# STATE OF MAHARASHTRA & ANOTHER v. SMT. SUSHILA MAFATLAL SHAH & OTHERS

- **Citation:** [1988] Supp. 2 S.C.R. 827
- **Court:** Supreme Court of India
- **Decided:** 1988-09-07
- **Bench:** A.P. Sen, S. Natarajan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-another-v-smt-sushila-mafatlal-shah-others-10032
- **Pages:** 26

## Headnote

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·
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
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 Government of Maharashtra, in exercise of the powers specially conferred
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.
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.
A
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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
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
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828
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
of the Constitution. The High Court accepted this contention and
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
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 representation 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.
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 constit.ute the Detaining Authority under the Act and not the officer concerned 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

## Text

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J
STATE OF MAHARASHTRA & ANOTHER
v.
SMT. SUSHILA MAFATLAL SHAH & OTHERS
SEPTEMBER 7, 1988
[A.P. SEN AND S. NATARAJAN, JJ.]
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·
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
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 Government of Maharashtra, in exercise of the powers specially conferred
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.
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.
A
B
c
D
E
F
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
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
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828
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
of the Constitution. The High Court accepted this contention and
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
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 representation 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.
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 constit.ute the Detaining Authority under the Act and not the officer concerned 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
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
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
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 detention order considering the representation of the detenu himself will be
nothing but a futile and meaningless exercise.
( 6) Since it has been pointed out that a detention order passed by
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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 representation 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
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;
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.
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..
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
c
Appellants.
U.R. Lalit, V.N. Ganpule and S.K. Angihotri for th~_Res
pondents.
The Judgment_ of the Court was delivered by
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. Ca poor, ,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 communicated 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 himself" 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.
The Government after calling for remarks from the Assistant Collector of Customs and Central Excise, Pune rejected tire representation
of the detenu by order dated 3.4.87 and the said order was communicated to the detenu on 4.4.87 through the Superintendent of the
Central Prison, Nasik.
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.
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
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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 detenF
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
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SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
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 representation to the Detaining Authority i.e. D.N. Capoor himself. Failure to notify the detenu of his right to make a
representation to the Detaining Authority violated the
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. Ca poor rejecting his representation."
C
This contention found acceptance with the High Court and the
High Court made the Rule absolute and quashed the order of detention. 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
aside the order of detention.
D
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
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. Ca poor
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 Government, 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
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STATE OF MAHARASHTRA v. SMT. SUSHILA [NATARAJAN, J.]
833
representations to the State Government and the Central Government.
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 between an order of detention passed by a specially empowered officer of
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
detenu had a right to have his representation considered by the very
same officer who had passed the order of detention has been exploded
A
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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
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 representation 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
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834
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
such an opportunity would amount to a denial to the detenu of his
constitutional rights.
We shall now examine the divergent contentions advanced before us in greater detail. The questions that fall for consideration may
broadly be enunciated as under.
( 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
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 Government 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 Government specially empowered to act unrler Section 3 of the Act, a detenu
acquires a constitutional right to have his representation first consiF
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 provide 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.
H
"22(5). When any person is detained in pursuance of an
order made under any law providing for preventive deten;
.,
1
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
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,
A
[ 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 detention and has also the right to make a representation protesting 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
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
representation as expeditiously as possible. The Constitution of an Advisory Board under Section 8 of the Act does
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
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
a proper consideration of the representation by the authority 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
c
D
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F
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 Government, he has a further right under Article 22(5) to make a representaH
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.
B
c
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 "detention order" have been defined as under:
"Section 2. (a) "appropriate Government" means, as respects 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
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
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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:
"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,
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 preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a
view to preventing him from-
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(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
in transporting or concealing or keeping smuggled goods,
or
(v) harbouring persons engaged in smuggling goods or in
abetting the smuggling of goods,
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 Government, the State Government shall, within ten days,
forward to the Central Government a report in respect of
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
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.''
Section 8, which has been enacted to comply with the constitutional 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
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the case of every detenu ordered to be detained by the· said government 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 perH
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838
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
tains to the powers of revocation of the State Government or the
Central Government as the case may be. The relevant is in the following terms:
Section 11(1)-Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897, 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 Government;
,,.
(b) Notwithstanding that the order has been made by an
officer of the Central Government or by a State Government. 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 Government 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 provides 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 subF jected to detention under detention orders falling in the latter category. 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 GovemG 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 detention; 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
Government itself. The answer to the question has to be necessarily in
the negative for the following reasons. It has been specifically provided 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
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 Government. 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 detention· 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 notwithstanding 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
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 Government 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
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
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SUPREME COURT REPORTS
[1988] ~upp. 2 S.C.R.
power of revocation conferred on the State and the Central Government 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
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 representation. 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."
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
that the question of the Central Government considering the representation 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
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 Government itself. If that be so, then it is the concerned Government that
woud constitute the Detaining Authority under the Act and not the
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
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 communicate 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
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
the Rules of Business of tl\e Government to deal with such representation 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
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
Government or Central Government passing an order of approving of
a detention order made by one of its officers and therefore the detention 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
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 detention 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.
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 conferred authority under the Rules of Busines of the Government to act on
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. Without such empowerment an officer, even if he be empowered to act on
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 Government will not have the effect of making the Government the detaining
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authority and instead would make the officer alone the detaining
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
provision is made for an officer making an order of detention to exercise 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
first instance and only thereafter the detenu can approach the State
Government and the Central Government. Moreover, if for argument'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
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
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 detention 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:
"The contention is that constitutionally speaking a duty is
cast on the detaining authority to consider the representation. 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
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 detenu it cannot be said that there is contravention of Article
22(5) or there is failure to consider the representation by
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 Central 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 conB
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.