Supreme Court of India
STATE OF MAHARASHTRA & ANOTHERversusSMT. SUSHILA MAFATLAL SHAH & OTHERS
- Citation
- 1988 INSC 264
- Decided
- 7 September 1988
- Disposal
- Appeal(s) allowed
- Bench
- A P SEN
Holding
Under the COFEPOSA Act, the appropriate Government is the detaining authority and Article 22(5) requires the detainee to make representations only to the State and Central Governments, not to the officer who issued the detention order.
Summary
The State of Maharashtra detained Bhadresh Mafatlal Shah under the COFEPOSA Act after he was caught with gold biscuits. The detention order was issued by D.N. Capoor, a specially empowered officer, who informed the detainee that he could make representations only to the State and Central Governments. The detainee’s mother challenged the order, arguing that the detainee also had a right to make a representation to the officer who made the order, invoking Article 22(5). The Supreme Court held that, under the plain language of Article 22(5) and the COFEPOSA Act, the appropriate Government—not the individual officer—is the detaining authority, and the detainee’s right of representation is limited to the State and Central Governments. Consequently, the High Court’s quashing of the detention was erroneous. The appeal was allowed, setting aside the High Court’s order, but the detainee was not re‑arrested.
Issues considered
- Whether an order of detention passed by a specially empowered officer of the State or Central Government makes that officer the detaining authority, requiring a three‑fold representation to himself, the State Government and the Central Government.
- Whether there is any distinction between a detention order made by such an officer and one made directly by the Government itself for the purpose of representation rights.
- Whether the detainee is constitutionally entitled to make his first representation to the officer who passed the detention order before approaching the State and Central Governments.
Legislation cited
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 11, s. 2, s. 3, s. 8
- Constitution of Indias. 22(5)
- General Clauses Act, 1897s. 21
Subjects
preventive detentionArticle 22(5)representation rightdetaining authorityCOFEPOSAspecial empowermentstate governmentcentral governmentrevocation of detentionconstitutional law
Judgment
STATE OF MAHARASHTRA & ANOTHER A
v.
SMT. SUSHILA MAFATLAL SHAH & OTHERS
SEPTEMBER 7, 1988
[A.P. SEN AND S. NATARAJAN, JJ.] B
Conservation of foreign Exchange and Prevention of Smuggling
Activities Act, 1974: Sections 2, 3, 8 & 11-0fficer of State/Central
Government specially empowered to pass detention orders-Whether
··obligated to inform -detenu that he has three fold opportunity to make
representatio·ns to himself, the State Government and Central
Government-Whether there is any distinction between order of deten·
c
lion passed by Officer of State Government and Officer of Central
Government.
.Constitution of India, 1950-Artic/e 22(5)-Detenu has a right to
make representation to State and Central Government-No further right D
to makl! representation to the officer who has made order of detention.
The detenu, D.N. Shah, was caught on 23.10.1986 in the act of
trimspolilug ten gold biscuits of foreign origin. On 2.2.1987 D.N.
Ca poor, Officer on Special Duty and ex-officio Secretary to the Govern-
ment of Maharashtra, in exercise of the powers specially conferred E
upon him by the Government of Maharashtra, passed an order of
detention against D.N. Shah under section 3(1) of the COFEPOSA Act.
In the grounds of detebtion served on the detenu he was informed that
be had a right to make a representation to the State Government as also
to the Government of India.
F
The detenu's representation addressed to D.N. Capoor was
forwarded by the Superintendent, Central Prison, Nasik to the State
Government who rejected the same.
In March., 1987, the detenu's mother, respondent No. 1, filed a
petition in the High Court of Bombay challenging the detention order G
inter alia on the ground that the order of detention having been passed
J under section J(l) by D.N. Capoor in his capacity as a specially em·
powered person, the detenu had a right to make a representation, in the
first instance, to D.N. Capoor himself as the detaining authority before
availing of his right to make .further representation, and failure to
notify him of this right in tlie grounds of detention violated article 22(5) H
827
828 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.
of the Constitution. The High Court accepted this contention and
A
quashed the order of detention.
Before this Court the appellant contended that: (1) neither Article
22(5) of the Constitution nor the provisions of the COFEPOSA Act
afforded scope for holding that if an order of detention was passed by a
B specially empowered officer of the State Government or the Central
Government, a different kind of procedure had to be followed in the
matter of affording opportunity to the detenu to make his represen-
tation against the order of detention, and (2) the High Court was not
right in holding that the detenu had a right to have his representation
considered by the very same officer who had passed the order of
detention.
c
The respondent, on the other hand, contended that unlike other
Preventive Detention Acts such as the National Security Act, etc. there
was no provision in the COFEPOSA Act for con!irmation by the
9overnment of an order of detention passed by a specially empowered
D officer under section 3(1) of the Act and as such the officer issuing an
order of detention constituted the Detaining Authority of the determ.
Allowing the appeal, it was,
HELD: (1) On the plain language of Article 22(5), that article
E 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. [835G-H; 836A]
F (2) Even if an order of detention is made by a specially
empowered officer of the Central Government or the State Government
as the case may be, it is the concerned Government that would consti-
t.ute the Detaining Authority under the Act and not the officer con-
cerned who 1nade the order of detention, and it is for that Government
the detenu should be afforded opportunity to make representation
G against the detention order at the earliest opportunity, as envisaged
under Article 22(5), and not to the officer making the order of
detention. [840E-G I
(3) Though by reason of Section 3( I) a specially empowered officer
is entitled to pass an order of detention, his constitutional obligation is
H only to communicate expeditiously to the detenu the grounds of deten-
STATE OF MAHARASHTRA v. SMT. SUSHILA 829
tion and also afford him opportunity to make representation to the A
appropriate government against his detention. l&40G-H]
(4) Unlike in other preventive detentiOn acts, the COFEPOSA
Act does not provide for approval by the Central or State Government
of an order of detention passed by one of its duly empowered officers
B
and, consequently, an order of detention passed by an officer acquired
'deemed approval' by the Government from the time of its issue, and by
reason of it, the Government becomes the detaining authority and
thereby constitutionally obligated to consider the representation made b)
the detenu with utmost expedition. [843A-B]
(5) In view of the fact that the Act confers powers of revocation c
only upon the State Government and the Central Government and no
provision is made for an officer making an order of detention to exercise
powers of revocation, any insistence upon the officer making the deten-
tion order considering the representation of the detenu himself will be
nothing but a futile and meaningless exercise.
