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IN THE HIGH COURT OF BOMBAY
(FULL BENCH)
A.M. Bhattacharjee, C.J., V.A. Mohta and V.P. Tipnis, JJ.
Kamleshkumar Ishwardas Patel.... Petitioner.
Versus
Union of India and others.... Respondents.
Criminal Writ Petition No. 284 of 1994, decided on 26-8-1994.
Advocates appeared :
M.G. Karmali with S.H. Sanjanwalla, Madhu M. Patel and Ms. A.M.Z. Ansari, for the petitioner.
R.M. Agarwal, for respondents Nos. 1 2.
Mrs. Ranjana Desai, P.P. with S.G. Page, G.P, for the respondents Nos. 3 4.
See Constitution of India, Articles 22 (4) and (5),
Articles 22 (4) and (4).
See National Security Act, 1980-Sections 3 (4) and 8 (I).
Articles 22 (4) and (5)-COFEPOSA Act. 1974, Section 11 -Prevention of Illicit Traffic in NDPS Act 1988, Section 12-General Clauses Act, 1897, Section 21-Detention-Order of-Revoking power .
In the National Security Act there is an express provision Section (4) in respect of orders made by the district Magistrate or the Commissioner of Police under Section 3 (3) and the district Magistrate or the Commissioner of Police who has made the order is required to forthwith report the fact to the State Government to which he is subordinate. The said provision further prescribes that no such order shan remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve day after making.
It is also the requirement of Section 3 (4) that the report should be accompanied by the rounds on which the order has been made and such other particulars as in the opinion of the said officer, have a bearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention.
The effect of the approval by the State Government is that from the date of such approval the detention is authorized by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approve. That appears to be the reason why Section 8 (1) envisages that the representation against the order of detention is to be, made to the State Government. The COPEPOSA Act and the PIT NDPS Act do not require the approval of an order made by the officer specially empowered by the State Government or by the Central Government. The order passed by such an officer operates on its own force. All that is required by Section 3 (2) of COFEPOSA Act and PIT NDPS Act is that the State Government shall within 10 days forward to the Central Government a report in respect of an order that is made by the State Government or an officer specially empowered by the State Government. An order made by the officer specially empowered by the State Government is placed on the same footing as an order made by the State Government became the report has to be forwarded to the Central Government in respect of both such orders. No such report is required to be forwarded to the Central Government in respect of an order made by an officer specially empowered by the Central Government. Requirement regarding forwarding of the report contained in Section 3 (2) of the COFEPOSA Act and the PIT ANDPS Act cannot, therefore, afford the basis for holding that an order made bean officer specially empowered by the Central Government or the State Government acquires deemed approval of that Government from the date of its issue. Approval actual or deemed, postulates application of mind to the action being approved by the authority giving approval. Approval of an order of detention would require consideration by the approving authority of the ground sand the supporting material on the basis of which the officer making the order had arrived at the requisite satisfaction for the purpose of making the order of detention. Unlike Section 3 (4) of the National Security Act there is no requirement in the COFEPOSA Act and the PIT NDPS Act that the officer specially empowered for the purpose of making an order of detention must forthwith send to the concerned Government the grounds and the supporting material on the basis of which the order of detention has been made. Nor is it prescribed in the said enactments that after the order of detention has been made by the officer specially empowered for that purpose the concerned Government is required to apply its mind to the grounds and the supporting material on the basis of which the order of detention was made. The only circumstance from which inference about deemed approval is sought to be drawn is that the order is made by the officer specially empowered for that purpose by the concerned Government. Merely because the order of detention has been made by the officer who has been specially empowered for that purpose would not, justify the inference that the said order acquires deemed approval of the Government that has so empowered him, from the date of issue of the order so as to make the said Government the detaining authority. By specially empowering a particular officer under Section 3 (2) of the COFEPOSA Act and the PIT NDPS Act the Central Government or the State Government confers an independent power of the said officer to make an order of detention after arriving at his own satisfaction about the activities of the person sought to be detained Since the detention of the person detained draws its legal sanction from the order passed by such officer, the officer is the detaining authority in respect of the said person. He continues to be the detaining authority so long as the order of detention remains operative. He ceases to be the detaining authority only when the order of detention ceases to operate. This would be on the expiry of the period of detention as prescribed by law or on the order being revoked by the officer himself or by the authority mentioned in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act. There is nothing in the provisions of these enactments to show that the role of the officer comes to an end after he has made the order of detention and that thereafter he ceases to be the detaining authority and the concerned Government which had empowered him assumes the file of the detaining authority. The Supreme Court is unable to construe the provisions of the said enactment of power on the officer who is specially empowered to pass the order. An indication to the contrary is given in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act which preserve the power of such officer to revoke the order that was made by him. This means that the officer does not go out of the picture after he has passed the order of detention. It must, therefore, be held that the officer specially empowered for the purpose continues to be the detaining authority and is not, displaced by the concerned Government after he has made the order of detention. Therefore, by virtue of his being the detaining authority he is required to consider the representation of the person detained against the order of detention.
