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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: MEERA MOHIDEEN

DATE OF JUDGMENT14/04/1995

BENCH: A.M. AHMADI, CJI, S.C. AGRAWAL S.P. BHARUCHA, K.S. PARIPOORNAN &MRS. SUJATA V. MANOHAR, JJ

ACT:

HEADNOTE:

JUDGMENT: S.C. AGRAWAL, J.: 1.   Leave granted in SLP (Crl.) No. 282/94. 2.When  an  order for preventive detention is passed  by  an officer especially empowered to do so by the Central Govern- ment  or the State Government, is the said officer  required to consider the representation submitted by the detenu? 3.This the common question that arises for consideration  in these  appeals  in  the context  of  orders  for  preventive detention  pased  by officers especially  empowered  by  the Central   Government  under  the  Conservation  of   Foreign Exchange  and Prevention of Smuggling Activities  Act,  1974 (for  short  ’COFEPOSA Act’) and the prevention  of  illicit Traffic  in  Narcotic Drugs & Psychotropic  Substances  Act, 1988 (for short ’PIT NDPS Act’).  There is divergence in the decisions of this Court on this question.  In Amir Shad Khan v.  L.  Hmingliana & Ors., SCC 39, (decided by  a  bench  of three Judges), it has been held that 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 detention needs to be revoked he can  do so. In State of Maharashtra v. Smt.  Sushila Mafatlal Shah & Ors.,  1988 (4) SCC 490, (decided by a bench two Judges),  a different view has been expressed.  It has been held that if an  order  of  detention is made  by  an  officer  specially empowered  by the Central Government or a  State  Government the  representation  of  the  detenue  is  required  to   be considered  only  by  the Central Government  or  the  State Government  and it is not required to be considered  by  the officer who had made the order. 4.   The question posed has to be considered in the light of the provisions relating to preventive detention contained in Article  22  of the Constitution as well as  the  provisions contained in the relevant statutes. 5.The  Constitution,  while permitting  Parliament  and  the State  Legislatures to enact a law providing for  preventive detention,  prescribes certain safeguards in Article 22  for the  protection  for  the persons  so  detained.   One  such protection  is contained in sub-clause (a) of Clause (4)  of Article  22  which  requires  that  no  law  providing   for preventive  detention shall authorities the detention  of  a

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person for a period longer than three months unless an Advi- sory  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 detention.   The other safeguard is contained in clause  (5) of Article 22 which provides as under:               "When  any person is detained in pursuance  of               an  order  made wider any  law  providing  for               Preventive Detention, the authority  providing               the   order   shall,  as  soon  as   may   be,               communicate  to  such person  the  grounds  on               which the order has been made and shall afford               him  the  earliest  opportunity  of  making  a               representation against the order " 6.   This  provision has the same force and sanctity as  any other  provision relating to fundamental rights. (See  State of  Bombay  v. Atma Ram Sridhar Vaidya 1951 SCR 167,  at  p. 186).   Article  22(5)  imposes a  dual  obligation  on  the authority making the order of preventive detention :(i)  to communicate to the person detained 646 as  soon  as  may  be the grounds  on  which  the  order  of detention  has  been  made; and (ii) to  afford  the  person detained the earliest opportunity of making a representation against the order of detention.  Article 22(5) thus proceeds on the basis that the person detained has a right to make  a representation  against  the  order  of  detention  and  the aforementioned two obligations are imposed on the  authority making  the  order of detention with a view to  ensure  that right  of die person detained to make a representation is  a real  eight  and he is able to take steps for redress  of  a wrong  which  he thinks has been committed.   Article  22(5) does  not,  however,  indicate the  authority  to  whom  the representation is to be made.  Since the object and  purpose of  the  representation  that is to be made  by  the  person detained  is to enable him to obtain relief at the  earliest opportunity,  the said representation has to be made to  the authority  which can grant such relief, i.e., the  authority which  can  revoke  the order of detention and  set  him  at liberty.  The authority that has made the order of detention can also revoke it.  This right is inherent in the power  to make  the  order.   It Is recognised by Section  21  of  the General  Clauses Act, 1897 though it does not flow from  it. It  can, therefore, be said that Articles  22(5)  postulates that   the   person  detained  has  a  right   to   make   a representation  against  the order of detention to  the  au- thority   making   the   order.    In   addition,   such   a representation  can  be made to any other authority  who  is empowered by law to revoke the order of detention. 7.   The learned Additional Solicitor General has urged that the representation envisaged by Article 22(5) has to be made to the Advisory Board referred to in Article 22(4) since the only right that has been conferred on the person detained is to  have  the  matter of his  detention  considered  by  the Advisory  Board.  The learned Additional  Solicitor  General drew support from the words "making a representation against the  order"  in  Article  22(5)  for  this  submission   and contended that the use of the word "a" in singular indicates that  only  one  representation  is  to  be  made  and  that representation has to be made to the Advisory Board  because that is the only authority contemplated under the  Constitu- tion which is required to consider such representation.   We are unable to give such a restricted meaning to the words  " making a representation against the order " in Article 22(5)

