.. .

STATE OF UTTAR PRADESH

ZAVAD ZAMA KHAN

May4, 1984

'.(D.A. DESAI, A.P. SEN AND V. BALAKRISHNA ERADI, JJ.]

Pub/" Safety Laws-Natianal Security Act (Act XLV of 1980), Section 14- Revocation of orders of detention-Due compliance with requirements of section 8(1) read with Article 22(5) of the Constitution though con1plied with, subsequent representation for revocation to Prime Minister made through the counsel filed by t'ie Central Government-Whether non-passing of any order on the revocation representation vitiates the detention.

The facts are that the respondent made a represenation dated June 18, 1983

aainst an order of detention passed by the District Magistrate, Morada bad dated Noven1ber 6, 1982 for his detention under sub-s. (3) of s. 3 of the National Security Act, 1980, and the same was duly forwarded by the District Magistrate to the Advisory Board on June 21, 1983. The State Government had in the mean while on June 13, 1983 made a reference to the Advisory Board under s- 10 of the Act i.e. within three weeks from the date of detntion together with the order of detention and the grounds therefor for its opinion. On June 23, 1983 the representation was examined by the Joint Secretary, Home Department who marked the file to the Home Secretary on June 27, 1983 who on his turn placed the file before the Chief Minister for his comments on June 27, 1983. The Chief Minister tooA. to daysto study the file and ultimately passed an order rejecting the representation. On July 2, 1983 the Stat_e Government forwarded the representation made together with the commens to the Government of India and the Central"Government rejected the same on July 19, 1983.

It appears th<it on July 5, 1983 the respondent through his counsel simultaneously addressed two representations for revocation-of his detention under s. 14 of the Act, one ad(ressed to the Prime Minister of India and the other to the Slate

Government. The representation made to the Central Government addressed in the name of the Prime Minister was received in the Prime Minister's Secretariat on July 7, 1983 and the grievance of the respondent before the High

Court was that the Central Government h<id not dealt with his application for the revocation of the order of detention under s.14 of the Act. The l-ligh Court obser~ ved that the right of the detenu to make a representation to.the Central Government

for r .... vocation of the order of detention unde_r s. 14 of Act was intended to be an additional ch{'C1< or safeguard against the improper exercise of its power of H detention by the detaining authority or the State Governfnent and therefore the failure on the part of the Central Government to consider the same was tantamount 10 a denial of the consitutional safesuard as contemplated by Art. 22(5)

A ofthe Consti'.ution. It accordingly held the continued detention of the respon dent to be illegal.

Aggrieved by the Order, the State preferred an Special Leave.

Aile wing the appeal, the Court,

• HELD : (1) The constitutional imperatives of Art. 22(5) enjoin that where a detenu simultaneously makes representation to the detaining authority as well as an application under s. 14 of the Act, they must not be dealt with by the appropriate Government at the same tin1e and there was no question of any conflict of jurisdiction. If the Central Government were to revoke the order of detention under s. 14 of the Act, there would be no representation for the State Governn1ent to consider, or refer to the Advisory Board under s. 8(b) of the Act nor will thre arise any question of Advisory Board making a report to it, or on receipt of such a report, confirming the order of detention under section 8(f).

The other type of cases can be where notwithstanding that the order of detention has been confinned under s. S(f) the appropriate Government may, at any time, revoke the same under s. 14. The power of revocation conferred on the appro~ priate Government un<ler s. 14 is independent of the power of confirming or setting aside an order of detention under s. S(f) [795H ; 796A-D]

2. The pO\\'Cr of revocation conferred on the Central Government under s. 14 of the Act is a statutory power which may be exercised on information reCeived by the Central Governn1ent from its own sources including that supplied by the State Gov:::rnment under sub-s. (5) of s. 3, or from the detenu in the form of a petition or representation. It is for the Central Governn1ent to decide whether or not it 'should revoke the order of detention in a particular case.

[796G-H]

-Any lapse on the part of State Government in forwarding the representation n1ade by the detcnu to the Central Government for revocation of the order of detention under s. 14 of the Act or non-consideration of the same by the Central Government makes the continued detention of the detenu bad. [793B-C]

In the present case, however, the detenu was not deprived of the right of making a representation to the detaining authority under Art. 22(5) of the Constitution read Withs, 8(1) of the Act. Although the detenu had no right to simultaneouly make a representation against the order of detention to the Central Govcrn111ent under Art. 22(5) and there was no duty cast on the State Government to forward the same to the Centr:il Government, nevertheless the State Government forwarded the same forthwith.

