Holding

An officer specially empowered to make a preventive detention order is the detaining authority and must consider the detainee's representation; failure to do so violates Article 22(5) and makes the detention unlawful.

Summary

The Supreme Court examined whether an officer specially empowered under the COFEPOSA Act or the PIT NDPS Act to make a preventive detention order is required to consider the detainee's representation against that order. It held that the officer who makes the order is the detaining authority and must afford the detainee the earliest opportunity to make a representation, which the officer must consider. Failure by the officer to consider the representation violates Article 22(5) of the Constitution and renders the detention illegal. The Court also affirmed that the officer retains an independent power to revoke the order under Section 21 of the General Clauses Act, in addition to the revocation powers of the Central and State Governments. Consequently, the appeals of the detainees were allowed and the Union of India's appeals dismissed. The judgment reinforced the procedural safeguards for persons subject to preventive detention.

Issues considered

When an order of preventive detention is made by an officer specially empowered by the Central or State Government, must that officer consider the detainee's representation under Article 22(5)?
Does the officer specially empowered under COFEPOSA or PIT NDPS have an independent power to revoke the detention order?
Is the failure of the detaining officer to consider the representation a violation of the constitutional safeguard in Article 22(5) rendering the detention illegal?
Are the observations in Amir Shad Khan v. L. Hmingliana binding on the present case?

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)s. 11, s. 3
Constitution of Indias. Article 22(4), s. Article 22(5)
General Clauses Act, 1897s. 1, s. 21
Maintenance of Internal Security Act, 1971
National Security Act, 1980s. 3(4), s. 8(1)
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT NDPS)s. 12, s. 3
Preventive Detention Act, 1950s. 7(1)

Subjects

preventive detentionrepresentationArticle 22detaining authorityrevocationconstitutional safeguardCOFEPOSANDPS Actfundamental rightsprocedural fairness

Judgment

I
)

KAMLESHKUMAR ISHWARDAS PATEL ETC. ETC. A
v.
UNION OF INDIA AND ORS. ETC. ETC.

APRIL 17, 1995

[A.M. AHMADI, CJ, S.C. AGRAWAL, S.P. BHARUCHA, B
K.S. PARIPOORNAN AND SUJATA V. MANOHAR, JJ.]

ConseTVation of Foreign Exchange and Prevention of Smuggling Ac-
tivities Ac4 1974-Sections 3 and JI.
c
Prevention of Illicit Traffic in Narcotics Drugs & Psychotropic Sub-
'
stance Act, 198lf-Sections 3 and 12-Detention Orde,-.Detenu's right to
make representation-To whom representation is to be made-Who is em-
powered to revoke the detention order.

Constitution of India, 1951>-Article 22(4) and (5)--Preventive Deten- D
tiorr-Nature and scope of rights of Detenue.
)
The common question arising for consideration in the appeals was
when an order for preventive detention is passed by an officer especially
empowered to do so by the Central Government or the State Government, E
whether the said officer is required to consider the representation sub·
milted by the detenue.

Answering the question in affirmative; allowing the appeals on behalf
of the Detenues and dismissing the appeals of the Union of India, this
... ___ ,,/ Court F
HELD : 1. The Constitution prescribes certain safeguards in Article
22 for the protection of persons detained. One is contained in sub-clanse
o (a) of Clanse (4) of Article 22 and the other in Clause (5) of Article 22.
The former requires that no law providing for preventive detention shall
authorise the detention of a person for a period longer than' three months G
unless an Advisory Board has reported before the expiration of the said
--i period of three months that there is, in its opinion, sufficient cause for
detention. The latter provides that where any person is detained in pur·
suance of an order made under any law providing for Preventive Detention,
the authority making the order shall, as soon as may be, communicate to H
279
280 SUPREME COURT REPORTS [1995] 3 S.C.R.

A such person on the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation against the
order. [284·H, 285-A, B, CJ

2. Article 22(5) must be construed to mean that the person detained
has a right to make a representation against the order of detention not only
. Bto the Advisory Board but also to the detaining authority i.e. the authority
that has made the order of detention of the order for continuance of such
detention, wh.o is competent under law to revoke the order for detention and
thereby give relief to the person detained. The right to make a repre·
sentatim; carries within it a corresponding obligation on the authority
C making the order of detention to inform the person detained of his right to
make a representation against the order of detention to the authorities who
are required to consider such a representation. [289-H, 290-A]

State of Bombay v.Atma Ram Sridhar Vaidya, [1951] SCR 161;Abdul
Karim and Ors. v. State of West Bengal, [1969) 3 SCR 479; Pankaj Kumar
D Chakrabarty and Ors. v. State of West Bengal, [1970] 1 SCR 543; Jayanarayan
Sukul v. State of West Bengal, [1970] 3 SCR 225 and Amir Shad Khan v. L.
\
Hmingliana and Ors., [1991] 4 SCC 39, referred to.

3. The power to revoke an order of detention that is conferred on the
E Central Government and the State Government under clauses (a) and (b)
of sub-section (1) of section 11 of the conservation of Foreign Exchange
and Prevention of Smuggling Activities (COFEPOSA) Act and Section 12
of the Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic
/
Substances (PIT NDPS) Act is in addition to the power of revocation that
is available to the authority that has made the order of detention. The
F conferment of the said power on the Central Government and the State
Government does not detract from the power that is available to the
authority that has made the order of detention to revoke it. [293-F, El

4. The use of the words "without prejudice to the provision of Section
G 21 of the General Clauses Act, 1897" in sub· section (1) of Section 11 of
the CO~'EPOSA Act and sub-section (1) of section 12 of the PIT NDPS Act
preserve the power of the officer making the order under Section 21 of the
General Clauses Act to revoke the order made by him. [294-E] (-
5. It is not correct to say that Article 22(5) does not confer a right to
H make representation to the officer specially empowered to make the order.
K.l. PATEL v. U.0.1. 281

The right or the person detained to make a representation against the order A
,I or detention envisaged by Article 22(5) comprehends the right to make such
a representation to the authority whi,ch can grant such relier i.e. the
authority \!filch can revoke the order or detention and set him at liberty and
since the officer who has made the order or detention is competent to revoke
it, the person detained has the right to make a representation to the officer B
who made the order or detention. [285-G, 285-H, 286-A]

State of Maharashtra v. Smt. Sushi/a Ma/at/a/ Shah and Ors., [1988]
4 sec 490, disapproved.

Haradhan Saha v. State of West Bengal, [1975] 3 SCC 198 and John C
Martin v. State of West Bengal, [1975] 3 SCC 836, distinguished.

Ibrahim Bac/iu Ba/an v. State of Gujarat and Ors., [1985] 2 SCC 24,
relied on.

