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CASE NO.: Appeal (crl.)  1080 of 2006

PETITIONER: Sri Anand Hanumathsa Katare

RESPONDENT: Additional District Magistrate & Ors

DATE OF JUDGMENT: 19/10/2006

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (Crl.) No. 2510 of 2006)

ARIJIT PASAYAT, J.

       Leave granted.

       Appellant calls in question legality of the judgment  rendered by a Division Bench of the Karnataka High Court  holding that the order of detention passed by the Additional  District Magistrate and Police Commissioner, Hubli, Dharwad  city, directing detention of one Shri Ramesh Madhusa  Bhandage (hereinafter referred to as the ’detenu’) under the  Karnataka Prevention of Dangerous Activities of Boot-Leggers,  Drug Offenders, Gamblers, Goondas, Immoral Traffic  Offenders and Slum Grabbers Act, 1985 (in short the ’Act’).   The habeas corpus petition filed by the appellant who is  brother-in-law of the detenu was dismissed by the High Court.  

The order of detention was passed on 7.10.2005 under  sub-section (2) of Section 3 of the Act and the detenu was  taken into custody that  very day.  Subsequently, the detenu  was furnished with the grounds of detention dated 7.10.2005  which  were also supplied to him that very day.  The Detaining  Authority submitted a report to the Government as required  under law within 12 days from the date of order of detention,  which  passed an order approving the detention under Section  3(3) of the Act.  The order of approval is dated 11.10.2005.   The aforesaid order of detention was challenged before the  High Court.  During the pendency of the proceedings before  the High Court the Advisory Board to whom the Government  had referred the matter also approved the order of detention.   The Government accepted the said report and passed an order  in terms of Section 13 of the Act.  The said order of the  Government was not called in question by the detenu.  Several  points were urged in support of the habeas corpus petition.   Primarily  following points were urged in support of the habeas  corpus petition. Firstly, even assuming that the detenu is a  boot-legger within the meaning of Section 2(b) of the Act, his  activities cannot be considered as likely to affect adversely the  maintenance of public order.  Secondly, the detenu had  submitted his reply to the Detaining Authority who rejected  the same.  Once the order passed under Section 3(2) has been  approved by the State Government under Section 3(3), the  Detaining Authority became functus officio and any  representation given to the Detaining Authority ought to have  been transmitted to be considered by the State Government.  

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Thirdly, the proposals made by the Sponsoring Authority were  verbatim reproduced in the grounds of detention.  Fourthly,   the orders of acquittal passed by the Criminal Court in respect  of two cases were not supplied to him.  Therefore, subjective  satisfaction was affected.  Fifthly, there was no report of the  Forensic Department that the liquor sold or manufactured by  the detenu was unfit for human consumption.  Non-supply of  order referred to above,  rendered  the order of detention  vitiated.  If it is held that the documents are not supplied then  the Detaining Authority’s decision is based on irrelevant  consideration.  The Detaining Authority and the State  Government countered each of the contentions.

       The High Court did not find any substance in the  different grounds pressed into service and held that the  detention was in order.  The High Court referred to   Kamleshkumar Ishwardas Patel v. Union of India and Ors. (JT  1995 (3) 639) which is relied upon by the appellant, and held  that the said case was rendered under the COFEPOSA Act and  the provisions are not in pari materia. There is no provision in  the Act to show that the role of the Detaining Authority comes  to an end after making an order. Under the relevant  provision,  that is Section 3(3), the State Government which has  empowered the Detaining Authority assumes the role of the  Detaining Authority. The Detaining Authority made the detenu  aware of his right to make representation to the State  Government and, therefore, there was no infraction.   

       In support of the appeal, learned counsel for the  appellant urged one point i.e. Detaining Authority became  functus officio the moment the State Government accords  approval.  Therefore, the Detaining Authority should not have  dealt with the representation and should have referred the  matter to the State Government.   

