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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: ZAVAD ZAMA KHAN

DATE OF JUDGMENT04/05/1984

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) DESAI, D.A. ERADI, V. BALAKRISHNA (J)

CITATION:  1984 AIR 1095            1984 SCR  (3) 789  1984 SCC  (3) 505        1984 SCALE  (1)938  CITATOR INFO :  R          1986 SC 356  (3)  R          1988 SC 227  (9)

ACT:      Public Safety  Laws-National Security  Act (Act  XLV of 1980)  Section  14-Revocation  of  orders  of  detention-Due compliance  with  requirement  of  section  8(1)  read  with Article 22(5)  of the  Constitution though.  complied  with, subsequent representation  for revocation  to Prime Minister made through  the counsel  filed by  the Central Government- Whether  non-passing   of  any   order  on   the  revocation representation vitiates the detention.

HEADNOTE:      The facts are that the respondent made a representation dated June  18, 1983 against an order of detention passed by the District  Magistrate, Moradabad  dated November  6, 1982 for his  detention under  sub-s. (3) of s. 3 of the National Security Act,  1980, and  the same was duly forwarded by the District Magistrate  to the Advisory Board on June 21. 1983. The State  Government had in the mean while on June 13, 1983 made a  reference tn  the Advisory  Board under s. 10 of the Act i.e.  within three  weeks from  the  dale  of  detention together  with  the  order  of  detention  and  the  grounds therefor  for   its  opinion.   On   June   23,   1983   the representation was  examined by  the Joint  Secretary,  Home Department who marked the file to the Home Secretary on June 27, 1983  who on  his turn  placed the file before the Chief Minister for  his comments  on  June  27,  1983.  The  Chief Minister took  to days  to study  the  file  and  ultimately passed an  order rejecting  the representation.  On July  2, 1983 the  State Government forwarded the representation made together with  the comments  to the  Government of India and the Central Government rejected the same on July 19, 1983.      It appears  that on July S, 1983 the respondent through his counsel simultaneously addressed two representations for revocation of  his detention  under s.  14 of  the Act,  one addressed to  the Prime  Minister of  India and the other to the State Government. The representation made to the Central Government addressed  in the  name of the Prime Minister was received in the Prime Minister’s Secretariat on July 7, 1983

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and the  grievance of  the respondent  before the High Court was that  the Central  Government had  not  dealt  with  his application for  the revocation  of the  order of  detention under s.  14 of  the Act.  The High  Court observed that the right of  the detenu to make a representation to the Central Government for revocation of the order of detention under s. 14 of  Act  was  intended  to  be  an  additional  check  or safeguard against  the improper  exercise of  its  power  of detention by the detaining authority or the State Government and therefore  the  failure  on  the  part  of  the  Central Government to  consider the  same was tantamount to a denial of the  constitutional safeguard  as  contemplated  by  Art. 22(5) 790 of the  Constitution.  It  accordingly  held  the  continued detention of the respondent to be illegal.      Aggrieved by  the order, the State preferred an Special Leave.      Allowing the appeal, the Court, ^      HELD: (1)  The constitutional imperatives of Art. 22(5) enjoin   that    where   a   detenu   simultaneously   makes representation to  the detaining  authority as  well  as  an application under  s. 14  of the Act, they must not be dealt with by  the appropriate  Government at  the same  time  and there was  no question  of any  conflict of jurisdiction. If the Central Government were to revoke the order of detention under s. 14 of the Act, there would be no representation for the State  Government to  consider, or refer to the Advisory Board under  s. 8(b)  of the  Act nor  will there  arise any question of  Advisory Board  making a  report to  it, or  on receipt of  such a report, confirming the order of detention under section  8(f). The  other type  of cases  can be where notwithstanding  that   the  order  of  detention  has  been confirmed under  s. 8(f)  the appropriate Government may, at any time,  revoke  the  same  under  s.  14.  The  power  of revocation conferred  on the appropriate Government under s. 14 is  independent of  the power  of confirming  or  setting aside an order or detention under s. 8(f) [795H; 796A-D]      2. The  power of  revocation conferred  on the  Central Government under s. 14 of the Act is a statutory power which may be  exercised on  information received  by tile  Central Government from  its own  sources including that supplied by tile State  Government under sub-s. (5) of s. 3, or from the detenu in  the form  of a  petition or representation. It is for the  Central Government  to decide  whether  or  Dot  it should revoke  the order  of detention in a particular case. [796G-H]      Any lapse on the part of State Government in forwarding the  representation  made  by  the  detenu  to  the  Central Government for revocation of the order of detention under s. 14 of  the Act  or non-consideration  of  the  same  by  the Central Government  makes the  continued  detention  of  the detenu bad. [793B-C]      In the  present  case,  however,  the  detenu  was  not deprived of  the right  of making  a representation  to  the detaining authority  under Art.  22(5) of  the  Constitution read with  s. 8(1)  of the  Act. Although  the detenu had no right to  simultaneously make  a representation  against the order of  detention to  the Central  Government  under  Art. 22(5) and  there was no duty cast on the State Government to forward the same to the Central Government, nevertheless the State Government  forwarded the  same forthwith. The Central Government duly  considered  that  representation  which  in effect was  nothing but  a representation  for revocation of