6. The premise that the Government which bas empowered the officer D
, to make the order or detention becomes the detaining authority since there
.J is deemed approval by the Government or the order made by the officer
specially empowered in that regard frum the time or its issue, runs counter
to the scheme or the COFEPOSA Act and the PIT NDPS Act which differs
from that or other prevention detention laws, namely, the National Security E
Act, 1980. The Maintenance or Internal Security Act,1971 and the Preven·
live Detention Act 1950. [297-G, H, 298-A]

6.1. The COFEPOSA Act and the PIT NDPS Act do not require the
approval or an order made by the officer specially empowered by-the State
Government or by the Central Government. The order passed by such an F
officer operates on its own force. All that is required by Section 3(2) or
COFEPOSA Act and PIT NDPS Act is that the State Government shall'
within 10 days forward to the Central Government a report in respect or
an order that is made by the State Government or an officer specially
empowered by the State Government. An order made by the officer spe·
cially empowered by the State Government is placed on the same footing G
as an order made by the State Government because the report has to be
forwarded to the Central Government in respect or both such orders. No
such report is required to be forwarded to the Central Government in
respect or an order made by an officer specially empowered by the Central
Government. Requirement regarding forwarding or the report contained H
282 SUPREME COURT REPORTS [1995] 3 S.C.R.

A in Section 3(2) of the COFEPOSA Act and the PIT NDPS Act cannot,
therefore, afford the basis for liolding that an order made by an officer
specially empowered by the Central Government or the State Government
acquires deemed approval of that government from the date of its issue.
[298-E, F, G, H, 299-A]
B 6.2. Merely because the order of detention has been made by the
officer who has been specially empowered for that purpose would not justify
the inference that the said order acquires deemed approval of the govern-
ment that has so empowered him, from the date of the issue of the order so
as to make the said government the detaining authority. [299-D, El

C 6.3. Since the detention of the person detained draws its legal sanc-
tion from the order passed by such officer, the officer is the detaining
authority in respect of the said person. The officer specially empowered
for that purpose continues to be the detaining authority and is not dis-
placed by the concerned government after he has made the order of
D detention. Therefore, by virtue of his being the detaining authority he is
required to consider the representation of the person detained against the
order of detention. [299-F, 300-B, CJ
\
Kavita v. State of Maharashtra, [1981] 3 SCC 558 and Smt. Masuma
v. State of Maharashtra, [1981] 3 SCC 566, distinguished.
E
6.4. The decision in Sushi/a Mafat/al Shah (supra) in so far as with
holds that where an order of detention is made by an officer specially
empowered for this purpose representation against the order of detention
was not require to be considered by such officer and it is only to be
considered by the appropriate Govt. empowering such officer does not lay
F down the correct law. [300-G, HJ

7. Where the detention order has been made under Section 3 of the
COFEPOSA Act and the PIT NDPS Act by an officer specially empowered
for that purpose either by the Central Government or the State Govern-
G ment the person detained has a right to make a representation to the said
officer and the said officer is obliged to consider the said representation
and the failure on his part to do so results in denial of the right conferred
on the person detained to make a representation against the order of \-
detention. [301-C, DJ

H 7.1. This right of the detenue is in addition to his right to make the
283

representation to the State Government and the Central Government A
where the detention order has been made by an officer specially authorised
by the State Government and to the Central Government where the deten-
tion order has been made by an officer specially empowered by the Central
Government, and to have the same duly considered. (301-E]

7.2. This right to make a representation necessarily implies that the B
person detained must be informed or his right to make a representation
to the authority that has made the order or detention at the time when he
is served with the grounds or detention so as to enable him to make such
a representation and the failure to do so results in denial or the right or
the person detained to make a representation. [301-f] C
8. The failure on the part or the officer who made the order of
detention to consider the representation of the detenue renders the deten-
tion illegal and without authority of law. This illegibility is not cured by
consideration or the representation by the appropriate authority in the
Central Government. [303-D] D
Smt. Santosh Anand v. Union of India, [1981] 2 SCC 420, relied on.
)
Satpa/ v. State of Punjab, [1982] 1 SCC 12 and Rajkishore Prasad v.
State of Bihar, [1982] 3 SCC 10, distinguished.
E
CRIMINAL APPELLATE JURISDICTION Criminal Appeal
Nos. 764-65 of 1994 Etc. Etc.

From the Judgment and Order dated 16/19.9.94 of the Bombay High
Court in Crl.W.P.No. 284 of 1994.
F
Ram Jethmalani, Mrs. H. Wahi, Ms. N. Mukherjee and Ms. S.
Hazarika for the AppF its in Cd.A.Nos. 764-65/94.

R.K. iain, Manoj Goel and Ms. Meenakshi Arora for the Appellant
in Crl.A.No. 553195 G
K.T.S. Tutsi, Additional Solicitor General, Y.P. Mahajan, V.J. Fran-
cis, V.K. Verma, Krishan Mahajan and D.S. Mehra for the Union of India.

Ram Jethmalani, B. Kumar and K.K. Mani for the Respondent in
Crl.A. No. 850/94. H
284 SUPREME COURT REPORTS [1995] 3 S.C.R.

A AS. Bhasme for the Respondent in No. 3 and 4 in Crl.A.No. 553/95.

R.K. Jain, P.H. Parekh, Ms. Sunita Sharma and N.K. Sahoo for the
intervener in Crl.A.Nos. 764-65/94.

The Judgment of the Court was delivered by
B
S.C. AGRAWAL, J. Leave granted in SLP (Crl.) No. 282/94.

When an order for preventive detention is passed by an officer
especially empowered to do so by the Central Government or the State
Government, is the said officer required to consider the representation
C submitted by the detenu?

This is the common question that arises for consideration in these
appeals in the context of orders for preventive detention passed by officers
especially empowered by the Central Government under the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [for
D short 'COFEPOSA Act'] and the Prevention of Illicit Traffic in Narcotic
Drugs & Psychotropic Substances Act, 1988 [for short 'PIT NDPS Act'].
There is divergence in the decisions of this Court on this question. In Amir \
Shad Khan v. L. Hming/iana and Ors., [1991] 4 SCC 39, (decided by a bench
of three Judges), it has been held that where an officer of the State
E Government or the Central Government has passed any detention order
and on receipt of a representation he is convinced that the detention needs
to be revoked he can do so. In State of Maharashtra v. Smt Sushi/a Mafatlal
Shah & Ors., [1988] 4 SCC 490, (decided by a bench two Judges), a
different view has been expressed. It has been held that if an order of
detention is made by an officer specially empowered by the Central
F Government or a State Government the representation of the detenu is \.- _
required to be considered only by the Central Government or the State
Government and it is not required to be considered by the officer who had
made the order.

G The question posed has to be considered in the light of the provisions
relating to preventive detention contained in Article 22 of the Constitution
as well as the provisions contained in the relevant statutes.

The Constitution, while permitting Parliament and the State Legisla-
'\-
lures to enact a law providing for preventive detention, prescribes certain
H safeguards in Article 22 for the protection of the persons so detained. One
KI. PATEL v. U.0.1. 285

such protection is contained in sub- clause (a) of Clause (4) of Article 22 A
which required that no law providing for preventive detention shall
authorise the detention of a person for a period longer than three months
unless an Advisory Board consisting of persons who are, or have been, or
are qualified to be appointed as Judges of a high Court has reported before
the expiration of the said period of three months that there is in its opinion
sufficient cause for detention. The other safeguard is contained in clause
B
(5) of Article 22 which provides as under:

"When any person is detained in pursuance of an order made under
any law providing for Preventive Detention, the authority making
the order shall, as Soon as may be, communicate to such person C
the grounds on which the order has been made and shall afford
him the earliest opportunity of making a representation against the
order".