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which  is in the nature of the fundamental  right  affording protection  to the person detained.  As stated earlier,  the object underlying the right to make a representation that is envisaged by Article 22(5) is to enable the person  detained to obtain immediate relief If the construction placed by the learned Additional Solicitor General is accepted relief  may not be available to the detenu till the matter is considered by  the Advisory Board and that would depend upon  the  time taken by the appropriate Government in referring the  matter to the Advisory Board.  Moreover reference is required to be made to the Advisory Board only in cases where the period of detention is going to be longer then three months and it  is not obligatory to make a reference to the Advisory Board  if the period of detention is less than three months.  In  such a  case the right to make a representation under clause  (5) of  Article 22 would be rendered nugatory.   A  construction which leads to such a result must be eschewed. 8.   We  may, in this context, briefly refer to some of  the decisions of this Court relat- 647 ing  to  consideration of the representation of  the  person detained under Article 22(5). 9.   In Abdul Karim & Ors. v. State of West Bengal, 1969 (3) SCR 479, it was urged on behalf of the State Government that since  the Advisory Board had been constituted  to  consider the  case  of  the  detenues and  to  report  to  the  State Government  whether  there  was  sufficient  cause  for  the detention  there was no obligation on the part of the  State Government  to consider the representation.   Rejecting  the said contention, it was said               "The right of representation under Article  22               is a valuable constitutional right and is  not               a  mere  formality.   It  is,  therefore,  not               possible   to  accept  the  argument  of   the               respondent  that the State Government  is  not               under  a  legal  obligation  to  consider  the               representation  of  the  detenu  or  that  the               representation must be kept in cold storage in               the archives of the Secretariat till the  time               or  occasion  for sending it to  the  Advisory               Board is reached.  If the viewpoint  contended               for   by  the  respondent  is   correct,   the               constitutional right under Article 22(5) would               be  rendered  illusory.  Take for  instance  a               case  of detention of a person on  account  of               mistaken identity.  If the order of  detention               has been made against A and a different person               B  is  arrested  and detained  by  the  police               authorities because of similarity of names  or               some such cause, it cannot be reasonably  said               that the State Government should wait for  the               report of the Advisory Board before  releasing               the wrong person from detention." (page 487) 10.  The decision in Abdul Karim (supra) was  reaffirmed  by the  Constitution  Bench  of  this  Court  in  Pankaj  Kumar Chakrabarty  &  Ors. v. State of West Bengal, 1970  (1)  SCR 543, wherein it was observed:               "It is true that cl. (5) does not in  positive               language provide as to whom the representation               is to be made and by whom, when made, it is to               be considered.  But the expression "as soon as               may be" and "the earliest opportunity" in that               clause  clearly indicate that the grounds  are               to  be  served and the opportunity to  make  a               representation are provided for to enable  the

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             detenu  to  show  that his  detention  is  un-               warranted  and  since no other  authority  who               should   consider   such   representation   is               mentioned   it  can  only  be  the   detaining               authority  to whom it is to be made which  has               to  consider  it.   Though cl.5  does  not  in               express  terms  say  so it  follows  from  its               provisions that it is the detaining  authority               which  has to give to the detenu the  earliest               opportunity  to make a representation  and  to               consider it when so made whether its order  is               wrongful  or contrary to die law enable it  to               detain him." (p.548)                                  (Emphasis supplied) 11. Again in Jayanarayan Sukul v. State of West Bengal, 1970 (3)  SCR 225, decided by the Constitution Bench, this  Court has held:               "Broadly  stated,  four principles are  to  be               followed   in  regard  to  representation   of               detenus.  First, the appropriate authority  is               bound to give an opportunity to the detenu  to               make  a  representation and  to  consider  the               representation  of  the  detenu  as  early  as               possible.  Secondly, the consideration of  the               representation   of   the   detenu   by    the               appropriate authority is entirely  independent               of any action by the Advisory Board  including               the consideration of the representation of the               detenu by the Advisory Board.  Thirdly,  there               should  not  be  any delay in  the  matter  of               consideration.   It is true that no  hard  and               fast  rule can be laid down as to the  measure               of time taken by the appropriate authority for               consideration but it has to be               648               remembered  that  the  Government  has  to  be               vigilant in the governance of the citizens.  A               citizen’s  right raises a correlative duty  of               the   State.    Fourthly,   the    appropriate               Government  is  to exercise  its  opinion  and               judgment  on  the  representation  before  the               sending  the  case  along  with  the  detenu’s               representation to the Advisory Board.  If  the               appropriate Government will release the detenu               the Government will not send the matter to the               Advisory  Board.   If however  the  Government               will  not  release the detenu  the  Government               will  sent  the case along with  the  detenu’s                             representation to the Advisory Board." (p. 232 )               (Emphasis supplied) 12.All  these cases related to orders of detention  made  by the District Magistrate under the Preventive Detention  Act, 1950 which specifically provided (in Section 7(1)) that  the authority making the order of detention shall afford to  the person  detained  the  earliest  opportunity  of  making   a representation   against  the  order  "to  the   appropriate Government" and for the reason there are observations by the Court  that the representation should be considered  by  the "State Government" though the orders of detention were  made by the District Magistrate under Section 3(2) of  Preventive Detention  Act.  Although in these Cases the focus was  only on  the  question  whether  the  representation  should   be considered  by the State Government or the  Advisory  Board, and  the  court  was not required to  consider  whether  the

