Rajan vs State of Tamil Nadu and Union of India (UOI)

Arunachalam, J.—All these writ petitions are disposed of together by a common order, since the contentions raised are similar. The first

batch namely W.P. Nos. 7732 to 7734 of 1991, relates to one transaction and the second batch, namely W.P. Nos. 7802 of 1991 and 7803 of

1991, relates to another transaction. Common arguments were advanced by Mr. B. Kumar, learned Counsel for the Petitioners; Mr. B. Sriramulu,

learned Public Prosecutor and Mr. R. Santhanam, learned Additional Central Government Standing Counsel.

In all these writ petitions, the Petitioners themselves are the detenus. They have prayed for their production before this Court for being set at

liberty, after quashing the impugned orders of detention, all dated 19.2.1991, passed by the first Respondent, u/s 3(1)(b) of the National Security

Act, 1980.

Facts in the first batch of writ petitions:

On 6.2.1991 at or about 7.45 p.m., the Assistant Commissioner of Police, Law and Order, Adyar, Madras received information that 10 Sri

Lankan Nationals had assembled at premises No. B.15, Nithya Apartments, No. 25, Second Main Road, Gandhi Nagar, Adyar, Madras and

were designing to indulge in prejudicial activities in the locality and to commit illegal acts to hinder the smooth functioning of the Government and to

set fire to the Government owned transport vehicles and to cause heavy damage to public property. Information also revealed that Sri Lankans

were using unauthorised electronic equipments, illegally, against the interest of the nation. Conspiracy to cause heavy damage to paralyse the

supply of Electricity, also formed part of the information received. The Assistant Commissioner of Police along with his party, after preparing

grounds for house search, since time was in-sufficient to obtain warrant from Court, proceeded to the premises afore stated. The party entered into

the premises and found the detenus in these writ petitions and five others. On seeing the police, Easwaran and Sukirthakumar (not before Court),

attempted to consume cyanide poison capsules. However they were over-powered and cyanide capsules were seized. P. Bose, Assistant

Commissioner of Police found one electronic facsimile equipment fitted with the telephone bearing No. 417922, in the main hall of that house, in

working condition. There were two telephone conversation recording electronic equipments in operational position. There were also world and

Tamilnadu maps and in both of them, some places and countries were shown prominently with different colour pins. Indian currency to the value of

Rs. 4,00,109/- kept in a VIP Brief Case, 654 U.S. Dollars kept in a cloth bundle 105 Singapore dollars; 200 Franc note and one Brunei Dollar

note, wrapped in a cloth bundle, were recovered. From the Almirah in the bed room, 12 live 9 mm cartridges concealed in a paper wrapper, was

also found. 6 facsimile sheets containing certain information, were noticed. There was one wireless hand set, fitted to the power line, in working

condition, in the right side bed room. 10 pass-ports were kept in a wallet of which three carried photographs of Easwaran while 2 others carried

the photos of Sukirthakumar. there was one passport each in the name of Sathish, Suresh, Ganesh Subbiah and Thirupathisamy. One passport did

not contain any seal or signature of the issuing authority indicating that it was bogus. All these passports were of Indian Origin. The Assistant

Commissioner of Police also found/two registration number plates bearing registration No. TSH 7791: 2 number plates bearing registration No.

TAM 1807: 2 others bearing registration Nos. TSK 2503 and TSH 7628. Two account books were also recovered of which, one snowed heavy

money transaction entries both in Indian and Foreign currencies. There was yet another big postal cover containing 163 pages of foreign literature.

explaining the methods of manufacturing various types of grenades, all the inmates of the house including the detenus were arrested. All of them

admitted, that they were all trained LTTE members.

All the arrested persons were taken to J.2 Adayar police station and a case in Crime No. 42 of 1991, u/s 120-B Indian Penal Code, Section

12(1)(b) of the Passport Act, Section 3 read with Section 20 of Indian Telegraph Act, Section 6(1)(A) of the Indian Wireless Telegraph Act,

Section 25 Arms Act, Sections 309, 506(ii), 467, 468, 124 Indian Penal Code and Section 8(1) read with Section 56 of the Foreign Exchange

Regulation act, was registered. Inspector of Police Narayanan of Central Crime Branch, Madras city, continued investigation. Confessional

statements of the detenus and others were recorded. All the arrested persons were produced before the 11th M.M,. Saidapet on 7.2.1991. They

were remanded to judicial custody till 21.2.1991. Inspector of Police, Narayanan filed an affidavit before the 11th M.M. requesting police custody

of the detenus and 4 others. Police custody was granted till 13.2.1991. On expiry of police custody, all the seven were surrendered before Court

and further custody was requested in respect of 4 others, which did not include the detenus. Police custody was granted till 17.2.1991.

Investigation revealed, that neither detenus nor the others had valid passports or visa for staying in India and that all of them belonged to L.T.T.E.

organisation. They had neither an avocation, nor any ostensible means of livelihood in India. The confessional statements of the detenus and others

revealed, that they were in contact with militant leaders and members of their Organisation at various places and Countries and were illegally

passing on crucial information against the interest of the State and normal functioning of the Government. They also confessed of having distributed

literature containing process of manufacturing various types of grenades. The confessional statements snowed, that detenus and others had

attempted to excite disaffection towards the Government established by law in India. The State Government, on being satisfied that the detenus

were foreigners, who were illegally remaining in India, without a permanent residence or ostensible means of livelihood and that if they were

allowed to remain at large, they would indulge in illegal activities, which would affect the normal life of the State, felt it necessary to take effective

steps for regulating their stay. On such opinion, the impugned orders of detention were made in exercise of the powers conferred by Section 3(1)

(b) of the National Security Act, 1980 (Central Act 65 of 1980).