This provision has the same force and sanctity as any other provision D
relating to fundamental rights. [See : State of Bombay v. Atma Ram Sridhar
Vaidya, [1951) SCR 167, at p.186). Article 22(5) imposes a dual obligation
I on the authority making the order of preventive detention: (i) to communi-
cate to the person detained as soon as may be the grounds on which the
order of detention has been made; and (ii) to afford the person detained
the earliest opportunity of making a representation against the order of E
detention. Article 22(5) thus proceeds on the basis that the person detained
has a right to make a representation against the order of detention and the
aforementioned two obligations are imposed on the authority making the
order of detention with a view to ensure that right of the person detained
to make a representation is a real right and he is able to take steps for F
redress of a wrong which he thinks has been committed. Article 22(5) does
not, however, indicate the authority to whom the representation is to be
made. Since the object and purpose of the representation that is to be
made by the person detained is to enable him to obtain relief at the earliest
opportunity, the said representation has to be made to the authority which
can grant such relief, i.e., the authority which can revoke the order of G
detention and set him at liberty. The authority that has made the order of
detention can also revoke it. This right is inherent in the power to make
~-!
the order. It is recognised by Section 21 of the General Clauses Act, 1897
though it does not flow from it. It can, therefore, be said that Article 22(5)
postulates that the person detained has a right to make a representation H
286 SUPREME COURT REPORTS [1995] 3 S.C.R.
A against the order of detention to the authority making the order. In
addition, such a representation can be made to any other authority who is
empowered by law to revoke the order of detention.

The learned Additional Solicitor General has urged that the repre-
sentation envisaged by Article 22(5) has to .be made to the Advisory Board
B referred to in Article 22(4) since the only right that has been conferred on
the person detained is to have the matter of his detention considered by
the Advisory Board. The learned Additional Solicitor General drew sup-
port from the words "making a representation against the order" in Article
22(5) for this submission and contended that the use of the word "a" in
C singular indicates that only one representation is to be made and that
representation has to be made to the Advisory Board because that is the
only authority contemplated under the Constitution which is required to
consider such representation. We are unable to give such a restricted
meaning to the words "making a representation against the order" in Article
D 22(5) which is in the nature of a fundamental right affording protection to
the person detained. As stated earlier, the object underlying the right to
make a representation that is envisaged by Article 22(5) is to enable the
person detained to obtain immediate relief. If the construction placed by
the learned Additional Solicitor General is accepted relief may not be
available to the detenu till the matter is considered by the Advisory Board
E and that would depend upon the time taken by the appropriate Govern-
ment in referring the matter to the Advisory Board. Moreover reference is
required to be made to the Advisory Board only in cases where the period
of detention is going to be longer than three months and it is not obligatory
to make a reference to the Advisory Board if the period of detention is
F less than three months. In such a case the right to make a representation
under clause (5) of Article 22 would be rendered nugatory. A construction
which leads to such a result must be eschewed.

We ma}, in this context, briefly refer to some of the decisions of this
Court relating to consideration of the representation of the person
G detained under Article 22(5).

InAbdul Karim and Ors. v. State of West Bengal, [1969]3 SCR 479, it
was urged on behalf of the State Government that since the Advisory Board 1-
had been constituted to consider the case of the detenues and to report to
H the State Government whether there was sufficient cause for the detention
K.I.PATELv. U.0.1.[AGRAWAL,J.] 2S7

there was no obligation on the part ~f the State Government to consider A
·the representation. Rejecting the said contention, it was said :

'The right of representation under Article 22 is a valuable con-
stitutional right and is not a mere formality. It is, therefore, not
possible to accept the argument of the respondent that tne State
Government is not under a legal obligation to consider the repre- B
sentation of the detenu or that the representation must be kept in
cold storage in the archives of the Secretariat till the time or
occasion for sending it to the Advisory Board is reached. If the
viewpoint contended for by the respondent is correct,the constitu-
tional right under Article 22(5) would be rendered illusory. Take C
for instance a case of detention of a person on account of mistaken
identity. If the order of detention has been made against A and a
different person B is arrested and detained by the police
authorities because of similarity of names or some such cause, it
cannot be reasonably said that the State Government should wait
for the report of the Advisory Board before releasing the wrong D
person from detention." [p.487]

The decision in Abdul Karim (supra) was reaffirmed by the Constitu-
tion Bench of this Court in Pankaj Kumar Chakrabarty and Ors. v. State of
West Bengal, [1970] 1 SCR 543, wherein it was observed : E
"It is true that cl.(5) does not in positive language provide as to
whom the representation is to be made and by whom, when made,
it is to be considered. But the expression "as soon as may be" and
"the earliest opportunity" in that clause clearly indicate that the
grounds are to be served and the opportunity to make a repre- F
sentation are provided for to enable the detenu to show that this
detention is unwarranted and since no other authority who should
consider such representation is mentioned it can only be the detain-
ing authority to whom it is to be made which has to consider it.
Though cl. 5 does not in express terms say so it follows from its G
provisions that it is the detaining authority which has to give to the
detenu the earliest opportunity to make a representation and to
consider it when so made whether its order is wrongful or contrary
to the law enable it to detain him." [p.548]

[Emphasis supplied] H
288 SUPREME COURT REPORTS [1995] 3 S.C.R.

A Again in Jayanarayan Sukul v. State of West Bengal, [1970)3 SCR 225,
decided by the Constitution Bench, this Court has held :

"Broadly stated, four principles are to be followed in regard to
representation of deteilus. First, the appropriate authority is bound
to give an opportunity to the detenu to make a representation and to
B consider the representation of the detenu as early as possible.
Secondly, the consideration of the representation of the detenu by
the appropriate authority is entirely independent of any action by
the Advisory Board including the consideration of the repre-
sentation of the detenu by the Advisory Board. Thirdly, there
c should not be any delay in the matter of consideration. It is true
that no hai:d and fast rule can be laid down as to the measure of
time taken by the appropriate authority for consideration but it has
to be remembered that the Government has to be vigilant in the
governance of the citizens. A citizen's right raises a correlative duty
of the State. Fourthly, the appropriate Government is to exercise
D
its opinion and judgment on the representation before the sending
the case along with the detenu' s representation to the Advisory
Board. If the appropriate Government will release the detenu the
Government will not send the matter to the Advisory Board. If
however the Government will not release the detenu the Govern-
E men! will send the case along with the detenu's representation to
the Advisory Board." (p.232] (Emprasis supplied).

