Criminal Appeal Nos 485  486 of 1991
From the Judgment and Order dated 318
1990 of the Bombay High Court in Crl
WP Nos 530 and 53 1 of the 1990
RK Jain and VV Vaze For the State Maqsood Khan RSM Verma SA Syed MT Khan and AS Bhasme For the State for the Appellants
A Subba Rao ADN Rao and Ms Sushma Suri for the Respondents
The Judgment of the Court was delivered by AHMADI J
Special leave granted
The events leading to the filing of these two appeals briefly stated are that on the afternoon of March 25 1990 the officers of the Directorate of Revenue Intelligence being in possession of information intercepted a motor car at about 345 pm driven by the appellant Amir Shad Khan with the appellant Aziz Ahmad Khan as his compa 448 nion
On search of the vehicle 1400 gold bars were recov ered
The statements of the two appellants were recorded and thereafter they were formally arrested on March 28 1990 and produced before the Chief Metropolitan Magistrate Bombay
The Chief Metropolitan Magistrate granted remand
While the matter was under investigation a proposal was made to the first respondent
Secretary Preventive Detention Govern ment of Maharashtra for invoking the powers conferred on him by Section 3 of the hereinafter called the Act 
On the very next day after the receipt of the proposal the first respondent passed the impugned orders of detention against the two appellants
These orders were passed under sub section 1 of section 3 of the Act with a view to preventing the appellants from smuggling goods and engaging in transporting keeping and concealing the same
After these detention orders were passed on April 24 1990 they were served on the appellants along with the grounds of detention and basic documents on which reliance was placed
By clauses iii iv and v of paragraph 43 of the grounds of detention the appellants were informed that they had a right to make a representation to i the State Gov ernment ii the Central Government and iii the Advisory Board against the detention orders if they so desired
It was further stated that the representation to the State Government should be addressed to the Minister of State for Home Mantralaya Bombay
They were informed that to facili tate expeditious consideration thereof the Superintendent of Jails may be requested to forward the same to the detaining authority so that the Home Department can put up the case to the Minister for consideration
It was further stated that  the representation to the Central Government may be ad dressed to the Secretary Government of India Ministry of Finance Department of Revenue New Delhi through the Superintendent of Jail
In the case of the Advisory Board the appellants were informed that the representation may be addressed to the Chairman Advisory Board constituted under the Act and may be forwarded through the Superintendent of Jail
On the basis of this advice contained in the grounds of detention the appellants preferred a representation addressed to the Detaining Authority and forwarded it through the Superintendent of Jail Arther Road Central Prison Bombay
It is not necessary to state the various grounds made out in the representation for the revocation of the detention orders but it would suffice to reproduce the last paragraph of the representation
That paragraph reads as under I would also like to request you that the copies of these representations be sent to the State and Central Govern 449 ment for their kind consideration in view of the above facts so as to revoke andor set aside my order of detention and order my release forth with
 It is not disputed that the representation was considered and rejected by the State GoVernment
It was however not forwarded to the Central Government and hence the Central Government had no occasion to consider the representation of the appellants for the revocation of the detention orders
As the detention orders were not revoked the appellants preferred separate habeas corpus writ petitions which were numbered Criminal Writ Petitions Nos
530 31 of 1991 in the High Court of Bombay under Article 226 of the Constitution
The High Court on a detailed consideration of the various contentions raised by the appellants dismissed both the writ petitions
On the question whether the detention orders were vitiated as the Detaining Authority as well as the State Government had failed to forward their representations to the Central Government the High Court answered in the negative for the reason that the detenus who had failed to follow the clear and specific instructions given in the grounds of detention regarding the manner and mode of ad dress to various authorities could not be allowed to reap the benefit of their own default
On the question whether the fundamental right guaranteed by Article 225 of the Constitution was violated the High Court observed as under So far we have not come across any authority of this court or of the Supreme Court wherein it has been ruled that despite this express communication to the detenu if the detenu makes any representation the Detaining Authority is under obligation under Article 225 of the Constitution to take out xerox copies of the same and forward to the State Government or the Central Government
We are afraid we cannot infer such obligation on the Detaining Authority or the State Govern ment under Article 225 of the Constitution
But however it is advisable that upon re ceipt of such representation from the detenu the Detaining Authority may immediately inform the detenu about the procedure that he has to follow in forwarding representations to the State Government the Central Government or the Advisory Board against the order of deten tion
 It is this view of the High Court which was vehemently challenged before us by learned counsel for the appellants
In support of his contention counsel placed strong reliance on four decisions of this 450 Court reported in i Razia Umar Bakshi vs Union of India  Ors  ii Rattan Singh vs State of Punjab  Ors
  iii Sat Pal vs State of Punjab  Ors and iv Smt
Gracy vs State of Kerala  Anr JT On the other hand counsel for the State Government as well as the Central Government supported the view taken by the High Court and contended that the appellants cannot make a grievance if they have despite a clear direction in the grounds of deten tion chosen to deviate therefrom
