M. Arumugam vs Joint Secretary to Government of India and Another

Arunachalam, J.—The petitioner himself is the detenu. The prayer in this writ petition is for the issue of a habeas for the production of the

petitioner before a this Court, to be set free after quashing the impugned order of detention dated 8th May, 1991 passed by the first respondent in

exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as

amended) with a view to preventing him from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping

smuggled goods.

The facts which led to the passing of the impugned order of detention will have to be stated:- Acting on intelligence, on 27.4.1991, the Officers

of the Directorate of Revenue Intelligence, Madras, after keeping a watch, surprised the occupants, of Room No. 36, in Poornima Lodge, situated

at No. 278, N.H. Road, Coimbatore. The detenu and two others were present in the said room. Hussain, who was present along with the detenu,

had occupied the room in the assumed name of Babu of Kanjikodu. On search of the said room two packets containing gold bars with foreign

markings kept behind the mirror in the space between the mirror and the wall were recovered. One packet was found to contain three gold bars

while the other packet had four goldbars inside it. The Manager of the lodge confirmed that Hussain had occupied the room in the name of Babu

Jabir, the other person, came to the room after Hussain had occupied the room and thereafter the detenu joined them. None of these three

persons, who were found in the room, had any documents to show licit import of the 7 gold bars seized. The total weight of the seven gold bars

was 816.850 gms., the value being Rs. 3,00,400/-. Confessional statements were recorded from Hussain, Jabir and the detenu. The detenu stated

that he was dealing in old gold jewellery having his shop situated at 34, T.K. Market, Coimbatore. He came into contact with one Jothi, who had

interest in doing business in smuggled gold. A week earlier Jabir contacted him over phone and wanted disposal of gold bars of foreign origin, in

his possession. He met Jabir, received two gold bars, sold them through brokers and handed over the sale proceeds to Jabir. He derived a profit

of Rs. 500/- in the transaction. Thereafter on 27.4.1991, it was Jabir, who instructed him to go over to Poornima lodge to facilitate handing over of

gold bars for disposal.

A search of the residence and shop of the detenu did not yield anything incriminating. Arrest followed, and the detenu was produced before the

Chief Judicial Magistrate, Coimbatore on 29.4.1991. After follow up action, the impugned order of detention was clamped.

Though several grounds of challenge, have not only been taken in the affidavit filed in support of the writ petition, but also stressed before us,

Mr. K.A. Jabbar learned Counsel representing the petitioner strenuously focussed for our consideration one salient ground, which, according to

him, may be sufficient for the disposal of this writ petition. The ground framed is as follows:-

The detenu forwarded a representation dated 1.6.1991 to the detaining authority who is the joint Secretary to the Government of India, Ministry of

Finance, Department of Revenue, New Delhi, through Superintendent of Central Prison, Coimbatore."" ""The said representation was not disposed

of by the detaining authority; it has been disposed of by the Central Government alone, though the detenu had been informed in the order of

detention, that he had a right to make a representation to the detaining authority, the Central Government and the Advisory Board. Non-

consideration of the representation by the detaining authority was in total disregard of the right conferred on the detenu, by Article 22(5) of the

Constitution of India, read with Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, and on that sole

ground, the order of detention would be liable to be quashed.

Explaining the ground, Mr. Jabbar further urged that the power of the Officer of the State or Centra Government to rescind the order of detention

was preserved by Section 21 of the General Clauses Act to which reference has been made in Section 11 [of the ] of the COFEPOSA Act.

Revocation of detention orders by the State and Central Government, u/s 11 [of the] Act, was without prejudice to the provisions of Section 21 of

the General Clauses Act. He placed reliance upon certain decisions, which we will refer to, in the appropriate context.

Mr. T. Srinivasamoorthy, learned Additional Central Government Standing Counsel, while resisting the contention of Mr. K.A. Jabbar

contended, that the representation of the detenu had several prayers. The need or otherwise of compliance of the prayers rested with different

authorities and therefore each authority had to deal with a particular part of the representation, and hence when the representation was omnibus in

character, the plea put forward on behalf of the detenu, should be rejected as one without merit. Expatiating his contention, he pointed out, that the

detenu had asked for supply of certain documents with Tamil translation, which could be made only by the detaining authority. He had also asked

for a personal hearing before the Advisory Board which request had to be complied with, only by the Advisory Board. Hence the representation

of the detenu cannot be deemed to be one u/s 11 of the Act. He then contended, that the provisions of the Act, do not confer any power of

revocation on an officer of the Central or State Government, nor did it empower the Central or State Government to delegate the power of

revocation to any of its officers. Hence the representation even if it was received by the Officer of the Central Government or State Government,

he was bound to pass on the representation to the concerned Officer or the Minister empowered by the Rules of Business, for suitable disposal.

He cannot himself dispose of the representation, since the Government concerned would constitute ''detaining authority'' under the Act. The

learned Central Government Standing Counsel also relied upon some decided cases to substantiate his contention. Those decisions will be referred

to a little later.