All these cases related to orders of detention made by the District
Magistrate under the Preventive Detention Act, 1950 which specifically
F provided [in Section 7(1)] that the authority making the order of detention
shall afford to the person detained the earliest opporti;nity of making a
representation against the order "to the appropriate Government" and for
that reason there are observations by the court that the representation
should be considered by the "State Government" though the orders of
detention were made by the District Magistrate under Section 3(2) of the
G Preventive Detention Act. Although in these cases the focus was only on
the question whether the representation should be considered by the State
Government or the Advisory Board, and the court was not required to
consider whether the detaining authority should also consider the repre-
sentation, yet we find that in Pankaj Kumar Chakrabarty (supra) the court
H has said that the "detaining authority" must consider the representation
K.l.PATELv. U.0.l.[AGRAWAL,J.) 289

when so made. Similarly, in Jayanarayan Sukut (supra) the court has used A
the expression "appropriate authority'' in the first three principles as dis-
tinct from the expression "appropriate Government" used in the fourth
principle. The expression "detaining authority" would mean the authority
which has made the order of detention and the authority which has made
an order for continuance of such detention.
B
In Amir Shad Khan (supra) it has been held:

"The right to make a representati01~·against the detention order
thus flows from the constitutional guarantee enshrined in Article
22(5) which casts an obligation on the authority to ensure that the C
detenu is afforded an earliest opportunity to exercise that right, if
he so desires. The necessity of casting a dual obligation on the
authority making the detention order is obviously to acquaint the
detenu of what had weighed with the Detaining Authority for
exercising the extraordinary powers of detention without trial con- D
ferred by Section 3(1) of the act and to give the detenu an
opportunity to point out any error in the exercise of that power so
I that the said authority gets an opportunity to undo the harm done
by it, if at all, by correcting the error at the earliest point of time.
Once it is realised that Article 22(5) confers a right of repre-
sentation, the next question is to whom must the representation be E
made. The grounds of detention clearly inform the detenu that he
can make a representation to the State Government, the Central
Government as well as the Advisory Board. There can be no doubt
that the representation must be made to the authority which has
' _.../ the power to rescind or revoke the decision, if need be." [p.46] F

Article 22(5) must, therefore, be construed to mean that the person
detained has a right to make a representation against the order of detention
which can be made not only to the Advisory Board but also to. the detaining
authority, i.e., the authority that has made the order of detention or the
order for continuance of such detention, who is competent to give imme- G
diate relief by revoking the said order as well as to any other authority
which is competent under law to revoke the order for detention and
thereby give relief to the person detained. The right to make a repre-
sentation carries within it a corresponding obligation on the authority
making the order of detention to inform the person detained of his right H ·
290 SUPREME COURT REPORTS [1995] 3 S.C.R.

A to make a representation against the order of detention to the authorities
who are required to consider such a representation.

Having thus defined the nature of the right to make a representation
recognised by Article 22(5) we may now proceed to examine the relevant
provisions in the COFEPOSA Act and PIT NDPS Act.
B
Section 3 of the COFEPOSA Act confers the power to make orders
detaining certain persons and provides as under:
,
"Section 3. Power to make orders detaining certain persons.-

c (1) The Central Government or the State Government or any
officer of the Central Government, not below the rank of Joint
Secretary to that Government, specially empowered for the pur-
poses of this section by that Government, or any officer of a State
Government, not below the rank of a Secretary to that Govern-
ment, specially empowered for the purposes of this section by that
D Government may, if satisfied, with respect to any person (including
a foreigner), that, with a view to preventing him from acting in any
\
:nanner prejudicial to the conservation or augmentation of foreign
exchange or with a view to preventing him from-.

E (i) smuggling goods, or

(ii) abetting the smuggling of goods, or

(iii) engaging in transporting or concealing or keeping smuggled
goods, or
F
(iv) dealing in smuggled goods otherwise than by engaging in
transporting or concealing or keeping smuggled goods, or

(v) harbouring persons engaged in smuggling goods or in abetting
the smuggling of goods,
G
it is necessary so to do, make an order directing that such person
be detaintd.
1-
Provided that no order of detention shaH be made on any of
the grounds specified in this sub-section on which an order of
H detention may be made under Section 3 of the Prevention of Illicit
K.l.PATELv. U.0.1.[AGRAWAL,J.] 291

Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988 A
or under Section 3 of the Jammu and Kashmir Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Ordinance,
1988 (J.& K. Ordinance 1 of 1988).

(2) When any order of detention is made a State Government or
by an officer empowered by a State Government, the State Govern- B
ment shall, within ten days, forward to the Central Government a
report in respect of the order.

(3) For the purpose of clause (5) of Article 22 of the Constitution,
the communication to a person detained in pursuance of a deten- C
tion order of the grounds on which the order has been made shall
be made as soon as may be after the detention, but ordinarily not
later than five days, and in exceptional circumstances and for
reasons to be recorded in writing, not later than fifteen days, from
the date of detention."
D
Section 11 of the COFEPOSA Act, providing for revocation of
I detention orders, is in the following terms ;

"Section 11. 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 E
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;
F
(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 G
of another detention order under Section 2 against the siune
11
person.

Section 3 of the PIT ND PS Act is on the same lines as Section 3 of
COFEPOSA Act. There is slight difference in sub-section (l)but sub-sec-
tions (2) and (3) are identical. Section 12 of the PIT NDPS Act makes H
292 SUPREME COURT REPORTS [1995] 3 S.C.R.

A provision for revocation of detention orders and is in the same terms as
Section 11 of the COFEPOSA Act. ,_
The provisions in COFEPOSA Act and PIT NDPS Act <liffer from
those contained in the National Security Act, 1980 as well as earlier
preventive detention laws, namely, the Preventive Detention Act, 1950, the
B Maintenance of Internal Security Act, 1971 in some respects. Under sub-
section (3) of Section 3 of the National Security Act, power has been
conferred on· the District Magistrate as well as the Commissioner of Police
to make an order of detention, and sub-section (4) of Section 3 prescribes
that the officer shall forthwith report the fact of making the order to the
State Government to which he is subordinate together with the grounds on
c
which the order has been made and such other particulars as, in his
opinion, have a bearing on the matter, and that no such order shall remain
in force for more than twelve days after the making thereof unless, in the .
meantime, it has been approved by the State Government. In Section 8(1)
of the National Security Act it is prescribed that the authority making the
D order shall afford the person detained the earliest opportunity of making
a representation against the order to the appropriate Government. Similar
provisions were contained in the Preventive Detention Act, 1950 and the \
Maintenance of Internal Security Act, 1971. COFEPOSA Act and the PIT
ND PS Act do not provide for approval by the appropriate Government of
•
E the orders passed by the officer specially empowered to pass such an order
under Section 3. The said Acts also do not lay down that the authority
making the order shall afford an opportunity to make a representation to
the appropriate Government.

Under Section 3 of the COFEPOSA Act and the PIT NDPS Act an
F order of detention can be made by -
(i) The Central Government; or

(ii) an officer specially empowered by the Central Government;
or
G
(iii) the State Government; or

(iv) an officer specially empowered by the State Government. 1-

In view of Section 21 of the General Clauses Act the authority which
H has made the order of detention would be competent to revoke the said
KI. PATEL\'. U.0.1. [AGRAWAL,JJ 293

order. Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS A
,,~ Act provide for revocation of such an order by authorities other than the
authority which has made the order, under clause (a) of sub-section (1) of
both these sections an order made by an officer specially empowered by
the State Government can be revoked by the State Government as well as
by the Central Government and under clause (b) of sub-section (1) an B
order made by an officer specially empowered by the Central Government
or an order made by the State Government can be revoked by the Central
Government. This means that the Central Government has the power to
revoke orders made by -

(i) the State Government; c
(ii) an officer specially empowered by the State Government; and

(iii) an officer specially empowered by the Central Government.