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detaining authority should also consider the representation, yet  we  find that in Pankaj Kumar Chakrabarty  (supra)  the court has said that the "detaining authority" must  consider the representation when so made.  Similarly, in  Jayanarayan Sukul (supra) the court has used the expression "appropriate authority"  in the first three principles as  distinct  from the  expression "appropriate Government" used in the  fourth principle.  The expression "detaining authority" would  mean the authority which has made the order of detention and  the authority  which has made an order for continuance  of  such detention. 13.In Amir Shad Khan (supra) it has been held               "The  right to make a  representation  against               the  detention  order  thus  flows  from   the               constitutional guarantee enshrined in  Article               22(5)   which  casts  on  obligation  on   the               authority   to  ensure  that  the  detenu   is               afforded  an earliest opportunity to  exercise               that  right, if he so desires.  The  necessity               of casting a dual obligation on the  authority               making the detention order is obviously to               acquaint the detenu of what  had     weighed               withthe  Detaining Authority for  exercising               the extraordinary powers of detention  without               trial conferred by Section 3(1) of the Act and               to give the detenu an opportunity to point out               any  error  in the exercise of that  power  so               that the said authority gets an opportunity to               undo  the  harm  done by it,  if  at  all,  by               correcting the error at the earliest point  of               time.  Once it is realised that Article  22(5)               confers  a right of representation,  the  next               question is to whom must the representation be               made.  The grounds of detention clearly inform               the detenu that he can make a  ,representation               to   the   State   Government,   the   Central               Government  as  well as the  Advisory  Board.,               There can be no doubt that the  representation               must  be made to the authority which  has  the               power  to rescind or revoke the  decision,  if               need be (p.46) 14.Articles  22(5) must, therefore, be construed  to  mean that   the   person  detained  has  a  right   to   make   a representation  again  the order of detention which  can  be made not only to the Advisory Board but also to 649 the  detaining authority, i.e., the authority that has  made the order of detention or the order for continuance of  such detention,  who  is competent to give  immediate  relief  by revoking  the said order as well as to any  other  authority which  is  competent  under  law to  revoke  the  order  for detention  and thereby give relief to the  person  detained. The  right  to  make a representation carries  within  it  a corresponding  obligation on the authority making the  order of  detention to inform the person detained of his right  to make a representation against the order of detention to  the authorities  who  are  required to consider  such  a  repre- sentation. 15.Having  thus  defined the nature of the right to  make  a representation  recognised  by  Article  22(5)  we  may  now proceed  to examine the relevant provisions in the  COFEPOSA Act in PIT NDPS Act. 16.Section  3 of the COFEPOSA Act confers the power to  make orders detaining certain persons and provides as under:               "Section  3.  Power to make  orders  detaining

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             certain persons.-               (1)The  Central  Government  or  the  State               Government  or  any  officer  of  the  Central               Government,  not  below  the  rank  of   Joint               Secretary   to  that   Government,   specially               empowered for the purposes of this section  by               that  Government,  or any officer of  a  State               Government, not below the rank of a  Secretary               to  that Government, specially  empowered  for               the   purposes   of  this  section   by   that               Government may, if satisfied, with respect  to               any person (including a foreigner), that, with               a  view to preventing him from acting  in  any               manner  prejudicial  to  the  conservation  or               augmentation  of  foreign exchange or  with  a               view to prevention him from -               (i)   smuggling goods, or               (ii)  abetting the smuggling of goods, or               (ii)  engaging  in transporting or  concealing               or keeping smuggled goods, or               (iv)  dealing in smuggled goods otherwise than               by  engaging in transporting or concealing  or               keeping smuggled goods,or               (v)   habouring  person engaged  in  smuggling               goods or in abetting the smuggling of goods,               it  is  necessary  so to do,  make  and  order               directing that such person be detained.               Provided  that no order of detention shall  be               made  on any of the grounds specified in  this               sub-section on which an order of detention may               be  made under Section 3 of the Prevention  of               Illicit   Traffic   in  Narcotic   Drugs   and               Psychotropic  Substances  Act, 1988  or  under                             Section  3 of the Jammu and Kashmir  Preventio n               of Illicit Traffic in Narcotic Drugs and  Psy-               chotropic  Substances Ordinance, 1988 (J.&  K.               Ordinance 1 of 1988)               (2)   When  any order of detention is  made  a               State Government or by an officer empowered by               a  State  Government,  the  State   Government               shall, within ten days, forward to the Central               Government a report in respect of the order.               (3)   For the purpose of clause (5) of Article               22 of the Constitution, the Communication to a               person  detained in pursuance of  a  detention               order  of the grounds on which the  order  has               been  made  shall be made as soon  as  may  be               after the detention, but ordinarily not  later               than    five   days,   and   in    exceptional               circumstances  and for reasons to be  recorded               in writing, not later than fifteen days,  from               the date of detention.  " 650 17.Section 11 of the COFEPOSA Act, providing for  revocation of detention orders, is in the following terms :               "  Section  11.  Revocation of  detention  or-               ders.- (1) without prejudice to the provisions               of Section 21 of the General Clauses Act  1897               (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 of a State  Government  by               that  State  Government  or  by  the   Central               Government;

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             (b)notwithstanding  that  the order  has  been               made  by an officer of the Central  Government               or  by  a  State Government,  by  the  Central               Government.               (2)The  revocation of a detention order  shall               not bar the making of another detention  order               under Section 2 against the same person.  " 18.Section  3  of the PIT NDPS Act is on the same  lines  as Section  3 of COFEPOSA Act.  There is slight  difference  in sub-section (1) but sub-sections (2) and (3) are  identical. Section  12  of  the  PIT  NDPS  Act  makes  provision   for revocation  of detention orders and is in the same terms  as Section 11 of the COFEPOSA Act. 19.The  provisions in COFEPOSA Act and PIT NDPS  Act  differ from  those contained in the National Security Act, 1980  as well  as  earlier  preventive detention  laws,  namely,  the Preventive Detention Act, 1950, the Maintenance of  Internal Security Act, 1971 in some respects.  Under sub-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  forth  with report the fact of making the order to the State  Government to which he is subordinate together with he 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 Preventative Detention Act, 1950  and  the Maintenance of Internal Security Act, 1971. COFEPOSA Act and the  PIT NDPS Act do not provide for approval by the  appro- priate  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 making the   order   shall  afford  an  opportunity   to   make   a representation to the appropriate Government. 20.  Under  Section 3 of the COFEPOSA Act and the  PIT  NDPS 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.  In view of Section 21 of the General 651 Clauses  Act  the  authority which has  made  the  order  of detention  would  be  competent to revoke  the  said  order. Section  11  of the COFEPOSA Act and Section 12 of  the  PIT NDPS  Act  provide  for  revocation  of  such  an  order  by authorities  other  than the authority which  has  made  the order.   Under clause (a) of sub-section (1) of  both  these sections an order made by an officer specially empowered  by the State Government can be revoked by the State  Government as well as by the Central Government and under clause (b) of sub-section  (1)  an  order made  by  an  officer  specially empowered by the Central Government or an order made by  the State  Government can be revoked by the Central  Government. This  means  that the Central Government has  the  power  to revoke orders made by -