To appreciate the contention of Mr. Jabbar, Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act

and Section 21 of the General Clauses Act need extraction.

Section 11: Revocation of detention orders:- (i) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1987)

a detention order may, at any time, be revoked or modified:-

a. notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government;

b. notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.

(2) The revocation of a detention order shall not bar the making of another detention order u/s 3 against the same person.

Section 21 of the General Clauses Act reads thus:-

Power to issue to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws:- Where, by any Central Act or

Regulation, a power to issue notifications, orders rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner

and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notification orders, rules or bye- laws so issued.

A reading of Section 11 of the Act shows, that the detention order may at any time be revoked or modified, notwithstanding the order having been

made by an officer of the State Government, by that State Government or by the Central Government. Equally even if an order of detention had

been made by the Officer of the Central Government or by the State Government, it can be revoked or modified at any time by the Central

Government. This power of revocation of modification was without prejudice to the provisions of Section 21 of the General Clauses Act. Section

21 of the Act makes it clear, that if any Central Act or Regulation confers a power to issue an order, then that power included a power exercisable

in the like manner to rescind such orders The COFEPOSA Act. which is a Central Act, u/s 3 confers power on the Central Government or the

State Government, not below the rank of a Joint secretary to that Government or any officer of a State Government, not below the rank of a

Secretary to that Government specially ompowered for the purpose of that section by that Government to make an order directing detention of

such person, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a

view to preventing him from indulging in violations referred to in (i), (ii), (iii), (iv) and (v), u/s 3(1) of the Act.

It is obvious, that the Joint Secretary to the Government of India, who had empowered u/s 3(1) of the Act, and who had passed the impugned

order of detention, u/s 11 of the Act read with Section 21 of the General Clauses Act, will have power to rescind the order of detention, passed

by him.

In Amir Shad Khan v. L. Hmingliana [1991] 36 ECC 117 : Crl. L.J. page 2713), a three Judge Bench of the Apex Court, considered the scope

of exercise or revocation power u/s 11 of the Act read with Section 21 of the General Clauses Act, by an officer specially empowered, who had

ordered detention. After extracting Section 11 of the Act, the Supreme Court stated thus:-

It is obvious from a plain reading of the two clauses of Sub-section (1) of Section 11 that where an order is made by an officer of the State

Government, the State Government as well as the Central Government are empowered to revoke the detention order. Where, however, the

detention order is passed by an Officer of the Central Government or a State Government, the Central Government is empowered to revoke the

detention order. This provision is clearly without prejudice to Section 21 of the General Clauses Act which lays down that where by any Central

Act, a power to issue orders is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and

conditions, if any, to rescind any order so issued. Plainly the authority which has passed the order under any Central Act, is empowered by this

provision to rescind the order in the like manner. This provision when read in the context of Section 11 of the Act makes it clear that the power to

rescind conferred on the authority making the detention order by Section 21 of the General Clauses Act is saved and is not taken away. u/s 11 an

officer of the State Government or that of the Central Government specially empowered u/s 3(1) of the Act to make a detention order is not

conferred the power to revoke it, that power for those officers has to be traced to Section 21 of the General Clauses Act. Therefore, where an

officer of the State Government or the Central Government has passed any detention order and on receipt of a representation he is convinced that

the detention order needs to be revoked he can do so by virtue of Section 21 of the General Clauses Act, since Section 11 does not entitle him to

do so. If the State Government passed an order of detention and later desires to revoke it, whether upon receipt of a representation from the

detenu or otherwise, it would be entitled to do so u/s 21 of the General Clauses Act but if the Central Government desires to revoke any order

passed by the State Government or its officer, it can do so only under Clause (b) of Section 11(1) of the Act and not u/s 21 of the General

Clauses Act. This clarifies why the power u/s 11 is conferred without prejudice to the provisions of Section 21 of the General Clauses Act. Thus

on a conjoint reading of Section 21 of the General Clauses Act and Section 11 of the Act, it becomes clear that the power of revocation can be

exercised by three authorities, namely the officer of the State Government, or the Central Government, the State Government as well as the Central

Government. The power of revocation conferred by Section 8(f) on the appropriate Government is clearly independent of this power. It is thus

clear that Section 8(1) of the Act satisfies the requirement of Articles 22(4) of the Constitution of India whereas Section 11 of the Act satisfies the

requiem of later part of Article 22(5) of the Constitution. The statutory provisions, therefore, when read in the context of the relevant clauses of

Article 22 of the Constitution of India, make it clear that they are intended to satisfy the constitutional requirement and provide for enforcement of

the rights conferred on the detenu to represent against the detention order. Viewed in this perspective, it cannot be said that the power conferred

by Section 11 of the Act has no relation whatsoever with the Constitutional obligation cast by Article 22(5) of the Constitution of India.