       In response, learned counsel for the State submitted that  the High Court’s view about the Detaining Authority not  becoming functus officio is correct and in any event the detenu  was intimated of his right to make a representation which was  made and has been appropriately dealt with and in any event  the detenu did not avail opportunity granted to him to make  representation to the State Government.  The High Court’s  judgment is in order.

       It was pointed out that the judgment of this Court in  State of Maharashtra and Ors. v. Santosh Shankar Acharya  (2000 (7) SCC 463) runs counter to Veeramani v. State of  Tamil Nadu  (1994 (2) SCC 337)  which is a decision rendered  by a Constitution Bench.

 We shall first deal with the plea taken by learned  counsel for the State about Santosh Shankar Acharya’s case  (supra) running countered to  Veeramani’s  case (supra).  It  has been noted that Veeramani’s case (supra) was related to a  detention under the COFEPOSA Act.  In the said case in para  15 it was noted as follows:-

"15. Yet another judgment of this Court relied  upon in this context in Amir Shad Khan v. L.  Hmingliana (1991 (4) SCC 39).  That was also  a case under COFEPOSA Act where the  detaining authority as well as the State  Government failed to forward the  representation of the detenu to the Central  Government. In that context this Court after

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having examined the provisions of Section 11  of COFEPOSA Act observed thus : (SCC pp.  48-49, para 3)  

"It is obvious from a plain reading of the  two clauses of sub-section (1) of Section  11 that where an order is made by an  officer of the Government, the State  Government as well as the Central  Government are empowered to revoke  the detention order. Where, however,  detention order is passed by an officer of  the Central Government or a  State  Government, the Central Government is  empowered to revoke the detention  order. Now this provision is clearly  without prejudice to  Section 21 of the  General Clauses Act which lays down  that where by  any Central Act a power  to issue orders is conferred, then that  power includes a power, exercisable in  the like manner and subject to the like  sanction and conditions, if any, to  rescind any order so issued. Plainly the  authority which has passed the order  under any Central Act is  empowered by  this provision to rescind the order in  like manner. This provision when read  in the context of Section 11 of the Act  makes it  clear that the power to rescind  conferred on the authority making the  detention order by Section 21 of the  General Clauses Act is saved and is not  taken away. Under Section 11 an officer  of the State Government or that of the  Central Government specially  empowered under Section 3(1) of the Act  to make a detention order is not  conferred the power to revoke it; that  power for those officers has to be traced  to Section 21 of the General Clauses  Act. Therefore, where an officer of the  State Government or the Central  Government has passed any detention  order and on receipt of a representation  he is convinced that the order needs to  be revoked he can do so by virtue of  Section 21 General Clauses Act since  Section 11 of the Act does not entitle  him to do so. If the State Government  passes an order of detention and later  desires to revoke it, whether upon  receipt of a representation from the  detenu or otherwise, it would be entitled  to do so under Section 21 of the   General Clauses Act but if the Central  Government desires to revoke any order  passed by the State Government or its  officer it can do so only under clause (b)  of Section 11(1) of the Act and not under  Section 21 of  the General Clauses Act.  This clarifies why the power under  Section 11 is conferred without  prejudice to the provisions of Section 21  of the General Clauses Act. Thus on a

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conjoint reading of Section 21 of the   General Clauses Act and Section 11 of  the Act it becomes clear that the power  of revocation can be exercised by three  authorities, namely, the state  Government or the Central Government,  the State Government as well as the  Central Government. The power of  revocation conferred by Section 8(f) on  the appropriate Government is clearly  independent of this power. It is thus  clear that Section 8(f) of the Act satisfies  the requirement of Article 22(4) whereas  Section 11 of the Act satisfies  the  requirement of the latter part of Article  22(5) of the Constitution. The statutory  provisions, therefore, when read in the  context of the relevant clauses of Article  22,  make it clear that they are intended  to satisfy the constitutional  requirements and provide for  enforcement of the right conferred on  the detenu to represent against his  detention order. Viewed in this  perspective  it cannot be said that the  power conferred by Section 11 of the Act  has no relation whatsoever with the  constitutional obligation cast by Article  22(5)."

