AFR

Judgment reserved on 13.08.2010

Judgment delivered on 26.11.2010

Habeas Corpus Writ Petition No.35555 of 2002

Km. Indu Mishra Vs. Union of India & Ors.

Habeas Corpus Writ Petition No.38506 of 2002

Jagdamba Prasad Pandey Vs. Union of India & Ors.

Habeas Corpus Writ Petition No.38508 of 2002

Ashok Mishra Vs. Union of India & Ors.

Habeas Corpus Writ Petition No.38509 of 2002

Ram Niranjan Mishra Vs. Union of India & Ors.

Habeas Corpus Writ Petition No.44741 of 2002

Meharban Vs. State of U.P. & Ors.

Hon. Sunil Ambwani, J.

Hon. Imtiyaz Murtaza, J.

Hon. Kashi Nath Pandey, J.

1.A Division Bench of this Court noticed a conflict of opinion

in the judgments of the Court delivered in Ram Lal vs. State of

U.P., 2000 (41) ACC, 1715 and in Idrish vs. Secretary,

Ministry of Home Affairs, Government of India, New Delhi

and others, 2002 (44) ACC 1117 and has referred the following

questions to be considered by a Larger Bench:-

"(1)Whether the District Magistrate/Detaining

Authority acting under Section 3 (2) of the National Security

Act is required to communicate to the person detained,

regarding right of making representation to him in view of

Apex Court's decision in Kamlesh Kumar's case (supra)? If

so, non communication would infringe fundamental right

guaranteed under Article 22 (5) of the Constitution?

(2)If the answer of question no.1 is in the affirmative,

whether there is obligation on the District Magistrate

(Detaining Authority) to communicate the detenu's right

within which the detenu is required to make representation

to him i.e. before approval of the detention order by the

State Government or before 12 days ? If so non

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communication of above period will render the detention

order invalid?

(3)Whether the District Magistrate/Detaining

Authority has power to revoke or modify the detention order

passed by him after its approval by the State Government?

(4)Whether there is obligation on the District

Magistrate/Detaining Authority to consider and decide the

representation of the detenu even after approval of the

detention order by the State Government ?

2.The maximum period of detention of the petitioners has

long expired and thus the questions raised before us so far as the

petitioners are concerned have become academic in nature. We are,

however, deciding them as these questions may arise, in the

habeas corpus petitions to be decided in future.

3.The relevant facts giving rise to the questions posed before

us, as narrated by the Division Bench in referring the order dated

22.4.2003 are as follows:-

"The grounds of detention served upon each of the

petitioner separately along with order of detention common

in all the writ petitions, stated that on the night of 22/23-1-

2002 at about 10.10 p.m. Dr. Deepak Agrawal, Child

Specialist was going to his residence from his clinic situate

at Mohalla Unchamandi, P.S. Muthiganj, Allahabad, along

with his security guard Kamlesh Narain Mishra, in his

Maruti Zen Car. The petitioner Ashok Mishra along with his

associates Ashok Singh, Dinesh Tewari @ Pappu Shooter,

Sandeep Singh, Amit @ Brijesh Singh and others in order to

carry out their criminal conspiracy, kidnapped him (Dr.

Deepak Agarwal) along with his Maruti Car at about 10.30

p.m. for ransom. The petitioner Ashok Mishra and his

associates kept kidnappees Dr. Agrawal and his Security

Guard Kamlesh Narain Mishra, at the official residence of

petitioner Km. Indu Mishra (Constable) at Police Lines

Sultanpur. Her associates demanded Rs. 50 lacs as ransom

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from the family members of Dr. Agrawal and his relatives

on telephone. On the report of Smt. Savita Agrawal, wife of

Dr. Deepak Agarwal a case at crime no.18 of 2002 was

registered under Section 364 IPC at 3.10 a.m. on 23.1.2002

at P.S. Muthiganj, Allahabad. The matter was negotiated at

Rs.30,00,000/-, on payment of Rs.15,10,000/- and promise

to pay remaining Rs.14,90,000/- later on. Dr. Agarwal and

his Security Guard were released on the night of 26/27-10-

2002 at 11.00 p.m. on Sultanpur - Pratapgarh road. Shocks,

belt and buckle of Security Guard Kamlesh Narain Mishra

were recovered from official residence of petitioner Km.

Indu Mishra. On 3.2.2002 on the pointing out of petitioner

Indu Mishra, a sum of Rs. One lac, share of ransom money,

was recovered by the Investigating Officer. A sum of

Rs.8,800/-, share of ransom money, was recovered from

petitioner Jagdamba Prasad Pande and he told that he had

spent Rs. 1200/-.

During investigation of above case evidence was

collected that telephone (mobile) No.9838095939 belonged

to Dinesh Tewari @ Pappu Shooter and telephone

No.9838054138 belonged to petitioner Ashok Mishra who

talked on said phones after kidnapping and before release of

Dr. Agarwal on telephone (mobile) No.9838067646

purchased from Allahabad, communication was sent to

relatives of Dr. Agarwal on mobile phone No.9038057095

and amount of ransom was settled. Petitioner Indu Mishra

talked with petitioner Ashok Mishra from telephone

No.27348 on mobile phone No.9838054138, time and again.