In the afore-stated case Punchhi, J, while agreeing to the release of the detenus, on the facts and circumstances of the case, stated as follows:-

I have reservations to Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 being treated part of

the Constitutional guarantee under Article 22(5) of the Constitutional of India. Section 11 of the Act does not confer any constitutional right in the

detenu to have his representation thereunder considered as if under Article 22(5) but merely a provision enabling the State Government or the

Central Government, as the case may be, to revoke or modify detention orders. Have Section 11 of the Act repealed, it causes no affection to the

constitutional guarantee under Article 22(5) of the Constitution. Correspondingly, Section 11 of the Act derives no sustenance from the said

Article. Both operate in mutually exclusive fields, throughout as combatants.

The decision of a two Judge bench of the Supreme Court in Sat Pal Vs. State of Punjab and others, was taken note of in Amir Shad Khan''s

case [1991] 36 ECC 117 : 1991 CLJ 2713. The Jail Superintendent who was requested, by a forwarding letter, to send the representations to the

appropriate Governments, after obtaining the signature of the detenu thereon, forwarded them to the Joint Secretary in the State Government, with

an endorsement that one of them may be forwarded to the Central Government. The representation of the detenu to Central Government was not

forwarded by the State Government promptly. It was, therefore, contended, that the detention order was rendered illegal and liable to be quashed.

Dealing with those contentions, it was observed that the making of an application for revocation of the order of detention by the Central

Government u/s 11 of the Act was part of the Constitutional right a citizen has against his detention under law relating to preventive detention. It

was therefore observed;

Para 11 It is, therefore, idle to contend that the State Government had no duty to forward the representation made by the detenu to the Central

Government for revocation of his order of detention u/s 11 of the Act.

In Sat Pal v. State of Punjab (1981 Criminal Law Journal, 1867), the following observations were made at page 1869.

The constitutional imperatives of Article 22(5) enjoin that where the detenu makes simultaneously a representation to the detaining authority as

well as an application for revocation u/s 11 of the Act, they must both be dealt with by the appropriate Governments at the same time, and there is

no question of any conflict of jurisdiction. To illustrate, if the Central Government were to revoke an order of detention u/s 11(1)(b) of the Act,

there would be no representation for the State Government to consider, or to refer to the Advisory Board u/s 8(b); nor will there arise any

question of the Advisory Board submitting a report to it, or on receipt of such a report, confirming the order of detention u/s 8(f) The other type of

case would be where notwithstanding that the order of detention has been confirmed u/s 8(f), the appropriate Government may, at any time,

revoke the same u/s 11 of the Act. The power of revocation conferred on the appropriate Government u/s 11 of the Act is independent of the

power of confirming or setting aside an order of detention u/s 8(f).

It was further observed as hereunder:-

We have no hesitation in repelling the contention that the power of revocation conferred on the Central Government u/s 11 is not attracted until the

State Government has considered the representation made by the detenu and rejected it and until the Advisory Board has submitted its report to

the State Government. Under the Act, a detenu has the right to simultaneously make a representation to the detaining authority which has to be

considered by the Advisory Board, as also the right to apply to the Central Government for revocation of the detention order u/s 11.

In Santosh Anand v. Union of India, (1981) 2 SCC 420 a two judge bench of the Supreme Court held ""that under Article 22(5) as also u/s

11, COFEPOSA Act, a representation should be considered by the detaining authority, who on a consideration thereof, can revoke the detention

order and if the representation is rejected by the detaining authority, it is open to the detenu to approach the State Government for revocation of

the order and failing that it is open to him to approach the Central Government to get the detention order revoked."" The decision related to the

case of the detenu, which was considered by the Chief Secretary, Delhi Administration, who has passed the order of detention, acting as the

specially empowered Officer u/s 3 of the Act. A representation was made to the detaining authority (Chief Secretary) by the detenu. The

representation was forwarded to the Advisory Board for its consideration before it was considered by the detaining authority. Subsequently detenu

was informed that his representation has been considered by the Administrator, Delhi, and rejected. In that context, the Supreme Court stated

thus;-

The aforesaid governments make the position quite clear that the representation was considered by the Chief Secretary as the detaining authority

only for the purpose of submitting the same for orders to the Administrator, who in his turn after considering it, rejected the same on May 22,

1979. It is quite clear, that the Chief Secretary, as the detaining authority himself did not reject it. The original files, which were produced before us

by the Counsel for the respondents also confirm the aforesaid position. From the notings in the file, it appears clear that the Chief Secretary had, on

May 9, 1979 called for advice and comments of the Secretary of Law and Justice in the matter and on receipt of these comments, the Chief

Secretary on May 21, 1979 made an endorsement under the Signature to the effect ''the representation may be rejected'' below this endorsement

of the Administrator to the effect that he had considered the representation as well as the comments of the Customs Department and after

examination thereof, he agreed that the representation had no merit and was rejected.

�� It is thus very clear to us that the representation could be said to have been considered by the Chief Secretary at the highest but he did not

take the decision to reject the same himself and for that purpose the papers were submitted to the Administrator who ultimately rejected the same.