Once the procedure estab lished by law is followed by the respondents the failure on the part of the Detaining Authority or the State Government to accede to the request made by the appellants in the last paragraph of their representation to take out copies thereof and forward the same to the Central Government cannot viti ate the detention order
It was further pointed out that a subsequent representation dated June 5 1990 made to the Central Government was considered with despatch and was rejected on June 12 1990
We may at this stage state that we are not concerned with the subsequent representation
The point which we have been called upon to consider is whether failure on the part of the Detaining Authority as well as the State Government to accede to the request of the appel lants to take out copies of the representations and forward the same to the Central Government for consideration has resulted in violation of their constitutionalstatutory right to have their representation considered by the Central Government and if yes whether the detention orders are liable to be quashed on that ground
The law of preventive detention is harsh to the person detained and therefore there can be no doubt that it must be strictly construed
Article 223b denies to a person who is arrested or detained under any law providing for preventive detention the protection of clauses 1 and 2 of the said Article
Clause 4 thereof enjoins that the preventive detention law must conform to the limitations set out thereunder
Clause 5 of Article 22 reads 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 the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
 This clause casts a dual obligation on the Detaining Author ity namely i to communicate to the detenu the grounds on which the 451 detention order has been made and ii to afford to the detenu the earliest opportunity of making a representation against the detention order
Consequently the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly violate the constitutional guarantee afforded to the detenu by clause 5 of Article 22 of the Constitu tion
It is by virtue of this right conferred on the detenu that the Detaining Authority considers it a duty to inform the appellant detenu of his right to make a representation to the State Government the Central Government and the Advisory Board
The right to make a representation against the detention order thus flows from the constitutional guarantee enshrined in Article 225 which casts an obliga tion on the authority to ensure that the 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 ac quaint the detenu of what had weighed with the Detaining Authority for exercising the extraordinary powers of deten tion without trial conferred by section 31 of the Act and to give the detenu an opportunity to point out any error in the exercise of that power so 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 225 confers a right of represen tation the next question is to whom must the representation be 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
Our search for the authority must therefore take us to the statute since the answer cannot be found from Article 225 of the Constitution read in isola tion
As pointed out earlier that clause casts an obligation on the authority making the detention order to afford to the detenu an earliest opportunity to make a representation against the detention order
If we are to go by the state ment in the grounds of detention our search for that author ity would end since the grounds of detention themselves state the authorities to which the representation must be made
The question must be answered in the context of the relevant provisions of the law
Now as stated earlier by clause 5 of Article 22 a dual obligation is cast on the authority making the detention order one on which is to afford to the detenu an earliest opportunity of making a representation against the order which obligation has been met by informing the detenu in the grounds of detention to whom his representation should be addressed
But the author ity to which the representation is addressed must have statutory backing
In 452 order to trace the source for the statutory backing it would be advantageous to notice the scheme of the Act providing for preventive detention
Section 2b defines a detention order to mean an order made under section 3
Sub section 1 of section 3 empowers the Central Government or the State Government or any officer of the Central Government not below the rank of a Joint Secretary to that Government specially empowered for the purposes of this section by that Government or any officer of a State Government not below the rank of a Secretary to that Government specially empow ered for the purposes of this section by that Government to make an order of detention with respect to any person with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from doing any one of the five prejudicial acts enumerated thereunder
Subsection 2 of that section provides that when any order of detention is made by a State Government or by an officer empowered by a State Government the State Government shall within ten days forward to the Central Government a report in respect of the order
It is evident from this provision that whenev er a detention order is made by the State Government or its officer specially empowered for that purpose an obligation is cast on the State Government to forward a report to the Central Government in respect of that order within ten days
The purpose of this provision is clearly to enable the Central Government to keep an eye on the exercise of power under section 31 by the State Government or its officer
Then comes sub section 3 which reads as under 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 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 circum stances and for reasons to be recorded in writing not later than fifteen days from the date of detention
 This provision is clearly intended to meet the obligation cast by Article 225 that the grounds of detention shall be communicated as soon as may be 
The legislation has therefore fixed the outer limit within which the grounds of detention must be communicated to the detenu
Thus the first part of the obligation cast by Article 225 is met by section 33 of the Act