Dr.Agarwal recognized the petitioner Indu Mishra

and her associates Dinesh Tewari @ Pappu Shooter,

Sandeep Singh @ Guddu @ Dabboo, Amit @ Brijesh

Singh. He also disclosed that threats were extended to him

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by the petitioners to kill him in case he gave evidence

against them. The dare devil incident of kidnapping of a

doctor for ransom was committed during Assembly Election

period. On account of said incident a sense of terror and fear

prevailed in doctors, traders and respectable citizens of

Allahabad. The doctors resorted to the strike due to which

public order was adversely affected. The news of

kidnapping was published in daily newspapers on various

dates which again affected public order.

The petitioners were detained in Central Jail, Naini

and attempt was being made by pairokars of the petitioners

to get them released on bail. There was real possibility of

petitioners being released on bail and on release on bail of

indulging them in similar activities prejudicial to the

maintenance of public order.

On account of above the detaining authority was

satisfied that detention of petitioner under the Act was

essential for preventing the petitioners from indulging in

activities prejudicial to maintenance of public order.

Each of the petitioner was separately communicated

that in case he wanted to make representation against

detention order before detaining authority, he may do so, at

the earliest through jail authorities where they were

detained. In case representation was received after approval

of detention order by the State Government then the

detaining authority would not consider it.

Each of the petitioner was further informed that in

case he wanted to make representation to State Government

he could do so addressing to Home Secretary, Government

of U.P. through jail authority. They were further informed

that detention order would be referred to the Advisory

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Board within 3 weeks for approval under Section 10 of the

Act and in case petitioners wanted to send representation to

the Advisory Board they could do so. Representation

received after approval by Advisory Board would not be

considered.

It was again informed to each of the petitioner that in

case he wanted to make representation to His Excellency

President of India or Central Government, he could do so

addressing to Secretary, Home and Internal Security

Department, Government of India, North Block, New Delhi

though jail authorities."

4.We have heard Shri Prem Prakash Yadav, learned counsel

appearing for the petitioner. Shri Sudhir Mehrotra, learned Addl.

Government Advocate appears for the State.

5.Art.22 (4) to (7) of the Constitution of India provides:-

"(4) No law providing for preventive detention

shall authorise the detention of a person for a longer

period than three months unless-

(a) 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:

Provided that nothing in this sub-clause shall

authorise the detention of any person beyond

the maximum period prescribed by any law

made by Parliament under sub-clause (b) of

clause (7); or

(b) such person is detained in accordance with

the provisions of any law made by Parliament

under sub-clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance

of an order made under any law providing for

preventive detention, the authority making the order

shall, as soon as may be, communicate to such person

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the grounds on which the order has been made and

shall afford him the earliest opportunity of making a

representation against the order.

(6) Nothing in clause (5) shall require the

authority making any such order as is referred to in

that clause to disclose facts which such authority

considers to be against the public interest to disclose.

(7) Parliament may by law prescribe—

(a) the circumstances under which, and the

class or classes of cases in which, a person

may be detained for a period longer than three

months under any law providing for

preventive detention without obtaining the

opinion of an Advisory Board in accordance

with the provisions of sub-clause (a) of clause

(4);

(b) the maximum period for which any person

may in any class or classes of cases be

detained under any law providing for

preventive detention; and

(c) the procedure to be followed by an

Advisory Board in an inquiry under sub-

clause (a) of clause (4)."

6.Section 3 (2) of the National Security Act, 1980 authorizes

the Central or State Government to pass an order of detention:-

"3 (2). The Central Government or the State

Government may, if satisfied with respect to any person

that with a view to preventing him from acting in any

manner prejudicial to the security of the State or from

acting in any manner prejudicial to the maintenance of

public order or from acting in any manner prejudicial to the

maintenance of supplies and services essential to the

community it is necessary so to do, make an order directing

that such person be detained."

7.Section 3 (3) of the Act authorizes District Magistrate or

Commissioner of Police to exercise power under Section 3 (2):-

3 (3). If, having regard to the circumstances

prevailing or likely to prevail in any area within the local

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limits of the jurisdiction of a District Magistrate or a

Commissioner of Police, the State Government is satisfied

that it is necessary so to do, it may, by order in writing,

direct, that during such period as may be specified in the

order, such District Magistrate or Commissioner of Police

may also, if satisfied as provided in sub-section (2),

exercise the powers conferred by the said sub-section:

Provided that the period specified in an order made by the

State Government under this sub-section shall not, in the

first instance, exceed three months, but the State

Government may, if satisfied as aforesaid that it is

necessary so to do, amend such order to extend such period

from time to time by any period not exceeding three

months at any one time."

8.Section 3 (4) deals with the life of detention order made

by District Magistrate:-

"3 (4) when any order is made under this section by an

officer mentioned in sub-section (3), he shall forthwith

report the fact to the State Government to which he is

subordinate together with the grounds on which the order

has been made and such other particulars as, in his opinion,

have a bearing on the matter, and no such order shall

remain in force for more than twelve days after the making

thereof unless, in the meantime, it has been approved by the

State Government:

Provided that where under Section 8 of the grounds of

detention are communicated by the officer making the order

after five days but not later than ten days from the date of

detention, this sub-section shall apply subject to the

modification that, for the words "twelve days" the words

"fifteen days' shall be substituted.