D
(6) Since it has been pointed out that a detention order passed by
an officer having empowerment under the COFEPOSA Act to make an
order of detention would also constitute an order of the Government by
reason of deemed approval, this Court cannot accept or sustain the view
taken by the High Court that a detenu had a right to have his represen-
tation considered by the very same officer who had passed the order of E
detention. [844H; 845A-B]
Kavita v. State of Maharashtra, [1982] l SCR 138; Smt. Masuma
v. State of Maharashtra, (1982] l SCR 288; Santosh Anand v. Union of
India, (1981] 2 SCC 420; Pushpa v. Union of India, [1980] Supp. SCC
391; Abdul Karim v. State of W. Bengal, [1969] 3 SCR 479; John F
Martin v. State of West Bengal, [1975] 3 SCC 836; Jayanarayan Sukulv.
State of W.B., (1970] 3 SCC 225; Haradhan Shah v. State of W.B.,
[1975] 3 SCC 198; Satpal v. State of Punjab, (1982] l SCC 12; Raj
..
Kishore Prasad, [1982] 3 SCC IO; P. K. Chakrabarty v. State of W.
Bengal, (1970] 1 SCR 543; Abdul Sukkur v. State of West Bengal,
[1973] 1 SCR 680; Vimal Chand v. Shri Pradhan, (1979] 3 SCR 1007; G
Tarachand v. State ofRajasthan, AIR 1980 SC 2133; N.P. Umrao v.
B.B. Gujral, [1979] 2 SCR 315; Devji Vellabhai Tandal v.
Administrator, [1982] 3 SCR 222; State of Bombay v. Purshottam Jog
-
..;
Nayak, (1952] SCR 674 and King Emperor v. Vimal Bhai Deshpande,
ILR 1946 Nagpur 651.
H
830 SUPREMfoCOURT REPORTS [1988] Supp. 2 S.C.R.
CRIMINAL J\PPELLATE JURISDICTION: Criminal Appeal
No. 480 of 1988.
From the Judgment and Order dated 23/24. 7 .1987 of the
Bombay High Court in Crl. W.P. No. 356/1987.
B Dr. Y.S. Chitale, A.M. Khanwilkar ad A.S. Bhasme for the
Appellants.
U.R. Lalit, V.N. Ganpule and S.K. Angihotri for th~_Res
pondents.
The Judgment_ of the Court was delivered by
c
NATARAJAN, J. Leave granted.
Being more concerned with the law adµmerated by the. High
Court of Bombay rather than with. the quashing of the order of deten'
D tion passed against a detenu by name Bhadresh Mafatlal Shah, son of
re~pondent No. 1 herein, under Section 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(hereinafter called the COFEPOSA Act) the State of Maharashtra has
filed this appeal by special leave against the order of the High Court in
Cr!. Writ Petition No. 356 of 1987. The High Court has quashed the
E order of detention on the ground that Shri D .N. Capoor, ,Officer on
Special Duty and Ex-officio Secretary to the Government of
Maharashtra, Home Department (hereinafter referred to as D.N,
Capoor only) who had passed the order of detention had only com-
municated to the detenu that "he had a right to make a representation
to the State Government as also to the Government of India against
JI the order of detention" and had failed to communicate that "he had
also a right to make a representation to the Detaining Authority him-
self" the constitutional safeguards and imperatives under Article 22(5)
had been violated in as much as the detenu had been deprived of his
right to make a representation to the Detaining Authority himself
before availing of his right to make further representation to the State
G Government and the Central Government. The principal challenge in
this appeal is to the proposition oflaw enunciated by the High Court. ,_
'$==
We may now have a look at the facts. On 21.8.86 the detenu was
caught in the act of transporting ten gold biscuits of foreign origin. On
23.10.86 the Collector of Central Excise and Customs sent a proposal
11: to the State Government for action being taken against the defonu
STATE OF MAHARASHTRA v. SMT. SUSHILA [NATARAJAN, J.] 831
under the COFEPOSA Act al\d on 17.11.86 he furnished, in response A
to Government's query, some additional information about the
detenu. On 2.2.87 an order of detention under Section 3( 1) of the
COFEPOSA Act was passed by D.N. Capoot in exercise of the powers
specially conferred upon him by the Government of Maharashtra for
the purpose of Section 3 of the Act. In the grounds of detention the
detenu was informed that he had a right to make a representation to B
the State Government as also to the Government of India against the
order of detention. On 15.2.87 the order of detention as well as the
grounds of de.tention were served on the detenu.
On 14.3.87 the detenu preferred a representation addressed to
D.N. Capoor and it was forwarded by the Superintendent, Central
Prison, Nasik with a covering letter dated 17.3.87 to the Government.
c
The Government after calling for remarks from the Assistant Collec-
tor of Customs and Central Excise, Pune rejected tire representation
of the detenu by order dated 3.4.87 and the said order was commu-
) nicated to the detenu on 4.4.87 through the Superintendent of the
Central Prison, Nasik. D
In the meanwhile on 12.3.87 the case of the detenu was referred
to the Advisory Board. On 8.5.87 the Advisory Board considered the
detenu's case and sent a report justifying the detention and thereafter
the State Government confirmed the detenu's detention.
E
In the month of March, 1987 the first respondent being the
Detenu's mother, filed a petii:ion under Article 226 of the Constitution
before the High Court of Bombay for a writ being issued for the order
of detention being quashed. Though several grounds were set out in
the writ petition, they were all given up and the counsel appearing on
behalf of the detenu confined the challenge to the validity of the deten- F
tion order on one ground alone. The ground of attack was to the
following effect:
"as the order of detention had been passed by D.N.
Capoor in his capacity as a person specially empowered by
the Government of Maharashtra to 'issue the- order of G
) detention under Section 3(1) of the COFEPOSA Act, the
detenu had a right to make a representation to him in the
first instance and only thereafter to make representation tp
the State Government or to the Central Government if
need be. In the grounds of detention the detenu had only·
been informed that he had a right to make a representation H
832 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.
A to the State Government as also to the Government of
India against the order of detention, but he had not been
communicated that he had also a right to make a represen-
tation to the Detaining Authority i.e. D.N. Capoor him-
self. Failure to notify the detenu of his right to make a
representation to the Detaining Authority violated the
B constitutional provisions of Article 22(5) inasmuch as the
detenu had been deprived of his right to make a second
representation to the State Government in the event of the
Detaining Authority D .N. Capoor rejecting his represen-
tation."
C This contention found acceptance with the High Court and the
High Court made the Rule absolute and quashed the order of deten-
tion. The challenge in this appeal is not only to the release of the
detenu but to the principle of law formulated by the High Court to set
D
aside the order of detention.
Before proceeding further we may state for purposes of record,
that an attempt was made by the State before the High Court that
D.N. Capoor had not passed the order of detention solely in exercise
c
of his powers as a specially empowered officer of the State to make an
order under Section 3(1) but also as an officer authorised to act on
behalf of the Government under the Standing Rules framed under the
E Rules of Business of the Government of Maharashtra. The High Court
declined to accept this contention as there was no proof that D .N.