Facts in the second batch: On 6.2.1991, the Assistant Commissioner of Police, Law and Order, Adyar, received information about the

movements of the Sri Lankan LTTE Militants in Madras City. Chinnasamy, Assistant Commissioner of Police Mylapore Range, conducted vehicle

check at the junction of R.K. Mutt Road and Greenways road, Abiramapuram, Madras along with his police party, for LTTE Militants. At 8.30

p.m. an auto-rickshaw bearing No. TSJ 8166 was noticed coming towards the road junction where vehicle check was being conducted. The auto-

rickshaw was stopped and kiruban was its inmate. Kiruban was in possession of one Walkie-talkie hand-set in working condition and three 9 mm

pistol cartridges. He was found to be a Sri Lankan LTTE Militant. Kiruban was arrested and his confessional statement was recorded. He was

taken to E.I Mylapore Police Station and Crime No. 199 of 1991 u/s 12(1) of the Passport Act, Section 6(1A) of the Indian Wireless Telegraph

Act and Section 25(IB)(a) of Arms Act, was registered. Kiruban confessed that he was then residing at door No. A.2/147, First Main (bad,

Kandasamy Nagar, Kottivakkam, Madras-41, with his associates. The Assistant Commissioner of Police along with his party and in the company

of kiruban, proceeded to the said premises. Kiruban pointed out the Petitioners in these two writ petitions and his other associates. All of them

confessed, that they belonged to LTTE militant organisation. In the said house, they were found in possession of one wireless antenna with wire,

Exide battery 2 in number, battery charger, 2 in number, Cathay Tape Recorder, Sanyo cordless phone, Sony one touch recording, Hanics Head

phone, Delux Ruler Calculator Clock, Hall mode fransciever powerful wireless set one in number, Yaesu one receiver, Alba Tape Recorder,

Cyperphone DPX, Philips Head Phone, Yamaha Motor Cycle bearing Registration No. TN-01-C-0923, 9 mm Pistol rounds, 15 in number, Rs.

25,063/- in Indian Currency, 744 U.S. Dollars, 120 Singapore Dollars, 3 R.C. Books, Driving licence Account Book, two cyanide capsules FAX

papers, 17 literature-75, 16 passports, Canon FAX-520 and Diaries. All the above articles were recovered under a Mahazar. All the inmates in

the premises were arrested and taken to E1 Mylapore Police Station. Further investigation was entrusted to Inspector of Police, Akbar, Central

Crime Branch. Akbar examined the detenus and others and recorded their statements. They were produced before the 11 MM, Saidapet, who

remanded them to judicial custody till 21.2.1991. Inspector of Police filed an affidavit requesting police custody of all the arrested persons. The

request was acceded to by Court. Police custody was granted till 13.2.1991. Extended police custody was prayed for in respect of Kiruban and

Shankara Tagore. Custody was ordered till 17.2.1991. Further recoveries were made on the confessional statement of Shankara Tagore. Both of

them were surrendered on 17.2.1991 before Court. The detenus and others, who are Sri lankan nationals, do not possess valid passports or visas

for staying in India, They all belong to LTTE Organisation. They neither have any avocation nor ostensible means or livelihood in India. The detenu

in W.P. No. 7802 of 1991 is a trained active LTTE member of the organisation. In his capacity as an active member, he was frequenting the

house. He used the said house to facilitate clandestine movements of the LTTE members and to have a LTTE organisation set up. The confessional

statements and other materials collected during investigation revealed, that the detenus and others were using sophisticated electronic

communication devices, illegally, to contact militant leaders at various places and Countries to illegally pass on crucial information, to hinder the

normal functioning of the Government. Investigation also revealed, that the detenus and others were receiving monies from Sri Lankan Nationals

residing in foreign Countries, for their illegal and clandestine activities. The possession of 16 passports pointed the illegal user of the same by the

detenus to achieve their objects, by any means. The detenus and others also confessed, that they had distributed literature containing process of

manufacture, of all varieties of grenades. It was also noticed, that they had attempted to excite dissatisfaction towards the Government established

by law in India. The material gathered disclosed, that the detenus and their associates had chosen to indulge in prejudicial activities in the City of

Madras and to commit illegal acts, to hinder the smooth functioning of the Government and to set fire to the Government Transport vehicles and

public property. They had also planed to paralyse the supply of electricity and communication systems of the country. On these materials, the State

Government was of the opinion, that it was necessary to take immediate and effective steps for regulating the stay of the detenus, for otherwise

they were likely to indulge in grave and illegal activities. Therefore the impugned orders of detention in exercise of the powers u/s 3(1)(b) of the

National Security Act, 1980 (Central Act 65 of 1980) were passed.

Though Mr. B. Kumar, learned Counsel representing the Petitioners urged a few contentions and ultimately conceded, that only one contention

would need scrutiny, since the other contentions cannot be successfully pressed, it may be necessary to state those contentions as well. As far as

the detenu cum Petitioner in W.P. No. 7733 of 1991 is concerned, an additional contention was advanced, that in the literature about grenades in

English and the account books relied upon which were also in English, had not been furnished to him in Tamil, the language known to him, the

impugned order stood vitiated on that sole ground his continued detention should be held to be invalid. The following contentions were advanced.:

(1) The report of the Deputy Inspector General of Police, specifically referred to and relied upon in the grounds, the reasons recorded by the

Assistant Commissioner of Police on the necessity of search, without obtaining a search warrant and the affidavits filed by the concerned Inspector

of police for obtaining police custody, had not been furnished to the detenus, which amounted to non-communication, vitiating the order of

detention.