Thereafter, referring to the judgment of this  Court in Raziya Umar Bakshi (Smt) v.  Union  of India (1980 Supp SCC 195) it was further  observed as under: (SCC p. 50, para 4)

"This observation would show that  the power of revocation conferred by  Section 11 of the Act has a nexus  with the right of representation  conferred on the detenu by Article  22(5) and, therefore, the State   Government when requested to  forward a copy of the representation  to the Central Government is under  an obligation to do so."

Relying on these observations it is also  contended that it must be presumed that the  detenu can make representation to the  detaining authority also independently and the  said authority has to consider the same  irrespective of the decision of the State  Government or the Central Government on the  representation made to them. The above  observations made in Amir Shah case (supra)  also do not go to that extent. In any event  Ibrahim Bachu Bafan v. State of Gujarat (1985  (2) SCC 24) cases arose under the COFEPOSA  Act where there is no  specific provision for  approval by the State Government.  Therefore,  the question whether the detaining authority  namely the empowered officer of the  Government can act independently and revoke  the detention order even after the State  Government has approved and affirmed the

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detention as provided under the other Acts did  not arise directly. In those two decisions the  ratio is that the detaining authority has also  the power to revoke the detention order made  by it by virtue of the power conferred by  Section 21 of the General Clauses Act read  with Section 11 of the COFEPOSA Act and in  that context it was further observed that the  power of revocation conferred by Section 11 of  the Act has nexus with the right of  representation conferred on the detenu by  Article 22(5) and that the State Government  when requested to forward a copy of the  representation to the Central Government, is  under obligation to do so. Therefore the above  mentioned observations in the cases arising  under the COFEPOSA Act do not squarely  apply to cases where factually the detention  order made by an empowered officer has been  approved by the State Government as provided  for under the other enactments. In such cases,  in our view, the question of detaining authority  revoking the order after such approval does  not arise and the power preserved by virtue of  the provisions under General Clauses Act is no  more exercisable."  

       The position is different under the Act.  Under Section  3(3) of the Act the approval of the State Government is  mandatory.  There is no such provision in COFEPOSA.  A  combined reading of Sections 3 and 8 of the COFEPOSA shows  that there are three authorities involved.   The approval of the  State Government under the Act is necessary because of  Section 3(2) of the Act.  A peculiar situation may arise if  representation is made to three authorities.  Suppose in a  given case two of the authorities reject the representation and  one authority accepts it. It is not conceivable that one is  bound by the order of the other.  Section 8 of the COFEPOSA  deals with different situations and provides for a hierarchy.   There is no such parallel provision in the Act.  A reading of  sub-section (3) of Section 3 of the Act makes it clear that the  same becomes operative the moment it is passed.  But it  ceases to  be operative unless it is approved within 12 days.   In this connection para 6 of Santosh Shankar Acharya’s case   (supra) is relevant.  The same reads as follows:- "The counsel appearing for the State strongly  relied upon the decision of this Court in  Veeramani v. State of Tamil Nadu, (1994 (2)  SCC 337), wherein an order of detention had  been issued under the provision of Tamil Nadu  Prevention of Dangerous Activities of  Bootleggers, Drug-Offenders, Forest-Offenders,  Goondas, Immoral Traffic Offenders and Slum  Grabbers Act, 1982 (hereinafter referred to as  "Tamil Nadu Act"). According to the learned  counsel for the State the provisions of the said  Act are in pari-materia with the Maharashtra  Act with which we are concerned in the  present appeals and this Court in Veeramani  (supra) had recorded a conclusion that the  question of detaining authority revoking the  order after such approval does not arise and  the power preserved by virtue of the provisions  of General Clauses Act is no more exercisable.  In the aforesaid case the Court considered

