http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: SABIR AHMED

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT18/04/1980

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH PATHAK, R.S.

CITATION:  1980 SCR  (3) 738        1980 SCC  (3) 295

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities Act, 1974, Section 11, Scope of-Whether Central Government  is bound  to consider the application of the detenu’s representation and non-consideration thereof is illegal-Whether it is a Constitutional right of the detenue.

HEADNOTE:      The petitioner  challenged the detention of his brother Dawood Hasan  Sheikh  Ibrahim,  under  the  Conservation  of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The  detention order  was passed on October 2, 1979 by the detaining  authority. The  representation  made  by  the detenu on  November 14,  1979 to  the detaining authority in which inter  alia he  asked for  supply  of  the  copies  of documents and  statements relied  upon  in  the  grounds  of detention, was rejected on December 10, 1979 by the Minister of State in the Home Ministry of State Government, by virtue of the  authorisation to  deal with  the representations  of detenus by  a Standing  Order made  by the Chief Minister on December 3,  1979. In  the meantime,  the Advisory Board met and considered  the representation of the detenue and made a report to  the Government  on December  6,  1979.  The  said Minister had  dealt with  the representation and rejected it after the Board had made its report to the Government.      On November 19, 1979, the detenu made an application to the Central  Government for  revocation of  the order of his detention under section 11 of COFEPOSA and this has not been dealt with by that Government.      The petitioner  inter alia,  contended that  the detenu had a right to move the Central Government for revocation of the order  of detention  and non-consideration  vitiates the detention.      Allowing the petition, the Court ^      HELD: 1  Section 3(2)  of COFEPOSA  mandates the  State Government to  send a  report to the Central Government. But it does not mean that the representation made by the detenu, if any, should also be sent along with that report. [742 E]      2. The  Central Government  is under a duty to consider the representation made to it by the detenu for revoking his detention, even  if it  simply repeats the same allegations, statement of  facts, and  arguments which  were contained in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

the representation  made to  the detaining  authority. It is common experience  that an  argument or  submission based on certain facts,  which does  not  appeal  to  a  tribunal  or authority of  first instance,  may find  acceptance  with  a higher tribunal or supervisory authority. [742 E-F] 739      3. Whether  or not  the detenu  has under  Section 11 a legal  right   to  make  a  representation  to  the  Central Government is  not the  real question. The nub of the matter is, whether the power conferred by Section 11 on the Central Government,  carried   with  it   a  duty  to  consider  any representation made  by the detenu, expeditiously. The power under Section  11 may  either be exercised if on information received by  the Central  Government from  its  own  sources including  that  supplied  under  Section  3  by  the  State Government, or, from the detenu in the form of a petition or representation. Whether  or not  the Central  Government  on such petition/representation  revokes  the  detention  is  a matter of  discretion. But this discretion is coupled with a duty, that  duty is  inherent in  the  very  nature  of  the jurisdiction. [742 F-H, 743 A]      4. The  power under  section 11 is a supervisory power. It is  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. If  this statutory safeguard  is to  retain its meaning and efficacy, the  Central   Government  must  discharge  its  supervisory responsibility with  constant vigilance  and watchful  care. The report received under section 3, or any communication or petition received  from the  detenu must  be considered with reasonable expedition. [743 A-B]      5.  What  is  ’reasonable  expedition’  is  a  question depending on  the circumstances  of the  particular case. No hard and  fast rule as to the measure of reasonable time can be laid  down. But it certainly does not cover the delay due to negligence,  callous inaction,  avoidable  redtapism  and unduly protracted procrastination. [743 B-C]      In the  instant case,  in the  absence  of  a  specific denial  in  the  counter-affidavit  of  the  Central  Govt., inescapable conclusion  is that  the Central  Government has not at  all considered the representation made by the detenu requesting for  revocation of his detention under section 11 of COFEPOSA. [745 E-F]      Shyam Ambalal  Siroya v.  Union of  India, [1980] 2 SCR 1078 and  Tara Chand  v. State  of Rajasthan and Ors., (W.P. No. 1639/79) decided on February 13, 1980 followed.      Dhana Alikhan  v. State  of West  Bengal, [1975]  Suppl S.C.R. 124; distinguished.      Ram Bali  Rajabhar v.  State of  West Bengal  and Ors., [1975] 2 S.C.R. 63, referred to.