9.Section 8 provides for affording of an opportunity to the

detenu to make representation:-

"8. Grounds of order of detention to be disclosed to

persons affected by the order - (1) When a person is

detained in pursuance of a detention order, the authority

making the order shall, as soon as may be, but ordinarily

not later than five days and in exceptional circumstances

and for reasons to be recorded in writing, not later than ten

days from the date of detention, communicate to him the

grounds on which the order has been made and shall afford

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him the earliest opportunity of making a representation

against the order to be appropriate Government."

10.Section 14 of the Act provides for revocation of detention

order as under :-

"14. Revocation of detention orders - Without prejudice

to the provisions of Section 21 of the General Clauses Act,

1987 (10 of 1987) a detention order may, at any time, be

revoked or modified-

(a)notwithstanding that the order has been made by an

officer mentioned in sub-section (3) of Section 3, by the

State Government to which that officer is subordinate or by

the Central Government:

(b) notwithstanding that the order has been made by a State

Government, by the Central Government.

(2) The expiry or revocation of a detention order

(hereinafter in this sub-section referred to as the earlier

detention order) shall not (whether such earlier detention

order has been made before or after the commencement of

the National Security (Second Amendment) Act, 1984, bar

the making of another detention order (hereafter in this

sub-section referred to as the subsequent detention order)

under Section 3 against the same person :

Provided that in a case where no fresh facts have arisen

after the expiry or revocation of the earlier detention order

made against such person, the maximum period for which

such person may be detained in pursuance of the

subsequent detention order shall, in no case, extend beyond

the expiry of a period of twelve months from the date of

detention under the earlier detention order.

11.The preventive detention means detention of a person

without trial, in such circumstances that the evidence in

possession of the authority is not sufficient to make a legal charge

or to secure the conviction of the detenue by legal proof, but may

still be sufficient to justify his detention. The object of preventive

detention is not to punish a person, but to prevent him from doing

something, which comes within Entry 9 (Preventive detention for

reasons connected with Defence, Foreign Affairs, or the Security of

India; persons subjected to such detention) of List 1, and Entry 3

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(Preventive Detention for reasons connected with the security of a

State, the maintenance of public order, or the maintenance of

supplies and services essential to the community; persons subjected

to such detention) of List 3 of the Seventh Schedule of the

Constitution of India. The purpose is to prevent the individual not

merely for acting in a particular way, but from achieving a

particular object. No offence is proved, nor any charge is

formulated. The justification is suspicious or reasonable

probability and not criminal conviction, which may be warranted

only by legal evidence. The order of preventive detention is made

as precautionary measure. It is based on reasonable prognosis of

the future behaviour of a person based on his past conduct in the

light of surrounding circumstances.

12.The Constitution itself provides for certain safeguards

relating to preventive detention, to mitigate the harshness and to

place restrictions on legislative power conferred on this subject

under Art.21 and 22, raising such restrictions to the status of

fundamental rights. By reason of Art.21, prevention detention

cannot be ordered by the executive without the authority of law,

and unless it is in conformity with the procedure laid down

therein, vide State of Rajasthan Vs. Shamsher Singh, AIR 1985 SC

1082. The law must be a valid law, within the legislative

competence of the legislature enacting it.

13.Art.22 of the Constitution of India, imposes following

restrictions upon the power of the legislature itself to enact a law of

preventive detention:-

1. The law must constitute an Advisory Board, to recommend

confirmation of the detention, where it is sought to continue

beyond three months;

2. A State law cannot authorize the detention beyond maximum

period prescribed by parliament under the powers given under

Clause 7;

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3. The parliament also cannot make a law authorizing detention

beyond three months without intervention of Advisory Board,

unless the law confirms to the conditions laid down in Clause-7;

4. A provision has to be made in the law to enable the parliament

to prescribe the procedure;

5. A person detained under law of preventive detention has a right

to obtain information, as to the grounds of his detention and also

has the right to make a representation against the order of

preventive detention. This right is guaranteed independently of the

duration of the period of detention.

14.Art.22 (5) gives a right to the detenue to make a

representation, but does not give a right to be heard by an

independent Tribunal. The representation must be considered by an

appropriate government, vide Haradhon Saha Vs. State of

Bengal, (1975) 3 SCC 198. Failure to give opportunity to make a

representation on any of the grounds namely that he was not served

with the detention order, will also vitiate the detention. The

affording of opportunity of being heard is embedded in Art.22 (5)

and is available after passing the detention order and before its

confirmation vide State of Tamil nadu Vs. Senthil Kumar,

(1999) 2 SCC 646.

15.The right to make representation against the order of

detention is a fundamental right conferred upon a detenue under

Art.22(5), and if there is any infraction of such right, the detenue is

liable to be released. This cherished and valuable right is

comprehensive one. It comprehends that person detained has a

right to make representation not only to the officer, who made the

order of detention, but as well as to the State Government and the

Central Government, who are competent to revoke the order. In

Union of India Vs. Harish Kumar, (2008) 1 SCC 195 it was

held that where the detenue is not informed of his right to make

representation to the specified officer, that is the detaining authority

authorized to make the detention order, the order of detention gets

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vitiated. In para 8 of this report the Supreme Court relied upon

Kamlesh Kumar Ishwar Das Patel Vs. Union of India, (1995) 4

SCC 51.