Section 8 provides for the Consti tution of Advisory Boards
This section is clearly to meet the obligation of 453 sub clause a of clause 4 and sub clause c of clause 7 of Article 22 of the Constitution
Section 8f which has some relevance provides that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person the appropriate Govern ment may confirm the detention order and continue the deten tion of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned the appropriate Govern ment shall revoke the detention order and cause the person to be released forthwith
This provision clearly obliges the appropriate Government to order revocation of the detention order if the Advisory Board reports want of sufficient cause for detention of that person
Then comes section 11 which reads as under Revocation of detention orders 1 Without prejudice to the provisions of section 21 of the  a detention order 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 Gov ernment
b notwithstanding that the order has been made by an officer of the Central Government or by a State Government by the Central Government
 Sub section 2 is not relevant for our purpose
It is obvious from a plain reading of the two clauses of sub section 1 of section 11 that where an order is made by an officer of the State Government the State Government as well as the Central Government are empowered to revoke the detention order
Where however the detention order is passed by an officer of the Central Government or a State Government the Central Government is empowered to revoke the detention order
Now this provision is clearly without prejudice to section 21 of the which lays down that where by any Central Act a power to issue orders is conferred then that power includes a power exercisable in the like manner and subject to the like sanction and conditions if any to rescind any order so issued
Plainly the authority which has passed the order under any Central Act is empowered by this provision to rescind the order in like manner
This provision when read in the context of section 11 of the Act makes it 454 clear that the power to rescind conferred on the authority making the detention order by section 21 of the is saved and is not taken away
Under section 11 an officer of the State Government or that of the Central Government specially empowered under section 31 of the Act to make a detention order is not conferred the power to revoke it that power for those officers has to be traced to section 21 of the 
Therefore where an officer of the State Government or the Central Government has passed any detention order and on receipt of a represen tation he is convinced that the detention order needs to be revoked he can do so by virtue of section 21 of the since section 11 of the Act does not entitle him to do so
If the State Government passes an order of deten tion and later desires to revoke it whether upon receipt of a representation from the detenu or otherwise it would be entitled to do so under section 21 of the but if the Central Government desires to revoke any order passed by the State Government or its officer it can do so only under clause b of Section 111 of the Act and not under section 21 of the 
This clari fies why the power under section 11 is conferred without prejudice to the provisions of section 21 of the 
Thus on a conjoint reading of section 21 of the and section 11 of the Act it becomes clear that the power of revocation can be exercised by three authorities namely the officer of the State Government or the Central Government the State Government as well as the Central Government
The power of revocation conferred by section 8f on the appropriate Government is clearly inde pendent of this power
It is thus clear that section 8f of the Act satisfies the requirement of Article 224 whereas section 11 of the Act satisfies the requirement of the latter part of Article 225 of the Constitution
The statu tory provisions therefore when read in the context of the relevant clauses of Article 22 make it clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the right conferred on the detenu to represent against his detention order
Viewed in this perspective it cannot be said that the power conferred by section 11 of the Act has no relation whatsoever with the constitutional obligation cast by Article 225
We may now turn to the case law on which reliance was placed
In Razia Umar s case section Murtaza Fazal Ali J sitting singly during vacation was concerned with a more or less similar situation
In that case a detention order was passed by the State Government against which the detenu had made a representation to the said Government
By that repre sentation he also prayed that his representation may be 455 forwarded to the Central Government for being considered
That representation was disposed of by the State Government but it was not forwarded to the Central Government notwith standing the specific prayer of the detenu
The defence taken was that the detenu had himself sent a copy of his representation to the Central Government and therefore the Detaining Authority did not consider it necessary to forward the representation to the Central Government
The defence of the State Government was held to be wholly unacceptable on the following line of reasoning Section 11 of the Act confers a constitution al right on the detenu to have his representa tion considered by the Central Government
It is true that the Central Government has a discretion to revoke or confirm the detention but the detenu has undoubtedly a right that his representation should be considered by the Central Government for whatever worth it is
The mere fact that the detenu had sent a copy to the Central Government does not absolve the detaining authority from the statutory duty of forwarding the representation to the Central Government Emphasis supplied This observation would show that the power of revocation conferred by section 11 of the Act has a nexus with the fight of representation conferred on the detenu by Article 225 and therefore the State Government when requested to forward a copy of the representation to the Central Govern ment is under an obligation to do so
The learned counsel for the appellant further pointed out that our case stands on a stronger footing because admittedly the appellants had not forwarded a copy of their representation to the Central Government as in Razia Umar s case