Capoor had been empowered under the Standing Rules to act on
behalf of the Government and furthermore the Central Government
counsel had also conceded that no such authorisation had been made
in favour of D.N. Capoor under the Rules of Business. No attempt was
F made before us to dispute this finding of the High Court and therefore
the settled position is that the detention order had been passed by
D.N. Capoor solely in his capacity as an officer specially empowered
by the Government to exercise powers under Section 3(1) of the
COFEPOSA Act and not as one empowered to act on behalf of the
Government under the Rules of Business. Therefore what falls for
G consideration in the appeal is whether by reason of D .N. Capoor
having passed the order of detention only in exercise of his special
empowerment to act under Section 3(1) of the Act and not in exercise
of any right given to him under the Rules of Business of the Govern-
c
ment, he was under a constitutional obligation to communicate to and
afford opportunity to the detenu to make a representation to himself
H in the first instance before the detenu availed of his right to make
STATE OF MAHARASHTRA v. SMT. SUSHILA [NATARAJAN, J.] 833
representations to the State Government and the Central Govern-
A
ment.
It was urgen by Dr. Chitale on behalf of the State, that neither
Article 22(5) of the Constitution. nor the provisions of the
COFEPOSA Act afford scope for any differentiation being made bet-
ween an order of detention passed by a specially empowered officer of B
the State Government or the Central Government, as the case may be,
and an order of detention passed by the State Government or the
Central Government itself, as the case may be, and for holding that if
an order of detention falls under the former category, the Constitution
obligates a different kind of procedure to be followed in the matter of
affording opportunity to the detenu to make his representations
against the order of detention. He also stated that the theory that a c
detenu had a right to have his representation considered by the very
same officer who had passed the order of detention has been exploded
in Kavita v. Maharashtra, [1982] 1 SCR 138 Smt. Masuma v. State of
Maharashtra & Anr., [1982] 1 SCR 288 and therefore the High Court
was not right in holding that the detenu had such a right. He also urged D
' that if the view taken by the High Court was not corrected it would
lend to several anomalies and even to the defeasance of the
' COFEPOSA Act itself in certain situations.
Refuting Dr. Chitale's contentions, Mr. U .R. Lalit, learned
counsel appearing for the detenu stated that unlike in other Preventive E
.r Detention Acts such as the National Security Act, etc., there is no
provision in the COFEPOSA Act for confirmation by the Government
of an order of detention passed by an officer specially empowered
under Section 3(1) of the COFEPOSA Act and as such the officer
issuing an order of detention under the Act constitutes the Detaining
~'.
Authority of the detenu and hence the Detaining Authority is under an F
obligation to afford opportunity to the detenu to make a representa-
tion to himself in the first instance before the detenu avails of his right
to make representation to the State Government and then to the
Central Government. Mr. Lalit relied upon the decisions of this Court
in Santosh Anand v. Union of India, [1981] 2 SCC 420 and Pushpa v.
Union of India, [1980] suppl. SCC 391 for sustaining the judgment of G
the High Court. Yet another argument of Mr. Lalit was that since
Article 22(5) mandates the af,fording of opportunity at the earliest
point of time to the detenu to make his representation, it must be
interpretatively construed that the Detaining Authority is under an
obligation to inform the detenu and afford him opportunity to make a
, representation to the very Authority concerned and failure to give H
834 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.
such an opportunity would amount to a denial to the detenu of his
A
constitutional rights.
We shall now examine the divergent contentions advanced be-
fore us in greater detail. The questions that fall for consideration may
broadly be enunciated as under.
B
( 1) Does an order passed by an officer of the State Government
or the Central Government, specially empowered for the purposes of
Section 3(1) by the respective Government, make him the Detaining
Authority and not the State Government or the Central Government
as the case may be, and obligate him to inform the detenu that he has a
three fold opportunity to make his representations i.e. the first to
c himself and the other two to the State Government anu the Central
Government.
(2) Whether for the purposes of the Act,.there is any difference
between an order of detention passed by an officer of the 'State
D Government or the Central Government, solely in exercise of the
powers conferred on him under Section 3 by the respective Govern-
ment and an order of detention passed by the State Government or the
Central Government as the case may be through an officer who in
addition to conferment of powers under Section 3 is also empowered
under the Standing Rules framed under the Rules of Business of the
E Government, to act on behalf of the Government:
(3) Whether by reason of the fact that an order of detention is
passed by an officer of the State Government or the Central Govern-
ment specially empowered to act unrler Section 3 of the Act, a detenu
acquires a constitutional right to have his representation first consi-
F deted by the very officer issuing the detention order before making a ""
representation to the State Government and the Central Government.
The Constitution, while recognising the necessity of laws to pro-
vide for preventive detention, has also prescribed the safeguards which
should be observed for detaining persons without trial under laws
G enacted for placing persons under preventive detention. Article 22 sets
out the imperatives that should be observed, but for our purpose, it is
.,
enough if Clause (5) of the Article is alone extracted. It is in the
following terms.
"22(5). When any person is detained in pursuance of an
H order made under any law providing for preventive deten;
STATE OF MAHARASHTRA v. SMT. SUSHILA [NATARAJAN, J.] 835
tion, the authority making the order shall, as soon as m&y
be, communicate to such person the grounds on which the
A
order has ,been made and shall afford him the earliest
opportunity of making a representation against the order."
Article 22(5) has been construed as under in Abdul Karim v. W. Bengal,
[ 1969] 3 SCR 479 at page 486. B
"A perso'n detained under a law of preventive detention
has a right to obtain information as to the grounds of deten-
tion and has also the right to make a representation pro-
testing against an order of preventive detention. Article
22(5) does not expressly say to whom the representation is
to be made and how the detaining authority is to deal with c
the representation. But it is necessarily implicit in the
language of Art. 22(5) that the State Government to whom
the representation is made should properly consider the
1 representation as expeditiously as possible. The Constitu-
tion of an Advisory Board under Section 8 of the Act does D
not relieve the State Government from the legal obligation
to consider the representation of the detenu as soon as it is
received by it. On behalf of the respondent it was said that
there was no express language in Art. 22(5) requiring the
State Government to consider the representation of the
detenu. But it is a necessary implication of the language of E
Art. 22(5) that the State Government should consider the
representation made by the detenu as soon as it is made,
apply its mind to it and, if necessary, take appropriate
action. In our opinion, the constitutional right to make a
representation guaranteed by Art. 22(5) must be taken to
include by necessary implication the constitutional right to F
a proper consideration of the representation by the autho-
rity to whom it is made."
