Bombay High Court
Anand Swaroop Ram Kumar Gupta vs The Union Of India Through The Secretary ... on 24 January, 1997
Equivalent citations: 1998BOMCR(CRI)~, 1997 A I H C 3090
Author: S.S. Parkar
Bench: S.S. Parkar
ORDER A.V. Savant, J.
1. Having heard the learned Counsel for the parties, the application for amendment dated 16th January 1997 is granted. Amendment to be carried out forthwith. By consent, heard all the Counsel on all the contentions including the contentions raised by way of amendment.
2. This petition is by the brother of the detenu Ram Avtar Gupta challenging the order at Exhibit "A" dated 4th March 1996 issued by the 2nd respondent-Shri K.L Verma, Joint Secretary to the Government of India who was specially empowered under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA Act"). Under the said order dated 4th March 1996 the detenu has been ordered to be detained for a period of one year with a view to preventing him from smuggling goods and also from abetting smuggling of goods in future. A few relevant facts necessary for the purpose of this judgment may be stated.
3. Intelligence was received by the officers of the Marine Preventive Wing of the Customs Preventive Commissionerate, Mumbai to the effect that certain exporters of textile fabrics were indulging in large scale fraudulent misuse of the Duty Exemption Entitlement Certificate Scheme (DEEC Scheme) misdeclaring their blend/composition of polyester fabrics and inflating the weight of the consignments. They also used to fabricate the documents to show higher exports without either having made the exports physically or having made exports of a much lesser value and thus receiving Advance Import Licences claiming to have fulfilled the export obligation under the said DEEC Scheme. Consequently, such exporters used to obtain higher and inflated entitlement of duty free imports of polyester filament and yarn. Such Import Licences were then sold in the open market where they were bought at premium. Such licences are transferable. In short, by fraudulent means, licences for duty free import of polyester filament/yarn were being obtained for a much higher amount than what one was entitled to.
4. Pursuant to the above information, the premises of some of the Licence clearing agents were raided. The premises of M/s. Roopmohan Enterprises, M/s. Amol Shipping Agency, Amit Garments were searched. Statements of certain persons claiming to be either the Proprietors or employees of these concerns were recorded during the months July to October 1995. A large number of documents were seized. It is however, not necessary to go into the details thereof in view of the only point that has been urged before us by Shri. Karmali, the learned Counsel for the petitioner.
5. Statements, of detenue Ram Avtar Gupta were recorded in August 1995. The detenu was arrested on 1st September 1995 and he was granted bail on 4th September 1995. The order of detention was issued on 4th March 1996 and was served on the detenue on 13th March 1996 along with the grounds of detention.
6. The only contention raised before us is regarding the non-consideration of the second representation dated 11th April 1996 made by the detenu. The point has been raised in the petition by way of amendment in the following words:
"(xvii) The petitioner says and submits that on 11-4-96, the detenu made a further representation addressed to the Advisory Board, on fresh grounds, wherein it was prayed that the said further representation be considered by the Advisory Board and all other authorities empowered to revoke the impugned order of detention. The petitioner says and submits that it is enjoined upon the detaining authority to disclose to this Hon'ble Court as to whether the aforesaid further representation dated 11-4-96 was considered and decided by the detaining authority and if considered and decided by the detaining authority, whether the decision of the detaining authority was communicated to the detenue and if so on what date. The petitioner says and submits that if the aforesaid further representation was not considered by the detaining authority and if the decision arrived at by the detaining authority was not communicated to the detenue, without any avoidable delay; the detention of the detenu is rendered violative of Article 22(5) of the Constitution."
7. In short, the contention that has been raised before us is that the first representation was made on 2nd April 1996. That was considered by the Detaining Authority, the Centra! Government as also the Advisory Board. The second representation dated 11th April 1996 was submitted to the Advisory Board when it met at New Delhi on 12th April 1996. A copy of the said representation was also handed over to the Sponsoring Authority when the said Authority was present before the Advisory Board at New Delhi on 12th April 1996. Admittedly two new contentions, which were not raised in the first representation dated 2nd April 1996, were raised in the second representation dated 11th April 1996. While it is not necessary for us to consider the merits of the two new contentions raised in the second representation for the purpose of deeding this petition, we may briefly indicate the nature of the new points that were raised in the second representation. Two new points that were raised in the second representation are as under :---
(i) The Detaining Authority had taken into account the statements made by Ashok Pokharkar, the Proprietor of Amol Shipping Agency and Amit Garments. However, the statement of retraction made by Ashok Pokharkar on 3rd August 1995 was not placed before the Detaining Authority nor has a copy thereof been supplied to the detenue. As stated earlier the order of detention is of 4th March 1996.