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the order  of detention  under s.  14 of the Act. That being so. it  was not  obligatory  on  the  parr  of  the  Central Government  to   consider  a   second   representation   for revocation under s. 14 of the Act. [797A-D] 791

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 57 of 1984.      From the  Judgment and  Order dated  25-10-1983 of  the Allahabad High Court in Habeas Corpus WP. No. 8420 of 1983.      Manjo Swarup and Dalveer Bhandari for the appellant.      Mrs. &  Mr. Qamaruddin,  Rizwan A.  Hafiez and Desh Raj for the respondent.      The Judgment of the Court was delivered by      SEN, J.  The State  Government  of  Uttar  Pradesh  has preferred this appeal by special leave from the judgment and order of  the Allahabad High Court dated October 25, 1983 by which the  High Court  issued a writ in the nature of habeas corpus quashing an order of detention passed by the District Magistrate,  Moradabad   dated  November  6,  1982  for  the detention of  the respondent under sub-s. (3) of s. 3 of the National Security  Act, 1980  on being  satisfied  that  his detention was  necessary "with a view to preventing him from acting in  any manner  prejudicial  to  the  maintenance  of Public order."      It appears  that the  respondent  is  alleged  to  have committed an  offence of  murder punishable under s. 302 and of causing disappearance of evidence punishable under s. 201 of the  Indian Penal  Code,  1860  in  connection  with  the communal riots  that occurred  in  the  Moradabad  city.  On November 6,  1982, the District Magistrate, Moradabad passed the impugned  order of  detention but it could not be served on the  respondent as  he was  absconding. As required under sub-s. (4) of s. 3, the District Magistrate forthwith made a report of  the fact to the State Government of Uttar Pradesh that he  had passed  an  order  for  the  detention  of  the respondent under  sub-s. (3)  of s.  3 of  the Act, together with the  grounds on  which the order had been made and such other particulars  as, in  his opinion, had a bearing on the matter. The State Government received the order of detention on November 8, 1982 and approved of the same on November 11, 1982 under  sub-s. (5)  of s. 3, and as required thereunder, forwarded a report to the Central Government on the next day i.e. On November 12, 1982. The respondent surrendered to the police on  May 24,  1983 and the impugned order of detention was served on him in District Jail, 792 Moradabad on  June 1, 1983 and the grounds of detention were furnished to him on June 2, 1983.      The respondent  made a  representation dated  June  18, 1983 through the Superintendent, District Jail Moradabad and he  immediately   forwarded  the   same  to   the   District Magistrate.  On   June  20,  1983  the  District  Magistrate forwarded the  representation to  the Advisory Board and the same was  received by  the Advisory  Board on June 21, 1983. The State  Government had  in the  meanwhile on June 13,1983 made a  reference to  the Advisory  Board under s. 10 of the Act i.e.  within three  weeks from  the  date  of  detention together with  the  order  of  detention,  and  the  grounds therefore,  for   its  opinion.   On  June   23,  1983   the representation of  the respondent  forwarded by the District Magistrate together  with his  comments was  examined by the