Vide also John Martin v. State of West Bengal, [1975] 3 SCC 836
at 839; Jajanarayan Sukul v. State of W.B., [1970] 3 SCR 225 and
Haradhan Saha v. State ofW.B., [1975] 3 SCC 198. G
We can, therefore, conclude without further discussion that on
the plain language of Article 22(5) that Article 22(5) 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 Govern-
ment, he has a further right under Article 22(5) to make a representa- H
836 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.
A tion to D.N. Capoor himself as he had made the order of detention.
Turning now to the COFEPOSA Act, the relevant provisions to
be noticed are Sections 2, 3, 8 and 11. In Section 2 which is the
definition section, the words "appropriate government" and "deten-
tion order" have been defined as under:
B
"Section 2. (a) "appropriate Government" means, as res-
pects a detention order made by the Central Government
or by an officer of the Central Government or a person
detained under such order, the Central Government, and
as respects a detention order made by a State Government
or by an officer of a State Government or a person detained
c under such order, the State Government:
(b) "detention order" means an order made under
section 3''.
D Section 3 is the Section which confers powers on the Central
Government and the State Government to make an order, either by
itself or through one of its officers having the prescribed rank and
specially empowered for the purpose of the section by the Government
to which he belongs for detaining a person under preventive custody
without trial. The section reads as follows:
E
"Section 3.(1) The Central Government or the State
Government or any officer of the Central Government, not
below the rank of a Joint Secrftary to that Government,
specially empowered for the purposes of this section by
that Government, or any officer of a State Government,
F not below the rank of a Secretary to that Government,
specially empowered for the purposes of this section by
that Government, may, if satisfied, with respect to any
person (including a foreigner), that with a view to prevent-
ing him from acting in any manner prejudicial to the con-
servation or augmentation of foreign exchange or with a
G view to preventing him from-
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
H (iii) engaging in transporting or concealing or keeping
smuggled goods, or
STATE OF MAHARASHTRA v. SMT. SUSHILA [NATARAJAN, J.I 837
(iv) dealing in smuggled goods otherwise than by engaging
A
in transporting or concealing or keeping smuggled goods,
or
(v) harbouring persons engaged in smuggling goods or in
abetting the smuggling of goods,
B
it is necessary so to do, make an order directing that
such person be detained.
(2) When any order of detention is made by a State
Government or by an officer empowerd by a State Govern-
ment, the State Government shall, within ten days,
forward to the Central Government a report in respect of
c
the order.
(3) For the purposes of clause (5) of article 22 of the
Constitution, the communication to a person detained in
pursuance of a detention order of the grounds on which the D
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.''
E
Section 8, which has been enacted to comply with the constitu-
tional imperative in Article 22(4) enjoins the Central Government and
the State Government to constitute one or more Advisory Boards and
obligates the concerned government to refer to the Advisory Board
the case of every detenu ordered to be detained by the· said govern-
ment within a period of five weeks from the date of detention. For our F
purposes it would suffice if clause (b) of section 8 alone is quoted. The
clause reads as follows:
"Section 8(b )-Save as otherwise provided in Section 9,
the appropriate Government shall, within five weeks from
the date of detention of a person under a detention order G
make a reference in respect thereof to the Advisory Board
constituted under clause (a) to enable the Advisory Board
to make the report under sub-clause (a) of clause (4) of
Article 22 of the Constitution."
Section 11 which is the last of the Sections requiring notice per- H
838 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.
tains to the powers of revocation of the State Government or the
A
Central Government as the case may be. The relevant is in the follow-
ing terms:
Section 11(1)-Without prejudice to the provisions of Sec-
tion 21 of the General Clauses Act, 1897, a detention order
B may, at any time, be revoked or modified-
(a) Notwithstanding that the order has been made by an
officer of a State Government, by that State Government
or by the Central Government; ,,.
(b) Notwithstanding that the order has been made by an
c officer of the Central Government or by a State Govern-
ment. by the Central Government.
(2 omitted)"
D On a reading of the abovesaid provisions, it may be seen that the
power to detain a person under the Act has not only been conferred on
the Central Government and the State Government but provision had
also been made for the Central Government and the State Govern-
ment to specially empower any of its officers holding the minimum
prescribed rank to pass an order of detention under Section 3(1).
E
We may now examine the scheme of the Act and have a closef
look at the provisions set out above to find out whether the Act pro-
vides for a differentiation being made between detention orders made
by the Government and those made by specially empowered offi"ers
so as to confer an additional right of representation to detenus sub-
F jected to detention under detention orders falling in the latter cate-
gory. At the outset, it needs no saying, that any Government, be it
Central or State, has to function only through human agencies, viz. its
officers and functionaries and that it cannot function by itself as an
abstract body. Such being the case, even though Section 3(1) provides
for an order of detention being made either by the Central Govem-
G ment or one of its officers or the State Government or by one of its
officers, an order of detention has necessarily to be made in either of
the situations only by an officer of the concerned Government. It is in
acceptance of this position we have to see whether an order of deten-
tion; if passed by an officer of the Government specially empowered
under Section 3(1) but not further empowered under the Rules of
H Business of the Government to act would have the effect of making the
STATE OF MAHARASHTRA v. SMT. SUSHILA INATARAJAN, J.J 839
concerned officer the Detaining Authority and 'not the concerned A
Government itself. The answer to the question has to be necessarily in
the negative for the following reasons. It has been specifically pro-
vided in Section 2( a) that irrespective of whether an order of detention
is made by the Central Government or one of its duly authorised
officers, the "apropriate Government" as regard the detention order
and the detenu will be the Central Government only and likewise B
whether an order of detention is made by a State Government or one
of its duly authorised officers the "appropriate Government" would be
the State Government only as regards the detention order and the
detenu concerned. Secondly, irrespective of whether an order of
detention is made by the State Government or by one of its officers,
the obligation to forward, within ten days a report to the Central
Government in respect of the order is cast only upon the State Govern-
c
ment. Thirdly, in the matter of making a reference of the case of a
detenu to the Advisory Board under Section 8(b), the duty of making
the reference is cast only on the Central Government or the State
Government as the case may be, and not on the officer of the Central
Government or the State Government if he makes the' order of deten- D
tion· in exercise of the powers conferred on him under Section 3(1).