(ii) Failure to place before the Detaining Authority the statements dated 2nd August 1995 and 18th September 1995 of Saida Nizam Saiyed, employee of Ashok Pokharkar and the consequent failure to furnish copies of the same to the detenu. Similarly the statements of Sumati Shetty recorded on 4th August 1995 and 13th September 1995 as also the statements of Balchandra Vasant Jadhav recorded on 3rd August 1995 and 9th August 1995 have neither been placed before the Detaining Authority nor have the copies thereof been furnished to the detenue. All these persons viz. Saida Nizam Saiyed, Sumati shetty and Balchandra Vasant Jadhav are alleged to be the employees of Ashok Pokharkar.
8. A copy of the second representation dated 11 th April 1996 which was submitted on 12th April 1996 as above has been placed before us. At page 2 in para 3 of the said representation the detenu stated that the said further representation was being made for the kind consideration of the Advisory Board and by the appropriate authorities empowered to revoke the impugned order of detention. The exact averments in para 3 of the second representation are reproduced below :
"3. The petitioner is hereby submitting this further representation, in addition to the earlier representation forwarded by him; for the kind consideration by this Hon'ble Board and by the appropriate authorities empowered to revoke the impugned order of detention."
9. In the prayer clause of the second representation the detenue made a prayer that the further representation should also be considered along with the earlier one by the Advisory Board as also by ail other authorities empowered to revoke impugned order of detention. The exact wording of the prayer in para 7 is as under :
"7(a) That this Further Representation be also considered along with the earlier one by the Honourable Board and all other authorities empowered to revoke the impugned order of detention, and grant appropriate relief to the petitioner in accordance with law".
10. In the affidavit in reply filed by Shri K.L. Verma, Joint Secretary to the Government of India, who was an Officer specially empowered under section 3(1) of the COFEPOSA Act, it has been stated in para 20 that the first representation dated 2nd April 1996 was considered by the Government as also the Detaining Authority and was rejected and a memo to that effect was issued to the detenue. Regarding the second representation dated 11th April 1996 it has been clearly stated that the second representation was handed over to the Assistant Commissioner viz. the Sponsoring Authority during the course of the Advisory Board Meeting held on 12th April 1996 and comments were called on 17th April 1996 which the Sponsoring Authority furnished on 22nd April 1996. The second representation was placed before the Joint Secretary, COFEPOSA; he cleared the same and submitted it to the Additional Secretary who in turn submitted the same to the Secretary, Revenue. The Secretary, Revenue cleared the file on 13th May 1996 and submitted to the Minister of State who was on tour. It was then submitted to the Finance Minister who finally rejected the second representation on 14th May 1996 and the memo intimating the rejection was issued to the detenu on 17th May 1996. It is further stated at the end of para 20 in the affidavit of Shri Verma, the Detaining Authority, that both the representations received from the Advocate of the detenu were considered expeditiously by the Central Government and there was no delay. Since we are resting this decision on the alleged non-consideration of the second representation dated 11th April 1996 on the part of the Detaining Authority we may reproduce the exact averments made in the affidavit of Shri Verma:
".....Another representation dated 11-4-96 also from the Advocate of the Detenue was handed over the Asstt. Commissioner during the course of Advisory Board Meeting held on 12-4-96, comments of the sponsoring authority were called on 17-4-96 which the sponsoring authority furnished vide their letter dated 22-4-96 (through Fax) arid received on 23-4-96. The case was submitted to the Joint Secretary on 1 -5-96 (27th & 28th April, 96 were holidays being Saturday and Sunday). Joint Secretary (COFEPOSA) cleared the file on 2-5-96 and submitted to Addl. Secretary (Amn.) who cleared the file on 7-5-96 (4th & 5th May, 96 were holidays being Saturday and Sunday) and submitted to Secretary (Revenue) who was on tour. Secretary (Revenue) returned from tour on 13-5-96 (11th & 12th May, 96 were holidays being Saturday and Sunday). Secretary (Revenue) cleared the file on 13-5-96 and submitted to Minister of State (Revenue & Expenditure). Minister of State (Revenue & Expenditure) was also on tour. The file was submitted directly to Finance Minister who finally rejected the representation on 14-5-96. A memo intimating the detenu about rejection of his representation was also issued on 17-5-96. Thus both the representations from the Advocate on behalf of the detenu were considered expeditely by the Central Government at all stages and there was no undue or unexplained delay in considering the representations. The allegations made by them in the petition are wrong and therefore denied."
