- (1.) ):- Special leave granted.
(2.) The events leading to the filing of these two appeals, briefly stated, are that on the afternoon of March 25, 1990, the officers of the Directorate of Revenue Intelligence being in possession of information intercepted a motor car at about 3.45 p.m., driven by the appellant Amir Shad Khan with the appellant Aziz Ahmad Khan as his companion. On search of the vehicle 1400 gold bars were recovered. The statements of the two appellants were recorded and thereafter they were formally arrested on March 28, 1990 and produced before the Chief Metropolitan Magistrate, Bombay. The Chief Metropolitan Magistrate granted remand. While the matter was under investigation a proposal was made to the first respondent-Secretary (Preventive Detention), Government of Maharashtra for invoking the powers conferred on him by Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called'the Act). On the very next day after the receipt of the proposal the first respondent passed the impugned orders of detention against the two appellants. These orders were passed under sub-section (1) of Section 3 of the Act with a view to preventing the appellants from smuggling goods and engaging in transporting, keeping and concealing the same. After these detention orders were passed on April 24, 1990 they were served on the appellants along with the grounds of detention and basic documents on which reliance was placed. By clauses (iii), (iv) and (v) of paragraph 43 of the grounds of detention the appellants were informed that they had a right to make a representation to (i) the State Government; (ii) the Central Government; and (iii) the Advisory Board against the detention orders, if they so desired. It was further stated that the representation to the State Government should be addressed to the Minister of State for Home, Mantralaya, Bombay. They were informed that to facilitate expeditious consideration thereof the Superintendent of Jails may be requested to forward the same to the detaining authority so that the Home Department can put up the case to the Minister for consideration. It was further stated that the representation to the Central Government may be addressed to the Secretary, Government of India, Ministry of Finance (Department of Revenue), New Delhi through the Superintendent of Jail. In the case of the Advisory Board the appellants were informed that the representation may be addressed to the Chairman, Advisory Board constituted under the Act and may be forwarded through the Superintendent of jail. On the basis of this advice contained in the grounds of detention the appellants preferred a representation addressed to the Detaining Authority and forwarded it through the Superintendent of Jail, Arthur Road Central Prison, Bombay. It is not necessary to state the various grounds made out in the representation for the revocation of the detention orders but it would suffice to reproduce the last paragraph of the representation. That paragraph reads as under: "I would also like to request you that the copies of these representations be sent to the State and Central Government for their kind consideration in view of the above facts so as to revoke and/ or set aside my order of detention and order my release forthwith". It is not disputed that the representation was considered and rejected by the State Government. It was, however, not forwarded to the Central Government and hence the Central Government had no occasion to consider the representation of the appellants for the revocation of the detention orders. As the detention orders were not revoked the appellants preferred separate habeas corpus writ petitions which were numbered Criminal Writ Petitions Nos. 530-31 of 1991 in the High Court of Bombay under Article 226 of the Constitution. The High Court on a detailed consideration of the various contentions raised by. the appellants dismissed both the writ petitions. On the question whether the detention orders were vitiated as the Detaining Authority as well as the State Government had failed to forward their representations to the Central Government, the High Court answered in the negative for the reason that the detenus who had failed to follow the clear and specific instructions given in the grounds of detention regarding the manner and mode of address to various authorities could not be allowed to reap the benefit of their own default. On the question whether the fundamental right guaranteed by Article 22(5) of the Constitution was violated, the High Court observed as under: ' "So far we have not come across any authority of this Court or of the Supreme Court wherein it has been ruled that despite this express communication to the detenu, if the detenu makes any representation, the Detaining Authority is under obligation under Article 22(5) of the Constitution to take out xerox copies of the same and forward to the State Government or the Central Government. We are afraid, we cannot infer such obligation on the Detaining Authority or the State Government under Article 22(5) of the Constitution. But, however, it is advisable that upon receipt of such representation from the detenu, the Detaining Authority may immediately inform the detenu about the procedure that he has to follow in forwarding representations to the State Government, the Central Government or the Advisory Board against the order of detention." It is this view of the High Court which was vehemently challenged before us by learned counsel for the appellants. In support of his contention counsel placed strong reliance on four decisions of this Court reported in (i) Razia Umar Bakshi v. Union of India, (1980) 3 SCR 1398 : (AIR 1980 SC 1751), (ii) Rattan Singh v. State of Punjab, (1981) 4 SCC 481: (AIR 1982 SC 1), (iii) Sat Pal v. State of Punjab, (1982) 1 SCC 12: (AIR 1981 SC 2230), and (iv) Smt. Gracy v. State of Kerala, (1991) 1 JT (SC) 371: (AIR 1991 SC 1090). On the other hand counsel for the State Government as well as the Central Government supported the view taken by the High Court and contended that the appellants cannot make a grievance if they have despite a clear direction in the grounds of detention chosen to deviate therefrom. Once the procedure established by law is followed by the respondents the failure on the part of the Detaining Authority or the State Government to accede to the request made by the appellants in the last paragraph of their representation to take out copies thereof and forward the same to the Central Government cannot vitiate the detention order. It was further pointed out that a subsequent representation dated June 5, 1990 made to the Central Government was considered with despatch and was rejected on June 12, 1990. We may at this stage state that we are not concerned with the subsequent representation. The point which we have been called upon to consider is whether failure on the part of the Detaining Authority as well as the State Government to accede to the request of the appellants to take out copies of the representations and forward the same to the Central Government for consideration has resulted in violation of their constitutional/ statutory right to have their representation considered by the Central Government, and if yes, whether the detention orders are liable to be quashed on that ground.