Lastly, Section 11, which deals with the powers of revocation of the
State Government and the Central Government provides that notwith-
standing that on order of detention had been made by an officer of a
State Government, the concerned State Government as well as the
Central Government are entitled to revoke or modify the order of E
detention. Similarly, as per Clause (b) notwithstanding that an order
of detention has been made by an officer of the Central Government
or by a State Government, the Central Government has been
empowered to revoke or modify an order of detention. The Section
does not confer any power of revocation on an officer of the Central or
State Government nor does it empower the Central or State Govern- F
ment to delegate the power of revocation to any of its officers. We may
further add that even though Section 11 specifies that the powers of
revocation conferred on the Central Government/State Government
are. without prejudice to the provisions of Section 21 of the Qeneral
Clauses Act, this reservation will not entitle a specia!ly empowered
officer to revoke an order of detention passed by him because the G
order of the specially empowered officer acquires 'deemed approval'
of the State or Central Government, as the case may be, automatically
and by reason of such deemed approval the powers of revocation, even
in terms of Section 21 of the General Clauses Act will fall only within
the domain of the State Government and/or Central Government. In
Satpal v. State of Punjab, [1982] 1 SCC 12 at page 17 the nature of the H
840 SUPREME COURT REPORTS [1988] ~upp. 2 S.C.R.
power of revocation conferred on the State and the Central Govern-
A
ment came to be construed and the Court held that "the power of
revocation conferred on the appropriate Government under Section I I
of the Act is independent of the power of cofirming or setting aside an
order of detention under Section 8(f)." It was further adumbrated as
follows. "The power under Section I 1( l)(b) may either be exercised
B on iµforrnation received by the Central Government from its own
sources including that supplied by the State Government under
Section 3(2), or, from the detenu in the form of a petition or represen-
tation. It is for the Central Government to decide whether or not, it
should revoke the order of detention in a particular case. The use of
the words 'at any time' under Section 11, gives the power of revocation
an over-riding effect on the power of detention under Sectioin 3."
c These observations were made by the Court when considering the
question whether a detenu was entitled to concurrently make
representations to the State Government and the Central Government
against an order of detention passed by the State Government and
whether in such circumstances the State Government could contend
D that the question of the Central Government considering the represen-
tation would arise only after the State Government had considered the
representation and rejected it.
Consequently, the resultant position emerging from the Act is
that even if an order of detention is made by a specially empowered
E officer of the Central Government or the State Government as the
case may be, the said order will give rise to obligations to be fulfilled
by the Government to the same degree and extent to which it will
stand obligated if the detention order had been made by the Govern-
ment itself. If that be so, then it is the concerned Government that
woud constitute the Detaining Authority under the Act and not the
F officer concerned who made the order of detention, and it is to that
Government the detenu should be afforded opportunity to make
representation against the detention order at the earliest opportunity,
as envisaged under Article 22(5) and not to the officer making the
order gt detention in order to provide the detenu an opportunity to
make a further representation to the State Government and thereafter
G to the Central Government if the need arises for doing so. Though by
reason of Section 3(1) a specially empowered officer is entitled to pass
a.1 order of detention, his constitutional· obligation is only to communi-
cate expeditiously to the deteriu the grounds of detention and also
afford him opportunity to make representation to the appropriate
Governments against his detention. The only further duty to be
H performed thereafter is to place the representation made by the
STATE OF MAHARASHTRA v. SMT. SUSHILA [NATARAJAN, J.] 841
detenu before the concerned officer or the Minister empowered under
A
the Rules of Business of tl\e Government to deal with such representa-
tion if the detenu addresses his representation to the officer himself.
We may point out that unlike in other Preventive Detention Acts
such as the National Security Act, Maintenance of Internal Security
Act, Preventive Detention Act etc. the COFEPOSA Act does not B
provide for any approval by the Government of an order of detention
passed by an officer specially empowered to make a detention order.
In all the above said Acts, an order of detention passed by an officer
specially empowered under the Act will cease to have force after the
expiry of the number of days prescribed under the relevant Act unless
the said orde.r is approved by the Government within that period. On
the contrary, the COFEPOSA Act does not provide for the State
c
Government or Central Government passing an order of approving of
a detention order made by one of its officers and therefore the deten-
tion order will continue to be operative for the full period of detention
unless the order is revoked by the State Government or the Central
Government or is quashed by the Court for any reason. This is an D
additional factor to show that an order of detention passed by an
officer has the same force and status as an order of detention passed by
the Government itself and this could happen only if an order of deten-
tion made by an officer is treated as an order of detention made by the
Government itself, although through the instrumentality of an officer
empowered under Section 3. E
It is also relevant to clarify at this juncture the position as regards
an order of detention passed by an officer specially empowered under
Section 3(1) vis-a-vis an order of detention passed by another officer
who besides being empowered to act under Section 3( 1) is also confer-
red authority under the Rules of Busines of the Government to act on F
behalf of the Government. This difference in the conferment of
powers upon the officers falling under the two categories can not have
any impact on the nature of the detention orders respectively passed
by them because the common factor entitling the officers falling in the
two classes is their empowerment under Section 3(1) of the Act. With-
out such empowerment an officer, even if he be empowered to act on G
behalf of the Government under the Rules of Business, cannot pass an
order of detention against anyone. If this position is realised, then it
follows that there is no scope for contending that a detention order
made by an officer empowered to act under the Act but not having
additional empowerment under the Rules of Business of the Govern-
ment will not have the effect of making the Government the detaining H
842 SUPREME COURT REPORTS I 1988] Supp. :2 S.C.R.
authority and instead would make the officer alone the detaining
A
authority and by reason of it stand obligated to afford opportunity to
the detenu to make a representation to himself before making his
representation to the State Government and the Central Government.
It is also relevant to note that the Act confers powers of revocation
only upon the State Government and the Central Government and no
B provision is made for an officer making an order of detention to exer-
cise powers of revocation. When such is the case, any insistence upon
the officer making the detention order considering the representation
of the detenu himself will be nothing but a futile and meaningless
exercise. It will therefore, not be to the advantage of the detenu if it
were to be held that in all cases where an order of detenution is passed
by an officer, the very officer should consider the representation in the
c first instance and only thereafter the detenu can approach the State
Government and the Central Government. Moreover, if for argu-
ment's sake it is to be assumed that an officer passing an order of
detention is uder a duty to afford the detenu an opportunity to make a
representation to hiniself in order to give relief to him, it may lead to
D the abuse of powers vested in the officer. The possibility of an officer
misusing his powers and passing an order of detention against a person
and then revoking it in order to seek profit for himself or for other
ignoble means, however remote it may be, cannot be ruled out. This
aspect of the matter has been touched upon in Raj Kishore Prasad,
[ 1982] 3 SCC IO and the Court which was dealing with the case of a
E detenu detained under the Natioal Security Act has set out the need as
to why a representation made by a detenu against an order of deten-
tion made by an officer of the Government should be considered by
the Government itself and not by the officer concerned. The relevant
passage reads as follows:
F "The contention is that constitutionally speaking a duty is
cast on the detaining authority to consider the representa-
tion. That is of course true. But in view of the scheme of
the Act, Parliament has now made it obligatory on the
appropriate Government to consider the representation.
