Holding

The detention order was a valid order of the State Government, the detainees were duly informed of their right to make representations, and the explained delay does not invalidate the order.

Summary

The appellants, who were operating a factory manufacturing Mandrax tablets, were detained under the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988. They challenged the detention on two grounds: that the order failed to inform them of their right to make a representation to the State Government, and that the order was delayed by five months, rendering it illegal. The Supreme Court examined the language of the detention order, which began with “Government of Karnataka” and ended “by order and in the name of the Governor of Karnataka,” and held that it was an order of the State Government, not merely of a specially‑empowered officer. The Court found that the grounds of detention expressly granted the right to make representations to the detaining authority, the Central Government and the PITNDPS Advisory Board, and that the appellants understood the order to be from the State Government. The Court also accepted the detaining authority’s explanation for the delay, concluding that the order was not void. Consequently, the appeals were dismissed.

Issues considered

Whether the detention order under the PITNDPS Act failed to communicate the detainee's right to make a representation to the State Government.
Whether the detention order was made by the State Government or by a specially empowered officer under Section 3(1) of the Act.
Whether the five‑month delay in issuing the detention order renders it illegal and void.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

Subjects

detentionright to representationPITNDPS Actdelay in detention orderspecially empowered officerState Governmentnarcotic drugsillegal detention

Judgment

A RAJAN WORLIKAR ETC. ETC.
v.
STATE OF KARNATAKA AND ORS.

MAY 4, 2001

B [M.B. SHAH AND S.N. VARIAVA, JJ.]

Prevention ofIllicit Traffic in Narcotic Drugs & Psychotropic Substances
Act, 1988-Ss. 3 and 12-Detention order-Detenues' right to make
representation before appropriate authority-Communication in detention·
C order-Detention order clearly stipulating that detenu can make
representation to the detaining authority, Central Government and the
PITNDPS Advisory Board-Detenues clearly understanding that detention
order was passed by the State Govemment-Held, it cannot be said that
detenues were noi communicated that they have right to make representation
D to the State Government.

. Detention-Delay of 5 months in passing the order-Effect of-Held,
since the detaining authority has sufficiently explained the reasons for the
said delay, order not illegal or void.

E Appellants, who were manufacturing Mandrax tablets by establishing
a factory, were detained under the Prevention of Illicit Traffic in Narcotic
Drugs & Psychotropic Substances Act, 1988. Appellants' writ petitions before
the ffigh Court contending that their detention under the Act was illegal and
void, were dismissed. Hence the present appeals.
\ .
F On behalf'-Of appellants, it was contended th.at in the detention order,
it was nowhere rrl.entioned that detenu had right to make representation to
the State Government and such non-communication vitiates the detention;
that from the operative part of the detention order it was apparent that the
detaining authority was 'Specially Empowered Officer' under Section.31 of
·the Act and not the State Government.
G
On behalf of respondents it was contended that the detention order was
made by State Government and in the grounds it was specifically mentioned
.· that detenu can make the representation against the order of detaining
authority i.e. the State Government; that the appellants understood very clearly
H• that the order of detention was passed by the State Government and to that
512
RAJAN WORLIKAR v. STATE OF KARNATAKA 513

- effect there was averment made by them in their writ petitions before the
High Court.
A

Dismissing the appeals, the Court

HELD : 1.1. It cannot be said that the appellants were not communicated
that they were having right to make representation to the State Government B
[517-G]

1.2. The grounds of detention specifically provided that the detenues
have right to make the representation to the detaining authority, Central
Government and the PITNDPS Officers Board. The order of detention begins
with the words "Goveminent ofKamataka......... " and ends with "by order and C

.. in the name of Governor of Karnataka." Thus, from the order of detention
it is apparent that the said order was passed by the State Government Though
the order of detention shows that the Additional Chief Secretary & Principal
Secretary to Government, Home & Transport Department is specially
empowered under Section 3(1) of the Act, but that by itself does not mean
that the order of detention has been passed by him in the capacity of Specially D
empowered Officer. If 'Specially empowered Officer' has exercised his power
conferred upon him under Section 3(1) of the Act, he would not have stated
that it was by order and in the name of the Governor. The beginning of the
order also would not have been "Government of Karnataka", but it would
have been in his name. Further, the appellants clearly understood that the E
order of detention was passed by the State Government and there were
averments in their writ petitions to that effect.
[515-H; 516-A-F; 517-E-F..:G; 518-A-B]

Kamlesh Kumqr Ishwar Das Patel v. Union of India, [1995) 4 SCC 51,
referred to.
F
.2. The detaining authority has sufficiently explained the reasons for
delay in making the detention order. Thus, High Court was justified in
. ··rejecting the contention of the appellants that the order of detention was
illegal and void on the ground of delay. [518.:.E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. G
763 of 1998. ·

· From the Judgment and Order dated 28.10.1997 of the Karnataka High
Court in W.P. No. 48of1997 (HC).