There is no affidavit filed by the Chief Secretary before us stating that he had rejected the representation. The representation was, therefore, not

rejected by the detaining authority and as such the Constitutional safeguard under Article 22(5), as interpreted by this Court, cannot be said to

have been strictly observed or complied with. The continued detention of the detenu was clearly illegal and deserve to the quashed.

In yet another case, the Apex Court had again to consider Section 11 of the Act in conjunction with Section 21 of the Central Clauses Act.

That was in Ibrahim Bachu Bafan Vs. State of Gujarat and Ors, . The decision was rendered by a three judge bench. The observations made, are

extracted down below;

The power conferred under Clauses (a) and (b) of Sub-section (1) of Section 11 is in fact extension of the power recognised u/s 21 of the General

Clauses Act and while under the General Clauses Act, the power is exercisable by the authority making the order, the named authorities under

Clauses (a) and (b) of Section 11(1) of the Act are also entitled to exercise the power of revocation We agree with the submission of Mr.

Jethmalani that the words ''without prejudice to the provisions of Section 21 of the General Clauses Act, 1897'' used in Section 11(1) of the Act

give expression to the legislative intention that without affecting that right which the authority making the order enjoys u/s 21 of the General Clauses

Act, an order of detention is also available to be revoked or modified by the authorities named in Clauses (a) and (b) of Section 11(1) of the Act.

Power conferred under Clauses (a) and (b) of Section 11(1) of the Act could not be exercised by the named authorities u/s 21 of the General

Clauses Act as these authorities on whom such power has been conferred under the Act are different from those who made the orders. Therefore,

conferment of such power was necessary as Parliament rightly found that Section 21 of the General Clause Act was not adequate to meet the

situation. Thus, while not affecting in any manner and expressly preserving the power u/s 21 of the General Clauses Act of the Original authority

making the order, power to revoke or modify has been conferred on the named authorities.

DA. Desai, J., sitting singly in Smt. Pushpa Vs. Union of India (UOI) and Others, observed as follows:-

There is nothing in the scheme of Article 22 or the provisions of the COFEPOSA which required that the initial representation by the detenu on

communication of grounds of detention ought always to be considered by the appropriate Government notwithstanding the fact that the order of

detention has been made by an officer specially empowered in that behalf. Undoubtedly, the power to revoke the detention order u/s 11 is

conferred on the State Government and the Central Government whenever an order of detention is made by an officer of the State Government

but that does not imply that the initial representation which a detenu has a right to make after the grounds of detention are furnished to him, must of

necessity be made to and considered by the State Government. In fact, the representation can and ought to be made to the detaining authority

because it is he who has to apply his mind to the facts of the case and it is he who has furnished the grounds of detention on which he has acted

and it is he who has to be convinced that the action taken by him is unjustified and required reconsideration. After all, the purpose of a

representation is to convince the authority to reconsider its decision which has resulted in the detention of the detenu. The representation is not in

the form of an appeal to the higher authority and, therefore, ipso facto it must go to the State Government. Undoubtedly it would be open to the

detenu to make a representation u/s 11 requesting either the State Government or the Central Government, as the case may be to revoke the order

of detention. But the initial representation that a detenu has a right to make on receipt of the grounds of detention would ordinarily be addressed to

the detaining authority because it is that authority which has taken decision adverse to the detenu and which has to be persuaded to reconsider the

same. Therefore, if the detenu made the representation to the detaining authority who had passed the detention order it would be open to that

authority to consider the same and after applying his mind to accept or reject the same. The failure to submit the representation addressed to the

detaining authority and considered by him, to the State Government, would not vitiate the detention order.

D.A. Desai, J., sitting along A.P. Sen J., in Raj Kishore Prasad Vs. State of Bihar and Others, , while distinguishing the decision rendered in

Santosh Anand v. Union of India, (1981) 2 SCC 420 stated thus;

Where the power to detain a person u/s 3(2) of the Act was exercised by the District Magistrate on being conferred with such power by the

appropriate Government viz., State Government in view of Section 3(3), the forwarding of the representation of the detenu to the State

Government by the Magistrate without considering the same himself, would not invalidate the detention order. The representation of the detenu

having been considered by the State Government, it could not be said that there was contravention of Article 22(5) of the Constitution or there

was failure to consider the representation by the detaining Authority.

After referring to the decision in Smt. Santhosh Anand''s case, the following observations were made:-

In that case this Court invalidated the order on the ground that even though the order of detention was made by the Chief Secretary, Delhi

Administration, his representation was considered and rejected by the Administrator of Delhi which indicated that the detaining authority did not

apply its mind to the representation. While reaching this conclusion, the Court took note of the fact that the detaining authority itself had forwarded

the representation to the Advisory Board via the Administrator.