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             (i)   the State Government;               (ii)  an  officer specially empowered  by  the               State Government; and               (iii) an  officer specially empowered  by  the               Central Government. 22.  Similarly, the State Government has the power to revoke an order made by an officer specially empowered by the State Government.   In  other words an order made by  the  officer specially  empowered by the State Government can be  revoked by   the  State  Government  as  well  as  by  the   Central Government,  an  order made by the State Government  can  be revoked  by the Central Government and an order made by  the officer specially empowered by the Central Government can be revoked  by the Central Government.  The conferment of  this power  on  the Central Government and the  State  Government does not, however, detract from the power that is  available to  the  authority that has made the order of  detention  to revoke it.  The power of revocation that is conferred on the Central  Government and the State Government  under  clauses (a) and (b) of sub-section (1) of Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act is in addition to the power of revocation that is available to the authority  that has  made  the order of detention.  This is  ensued  by  the words "without prejudice to the provisions of Section 21  of the General Clauses Act, 1897 (10 of 97)" in sub-section (1) of both of provisions. 23.  If  the  power of revocation is to be  treated  as  the criterion   for   ascertaining   the   authority   to   whom representation can be made, then the representation  against an order of detention made by an officer specially empowered by  the State Government can be made to the officer who  has made  the order as well as to the State Government  and  the Central  Government who are competent to revoke  the  order. Similarly,  the representation against an order made by  the State Government can be made to the State Government as well as to the Central Government and the representation  against an  order  made  by an officer specially  empowered  by  the Central  Government can be made to the officer who has  made the order as well as to the Central Government. 24.  The learned Additional Solicitor General has,  however, submitted that the officer specially empowered under Section 3 of the COFEPOSA Act and PIT NDPS Act cannot be regarded as the detaining authority and that though the order of  deten- tion  is  made  by the officer specially  empowered  by  the Central Government or by the State Government the  detaining author- 652 ity  is the appropriate Government which has  empowered  the officer  to  make  the  order  and,  therefore,  it  is  the appropriate   Government  alone  which  can   consider   the representation and revoke the same and a representation does not lie to the officer who has made the order of  detention. According  to the learned Additional Solicitor  General  the only  provision regarding revocation of detention orders  is that contained in Section 11 of the COFEPOSA Act and Section 12  of  the PIT NDPS Act and under the said  provisions  the Central  Government and the State Government only have  been empowered to revoke an order of detention.  This  contention fails to give effect to the words "without prejudice to  the provisions  of Section 21 of the General Clauses  Act,  1897 (10  of 1897)" in sub-section (1) of Section 11 of  COFEPOSA Act and Section 12 of PIT NDPS Act.  As pointed out  earlier the  use of these words preserves the power of  the  officer making the order under Section 21 of the General Clauses Act to  revoke the order made by him.  It cannot, therefore,  be

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said  that the conferment of the power of revocation on  the Central Government and the State Government under Section 11 has the effect of depriving the officer making the order  of detention of the power to revoke the order made by him.   If that  is so the officer who has made the order of  detention is  competent  to consider the representation  made  by  the person detained against the order of detention made by  such officer. 25.  We may, at this, take note of some of the decisions  of this  Court  which  have a bearing  on  the  question  under consideration. 26. In Ibrahim Bachu Bafan v. State of Gujarat Ors. (supra), this Court, while construing the provisions of Section 11 of the COFEPOSA Act, has held :               "The   words   "without   prejudice   to   the               provisions  of  Section  21  of  the   General               Clauses Act 1897" used in Section 11(1) of the               Act   give  expression  to   the   legislative               intention  that without affecting  that  right               which  the authority making the  order  enjoys               under  Section 21 of the General Clauses  Act,               an order of detention is also available to  be               revoked  or modified by authorities  names  in               clauses  (a) and (b) of Section 11 (1) of  the               Act.   Power conferred under Clauses  (a)  and               (b) of Section 11 (1) of the Act could not  be               exercised  by  the  named  authorities   under               Section 21 of the General Clauses Act as these               authorities  on  whom  such  power  has   been               conferred  under  the Act are  different  from               those   who  made  the   orders.    Therefore,               conferment  of  such power  was  necessary  as               Parliament  rightly found that Section  21  of               General  Clauses Act was not adequate to  meet               the  situation.  Thus, while not affecting  in               any manner and expressly preserving the  power               under Section 21 of the General Clauses Act of               the original authority making the order, power               to revoke or modify has been conferred on  the               named authorities. (p. 28) 27.In Amir Shad Khan (supra) the majority view has been thus expressed :               "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               detention order needs to be revoked he can  do               so  by  virtue of Section 21  of  the  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 repre-               653               sentation  from  the detenu or  otherwise,  it               would be entitled to do so wider Section 21 of               the  General  Clauses Act but if  the  Central               Government  desires to revoke an order  passed               by the State Government or its officers 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."

