etition Criminal No 2690 of 1981
Under article 32 of the Constitution of India AND Writ Petition Criminal No 3241 of 1981
Under article 32 of the Constitution of India Ram Jethmalani and MS Ganesh for the Petitioner in WP No 269081
OP Rana and RN Poddar for the Respondents in WP No 269081
Ram Jethmalani and Miss Rani Jethmalani for the Petitioner in WP No 3241 81
Hardyal Hardy section Narayanan and Miss A Subhashini for the Respondents in WP No 324181
The Judgment of the Court was delivered by CHINNAPPA REDDY J
These two Writ Petitions Criminal may be disposed of by a single judgment as some of the questions raised are common to both
To begin with we may refer to the facts in Writ Petition Criminal No 2690 of 1981
The Government of Maharashtra in exercise of the powers under Sec
31 of the COFEPOSA directed the detention of Sunder Shankardas Devidasani by an order dated March 9 1981 with a view to prevent him from smuggling goods and abetting the smuggling of goods
The 142 grounds of detention also of the same date were duly served on the detenu
The detenu made a representation on April 14 1981 and this was rejected by the Government on April 25 1981
A further representation made by the detenu on April 25 1981 was also rejected on May 2 1981
In the mean time the Advisory Board met on April 29 1981 and considered the case of the detenu
By a letter dated May 6 1981 the detenu was informed by the Advisory Board that the Board had reported to the Government of Maharashtra advising them that there was sufficient material to justify his detention
In this application for the issue of a Writ of Habeas Corpus the first submission of Shri Jethmalani learned counsel for the detenu was that although it was the Government that was required by Sec 8b of the COFEPOSA to make the reference to the Advisory Board in the instant case it was not the Government but one of its subordinate officers that had made the reference
There was thus according to Shri Jethmalani a departure from the prescribed procedural requirement and for that reason the continued detention of the detenu for any period longer than five weeks mentioned in Sec 8b was illegal
Shri Jethmalani s contention was that Sec 8 b required the Government to make a reference to the Advisory Board within five weeks from the date of detention and this meant that the Government had first to decide that it was necessary to detain the person for more than five weeks and then to forward the reference to the Advisory Board
The learned counsel would have it that the making of a reference to the Advisory Board necessitated a decision to detain the detenu for more than five weeks and this decision could be taken by the Government only and none else
We are unable to agree with the submission of Shri Jethmalani
article 22 4 a of the Constitution prescribes that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention
article 22 7 c empowers Parliament by law to prescribe the procedure to be followed by an Advisory Board in an enquiry under article 22 4 a
Sec 3 1 of the COFEPOSA authorises the Central Government the State Government an officer of Central Government not below the rank of a Joint Secretary specially empowered in that behalf or an Officer 143 of a State Government not below the rank of a Secretary specially empowered in that behalf to make an order directing that a person be detained if satisfied with respect to that person that it is necessary to detain him 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 smuggling goods etc
Sec 3 3 provides for the communication of the grounds of detention to the detenu to enable him to make a representation
The communication has to be ordinarily not later than five days of the date of detention though in exceptional circumstances for reasons to be recorded in writing it may be fifteen days
Sec 8 provides for the constitution of Advisory Boards and the procedure to be followed by them
Sec 8 b obliges the appropriate Government within five weeks from the date of detention of a person under a detention order to make a reference in respect of the detention to the Advisory Board to enable the Advisory Board to make the report under article 22 4 e of the Constitution
Sec 8 c prescribes the procedure to be followed by the Advisory Board and requires the Advisory Board to submit its report within eleven weeks from the date of detention of the person concerned
Sec 8 f stipulates that the appropriate Government shall revoke the detention order and cause the person to be released forthwith if the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned
If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit
11 empowers the State Government to revoke an order of detention made by an Officer of the State Government and the Central Government to revoke an order of detention made by a State Government an officer of a State Government or an Officer of the Central Government
The power of the State Government and the Central Government under Sec
11 of the COFEPOSA to revoke orders of detention is in addition to the power under Sec
21 of the General Clauses Act to revoke their own orders
The first important factor to be noticed here is that the period for which a person is to be detained under the COFEPOSA is not to be determined and specified at the time of making the original order of detention under Sec
It has to be determined and specified at the time of confirming the order of detention under Sec 8 f after receiving the report of the Advisory Board
The second factor 144 of importance which calls for attention is that while an order of detention may be made by the State Government the Central Government or an Officer of either Government specially empowered in that behalf an order of detention may only be confirmed by the appropriate Government
Keeping in mind these two factors we may now examine the time scheme under the COFEPOSA
First the detaining authority who may be the Central Government the State Government or an Officer of either Government specially empowered in that behalf must be satisfied that it is necessary to detain a person with a view to preventing him from acting in a certain manner or doing certain things and if so satisfied an order of detention may be made Sec 3 1 COFEPOSA
The order of detention has not to specify the proposed period of detention at that stage
Within five days of the detention the detenu is required to be furnished with the grounds of detention so as to enable him to make a representation to the detaining authority article 225 of the Constitution and Sec