Similarly, the State Government has the power to revoke an order D
made by an officer specially empowered by the State Government. In other
I words an order made by the officer specially empowered by the State'
' Government can be revoked by the State Government as well as by the
Central Government, an order made by the State Government can be
revoked by the Central Government and an order made by the officer
specially empowered by the Central Government can be revoked by the E
Central Government. The conferment of this power on the Central Govern-
ment and the State Government does not, however, detract from the power
that is available to the authority that has made the order of detention to
revoke it. The power of revocation that is conferred on the Central Govern-
- .. _J~
ment and the State Government under clauses (a) and (b) of sub-section F
(1) of Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS
Act is in addition to the power of revocation that is available to the
authority that has made the order of detention. This is ensured by the
11
words without prejudice to the provisions of Section 21 of the General
Clauses Act, 1897 (10 of 97)" in sub-section (1) of both the provisions.
G
If the power of revocation is to be treated as the criterion for
ascertaining the authority to whom representation can be ,made, then the
representation against an order of detention made by an officer specially
empowered by the State Government can be made to the officer who has
made the order as well as to the State Government and the Central H
294 SUPREME COURT REPORTS (1995] 3 S.C.R.

A Government who are competent to revoke the order. Similarly, the repre-
sentation against an order made by the State Government can be made to
the State Government as well as to the Central Governmelll and the
representation against an order made by an officer specially empowered
by the Ceotral Government can be made to the officer who has made the
order as well as to the Central Government.
B
The learned Additional Solicitor general has, however, submitted
that the officer specially empowered under Section 3 of the COFEPOSA
Act and PIT NDPS Act cannot be regarded as the detaining authority and
that though the order of detention is made by the officer specially em-
C powered by the Central Government or by the State Government the
detaining authority is the appropriate Government which has empowered
the officer to make the order and, therefore, it is the appropriate Govern-
ment alone which can consider the representation and revoke the same and
a representation does not lie to the officer who has made the order of
D detention. According to the learned Additional Solicitor General the only
p,rovision regarding revocation of detention orders is that contained in
Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act \
and under the said provisions the Central Government and the State
Government only have been empowered to revoke an order of detention.
E This contention fails to give effect to the words "without prejudice to the
provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897)" in
sub-section (1) of Section 11 of COFEPOSA Act and Section 12 of PIT
NDPS Act. As pointed out earlier the use of these words preserves the
power of the officer making the order under Section 21 of the General
Clauses Act to revoke the order made by him. It cannot, therefore, be said
F that the conferment of the power of revocation on the Central Government
and the State Governraent under Section 11 has the effect of depriving the
officer making the order of detention of the power to revoke the order
made by him. If that is so the officer who has made the order of detention
is competent to consider the representation made by the person detained
G against the order of detention made by such officer.

We may, at this stage, take note of some of the decisions of this Court
which have a bearing on the question under consideration.

H In Ibrahim Bachu Bafan v. State of Gujarat & Ors., (supra), this
K.LPATELv. U.0.L[AGRAWAL,J.J 295

Court, while construing the provisions of Section 11 of the COFEPOSA A
Act, has held:

''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 B
that right which the authority making the order enjoys under
Section 21 of the General Clauses Act, an order of detention is
also available to be revoked or modified by authorities names 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 under Section 21 of the General C
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 Clauses
Act was not adequate to meet the situation. Thus, while not D
affecting in any manner and expressly preserving the power under
Section 21 of the General Clauses Act of the original authority
i making the order, power to revoke or modify has been conferred
' on the named authorities." (p.28]

In Amir Shad Khan (supra) the majority view has been thus ex- E
pressed:

''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 p
needs to be revoked he can do so by virtue of Section 21 of the
General Clauses Act since Section 11 of the Act does not entitle
him to do so. If the State Government passes an order of detention
and later desires to revoke it, whether upon receipt of a repre-
sentation from the detenu or otherwise, it would be entitled to do
so under Section 21 of the General Clauses Act but if the Central G
Government desires to revoke an 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 under Section 21 of the General
Clauses Act. This clarifies why the power under Section 11 is
conferred without prejudice to the provisions of Section 21 of the H
296 SUPREME COURT REPORTS [1995J 3 S.C.R.

A General Clauses Act." [p.49]

In Smt. Sushi/a Mafat/al Shah (supra) the order of detention was
passed under Section 3 of the COFEPOSA Act by Shri D.N. Capoor,
Officer on Special Duty and Ex-officio Secretary to the Government of
~faharashtra, Home Department, as the officer specially empowered by
B the Government of Maharashtra under Section 3 of the COFEPOSA Act.
ll was communicated to the detenu that he had a right to make a repre-
sentation to the State Government as also to the Government of India
against the order of detention but it was not communicated to the detenu
that he had a right to make a representation to the detaining authority
C himself. It was contended that this has resulted in denial of the right to
make a representation under Article 22(5). The said contention was nega-
tived by this Court [A.P. Sen and S. Natarajan, JJ]. After referring to the
decisions of this Court in Abdul Karim (supra), Jayanarayan Sukul (supra),
Haradhan Saha v. State of West Bengal, (1975] 3 SCC 198 and John Martin
D v. State of West Bengal, (1975] 3 SCC 836, it was held that "on the plain
language of Article 22(5) the said Article does 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) to make a representation to D.N. Capoor himself as
he had made the order of detention." (p.498) After taking note of the
E•
provisions contained in the CO FEPOSA Act and after observing that
unlike in other Preventive Detention Acts, e.g., National Security Act,
Maintonance of Internal Security Act, Preventive Detention Act, the
CO FEPOSA Act does not provide for approval by the Government of an
order of detention passed by one of its duly empowered officers, the
F learned Judges have expressed the view that "an order passed by an officer
acquires 'deemed approval' by the government from the time of its issue
and by reason of its the Government becomes the detaining authority and
thereby constitutionally obligated to consider the representation made by
the detenu with utmost expedition." (p.505) Reliance has also been placed
G on the decisions in Kavita v. State of Maharashtra, (1981] 3 SCC 558 and
Smt. Masuma v. State of Maharashtra, (1981] 3 SCC 566.

The learned Additional Solicitor General has pleaded for acceptance
of the law laid down in Smt. Sushi/a Mafatlal Shah (supra). We regret out
H inability to do so.
K.I. PATELv. U.0.1. [AGRAWAL,J.] 297

The decision in Smt. Sushi/a Mafatla/ Shah (supra) proceeds on two A
premises: (i) Article 22(5) does not confer a right to make a representation
to the officer specially empowered to make the order; and (ii) under the
provisions of the COFEPOSA Act when the order of detention is made by
the officer specially empowered to do so, the detaining authority is the
appropriate Government, namely, the Government which has empowered B
the officer to make the order, since such order acquires 'deemed approval'
by the Government from the time of its issue.

With due respect we find it difficult to agree with both the premises.
Construing the provisions cf Article 22(5) we have explained that the right
of the person detained to make a representation against the order of C
detention comprehends the right to make such a representation to the
authority which can grant such relief, i.e., the authority which can revoi<e
the order of detention and set him at liberty and since the officer who hos
made the order of detention is competent to revoke it, the person detained
has the right to make a representation to the officer who made the order D
of detention. The first premises that such right does not flow from Article
22(5) cannot, therefore, be accepted.
I
The learned judges, while relying upon the observations in Abdul
Karim (supra) and the decisions in Jayanarayan Sukul (supra), Haradhan
Saha (supra) ·and John Martin (supra) have failed to notice that in these E
cases the court was considering the matter in the light of the provisions
contained Section 7(1) of the Preventive Detention Act, 1950, whereby it
'
was prescribed that the representation was to be made to the appropriate
Government. The observations regarding consideration of the repre-
sentation by the State Government in the said decisions have, therefore, to p
be construed in the light of the said provision in the Preventive Detention
Act and on that basis it cannot be said that Article 22(5) does not postulate
that the person detained has no right to make a representation to the
authority making the order of detention.