11. It will thus be clear from the above averments that though Shri Verma was the Officer specially empowered under section 3(1) of the COFEPOSA Act to pass the order of detention and had, therefore, passed the order of detention on 4th March 1996, and though he had considered the first representation dated 2nd April 1996 and rejected the same, he has not considered the second representation dated 11th April 1996 and taken decision thereon. The endorsement made on this representation dated 11th April 1996 when it was placed before Shri Verma, the Detaining Authority is as under:
"Noted above.
The representation merits rejection.
Sd/-
K.L. Verma 2nd May 1996."
This is also clear from the documents annexed to the affidavit of Shri V.R. Parmaj, the Assistant Commissioner of Customs and other documents in original to which Shri Agarwal, the learned Counsel appearing for the respondents fairly invited our attention. There is thus no dispute before us that the second representation dated 11th April 1996, though addressed to the Advisory Board, contained a specific statement in para 3 that it should be considered by the appropriate authorities empowered to revoke the impugned order of detention. We have reproduced the exact wording in para 3 of the second representation in para 8 above. We have aiso reproduced the exact prayer made in the prayer clause 7(a) in the second representation as will be evident from para 9 above. The pleadings viz. the affidavits of Shri K.L. Verma, the Detaining Authority and of Shri V.R. Parmaj, the Assistant Commissioner of Customs, who was the sponsoring authority leave no doubt whatsoever that though the second representation dated 11th April 1996 was placed before the Detaining Authority, Shri Verma, he only "Cleared the file" and sent it to the Additional Secretary and then to the Secretary and finally io the Minister of Finance who rejected the representation on 14th May 1996 in respect of which a memo has been sent to the detenu on 17th May 1996.
12. On the above undisputed facts the short contention which arises for our consideration is about the failure on the part of the Detaining Authority viz. Shri K.L. Verma who was specially empowered under section 3(1) of the COFEPOSA Act to consider the second representation dated 11th April 1996. As stated earlier the first representation dated 2nd April 1996 was considered by all the three authorities viz. the Central Government, the Detaining Authority and the Advisory Board. The second representation dated 11th April 1996 was placed before the Detaining Authority Shri K.L. Verma. Apparently he only noted the same but he did not pass an order of rejection thereon but "only cleared the file" or forwarded the matter with his endorsement to the Additional Secretary and finally to the Minister for Finance who rejected the second representation.