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Joint Secretary, Home Department. The file was placed before the Home Secretary on June 27, 1983 who placed it before the Chief Minister  with his  comments. The  Chief Minister took two days  to study  the file  and ultimately passed an order rejecting the  representation on  June 30,  1983. On July 2, 1983 the  State Government forwarded the representation made by  the   respondent  together  with  its  comments  to  the Government of  India and the Central Government rejected the same on July 19, 1983.      On July 5, 1983 the respondent through his counsel D.S. Misra  simultaneously   addressed  two  representations  for revocation of  his detention  under s.  14 of  the Act,  one addressed to  the Prime  Minister of  India and the other to the State  Government. It  appears that  the  representation made to  the Central Government addressed in the name of the Prime  Minister   was  received   in  the   Prime   Minister Secretariat on  July  7,  1983  and  the  grievance  of  the respondent was  that the  Central Government  had not  dealt with  his   application  for  revocation  of  the  order  of detention under s. 14 even now.      In his  counter-affidavit by  one  M.L.  Miglani,  Desk officer, Ministry  of Home Affairs, New Delhi, it was stated that  the   Central  Government  had  fully  discharged  its functions by  expeditiously taking a decision on the earlier representation directly  ad dressed by the respondent and it was under no statutory obligation to consider the subsequent representation for  revocation addressed  by the  respondent through his  counsel to  the Prime  Minister. I  was  not  a statutory representation for revocation of the impugned 793 order of  detention under  s. 14 and therefore it was not at all necessary for the Central Government to deal with it.      The High Court placing reliance on the decision of this Court in  Phillippa Anne  Duke v.  State of Tamil Nadu & Ors and certain  of its  own decisions  held that the respondent had a right to make an application to the Central Government for revocation  of the order of detention and the failure on the part  of the  Central Government to apply its mind to it made the continued detention illegal.      The only  question canvassed in the appeal before us is that the  judgment of  the High Court betrays, complete lack of  awareness   a  of   the  nature  of  the  constitutional safeguards enshrined  under Art.  22(5) of the Constitution. It is  urged that  the constitutional imperatives enacted in Art. 22(5)  are two-fold;  (1) The detaining authority must, as soon  as maybe  i.e. as  soon as  practicable, after  the detention, communicate  to the  detenu the  grounds on which the order  of detention has been made. And (2) The detaining authority must afford the detenu the earliest opportunity of making representation against the order of detention. In the present ease, it is said that the requirements of Art. 22(5) of the  Constitution read  with s.  8(1) of the Act had been duly complied with. There is no question of any violation of Art. 22(5)  or of  s. 8(1)  and further that the grounds for detention set  out  the  facts  with  sufficient  degree  of particularity and  they did  furnish  sufficient  nexus  for forming  the   subjective  satisfaction   of  the  detaining authority.  The  order  of  detention  cannot  therefore  be challenged on the ground that the grounds furnished were not adequate or  sufficient for  the subjective  satisfaction of the  detaining   authority,  or   for  making  an  effective representation. It  is further  urged that  there being  due compliance with  the  constitutional  requirements  of  Art. 22(5) and  of s.  8(1), the  High Court was wrong in holding that the  continued detention  of the respondent was invalid