16.Art.22 (5) does not state, before whom the representation is

to be made. It depends upon the nature of the legislation, whereby

and whereunder the order of detention has been passed, but this

right has to be construed in the light of the constitutional mandate,

vide A.C. Razia Vs. Government of Kerala, (2004) 2 SCC 621.

This right also includes the duty of the authority to whom the

representation is addressed to deal with the same with utmost

expedition. The representation has to be considered in its right

perspective giving in view the fact that the detention is based on

the subjective satisfaction of the authority concerned and

infringement of constitutional right under Art.22 (5) invalidates

the detention order vide Union of India Vs. Chaya Ghosal,

(2005) 10 SCC 97. The right cannot be exercised unless the

grounds of detention are provided to the detenue. In Geeta Ram

Das Vs. State of West Bengal, (1975) 2 SCC 81 the Supreme

Court observed that authority making the order must communicate

to the detenue the grounds on which the order has been made, as

soon as may be, after the order has been made, and that he should

be afforded the earliest opportunity of making the representation

against the order.

17.In a Full Bench decision in Manni Lal v. Superintendent

of Central Jail, Naini, Allahabad and others, 1985 AWC 641

(FB) our Court held, in para 9, that it appears from a plain reading

of Section 3 (4) of the Act that the order of detention passed by the

District Magistrate under Section 3(2) of the Act shall not remain in

force for more than twelve days unless in the meantime it has been

approved by the State Government. The approval accorded by the

State Government extends the life of the order of detention passed

by the District Magistrate beyond twelve days. The State

Government does not pass any fresh order of detention under

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section 3(4) of the Act, but it merely approves the order of

detention passed by the District Magistrate. The order of detention

passed by the District Magistrate thus continues even after it is

approved by the State Government. It does not exhaust itself or

merge in any order of the State Government.

18.It was further held in Manni Lal (Supra) that in view of

Section 21 of General Clauses Act, where by any Central Act a

power to issue orders is conferred, then that power includes a

power exercisable in the like manner and subject to the like

sanction and conditions, if any, to rescind any order. It therefore,

follows that the District Magistrate is empowered to revoke the

detention order passed by him even after it has been approved by

the State Government in view of Section 21 of General Clauses

Act.

19.In Veeramani Vs. State of Tamil Nadu, (1994) SCC

(Cri) 482 the Supreme Court while considering the provisions of

Prevention of Dangerous Activities of Boottleggers, Drugg-

Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders

and Slum Grabbers Act, 1982, analogous to the provisions of the

National Security Act, found it difficult to agree that after the

approval of the State Government, the detaining authority can

independently revoke the detention by itself.

20.In Kamlesh Kumar Ishwardas Patel Vs. Union of India

& Ors, (1995) 4 SCC 51, the Supreme Court considered the

question whether after the preventive detention order is passed by

the officer specifically empowered to do so by the Central

Government or the State Government, is the said officer required

to consider the representation submitted by the detenue. The

Supreme Court held:-

"Having regard to the provisions of Article 22(5) of

the Constitution and the provisions of the COFEPOSA Act

and PITNDPS Act, the question posed is thus answered:

Where the detention order has been made under Section 3 of

the COFEPOSA Act and the PIT NDPS Act by an officer

specially empowered for that purpose either by the Central

13

Government or the State Government the person detained

has a right to make a representation to the said officer and

the said officer is obliged to consider the said representation

and the failure on his part to do so results in denial of the

right conferred on the person detained to make a

representation against the order of detention. This right of

the detenu is in addition to his right to make the

representation to the State Government and the Central

Government where the detention order has been made by an

officer specially authorised by a State Government and to

the Central Government where the detention order has been

made by an officer specially empowered by the Central

Government, and to have the same duly considered. This

right to make a representation necessarily implies that the

person detained must be informed of his right to make a

representation to the authority that has made the order of

detention at the time when he is served with the grounds of

detention so as to enable him to make such a representation

and the failure to do so results in denial of the right of the

person detained to make a representation." (Vide para 38). It

was also held in para 19 of the above decision as below :-

"The provisions in the COFEPOSA Act and

PITNDPS Act differ from those contained in the National

Security Act, 1980 as well as earlier preventive detention

laws, namely, the Preventive Detention Act, 1950 and the

Maintenance of Internal Security Act, 1971 in some

respects. Under sub-section (3) of Section 3 of the National

Security Act, power has been conferred on the District

Magistrate as well as the Commissioner of Police to make

an order of detention, and sub-section (4) of Section 3

prescribes that the officer shall forthwith report the fact of

making the order to the State Government to which he is

subordinate together with the grounds on which the order

has been made and such other particulars as, in his opinion,

have a bearing on the matter, and that no such order shall

remain in force for more than twelve days after the making

thereof unless, in the meantime, it has been approved by the

State Government. In Section 8 (1) of the National Security

Act it is prescribed that the authority making the order shall

afford the person detained the earliest opportunity of making

a representation against the order to the appropriate

Government. Similar provisions were contained in the

Preventive Detention Act, 1950 and the Maintenance of

Internal Security Act, 1971. The COFEPOSA Act and the

PITNDPS Act do not provide for approval by the

appropriate Government of the orders passed by the officer

specially empowered to pass such an order under Section 3.

The said Acts also do not lay down that the authority

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making the order shall afford an opportunity to make a

representation to the appropriate Government."