13. Admittedly the rejection by the Minister for Finance is the rejection of the second representation dated 11th April 1996 by the Central Government. There is no rejection by the Detaining Authority which contention is advanced by Shri Karmali before us and on which we have heard both the learned Counsel at length. In the light of the above facts we may briefly refer to some of the authorities that were cited before us:
14. In Ram Bali Rajbhar, petitioner v. The State of West Bengal & others, A.I.R. 1978 S.C. 623 the Supreme Court had occasion to consider a similar contention. The second representation dated 27th November 1973 in respect of the detention order dated 1st October 1973 was not considered by the State Government due to the belief that it may be improper to pass any order on it when a habeas corpus petition was pending in the High Court of Calcutta. The first representation was made on 18th October 1973 which was rejected and the second representation was made on the 27th November 1973 when the writ petition was pending. It has beep observed in para 11 of the judgment at page 627 of the report that the State Government can revoke or modify the order of detention if it is satisfied, on new or supervening conditions or (acts coming to light, that a revocation or modification had become necessary. Referring to the scheme of the provisions of Maintenance of Internal Security Act, 1971, the Supreme Court observed in para 12 at page 628 as under :
"Section 10 of the Act only provides for the 1st representation. But, it appears to us that the power under section 14 of the Act, read with section 21 of the General Clauses Act, which is specifically mentioned in section 14 of the Act, could import or imply a power of the State Government to refer a second representation likewise to the Advisory Board, if the State Government so decides in an analogous situation. And, the Advisory Board can then adopt such parts the procedure laid down in section 11 of the Act as could be applied to a second representation. In such a case, the reference would not be under section 10 of the Act but under section 14 of the Act read with the necessary implication of preserving the power of the Government to act as laid down in section 21 of the General Clause Act- In other words, the subsequent reference would result from a necessarily implied power of the Government, to act, so far as possible, in a like manner to the one it has to adopt in confirming or revoking the initial detention order under section 12 of the Act. And, if there is such a power in the Government to refer a subsequent representation on fresh grounds to the Advisory Board for its opinion, there will, we think, be a corresponding implied power and obligation of the Advisory Board to give its opinion in accordance with the procedure prescribed by section 11 of the Act except that its report will necessarily have to be submitted in such cases beyond ten weeks from the date of detention order but within a reasonable time."
In this view of the matter, though the Supreme Court rejected the petitioner's prayer for quashing the order of detention it directed the Government of West Bengal to consider the pending fresh representation in accordance with law.
15. In Samir Chatterjee v. State of West Bengal, a similar situation arose. The first representation was made on 22nd May 1974 which was rejected. The second representation was dated 1st July 1974. In para 14 of the judgment the Supreme Court referred to its earlier judgement in Ram Ball Rajbhar's case (supra) and observed thus at page 1172 :
"14. We also hope that in the case of the petitioner his representation made on 1-7-1974 would be considered by the Government. It has been pointed out by this Court in its decision in W.P. No. 322 of 1974 Ram Bali Rajbhar v. The State of West Bengal, decided on 20-12-1974; that the Government has got the power to place the representation before the Advisory Board and therefore the Advisory Board and therefore we direct the Government of West Bengal to consider and take an early decision on the pending fresh representation of the petitioner in accordance with the requirements of law and justice even as was done in that case. Subject to this direction the petition is dismissed."
16. In Jai Parkash v. District Magistrate, Butandshahar U.P. and others, reported at Judgements Today 1992(2) S.C. 342 the detenu had made representation simply addressed to the "Home Secretary" without further indicating whether it was for the State Government or the Central Government. I was sent by the Superintendent of Jail to the State Government only and not to the Central Government. Sufficient number of copies were given to the Superintendent of Jail. The failure to forward the copy to the Central Government was held to amount to denial of detenu's right to make effective representation and on that ground the order of detention was quashed. This is clear from the observations in para 5 of the judgment at page 343 of the report which reads as under :
"5. The District Magistrate along with the grounds of detention specifically informed the detenue that he has a right to make representation to the State Government and also to the Central Government. The representation sent by the detenue was neither addressed to the State Government nor to the Central Government. He only mentioned "Home Secretary" as the addressee without further indicating whether he meant Home Secretary to the State Government or the Central Government. It is not disputed that the detenu gave nine copies of the representation to the Superintendent Jail for onward submission to the authorities. We are of the view that the Superintendent Jail, in the circumstances of this case, was under an obligation to send one copy of the representation to the Central Government. The Superintendent Jail sent the representation only to the State Government and not to the Central Government. When the detenu gave sufficient number of copies of his representation and left it to the jail authorities to forward the same to the authorities as specified in the grounds of detention, the Superintendent Jail was legally bound to send one copy to the Central Government. We are, therefore, of the view, that the detenu was denied his right to make an effective representation and on that short ground his detention is liable to be quashed."
