\/p>\n
    Having settled the position of law, it only remains\t for
\nus  to\tconsider whether the order of  detention  should  be
\nrestored and the detenu sent back to custody. On this aspect
\nof the matter Mr. Lalit fervently pleaded that this was\t not
\na  case where the ends of justice required the detenu  being
\narrested and placed in custody for the rest of the period of
\ndetention.  He\tstated that the detenu was a  young  boy  of
\n19\/20  years and that he had already been in custody  for  5
\nmonths\tand  3 weeks. It was further stated by him  that  no
\nadverse\t information  against  the detenu had  come  to\t the
\nnotice of the authorities after he was set at liberty by the
\nHigh Court. In such circumstances Mr. Lalit pleaded that the
\nCourt  may allow the appeal by the State only in so  far  as
\nthe  settlement of the question of law is concerned and\t not
\ngoing to the extent of ordering the re-arrest of the detenu.
\nIn  support  of his submission the  learned  counsel  placed
\n\t\t\t\t\t\t   PG NO 852
\nreliance on State
\nof  Bombay  v. Purshottam Jog Nayak,<\/a> [1952] SCR\t 674,at\t 676
\nwhere the Court, following the precedent in King Emperor  v.
\nVimal  Bhai Deshpande, ILR 1946 Nagpur 651 at 655  proceeded
\nto  decide the appeal after making it clear that  the  State
\nshall  not  in\tany event re-arrest the\t detenu\t B  who\t had
\nearlier\t been  detained under Section 3\t of  the  Preventive
\nDetention Act of I950. Dr. Chitale had no serious  objection
\nto the Court following the same procedure in this case.\t We,
\ntherefore  direct that notwithstanding our holding that\t the
\nHigh  Court was in error in quashing the order of  detention
\nmade  against  the detenu, he will not\tbe  re-arrested\t and
\nplaced in custody for the rest of the period of detention.
\n    In the result the appeal is allowed and the judgment and
\norder  of  the High Court are set aside\t but,  however,\t the
\ndetenu’s release will not be effected.\n<\/p>\n
     R. S . S .\t\t\t\t     Appeal allowed.\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Maharashtra & Another vs Smt. Sushila Mafatlal Shah & … on 7 September, 1988 Equivalent citations: 1988 AIR 2090, 1988 SCR Supl. (2) 827 Author: S Natrajan Bench: Natrajan, S. (J) PETITIONER: STATE OF MAHARASHTRA & ANOTHER Vs. RESPONDENT: SMT. SUSHILA MAFATLAL SHAH & OTHERS DATE OF JUDGMENT07\/09\/1988 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-211565","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Maharashtra & Another vs Smt. 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