The Central Government duly considered that representation which in effect was nothing but a representation for revocation of the order of detention under s. 14 of the Act. That being so. it was not obligatory on the parr of the Central Government to consider a second representation for revocation under s. 14 of the Act. [797A-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 57 A of 1984.

From the Judgment and Order dated 25-10-1983 of the Allahabad High Court in Habeas Corpus WP. No. 8420 of 1983.

Manoj Swarup and Dalveer Bhandari for the appellant.

Mrs. & Mr. Qamaruddin, Rizwan A. Hajiez and Desh Raj for the respondent.

The Judgment of the Court was delivered by

• c SEN, J. The State Government of Uttar Pradesh has preferred this appeal by special leave from the judgment and order of the Allahabad High Court dated October 25, 1983 by which the High Court issued a writ in the nature of habeas corpus quashing an order of detention passed by the District Magistrate, Moradabad dated November 6, 1982 for the detention of the respondent under sub-s. (3) of s. 3 of the National Security Act, 1980 on being satisfied that his detention was necessary "with a view to preventing him 'from acting in any manner prejudicial to the maintenance of public order."

It appears that the respondent is alleged to have committed an offence of murder punishable under s. 302 and of causing disappearance of evidence punishable under s. 201 of the Indian Penal Code, 1860 in connection with the communal riots that occurred in the Moradabad city.

On November 6, 1982, the District

Magistrate, Moradabad passed the impugned order of detention ll but it could not be served on the respondent as he was absconding.

As required under sub-s. ( 4) of s. 3, the District Magistrate forthwith made a report of the fact to the State Government of Uttar Pradesh that he had passed an order for the detention of the respondent under sub-s. (3) of s. 3 of the Act, together with the G grounds on which the order had been made and such other particulars as, in his opinion, had a bearing on the matter.

The State Government received the order of detention on November 8, 1982 and approved of the same on November 11, 1982 under sub's. (5) of s. 3, and as required thereunder, forwarded a report to the Central Government on the next day i.e. on November 12, 1982. ff The respondent surrendered to the police on May 24, 1983 and the impligned order of detention was served on him in District Jail, ·

792 SUPREME COURT Rb1'0RTS [1984] 3 s.C, R,

A Moradabad on June 1, 1983 and the grounds of detention were fur• nished to hirn on June 2, 1983.

The respondent made a representation dated June 18, 1983 through the Superintendent, District Jail, Morada bad and he immediately forwarded the same to the District Magistrate.

On June 20, 1983 the District Magistrate forwarded the representation to the Advisory Board and the same was received by the Advisory Board on June 21, 1983. The State Government had in the meanwhile on June 13, 1983 made a reference to the Advisory Board under s. 10 of the Act i.e. within three weeks from the date of detention together with the order of detention, and the grounds therefore, for its opinion.

On June 23, 1983 the representation of the respondent forwarded by the District Magistrate together with his

comment; was examined by the Joint Secretary, Home Department The file was placed before the Home Secretary on June 27, 1983 who placed it before the \ hief Minister with his comments. The Chief Minister took two days to study the file and ultimately passed an order rejecting the representation on June 30, 1983.

On July 2, 1983 the State Government forwarded the representation made by the respondent together with its comments to the Government of India and the Central Government rejected the same on July 19, 1983.

On July 5, 1983 the respondent through his counsel D.S. Misra simultaneously addressed two representations for revocation of his detention under s. 14 of the Act, one addressed to the Prime Minister of India and the other to the State Government.

It appears that the representation made to the Central Government addressed in the name of the Prime Minister was received in the Prime Minister Secretariat on July 7, 1983 and the grievance of the respondent was that the Central Government had not dealt with his application for revocation of the order of detention under s. 14 even

IlO\V,

In his counter-affidavit by one M.L. Miglani, Desk Officer, Ministry of Home Affairs, New Delhi, it was stated that the Central Government had fully discharged its functions by expedi- . tiously taking a decision on the earlier representation directly addressed by the respondent and it was under. no statutory obligation to consider the subsequent representation for revocation addressed by the respondent through his counsel to the Prime Minister, I was not a statuto1y representation for revocation of the impugned

order of detention under s. 14 and therefore it was not at all neces- A sary for the Central Government to deal with jt,

 The High Court placing reliance on the decision of this Court in Phillippa Anr.e Duke v. Stara of Tamil Nadu & Ors.(1) and certain of its own decisions held that the respondent had a right to make an application to the Central Government for revocation of the order of detention and the failure on the part of the Central Government to apply its mind to it made the continue<! detention illegal.