Under Section 3 of the COFEPOSA Act and the PITNDPS

Act an order of detention can be made by -

(i)the Central Government; or

(ii)an officer specially empowered by the Central

Government; or

(iii)the State Government; or

(iv)an officer specially empowered by the state

Government."

21.It was further held by the Supreme Court in para 34 of the

judgement as below:-

"In the National Security Act there is an express provision

Section 3(4) in respect of orders made by the district

Magistrate or the Commissioner of Police under Section

3(3) and the District Magistrate or the Commissioner of

Police who has made the order is required to forthwith

report the fact to the State Government to which he is

subordinate. The said provision further prescribes that no

such order shall remain in force for more than twelve days

after the making thereof, unless in the meantime, it has been

approved by the State Government. This would show that

it is the approval of the State Government which gives

further life to the order which would otherwise die its

natural death on the expiry of twelve days after its

making. It is also the requirement of Section 3 (4) that the

report should be accompanied by the grounds on which the

order has been made and such other particulars, as in the

opinion of the said officer, have a bearing on the matter

which means that the State Government has to take into

consideration the grounds and the said material while

giving its approval to the order of detention. The effect of

the approval by the State Government is that from the

date of such approval the detention is authorised by the

order of the State Government approving the order of

detention and the State Government is the detaining

authority from the date of the order of approval. That

appears to be the reason why Section 8 (1) envisages that

the representation against the order of detention is to be

made to the State Government. The COFEPOSA Act and

the PITNDPS Act do not require the approval of an

order made by the officer specially empowered by the

State Government or by the Central Government. The

order passed by such an officer operates on its own

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force. All that is required by Section 3 (2) of the

COFEPOSA Act and the PITNDPS Act is that the State

Government shall within 10 days forward to the Central

Government a report in respect of an order that is made by

the State Government or an officer specially empowered by

the State Government. An order made by the officer

specially empowered by the State Government is placed on

the same footing as an order made by the State Government

because the report has to be forwarded to the Central

Government in respect of both such orders. No such report

is required to be forwarded to the Central Government in

respect of an order made by an officer specially empowered

by the Central Government. Requirement regarding

forwarding of the report contained in Section 3 (2) of

the COFEPOSA Act and the PITNDPS Act cannot,

therefore, afford the basis for holding that an order

made by an officer specially empowered by the Central

Government or the State Government acquires deemed

approval of that Government from the date of its issue.

Approval, actual or deemed, postulates application of mind

to the action being approved by the authority giving

approval. Approval of an order of detention would require

consideration by the approving authority of the grounds and

the supporting material on the basis of which the officer

making the order had arrived at the requisite satisfaction for

the purpose of making the order of detention. Unlike

Section 3 (4) of the National Security Act there is no

requirement in the COFEPOSA Act and the PITNDPS

Act that the officer specially empowered for the

purpose of making of an order of detention must

forthwith send to the Government concerned the

grounds and the supporting materials on the basis of

which the order of detention has been made. . . . . . . . . .

. . . . . . . .. . . . . . . . . . . By specially empowering a

particular officer under Section 3 (2) of the COFEPOSA

Act and the PITNDPS Act the Central Government or the

State Government confers an independent power on the said

officer to make an order of detention after arriving at his

own satisfaction about the activities of the person sought to

be detained. Since the detention of the person detained

draws its legal sanction from the order passed by such

officer, the officer is the detaining authority in respect

of the said person. He continues to be the detaining

authority so long as the order of detention remains

operative. He ceases to be the detaining authority only

when the order of detention ceases to operate. This

would be on the expiry of the period of detention as

prescribed by law or on the order being revoked by the

officer himself or by the authority mentioned in Section 11

of the COFEPOSA Act and Section 12 of the PITNDPS

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Act. There is nothing in the provisions of these

enactments to show that the role of the officer comes to

an end after he has made the order of detention and

that thereafter he ceased to be detaining authority and

the Government concerned which had empowered him

assumes the "role of the detaining authority . . . . ... .

"(emphasis laid by us).

22.The above passages quoted from the judgement indicates

that the Apex Court has made distinction between provisions of

Section 3 of National Security Act, 1980 and Section 3 of

COFEPOSA Act and PITNDPS Act.

23.In State of Maharashtra Vs. Santosh Shankar Acharya,

JT 2000 (8) SC 374 while considering the provisions of the

Maharashtra Act, paramateria with the National Security Act the

Supreme Court observed:-

"The only logical and harmonious construction of the

provision would be that in a case where an order of

detention is issued by an officer under sub Section (2) of

Section 3 of the Act, notwithstanding the fact that he is

required to forthwith report the factum of detention together

with the grounds and materials to the State Government and

notwithstanding the fact that the Act itself specifically

provides for making a representation to the State

Government under Section 8 (1), the said Detaining

Authority continues to be Detaining Authority until the

order of detention issued by him is approved by the State

Government within a period of 12 days from the date of

issuance of detention order. Consequently, until the said

detention order is approved by the State Government

the Detaining Authority can entertain a representation

from a detenu and in exercise of his power under the

provisions of Section 21 of Bombay General Clauses

Act could amend, vary or rescind the order as is

provided under Section 14 of Maharastra Act. Such a

construction of powers would give a full play to the

provisions of Section 8 (1) as well as section 14 and also

Section 3 of the Maharastra Act. This being the position

non communication of the fact to the detenu that he could

make a representation to the Detaining Authority so long as

the order of detention has not been approved by the State

Government in a case where an order of detention is issued

by an officer other than the State Government under sub

Section (2) of Section 3 of the Maharastra Act would

constitute an infraction of a valuable right of the detenu

17

under Article 22 (5) of the Construction and the ratio of the

Constitution Bench decision of this Court in Kamlesh

Kumar's case (supra) would apply notwithstanding the fact

that the Court was dealing with an order of detention issued

under the provisions of COFEPOSA" (Vide Para 8 of J.T.