JUDGMENT:      ORIGINAL JURISDICTION : Writ Petition No. 168 of 1980.            (Under Article 32 of the Constitution)      Harjinder Singh for the Petitioner.      M. N. Shroff for the Respondent.      The Judgment of the Court was delivered by      SARKARIA, J. This is a writ petition filed by one Sabir Ahmed to  challenge the  detention of  his  brother,  Dawood Hasan Sheikh 740 Ibrahim, under  the Conservation  of  Foreign  Exchange  and Prevention of  Smuggling Activities  Act, 1974  (hereinafter

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

referred to as the COFEPOSA).      The detenu  was in  the custody  of the Customs when on September 8,  1979, he  was produced before the Metropolitan Magistrate, Esplanade  Court, Bombay  and  was  remanded  to judicial custody  and later  on granted bail by the Sessions Judge by an order, dated September 28, 1979.      On October  2, 1979, an order of detention passed under Section 3(1)  of COFEPOSA  by Shri Pradhan, the Secretary to Maharashtra Government in the Home Department, was served on him. The grounds of detention were also served on him on the same date.      On November  14, 1979, the detenu made a representation to the detaining authority, in which he inter alia asked for supply of the copies of documents and statements relied upon in the  grounds of  detention.  The  representation  of  the detenu was  not dealt  with by  Shri  Pradhan,  but  by  the Minister  of  State  in  the  Home  Ministry  of  the  State Government, and  was rejected  on  December  10,  1979.  The Minister is  said to  have been  authorised to deal with the representation of  detenus by  a Standing  Order made by the Chief Minister  on December  3, 1979.  In the  meantime, the Advisory Board  met and considered the representation of the detenu and  made a  report to  the Government on December 6, 1979 for  approval of  the detention.  The said Minister had dealt with  the representation  and rejected  it  after  the Board had made its reports to the Government.      On November,  19, 1979,  the detenu made an application to the Central Government for revocation of the order of his detention under  Section 11  of COFEPOSA,  and this  has not been dealt with by that Government till today.      Mr. Jeth  Malani, appearing  for the  detenu, has  made four submissions.      (1) The  Minister of State was not competent to dispose of the representation of the detenu, because the Order dated December 3,  1979, made by the Chief Minister did not invest him  with   the  necessary   authority  to  dispose  of  the representation.      (2)  The   representation  has   not  been  dealt  with expeditiously by the State Government. On the other hand, it was mechanically  sent for remarks to the customs Department on November 18, 1979, and 741 thereafter the report of the Customs Department was received by the State Government on November 28, 1979.      (3) The  application of the detenu for obtaining copies of the  relevant documents was improperly rejected, and as a result, he  has been deprived of his constitutional right of making an effective representation.      (4)  The  detenu  had  a  right  to  move  the  Central Government for revocation of the order of his detention. For that purpose,  he submitted  a  petition  addressed  to  the Central Government  on November  19, 1979.  But, the Central Government has  callously ignored  it and has not dealt with it so far. This delay and inaction for an indefinite period, which now  exceeds  four  months,  vitiates  the  detention. Reliance for  this contention  has been placed on two recent judgments of  this Court in Shyam Ambalal Siroya v. Union of India &  Ors. by  a Bench  of three learned Judges; and Tara Chand v. The State of Rajasthan & Ors. (W. P. (Crl) No. 1639 of 1979,  decided on  February 13,  1980, by  a Bench of two learned Judges).      We will take the last contention first, because, in the course  of  his  arguments,  the  learned  counsel  for  the petitioner while  reserving his  arguments on  other points, has dealt with this point only.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