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             (p.   49) 28.In  Smt.   Sushila  Mafatlal Shah (supra)  the  order  of detention was passed under Section 3 of the COFEPOSA Act  by Shri.   D.N. Capoor, Officer on Special Duty and  Ex-officio Secretary to the Government of Maharashtra, Home Department, as  the  officer specially empowered by  the  Government  of Maharashtra  under  Section 3 of the COFEPOSA Act.   It  was communicated  to  the detenu that he had a right to  make  a representation  to  the  State Government  as  also  to  the Government  of India against the order of detention  but  it was  not communicated to the detenu that he had a  right  to make a representation to the detaining authority himself  It was contended that this has resulted in denial of the  right to  make  a representation under Article  22(5).   The  said contention  was  negatived  by  this  Court  (A.P.  Sen  and Natarajan,  JJ).  After referring to the decisions  of  this Court  in  Abdul Karim (supra), Jayanarayan  Sukul  (supra), Haradhan Saha v. State, of West Bengal, 1975 (3) SCC 198 and John  Martin v. State of West Bengal, 1975 (3) SCC  836,  it was  held that "on the plain language of Article  22(5)  the said  Article  does not provide material for the  detenu  to contend  that  in  addition  to his right  to  make  a  rep- resentation   to  the  State  Government  and  the   Central Government,  he has a further right under Article  22(5)  to make a representation to D.N. Capoor himself as he had  made the  order of detention." (p.498) After taking note  of  the provisions contained in the COFEPOSA Act and after observing that  unlike  in  other  Preventive  Detention  Acts,  e.g., National Security Act, Maintenance of Internal Security Act, Preventive Detention Act, the COFEPOSA Act does not  provide for  approval  by the Government of an  order  of  detention passed  by one of its duly empowered officers,  the  learned Judges  have expressed the view that "an order passed by  an officer  acquires ’deemed approval’ by the  government  from the  time  of its issue and by reason of it  the  Government becomes the detaining authority and thereby constitutionally obligated to consider the representation made by the  detenu with  utmost  expedition. (p. 505) Reliance  has  also  been placed  on the decisions in Kavita v. State of  Maharashtra, 1981  (3) SCC 558 and Smt.  Masuma v. State  of  Maharashtra 1981 (3) SCC 566. 29.The learned Additional Solicitor General has pleaded  for acceptance  of the law laid down in Smt.   Sushila  Mafatlal Shah (supra).  We regret our inability to do so. 30.The  decision  of  Smt.  Sushila  Mafatlal  Shah  (supra) proceeds on two premises : (i) Article 22(5) does not confer a  right to make a representation to the  officer  specially empowered to make the order ; and (11) under the  provisions of  the COFEPOSA Act when the order of detention is made  by the  officer  specially empowered to do  so,  the  detaining authority   is  the  appropriate  Government,  namely,   the Government  which  has empowered the officer,  to  make  the order, since such order acquires 654 ‘deemed  approval’  by the Government from the time  of  its issue. 31.With due respect we find it difficult to agree with  both the premises.  Construing the provisions of Article 22(5) we have  explained  that the right of the persons  detained  to make  a  representation  against  the  order  of   detention comprehends  the right to make such a representation to  the authority  which can grant such relief, i.e., the  authority which  can  revoke  the order of detention and  set  him  at liberty and since the officer who has made the order of  de- tention  is competent to revoke it, the person detained  has

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the  right to make a representation to the officer who  made the order of detention.  The first premises that such  right does  not  flow  from Article  22(5)  cannot  therefore,  be accepted. 32.  The learned Judges, while relying upon the   observations in Abdul Karim (supra) and    the  decisions in  Jayanarayan Sukul (supra), Haradhan Saha (supra) and John Martin (supra) have  failed  to notice that in these cases  the  court  was considering  the matter in the light of the provisions  con- tained  in  Section 7(1) of the  Preventive  Detention  Act, 1950, whereby it was prescribed that the representation  was to be made to the appropriate Government.  The  observations regarding  consideration of the representation by the  State Government  in  the said decisions have,  therefore,  to  be construed  in  the  light  of  the  said  provision  in  the Preventive Detention Act and on that basis it cannot be said that  Article  22(5)  does not  postulate  that  the  person detained  has  no  right to make  a  representation  to  the authority making the order of detention. 33.  The second premise that the Central Government  becomes the  detaining authority since there is deemed  approval  by the  Government of the order made by the  officer  specially empowered  in that regard from the time of its  issue,  runs counter  to the scheme of the COFEPOSA Act and the PIT  NDPS Act  which differs from that of other  preventive  detention laws,  namely,  the National Security Act, 1980,  the  Main- tenance  of Internal Security Act, 1971, and the  Preventive Detention Act, 1950. 34.  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 655 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 PIT NDPS 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  force. All that is required by Section 3(2) of COFEPOSA Act and PIT NDPS  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

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by  die 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 PIT NDPS Act cannot, therefore, affords 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  au- thority  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  PIT NDPS Act that the officer specially  empowered  for the  purpose of making of an order of detention must  forth- with  send to the concerned government the grounds  and  the supporting  material  on  the basis of which  the  order  of detention  has been made.  Nor is it prescribed in the  said enactments  that after the order of detention has been  made by  the  officer specially empowered for  that  purpose  the concerned  government is required to apply its mind  to  the grounds  and the supporting material on the basis  of  which the order of detention was made.  The only circumstance from which inference about deemed approval is sought to be  drawn is that the order is made by the officer specially empowered for  that  purpose  by  the  concerned  government.   Merely because the order of detention has been made by the  officer who has been specially empowered for that purpose would not, in  our opinion, justify the inference that the  said  order acquires  deemed  approval  of the government  that  has  so empowered him, from the date of the issue of the order so as to  make  the said government the detaining  authority.   By specially empowering a particular officer under Section 3(2) of  the  COFEPOSA  Act  and the PIT  NDPS  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 656 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 PIT NDPS 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 ceases to be the  detaining authority  and the concerned government which had  empowered him  assumes  the role of the detaining authority.   We  are unable to construe the provisions of the said enactments  as providing  for  such a limited entrustment of power  on  the

