Smt. Girija Brij Mohan Sood vs Union of India (UOI) and Others

H.L. Gokhale, J.—The petitioner seeks to challenge the order of detention dated 29th December, 1993, passed u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) (''COFEPOSA Act'' for short) against her husband, Brij Mohan Rameshchandra Sood. The order was passed by Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, who is specially empowered u/s 3(1) of the COFEPOSA Act. The said order was passed, as the order states, with a view to preventing the detenu from smuggling goods in future, which satisfaction he had arrived at on the basis of the material before him.

The detenu was served with the grounds of detention on 5th January, 1994 and the documents in support thereof were served on him on 12th January, 1994. On the same day, i.e., on 12th January, 1994, the petitioner made a representation on behalf of the detenu that the order passed against her husband be revoked on account of bad health of the detenu and the various family responsibilities which he was required to attend to. The said representation was directly addressed to Shri Mahendra Prasad (in his name), who had passed the order. The detenu also made another representation to the detaining authority on 15th January, 1994, wherein he submitted that the order of detention be revoked. He also submitted that his case be placed before the Advisory Board at the earliest and, in the meanwhile, he sought parole.

The aforesaid two representations, though addressed to Shri Mahendra Prasad, respondent No. 2 - detaining authority, were not decided by the said detaining authority himself, but they came to be decided much later by the Central Government on 10th February, 1994. By its letter dated 10th February, 1994, the Central Government communicated to the detenu and to the petitioner that the two representations dated 12-1-1994 and 15-1-1994 had come to be rejected. The said rejection letter states that the order of detention passed against the detenu was the order passed by the Central Government and on that footing the said representations were carefully considered by the Central Government and the same had been rejected.

On behalf of the petitioner, Learned Counsel Shri Karmali submitted that, as the scheme of the provisions of Sections 3 and 11 of the COFEPOSA Act read with Section 21 of the General Clauses Act, 1897 stands, the power to revoke a detention order is vested not only in the Central Government or the State Government, but it is also vested in the officer of the Central Government or State Government, if the order concerned is passed by the officer specially empowered in that behalf. He drew our attention to the judgment of the Supreme Court in the case of Amir Shad Khan and another Vs. L. Hmingliana and others, , where the Supreme Court (Per Ahmadi, J.) has observed, in paragraph 3, after quoting Section 11 of the COFEPOSA Act, as follows:

... 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 Governmentention order is passed by an officer of the Central Government or a State Government, the Central Government is empowered to revoke the detention order. Now 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 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.

Shri Karmali also relied upon the decision of the Full Bench of this Court in Haji Abdulla Haji Ibrahim Mandhra Vs. Union of India (UOI) and Others, , where, following the decision in Amir Shad Khan''s case, this Court has reiterated that, where an order of detention has been passed by an officer specially empowered under the Act, he has a power to revoke that order. Further, relying upon the facts and observations in the case of Santosh Anand v. Union of India, (1981) 2 SCC 420 , Shri Karmali submitted that, if the representation was not considered by the detaining authority when it was addressed to that authority, the constitutional safeguard of the detenu under Article 22(5) cannot be said to have been strictly observed and complied with.

Undisputedly, in the present case, the representations dated 12th and 15th January, 1994. though made to Shri Mahendra Prasad, Joint Secretary, Ministry of Finance, were not decided by him, even though, as laid down by the Supreme Court from time to time as well as reiterated by the Full Bench of this Court, he did have the authority to decide the same in his capacity as the detaining authority. This is also not disputed in the affidavit-in-reply filed on behalf of the Central Government. However, on behalf of respondent No. 2 Learned Counsel Shri Abichandani strenuously submitted that the above mentioned two representations had come to be made in quick succession. He further submitted that since the second representation prayed for forwarding the case to the Advisory Board and also sought parole and did not confine to merely revoking of the detention order, it had become necessary that the same be placed before the Central Government. It is difficult to accept this submission of Shri Abichandani. The second representation specifically prays that the order of detention be revoked. Thereafter, it prays that the case of the detenu be placed before the Advisory Board and he may as well be released on parole. The representation made prior thereto by the petitioner, i.e., the wife of the detenu, also prays for mercy and specifically seeks that the order of detention be revoked for the reasons stated therein. The first representation was addressed to the Joint Secretary by his name. That being the position, it was expected of the officer concerned, in fact it was his constitutional obligation to decide the said representation which was addressed to him. This is because when a certain power is conferred, the duty to act, in exercise thereof, flows with it. Shri Abichandani also referred to the third representation made by the petitioner on 21st January, 1994 and submitted that the same was made to the Central Government and, therefore, the earlier two representations also had to be decided by the Central Government. On this point, it has to be stated that the third representation has, in fact, been addressed to the Joint Secretary to the Central Government, Ministry of Finance, which is the post held by Shri Mahendra Prasad, the detaining authority, and the representation seeks certain documents as mentioned in the said representation. The reply of the Central Government to the said representation also states that the said documents cannot be supplied. The reply nowhere states that, for any reasons, his request for revocation is rejected. Shri Abichandani, thereafter, submitted that, assuming that Shri Mahendra Prasad did have the power to revoke, he was not bound to decide the representation made to him for that purpose. Now, this submission cannot be accepted for the simple reason that, as laid down by the Supreme Court in the case of Smt. Santosh Anand, once a constitutional safeguard is provided, it has got to be strictly observed or complied with, and if the detaining authority simply passes on the responsibility to somebody else, it cannot be said that the said safeguard is observed. Once a power is conferred, it implies that it is coupled with the duty to act accordingly and, in the instant case, it is clear on the record that the detaining authority has not discharged his obligation in that behalf.