(2) The detenus have studied only upto a few classes and therefore did not know English. Further English was not taught in Elam. Further several

documents relied upon in the grounds of detention have not been communicated in tamil, which language alone the detenus know, and on that

ground as well the detention orders liable to be set aside. Specifically page 43 to 67 were brought to our notice. These pages relate to the technical

know-how of the wire-transceiver as well as the user and manufacture of grenades.

(3) Section 5A of the Act permitting severability of grounds, will not attract the facts, in all these writ petitions and

(4) The object of the Section 3(5) read with Section 14(1)(b) of the Act, imposes an obligation on the Central Government to consider the

materials forwarded by the State Government u/s 3(5), non-consideration of which would invalidate the continued detention and most of the

materials in the detention order are in tamil and the empowered authority of the second Respondent cannot be familiar with the said language. A

translation of the Tamil version of the grounds and material had not been sent to the 2nd Respondent. There was thus a serious breach of the

requirement of Section 3 of the Act, which would permit the orders of detention, being set aside. Exercise of discretion would include the executive

acquainting himself with facts, informing himself of the law and objectively considering the material in the light of the law and the object of the

Statute, before arriving at a decision. Mode of exercise of discretion u/s 14 of the Act, be it on the basis of the report of the State Government or

on a petition by the detenu, cannot be different. There would also be violation of Article 14 of the Constitution, if the Central Government while

exercising powers u/s 14 of the Act, had disabled itself from considering some materials in the case of certain detenus, since they were in a

language which it could not understand. The process for arriving at a decision is important and not the decision alone. On these contentions, we

have heard Mr. B. Sriramulu, learned Public Prosecutor and Mr. R. Santhanam, learned Additional Central Government Standing Counsel.

Mr. B. Sriramulu contended, that impugned orders of detention were made under

Section 3(1)(b) of the Act, since the detenus were foreign nationals who had arrived into India, clandestinely without valid passport or visas. They

had no permanent places for residence. They have no avocation or ostensible means of livelihood. The State Government, on being, satisfied, that

the detenus were foreigners and that their continued presence in India had to be regulated, had validly passed the impugned orders of detention.

This provision is constitutionally valid and the State Governments have a right to regulate the continued presence of the detenus in this Country. He

urged that all the basic documents relevant for effective representation had been furnished. He specifically pointed out, that the documents

complained of as not having been furnished, have been in fact supplied to the detenus, except the report of the Deputy Inspector General of Police,

which is only a forwarding note making reference to the registration of crimes against the detenu, which have been extracted in the grounds of

detention. The Public Prosecutor pointed out the relevant pages in the book of documents and after verification, Mr. B. Kumar agreed, that those

documents had been furnished to the detenus and therefore he was not pressing the ground relating to non-communication of documents. Mr. B.

Kumar also conceded that non-supply of the report of the Deputy Inspector General, on facts, will not enure in favour of the detenus, since it

refers only to the registration of crimes, which have been referred to in the grounds of detention. However, he would urge, that non supply of tamil

translation of literature, to the detenus, may have to be considered by the Court. The Public Prosecutor contended, that irrespective of the

registration of crimes against the detenus, the impugned orders had been validly made u/s 3(1)(b) of the Act and it cannot be urged that Section 5A

of the Act, on severability, would not attract the facts. At this stage Mr. B. Kumar stated, that he was not pressing this contention on severability as

well, on facts. The learned Public Prosecutor brought to our notice, on the materials supplied to the detenus, that they had working knowledge of

English language and therefore, non-supply in Tamil of such literature could not have prejudiced effective representations, being made by them. On

the last ground, he contended, that the State Government had fully complied with the mandate u/s 3(5) of the Act and the affidavit of the second

Respondent would clearly show, that the report of the state Government had been considered by the Central Government u/s 14(1)(b) of the Act.

He pointed out, that communication under Articles 22(5) of the Constitution to the detenu; was different from the report contemplated u/s 3(5) of

the Act. If the Central Government had any language problem, translations would have been obtained as was evidenced from one of the decided

cases, by the Orissa High Court. These are not cases were the detenus had asked for revocation of the orders of detention, which had not been

considered expeditiously by the Central Government.

Mr. R. Santhanam, learned Additional Central Government Standing Counsel referred to paragraphs 3 and 4 of the counter affidavit of the

second Respondent, and contended that the report received from the State Government was immediately attended to and the concerned joint

Secretary, authorised to act u/s 3(5) and 14 of the Act in the Ministry of Home Affairs had examined the report and decided on 4.3.1991, that

there was no necessity to interfere with the orders of detention approved by the Government of Tamilnadu and, therefore, there was no reason to

revoke the orders of detention. No statutory obligation was cast on the Central Government, to inform the detenus about the result of

consideration of the reports received from the state government u/s 3(5) of the Act.

We have carefully considered the contentions placed before us by the respective Counsel. Before we scrutinise the final and the only effective

contention, we will dispose of in brief the other contentions, placed initially, though later not pressed.

On the first contention, after scrutinising the paper book, Mr. Kumar agreed that reasons recorded by the Assistant Commissioner of Police for

conducting a search without obtaining a warrant and the affidavits of Inspectors of Police made before the Magistrate for obtaining Police custody,

had been furnished to the detenus. As far as the report of the Deputy Inspector General of Police is concerned, he was able to realise that the

order of detention was not primarily based on the said document, which had only forwarded information about the registration of crimes against the

detenus. The Supreme Court in Madan Lal Anand Vs. Union of India and others, has clearly enunciated that only copies of documents on which

the order of detention was primarily based should be supplied to the detenu and not any other document. In Abdul Sattar v. Union of India 1990 I

S.C.C. 480 , the Apex Court observed that non-supply of copies of documents, not relied upon, but only incidentally referred to in the grounds,

would not violate Article 22(5) of the Constitution and vitiate the detention if it had not handicapped the detenu in making an effective

representation. The first ground which needs, no further probe, shall stand rejected.