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officer  who is specially empowered to pass the  order.   An indication  to  the contrary is given in Section 11  of  the COFEPOSA  Act  and  Section 12 of the  PIT  NDPS  Act  which preserve the power of such officer to revoke the order  that was  made by him.  This means that the officer does  not  go out  of  the  picture  after he  has  passed  the  order  of detention.   It  must, therefore, be held that  the  officer specially  empowered  for  that  purpose  continues  to  the detaining  authority and is not displaced by  the  concerned government  after  he  has  made  the  order  of  detention. Therefore, by virtue of his being the detaining authority he is  required  to consider the representation of  the  person detained against the order of detention. 35.  In Kavita v. State of Maharashtra (supra) the order  of detention was made by the Government of Maharashtra and  not by  an officer specially empowered by the State  Government. Similarly in Smt. Masuma (supra) it was held that the  order of  detention was not made by P.V. Nayak in  his  individual capacity  as an officer of the State Government but  it  was made by him as representing the State Government and that it was  the  State  Government  which had  made  the  order  of detention action through the instrumentality of P.V.  Nayak, Secretary to Government who was authorised to act for and on behalf of and in the name of the State Government under  the Rules of Business.  The said decisions did not relate to  an order made by an officer specially empowered for the purpose and  do  not  have a bearing on  the  question  whether  the representation against an order made by an officer specially empowered  for that purpose is required to be considered  by such officer. 36.  It  appears  that the decision in Ibrahim  Bachu  Bafan (supra),  a  decision of a bench of  three-Judges,  was  not brought  to the notice of the learned Judges  deciding  Smt. Sushila   Mafatlal   Shah   (supra).    For   the    reasons aforementioned we are of the view that the decision in  Smt. Sushila Mafatlal Shah (supra) in far as it holds that  where an order of detention made by an officer specially empowered for   the  purpose  representation  against  the  order   of detention  is not required to be considered by such  officer and  it  is  only  to  be  considered  by  the   appropriate Government  empowering  such officer does not lay  down  the correct law. 37.  The  learned  Additional  Solicitor  General  has  also placed  reliance on the decision in John Martin v. State  of West  Bengal (supra) wherein the court was dealing  with  an order  of detention made under the Maintenance  of  Internal Security Act, 1971 657 which  contained an express provision in Section  8(1),  for the representation to be made against the detention order to the   appropriate  Government.   The  said   decision   can, therefore,  have  no application to a  detention  under  the COFEPOSA Act and the PIT NDPS Act which do not contain  such a provision. 38.Having  regard to the provisions of Article 22(5) of  the Constitution and the provisions of the COFEPOSA Act and  the PIT NDPS 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  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

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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. 39.The appeals may now be taken up for consideration in  the light  of  the  answer  given  to  the  question  posed  for consideration. Crl.  A. Nos. 764-765 of 1994 40.Crl.A.  Nos. 764-765 of 1994 relate to the  detention  of Ishwardas Bechardas Patel under order dated January 21, 1994 under  Section 3 of the COFEPOSA Act made by  Shri  Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, as the officer  specially empowered  by  the Central Government.  The grounds  of  de- tention  were served on the detenu on February 5, 1994.   On February  21, 1994 the detenu made a representation  to  the officer  who  had made the order of detention  namely,  Shri Mahendra Prasad, Joint Secretary to the Government of India, as  well  as to the Advisory Board.  On March 22,  1994  the detenu  was  informed  that  the  said  representation   was considered  by the Central Government and the same has  been rejected.   The officer who made the order of detention  did not, however, consider the said representation though it was addressed  to him and he forwarded the  said  representation with  his  recommendation  that  the  presentation  may   be rejected.   A  writ petition was filed in  the  Bombay  High Court  by  the appellant who is the son of the  detenu.   By order  dated July 20, 1994 Division Bench of the High  Court referred  the following three questions to the 11 Bench  for consideration:               (1)   Has  the  specially  empowered   officer               under the COFEPOSA Act also an               658               independent  power  to  revoke  the  order  of               detention  in  view  of  Section  11  of   the               COFEPOSA  Act  read  with  Section  1  of  the               General Clauses Act?               (2)Are   observations   in  Amir   Shad   Khan               regarding  power  of revocation  of  specially               empowered  officer under the COFEPOSA Act  not               binding on this Court?               (3)Does  failure to take independent  decision               of  revocation  of order of detention  by  the               specially empowered officer under the COFEPOSA               Act  and merely forwarding the same with  rec-               ommendation to reject, result in noncompliance               with  constitutional safeguard  under  Article               22(5) of the Constitution? 41.  By the judgment of the Full Bench dated August 26, 1994 the  question No. 1 was answered in the affirmative  and  it was  held  that the specially empowered  officer  under  the COFEPOSA  Act has an independent power to revoke in view  of Section  11  of  COFEPOSA Act read with Section  21  of  the General Clauses Act.  Question No.2 was also answered in the