17. Before the Constitution Bench of the Supreme Court in Kamleshkumar Ishwardas Pate/ etc. appellants v. Union of India & others, 1995(3) Crimes 26 : 1995(3) Bom.C.R. 69, the Additional Solicitor General had contended that in cases of detenues who were indulging in illicit smuggling of narcotic drugs and were involved in other anti-national activities harmful to the national economy, the Court should not lightly interfere with the orders of detention. In reply to this contention in para 27 of the judgment at page 40 of the report, the Constitution Bench observed that it was not unmindful of the harmful consequences of the activities in which the detenues were alleged to be involved. But while discharging the constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, the Court cannot allow itself to be influenced by such considerations. It was further reiterated that the history of liberty is history of procedural safeguards and the framers of the Constitution were aware that the law of preventive detention involved a serious encroachment on the right to personal liberty. It was, therefore, that special care was taken to incorporate Clauses (4) and (5) in Article 22 of the Constitution. The Constitution Bench reiterated the earlier caution sounded in Rattan Singh v. State of Punjab, in the following words :
"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 these safeguards are not denied to the detenues". 18. In Smt. Gracy v. State of Kerala, the Supreme Court was dealing with the question of consideration of first representation. In para 8 of the judgment the Court emphasized the need that even if there was only one representation addressed only to the Central Government and not to the Advisory Board such a situation did not dispense with the requirement of its consideration also by the Advisory Board. It was further observed In para 8 of the judgment at page 1093 and 1094 of the report that any representation of the detenu against the order of his detention has to be considered and decided by the Detaining Authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together Clauses (4) and (5) of Article 22. It was then concluded in para 9 of the judgment at page 1094 that the mode of address either to the Detaining Authority or to the Advisory Board was only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) which was enacted as one of the safeguards provided to the detenu in case of preventive detention. In this view of the matter the Supreme Court allowed the petition and quashed the order of detention.
19. In Smt. K. Aruna Kumari v. Government of Andhra Pradesh and others, the detenue had filed his first representation on 20th May 1987 which was rejected both by the State Government as also the Advisory Board. The second representation was made on behalf of the detenu by his cousin on 5th June 1987. In para 9 of the judgment at page 232 of the report the Supreme Court considered its earlier decision of the Constitution Bench in Haradhan Saha v. State of West Bengal, as also the judgment in Sat Pal v. State of Punjab, and made it clear that the duty to consider the second representation arises only when new and relevant facts and circumstances come to light. The Supreme Court then distinguished the ratio of its decision in the case of State of U.P. v. Zaved Zama Khan, where it was held that there was no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again. We may reproduce the observations in para 9 of the judgment in K. Aruna Kumari's case at page 232 of the report which reads as under :
"9. So far as the second representation filed by Madhava Rao's cousin Lakshmana Rao is concerned, it has, in fact, been disposed of by the Central Government but about 3 months later after its filing. It was argued that section 14 of the Act clothes the authority with the power of revoking the detention order, and such a power carries with it the duty to exercise it whenever and as soon as changed or new factors call for the exercise of that power. Reliance was placed on the observations of this Court at page 786 in Haradhan Saha v. State of West Bengal, and those in para 9 of the judgment in Sat Pal v. State of Punjab, . It is true that such a power coupled with the duty exists but the duty to exercise it arises only where new and relevant facts and circumstances come to light. This was not so here, and as observed in para 13 of the judgment in State of U.P. v. Zaved Zama Khan, , there is no right in favour of the detenu to get his successive representations based on the same ground rejected earlier to be formally disposed of again. In any event no period of limitation is fixed for disposal of an application under section 14 and as we have seen earlier the second representation filed by Lakshamana Rao indeed, was considered and rejected.'
20. We may now refer to some of the High Court decision to which our attention was invited. In Dhiraj Singh Madan v. Union of India and others, 1993 Cri.L.J. 514 the detenu had made successive representations in connection with his detention under the COFEPOSA Act. The first representation was made on 30th May 1991 which was rejected on 20th June 1991. The second representation was made on 10th June 1991 and was rejected on 3rd July 1991 and the third representation was made on 21at September 1991 and was rejected on 24th October 1991. Relying upon the Supreme Court's decision in Zavad Zama Khan's case, (supra) the Delhi High Court came to the conclusion that there was no duty cast upon the Government to consider with due promptitude and expedition the repeated representations made by the petitioner. However in para 13 of the judgment at page 517 of the report it has been observed that if new facts were brought on record and new grounds were alleged then it would amount to fresh representation which has to be considered under Article 22(5) of the Constitution of India. In the facts of Dhiraj Singh Madan's case though the second representation was held to be the repetition of the first representation the delay in considering the third representation was held to be a denial of the right under Article 22(5) and, in the result, the detenu was released.