9.A. On the second contention we have perused the confessional statements of the detenus. These statements reveal, that the detenus had working

knowledge of English and that they had read the literature for emanating information to other members of their organisation. In Kubic Darusz v.

Union of India AIR 1990 S.C. 605 while explaining the meaning of ''communicate'' under Article 22(5) of the Constitution, the Supreme Court

observed as follows:

That what is considered necessary is the working knowledge of the language enabling the detenu to understand the grounds or full explanation or

translation thereof in the language understood by the detenu.

The material available before us clearly shows that the detenus had not only working knowledge of English, but also because of such knowledge,

had passed on information about their activities to their like minded associates. They have also studied upto a particular standard, which shows that

they should have had working knowledge in English. As far as the detenu in W.P. No. 7733 of 1991 (Ravi) is concerned, a special plea was made

that there was no material to show that he had working knowledge in English and therefore as far as he was concerned, there was non-

communication. As far as the other detenus are concerned, Mr. B. Kumar specifically stated that he may not be able to press this contention, to

the advantage of the detenus. After careful and anxious consideration, we are satisfied that the detenu Ravi (W.P. No. 7733 of 1991) cannot also

claim any benefit on this score. In his confession statement, he has stated as follows:

This statement of Ravi clearly shows, that he had not only read them, but had also understood the contents thereof, before such literature was

passed on to others in Tamil Nadu without jobs. The statement also shows, that he and his associates had explained the contents of the literature to

others, to whom such literature was forwarded. Hence no ground has been made out for any special treatment as far as detenu Ravi is concerned.

The third contention need not have to detain us since Mr. B. Kumar, learned Counsel agreed that detention u/s 3(1)(b) of the Act was

severable from the other grounds relating to raid and seizure of material. On this ground, Mr. Kumar brought to our notice the following decisions,

1) Chandra Shekhar Ojha Vs. A.K. Karnik and others,

2) Prakash Chand Kasliwal Vs. Union of India (UOI) and Others,

3) Vikramsinh Pravinsinh Rana and etc. Vs. State of Gujarat and Another,

4) Ravindran, S. v. The State of Tamil Nadu 1983 L.W. Cri. 177

5) Raju v. State of Tamil Nadu 1983 L.W. Cri Sho 52 to substantiate his contention, that when detention was challenged on account of non-

supply of documents Section 5A would not be applicable. Service of documents arises under Article 22(5) of the Constitution and the question of

sustaining grounds would come into operation at a later stage. We have already held that there is no lack of communication in violation of the

mandate of Article 22(5) of the Constitution and therefore the principles laid down in the aforestated cases obviously do not attract the facts in the

instant writ petitions. Only after being sure of this position, Mr. B. Kumar was fair enough to submit; that he was not seriously dwelling on this

ground of severability. This ground is rejected not on concession alone, but on merits as well.

To consider the last contention, it would be better to extract the relevant portions of Section 3 and Section 14 of the Act. Section 3 - 5 Power

to make orders detaining certain persons (5) When any order is made or approved by the State Government under this Section, the State

Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and

such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order....

Section 14, Revocation of detention orders: (1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897),

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

(a) notwithstanding that the order has been made by an officer mentioned in Sub-section (3), of Section 3 by the State Government to which that

officer is subordinate or by the Central Government;

(b) notwithstanding that the order has been made by a State Government, by the Central Government.

Section 14 of the Act is without prejudice to Section 21 of the General Clauses Act. Hence, the power to rescind vested in the authority

making the order of detention by Section 21 of the General Clauses Act is saved and not taken away. Thus, an officer of the State Government or

a Central Government who had passed an order of detention, on receipt of a representation, if convinced that the order needed revocation he was

entitled to do so, u/s 21 of the General Clauses Act for, he has no such entitlement u/s 14 of the Act. If the State Government had passed an order

of detention and later decided to revoke it, whether upon receipt of a representation from the detenu or otherwise, it would be legitimate to do so

u/s 21 of the General Clauses Act. Further, if the Central Government decides to revoke any order passed by the State Government or its officer,

it can do so only under Clause (b) of Section 14(1l) of the Act and not u/s 21 of the General Clauses Act.

The object of Section 3(5) of the Act read with Section 14(1) of the Act, is to confer supervisory jurisdiction on the Central Government. This

jurisdiction extends to keeping a watch, to ensure that the action that had been taken was within limits of law and that of the authority which had

initiated action. The power u/s 14(1) of the Act, has to be exercised by the Central Government, if and when necessary in appropriate cases. By

such interference, the orders of detention can be revoked or modified at any time.