The High Court distinguished this decision on the ground that the facts of Razia Umar s case reveal that the detenu had sent a separate representation to the Detaining Authori ty with a request to forward the same to the State Govern ment and the Central Government whereas in our case only one representation was sent to the Detaining Authority with a request that copies thereof be taken out and sent to the State Government as well as the Central Government for their consideration
With respect this distinction has nothing to do with the ratio of the decision if at all as rightly pointed out counsel for the appellants the facts of this case are stronger than those of Razia Umar s case
456 In Rattan Singh s case the facts reveal that the detenu had written a letter to the Superintendent of Central Jail Amritsar enclosing therewith two representations one of which was addressed to the Joint Secretary Department of Home Government of Punjab Chandigarh and the other to the Secretary Union Ministry of Finance Department of Revenue New Delhi
The Jail Superintendent was requested to forward the representations to the State Government as well as the Central Government
In the counter filed on behalf of the Central Government it was stated that no representation by or on behalf of the detenu had been received by the Central Government
It was contended that failure to forward the representation to the Central Government and the consequent failure of the Central Government to apply its mind to the representation vitiated the detention order
This Court held that the detenu was unaccountably deprived of a valuable right to defend and assert his fundamental right to personal liberty
Chandrachud
who spoke for the three Judge Bench observed as under But the laws of preventive detention afford only a modicum of safeguards to persons de tained under them and if freedom and liberty are to have any meaning in our democratic set up it is essential that at least those safe guards are not denied to the detenus
Section 111 of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer
That power in order to be real and effective must imply the right in a detenu to make a representation to the Central Government against the order of detention
The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu s representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government
The continued detention of the detenu must therefore be held illegal and the detenu set free
 In taking this view reliance was placed on an earlier deci sion of this Court in Tara Chand vs State of Rajasthan In Sat Pal s case also counsel for the detenu had for warded two representations one meant for the Central Govern ment and other for the State Government for exercise of power under section 11 of the Act
The Jail Superintendent who was requested by a forwarding letter 457 to sent the representations to the appropriate Governments after obtaining the signatures of the detenu thereon for warded them to the Joint Secretary in the State Government with an endorsement that one of them may be forwarded to the Central Government
The representation of the detenu to the Central Government was not forwarded to that Government by the State Government promptly
It was therefore contended that the detention order was rendered illegal and liable to be quashed
Dealing with this contention this Court observed that the making of an application for revocation of the order of detention by the Central Government under section 11 of the Act is part of the constitutional right a citizen has against his detention under a law relating to preventive detention
It was therefore observed It is therefore idle to contend that this State Government had no duty to forward the representation made by the detenu to the Central Government for revocation of his order of detention under section 11 of the Act In taking this view the Court placed reliance on Rattan Singh s case Gracy s case may not be entirely apposite because the question which the court was required to consider in that case was that the representation made to the Advisory Board was not taken into consideration by the Central Government after the papers were laid before it with the opinion of the Advisory Board that there was sufficient cause to justify the preventive detention
That was therefore a case in which the representation was very much before the Central Government and it failed to consider the same before con firming and fixing the duration of the detention order
In that case therefore the question for consideration was whether it was incumbent on the part of the Central Govern ment to consider a representation addressed to the Advisory Board notwithstanding its rejection by the Advisory Board
Such is not the question before us but counsel for the appellants invited our attention to certain observations made in paragraphs 8 and 9 which indicate that the detenu s right for consideration of his representation by the Central Government flows from Article 225 irrespective of the fact whether the representation is addressed to the Detain ing Authority or to the Advisory Board or both
These obser vations though made in a different fact situation do support the submission made on behalf of the appellants
But counsel for the respondents argued that the observations were too broadly stated
It is not necessary for us to examine this contention as the earlier decisions are sufficient to uphold the appellants  contention
458 In the case before us the factsclearly show that the appellants had made a request to the Detaining Authority to take out copies of his representation and forward them to the State Government as well as the Central Government for consideration
Counsel for the Detaining Authority as well as the State Government contended that no such duty was cast on the said respondents to take out copies and forward them to the Central Government for consideration
Counsel for the Union of India contended that since no such representation had reached the Central Government there was no question of the Central Government applying its mind thereto and taking a decision thereon
In support reliance was placed on Phil lippa Anne Duke vs The State of Tamil Nadu  Ors  a judgment rendered by O Chinnappa Reddy J sit ting singly