(3.) The law of preventive detention is harshto the person detained and, therefore, there can be no doubt that it must be strictly construed. Article 22 (3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of clauses (1) and (2) of the said Article. Clause.(4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of Article 22 reads as under: "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." This clause casts a dual obligation on the Detaining Authority, namely, (i) to cornmunicate to the detenu the grounds on which the detention order has been made; and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly violate the constitutional guarantee afforded to the detenu by clause (5) of Article 22 of the Constitution. lt is by virtue of this right conferred on the detenu that the Detaining Authority considers it a duty to inform the appellant-detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the constitutional guarantee enshrined in Article 22(5) which casts an 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 with the 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. Our search for the authority must, therefore, take us to the statute since the answer cannot be found from Article 22 (5) of the Constitution read in isolation. As pointed out earlier that clause casts an obligation on the authority making the detention order to afford to the detenu an earliest opportunity to make a representation against the detention order. If we are to go by the statement in the grounds of detention our search for that authority would end since the grounds of detention themselves state the authorities to which the representation must be made. The question must be answered in the context of the relevant provisions of the law. Now as stated earlier by clause (5) of Article 22 a dual obligation is cast on the authority making the detention order one of which is to afford to the detenu an earliest opportunity of making a representation against the order which obligation has been met by informing the detenu in the grounds of detention to whom his representation should be addressed. But the authority to which the representation is addressed must have statutory backing. In order to trace the source for the statutory backing it would be advantageous to notice the scheme of the Act providing for preventive detention. Section 2(b) defines a detention order to mean an order made under Section 3. Sub-section (1) of Section 3 empowers the Central Government or the State Government, or any officer of the Central Government, not below the" rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Govemment 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, to make an order of detention with respect to any person 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 preventing him from doing any one of the five prejudicial acts enumerated thereunder. Sub-section (2) of that section provides that when any order of detention is made by 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. It is evident from this provision that whenever a detention order is made by the State Government or its officer specially empowered for that purpose an obligation is cast on the State Government to forward a report to the Central Government in respect of that order within ten days. The purpose of this provision is clearly to enable the Central Government to keep an eye on the exercise of power under Section 3(1) by the State Government or its officer. Then comes subsection (3) which reads as under: "For the purposes 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." This provision is clearly intended to meet the obligation cast by Article 22 (5) that the grounds of detention shall be communicated 'as soon as may be'. The legislation has, therefore, fixed the outer limit within which the grounds of detention must be communicated to the detenu. Thus the first part of the obligation cast by Art. 22(5) is met by S. 3(3) of the Act. S. 8 provides for the Constitution of Advisory Boards. This section is clearly to meet the obligation of sub-clause (a) of clause 4 and sub-clause (c) of clause 7 of Article 22 of the Constitution. Section 8(f) which has some relevance provides that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith. This provision clearly obliges the appropriate Government to order revocation of the detention order if the Advisory Board reports want of sufficient cause for detention of that person. Then comes Section 11 which reads as under: "Revocation of detention orders- (1) Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897, 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 : (b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.". Sub-section (2) is not relevant for our purpose. It is obvious from a plain reading of the two clauses of sub-section (1) of Section 11 that where an order is made by an officer of the State Government, the State Government as well as the Central Government are empowered to revoke the detention order. Where, however, the detention order is passed by an officer of the Central Government or a State Government, the Central Government is empowered to revoke the detention order. Now this provision is clearly without prejudice to Section 21 of the General Clauses .Act which lays down that where by any Central Act a power to issue orders is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to rescind any order so issued. Plainly the authority which has passed the order under any Central Act is empowered by this provision to rescind the order in like manner. This provision when read in the context of Section 11 of the Act makes it clear that the power to rescind conferred on the authority making the detention order by Section 21 of the General Clauses Act is saved and is not taken away. Under Section 11 an officer of the State Government or that of the Central Government specially empowered under Seetion 3(1) of the Act to make a detention order is not conferred the power to revoke it; that lyower for those officers has to be traced to isection 21 of the General Clauses Act. Therefore, where an officer of the State Government or the Central Government has passed any detention order and on receipt of a representation he is convinced that the 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 representation from the detenu or otherwise it would be entitled to do so under Section 21 of the General Clauses Act but if the Central Government desires to revoke any order passed by the State Government or its officer it can do so only under clause (b) of Section 11(1) of the Act and not under Section 21 of the General Clauses Act. This clarifies why the power under Section 11 is conferred without prejudice to the provisions of Section 21 of the General Clauses Act. Thus on a conjoint reading of Section 21 of the General Clauses Act and Section 11 of the Act it becomes clear that the power of revocation can be exercised by three authorities, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government. The power of revocation conferred by Section 8(f) on the appropriate Government is clearly independent of this power. It is thus clear that Section 8(f) of the Act satisfies the requirement of Article 22(4) whereas Section 11 of the Act satisfies the requirement of the latter part of Article 22 (5) of the Constitution. The statutory provisions, therefore, when read in the context of the relevant clauses of Article 22, make it clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the right conferred on the detenu to represent against his detention order. Viewed in this perspective it cannot be said that the power conferred by Section 11 of the Act has no relation whatsoever with the constitutional obligation cast by Art. 22(5).;