Report).

"This being the position, it goes without saying that even

under the Maharastra Act a detenu will have a right to make

a representation to the Detaining Authority, so long as the

order of detention has not been approved by the State

Government and consequently non communication of the

fact to the detenu that he has a right to make representation

to the Detaining Authority would constitute an infraction of

the valuable constitutional right guaranteed to the detenu

under Article 22 (5) of the Constitution and such failure

would make the order of detention invalid" (vide para 98

J.T.report) (emphasis laid by us).

24.This Court has consistently followed the law laid down as

above. The Division Benches in Nawab Dulha Vs. Union of

India & Ors., 2001 Crl.J. 390 and Vijai Kumar Mishra Vs.

Superintendent District Jail, Gorakhpur, 2002 Cr.L.J. 3652

held that until the order is approved by the State Government, the

petitioner has a right to make a representation to the detaining

authority also.

25.In Idrish Vs. Secretary, Ministry of Home Affairs,

Government of India, New Delhi & Ors., 2002 (1) U.P.CrR

718 this Court sounded a discordant note and held as follows:-

"It has been alleged in paragraph 3 of the

Supplementary Affidavit that the District Magistrate who is

the Detaining Authority did not inform the detenu that he

could make representation to the Detaining Authority.

Learned Counsel for the petitioner has relied on the Supreme

Court decision in State of Maharastra vs. Santosh Kumar

Acharya (supra). This decision has been followed by a

Division Bench of this Court in Jai Prakash Shastri v.

Adhikshak Janpad Karagrar, Muzaffarnagar, 2000 (41)

ACC, 883. In the supplementary counter affidavit it has been

stated that petitioner had made a representation to the

District Magistrate on 28th May, 2001. The District

Magistrate (Detaining Authority) held that he could not

modify or revoke the detention order dated 20th May, 2001

since the same had been approved by the State Government

18

on 23rd May, 2001. From this is obvious that the District

Magistrate did not apply his mind independently to the

merits of the representation, but he rejected it merely on the

ground that the State Government had approved the

detention order on 23rd May, 2001.”

26.The Division Bench hearing the cases giving rise to the

reference found itself in disagreement with the above observations

made in Idrish Vs. Secretary, Ministry of Home Affairs,

Government of India, New Delhi & Ors. (Supra). The Court found

that the Apex Court has clearly observed in Santosh Shankar

Acharya’s case that until detention order is approved by the State

Government, the detaining authority can entertain the

representation from detenue and that in view of the Division

Bench referring the matter, the Apex Court had made it clear that

the power of deciding representation by the detaining authority i.e.

District Magistrate acting under the delegated powers under

Section 3 (3) of the Act is only until the approval of the detention

order by the State Government. In Mohammad Jaid Vs. District

Magistrate, Sitapur & Ors., 2002 (45) ACC 611 and Sushil

Singh Vs. D.M. Kheri, 2003 (5) ALR 569 the Division Benches

of this Court held that the power to decide the representation by the

District Magistrate is only upto the period of 12 days, or before

approval of the detention order by the State Government.

27.Shri Prem Prakash Yadav submits that the Supreme Court

has held and affirmed the power of the detaining authority to

revoke the order of the detention. This power continues to avail

the detaining authority even if the representation is rejected by the

State Government. He has relied upon the judgments in Pankaj

Kumar Chakrabarty Vs. State of West Bengal, AIR 1970 SC 97;

Hardan Saha Vs. State of W.B., AIR 1974 SC 2154; Vimal Chand

Jawant Raj Jain Vs. Pradhan, AIR 1979 SC 1501; Kirit Kumar

Kundalia Vs. State of Maharashtra, AIR 1981 SC 1621; Smt.

Santosh Anand Vs. State, (1981) 2 SCC 420; Ibrahim Bacchu

Bafan Vs. State of Gujrat, AIR 1985 SC 697; Smt. Gracy Vs. State

19

of Kerala, AIR 1991 SC 1090; Amir Shad Khan Vs. L. Himingiana,

AIR 1991 SC 198; Om Prakash Bahal Vs. Union of India, JT 1991

(5) SC 88; Kamlesh Kumar Ishwar Das Patel Vs. Union of India,

(1995) 4 SCC 51; Mrs. Nutan J. Patel Vs. S.V. Prasad, JT 1995 (8)

SC 496; Amanulla Khan Kudeatalla Khan Pathan Vs. State of

Gujrat, (1999) 5 SCC 613; State of Maharashtra Vs. Santosh

Shankar Acharya, (2000) 7 SCC 463; A.C. Razia Vs. Govt. of

Kerala, (2004) 2 SCC 621; Harshala Santosh Patil Vs. State of

Mah, (2006) 12 SCC 211; Usha Agarwal Vs. Union of India,

(2007) 1 SCC 295; Union of India Vs. Harish Kumar, (2008) 1

SCC 195 and Union of India Vs. Sneh Khemka, (2004) 2 SCC 570.