In Sabir Ahmed Vs. Union of India (UOI), Sarkaria J. speaking for the bench, while considering a similar provision, u/s 11 of the Cofeposa

Act read with Section 3(2) of the Act, stated as follows:

It is true that Section 3(2) of Cofeposa mandates the State Government to send a report to the Central Government. But it does not mean that the

representation made by the detenu, if any, should also be sent along with that report. There appears to be no substance in the contention that the

Central Government is under no duty to consider a representation made to it by the detenu for revoking his detention, if it simply repeats the some

allegations, statement of facts, and arguments which were contained in the representation made to the detaining authority. It is common experience

that an argument or submission based on certain facts, which does not appeal to a tribunal or authority of first instance, may find acceptance with a

higher tribunal or supervisory authority. Whether or not the detenu has u/s 11 a legal right to make a representation to the Central Government is

not the real question. The nub of the matter is whether the power conferred by Section 11 on the Central Government, carries with it a duty to

consider any representation made by the detenu, expeditiously. The power u/s 11 may either be exercised on information received by the Central

Government from its own sources including that supplied u/s 3 by the State Government, or, from the detenu in the form of a petition or

representation. Whether or not the Central Government on such petition/representation revokes the detention is a matter for discretion. But this

discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power u/s 11 is a supervisory power. It is intended

to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority of the state Government. If

this statutory safeguard is to retain its meaning and efficacy, the central Government must discharge its supervisory responsibility with constant

vigilance and watchful care. The report received u/s 3, or any communication or petition received from the detenu, must be considered with

reasonable expedition.

In that case, the detenu had made an application to the Central Government for revocation of the order of his detention, u/s 11 of the Cofeposa

Act, and that had not been dealt with by that Government, till the writ petition was filed. That was a detention made by the State Government. A

specific plea was taken in the affidavit therein, that the Petitioner had made a representation to Central Government for revocation of the detention

order, u/s 11 of the Cofeposa Act, and the Central Government had not considered the said representation and thus the detenu''s continued

detention was illegal. On facts, the Supreme Court held, that the conclusion was therefore inescapable that the Central Government had not at all

considered the petition made by the detenu requesting for revocation of his detention u/s 11, from November 1979 till the middle of March, 1980.

Therefore it was held, that though no hard and fast rule as to the measure of reasonable time can be laid down for consideration of the

representation of the detenu, it certainly did not cover the delay due to negligence, callous inaction, avoidable red-tapism and unduly protracted

procrastination, since the representation in that case, had been left unattended for a period of four months. The detention was held to be not

justified since it was not in accordance with the procedure prescribed by law. The earlier decision of the Apex Court in Shyam Ambalal Siroya Vs.

Union of India (UOI) and Others, was followed.

The aforesaid decision shows, that the discretion conferred on the Central Government whether or not to revoke the order of detention u/s

14(1) of the Act, carried with it a duty, intended to be a measure of additional check or safeguard, against improper exercise of power of

detention, and to consider if there was a cause for revocation or modification. This duty must be discharged by the Central Government not only

with constant vigilance and watchful care, but also with reasonable expedition.

In Md. D.A. Khan v. State of West Bengal 1976 C.L.J., 346 , while dealing with a similar provision under the Maintenance of Internal

Security Act, 1971, the Supreme Court held, that the mere fact that the Central Government did not choose to revoke or modify the order of

detention by exercise of its powers u/s 14 of the said Act, would not lead to the conclusion that the Central Government had failed to apply its

mind. This decision will have significant application, to the instant cases, since the State Government had reported the fact of approval of detention

to the Central Government, within 7 days, together with the grounds on which the order had been made and such other particulars as, in the

opinion of the State Government, have a bearing on the necessity of the order. Further, the affidavit filed on behalf of the Central Government

shows, expeditious consideration and disposal, by exercise of power, u/s 14(1)(b) of the Act, by the Central Government. Even on 4.3.1991, the

Central Government had concluded, that there was nothing to interfere with the orders of detention approved by the State of Tamil Nadu and

further there was no reason to revoke the orders of detention.

In all these writ petitions, the detenus had not forwarded any representations to the Central Government, seeking revocation of the order of

detention, u/s 14 of the Act. It is under these circumstances, that Mr. B. Kumar contends, that irrespective of a representation being preferred by

the detenu, since the mode of exercise of power u/s 14 of the Act cannot be different, the State Government ought to have forwarded to the

Central Government along with the grounds, perception of material. Several pages of the documents supplied to the detenus were in Tamil and if

English translations of those documents had not been forwarded to Central Government by State Government, along with its report, the Central

Government would have been disabled from acquainting itself, with full facts, for exercise of power u/s 14. The power u/s 14 is relatable to Article

22(5) of the Constitution and if that be so, there must be fullest consideration. He chose to rely upon the judgment of the Supreme Court in Amir

Shad Khan and another Vs. L. Hmingliana and others, , to substantiate his contention, that Section 14(1) was intended to satisfy the requirements

of the later part of Article 22(5) of the Constitution, and provided enforcement of right to make effective representation. In that case, the detenu in

his representation had stated thus:

I would also like to request you that the copies of these representations be sent to the State and Central Governments for their kind consideration,

in view of the above facts so as to revoke and or set aside my order of detention and order the release forthwith

It was not disputed, that the representation was considered and rejected by the State Government. However, the representation was not

forwarded to the Central Government and hence the Central Government had no occasion to consider it, for revocation of the detention order.

Therefore, seeking the writ jurisdiction of the Bombay High Court, a writ was instituted. Bombay High Court while dismissing the writ petition held

that the order of detention was not vitiated, on the ground of the detaining authority as well as the State Government, in not having forwarded the

report of the detenu to the Central Government. The Bombay High Court further held, that the detenu had failed to follow the clear and specific

instructions given in the grounds of detention regarding the manner and mode of address to various authorities. Therefore, he could not be allowed

to reap the benefit of his own default.