This is done presumably to provide an effective check by
G the appropriate Government on the exercise of power by
subordinate officers like the District Magistrate or the
Commissioner of Police. Therefore, if the appropriate
Government has considered the representation of the de-
tenu it cannot be said that there is contravention of Article
22(5) or there is failure to consider the representation by
H the detaining authority."
STATE OF MAHARASHTRA v. SMT. SUSHILA [NATARAJAN, J.] 843
We have already pointed out that unlike in other preventive detention A
acts, the COFEPOSA Act does not provide for approval by the Cent-
ral or State Government of an order of detention passed by one of its
duly empowered officers and, consequently, an order of detention
passed by an officer acquiries 'deemed appvoal' by the Government
from the time of its issue and by reason of it, the Government becomes
the detaining authority and 1hereby constitutionally obligated to con- B
sider the representation made by the detenu with utmost expedition.
We shall now see whether there is any logic or rational behind
the contention that since D .N. Ca poor had made the orde1 0f deten-
tion, the detenu was entitled, as of right to make a representation to
the very same officer and have the same considered by him in the first
instance before the detenu availed of his right to make a representa-
c
tion to the State Government and then if need be to the Central
Government also. The fallacy and misconception underlying such a
contention has been lucidfy brought out in Kavita v. Maharashtra,
[1982] 2 SCR 138 at 146 and again in Masuma v. Maharashtra, (1982] 1
SCR 288 at 293. The relevant passage in Kavita's case reads as under: D
"It was suggested that it would have been more appro-
priate if the representation had been considered by the
very individual who had exercised his mind at the initial
stage of making the order of detention, namely the Secre-
tary to the Government, Shri Samant. There is no substance E
in this suggestion. The order of detention was not made by
Shri Samant as an Officer of the State Government
specially empowered in that behalf but· by the State
Government itself acting through the instrumentality of
Shri Samant, a Secretary to Government auhorised to so
act for the Government under the Rules of Business. F
Governmental business can never get through if the same
individual has to act for the Government at every stage of a
proceeding O\ 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 G
advantage of the detenu if fresh minds are brought to bear
upon the question at different stages."
In Masuma's case the same view has been expressed:
"It was the State Government which made the order of f-!
844 SUPREME COURT REPORTS I 1988] Supp. 2 S.C.R.
detention and not P.V. Nayak in his individual capacity.
A
The representation made by the detenu against the order of
detention was also therefore required to be considered by
the State Government and either it could be disposed of by
P.V. Nayak acting for the State Government under the
earlier Standing Order dated 18th July, 1980 or the Minister
B -of State for Home could dispose it of under the later Stand-
ing Order dated 18th July, 1980. Whether P.V. Nayak con-
sidered the representation and disposed it of or the Minis-
ter of State for Home did so would be immaterial, since
both had authority to act for the State Government and
whatever be the instrumentality, whether P.V. Nayak or
the Minister of State for Home, it ·would be the State
c Government which would be considering and dealing with
the representation. The only requirement of Article 22(5)
is that the representation of the detenu must be considered
by the detaining authority which in the present case is the
State Government and this requirement was clearly satis-
D fied because when the Minister of State for Home
considered the representation and rejected it, he was acting
for the State Government and the consideration and rejec-
tion of the representation was by the State Government.
There is no requirement express or implied in any provi-
sion of the COFEPOSA that the same person who acts for
E the State Government in making the order of detention
must also consider the representation of the detenu: In
fact, as pointed by Chinnappa Reddy, J. in Smt. Kavita v.
State of Maharashtra, [1982] 1 SCR 138 a Government
business can never get through if the same individual has to
act for the Government in every case or proceeding or
F transaction, however, advantageous it may be to do so.
Moreover it would really be to the advantage of the detenu
if his representation is not considered by the same indi-
vidual but fresh mind is brought to bear upon it. We do not
therefore, see any constitutional or legal infirmity in the
representation having been considered by the Minister of
G State for Home."
Mr. Lalit sought to distinguish these decisions by saying that in
both the cases the Secretary to Government issuing the order of deten-
tion had the authority to act on behalf of the Government under the
Rules of Business but D.N. Capoor had no such authority. Since we
,H have poimed out that a detention order passed by an officer having
STATE OF MAHARASHTRA v. SMT. SUSHILA !NATARAJAN, J.] 845
empowerment under the COFEPOSA Act to make an order of deten- A
tion would also constitute an order of the Government by reason of
deemed approval, we find no merit in the contention of Mr. Lalit. The
ratio in these cases would have equal application to cases of the nature
we have on hand.
Leaving aside for a moment the absence of any basis in law or B
rationale for the contention that if an order of detention is made by a
specially empowered officer of the Government, the detenu acquires a
right to have his representatio.n considered in the first instance by the
very same officer and if he is not afforded such an opportunity; it will.
amount to a deprivation of his constitutional rights, let us view the
matter from a practical aspect and on pragmatic considerations. If an C
order of detention is made by a specially empowered officer and if by
the time the representation of the detenu is received by him, the
officer is not there to consider the representation either by reason of
his proceedinng on leave or falling sick or transfer or retirement or
being placed und~r suspension or death,.tben the inevitable consequ-
ence would be that the detenu has to be invariably set at liberty solely D
on the ground that his representation bad not been considered by the
very same officer who bad passd the order of detention. Can we con-
ceive of such a situation or permit such consequences to follow when it
is common knowledge that the services of a government officer in the
same post for any length of time can never be guaranteed. As already
stated, the officer may fall sick or he may proceed on leave on other E
grounds or he may retire fro.m service or be may be transferred else-
where due to exigendes of service etc. If therefore, we are to sustain
the view taken by the High Court, it would lead to the position that
even if an order of detention is made on very valid and justifiable
grounds by a specially empowered officer, the sustainment of the
order would depend upon extraneous factors such as the officer not · F
falling sick or going on leave .or retiring from service or being transfer-
red etc. etc. Surely, the Act and the. Constitution do not envisage such .