33 COFEPOSA
Thereafter within three months from the date of detention the Advisory Board has to report the sufficiency of cause for such detention
This is a constitutional mandate article 224 of the Constitution
In order to enable the Advisory Board to discharge its constitutional obligation the Government is required to make a reference to the Advisory Board within five weeks from the date of detention Sec 8b of COFEPOSA
The Advisory Board in its turn is charged with the task of submitting a report within eleven weeks from the date of detention specifying its opinion as to whether or not there is sufficient cause for the detention of the person concerned Sec 8c COFEPOSA
Quite obviously the period of eleven weeks from the date of detention prescribed for the submission of the report of the Advisory Board is to enable compliance with the Constitutional time limit of three months
On receipt of the report the Government has to revoke the detention if the Board has reported that there is no sufficient cause for the detention or to confirm the order of detention and specify the period of detention if the Board has reported that there is sufficient cause for the detention Sec 8f COFEPOSA
In the meanwhile at any time the Central Government in any case and the State Government if the order of detention was made by the State Government or by an Officer of the State Government are entitled to revoke the order of detention
Thus there is no Constitutional or Statutory obligation on anyone until after the report of the Advisory Board is received to decide finally or tentatively upon the period of detention
The initial compulsion on the detaining authority before making an order of detention is 145 to arrive at the satisfaction that it is necessary to detain the person concerned with a view to preventing him from acting in a certain manner or with a view to preventing him from committing certain acts
The obligation to specify the period of detention is upon the appropriate Government and that has to be done at the final stage after consideration of the report of the Advisory Board
There is no intermediate stage at which any tentative conclusion is to be arrived at by the Government regarding the period of detention though at any and every stage the Government has the full liberty to revoke the order of detention
We are therefore of the view that the act of making a reference to the Advisory Board is a mechanical or ministerial act involving no exercise of discretion though of course the Government is at that stage as at all other stages at liberty to revoke the order of detention
The prescription of five weeks in Sec
8b of the COFEPOSA for the making of a reference to the Advisory Board is with a view to enable the fulfilment of the Constitutional requirement of article 224 and not with a view to imposing an obligation upon the Government to consider the question of the length of detention and arrive at a tentative conclusion even at that stage
We therefore reject the first submission of Shri Jethmalani
The second submission of the learned counsel for the detenu was that the representation was disposed of by the Minister of State Home Affairs Government of Maharashtra without any authority to do so
It is somewhat strange that this contention should have been raised before us
We understand that this very contention was previously raised in another Writ Petition and that the relevant standing order was produced before the Court at the hearing of the Writ Petition and that it was also shown to the learned counsel
The standing order is made by Shri AR Antulay Chief Minister of Maharashtra and Minister for Home and it directs allotment of the business appertaining to All cases of and the Conservation of Foreign Exchange and Prevention of Smuggling Activities
Maharashtra Detention Order 1974 and all other matters arising under the provisions of the said Act and the said order   and any other orders issued under this Act except
  We are not concerned with the exceptions to the Minister of State for Home Shri Abhey Singh Maharaj Raje Bhosale
Rule 6 of the Maharashtra Govt
Rules of Business made by the Governor of Maharashtra in exercise of the powers conferred by Article 166 2 and 3 of the Constitution provides that the Chief Minister and a 146 Minister in consultation with the Chief Minister may allot to a Minister of State or a Deputy Minister any business appertaining to a Department or a part of a Department
It is therefore clear that the Minister of State Home Affairs Government of Maharashtra was entitled to deal with the representation of the detenu
It was suggested that it would have been more appropriate if the representation had been considered by the very individual who had exercised his mind at the initial stage of making the order of detention namely the Secretary to the Government Shri Samant
There is no substance 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 authorised to so act for the Government under the Rules of Business
Governmental business can never get through if the same individual has to act for the Government at every stage of a proceeding or transaction however advantageous it may be to do so
Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages
It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages
It is unnecessary to pursue the matter any further as we find no constitutional or legal infirmity in the representation having been considered by the Minister of State Home Affairs Government of Maharashtra
The learned counsel next submitted that the detenu was not permitted to be represented by a lawyer despite his request that he might be allowed to engage the services of a lawyer before the Advisory Board
In his representation to the Government the detenu did make a request to be permitted to be represented by a lawyer
The Government informed him that under the provisions of Sec 8e of the COFEPOSA he was not entitled to be represented by a lawyer before the Advisory Board and therefore it was not possible to grant his request
The complaint of the learned counsel for the detenu was that while a detenu may not be entitled as of right to be represented by a lawyer before the Advisory Board there was no bar against a lawyer being permitted to appear before the Advisory Board and therefore the request of a detenu to be represented by a lawyer had to be considered on the merits of each individual case