Even then this Court held that the representation was considered by the Chief Secretary as the detaining authority only for the purpose of

submitting the same for orders to the Administrator who in his turn after considering it rejected the same which would mean that the detaining

authority did not apply its mind to the representation and it would invalidate the order. However, in view of the specific provisions contained in

Section 8 which requires that the detaining authority shall afford earliest opportunity to make a representation not to detaining authority but to

appropriate Government, it follows as a corollary that the appropriate Government must consider it. The Chief Minister has considered the

representation and rejected it after calling for parawise remarks of the detaining authority. Therefore, it is not possible to accept the contention that

the failure of the detaining authority to consider the representation would invalidate the order.

The very question, which was considered in Amir Shad Khan and another Vs. L. Hmingliana and others, was discussed in extenso by the

Apex Court in State of Maharashtra and Another Vs. Sushila Mafatlal Shah and Others, . The decision was rendered by a two Judge Bench.

Enunciation of law was, that representation to the Officer of the Government passing the order of detention, in addition to the representation to the

State Government and Central Government was not permissible. In other words, it was stated, that ""Article 22(5) of the Constitution did not

provide material for the detenu to contend that in addition to his right to make a representation to the State Government and the Central

Government, he has a further right under Article 22(5) of the Constitution to make a representation to the Officer himself as he had made the order

of detention. It could not be said that order of detention, if passed by an officer of the Government specially empowered u/s 3(1), but not further

empowered under the rules of the business of the Government to act, would have the effect of making in concerned officer, the detaining authority

and not the concerned Government itself."" The following observations require extraction.

(Para 14 at Page 330 of [1988] 18 ECC 322 We may now examine the scheme of the Act and have a closer look at the provision set out

above to find out whether the Act provides for a differentiation being made between detention orders made by the Government and those made try

specially empowered officers so as to confer an additional right of representation to detemies subjected to detention under detention orders falling

in the latter category. At the outset, it needs'' no saying, that any Government, be it Central or State, has to function only through human agencies,

viz., its officers and functionaries and that it cannot function by itself as an abstract body. Such being the case, even though Section 3(1) provides

for an order of detention being made either by the Central Government or one of its officers or the State Government or by one of its officers, an

order of detention has necessarily to be made in either of the situations only by an officer of the concerned Government. It is in acceptance of this

position we have to see whether an order of detention if passed by an officer of the Government specially empowered u/s 3(1) but not further

empowered under the Rules of Business of the Government to act would have the effect of making the concerned officer the Detaining Authority

and not the concerned Government itself. The answer to the question has to be necessarily in the negative for the following reasons. It has been

specifically provided in Section 2(a) that irrespective of whether an order of detention is made by the Central Government or one of its duly

authorised officers, the ''appropriates Government'' as regards the detention order and the detenu will be the Central Government only and likewise

whether an order of detention is made by the State Government or one of its duly authorised Officers the ''appropriate Government'' would be the

State Government only as regards the detention order and the detenu concerned. Secondly, irrespective of whether an order of detention is made

by the State Government or by one of its officers, the obligation to forward, within ten days a report to the Central Government in respect of the

order is cast only upon the State Government. Thirdly, in the matter of making reference of the case of a detenu to the Advisory Board u/s 8(b),

the duty of making the reference is cast only on the Central Government or the State Government as the case may be, and not on the officer of the

Central Government or the State Government if he makes the order of detention in exercise of the powers conferred on him u/s 3(1). Lastly,

Section 11, which deals with the powers of revocation of the State Government and the Central Government provides that notwithstanding than an

order of detention had been made by an officer of a State Government, the concerned State Government as well as the Central Government are

entitled to revoke or modify the order of detention. Similarly, as per Clause (b) notwithstanding that an order of detention has been made by an

officer of the Central Government or by a State Government, the Central Government has been empowered to revoke or modify an order of

detention. The section does not confer any power of revocation on an officer of the Central or State Government to delegate the power of

revocation to any of its officers. We may further add that even though Section 11 specifies that the powers of revocation conferred on the Central

Government/State Government are without prejudice to the provisions of Section 21 of the General Clauses Act, this reservation will not entitle a

specially empowered officer to revoke an order of detention passed by him because the order of the specially empowered officer acquires

''deemed approval'' of the State or Central Government, as the case may be, automatically and by reason of such deemed approval the powers of

revocation, even in terms of Section 21 of the General Clauses Act will fall only within the domain of the State Government and/or Central

Government. In Sat Pal Vs. State of Punjab and others, the nature of the power of revocation conferred on the State and the Central Government

came to be construed and the Court held that ''the power of revocation conferred on the appropriate Government u/s 11 of the Act is independent

of the power of confirming or setting aside an order of detention u/s 8(f)''. It was further adumbrated as follows. ''The power u/s 11(1)(b) may

either be exercised on information received by the Central Government from its own sources including that supplied by the State Government u/s

3(2), or, from the detenu in the form of a petition or representation. It is for the Central Government to decide whether or not, it should revoke the

order of the detention in a particular case. The use of the words ''at any time'' u/s 11, gives the power of revocation an overriding effect on the

power of detention u/s 3''. These observations were made by the Court when considering the question whether a detenu was entitled to

concurrently make representations to the State Government and the Central Government against an order of detention passed by the State

Government and whether in such circumstances the State Government could contend that the question of the Central Government considering the

representation would arise only after the State Government had considered the representation and rejected it.