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affirmative  and it was held that the observations  in  Amir Shad Khan (supra) regarding the power of revocation by  such officer  under  the COFEPOSA Act were binding  on  the  High Court.   Question No.3 was answered in the negative  and  it was held that the failure on the part of the officer  making the  order of detention to consider the representation  made by  the  detenu  was of no consequence  because  the  repre- sentation  of  the  detenu was, in fact, in  effect  and  in substance  considered  by the Finance Minister  who  was  an appropriate  authority for the purpose of  consideration  of such  representation.  The matter was thereafter  considered by  the  Division Bench of the High Court and  by  judgement dated September 16/19, 1994 the writ petition was dismissed. These  appeals have been filed against the judgment  of  the Full Bench dated August 26, 1994 as well as the judgment  of the Division Bench dated September 16/19, 1994. 42.  Shri   Ram  Jethmalani,  the  learned  senior   counsel appearing  for  the  appellant,  has  assailed  the  finding recorded  by  the Full Bench on question No.3 and  has  sub- mitted that the failure on the part of the officer who  made the order of detention to consider the representation of the detenu results in denial of the right of the detenu to  make a  representation recognised by Article 22(5) and  the  said denial  renders  the  detention of the  detenu  illegal  and without  the authority of law.  In support of his  aforesaid submission  Shri  Jethmalani  has  placed  reliance  on  the decision  in Smt. Santosh Anand v. Union of India, 1981  (2) SCC  420.  In that case the order of detention was  made  by the  Chief  Secretary, Delhi Administration, acting  as  the specially empowered officer under Section 3 of the  COFEPOSA Act.  A representation was made by the detenu to the detain- ing  authority, namely, the Chief Secretary, and  the  Chief Secretary  forwarded the same to the Administrator with  the endorsement  under  his signature to the  effect  "the  rep- resentation may be rejected" and the said representation was rejected by the Administrator.  It was contended that  there was non-consideration of the representation and rejection by the  detaining  authority which resulted in  denial  of  the constitutional   safeguard  under  Article  22(5)   of   the Constitution.   The  said contention was  accepted  by  this Court and it was observed ; 659               "It  is thus clear to us that the  representa-               tion could be said to have been considered  by               the Chief Secretary at the highest but he  did               not  take  the  decision to  reject  the  same               himself  and for that purpose the papers  were               submitted to the Administrator who  ultimately               rejected  the  same.  There  is  no  affidavit               filed by the Chief Secretary before us stating               that he had rejected the representation.   The               representation was, therefore, not rejected by               the  detaining  authority  and  as  such   the               constitutional safeguard under Article  22(5),               as  interpreted by this Court, cannot be  said               to  have  been strictly observed  or  complied               with."               [p.422] 43.The Full Bench of the Bombay High Court has taken not  of the  decision in Smt. Santosh Anand (supra) but  has  placed reliance  on the later decision of this Court in Sat Pal  v. State  of  Punjab 1982 (1) SCC 12 and Rajkishore  Prasad  v. State of Bihar, 1982 (3) SCC 10, to hold that the Court must look  at  the substance of the matter and not  act  on  mere technicality  and  that  even  though  the  constitutionally

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speaking  a  duty  is cast on  the  detaining  authority  to consider the representation yet if in fact and in effect the appropriate   Government   has   finally   considered    the representation of the detenu it cannot be said that there is contravention of Article 22(5). 44.In  Sat  Pal  v. State of Punjab  (supra)  the  order  of detention  was made by the State Government of Punjab  under Section  3 of the COFEPOSA Act and the detenu had  made  two representations,  one was addressed to the Joint  Secretary, Government  of  Punjab  and the other was  endorsed  to  the Central   Government  through  the  Secretary  Ministry   of Finance,  Department  of  Revenue,  New  Delhi.   Both   the representations   were  forwarded  by  the   Superintendent, Central  Jail  to the Joint Secretary, State  Government  of Punjab with an endorsement that one of them be forwarded  to the  Central Government.  The State Government rejected  the representations  but  there was a delay on the part  of  the State  Government  in forwarding the representation  to  the Central  Government and ultimately the,  Central  Government also rejected the said representation and there was no delay on  the  part of the Central Government in  considering  the representation.  This Court held that there was no denial of making  a representation to the Central Government  and  the delay on the part of the State Government in forwarding  the representation to the Central Government, by itself, was not sufficient  to invalidate the order of detention.   Sat  Pal (supra)  was, therefore, not a case of non-consideration  of the  representation  by  one  of  the  authorities  who  was required to consider the said representation. 45.In Rajkishore Prasad v. State of Bihar (supra) the  order of  detention  was  made by the  District  Magistrate  under Section 3(2) of the National Security Act.  The detenu  made a  representation  to  the  detaining  authority   (District Magistrate)  but in the meantime the case of the detenu  was referred  to the Advisory Board and the  representation  was rejected  by the State Government after the matter had  been considered   by  the  Advisory  Board.   The  Court,   while upholding the contention urged on behalf of the detenu  that constitutionally  speaking a duty is cast on  the  detaining authority  to consider the representation, has  referred  to Section 8(1) of the National Security Act which provides for making  of  representation  against the order,  not  to  the detaining authority but to the appro- 660 priate  Government,  and  has observed that  this  was  done presumably to provide an effective check by the  appropriate Government on the exercise of power by subordinate  officers like the District Magistrate or the Commissioner of  Police. It   was  held  that  if  the  appropriate  Government   has considered  the  representation of the detenu it  cannot  be said  that there is contravention of Article 22(5) or  there is  failure to consider the representation by the  detaining authority.   The  decision  in  Santosh  Anand  (supra)  was noticed  and it was distinguished on the ground  that  under the  National Security Act there is a specific provision  in Section 8 which requires that the detaining authority  shall afford  the  earliest opportunity to make  a  representation against the order not to the detaining authority but to  the appropriate Government. 46.The  decisions in Sat Pal (supra) and  Rajkishore  Prasad (supra) on which the High Court has placed reliance do  not, therefore,  detract from the law laid down in Santosh  Anand (supra).  Having found that the representation of the person detained was not considered by the officer making the  order of detention the High Court was in error in holding that the