    On the  other hand,  regarding contention 4, Mr. Datar, appearing for  the Central  Government, submits that Section 11 of  COFEPOSA merely  confers a  discretion on the Central Government to revoke or modify an order of detention made by the State  Government. It  does  not  confer  any  right  or privilege on  the detenu  to make  a representation  to  the Central Government under that Section.      In line with the same argument, Mr. Nain, appearing for the respondent-State, submits that Section 11 merely gives a power which is to be exercised by the Central Government suo motu after  receiving the  report from  the State Government under Section  3(2). It is conceded that the power conferred on the  Central Government under Section 11 is a supervisory power but  that, according  to the learned counsel, does not mean that  the detenu has been invested with a right to move the Central  Government for revoking the detention. Mr. Nain further tried to distinguish the Syham Ambalal Siroya’s case (ibid) on  the ground  that therein, the detaining authority was the  Central Government,  while in the instant case, the order was passed by the State Government. 742      Both   the   learned   counsel,   appearing   for   the respondents, relied upon the decision of this Court in Mohd. Dhana Ali  Khan v.  State of  West  Bengal  Counsel  further submitted that  what has been said by Fazal Ali, J. in Mohd. Dhana Ali  Khan’s case,  conflicts with  the ratio  of Shyam Ambalal  Siroya’s   and  Tarachand   relied  upon   by   the petitioner. It  is urged  that on  account of this conflict, the  matter  should  be  referred  to  a  larger  Bench  for reconsideration. It  is maintained  that the  last mentioned two cases  have not  been correctly decided. If the ratio of these  two   decisions-proceeds  the  argument-is  liberally applied, then  it means  that the  detenu has a right to vex the Central  Government by  making  endless  representations even where no new facts have come to light.      In the  alternative, Mr.  Nain contended that only in a case where  the representation  is based on the discovery of new matter  or facts, the Central Government may be required to consider it. The proper course for the Court even in such cases, according to Mr. Nain, is to issue a direction to the Central Government  to consider  the representation within a period specified  by it  and not  to quash the detention. In this connection  reference was  made to  Ram Bali Rajbhar v. The State of West Bengal & Ors.      It is  true that  Section 3(2) of COFEPOSA mandates the State Government to send a report to the Central Government. But it  does not  mean that  the representation  made by the detenu, if  any, should also be sent along with that report. There appears  to be no substance in the contention that the Central  Government   is  under   no  duty   to  consider  a representation made  to it  by the  detenu for  revoking his detention,  if  it  simply  repeats  the  same  allegations, statement of  facts, and  arguments which  were contained in the representation  made to  the detaining  authority. It is common experience  that an  argument or  submission based on certain facts,  which does  not  appeal  to  a  tribunal  or authority of  first instance,  may find  acceptance  with  a higher tribunal or supervisory authority. Whether or not the detenu has  under  section  11  a  legal  right  to  make  a representation to  the Central  Government is  not the  real question. The  nub of  the  matter  is,  whether  the  power conferred by  Section 11  on the Central Government, carries with it  a duty  to consider  any representation made by the detenu, expeditiously. The power under section 11 may either be exercised  if on  information  received  by  the  Central

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

Government from  its own  sources  including  that  supplied under Section 3 by the State Government, or, from the detenu in the  form of a petition or representation. Whether or not the 743 Central Government  on such  petition/representation revokes the detention is a matter of discretion. But this discretion is coupled  with a  duty. That  duty is inherent in the very nature of  the jurisdiction. The power under section 11 is a supervisory power.  It is 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. If  this statutory  safeguard is  to retain  its meaning and  efficacy, the Central Government must discharge its supervisory  responsibility with  constant vigilance and watchful care.  The report  received under Section 3, or any communication or  petition received  from the detenu must be considered with  reasonable expedition.  What is ’reasonable expedition’ is  a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable  time can  be laid down. But it certainly does not cover  the delay  due to  negligence, callous  inaction, avoidable redtapism and unduly protracted procrastination.      The plea  specifically taken  by the writ petitioner in Ground No. XXII of his affidavit, runs as under:           "The petitioner says that he made a representation      to  the   Central  Government  for  revocation  of  the      detention order  under section  11 of the COFEPOSA. The      Central  Government   has  not   considered  the   said      representation  and   thus   the   detenu’s   continued      detention is illegal."      Earlier, in  paragraph 7 of his affidavit, also, he had mentioned that  he had  sent a  communication to the Central Government, Department  of Revenue,  COFEPOSA Branch, asking for revocation of the detention order, but no reply had been received.  In  spite  of  the  fact  that  this  ground  was specifically taken,  Mr. R.K.  Thawani, Deputy  Secretary to the Government of India, Ministry of Finance, has not in his counter-affidavit said  anything with regard to this plea or the facts  alleged in  the affidavit of the writ-petitioner. The conclusion  is, therefore  inescapable that  the Central Government has  not at  all considered  the petition made by the detenu  requesting for revocation of his detention under section  11.  According  to  the  allegations  in  the  writ petition, this  written communication was sent by the detenu to the  Central Government  on November 19, 1979. We are now in the middle of March, 1980.      Contrary to  the counter-affidavit  filed by  Mr. S. M. Sule, Under-Secretary to the Government of Maharashtra, Home Department, Mr.  Nain submitted  that, in  his opinion,  the Central     Government      did     not     consider     the representation/petition of the detenu because it 744 might be  labouring under a misapprehension that once a writ petition for  habeas corpus  has been filed on behalf of the detenu and the court is seized of the case, anything done by the Government thereafter might amount to contempt of court. The apologetic  explanation imagined  by him contrary to the stand taken  in Mr.  Sule’s counter-affidavit,  is hardly an excuse for not performing, its statutory duty by the Central Government. Although,  about four  months have gone by since the despatch  of the  representation by  the detenu, yet the Central Government  has not  applied its  mind to it. It has just ignored it.      The ratio  of  Tara  Chand’s  case  and  Shyam  Ambalal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