Articles 22 (4) and 22 (5)-Scope of.
This provision Article 22 (5) has the same force and sanctity as any other provision relating to fundamental rights. (See: State of Bomb: y v. Atma Ram. Sridhar Vaidya, 1951. SCR 167 at p. 186) Article 22 (5) imposes a dual obligation on the authority making the order of preventing detention (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made and (11) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22 (5) thus proceeds on the basis that the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22 (5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief i.e. the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right in inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1987 though it does not flow from it. It can, there for., be said that Article 22 (5) postulates that the person deained has a right to make a representation against the order of detention to the authority making the order. In addition; such representation can be made to any other authority who is empowered by law to revoke the order of detention.
The Additional Solicitor General has urged that the representation envisaged by Article 22 (5) has to be made to the Advisory Board referred to in Article 22 (4) since the only right that has been conferred on the person detained is to have the matter of his detention considered by the Advisory Board. The Additional Solicitor General draws support from the words "making a representation against the order" in Article 22 (5) for this submission and contended that the use of the word "a" in singular indicates that only one representation is to be made and that representation has to be made to the Advisory Board because that is the only authority contemplated under the constitution which is required to consider such representation. Such a restricted meaning cannot be given to the words "making a representation against the order" in Article 22 (5) which is in the nature of a fundamental right affording protection to the person detained. As stated earlier, the object underlying the right to make a representation that is envisaged by Article 22 (5) is to enable the person detained to obtain immediate relief. If the construction placed by the Additional Solicitor Generalis accepted relief may not be available to the paten till the matter is considered by the Advisory Board and that would depend upon the time taken by the appropriate Government in referring the matter to the Advisory Board. Moreover, reference is required to be made to the Advisory Board only in cases where the period of detention is going to be longer than three months and it is not obligatory to make a reference to the Advisory Board if the period of detention is less than three months. In such a case right to make a representation under Clause (5) of Article 22 would be rendered nugatory. A construction which leads to such a result must be eschewed.
Article 22 (5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority Le. the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order detention and thereby give relief to the person detained. The right to make a representation carries with it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.
(1) Has the specially empowered officer under the COFEPOSA Act also an independent power to revoke the order of detention in view of section 11 of the COFEPOSA Act read with section 21 of the General Clauses Act?
(2) Are observations in (Amir Shad Khan v. L. Hminglana)1, A.I.R. 1991 S.C. 1983, regarding power of revocation of specially empowered officer under the COFEPOSA Act not binding on this Court?
(3) Does failure to take independent decision on revocation of order of detention by the specially empowered officer under the COFEPOSA Act and merely forwarding the same with recommendation to reject, result in non-compliance with constitutional safeguard under Article 22(5) of the Constitution.
2. We have heard very interesting arguments advanced by Mr. Karmali for the petitioner, by Mr. Agrawal for the Union of India and by Mrs. Ranjana Desai for the State of Maharashtra and while we have derived considerable assistance from them, we have never entertained any doubt throughout the course of the arguments that the answers to question No. 1 and also question No. 2 must be in the affirmative.
3. Article 22(5) categorically provides that when a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making an order shall, as soon as may be, communicate to such person the grounds on which the order has been made and "shall afford him the earliest opportunity of making a representation against the order". This clause does not specify as to whom the representation is to be made and how the representation is to be dealt with, but then as was pointed out by Chief Justice Kania as early as in 1950 in (A.K.Gopalan v. State of Madras)2, A.I.R. 1950 S.C. 27 at 41, a preventive detention law which does not make provision as regards these two points, cannot be challenged on that ground alone as being opposed to Article 22(5). The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act for short), while providing in section 3(3) for the communication to the persons detained in pursuance of a detention order of the grounds on which the order has been made, has not specified in so many words as to whom or to which authority a representation against the order is to be made by the detenu. Some other Acts, e.g. section 8 of the National Security Act, 1980, make specific provisions as to the authority to whom such a representation is to be made. But what has not been done expressly in the COFEPOSA Act has nevertheless been done impliedly or indirectly by the provisions of section 11 of the Act which provide for the Authorities which may revoke or otherwise modify a detention order and it would be trite to say that a representation can and must obviously be made to such Authorities empowered to revoke or modify the order, for their consideration as to whether the detention order warrants such revocation or modification.
4. If one goes by the mere letters of section 11 without reading it meaningfully, it may appear at the first blush that the only authorities which have been empowered to exercise the power of revocation or modification are the State Government and the Central Government. But section 21 of the General Clauses Act, 1897, which would even otherwise have applied to the provisions of the COFEPOSA Act ex proprio vigore, clearly, provides that the power to issue or make an order would include the power to amend, vary or rescind the order. Even though section 21 of the General Clauses Act would have applied on its own, section 11 of the COFEPOSA Act has taken anxious care to provide in the opening words of the section that empowerment of the State Government and the Centra
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