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said  failure  on  the part of the  detaining  authority  to consider  and decide the representation is not fatal to  the order of detention.  We are, therefore, unable to uphold the answer given by the Full Bench to question No. 3 and, in our view,  the said question should be answered in the  affirma- tive.  On that basis it has to be held that since there  was a  denial  of the Constitutional safeguard provided  to  the detenu under Article 22(5) of the Constitution on account on the  failure  on the part of the officer who  had  made  the order  of  detention to independently  consider  the  repre- sentation submitted by the detenu against his detention  and to  take a decision on the said representation  the  further detention  of  the  detenu  Ishwardas  Bechardas  Patel   is rendered  illegal.   The appeals, therefore, deserve  to  be allowed. Crl.  A. 850 and 915 of 1994 47.In  both  the appeals the orders of detention  were  made under Section 3 of the PIT NDPS Act by the officer specially empowered  by the Central Government to make such an  order. In  the  grounds of detention the detenu was  only  informed that he can make a representation to the Contra]  Government or the Advisory Board.  The detenu was not informed that  he can  make a representation to the officer who had  made  the order of detention.  As a result the detenu could not make a representation  to  the  officer  who  made  the  order   of detention.   The Madras High Court, by the  judgments  under appeal dated November 18, 1994 and January 17, 1994, allowed the  writ petitions filed by the detenues and has set  aside the  order of detention on the view that the failure on  the part of the detaining authority to inform the detenu that he has  a  right  to make a  representation  to  the  detaining authority  himself  has  resulted  in  denial  of  the  con- stitutional  right  guaranteed under Article  22(5)  of  the Constitution.  In view of our answer to the common  question posed  the said decisions of the Madras High  Court  setting aside the order of detention of the detenues must be  upheld and these appeals are liable to be dismissed. 661 Crl. A.  No. 553/95 [Arising out of SLP (Crl.) No. 282/94] 48.By order dated July 27, 1993 made under Section 3 of  the COFEPOSA Act by Shri Mahendra Prasad, Joint Secretary to the Government  of  India,  an officer who  had  been  specially empowered under Section 3(1) of the COFEPOSA Act  Jayantilal Somchand Shah, the husband of the appellant, was ordered  to be detained.  The writ petition filed by the appellant chal- lenging the said detention was dismissed by the Bombay  High Court  by judgment dated October 27, 1993.  One of the  con- tentions  that  has been urged on behalf  of  the  appellant before  this  Court  was  that  he  had  addressed  a  joint representation dated September 14, 1993 to the detaining au- thority,  the Central Government and the Advisory Board  and the  same was submitted through the  Superintendent,  Bombay Central Prison and that the said representation was rejected by the Central Government and it was not considered and  de- cided independently by the detaining authority himself These facts arc not disputed on behalf of the respondents.   Since the   appellant  had  submitted  a  representation  to   the detaining  authority, namely, the officer who was  specially empowered  to  make  an order of  detention,  and  the  said officer did not consider the representation there has been a denial  of the constitutional safeguard under Article  22(5) of  the  Constitution.   As a result the  detention  of  the appellant  has to he held to be illegal and the said  appeal has to be allowed.

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49.At  this  stage  it becomes necessary to  deal  with  the submission of the learned Additional Solicitor General  that some  of  the  detenues  have  been  indulging  in   illicit smuggling of narcotic drugs and psychotropic substances on a large   scale  and  are  involved  in  other   anti-national activities  which are very harmful to the national  economy. He  has  urged  that  having regard to  the  nature  of  the activities  of  the  detenues  the  cases  do  not   justify interference with the orders of detention made against them. We  are  not unmindful of the harmful  consequences  of  the activities in which the detenues are alleged to be involved. But  while  discharging  our  constitutional  obligation  to enforce  the  fundamental rights of the people,  more  espe- cially  the  right  to personal  liberty,  we  cannot  allow ourselves to be influenced by these considerations.  It  has been  said that history of liberty is the history of  proce- dural  safeguards.  The framers of the  Constitution,  being aware   that   preventive  detention  involves   a   serious encroachment on the right to personal liberty, took care  to incorporate,  in clauses (4) and (5) of Article 22,  certain minimum  safeguards for the protection of persons sought  to be preventively detained.  These safeguards arc required  to be  "jealously  watched and enforced by  the  Court."  Their rigour cannot be modulated on the basis of the nature of the activities  of  a  particular person.   We  would,  in  this context, reiterate what was said earlier by this Court while rejecting a similar submission :               "May  be that the detenu is a  smuggler  whose               tribe   (and  how  their   numbers   increase)               deserves no sympathy since its activities have               paralysed the Indian economy.  But the laws of               Preventive Detention afford only a modicum  of               safeguards to persons detained under them  and               if freedom and liberty are to have any meaning               in our democratic set-up, it is essential that               at  least those safeguards are not  denied  to               the detenues.  "               [See :Rattan Singh v. State of Punjab,]               662               1981 (4) SCC 481 at p. 4881 50.  We  have,  therefore no hesitation  in  rejecting  this contention. 51.In  the  result, Crl.  A. Nos. 850 and 915  of  1994  are dismissed,  Crl.  A. Nos. 764-765 of 1994, Crl.  No.  553/95 (arising  out of SLP (Crl.) No. 282/94) are allowed and  the detenues,  namely, Ishwardas Bechardas Patel [father of  the appellant  in Crl.  A. Nos. 764-765 of 1994]  an  Jayantilal Somchand Shah [husband of the appellant in Crl.  A. No.  553 of  1995 (arising out of SLP (Crl.) No. 282/94] are  ordered to be set free, unless they are required in connection  with any other matter. 664