Consequently, the resultant position emerging from the Act is that even if an order of detention is made by a specially empowered officer of the

Central Government or the State Government as the case may be, the said order will give rise to obligations to be fulfilled by the Government to

the same degree and extent to which it will stand obligated if the detention order had been made by the Government itself. If that be so, then it is

the concerned Government that would constitute the Detaining Authority under the Act and not the officer concerned who made the order of

detention, and it is to that Government the detenu should be afforded opportunity to make representation against the detention order at the earliest

opportunity, as envisaged under Article 22(5) and not to the officer making the order of detention in order to provide the detenu an opportunity to

make a further representation to the State Government and thereafter to the Central Government if the need arises for doing so. Though by reason

of Section 3(1) a specially empowered officer is entitled to pass an order of detention, his constitutional obligation is only to communicate

expeditiously to the detenu the grounds of detention and also afford him opportunity to make representation to the appropriate Governments

against his detention. The only further duty to be performed thereafter is to place the representation made by the detenu before the concerned

officer or the Minister empowered under the Rules of Business of the Government to deal with such representation if the detenu addresses his

representation to the officer himself.

We may point out that unlike in other Preventive Detention Acts such as the National Security Act, Maintenance of Internal Security Act,

Preventive Detention Act, etc., the COFEPOSA Act does not provide for any approval by the Government of an order of detention passed by an

Officer specially empowered to make a detention order. In all the abovesaid Acts, an order of detention passed by an officer specially empowered

under the Act will cease to have force after the expiry of the number of days prescribed under the relevant Act unless the said order is approved

by the government within that period. On the contrary, the COFEPOSA Act does not provide for the State Government or Central Government

passing an order of approving of a detention order made by one of its officers and therefore the detention order will continue to be operative for

the full period of detention unless the order is revoked by the State Government or the Central Government or is quashed by the Court for any

reason. This is an additional factor to show that an order of detention passed by an officer has the same force and status as an order of detention

passed by the Government itself and this could happen only if an order of detention made by an officer is treated as an order of detention made by

the Government itself, although through the instrumentality of an officer empowered u/s 3.

It is also relevant to clarify at this juncture the position as regards an order of detention passed by an officer specially empowered u/s 3(1) vis-

s-vis an order of detention passed by another officer who besides being empowered to act u/s 3(1) is also conferred authority under the rules of

Business of the Government to act on behalf of the Government. This difference in the conferment of powers upon the officers falling under the two

categories cannot have any impact on the nature of the detention orders respectively passed by them because the common factor entitling the

officers falling in the two classes is their empowerment u/s 3(1) of the Act. Without such empowerment an officer, even if he be empowered to act

on behalf of the Government under the Rules of Business, cannot pass an order of detention against anyone. If this position is realised, then it

follows that there is no scope for contending that a detention order made by an officer empowered to act under the Act but not having additional

empowerment under the Rules of Business of the Government will not have the effect of making the Government the detaining authority and instead

would make the officer alone the detaining authority and by reason of it stand obligated to afford opportunity to the detenu to make a

representation to the State Government and the Central Government. It is also relevant to note that the Act confers powers of revocation only

upon the State Government and the Central Government and no provision is made for an officer making an order of detention to exercise powers

of revocation. When such is the case, any insistence upon the Officer making the detention order considering the representation of the detenu

himself will be nothing but a futile and meaningless exercise. It will therefore, not be to the advantage of the detenu if it were to be held that in all

cases where an order of detention is passed by an officer, the very officer should consider the representation in the first instance and only thereafter

the detenu can approach the State Government and the Central Government. Moreover, if for argument''s sake it is to be assumed that an officer

passing an order of detention is under a duty to afford the detenu an opportunity to make a representation to himself in order to give relief to him, it

may lead to the abuse of powers vested in the officer. The possibility of an officer misusing his powers and passing an order of detention against a

person and then revoking it in order to seek profit for himself or for other ignoble means, however remote it may be, cannot be ruled out. This

aspect of the matter has been touched upon in Raj Kishore Prasad Vs. State of Bihar and Others, and the Court which was dealing with the case

of a detenu detained under the National Security Act has set out the need as to why a representation made by a detenu against an order of

detention made by an officer of the Government should be considered by the Government itself and not by the officer concerned. The relevant

passage reads as follows:

''The contention is that constitutionally speaking a duty is cast on the detaining authority to consider the representation. That is of course, true. But

in view of the scheme of the Act, Parliament has now made it obligatory on the appropriate Government to consider the representation. This is

done presumably to provide an effective check by the appropriate Government on the exercise of power by subordinate officers like the District

Magistrate or the Commissioner of Police. Therefore, if the appropriate Government has considered the representation of the detenu it cannot be

said that there is contravention of Article 22(5) or there is failure to consider the representation by the detaining authority.''