28.Shri Yadav has also relied upon the Full Bench judgment

in Manni Lal Vs. Supdt. Central Jain, 1985 AWC 641; Sheshdhar

Mishra Vs. Supdt. Central Jail, 1985 ALJ 1222; and Rai Bahadur

yadav Vs. State of U.P., 1997 (35) ACC 33, and the Full Bench

judgment of Sunil S. Gatate Vs. State of Mahashtra, 2000 CrLJ

3709, in support of his submissions.

29.Shri Yadav has relied on the definition of the word

‘approve’ in Black’s Law Dictionary, Sixth Edition page 102; P.

Ramanatha Aiyar’s Concise Law Dictionary, 2010 Edition page 75

as well as the judgment in Arun Shanker Vs. State of U.P., 1984

ALJ 1031; Bidya Deo Barma Vs. Distt. Magistrate Tripura, AIR

1969 SC 323; P.L. Lekhpal Vs. Union of India, AIR 1967 SC 908

and AIR 1931 All 567 (Full Bench). The word ‘approval’ in these

only means to accept “as good or sufficient for the purposes

intended”. The difference between 'approval' and 'permission' is

that, in the first the act holds good until disapproved, while in the

other case it does not become effective until permission is obtained.

Shri Yadav submits that the approval of the order by the State

Government is only to accept it as good or sufficient for the

purpose intended, namely for the purpose of preventive detention.

The approval of the State Government, therefore, should not be

taken as approving the decision on the representation made by the

20

detenue. In other words, he submits that the approval of the

order by the State Government does not taken away power of the

detaining authority to consider and decide the representation. The

detaining authority does not looses his authority or become

functuous officio on the ground of approval of the order by the

State Government, and that such approval can be made even before

detention vide Hira Bai Vs. State of M.P., 1987 CrLJ 659.

30.Shri Yadav has also relied upon Section 21 of the General

Clauses Act in submitting that the power of detention include the

power to revoke the detention, and thus the detaining authority

even after approval of the order is not divested of his powers to

consider and decide the representation. He submits that whereby a

Central Act, the power to issue orders is conferred, then that

power includes a power exercisable in the like manner, and

subject to like sanction and conditions, if any to rescind any order.

The District Magistrate continues to have power in pursuance to

Section 21 of the General Clauses Act, uses to interpret the

legislation, to pass orders for revoking the detention even after it

has been approved by the State Government.

31.Shri Sudheer Mehrotra, Addl. Government Advocate

submitted in reply that all the questions referred to be decided by

the Full Bench are interconnected. The District Magistrate/

Detaining Authority exercises the delegated powers of the State

Government under Section 3 (3) of the National Security Act, 1980,

and after passing the detention order under Section 3 (2) of the

Act he becomes functuous officio. An appropriate government

under Section 2 (a), means, as respect a detention order made by

the Central Government for a person detained under such order,

the Central Government; and as respect a detention order made by

a State Government or by an officer subordinate to a State

Government, as respects a person detained under such order, the

State Government. Upon delegation of power by the State

Government, in view of the provisions contained under Section 8

21

(1); which clearly postulates that the detaining authority is

required to inform the detenue by affording him the earliest

opportunity of making representation against the order to the

appropriate government. The information mentioning the fact that

the detenue has a right to make representation to the detaining

authority, thus does not vitiate the detention order, or violate the

fundamental right as guaranteed under Art.22 (5) of the

Constitution, which requires that the person detained under any

preventive detention shall be afforded earliest opportunity of

making representation against the order.

32.Shri Mehrotra submits that the case of Kamlesh Kumar

Ishwardas Patel Vs. Union of India & Ors. has no application to

the facts and circumstances of the case, in as much as under

COFEPOSA (the Act of 1974) the order passed by an officer duly

appointed for the purpose by the Government needs no approval of

the government. There is clear distinction between the provisions

of COFEPOSA (Act of 1974), PITNDPS Act and the National

Security Act, 1980. In State of Maharashtra Vs. Santosh Shankar

Acharya it was held that the detaining authority continues to be

the detaining authority untill the approval of the detention order

by the State Government and thus it is clear that until approval or

for a period of 12 days only the detaining authority can entertain

representation, if made to him, but it is not required under the law

or under the National Security Act, 1980 that the detaining

authority must inform the detenue that he has right to make

representation to the detaining authority, as the officer duly

authorised under Section 3 (3) of the Act is required to

immediately report the matter to the State Government, to which

he is subordinate. The orders 'subordinate' under Section 3 (4) is

significant in as much as after passing the detention order he

becomes functuous officio.

33.Shri Mehrotra submits that in a recent decision in Shri

Anand Hanumathsa Katare Vs. Additional District Magistrate

22

& Ors., (2006) 10 SCC 725 the Supreme Court considered the

conflict between the judgments in State of Maharashtra Vs. Santosh

Shankar Acharya, (2000) 7 SCC 463, and Veeramani Vs. State of

Tamil Nadu, (1994) 2 SCC 337, the decision rendered by a

Constitution Bench. The Supreme Court held in para 8 that

Veeramani's case related to detention under COFEPOSA Act. In

Veeramani Case after referring to Amir Shad Khan Vs. L.