The Apex Court held, in that context, that the power of revocation conferred by Section 11 of the COFEPOSA has a nexus with the right of

representation conferred on the detenu by Article 22(5) and, therefore, the State Government, when requested to forward a copy of he

representation to the Central Government, was under an obligation to do so. The Supreme Court took note of the fact, that a person placed under

detention had certain handicaps and if a request for forwarding his representation to the Central Government was made to the State Government,

after taking out copies thereof, it would be a denial of his right to represent to the Central Government, if the detaining authority as well as the State

Government refused to accede to his request and omit to forward his representation. Such a technical and rigid view should not be taken by the

concerned authorities, in matters of personal liberty where a person is kept in preventive detention, without trial. Detenus may or may not be in a

position to prepare more than one copy of the representation. When request forwarding was made, it would not be just and fair to refuse to do so.

In such a context it was observed, that Section 8(f) of COFEPOSA Act satisfied the requirement under Article 22(4) while Section 11 of the act

satisfied the requirement of the later part of Article 22(5) of the Constitution. The Apex Court was clearly dealing with the hyper-technical stand

taken by the State Government. It was in total disregard of the right conferred on the detenu under Article 22(5) of the Constitution read with

Section 11 of the Act. If, in fact, the detenus had made representations to the Central Government u/s 14 of the Act, for revocation, and such

representations had not been disposed of with reasonable expedition, we would not have hesitated to hold, that the Central Government, which

had an inherent duty coupled with a discretion u/s 14, had not chosen to exercise it, leading to a grave procedural lacuna. The Supreme Court

stated in Amir Shad Khan''s case, that the purpose of the provision u/s 3(1) of COFEPOSA Act corresponding to Section 3(5) of the National

Security Act, was clearly to enable the Central Government to keep an eye on the exercise of power u/s 3(1) by the State Government or its

officer.

The Petitioner''s Counsel also relied upon the decision of the Supreme Court in Bangalore Medical Trust v. B.S. Muddappa 1991-4-SCC,

54, to contend on the nature of duty cast on the Central Government, while exercising its discretion. That was a case where the Court was

concerned with certain provisions of the Town Planning-Bangalore Development Authority Act vis-a-vis the right of the residents of the locality to

challenge the action taken under the Act, in public interest. The following observations were made.

Discretion is an effective tool in administration. But wrong notions about it, results in ill-conceived consequences. In law it provides an option to the

authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines

the fact, is aware of law and then decides objectively and rationally what serves the interest better.. The authority cannot act whimsically or

arbitrarily. It should be guided by reasonableness and fairness."" On facts, we are unable to hold, that the Central Government had not discharged

its duty coupled with discretion in the manner known to law.

In the writ petition, the following ground has been taken.

Ground No. 12: the Petitioner states that this important duty cast on the first Respondent has not been performed. Most of the materials in the

detention order are only in Tamil and the empowered authority 2nd Respondent, cannot be familiar with the said language. A translation of the

Tamil version of the grounds and material has not been sent to the 2nd Respondent. Thus there is a serious breach of the requirement of Section 3

of the National Security Act. On this ground alone, the order of detention is liable to be set aside. (W.P. No. 7733/91).

20.A. In the Counter affidavit filed on behalf of the first Respondent, the following averments have been made:

Regarding the contention raised in paragraph 12 of the affidavit, it is submitted that the Petitioner is put to strict proof of the same. All the relevant

materials were placed before the 2nd Respondent. All the material documents which were relied upon by this Respondent for passing the order of

detention were sent to the 2nd Respondent. The contention to the contrary is not correct. There is no breach of requirement of Section 3 of the

National Security Act, 1980 (Central Act 65 of 1980).

In paragraph 11 of the Counter, the first Respondent has further stated,"" that this Respondent has strictly followed the procedure and

communicated to the 2nd Respondent the grounds of detention and all other particulars in accordance with law."" The 2nd Respondent in the

counter affidavit filed on its behalf, has stated as follows;

That with regard to para 11 of the petition, it is submitted that a report envisaged u/s 3(5) of the National Security Act, 1980 about the

detention of Shri Ravi was made by the Govt. of Tamil Nadu to the Central Government in the Ministry of Home Affairs vide their letter dated

23.2.1991. That the said report was received by the Central Government in the Ministry of Home Affairs on 27.2.91 and it was immediately

attended to. The Central Government completed the examination of the report in the Ministry of Home affairs on 4.3.91.

That the concerned Joint Secretary authorised to act u/s 3(5) of the NSA and 14 of NSA in the M/o Home Affairs examined the said report

and decided on 4.3.91 that there was no necessity to interfere with the order of detention approved by the Govt. of Tamil Nadu and therefore,

there was no reason to revoke the order of detention.

The counter affidavits of the Respondents clearly show, that there has been no infraction of the provisions of Section 3(5) and Section 14 of the

National Security Act. On 23.2.1991, the State Government had forwarded to the Central Government copies of the detention orders, copies of

the grounds and one set of documents and the Central Government has stated, that it had considered the same and no cause for revocation was

found. If is not as though the central Government was not possessed of all the materials, on which the order of detention was passed. In Gouranga

alias Goura Jena Vs. State of Orissa and Others, , detention under the National Security Act approved by the state Government was challenged

on the ground, that the Central Government had inordinately delayed, in exercise of its power, on receipt of the report of the State Government u/s

3(5) of the Act. The Orissa High Court noticed, that the report of approval by the State Government, together with the grounds on which the order

had been made and some other documents having a direct bearing on the necessity for the order, was duly received by the Central Government on

11.4.1985. The competent authority immediately applied his mind, but as the documents were in Oriya, the English versions of the same were

obtained, where after the report and all other materials were considered and finally the decision was taken on 1.5.1985 to the effect that there was

no necessity to interfere with the order of approval passed by the State Government. In such circumstances, it was held, that there was no

negligence, callous inaction, avoidable red-tapism or unduly protracted procrastination in the matter of consideration of the report by the Central

Government.