We have already pointed out that unlike in other Preventive Detention Acts the COFEPOSA Act does not provide for approval by the Central or

State Government of an order of detention passed by one of its duly empowered officers, and consequently, an order of detention passed by an

officer acquired ''deemed approval'' by the Government from the time of its issue and by reason of it, the Government becomes the detaining

authority and thereby constitutionally obligated to consider the representation made by the detenu with utmost expedition.

We shall now see whether there is any logic or rationale behind the contention that since D.N. Capoor had made the order of detention, the

detenu was entitled, as of right to make a representation to the very same officer and have the same considered by him in the first instance before

the detenu availed of his right to make a representation to the State Government and then if need be to the Central Government also. The fallacy

and misconception underlying such a contention has been lucidly brought out in Kavita v. Maharashtra (1982) 2 SCR 138: AIR 1981 SC 1961

and again in Smt. Masuma Vs. State of Maharashtra and Another, . The relevant passage in Kavita''s case reads as finder:-

''It was suggested that it would have been more appropriate if the representation had been considered by the very individual who had exercised his

mind at the initial stage of making the order of detention, namely the Secretary to the Government, Shri. Samant. There is no substance in this

suggestion. The order of detention was not made by Shri. Samant as an Officer of the State Government specially empowered in that behalf but by

the State Government itself acting through the instrumentality of Shri. Samant, a Secretary to Government authorised to so act for the Government

under the Rules of Business. Governmental business can never get through if the same individual has to act for the Government at every stage of a

proceeding or transaction, however, advantageous it may be to do so. Nor can it be said that it would be to the advantage of the detenu to have

the matter dealt with the same individual at all stages. It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the

question at different stages.'' In Mamma''s case the same view has been expressed:

''It 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 whatever 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

the State Government in making the order of detention must also consider the representation of the detenu. In fact, as pointed by Chinnappa

Reddy J. in Smt. Kavita Devidasani Vs. State of Maharashtra and Others, 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 no 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.''

Mr. Lalit sought to distinguish these decisions by saying that in both the cases the Secretary to Government issuing the order of detention had

the authority to act on behalf of the Government under the Rules of Business but D.N. Capoor had no such authority. Since we have pointed out

that a detention order passed by an officer having empowerment under the COFEPOSA Act to make an order of detention would also constitute

an order of the Government by reason of deemed approval, we find no merit in the contention of Mr. Lalit. The ratio in these cases would have

equal application to cases of the nature we have on hand.

Leaving aside for a moment the absence of any basis in law or rationale for the contention that if an order of detention is made by the specially

empowered officer of the Government,, the detenu acquires a right to have his representation considered in the first instance by the very same

officer and if he is not afforded such an opportunity, it will amount to a deprivation of his constitutional rights, let Us view the matter from a

practical aspect and on pragmatic consideration. If an order of detention is made by a specially empowered officer and if by the time the

representation of the detenu is received by him, the officer is not there to consider the representation either by reason of his proceeding on leave or

falling sick or transfer or retirement or being placed under suspension or death, then the inevitable consequence would be that the detenu has to be

invariably set at liberty solely on the ground that the representation had not been considered by the very same officer who had passed the order of

detention. Can we conceive of such a situation or permit such consequences to follow when it is common knowledge that the services of a

government officer in the same post for any length of time can never be guaranteed. As already stated, the officer may fall sick or he may proceed

on leave on other grounds or he may retire from service or he may be transferred elsewhere due to exigencies of service etc. If therefore, we are to

sustain the view taken by the High Court, it would lead to the position that even if an order of detention is made on very valid and justifiable

grounds ''by a specially empowered officer, the sustainment of the order would depend upon extraneous factors such as the officer not falling sick

or going on leave or retiring from service or being transferred etc., etc. Surely, the Act and the constitution do not envisage such situations. It is

because of these factors Dr. Chitale contended, and in our opinion very rightly, that if the view of the High Court is to be accepted it would often

lead to a defeasance of the COFEPOSA Act itself and the purpose for which it was enacted.

The Supreme Court in this case distinguished the judgment of DA. Deasai, J., (single Judge) in Smt. Pushpa Vs. Union of India (UOI) and

Others, , on facts, and stated that in such circumstances, that decision cannot be treated as one having precedential value. After referring to the

decision, by a Bench of three judges, in Devji Vallabhbhai Tandel Ors. Vs. Administrator of Goa, Daman and Diu and Another, , the Supreme

Court held that the prouncement having been made by a Bench of three Judges carried with it more binding force than the view taken in Santosh

Anand''s Case. 1982 2 SCC 420. While doing so, it was stated thus:

Besides we have already pointed out that Section 11 confers powers of revocation only on the State Government and the Central Government and

the Act does not envisage or contemplate an officer of the State Government or the Central Government passing an order of detention also

exercising powers of revocation. We must, therefore, hold that the decision in Santosh Anand''s case (Supra) must stand confined to the facts of

that case and it cannot be treated as one in which a principle of law of general application in all cases has been enunciated.