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merely because  the Central Government refused to act on his application for  revocation of  the order of detention under s. 14  of  the  act.  We  find  considerable  force  in  the submission.      We are not oblivious of the fact that this Court has in certain cases given expression to the view that any lapse on the  part   of  the   State  Government  in  forwarding  the representation made for revo- 794 cation of  his order  of detention  under s.11(1)(b)  of the COFEPOSA Act,  1974 or the failure of the Central Government to expeditiously  consider the  same was  a  denial  of  the constitutional  right   of  being   afforded  "the  earliest opportunity of making a representation against the order" as contemplated by  Art. 22(5). At one time it was thought that s. 14  of the  Maintenance of  Internal Security  Act,  1971 which was  in pari  materia with  s. 14  of the Act, did not confer any  right or  privilege on the detenu but there is a definite shift  in the  judicial attitude,  for which  there appears to  be no discernible basis. In Shyam Ambalal Siroya v. Union  of India & Ors., the contention was that because a representation properly  addressed to the Central Government to order  revocation under s. 11 of the COFEPOSA Act was not forwarded  by   the  detaining   authority  to  the  Central Government, the  detention was  illegal. The Court construed the power  conferred on  the Central  Government  to  direct revocation of  an order of detention under s. 11 of that Act to be  "statutory". It  was observed  that the  power of the Central Government  to revoke the order of detention implies that the  detenu can  make a  representation for exercise of that power  and a  petition for  revocation of  an order  of detention should  be dealt with reasonable expedition. Since a representation  properly addressed  by the  detenu of  the Central  Government   was  not   forwarded  to  the  Central Government, the  continued detention  of the detenu was held to be illegal.      In Sabir Ahmed v. Union of India & Ors., the Court held that  non-consideration  by  the  Central  Government  of  a representation for revocation made by the detenu under s. 11 of the  COFEPOSA Act made the continued detention to be bad, following the  decision  in  Shyam  Ambalal  Siroya’s  case, supra. It  was however  observed that the power conferred by s. 11  on the Central Government was a supervisory power and it was  intended to  be an  additional  check  or  safeguard against the  improper exercise  of its power of detention by the detaining authority or the State Government.      In Rattan  Singh v.  State of  Punjab &  Ors, the Court went still  further. There was, in that case, a lapse on the part   of   the   State   Government   in   forwarding   the representation simultaneously  made by  the  detenu  to  the Central Government  for revocation of the order of detention under s. 11 of the COFEPOSA Act. The 795 Court struck  down the order of detention on the ground that there was  a denial of the right of making representation to the Central  Government  for  revocation  of  the  order  of detention under  s. 11 of the Act and this was tantamount to a denial of the constitutional safeguard of Art. 22(5).      Soon thereafter,  the Court  in Sat  Pal  v.  State  of Punjab &  Ors examined the nature of the power of revocation conferred on  the Central  Government under  s.  11  of  the COFEPOSA; Act  and held  that it  was supervisory in nature, and it was observed:           "That is,  as it  should  be,  under  our  federal      structure the Centre must always keep a vigilant eye in