It is therefore obvious, that in the event of the Central Government needing translation of any document in English, it would obtain the same,

before exercising its powers u/s 14 of the Act.

We are of the opinion, that supervisory jurisdiction contemplated u/s 14 of the Act read with Section 3(5) of the Act, is intended to facilitate

interference in suitable cases, where the impugned order of detention had been passed (a) without jurisdiction or in excess of it; (b) in violation of

procedure or disregard of principles of natural justice, (c) total neglect of proper precautions; (d) error apparent on the face of the record and (e)

similar such circumstances. This list is not exhaustive, but only indicative. While the Central Government exercises its jurisdiction, on a report u/s

3(5) of the Act, the cause if any, for revocation or modification, must appear ex facie, and it is not as though re-weighing of the entire material is

contemplated. In other words, this provision is only to curb acts of flagrant abuse of power by exercising authority, violation of principles of natural

justice etc., As stated earlier, this power u/s 14(1) of the Act may give a procedural facility to the detenu to plead for revocation, but he will not

have a right, u/s 3(5) of the Act, as the one contemplated u/s 8. Though supervisory power cannot be invoked as a matter of right, the supervisory

power is an additional check or safe-guard. If a representation is made by detenu, invoking the provisions of Section 14 of the Act, non-

consideration within a reasonable time frame, may enure in favour of the detenu. But when such power, is stated to have been exercised, on receipt

of report u/s 3(5) of the Act, when there is nothing to suspect or doubt proper exercise of such power, the detenus will not have any in-built right,

without placing proper material, to challenge the specific stand taken by the Respondents, of the proper discharge of the duty coupled with

discretion, u/s 14 of the Act.

Mr. Kumar, then referred to the decision of a Division Bench of the Andhra Pradesh High Court in W.P. Nos. 4534 and 4555 of 1991.

Orders were pronounced in both the writ petitions on 25.6-1991. Those were cases where the detenus were detained in exercise of the powers

conferred u/s 3 of the Prevention of Black-marketing and Maintenance of supplies of Essential Commodities Act, 1980. The orders of detention

were made by the Collector District Magistrate of Renga Reddy District, which was approved by the State of Andhra Pradesh. The question

posed for consideration was the non-consideration of the case of the detenus in the light of Section 14(1) of the Act (in pari materia) with Section

14(1) of the National Security Act whether or not to revoke or modify the orders of detention by the Central Government, had resulted in

contravention of the rule of procedural fairness culminating in violation of Article 22 of the Constitution of India. In that case, the Central

Government had not filed any counter. There was also no material to show, that the cases of those two detenus had been considered u/s 14(1) of

the Act by the Central Government. On such inaction, the Division Bench of the Andhra Pradesh High Court held, that the continuance of

detention of the detenus was illegal and unconstitutional being in violation of Article 21 of the Constitution. The learned Judges after referring to the

case law, held that

the discretion conferred on the Central Government whether or not to revoke the order of detention u/s 14(1) of the Act, carried with it a duty,

intended as a measure of additional check or safe-guard against the improper exercise of the power of detention, to consider the case for such

revocation. This duty must be discharged not only with constant vigilance and watchful care, but also with reasonable expedition.

The Court further held, that the Central Government was duty bound to consider the case u/s 14(1) of the Act, for the purpose of revocation or

modification of the detention orders.

There cannot be any discordant note, that there is an inherent obligation on the Central Government to consider the report along with

documents forwarded by the State Government u/s 3(5) of the Act as expeditiously as possible. Non-exercise of such power or delayed exercise

of such power, vitiating the orders of detention, will be purely a question of fact. While a report of the State Government, cannot be thrown away

unread, into the waste paper basket, irrespective of the fact, that there was no representation or petition from the detenu to the Central

Government, it cannot be held, that the Central government had disabled itself from exercising its powers, without proper foundation being laid or

sufficient material being available, to substantiate the said stand. If the report prima facie revealed mala fides or abuse of power on the part of the

detaining authority or non-compliance with the mandatory provisions of law, the Central Government, if it had not acted to thwart it, had failed to

exercise its supervisory power u/s 14(1) of the Act, as observed by Gauhati High Court in Hitendra Nath Goswami Vs. State of Assam and

Others, In such a case, non-compliance with the mandatory provisions of law, would defeat the intention of the Parliament The Central

Government cannot slightly thwart the intention of parliament by failing to carry out its purpose. In the said case, Hintendra Nath Gosamy made no

representation to the Central Government, The Central Government received the report of the State Government, considered it, and found it prima

facie valid. As a result, the order of detention was not revoked by the Central Government, in exercise of its power u/s 14(1)(b) of the Act. All

that was held in the said case was, that the provisions under Sections 3(5) and 14(1) of the Act, were mandatory. On a reading of the Act it is

manifest, that the scheme is to provide a machinery for an effective exercise of the power of detention at various stages by different authorities. The

Central Government will have to apply its mind to the report of the State Government, keeping in view the policy and objects of the Act.

Parliament intended that the Central Government should always keep a vigilant eye in the matter of life and liberty of the citizen guaranteed by

Article 21 of the Constitution. It is for the Central Government to revoke or modify any detention order in exercise of its discretionary power u/s

14(1) of the Act, on receipt of the report from the State Government. The Central Government cannot throw it unread into the waste paper

basket. The report is intended to be considered with reasonable expedition. The Full Bench further observed as hereunder:

It is a case where the Central Government may be considered to have failed to understand the object and scope of Section 14(1) read with

Section 3(5) and of its function and duties thereunder. To construe otherwise will also attract the vice of arbitrariness and unfairness which are the

sworn enemies of equality guaranteed under Article 14 of the Constitution, one procedure on representation made by the detenu to the

Government and a different procedure on the report received from the State Government u/s 3(5).