Hmingliana, (1991) 4 SCC 39, and Raziya Umar Bakshi Vs. Union

of India, 1980 Supp SCC 195, it was held that it must be presumed

that the detenue can make representation to the detaining authority

also independently, and the State authority has to consider the same

irrespective of the decision of the State Government or the Central

Government on the representation made to them. These

observations in Amir Shad Khan's case and Ibrahim Bachu Bafan's

case were made under COFEPOSA Act , where there is no specific

provision for approval by the State Government. In these decisions

the ratio is that the detaining authority has also powers to revoke

the detention order by virtue of power conferred by Section 21 of

the General Clauses Act read with Section 11 of the COFEPOSA

Act; and in that context it was observed that the power of

revocation has nexus with the right of representation under Art.22

(5). The position is, however, different under the Karnataka

Prevention of Dangerous Activities of Bootleggers, Drug

Offenders, Gamblers, Gundas, Immoral Traffic Offenders and

Slum Grabbers Act, 1985. In this Act, which is like maintenance

of Internal Security Act, 1980, the approval of the detention order

by the State Government is mandatory.

34.The Supreme Court, thereafter, discussed Santosh Shankar

Acharya's case, and upheld the Full Bench of the Bombay High

Court, on the ground that even under Maharashtra Act a detenue

will have a right to make a representation to the detaining authority,

so long as the order of detention has not been approved by the State

Government, and consequently non-communication of the fact to

23

the detenue that he has a right to make a representation to the

detaining authority would constitute an infraction of the valuable

constitutional right guaranteed to the detenue under Art.22 (5) of

the Constitution of India.

35.The Supreme Court, thereafter held in para 10 as follows:-

"10.Therefore, the Detaining Authority becomes functus

officio the moment the approval is accorded by the State

Government. It is to be noted that the order of detention

can be revoked only on the basis of a representation to the

appropriate authority. This fact is relevant. Further para

17 of R. Keshava v. M.B. Prakash and Ors. (2001 (2) SCC

145) is of importance. The same reads as follows:

"We are satisfied that the detenu in this case was

apprised of his right to make representation to the

appropriate Government/authorities against his

order of detention as mandated in Article 22(5) of

the Constitution. Despite knowledge, the detenu

did not avail of the opportunity. Instead of making

a representation to the appropriate Government or

the confirming authority, the detenu chose to

address a representation to the Advisory Board

alone even without a request to send its copy to the

authorities concerned under the Act. In the

absence of representation or the knowledge of the

representation having been made by the detenu,

the appropriate Government was justified in

confirming the order of detention on perusal of

record and documents excluding the

representation made by the detenu to the Advisory

Board. For this alleged failure of the appropriate

Government, the order of detention of the

appropriate Government is neither

unconstitutional nor illegal."

36.The Supreme Court in Shri Anand Hanumathsa Katare also

relied upon Union of India vs. Chaya Ghoshal, (2005) 10 SCC 97,

and R. Keshava Vs. M.B. Prakash, (2003) 8 SCC 342.

37.On the aforesaid discussion, we find it difficult to agree

with the argument of Shri Prem Prakash Yadav, that it is obligatory

for the District Magistrate/ Detaining Authority under National

Security Act, 1980, to communicate the detenue his right for

24

making representation to him, and that non-communication of the

period of 12 days within which he can make representation to him

will render the detention order invalid. We also do not agree with

his submission that the District Magistrate/ Detaining Authority

has power to revoke or modify the detention order passed by him

after it is approved by the State Government. The view taken in

Idrish Vs. Secretary, Ministry of Home Affairs, 2002 (44) ACC

1117 is not correct. The Court in Idrish's case fell into error in

accepting the judgment in State of Maharashtra Vs. Santosh Kumar

Acharya, rendered in COFEPOSA Act. The judgments following

the State of Maharashtra Vs. Santosh Kumar Acharya, of this Court

in the matters of preventive detention under the National Security

Act, 1980, are also incorrectly decided. The judgment of the

Supreme Court in Sri Anand Hanmathsa Katara (Supra) has

explained the scheme of Karnataka Act of 1985, which is much

close to, and more appropriate to the preventive detention under

the National Security act, 1980 and conforms to Art.22 (5) of the

Constitution of India.

38.We, therefore, answer the questions posed before us in the

reference, as follows:-

"1. The District Magistrate/ Detaining Authority acting under

Section 3 (2) of the National Security Act, 1980 is required to

communicate to the person detained, his right of making

representation to him, and that non-communication of such right

will infringe fundamental right of the detenue under Article 22 (5)

of the Constitution of India.

2. The obligation of the District Magistrate/ Detaining

Authority is to communicate to the detenue, his right for making

representation to him, is upto the date of approval of the detention

order by the State Government, or before 12 days. The non-

communication of the period will not render the detention order

invalid.

25

3. The District Magistrate/ Detaining Authority does not have

power to revoke or modify the detention order passed by him,

after it is approved by the State Government.

4.The District Magistrate/ Detaining Authority is not obliged

to consider and decide the representation, after approval of the

detention order by the State Government."

39.The reference is answered as above. The maximum

specified period for detention has long expired. The petitioners

were released on bail. Unless they are required in any other

offence or have been detained subsequently under any law of

preventive detention, their bail bonds shall stand discharged. The

writ petitions accordingly stand disposed of.

Dt.26.11.2010

SP/