WITH H
514 SUPREME COURT REPORTS [2001] 3 S.C.R.

A Criminal Appeal Nos. 764, 765, 766, 767, 768 and 769of1998. .......
Sushil Kumar, Anil Lalla, R.P. Wadhwani, Prashant Kumar, M.P. Midha,
N. Ganpathy, S.W.A. Qadri, Y.P. Mahajan, B.K. Prasad and P. Parmeswaran for
the appearing parties.

B The Judgment of the Court was delivered by

SHAH, J. These appeals are filed against the judgment and order dated
28th October 1997 passed by the High Court of Karnataka at Bangalore in
Writ Petition Nos. 42 to 48of1997 (HC). By the impugned judgment and order,
the High Court rejected the contention raised by the appellants that the order
C of detention under the Prevention of Illicit Traffic in Narcotic Drugs &
Psychotropic Substances Act, 1988 (hereinafter referred to as 'the PITNDPS
Act') was illegal and void. .....
For the purpose of deciding these appeals we would refer to few facts
D pertaining to Criminal Appeal No. 763 of 1998. The order of detention was
passed on 15th April, 1997 and has already expired on 23rd April, 1998. It has
also been pointed out that trial against the appellant is pending for the
offences punishable under the NDPS Act. In the grounds of detention it is
alleged that detenues had established factory where they were manufacturing
Mandrax tablets which are psychotropic substances prohibited under the
E NDPS Act at the premises situated at Belgaum, State of Karnataka. A search
was conducted in the aforesaid premises on 7th and 8th November, 1996.
During the search it was found that premises had been converted into a
factory where Mandrax Tablets were being manufactured by installing a
tabletting machine, an oven and granulator etc. Appellant Rajan Worlikar was
-
arrested on 8th November, 1996. He applied for releasing him on bail and was
F released on bail on 25th February, 1997. The order releasing him on bail was
stayed by the High Court. Finally that revision application was allowed and
the order releasing him on bail was set aside by order dated 17th April, 1998.
During that time on 15th April, 1997, as stated above, order of detention was
passed against him.
G At the time of hearing of this appeal, learned senior counsel Shri Sushi!
Kumar on behalf of the appellant in Criminal Appeal No. 763 of 1998 submitted
that the order of detention is void because of non-communication to the
detenu that he has a right of making representation to the State Government.
For this purpose he relied upon the decision rendered by a Constitution
H Bench of this Court in Kam/esh Kumar lshwar Das Patel v. Union of India
RAJAN WORLIKAR v. STATE OF KARNATAKA [SHAH, J.] 515
[1995] 4 SCC 51. He precisely relied upon Paragraph 38 of the Judgment which A
reads thus:

"38. Having regard to the provisions of Article 22(5) of the
Constitution and the provisions of the COFESPOSA Act and the
PITNDPS Act the question posed is thus answered: Where the
detention order has been made under Section 3 of the COFEPOSA Act B
and the PITNDPS Act by an officer specially empowered for that
purpose either by the Central Government or the State Government
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 C
conferred on the person detained to make a representation against the
order of detention. This right of the detenu 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
Government where the detention order has been made by an officer D
specially empowered by the Central Government, and to have the
same duly considered. This right to make a representation necessarily
implies that the person detained must be informed of his right to make
a representation to the authority that has made the order of detention
at the time when he is served with the grounds of detention so as to E
enable him to make such a representation and the failure to do so
results in denial of the right of the person detained to make a
representation."

~ ·---" In support of his contention, he has referred to paragraphs 30 and 31
of the· grounds of detention which are as under: F.

"30. You have a right to make any representation against your
detention to the detaining authority, Central Government and the
PITNDPS Advisory Board constituted for this purpose.

31. If you desire to make any representation to the detaining G
authority you may do so and address it to the undersigned and
forward the same through the Superintendent of the Prison, where
you are detained."

It is his submission that these grounds nowhere mention that detenu
has right of making a representation to the State Government and as the State H
516 SUPREME COURT REPORTS [2001] 3 S.C.R.

A Government is empowered to revoke the order of detention under Section 12
of the Act, non-communicating to the detenu that he can make a representation
to the State Government vitiates the detention.