This the learned counsel submitted had not been done in the present case and the detenu s request was never placed before the Advisory Board
It is true that while Sec 8e disentitles 147 a detenu from claiming as of right to be represented by a lawyer it does not disentitle him from making a request for the services of a lawyer
We agree that the importance of legal assistance can never be over stated and as often than nota dequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Article 21 of the Constitution and the Right to be heard given to a detenu by Sec
8e COFEPOSA
These rights may be jeopardised and reduced to more nothings without adequate legal assistance
That would depend on the facts of each individual case in the light of the intricacies of the problems involved and other relevant factors
Therefore where a detenu makes a request for legal assistance his request would have to be considered on its own merit in each individual case
In the present case the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board
Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter when he was produced before the Advisory Board could have if he was so minded made a request to the Advisory Board for permission to be represented by a lawyer
He preferred not to do so
In the special circumstances of the present case we are not prepared to hold that the detenu was wrongfully denied the assistance of counsel so as to lead to the conclusion that procedural fairness a part of the Fundamental Right guaranteed by Article 21 of the Constitution was denied to him
The last submission of the learned counsel was that there was a non application of the mind of the detaining authority first in making the order of detention and later in considering the representation of the detenu
It was contended that the recital in the grounds of detention that detenu had made a statement that certain documents received at the detenu s residence at the time of search pertained to the order dated 29111980 of Shri Abdullahi Amin Attache Sudan Consulate was not correct and that the detenu s statement contained no such recital
It was said that the grounds of detention read as if the detenu had admitted the existence of the order dated 291180 in the statement made by him
We do not find any substance in this submission
A reading of the document leaves no such impression
All that was said was that the documents received by post at the time of search pertained to an order dated 291180 and not that there was admission by the detenu that there was ever an order dated 291180
It was then contended that in the course of communication of the grounds of detention the detenu was informed that 148 it was against the public interest to disclose the source of intelligence and the further facts contained therein
The actual sentence by which privilege was claimed against disclosure was as follows I consider it against public interest to disclose the source of intelligence referred to in the grounds furnished above and further consider it against public interest to disclose further facts contained therein
The argument was that the grounds did not state that the Government considered it against public interest to disclose the source of intelligence and the further facts contained therein but that it was the Assistant Secretary to the Government of Maharashtra who signed at the bottom of the grounds that though it was against the public interest to disclose the source of intelligence and the facts contained therein
The emphasis was on the use of the first person by the Assistant Secretary
This was explained by the respondents as a Clerical mistake and was later rectified by making suitable corrections
It was contended that the discovery of the mistake and its rectification was after the Advisory Board had submitted its report though the detenu had even earlier raised the question that it was the Government and not the Assistant Secretary that could claim privilege
It was not brought to the notice of the Advisory Board at any time that the mistake was only clerical
We have the least hesitation in rejecting the contention
The mistake is so obviously clerical that we cannot permit the detenu to take advantage of it
In the result WP No 269081 is dismissed
The first two questions raised in the previous Writ Petition are common to Writ Petition No 3241 of 1981 also
An additional point was sought to be raised that the copy of a certain document was not supplied to the detenu but after verification the point was abandoned by the learned counsel
This Writ Petition is also dismissed
NVK Petitions dismissed


Summary:
The husband of the petitioner was detained by the State Government under section 31 of the with a view to prevent him from smuggling goods and abetting the smuggling of goods
His representation to the State Government was rejected
The Advisory Board informed him by a letter that the Board had reported to the Government advising them that there was sufficient material to justify his detention
In the writ petition filed in this Court it was contended on behalf of the detenu 1 although it was the Government that was required by section 8b of the COFEPOSA to make the reference to the Advisory Board it was not the Government but one of its subordinate officer that had made the reference and that this departure from the prescribed procedural requirement had made the continued detention of the detenu for any period longer than the five weeks mentioned in section 8b illegal 2 the representation was disposed of by the Minister of State of Home Affairs of the State Government without any authority to do so 3 the detenu was not permitted to be represented by a lawyer despite his request that he might be allowed to engage the services of a lawyer before the Advisory Board 4 there was a non application of the mind of the detaining authority first in making the 139 order of detention and later in considering the representation of the detenu and 5 that it was the Assistant Secretary to the State Government who signed at the bottom of the grounds that he thought it was against the public interest to disclose the source of intelligence and the facts contained therein
In the connected writ petition only the first two of the aforestated contentions were raised
Dismissing the writ petitions  HELD 1i The order of detention has not to specify the proposed period of detention at that stage