The second premise that the Central Government becomes the G
detaining authority since there is deemed approval by the Government of
the order made by the officer specially empowered in that regard from the
time of its issue, runs counter to the scheme of the COFEPOSA Act and
the PIT ND PS Act which differs from that of other preventive detention
laws, namely, the National Security Act, 1980, the Maintenance of Internal H
298 SUPREME COURT REPORTS [1995] 3 S.C.R.

A Security Act, 1971, and the Preventive Detention Act, 1950.
In the National Security Act there is an express provision [Section ~-
3(4)] in respect of orders made by the District Magistrate or the Commis-
sioner of Police under Section 3(3) and the District Magistrate or the
Commissioner of Police who has made the order is required to forthwith
B report the fact to the State Government to which he is subordinate. The
said provision further prescribes that no such order shall remain in force
for more than twelve days after the making thereof, unless, in the mean-
time, it has been approved by the State Government. This would show that
it is the approval of the State Government which gives further life to the
C order which would otherwise die its natural death on the expiry of twelve
days after its making. It is also the requirement of Section 3(4) that the
report should be accompanied by the grounds on which the order has been
made and such other particulars as, in the opinion of the said officer, have
a bearing on the matter which means that the State Government has to
take into consideration the grounds and the said material while giving its
D approval to the order of detention. The effect of the approval by the State
Government is that from the date of such approval the detention is
authorised by the order of the Stale Government approving the order of.
detention and the State Government is the detaining authority from the
date of the or~er of approval. That appears to be the reason why Section
E 8(1) envisages that the representation against the, order of detention is to
be made to the State Government. The COFEPOSA Act and the PIT
NDPS Act do not require the approval of an order made by the officer
specially empowered by the State Government or by the Central Govern-
ment. The order passed by such an officer operates on its own force. All
that is required by Section 3(2) of COFEPOSA Act and PIT NDPS Act is
F that the State Government shall within 10 d;iys forward to the Central
Government a report in respect of an order that is made by the State
Government or an officer specially empowered by the State Government.
An order made by the officer specially empowered by the State Govern-
ment is placed on the same footing as an order made by the State
G Government because the report has to be forwarded to the Central
Gover.nment in respect of both such orders. No such report is required to
be forwarded to the Central Government in respect of an order made by
an officer specially empowered by the Central Government. Requirement
regarding forwarding of the report contained in Section 3(2) of the
COFEPOSA Act and the PIT NDPS Act cannot, therefore, afford the
H
K.l. PATELv. U.0.l. [AGRAWA!.,J.] 299

basis for holding that an order made by an officer specially empowered by A
the central Government or the State Government acquires deemed ap-
proval of that government from the date of its issue. Approval, actual or
deemed, postulates application of mind to the action being approved by '
the authority given approval. Approval of an order of detention would
require consideration by the approving authority of the grounds and the B
supporting material on the basis of which the officer making the order had
arrived at the requisite satisfaction for the purpose of making the order of
detention. Unlike Section 3(4) of the National Security Act there is no
requirement in the COFEPOSA Act and the PIT NDPS Act that the
officer specially empowered for the purpose of making of an order of
detention must forthwith send to the concerned government the grounds C
and the supporting material on the basis of which the order of detention
has been made. Nor is it prescribed in the said enactments that after the
order of detention has been made by the officer specially empowered for
that purpose the concerned govermnent is required to apply its mind to
the grounds and the supporting material on the basis of which the order D .
of detention was made. The only circumstance from which inference about
deemed approval is sought to be drawn is that the order is made by the
officer specially empowered for that purpose by the concerned govern-
ment. Merely because the order of detention has been made by the .officer
who has been specially empowered for that purpose would nol, in our
opinion, justify the inference that the said order acquires deemed approval E
of the government that has so empowered him, from the date of the issue
of the order so as to make the said government the detaining authority. By
specially empowering a particular officer under Section 3(2) of the
CO FEPOSA Act and the PIT ND PS Act the Central Government or the
State Government confers an independent power on the said officer to F
make an order of detention after arriving at his own satisfaction about the
activities of the person sought to be detained. Since the detention of the
person detained draws its legal sanction from the order passed by such
Officer, the officer is the detaining authority in respect of the said person.
He continues to be the detaining authority so long as the order of detention G
remains operative. He ceases to be the detainlllg authority only when the
order of detention ceases to operate. This would be on the expiry of the
period of detention as prescribed by law or on the order being revoked by
the officer himself or by the authority mentioned in Section 11 of the
COFEPOSA Act and Section 12 of the PIT NDPS Act. There is nothing
in the provisions of these enactments to show that the role of the officer H
·-
300 SUPREME COURT REPORTS (1995] 3 S.C.R.

A comes to an end after he has made the order of detention and that
thereafter he ceases to be the detaining authority and the concerned
government which had empowered him assumes the role of the detaining
authority. We are unable to construe the provisions of the said enactment
as providing for such a limited entrustment of power on the officer who is
B specially empowered to pass the order. An indication to the contrary is
given in Section 11 of the COFEPOSA Act and Section 12 of the PIT
NDPS Act which preserve the power of such officer to revoke the order
that was D)ade by him. This means that the officer does not go out of the
picture after he has passed the order of detention. It must, therefore, be
held that the officer specially empowered for that purpose continues to be
C the detaining authority and is not displaced by the concerned government
after he has made the order of detention. Therefore, by virtue of his being
the detaining authority he is required to consider the representation of the
person detained against the order of detention.

D In Kavita v. State of Maharashtra, (supra) the order of detention was
made by the Government of Maharashtra and not by an officer specially
empowered by the State Government. Similarly in Smt. Masuma (supra) it
was held that the order of detention was not made by P.V. Nayak in his
individual capacity as an officer of the State Government but it was made
E by him as representing the State Government and that it was the State
Government which had made the order of detention acting through the
instrumentality of P.V. Nayak, Secretary to Government who was
authorised to act for and on behalf of and in the name of the State
Government under the Rules of Business. The said decisions did not relate
to an order made by an officer specially empowered for that purpose is
F required to be considered by such officer.

It appears that the decision in Ibrahim Bachu Bafan (supra), a
decision of a bench of three-Judges, was not brought to the notice of the
learned Judges deciding Smt. Sushi/a Mafatlal Shah (supra). For the •
G reasons aforementioned we arc of the view that the decision in Smt. Sushi/a
Mafatlal Shah (supra). In so far as it holds that where an order of detention
made by an officer specially empowered for the purpose representation
againct the order of detention is not required to be considered by such ' -
officer and it is only to be considered by the appropriate Government
H empowering such officer does not lay down the correct law.
Kl.PATEL v. U.0.1. [AGRAWAL,J.] 301
The learned Additional Solicitor General has also placed reliance on A
the decision in John Martin v. State of West Benga~ (supra) wherein the
court was dealing with an order of detention made under the Maintenance
of Internal Security Act, 1971 which contained an express provision in
Section 8(1), for the representation to be made against the detention order
to the appropriate Government. The said decision can, therefore, have no B
application to a detention under ihe COFEPOSA Act and the PIT NDPS
Act which do not contain such a provision.