Shri Abichandani then relied upon two judgments of the Supreme Court prior to the one in the case of Amir Shad Khan, which are not referred therein. The first amongst the two is Smt. Kavita Devidasani Vs. State of Maharashtra and Others, . In that case, in the words of the Honourable Supreme Court, "it was suggested (on behalf of the detenu) 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." The said submission was rejected by observing as follows:

... 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 by 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 that case, the earlier decision of the Supreme Court in the case of Smt. Santosh Anand, cited above, does not seem to be brought to the notice of the concerned Bench deciding the case of Kavita, nor is the submission advanced as precisely as in the case of Smt. Santosh Anand that under Article 22(5) as also under the provisions of Section 11 of the COFEPOSA Act, it is the duty of the detaining authority to consider the representation seeking revocation and that, if the same is not considered by the said authority, there is a non-compliance of the safeguard under Article 22(5) of the Constitution.

The second judgment relied upon by Shri Abichandani is in the case of State of Maharashtra and Another Vs. Sushila Mafatlal Shah and Others, . It is true that, in that case, a Bench of two Judges of the Supreme Court had considered the decision in the case of Smt. Santosh Anand and still held 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 requires ''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." Shri Abichandani submitted that the judgment in Amir Shad Khan''s case cannot be said to be laying down a binding proposition of law, inasmuch as, it did not consider the earlier decision of the Supreme Court in the cases of Kavita and Sushila Mafatlal. He, therefore, submitted that there was nothing wrong if the detaining authority did not decide the representation, though it was addressed to it and that did not result into violation of the provisions of Article 22(5) of the Constitution. As pointed out above, the submissions before the Supreme Court in the case of Kavita were on a different footing. No doubt, the decision in the case of Sushila Mafatlal considered the very point and is not referred in the decision of Amir Shad Khan. Still the observations of the Supreme Court in Amir Shad Khan''s case will have to be held as binding as against those in Sushila Mafatlal, inasmuch as, the decision in Amir Shad Khan''s case is later in point of time and is by a Bench of three Judges. Incidentally, we may as well record that our attention was drawn to a subsequent unreported order dated 22-10-1991 of the Supreme Court, in Criminal Appeal No. 652 of 1991 (Abdul Nazir v. Shri L. Hmingliana), where, in similar facts, the Honourable Mr. Justice Ahmadi and the Honourable Mr. Justice Punchhi have observed that they are ''bound by the decision'' in the case of Amir Shad Khan.

Apart from that, as far as this High Court is concerned, the very controversy came to be considered by a Full Bench of this Court in Haji Abdulla Haji Ibrahim Mandhra Vs. Union of India (UOI) and Others, , wherein the Full Bench (Per Nanavati, Actg. C.J.) held that: "...it (i.e., Supreme Court) laid down as a proposition of law that as and when an order is passed by the Secretary specially empowered by the appropriate Government that authority has the power to cancel or revoke the order passed by it in view of Section 21 of the General Clauses Act and, therefore, the detenu has a right to make a representation to such an authority. It is difficult to accept the contention raised on behalf of the respondents that the observations made by the Supreme Court in Amir Shad Khan''s case are not intended to be authoritative in essence. We are clearly of the opinion that while deciding the case of Amir Shad Khan, the Supreme Court intended that its decision be regarded as an authoritative pronouncement on the point of law, and that it should be followed by other Courts. For that reason and for the reason that the decision in Amir Shad Khan''s case is later in point of time, it has to be followed in preference to the earlier decision of the Supreme Court in Sushila. Mafatlal''s case. That being the position, the submission of Shri Abichandani that the judgment in the case of Amir Shad Khan does not lay down good law cannot be accepted. It lays down the ambit and the with of the right of the detenu to make a representation and the nature and extent of obligation of the detaining authority arising under Article 22(5) of the Constitution read with Section 11 of COFEPOSA Act and Section 21 of the General Clauses Act, 1897, and the said decision is binding on this Court for the reasons stated above.

The continued detention of the detenu is, therefore, declared to be bad in law for non-consideration of the representations on his behalf by the detaining authority to whom they were addressed, resulting into violation of his fundamental right under Art. 22(5) of the Constitution. In view thereof the petition deserves to be allowed on this ground alone and the same is, hereby, allowed: The detenu is directed to be released forthwith if not required for any other reasons. Rule is made absolute accordingly. Shri Abichandani applies orally for stay of this judgment and order. The application is rejected. He also requests for leave to appeal to the Honourable Supreme Court. The leave is refused.