Siroya’s case applied with all its force to the facts of the instant case.  The decision in Mohd. Dhana Ali Khan, (supra) stands on  its own peculiar facts. In principle, there is no conflict  between  the  ratio  of  that  case  and  the  two subsequent decisions aforesaid.      In Tara Chand’s case, the order of detention was passed by the Government of Rajasthan, and the detenu had addressed a representation  to the  President, who forwarded it to the Finance Ministry  of  the  Union  Government  for  necessary action. It was common ground that the representation was not considered by  the Union  of India, nor was any order passed on it.  On these  facts, Murtaza Fazal Ali, J., speaking for the Court,  held that section 11(1) of the COFEPOSA "clearly enjoins that  the Central Government may revoke or modify an order passed by the State Government...Once a representation is made  to the  Central Government,  it is  duty  bound  to consider the same in order to exercise its discretion either in rejecting  or accepting  it. If there is inordinate delay in considering  the representation that would clearly amount to violation  of the  provisions of  Article 22(5)  so as to render the detention unconstitutional and void."      The ratio  of Tara  Chand’s case  was followed in Shyam Ambalal Siroya’s  case, wherein  a stand  similar to the one before us  was  taken  by  the  Central  Government  in  the counter-affidavit filed  on its  behalf. The stand taken was that the detention order was not vitiated merely because the Central Government  had not considered the representation of the detenu  made to it for revocation of the detention under section  11   of  the  COFEPOSA.  The  Court  rejected  this contention with this observation:           "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. Any petition      for revocation of an order of detention should be dealt      with reasonable  expedition.....It may  be  permissible      for the Central Government to take reason. 745      able time for disposing any revocation petition. But it      would not  be justified  in ignoring the representation      for revocation  of the detention as a statutory duty is      cast upon  the Central Government. It is necessary that      the Government  should apply its mind and either revoke      the  order   of  detention  or  dismiss  the  petition,      declining to order for revocation."      In that  case,  the  representation  addressed  to  the Central  Government   was  not   forwarded  to  the  Central Government and, as such, was left unattended for nearly four months.      It is  true that  in Shyam  Ambalal Siroya’s  case, the detaining  authority  was  a  Additional  Secretary  to  the Central Government.  But he  did not derive his authority to pass the  detention order  from the rules of business framed by  the  Central  Government  under  Article  77(3)  of  the Constitution. Such  authority was  given to  him  under  the statute itself. It is, therefore, not correct to say that in that case,  the order  passed by the detaining authority was to be  deemed an  order passed  by  the  Central  Government itself. In any case, so far as the ratio of that decision is concerned, this is a distinction without a difference.      Shyam Amdalal  Siroya’s case was a decision rendered by a Bench  of three  learned Judges. We are bound by the ratio of the  two aforesaid  decisions. Respectfully following the same, we hold that since a representation made by the detenu to  the   Central  Government  has  been  ignored  and  left unattended for  a period of about four months, the detention

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

cannot  be   justified  as   being  according  to  procedure prescribed by  law. In  view  of  the  stand  taken  by  the respondent-State  in  the  counter-affidavit  filed  on  its behalf, we do not feel inclined, in the circumstances of the case, to  issue a  direction to  the Central  Government  to consider and  dispose of  the representation  of the detenu, now.      We, therefore,  allow this  writ petition and set aside the detention and direct release of the detenu.      These, then,  are the  reasons which  we  now  give  in support of  our order,  dated March  14, 1980,  by which  we allowed Sabir Ahmed’s writ petition and ordered the detenu’s release. S.R.                                       Petition allowed. 746