The only question canvassed in the appeal before us is that the judgment of the High Court betrays complete lack of awareness of the nature of the constitutional safeguards enshrined under Art. 22(5) of the Constitution. It is urged that the constitutional impe i ratives enacted in Art. 22(5) are two-fold ; (I) The detaining authority must, as soon as may be i.e. as soon as practicable, after the detention, communicate to the detenu the .grounds on whic.h the order of detention bas been made. And (2) The detaining authority must afford the detenu the earliest opportunity of making representation against the order of detention. In the present ease, it is said that the requirements of Art. 22(5) of the Constitution . read with s. 8(1) of the Act had been duly complied with. There is no question of any violation of Art. 22(5) or cif s. 8(1) and further that the grounds for detention set out the facts with sufficient degree of particularity and they did furnish sufficient nexus for

forming the subjective satisfaction of the detaining authority. The order of detention cannot therefore be challenged on the ground that the grounds furnished were not adequate or sufficient for the subjective satisfaction of the detaining authority, or for making an effective representation. It is further urged that there being due compliance with the constitutional requirements of Art. 22(5) and of s. 8(1), the High Court was wrong in holding that the continued detention of the respondent was invalid merely because the Central Government refused to act on his application for revocation of the order of detention under s. 14 of the act.

We find considerable force in the submission.

We are not oblivious of the fact that this Court has in certaii:i cases given expression to the view that any lapse on the part of the

State Government in forwarding the representation made for revo-

(1);[1982h3 SCR ?69.

SUPREMH COURT REPORTS

[1984) 3 S.C.R.

cation of his order of detention under s. 11( i)(b) of the COFEPOSA Act, 1974 or the failure of the Central Government to expeditiously consider the same was a denial of the constitutional right of beil}g afforded "the earliest opportunity of making a representation against the order" as contemplated by Art. 22(5).

At one time it was thought thats. 14 of the Maintenance of Internal Security Act, 1971 which was in pari materia with s. 14 of the Act, did not confer any right or privilege on the detenu but there is a definite shift in the judicial attitude, for which there appears to be no discernible basis. .J In Shyam Ambalal Siroya v. Union of India & Ors(1)., the contention Ji was that be'cause a representation properly addressed to the Central Government to order revocation under s. 11 of the COFEPOSA Act was not forwatd"d by the detaining authority to the Central Government, the detention was illegal. The Court construed the power conferred on the Central Government to direct revocation of an order of detention under s. 1! of that Act to be "statutory". It was observed that the power of the Central Government to revoke the order of detention implies that the dctenu can make a representa- • tion for exercise of that power and a petition for revocation of an order of detention should be dealt with reasonable expedition.

Since a representation properly addressed by the detenu of the Central Government was not forwarded to the Central Government, the continued detention of the detenu was held to. be ille.gal.

In Sabir Ahmed v. Union of India & Ors(2)., the Court held that non-consideration by the Central Government of a representation for revocation made by the detenu under s. 11 of the COFEPOSA Act made the continued detention to be bad, following the decision in Shyam Amba/al Siroya's case, supra. It was however observed that the power conferred bys. 11 on the Central Government was a supervisory power and it was intended to be an additional check or safeguard against the improper exercise of its power of detention by .the detaining authority or the State Government.

G In Rattan Singh v. State of Punjab & Ors.(3), the Court went

still further. There was, in that case, a lapse on the part of the State Government in forwarding the.· representation simultaneously made by the detenu to the Central Government for revocation . of the order of detention under s. 11 of the COFEPOSA Act. The

(I) [1980] 2 SCR 1078

(2) [1980] 3 SCR 738

(3) [1982] l SCR 1010

Court struck down the order of detention on the groud that there was a denial of the right of making representation to the Central Government for revocation f the order of detention under s. II of the Act and this was tantamount to!a denial) of the constitutional safeguard of Art. 22(5). ' . Soon thereafter, the'Courtin Sat Pal v. State of Punjab & Ors.(') examined the nature of the power of revocion conferred on the Central Government under s. 11 of the COFEPOSA Act and he1d that it was iiUpervisoryin natre, and. it was observed : ·

"That is, as it should be, as~ under .our federal structure the Centre must always keep a vigilant eye in the matter oflife and Jiberty of a citi.ren guaranteed under Article 21.