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    the matter  of life and liberty of a citizen guaranteed      under Article 21.           Ours  is   a  Constitution,   where  there   is  a      combination of  federal structure with unitary features      while in  a unitary State there is only one Government;      federal  State   involves   multi-Governments   namely,      national or  federal Government  and the Governments of      component States.  A federal  State,  in  short,  is  a      fusion of  several States into a single State in regard      to  matters  affecting  common  interest  leaving  each      component State  to enjoy  autonomy in  regard to other      matters. Under our Constitution: certain powers vest in      the Central Government leaving certain to its component      units to  exercise autonomy in spheres assigned to them      in the  Constitution itself. The component States are .      not  merely   delegates  or   agents  of   the  federal      Government. Both  federal and  State  Governments  draw      their authority  from the same source, the Constitution      The conferment  of executive  power on  the  States  in      relation  to  a  subject  with  respect  to  which  the      legislatures of  the States have no power to make a law      under Art.  258(2) must  necessarily be  subject to the      administrative control of the Union under Arts. 256 and      247(1), to  the giving of such directions to the States      as  may  appear  to  the  Government  of  India  to  be      necessary for that purpose."      It  was   then   observed   that   the   constitutional imperatives  of  Art.  22(5)  enjoin  that  where  a  detenu simultaneously makes a re- 796 presentation to  the  detaining  authority  as  well  as  an application for  revocation under s. 11 of the Act they must both be dealt with by the appropriate Government at the same time  and   there  was   no  question  of  any  conflict  of jurisdiction. To illustrate, it was said that if the Central Government were  to revoke an order of detention under s. 11 of the  Act, there  would be no representation for the State Government to consider, or refer the Advisory Board under s. 8(b), nor  will there  arise any  question of Advisory Board submitting a  report to  it, or  on receipt of such a report confirming the  order of  detention under  s. 8(f).  It  was further observed  that the  other types  of cases  would  be where notwithstanding  that the  order of detention has been confirmed under  s. 8(f), the appropriate Government may, at any time,  revoke the  same under  s. 11  of the Act. It was accordingly held  that the  power of revocation conferred on the appropriate Government under s. 11 is independent of the power of  confirming or  setting aside an order of detention under s. 8(f).      As to  the nature  of the power of revocation conferred on the  Central Government  under s. 11 of the COFEPOSA Act, it was stated:           "The making  of an  application for  revocation to      the Central  Government under  s.  11  of  the  Act  is      therefore part  of the  constitutional right  a citizen      has against  this detention  under a  law  relating  to      preventive detention. While Art. 22(5) contemplates the      making  of   a  representation  against  the  order  of      detention to  the detaining  authority, which has to be      referred by  the appropriate Government to the Advisory      Board constituted under s. 8(a) of the Act, Parliament,      has in  its wisdom,  enacted s.  11  and  conferred  an      additional  safeguard   against   arbitrary   executive      action.      The principle  that emerges from all these decisions is

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that the  power  of  revocation  conferred  on  the  Central Government under s. 14 of the Act is a statutory power which may be  exercised on  information received  by  the  Central Government from  its own  source including  that supplied by the State  Government under  sub-s. (5)  of s. 3 or from the detenu in  the form  of a  petition or representation. It is for the  Central Government  to decide  whether  or  not  it should revoke the order of detention in a particular 797 case, In  the present  case, the  detenu was not deprived of the right  of  making  a  representation  to  the  detaining authority under  Art. 22(5) of the Constitution read with s. 8(1) of  the Act.  Although  the  detenu  had  no  right  to simultaneously make  a representation  against the  order of detention to  the Central  Government under  Art. 22(5)  and there was  no duty  cast on  the State Government to forward the same  to the  Central Government, nevertheless the State Government  forward   the  same   forthwith.   The   Central Government duly  considered  that  representation  which  in effect was  nothing but  a Representation  for revocation of the order  of detention  under s.  14 of the Act. That being so, it  was not  obligatory  on  the  part  of  the  Central Government  to   consider  a   second   representation   for revocation under s. 14. We may profitably refer to Phillippa Anne  Duke’s   case,  supra,   where  in   somewhat  similar circumstances it  was  held  that  failure  of  the  Central Government to consider a representation for revocation of an order of  detention under  s. 11(1)(b)  of the  COFEPOSA Act handed over  to t  he Prime  Minister during  her  visit  to England did  not render  the continued detention invalid. It was observed:           "Representations from whatever source addressed to      whomsoever officer  of one  or other  department of the      Government cannot be treated as a representation to the      Government under s. 11(8)(b) of the COFEPOSA Act."      The result therefore is that the appeal succeeds and is allowed. The  judgment and  order of  the High  Court is set aside and  the order  of detention  passed by  the  District Magistrate under sub-s. (3) of s. 3 of the National Security Act, 1980 is maintained. S.R.                                         Appeal allowed. 798