situations. It is because of these factors Dr. Chitale contended, and in
our opinion very rightly, that if the view of the High Court is to be
accepted it would often lead to a defeasance of the COFEPOSA Act
itself and the purpose for which it was enacted. G
We will now consider the decisions relied on by Mr. Lalit for
contending that the High Court has not baized a new trail in holding
that since D .N. Capoor was the detaining authority he should have
communicated to and afforded opportunity to the detenu to make the
r~resentation to himself in the first instance while informing him that H
846 SUPREME COURT REPORTS [1988) Supp. 2 S.C.R.
A he had a right to make representations to the State Government and
the Central Government. The first two cases Jayanarain v. W. Bengal,
[1970] 3 SCR 225 and P.K. Chakrabarty v. W. Bengal, [1970) 1 SCR
543 were cases pertaining to detention orders passed under the
Preventive Detention Act by District Magistrate empowered under the
Act to pass the detention orders. In both the cases the detention
B orders were quashed on the ground that the government had failed to
consider the detenu 's representation expeditiously and instead had
sought umbrage for its action on the ground it had awaited the opinion
of the Advisory Board to which it had forwarded the detenu's
representation. While upholding the detenu's contentions in each of the
two cases it was observed in passing that "though Clause 5 (of Article
c is22)thedoes ncit in express terms say so it follows from its provisions that it
detaining authority which has to give to the detenu the earliest
opportunity to make representation and to consider it when so made
..... " Abdus Sukkur v. The State of West Bengal, [1973) 1 SCR 680
was a case relating to a detention order passed under the West Bengal
(Prevention of Violent Activities) Act, by the District Magistrate,
D Bardna. Since the State Government had failed to consider the
representation made by the detenu for a period of 27 days without
giving satisfactory explanation for the delay, the detention order was
quashed. In so doing the Court observed that "the requirement about
the giving of earliest opportunity to a detenu to make a representation
against the detention order would plainly be reduced to a farce and
E empty formality if the authority concerned after giving such an oppor-
tunity pays no prompt attention to the representation which is
submitted by the detenu as a result of that opportunity."
Vimal Chand v. Shri Pradhan & Ors., [1979) 3 SCR 1007 was a
case where an order of detention was passed under the COFEPOSA
F Act by the Secretary, Government of Maharashtra, Home Depart-
ment in exercise of the power conferred on him under Section 3(1) of
the Act. The detention order was quashed by this Court on the ground
that the Government had failed to consider the detenu's representa-
tion expeditiously and instead had postponed consideration of the
representation till the report of the Advisory Board was received. In
O the course of the judgment it was observed that the detenu must be
afforded the earliest opportunity of making a representation would be
rendered illusory "unless there is a corresponding obligation of the
detaining authority to consider the representation of the detenu as
early as possible."
H In Tarachand v. State of Rajasthan, AIR 1980 SC 2133 the grie-
STATE OF MAHARASHTRA v. SMT: SUSHILA {NATARAJAN, J.] 847
vance of the detenu detained under the COFEPOSA Act was that he
had sent representations to the detaining authority viz. the State A
Gov~rnmeni and the Central Government on 23. 2. 1980 but there was
a delay of 1 month and 5 days in his representation reaching the State
Government and even then the State Government had failed to con-
sider his representation and pass orders. While striking down the
detention order the Court observed that "it is well settled that in case B
of preventive detention of a citizen, Article 22(5) of the Constitution
enjoins that the obligation of the appropriate Government or of the
detaining authority (State Government in that case) to afford the
earliest opportunity to make a representation and to consider the rep-
resentation speedily."
The attempt of Mr. Lalit was to highlight the reference to the c
"detaining authority" in the general observations in the abovesaid
cases by taking them out of their context and build up an argument
that in all those decisions it has been laid down that there is a constitu-
tional obligation on every detaining authority to afford opportunity to
the detenu to make a ·representation to the detanining authority D
himself before making representations to the State Government and
the Central Government. In order to point out the mis-conception in
the argument of Mr. Lalit we have set out in brief the facts of each case
as well. There was no controversy in any of those cases as to whether
the detenu's representation should have been considered by the officer
passing the order of detention or by the Government. On the other E
hand the challenge made in all those cases to the detention orders was
on the ground there had been delay or failure on the part of the
concerned Government in considering the representation. The obser-
vations in these decisions, therefore, do not have any relevance to the
debate in this case.
F
We then come to two other decisions of this Court which appa-
rently lend support to Mr. Lalit's contention. The more decisive one is
Santosh Anand v. Union of India, [1981) 2 SCC 420, In that case an
order of detention made by the Chief Secretary, Delhi Administra-
tion, acting as an officer specially empowered under Section 3 of the
COFEPOSA Act was challenged on two grounds, viz. (a) that it was G
obligatory upon the detaining authority (Administrator) to consider
the representation before sending it to the Advisory Board and (b)
that in any event the detenu's representation ought to have been con-
sidered and rejected by the detaining authority itself, namely, by the
Chief Secretary but the same had been straight away considered and
rejected by the Administrator, who under Section 2(f) of the Act was H
848 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.
the State Government for the Union Territory of Delhi, thus depriving
A
the detenu of his remedy to approach the Administrator as a higher
authority after the rejection of his representation by the detaining
authority.
The Court came to the view "that the continued detention of the
B detenu under the order dated April 3, 1979 is liable to be quashed on
the second ground about which facts are clear and there is no difficulty
in accepting the same." The Court further held as follows:
"Under Article 22(5), as interpreted by this Court, as also
under the provisions of Section 11 of the COFEPOSA it is
clear that a representation should be considered by the
c detaining authority, who on a consideration thereof can
revoke the detention order and if the representation is
rejected by the detaining authority it is open to the detenu
to approach the State Government for revocation of the
order and failing that it is open to him to approach the
D Central Government to get the detention order revoked."
The C'.ourt further observed as follows:
"It is thus very clear to us that the representation could be
said to have been considered by the Chief Secretary at the
E highest but he did not take the decision to reject the same
himself and for that purpose the papers were submitted to
the Administrator who ultimately rejected the same. There
is no affidavit filed by the Chief Secretary before us stating
that he had rejected the representation. The representation
was, therefore, not rejected by the detaining authority and
F as such the constitutional sateguard under Article 22(5), as
interpreted by this Court, cannot be said to have been
strictly observed or complied with."
The next decision is Pushpa v. Union of India, [1980] Suppl SCC 391.
The decision was rendered by a single judge constituting the Vacation
G Bench of the Supreme Court. That was also a case of a detenu under
the COFEPOSA Act against whom an order of detention had been
passed by the Chief Secretary to the Delhi Administration who was
specially empowered under Section 3 of the Act. The detention was
challenged on the ground that the representation sent by the detenu
had been considered by the Chief Secretary himself, though he was not
H competent to reject the representation and the representation had not
STATE OF MAHARASHTRA v. SMT. SUSHILA [NATARAJAN, l.] 849
been considered and rejected by the appropriate Government viz. the
A
Administrator: The Court rejected the contention and held as follows:
"There is nothing in the scheme of Article 22 or the .Provi-
sions of the COFEPOSA which requires that the represen-
tation ought always to be considered by the appropriate
Government notwithstanding the fact that the order of B
detention has been made by an officer specially empowered
in that behalf. Undoubtedly the power to revoke the deten-
tion order under Section 11 is conferred on the State
Government and the Central Government whenever an
.'