A reference was made to the decision in Raj Kishore Prasad v. State of Bihar AIR 1983 SC 320 in paragraph 21 of the Judgment extracted

earlier. All the Counsel, after careful scrutiny of the entire judgment agreed that the Supreme Court had no occasion to consider in extenso, though

a passing reference has been made, the effect of Section 21 of the General Clauses Act vis-a-vis the words in Section 11 of the Act ""without

prejudice to the provisions of Section 21 of the General Clauses Act, 1897, the detention order may at any time be revoked or modified.

The decision rendered by the Apex Court in Amir Shad Khan''s case (1991 Criminal Law Journal), 2713), and the decision in Ibrahim Bachu

Bafan Vs. State of Gujarat and Ors, have considered both Sections 11 of the Act and 21 of the General Clauses Act and held that the authority

making the order enjoys u/s 21 of the General Clauses Act a right to revoke or modify an order of detention, apart from the authorities named in

Clause (a) and Clause (b) of Section 11(1) of the Act. Further both these decisions have been rendered by Division Benches of three Judges,

while the decision in State of Maharashtra and Another Vs. Sushila Mafatlal Shah and Others, was rendered by a Division Bench of two Judges,

and the same had not been placed before the Bench while decided Amir Shad khan''s case. Even if it be that the decision in Santosh Anand v.

Union of India, (1981) 2 SCC 420 had to be confined to the peculiar facts in that case, as has been indicated by the Supreme Court, in the instant

case the detaining authority has specifically stated in the impugned order of detention that the detenu had a right to make a representation to the

detaining authority, the Central Government and the Advisory Board. The detenu therefore would be justified in having made a representation to

the detaining authority who is one of those specified in the order of detention itself. The detaining authority, therefore, owed a duty to consider and

dispose of the representation of the detenu, which admittedly had not been done.

In the counter affidavit filed by the respondents, the relevant portion of paragraph 18, reads as follows:-

With reference to the averments in para 3(xv) of the affidavit it is submitted that the detenu''s representation dated 4.6.91 forwarded by the

Superintendent, Central Prison, Coimbatore vide his letter dated 4.6.91 was received in the COFEPOSA unit only on 11.6.91 and on the same

date was placed before Joint Secretary (COFEPOSA), who directed to call for the parawise comments immediately. A letter was sent to the

sponsoring authority that very day calling for parawise comments, which were forwarded by them on 17.6.91 and were received in the

COFEPOSA unit on 19.6.91. That very day the concerned officer submitted the case file to Joint Secretary (COFEPOSA) who submitted the

same to Secretary (Revenue) who has been empowered under Rule 3 of Government of India (Transaction of Business) Rules, 1961, to consider

such representation, on 20.6.91. Secretary (Revenue) considered the representation and rejected the same on 24.6.1992.

The counter affidavit makes it apparent that the rejection of the representation was by the Secretary (Revenue), to whom the detaining Authority

namely the Joint Secretary (COFEPOSA) submitted the file. We have perused the detention file produced before us and the endorsement of the

detaining authority reads: ""preceding notes may kindly be seen. The petition deserves to be rejected. Copies of additional documents requested

may however be supplied to him as abundant caution.

It is obvious that the detaining authority (specially empowered Officer) had only acted as a turnpike in forwarding the representation to the

Secretary, Revenue, with his views that ""The petition deserves to be rejected."" It was not the detaining authority who had rejected the

representation, but it was the Secretary (Revenue) who had ultimately rejected the representation. These details clearly appear to fall within the

compass of the facts and law stated in Smt. Santosh Anand''s case.

The argument of the Additional Central Government Standing Counsel, that the representation was, in several parts, addressed to the Central

Government and therefore piecemeal action cannot be expected, has no merit. The detenu has specifically pleaded in the final paragraph as

follows:-

In view of the above reasons, I request to revoke the detention order passed against me and set me at liberty.

At the risk of repetition, we have to state that this representation is addressed to the detaining authority, to whom the detenu was informed, that he

could forward the representation, in the order of detention itself. If as laid down in Amir Shad Khan and another Vs. L. Hmingliana and others, and

Ibrahim Bachu Bafan Vs. State of Gujarat and Ors, , the Officer, who had passed the order of detention, has power to rescind or revoke it and

which power has nexus to Article 22(5) of the Constitution of India, non-consideration by him, of the plea for revocation made by the detenu,

would be sufficient to entitle the detenu to the relief sought for in the writ petition. Keeping in view the law laid down by the Supreme Court, on

binding nature of precedents as well as on the peculiar facts of this case, we have no hesitation in holding that the continued detention of the

petitioner would violate mandate of Article 22(5) of the Constitution. This writ petition is allowed and the detenu is directed to be set at liberty

forthwith unless his detention is otherwise required in any other case.