Having regard to the provisions of Article 22(5) of the Constitution
and the provisions of the COFEPOSA Act and the PIT NDPS Act the
question posed is· thus answered : Where the 9.etention order has been C
made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by
an officer specially empowered for that purpose either by the Central
Goverilment or the State Government the person detained has a right to
make a representation to the ~aid officer and the said officer is obliged to
consider the said representation and the failure on his part to do so results D
in denial of the right conferred on the person detained to make a repre-
sentation against the order of detention. This right of the detenue is in
addition to his right to make the representation to the State Government
and the Central Government where the detention order has been made by
an officer specially authorised by a State Government and to the Central E
Government where the detention order has been made by an officer
specially empowered by the Central Government, and to heve the same
duly considered. This right to make a representation necessarily implies
that the person detained must be inJ'ormed of his right to make a repre-
sentation to the authority that has made the order of detention at the time F
when he is served with the grounds of detention so as to enable him to
make snch a representation and the failure to do so results in denial of the
right of the person detained to make a representation.

The appeals. may now be taken up for consideration in the light of
the answer given to the question posed for consideration. G

---- ,_ Cr/A.Nos. 764-765 of 1994.

Cr!. /' Nos. 764-765 of 1994 relate to the detention of Ishwardas
Bechardas Patel under order dated January 21, 1994 under Section 3 of. H
302 SUPREME COURT REPORTS [1995] 3 S.C.R.

A the COFEPOSA Act made by Shri Mahendra Prasad, Joint Secretary to
the Government of India, Ministry of Finance, Department of Revenue, as
the officer specially empowered by the Central Government. The grounds
of detention were served on the detenu on February 5, 1994. On February
21, 1994 the detenu made a representation to the officer who had made
B the order of detention namely, Shri Mahendra Prasad, Joint Secretary to
the Government of India, as well as to the Advisory Board. On March 22,
1994 the detenu was informed that the said representation was considered
by the Central Government and the same has been rejected. The officer
who made the order of detention did not, however, consider the said
representation though it was addressed to him and he forwarded the said
c representation with his recommendation that the representation may be
rejected. A writ petition was filed in the Bombay High Court by the
appellant who is the son of the detenu. By order dated July 20, 1994 a
Division Bench of the High Court referred the following three questions
to the Full Bench for consideration :
D
(1) Has the specially empowered officer under the COFEPOSA
Act also an independent power to revoke the order of detention. \·
In view of Section 11 of the COFEPOSA Act read with Section 1
of the General Clauses Act?

E (2) Are observations in Amir Shad Khan regarding power of
revocation of specially empowered officer under the COFEPOSA
Act not binding on this Court?

(3) Does failure to take independent decision on revocation of
F order of detention by the specially empowered officer under the
COFEPOSA Act and merely forwarding the same with recommen-
dation to reject, result in non-compliance with constitutional
safeguard under Article 22(5) of the Constitution?

By the judgment of the Full Bench dated August 26, 1994 the
G question No. 1 was answered in the affirmative and it was had that the
specially empowered officer under the COFEPOSA Act has an inde-
pendent power to revoke in view of Section 11 of COFEPOSA Act read \ •
with Section 21 of the General Clauses Act. Question No. 2 was also
answered in the affirmative and it was held that the observations in Amir
H Shad Khan (supra) regarding the power of revocation by such officer under
<

K.l.PATE!.v. U.O.l.[AGRAWAL,J.] 303

the COFEPOSA Act were binding on the High Court. Question No. 3 was A
answered in the negative and it was held that the failure on the part of the
k)
officer making the order of detention to consider the representation made
by the detenu was of no consequence because the representation of the
detenu was, in fact, in effect and in substance considered by the Finance
Minister who was an appropriate authority for the purpose of consideration B
of such representation. The matter was thereafter considered by tl).e
Division Bench of the High Court and by judgment dated September 16/19,

.,., 1994 the writ petition was dismissed. These appeals have been filed against
the judgment of the Full Bench dated August 26, 1994 as well as the
judgment of the Division Bench dated September 16/19, 1994.
c
Shri Ram Jethmalani, the learned senior counsel appearing for the
appellant, has assailed the finding recorded by the Full Bench on question
No. 3 and has submitted that the failure on the part of the officer who
made the order of detenticn to consider the representation of the detenu
results in denial of the right of the detenu to make a representation D
recognised by Article 22(5) and the said denial renders the detention of
__/ · the detenu illegal and without the authority of law. In support of his
aforesaid submission Shri iethmalani has placed reliance on the decision
in Smt. Santosh Anand v. Union of India, (1981) 2 SCC 420. In that case
the order of detention was made by the Chief Secretary, Delhi Administra- E
tion, acting as the specially empowered officer under Section 3 of the
COFEPOSA Act. A representation was made by the detenu to the detain-
ing authority, namely, the Chief Secretary, and the Chief Secretary for-

'. _..(
warded the same to the Administrator with the endorsement under his
signature to the effect "the representation may be rejected" and the said
representation was rejected by the Administrator. It was contended that
F
there was non-consideration of the representation and rejection by the
detaining authority which resulted in denial of the constitutional safeguard
under Article 22(5) of the Constitution. The said contention was accepted
by this Court and it was observed :
G
"It is thus clear to us that the rep•esentation could be said to have
been considered by the Chief Secretary at the highest but he did
- ----._j
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 H
304 SUPREME COURT REPORTS (1995] 3 S.C.R.

A 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." [p.422]

B The Full Bench of the Bombay High Court has taken note of the
decision in Smt. Santosh Anand (supra) but has placed reliance on the later
decisions of this Court in Sat Pal v. State of Punjab, [1982] 1 SCC 12 and
Rajkishore Prasad v. State of Bihar, [1982] 3 SCC 10, to hold that the Court
must look at the substance of the matter and not act on mere technicality ~..
C and that even though the constitutionally speaking a duty is cast on the
,detaining authority to consider the representation yet if in fact and in effect
the appropriate Government has finally considered the representation of
the detenu it cannot be said that there is contravention of Article 22(5).

D In Sat Pal v. State of Punjab, (supra) the order of detention was made
by the State Government of Punjab under Section 3 of the COFEPOSA
Act and the detenu had made two representations, one was addressed to
the Joint Secretary, Government of Punjab and the other was endorsed to \-
the Central Government through the Secretary, Ministry of Finance,
E Department of Revenue, New Delhi. Both the representations were for-
warded by the Superintendent, Central Jail to the Joint Secretary, State
Government of Punjab with an endorsement that one of them be forwarded
to the Central Government. The State Government rejected the repre-
sentations but there was a delay o" the part of the State Government in
forwarding the representation to the Central Government and ultimately
F the Central Government also rejected the said representation and these
was no delay on the part of the Central Government in considering the
representation. This Court held that there was no denial of making a
representation to the Central Government and the delay on the part of the
State Government fa forwarding the representation to the Central Govern-
G ment, by itself, was not sufficient to invalidate the order of detention. Sat
Pal (supra) was, therefore, not a case of non-consideration of the repre-
sentation by one of the authorities who was required to consider the said
representation.