Within five days of the detention detenu is required to be furnished with the grounds of detention so as to enable him to make a representation to the detaining authority
Article 225 of the Constitution and section 33 COFEPOSA
Thereafter within three months from the date of detention the Advisory Board has to report on the sufficiency of cause for such detention
This is a constitutional mandate Article 224 of the Constitution
In order to enable the Advisory Board to discharge its constitutional obligation the Government is required to make a reference to the Advisory Board within five weeks from the date of detention
Section 8b of COFEPOSA
The Advisory Board in its turn is charged with the task of submitting a report within eleven weeks from the date of detention specifying its opinion as to whether or not there is sufficient cause for the detention of the person concerned Section 8c COFEPOSA
The period of eleven weeks is to enable compliance with the Constitutional time limit of three months
On receipt of the report the Government has to revoke the detention if the Board has reported that there is no sufficient cause for the detention or to confirm the order of detention and specify the period of detention if the Board has reported there is sufficient cause for the detention
Section 8f COFEPOSA
In the meanwhile at any time the Central Government in any case and the State Government if the order of detention was made by the State Government or by an Officer of the State Government are entitled to revoke the order of detention
144 C G ii There is no constitutional or statutory obligation on any one until after the report of the Advisory Board is received to decide finally or tentatively upon the period of detention
The initial compulsion on the detaining authority before making an order of detention is to arrive at the satisfaction that it is necessary to detain the person concerned with a view to preventing him from acting in a certain manner or with a view to preventing him from committing certain acts
The obligation to specify the period of detention is upon the appropriate Government and that has to be done at the final stage after consideration of the report of the Advisory Board
There is no intermediate stage at which any tentative conclusion is to be arrived at by the Government regarding the period of detention though at any and every stage the Government has the full liberty to revoke the order of detention
144 H 145 C iii The act of making a reference to the Advisory Board is a mechanical or ministerial act involving no exercise of discretion though of course the Government is at the stage as at all other stages at liberty to revoke the order of detention
The prescription of five weeks in section 8b of the 140 COFEPOSA for the making of a reference to the Advisory Board is with a view to enable the fulfilment of the constitutional requirement of Article 224 and not with a view to imposing an obligation upon the Government to consider the question of the length of detention and arrive at a tentative conclusion even at that stage
145 D 2i The Maharashtra Government Rules of Business made by the Governor in exercise of the powers conferred by Article 1662 and 3 of the Constitution provides by Rule 6 that the Chief Minister and a Minister in consultation with the Chief Minister may allot to a Minister of State or a Deputy Minister any business appertaining to a Department or a part of a Department
The Standing Order made by the Chief Minister of Maharashtra and Minister for Home directs allotment of the business appertaining to All cases of and the Conservation of Foreign Exchange and Prevention of Smuggling Activities   
Maharashtra Detention Order 1974 and all other matters arising under the provisions of the said Act and the said Order and any other orders issued under this Act except  to the Minister of State for Home
The Minister of State for Home Affairs was therefore entitled to deal with the representation of the detenu
145 H F G 146 A ii Governmental business can never get through if the same individual has to act for the Government at every stage of a proceeding or transaction however advantageous it may be to do so
Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages
It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages
There is therefore no substance in the suggestion that the representation of the detenu should have been considered by the very individual who had exercised his mind at the initial stage of making the order of detention
146 D B 3
While section 8e disentitles a detenu from claiming as of right to be represented by a lawyer it does not disentitle him from making a request for the services of a lawyer
The importance of legal assistance can never be over stated and adequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Article 21 of the Constitution and the Right to be heard given to a detenu by section 8e of COFEPOSA
These rights may be jeopardised and reduced to mere nothings without adequate legal assistance
That would depend on the facts of each individual case in the light of the intricacies of the problems involved and other relevant factors
Therefore where a detenu makes a request for legal assistance his request would have to be considered on its own merit in each individual case
146 H 147 C In the instant case the State Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board
Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter when he was produced before the Advisory Board could have if he was so minded made a request to the Advisory Board for permission to be represented by a lawyer
He preferred not to do so
The detenu was therefore not wrongfully denied the assistance of 141 counsel as to the conclusion that procedural fairness a part of the Fundamental Right guaranteed by Article 21 of the Constitution was denied to him
147 D E 4
A reading of the grounds of detention reveals that all that was said was that the documents received by post at the time of search pertained to an order dated 29111980 and not that there was any admission by the detenu that there was ever an order dated 29111980
147 H 5
The mistake that it was only the Assistant Secretary of the State Government who signed at the bottom of the grounds that it was against the public interest to disclose the source of intelligence was explained by the respondents as a clerical mistake and was later rectified by making suitable corrections
148 C E