As against this, learned counsel appearing on behalf of the respondents
submitted that the impugned order of detention is made by the State
B Government and in the grounds quoted above, it is specifically mentioned
that detenu can make representation against the said order to the detaining
authority. It is, therefore, submitted that in the present case, the detaining
authority is the State Government. For this purpose, reliance is place on the
order of detention as well as the grounds of detention. It is also pointed out
C that the appellants understood very clearly that the order of detention was
passed by the State Government and to that effect, there is averment made
by them in paragraph 1 of the writ petitions filed before the High Court.
Therefore, it was submitted that apart from the fact that appellants have not ...
filed any representation to any authority, they have not raised this contention
before the High Court. It is contended that as the appellants had not raised
D the contention earlier which is sought to be raised before this Court at the
time of hearing of this appeal, it was not possible for the State Government ,__
to place the necessary facts on record. However, in view of Article 166(2) of
~·
the Constitution, order authenticated in the name of Governor cannot be
called in question that it is an order made by the Governor.
E
. For deciding this controversy, we would first refer io .the order of
detention which begins with the words "Government of Karnataka, Karnataka
Government Secretariat, Vidhana Sabha Bangalore". Further at the end of the
order, it is stated "BY ORDER AND IN THE NAME OF THE GOVERNOR OF
KARNATAKA". It is signed by the Additional Chief Secretary and Principal
F Secretary to Government, Home and Transport Department. Similar is -the
position with regard to ihe grounds of detention. Further, in para 28 Of the
grounds of detention, it has been stated as under:-

"28. From the above facts and materials, the Government of ·
Karnataka is satisfied that you· have knowingly aided Sri .. Taj Mohd.
G ' Khan in illicit traffi.c in narcotic drugs and psychotropic substances
as is evid~nt from your statement and material available on record.
Considering your role even though prosecution proceedings under
the Narcotic Drugs and Psychotropic Substances Act, 1985 have been
initiated against you in the matter, the Government of Karnataka is
H satisfied that there is a compelling necessity in view ofthe possibility
RAJAN WORLIKAR v. STATE OF KARNATAKA [SHAH, J.] 517

of your being released on bail under normal law and the possibility A
of your indulging in illicit traffic in narcotic drugs and psychotropic
substances to detain you under the provisions of Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPS)
1988, with a view to prevent you from engaging yourself in such
prejudicial activities in future."
(Emphasis added) B

From the aforesaid paragraph as well as the order of detention and the
grounds of detention, ~t is apparent that the order of detention is made by
the State Government. However, it has been pointed out by the learned
counsel for the appellants that in the main part of the order of detention, the C
words used are to the effect that "!...Additional Chief Secretary and Principal
Secretary to Government, Home and Transport Department specially
empowered under Section 3(1) of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988 am satisfied .... Now therefore ...
I direct that the said Shri Rajan Worlikar be detained ... " It is also submitted
that in the operative part of the order of detention, it is not mentioned that D
the State Government was satisfied in passing the said order. Therefore, it is
contended that the detaining authority is the 'specially empowered officer'
under section 3(1) of the PITNDPS and not the State Government.

In our view, it would be difficult to accept the contention of the learned E
counsel for the appellants. Undoubtedly the order of detention shows that
the Additional Chief Secretary and Principal Secretary to Government, Home
& Transport Department is specially empowered under Section 3(1) of the
Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act,
1988. However, that by itself does not mean that the order of detention has
been passed by him in his capacity as a specially empowered officer. If F
'specially empowered officer' has exercised his power conferred upon him
under section 3(1) of the PITNDPS Act, he would not have stated that it was
by order and in the name of the Governor. The beginning of the order also
would not be "Government of Karnataka", but it would be in his name.
· Further, the grounds of detention also make it clear, particularly para 28, that G
the order was passed by the Government of Kamataka. Therefore, it cannot
be said that the appellants were not communicated that they were having
right of making representation to the State Government. The grounds
specifically provide that they have right to make representation to the detaining
authority, the Central Government and PITNDPS Officers Board. Ground No.
31 further clarifies that if any representation is made to the 'detaining authority', H
518 SUPREME COURT REPORTS [2001] 3 S.C.R.

A then it be addressed to the undersigned, namely, Additional Chief Secretary
and the Principal Secretary to the Government. This also makes it clear that
the detaining authority is different from the Additional Chief Secretary. Further,
the appellants understood that the order of detention was passed by the State
Government and in paragraph 1 of the writ petition, it has been stated that
B the first respcndent (State of Karnataka) exercising its powers under section
3(1) of the Act has detained the appellants. In view of this factual position,
in our view, it is not necessary to deal with the contention raised by the
learned counsel for the respondent that under Article 166(2) of the Constitution,
the order made in the name of the Governor shall hot be called in question
on the ground that it is not an order made by the Governor.
c The learned counsel for the appellants ne-xt submitted that there is delay
in making the order of detention and, therefore, the same is illegal and void.
For this purpose, he submitted that appellant was arrested on 8.11.1996 and
the detention order was passed after nearly 5 months i.e. on 15th April, 1997.
In our view, this contention is rightly rejected by the High Court as the
D detaining authority has sufficiently explained the reasons for the said delay.
The explanation given for the delay is also mentioned in para 4 (C) of the
counter affidavit filed on behalf of the Union of India. Considering the facts
stated therein, in our view, the High Court has rightly rejected the said
contention.
E No other contention is raised by the learned counsel for the appellants.
In the result, these appeals are dismissed.

S.VK. Appeals dismissed.