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several earlier decisions of the Court under the  provisions of COFEPOSA and was of the view  that the observations made therein could not  apply to cases arising under other Preventive  Detention Act including the Tamil Nadu Act.  Veeramani (supra) also relied upon the  judgment of this Court in State of Maharashtra  v. Sushila Mafatlal Shah (1988 (4) SCC 490),  for the ultimate conclusion. In our considered  opinion this decision does not assist the  respondents in any manner inasmuch as the  Court in Veeramani (supra) has considered the  situation that emerged subsequent to the date  of approval of the order of detention by the  State Government and not prior thereto. As  has been stated earlier, it may be difficult to  contend that even after the approval of the  order of detention by the Stale Government the  detaining authority would still be competent to  entertain and dispose of a representation in  exercise of the powers under Section 21 of  Bombay General Clauses Act, but this decision  cannot be said to be an authority to hold that  even before the approval of the order of the  detaining authority the detaining authority  does not possess the power under Section 21  of the Bombay General Clauses Act. Such a  conclusion would make the entire provision of  Section 14 of the Maharashtra Act redundant  and otiose. Then again the Court had fully  relied upon the observations of this Court in  State of Maharashtra v. Sushila Mafatlal Shah  (supra) and the judgment of Sushila Mafatlal  Shah (Supra) has been directly considered and  overruled in the Constitution Bench decision  in Kamlesh Kumar’s case (supra). It would also  be appropriate to notice that even in Raj  Kishore Prasad v. State of Bihar, (1982 (3) SCC  10), though the Court did not entertain the  contention that detaining authority under the  provisions of National Security Act has a right  to consider the representation on the ground  that the order of detention had been approved  by the State Government yet it had been  observed that constitutionally speaking a duty  is cast on the detaining authority to consider  the representation which would obviously  mean that if such representation is made prior  to the approval of the order of detention by the  State Government. This being the position, it  goes without saying that even under the  Maharashtra 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. We, therefore, see no infirmity with the  impugned judgment of the Full Bench of the  Bombay High Court to be interfered with by

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this Court. These appeals accordingly fail and  stand dismissed."

       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."       

       At this juncture it would be relevant to take note of paras  17 to 19 of Union of India v. Paul Manickam and Anr. (2003  (8) SCC 342). They read as follows: "17. Coming to the question whether the  representation to the President of India meets  with the requirement of law it has to be noted  that in Raghavendra Singh v. Superintendent,  District Jail, Kanpur and Ors. (1986 (1) SCC  650) and Rumana Begum v. State of Andhra  Pradesh and Anr. (1993 Supp. (2) SCC 341) it  was held that a representation to the President  of India or the governor, as the case may be,  would amount to representation to the Central  Government and the State Government  respectively. Therefore, the representation  made to the President of India or the Governor  would amount to representation to the Central  Government and the State Government, but  this cannot be allowed to create a smokescreen  by an unscrupulous detenu to take the  authorities by surprise, acting surreptitiously  or with ulterior motives. In the present case,  the order (grounds) of detention specifically  indicated the authority to whom the  representation was to be made. Such  indication is also part of the move to facilitate  an expeditious consideration of the  representations actually made. 18. The respondent does not appear to have