In that case the two petitioners who were British nationals were detained for smuggling electric equipments and goods secreted in specially made compart mentscavities of their Mercedez Benz Van
Representations were presented on their behalf to the Prime Minister of India during her visit to England
No decision was taken on those representations and hence it was contended that the detention orders deserved to be quashed
This Court held that representation from whatever source addressed to whoso ever officer of one or other department of the Government cannot be treated as representations under the Act
It was further held that the Bout De Papier presented to the Prime Minister of India during her visit to Britain and the subse quent reminder addressed to the External Affairs Ministry could not be treated as representations to the Central Government
It is therefore obvious that this decision turned on its special facts and is no authority for the proposition that the Detaining Authority or the State Gov ernment was under no obligation to forward the representa tions to the Central Government
It must be realised that when a person is placed under detention he has certain handicaps and if he makes a request that a representation prepared by him may be forwarded to the Central Government as well as the State Government for consideration after taking out copies thereof it would be a denial of his right to represent to the Central Government if the Detaining Authority as well as the State Government refuse to accede to his request and omit to forward his representation to the Central Government for consideration
It is difficult to understand why such a technical and rigid view should be taken by the concerned authorities in matters of personal liberty where a person is kept in preventive detention without trial
Detenus may be literate or illiter ate they may have access to legal advice or otherwise they may or may not be in a position to prepare more than one copy of the 459 representation and if they make a request to the authorities which have the facilities to take out copies to do so and forward them for consideration to the Central Government would it be just and fair to refuse to do so In such cir cumstances refusal to accede to their request would be wholly unreasonable and in total disregard of the right conferred on the detenu by Article 225 of the Constitution read with section 11 of the Act
We are therefore of the opinion that the Detaining Authority as well as the State Government were not justified in taking a hyper technical stand that they were under no obligation to take out copies of the representations and forward them to the Central Government
We think that this approach on the part of the Detaining Authority and the State Government has robbed the appellants of their constitutional right under Article 225 read with section 11 of the Act to have their representation considered by the Central Government
The request of the detenus was not unreasonable On the contrary the action of the Detaining Authority and the State Government was unrea sonable and resulted in a denial of the appellants  consti tutional right
The impugned detention orders are there fore liable to be quashed
In the result we allow these appeals set aside the order of the High Court and quash the detention orders on this single ground
We direct that both the appellants who are in detention shall be set free at once unless they are required in any other pending matter
PUNCHHI J
I agree to the release of the detenus but in the facts and circumstances of the case
I have reserva tions to section 11 of the being treated part of the constitutional guarantee under Article 225 of the Constitution of India
Section 11 of the Act does not confer any constitutional right on the detenu to have his representation thereunder considered as if under Article 225 but merely a provision enabling the State Government or the Central Government as the case may be to revoke or modify detention orders
Have section 11 of the Act repealed it causes no affectation to the constitutional guarantee under Article 225 of the Constitution
Corre spondingly section 11 of the Act derives no sustenance from the said Article
Both operate in mutually exclusive fields though not as combatants
Both the detenus may be set free as proposed by my learned brother AM Ahmadi J VPR Appeals allowed


Summary:
The Government of Andhra Pradesh issued an order dated 181181 which provided that in respect of appointments to NonGazetted posts of all services candidates who have obtained their basic educational qualification through the medium of Telugu shall be given weightage of 5 marks
But the benefit of the order was confined to selection made through the State Public Service Commission
The State Administrative Tribunal held that the order applies to  all selections irrespective of the body that makes selection in the State and extended the benefit of the order to the selection of the Sub Inspectors of Police made through the State level Recruitment Board
Against the order of the Tribunal the State of Andhra Pradesh filed an appeal to this Court
Allowing the appeal this Court HELD 1
The Tribunal exceeded its jurisdiction in lifting the restriction imposed by the Government in the matter of benefit of 5 marks
The order of the Tribunal is vacated
567D E 2
The State Government is the authority to take a policy decision
Whether the decision is tenable or not in law is not to be decided by the Court
Since Government in their wisdom have specifically confined the application of the Notification to recruitment through the State Public Service Commission the decision of the Tribunal that it was also available to be extended to selection through bodies other than the State Public Service Commission cannot be appreciated
566H 567A 565 3
When the Notification is specific and is intended to apply to a specified group of cases for selection it would not be open to the Tribunal to extend its application beyond what has been clearly specified
It is one matter to say that the Notification applied in a limited way may he hit by law it is another to say that contrary to the restriction imposed the Tribunal would allow the Notification to have general application
S67C