H lnRajkishore Prasad v. State of Bihar, (supra) the order of detention
K.1.PATELv. U.0.1.(AGRAWAL,J.] 305

was made by the District Magistrate under Section 3(2) of the National A
Security Act. The detenu made a representation to the detaining authority
»--)'
(District Magistrate) but in the meantime the case of the detenu was
referred to the Advisory Board and the representation was rejected by the
State Government after the matter bad been considered by the Advisory
Board. The Court, while upholding the contention urged on behalf of the B
detenu that constitutionally speaking a duty is cast on the detaining
authority to consider the representation, bas referred to Section 8(1) of the
National Security Act which provides for making of representation ~t
. ·-j
-----.. the order, not to the detaining authority but to the. appropriate Govern-
ment, and has observed that this was done presumably to provide an
effective check by the appropriate Government on the exercise of power c
by subordinate officers like the District Magistrate or the Commissioner of
Police. It was held that if the appropriate Government bas 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. The decision in Santosh Anand (supra) was noticed D
and it was distinguished on the ground that under the national Security Act
there is a specific provision in Section 8 which requires that the detaining
authority shall afford the earliest opportunity to make a representation
against the order not to the detaining authority but to the appropriate
Government. E

The decisions in Sat Pal (supra) and Rajkishore Prasad (supra) on
which the High Court has placed reliance do not, therefore, detract from
" the law laid down in Santosh Anand (supra). Having found that the
representation of the person detained was not considered by the officer F
'·--' making the order of detention the High Court was in error in holding that
the said failure on the part of the detaining authority to consider and
decide the representation is not fatal to the order of detention. We are,· ,.
therefore, unable to uphold the answer given by the Full Bench to question
No. 3 and, in our view, the said question should be answered in the ·
affirmative. On that basis it bas to be held that since there was a denial of G

.,.
the constitutional safeguard provided to the detenu under Article 22(5) of
the Constitution on account of the failure on the part of the offi~er who
had made the order of detention to independently consider the repre-
sentation submitted by the detenu against his detention and to take a
decision on the said representation the further detention of the detenue H
~-

ji}6 SUPREME COURT REPORTS [1995]3 S.C.R.

A Ishwardas Bechardas Patel is rendered illegal. The appeals, therefore,
deserve to be allowed.

Cr/A.No. 850 and 915 of 1994
'.
Jn both the appeals the orders of detention were made under Section
B 3 of the PIT NDPS Act by the officer specially empowered by the Central
Government to make such an order. In the grounds of detention the detenu
was only informed that he can make a representation to the Central
Government or the Advisory Board. The detenu was not informed that he
can make a representation to the officer who had made the order of ...
\_'
c detention. As a result the detenu could not make a representation to the
officer who made the order of detention. The Madras High Court, by the
judgments under appeal dated November 18, 1994 and January 17, 1994,
allowed the writ petitions filed by the detenus and has set aside the order
of detention on the view that the failure on the part of the detaining
D authority to inform the detenu that he has a right to make a repre~entation
to the detaining authority himself has resulted in denial of the constitution-
al right guaranteed under Article 22(5) of the Constitution. In view of our
answer to the common question posed the said decisions of the Madras
High Court setting aside the order of detention of the detenus must be
upheld and these appeals are liable to be dismissed.
E
CrlA.No ...... ./95 {Arising out of SLP (Crl.) No. 282/94]

By order dated July 27, 1993 made under Section 3 of COFEPOSA
Act by Shri Mahendra Prasad, Joint Secretary to the Government of India,
F an officer who had been specially empowered under Section 3(1) of the \._
COFEPOSA Act Jayantilal Somchand Shah, the husband of the appellant,
was order to be detained. The writ petition filed by the appellant challeng-
ing the said detention was dismissed by the Bombay High Court by judg-
ment dated October 27, 1993. One of the contentions that has been urged
G on behalf of the appellant before this Court was that he had addressed a
joint representation dated September 14, 1993 to the detaining authority,
the Central Government and the Advisory Board and the same was sub-
milted through the Superintendent, Bombay Central Prison and that the
said representation was rejected by the Central Government and it was not
H considered and decided independently by the detaining authority himself.
.i !
K.I.PATELv. U.0.1.[AGRAWAL,J.] 307

These facts are not disputed on behalf of the respondents. Since the A
appellant had submitted a representation to the detaining authority, name-
•. ) ly, the officer who was specially empowered to make an order of detention,
and the said officer did not consider the representation there has been a
denial of the constitutional safeguard guaranteed ~nder Article 22(5) of
the Constitution. As a result the detention of the appellant has to be held B
to be illegal and the said appeal has to be allowed.

At this stage it becomes necessary to deal with the submission of the
learned Additional Solicitor General that some of the detenues have beeri
indulging in illicit smuggling of narcotic drugs and psychotropic substances
on a large scale and are involved in other anti-nation:\l activities which are C
very harmful to the nature of the activities of the detenues the cases do not
justify interference with the orders of detention made against them. We are
not unmindful of the harmful consequences of the activities in which the
detenues are alleged to be involved. But while discharging our constitution-
al obligation to enforce the fundamental rights of the people, more espe- D
dally the right to personal liberty, we cannot allow ourselves to be
influenced by these considerations. It has been said that history of liberty
is the history of procedural safeguards. The framers of the Constitution,
being aware that preventive detention involves a serious encroachment on
the right to personal liberty, took care to incorporate, in clauses (4) and E
(5) of Article 22, certain minimum safeguards for the protection of persons·
sought to be preventively detained. These safeguards are required to be
'jealously watched and enforced by the Court". Their rigour cannot be
modulated on the basis of the nature of the activities of a particular person.
We would, in this context, reiterate what was said earlier by this court while F
rejecting a similar submission :

"May be that the detenu is a smuggier whose tribe (and how their
numbers increase!) deserves no sympathy since its activities have
paralysed the Indian economy. But the laws of Preventive Deten-
tion afford only a modicum of safeguards tci persons detained G
under them and if freedom and liberty are to have any meaning in

-- our democratic set-up, it is essential that at least those safeguards
are not denied to the detenues."

(See : Rattan Singh v. State of Punjab, (1981] 4 SCC 481 at p.488] H
308 SUPREME COURT REPORTS (1995] 3 S.C.R.

A We have, therefore, no hesitation in rejecting this contention.
In the result, CrLANos. 850 and 915 of 1994 are dismissed, Cr!. A
Nos. 764-765of1994, Cd.No. 553/95 (arising out of SLP (Crl) No. 282194)
are allowed and the detenues, namely, Ishwardas Bechardas Patel (father
of the appellant in Cd.A.Nos. 764-765 of 1994] and Jayantilal Somchand
B Shah [husband of the appellant in Crl.ANo. 553 of 1995 (arising out of
SLP (Crl) No. 282194) are ordered to be set free unless they are required
in counecti9n with any other matter.

AS. Appeals allowed /dismiseed.

\.