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come with clean hands to the Court. In the  writ petition there was no mention that the  representation was made to the President;  instead it was specifically stated in paragraph  23 that the representation was made by  registered post to the first respondent on  11.5.2000 and a similar representation was  made to the second respondent. Before the  High Court in the writ petition the first and the  second respondent were described as follows:  "1. State of Tamil Nadu  Rep. By its Secretary,  Government of Tamil Nadu,  Public (SC) Department, Fort St. George,  Chennai, 600 009. 2. Union of India,  Rep. By its Secretary  Ministry of Finance,  Department of Revenue,  New Delhi." 19. As noted supra, for the first time in the  review application it was disclosed that the  representation was made to the President of  India and no representation was made to the  State of Tamil Nadu or the Union of India who  were arrayed in the writ petition as parties.  This appears to be a deliberate attempt to  create confusion and reap an undeserved  benefit by adopting such dubious device. The  High Court also transgressed its jurisdiction in  entertaining the review petition with an  entirely a new substratum of issues.  Considering the limited scope for review the  High Court ought not to have taken into  account factual aspects which were not  disclosed or were concealed in the writ  petition. While dealing with a habeas corpus  application undue importance is not to be  attached to technicalities, but at the same time  where the court is satisfied that an attempt  has been made to deflect the course of justice  by letting loose red herrings the Court has to  take serious note of unclean approach.  Whenever a representation is made to the  President and the Governor instead of the  indicated authorities, it is but natural that the  representation should indicate as to why the  representation was made to the President or  the Governor and not the indicated authorities.  It should also be clearly indicated as to whom  the representation has been made specifically,  and not in the manner done in the case at  hand. The President as well as the Governor,  no doubt are constitutional Heads of the  respective Governments but day to day  administration at respective levels are carried  on by the Heads of the Department-Ministries  concerned and designated officers who alone  are ultimately responsible and accountable for  the action taken or to be taken in a given case.  It really the citizen concerned genuinely and  honestly felt or interested in getting an  expeditious consideration or disposal of his  grievance, he would and should honestly  approach the really concerned authorities and

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would not adopt any dubious devices with the  sole aim of deliberately creating a situation for  delay in consideration and cry for relief on his  own manipulated ground, by directing his  representation to an authority which is not  directly immediately concerned with such  consideration."

Paras 17 to 19 of Union of India and Anr. v. Chaya  Ghoshal (Smt.) and Anr. (2005 (10) SCC 97) are also relevant.  They read as follows:

"17. While dealing with a habeas corpus  application undue importance is not to be  attached to technicalities, but at the same time  where the court is satisfied that an attempt  has been made to deflect the course of justice  by letting loose red herrings the Court has to  take serious note of unclean approach.  Whenever a representation is made to the  President or the Governor instead of the  indicated authorities, it is but natural that the  representation should indicate as to why the  representation was made to the President or  the Governor and not the indicated authorities.  It should also be clearly indicated as to whom  the representation has been made specifically.  The President as well as the Governor, no  doubt are constitutional Heads of the  respective Governments but day to day  administration  at  respective  levels are  carried on by the Heads of the Department- Ministries concerned and designated officers  who alone are ultimately responsible and  accountable for the action taken or to be taken  in a given case. If really the citizen concerned  genuinely and honestly felt or is interested in  getting an expeditious consideration or  disposal of his grievance, he would and should  honestly approach the really concerned  authorities and would not adopt any dubious  devices with the sole aim of deliberately  creating a situation for delay in consideration  and cry for relief on his own manipulated  ground, by directing his representation to an  authority which is not directly/immediately  concerned with such consideration.  

18.     Where, however, a person alleging  infraction of personal liberty tries to act in a  manner which is more aimed at deflecting the  course of justice than for protection of his  personal right, the Court has to make a  deliberate balancing of the fact situation to  ensure that the mere factum of some delay  alone is made use of to grant relief. If a fraud  has been practiced or perpetrated that may in  a given case nullify the cherished goal of  protecting personal liberty, which obligated  this Court to device guidelines to ensure such  protection by balancing individual rights and  the interests of the nation, as well.  

19. In R. Keshava v. M.B. Prakash and Ors.  (2001 (2) SCC 145) it was observed by this

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Court 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 rendered unconstitutional  nor illegal".

       It is undisputed that in the grounds of detention it was  specifically indicated to the appellant that if he wanted to  represent to the Government of Karnataka he was to submit  the same directly to the Government through the  Superintendent of the Central Jail in which he is detained.   

       Above being the factual position, the judgment of the  High Court is irreversible. The appeal is sans merit and is  dismissed.