• Ours is a Constitution where there is a combination of federal structure with unitary features while in a unitary State there is only one Government; federal State involves multi-Governments namely, national or federal Goyern-· ment and the Governments of component . States. A federal State, in short, is a fusion ofseveral States into a single State in regard to matters affeding common interest leaving each component State to enjoy autonomy in regard to other matters. Under o'llr Constitution, certain powers vest in the central Government leaving certain to its component units to exercise autonomy in spheres assigned to. them in the Constitution itself. The component States are not merely delegates or agents of the federal Government. .Both federal and Stale Governments draw their authority from the same source, the Constitution. The conferment of executive power on the States in relation to a subject with respecfto which the1legisfatures of the States have no' • power to make a law undr Art. 258(2) must necessarily .be subject to the administrative control of the Union under Arts. 256 and 247(1),'fo the giving of such directions to the States as.· may appear to the Government of India to be necessary for that purpose."

It.was then . observed that the constitutional imperatives of Art. 22(5) enjoin that where a detenu simultaneo11sly makes a re-

(1). ~1982) 1 sec 12,

• D

presentation to the c(etaining authority as well.as an application for revocation under s.· 11 of the Act. they must both be dealt_ with by the appropriate Government at the same time' and there was no question of any conflict of jurisdiction. To illustrate, it was said that i_f the Cent, ial Government were to revoke an order of deten, tion under s. 11 of the Act, there would . b~ no. representation for the State Government. to consider, or refer' the. Advisory Board under s. 8(b) ; nor will there arise any question of Advisory Board submitting a report to it, or Q~ receipt of such a report confirming the order of detention under s. 8Cf). It was further observed that t!ie other types of cases would be where . notwithstanding that the order of detention has been confirmed under s. S(f), the appro' priate Government may, atany time, revoke the same under s. _ H of the Act. It was accordingly held th:it the power of revocation .conferred on the appropriate Governmet unders. 11 is independent of tfie power of confirming or setting aside an order of detention under s. 8(f) ..

As to the nature of th~ power of revocation conferred on• the Central Government under s. 11 of the COFEPOSA Act,· it was stated :

"The making of an application for revocation to the Central Governmet under s. 11 of the Act is therefore part of the con_stitulicnal right a .citizen has against his_ "detention under a law relating to preventive detention,

While Art. 72(5) contemplates the making of a representation against the order of detention to the detaining authority, which has to be referred by the appropriate Government to the Advisory Board constituted under s. 8(a) of the Act, Parliament has, in its wisdom, enacted s .. 11 and

conferred an additional safeguard agninot arbitrary _executive action.'?

The principle that emerges (rcim. all these decisions is that the power of revocation conferred oil tl1e Central Government under s." 14 of the Act is a statutory power which may be exercised on information received by the Central Government from .its own sources including that supplied by the State Government under sub-s. (5) of s. 3 or from the detenu in the form of. a petition or representation. It is for the Central Government to decide whet!:ter o~ pot it should revoke tile order of detention in a par*ular

case, In the present case, the dete.nu was not deprived• of the right of making a representation to the detaining authority under Art. 22(5) of the Constitution read with s. 8(1) of the Act. Al though the deteriu had no right to simuijaneously make a repre• . senfafion against the order of qetention to the Central . Government nnder Art 22(5) and there was no duty cast on. the State Government to forward the same to the Central Government, neverthe less the State Government forward the same forthwith. The Centrai Government duly considered that representation whfoh in effect was n()thing but a Representation for revocation of the. order . of detention under s. 14 of the Act. That being so, it was nofobliga- . tory on the part of the Central Government to consider a second . representation for revocation under s. 14.

We may profitably refer to Phi/Uppa Anne D1ike's case, supra, where in somewhat ·. similar circumstances it was held that failnre of the Central

. Government to consider a representatlQD for revocation of an order of detention under s: ll(l)(b) of the COFEPOSA Act handed over to the Prirµe Mi.nister during her visit to England did not render the continued detention invalid. It was observed :

"Representations f; om whatever source addressed to whomsoever officer of one or other department of the Government cannot be treated as a representation to the

Governmeritunder s. ll(S)(b) of the COFEPOSA Act." Jil • > The re.suit therefor.e is. that the appeal Succeeds and is allowed. The judgment and order of the. High Court is set aside and the oroer .of detention passed by the District Magistrate under sub-s. (3) ofs. 3 of the National Security Act, 1980 is maintained.

S.R.

Appeal allowed.