order of detention is made by an officer of the State
Government but that does not imply that the initial
representation which a detenu has a right to make after the C
grounds of detention are furnished to him, must of neces-
sity be made and considered by the State Government. In
fact, the representation can and ought to be made to the
detaining authority because it is he who has to apply his
mind to the facts of the case and it is he who has furnished D
the grounds of detention on which he has acted and it is he
who has to be convinced that the action taken by him is
unjuslified and required reconsideration. After all the
purpose of a representation is to convince the authority to
·'' reconsider its decision which has resulted in the detention
of the detenu, The representation is not in the form of an E
appeal to the higher authority and, therefore ipso facto it
must go to the State Government. Undoubtedly it would be
open to the detenu to make a representation under Section
11 requesting either the State Government or the Central
Government, as the case may be, to revoke the order of
detention. But the initial representation that a detenu has a F
right to make on receipt of the grounds of detention would
ordinarily be addressed to the detaining authority because
it is that authority which has taken a decision adverse to the
detenu and which has to be persuaded lO re-consider the
same. Therefore, if the detenu made the representation to
the third respondent who had passed the detenti.on order it G
was open to him to consider the same and after applying his
mind to accept or reject the same. The failure to submit the
representation addressed to the detaining authority and
considered by him, to the State Government, would not
vitiate the deteniion order."
H
850 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.
A Though these authorities lend apparent force to the contentions of Mr.
Lalit we are of the view that they cannot be taken as decisive
pronouncements on the question of law raised for consideration before
us.
In Santosh Anand's case (supra) the challenge to the order of
B detention was on the grounds and this aspect of the matter has been
noticed in Raj Kishor Prasad's· case (supra), while differentiating the
decision. The Bench, however, did not go further into the matter for
not following the ratio in Santosh Anand's case (supra) because it was
· dealing with an order of detention passed under the National Security
Act and Section 8 of the said Act specifically provided that the detenu
must be afforded opportunity at the earliest point of time to make a
c representation to the appropriate Government and to the detaining
authority. Apart from this fact we have to point out that we do not find
any material to substantiate the view taken by the Bench that Article
22(5) has been interpreted by the Court and furthermore Section 11 of
the COFEPOSA Act envisages that a representation should be con-
D sidered by the detaining authority, who on a consideration thereof can
revoke the detention order and if the representation is rejected by the
detaining authority it is open to the detenu to approach the State
Government for revocation of the order etc. etc. On the contrary, it
has been held by a Bench of three judges in N.P. Umrao v. B.B.
Gujral, [1979] 2 SCR 315 at page 321 that "it is, therefore, well-settled
E that in case of preventive detention of a citizen, the Constitution by
Article 22(5) as interpreted by this Court·, enjoins that the obligation
of the appropriate Government to afford the detenu the opportunity to
make a representation and to consider that representation is distinct
from the Government's obligation to constitute a Board and to
communicate the representation amongst other materials, to the
F Board to enable it to form its opinion and to obtain such opinion." It is
pertinent to note that in that case the order of detemion was made by
the Additional Secretary to the Government of India, Ministry of
Finance (Department of Revenue) but even so the Court held t'hat the
Government was the appropriate authority to consider the represen-
tation made by the detenu and the Government ha1ffulfilled its con-
G stitutional obligation in that behalf. Besides we have already pointed
out that Section 11 confers powers of revocation only on the State
Government and the Central Government and the Act does not envis-
age or contemplate an officer of the State Government or the Central
Government passing an order of detention also exercising powers of
revocation. We must, therefore, hold that the decision in Santosh
H Anand's case (supra) must stand confined to the facts of that case and
•
STATE OF MAHARASHTRA v. SMT. SUSHJLA [NATARAJAN, J.) 851
it cannot be treated as one in which a principle of law of general
A
application in all cases has been enunciated. In fact we may appositely
refer in this connection to a decision by a Bench of three Judges of this
Court in Devji Vel/abbhai Tandal v. Administrator, [1982] 3 SCC 222
where it was held that it is only the adminstrator in the Union Terri-
tory of Delhi who Is entitled to consider the representation of a detenu
and reject the same or accept the same and revoke the order of deten- B
tion. The pronouncement in this case, being one made by a Bench of
three Judges, carries with it more binding force than the view taken in
Sa.ntosh Anand's case.
Turning now to Pushpa's case, apart from being a judgment
rendered by a single judge constituting the Vacation Bench of the
Coun, can be distinguished on facts. The two representations made by
c
the detenu, in that case, one through an advocate and the other by the
detenu himself were both addressed to the Chief Secretary himself and
secondly no representation was made by the detenu to the appropriate
Government. These factors had influenced the Court to hold that the
Chief Secretary had acted within his competence in considering the D
replesentation addressed to him and in rejecting the same and that if
the detenu had any grievance he should have moved the State Govern-
ment under Section 11 tc invoke its powers of revocation. In such
circumstances this decision cannot also be treatedaS'one having ptece-
dential value.
E
Jn the light of our discussion our answer to the three posers
formulated earlier has to be in the negative. It, therefore, follows that
we cannot accept or sustain the view taken by the High Court for
quashing the order of detention passed against the detenu.
Having settled the position of law, it only remains for us to F
consider whether the order of detention should be restored and the
detenu sent back to custody. On this aspect of the matter Mr. Lalit ·
fervently pleaded that this was not a case where the ends of justice
required the detenu being arrested and placed in custody for the rest of
the period of detention. He stated that the detenu was a young boy of
19/20 years and that he had already been in custody for 5 months and 3 G
weel<s. It was further stated by him that no adverse information
against the detenu had come to the notice of the authorities after he
was set at liberty by the High Court. In such circumstances Mr. Lalit
pleaded that the Court may allow the appeal by the State only in so far
as the settlement of the question of law is concerned and not going to
the extent of·ordering the re-arrest of the ·detenu. In support of his H
~
852 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.
A submission the learned counsel placed reliance on State of Bombay v.
Purshottam Jog Nayak, [1952] SCR 674. at 676 where the Court,
following the precedent in King Emperor v. Vimal Bhai Deshpande,
ILR 1946 Nagpur 651 at 655 proceeded to decide the appeal after
making it clear that the State shall not in any event re-arrest the detenu
who had earlier been detained under Section 3 of the Preventive
B
Detention Act of 1950. Dr. Chitale had no serious objection to the
Court following the same procedure in this case. We, therefore direct
that notwithstanding our holding that the High Court was in error in
quashing the order of detention made against the detenu, he will not
be re-arrested and placed in custody for the rest of the period of
detention. ·
c
In the result the appeal is allowed and the judgment and order of
the High Court are set aside but, however, the detenu's release will
not be effected.
R.S.S. Appeal allowed.
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