The opinion expressed was, that the discretionary power of the Central Government u/s 14(1) in the context of Section 3(5) was coupled with

duty to consider the report with reasonable expedition, and for doing so, no representation or petition by the detenu was necessary. This

proposition has been stated by the Supreme Court in Sabir Ahmed Vs. Union of India (UOI), where the following observations were made:

The power u/s 11 may either be exercised on information received by the Central Government from its own sources including that supplied u/s 3

by the State Government, or, from the detenu in the form of a petition or representation.

This is settled law.

The supervisory power or additional check or safeguard provided u/s 14(1) of the Act, on receipt of a report u/s 3(5) from the state

Government, is a power to be exercised, if the record ex facie demands interference. Section 3(5) of the Act does not refer to communication to

the detenu. ''Communication'' under Article 22(5) of the Constitution is a strong word. It includes not only the grounds of detention, but takes in its

fold'' supply of documents relied upon by the detaining authority''. The power u/s 14(1) of the Act has to be exercised with expedition in the event

of receipt of a representation from the detenu, or a report u/s 3(5). This power is distinguishable from Section 8 of the Act, which concerns itself

with communication of grounds, to the detenu to afford him the earliest opportunity of making a representation against the order of the appropriate

Government. The right of the detenu to make an effective representation cannot be curtailed either by lack of communication or insufficient

communication. Article 22(5) of the Constitution confers two distinct, though inter related, rights on the detenu, namely (1) the right to be informed

of the grounds on which the order of detention has been made and (2) the right to be enabled at the earliest opportunity to make a representation

against the order Naresh Chandra Ganguli Vs. The State of West Bengal and Others, The march of law entitled the detenu to be supplied with

copies of all relevant documents, which were relied upon for arriving at the subjective satisfaction to detain him presently. The communication

ought to be in the language known to the detenu, in order to enable him to make an effective and purposeful representation. ""Communicate"" under

Article 22(5) of the Constitution, and reporting by the State Government u/s 3(5) of the Act together with grounds and such other particulars which

have a bearing on the need for detention in the opinion of the State Government, cannot be put on the same pedestal.

In Anwar Vs. The State of J. and K., the Supreme Court stated

that Habeas Corpus, though a writ of right, is not a writ of course. Its scope has grown to achieve its purpose of protecting individuals, against

erosion of the right to be free from wrongful restraint, on their rightful liberty. But, when, as in the present case, the Petitioner has no right to move

about freely in this country without a proper legal sanction, the restraint exercised on him for expelling him from India could not be construed on the

facts and circumstances of this case to amount to his custody being illegal, so as to require this Court to direct his immediate release. The

constitutional protection against illegal deprivation of personal liberty construed in a practical way cannot entitle non citizens like the Petitioner to

remain in India contrary to the provisions of the law governing foreigners.

The Supreme Court went on to add:

The Petitioner was a foreigner as defined in the Foreigners Act and not being a citizen, he was clearly not entitled to any fundamental right

guaranteed by Article 19 of the constitution. His entry into this Country was also without any right; he had thus no right to remain within the

territories of India.

The Apex Court was considering an order of detention made in exercise of the powers conferred by Section 3(1)(b) read with Section 5 of the

Jammu and Kashmir Preventive Detention Act"".

The Supreme Court in Giani Bakshish Singh Vs. Government of India and Others, while dealing with Section 3(1)(a) and (b) of the

Maintenance of Internal Security Act, 1971 with reference to the detention of a foreigner for purposes other than mentioned in Clause (b)

observed as follows:

Clause (a) and Clause (b) dealt with two different kinds of powers. Under Sub-section 3(1)(a), the power is given to the State to detain even a

foreigner who is found inside its territory in order to prevent him from indulging in prejudicial activities. This power is available not only in a case

where the foreigner wants to continue to stay in India, but even where in order to avoid preventive detention, he offers to go out of the country. If

such person happens to come to India and if it was apprehended, that if not detained, he would go to his country and from there continue to

indulge in activities prejudicial to the security and integrity of India, he can be detained in India...Clause (b) of Sub-Section (1) of Section 3 under

which a power is given to the State to detain a foreigner either for regulating his continued presence in India or making arrangements for his

expulsion from India, would not be ultra vires of the Constitution.

The Supreme Court emphatically slated ''no'' to the question whether a person can be detained, only where the grounds of detention are based on

facts which can be held to be an offence, cither in India or in a foreign country, for which he can be punished. The Apex Court went on to add,

that preventive detention was not a punishment for an offence. Prejudicial activities contemplated u/s 3(1) were not necessarily activities prohibited

or made punishable by specific provisions of law. It cannot, therefore, be argued that detention on that ground was not permissible. The provisions

of Section 3(1)(a) and (b) of the National Security Act are similar to the provisions u/s 3 of Maintenance of Internal Security Act, 1971.

In the instant writ petitions, the State Government has validly passed the impugned orders of detention u/s 3(1)(b) of the National Security Act,

with a view to regulating the continued presence of the detenus in India. We accept the statements of the Respondents, that the State Government

had reported the fact of detention to the Central Government within 7 days, with the grounds on which the orders had been made and such other

particulars, in its opinion having a bearing on the necessity for the order, and the Central Government had immediately attended to the said report,

without being disabled Completed the examination of it, and decided on 4.3.1991, that there was no necessity to interfere with the order of

detention made by the Government of Tamil Nadu, since there was no reason to revoke the order of detention.

In view of our reasonings aforestated, all these writ petitions shall stand dismissed.