21. In Bachhraji Biharilal Pitaliya v. District Magistrate, Surat & others, 1994(35)(1) Gujarat Law Reporter 843 a Division Bench of the Gujarat High Court considered the Supreme Court decision in (i) Ram Ball Rajbhar, (ii) Samir Chatterji and (iii) State of U.P. v. Zaved Zama Khan (supra) and observed at page 860 of the report that there was no obligation on the authority to consider successive representation unless "new facts and circumstances were brought to the notice of the authority or unless supervening and subsequent facts calling for revocation of the order of detention were brought to the notice of the authority".
22. In Rajendra Kumar Sharma v. Superintendent, District Jail, Agra, 1985 Cri.L.J. 999 a Division Bench of the Allahabad High Court was called upon to consider similar question in respect of order of detention made under the National Security Act of 1980. In para 27 of the judgment at page 1008 of the report the High Court observed to the effect that the language of section 10 of the National Security Act did not deprive the detenu from making a represenjation subsequent to the reference made by the State Government to the Advisory Board. In para 28 of the judgment the Court further observed that it was not possible to agree with the contention of the Counsel for the State Government that section 10 of the National Security Act only envisaged one representation of the detenu "being placed before the Advisory Board within the time schedule prescribed by it. It was then observed that a supplementary representation made by the detenu was in continuation of his first representation and the State Government was bound to place the same before the Advisory Board. The Court relied upon its earlier unreported judgment referred to in para 28 at page 1008 of the report. The failure to consider the second representation was held to be fatal resulting in the order of detention being set aside.
23. As against the above decisions on which Shri Karmali placed heavy reliance, Shri Agrawal and Smt. Tahilramani on behalf of the respondents invited our attention to the following decisions to contend that in the facts of this case it was not necessary for the Detaining Authority Shri Verma to consider the second representation and take a decision thereon independently of the role played by him in the process of consideration of the second representation by the Central Government and its rejection.
24. State of U.P. v. Zavad Zama Khan, . Reliance was placed by the respondents' Counsel on the observations appearing in para 13 of the judgment at page 1098 of the report as under :
"...In the present case, the detenu was not deprived of the right of making representation to the detaining authority under Article 22(5) of the Constitution read with section 8(1) of the Act. Although the detenu had no right to simultaneously make a representation against the order of detention to the Central Government under Article 22(5) and there was no duty cast on the State Government to forward the same to the Central Government, nevertheless the State Government forwarded the same forthwith. The Central Government duly considered that representation which in effect was nothing but a representation for revocation of the order of detention under section 14 of the Act. That being so it was not obligatory on the part of the Central Government to consider a second representation for revocation under section 14....."
25. Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerela and others, . Our attention was invited by the respondents' Counsel to the caution sounded by the Supreme Court in para 81 of the judgment at page 701 of the report where it has been said that though the power of preventive detention must be exercised very cautiously and not to undermine the fundamental freedoms guaranteed to the people yet these must be looked at from a pragmatic and common sense point of view. It has been further said that the observance of the written law about the procedural safeguards for the protection ot the individual is normally the high duty of the public official but, in all circumstances, not the highest. The law of self-preservation and protection of the country and the national security may claim, in certain circumstances, higher priority.
26. Shri Agrawal also sought to distinguish the ratio of the decisions on which Shri Karmali placed reliance and contend that, in the facts of the present case no duty was cast upon the Detaining Authority to independently consider and decide the second representation dated 11th April 1996. Some support was sought to be drawn by Shri Agrawal from the decision of the Supreme Court in the case of Wand Lal Bajaj v. The State of Punjab and another, .
27. We have already indicated earlier that the second representation contained two distinctly fresh contentions which were not raised in the first representation dated 2nd April 1996. The first representation was considered by the Central Government, the Detaining Authority as also by the Advisory Board. Shri Verma was the Officer specially empowered under section 3(1) of the COFEPOSA Act to pass the order of detention. The second representation dated 11th April 1996 was placed before the Detaining Authority, albeit, in the process of the matter being placed before the Central Government viz. the Finance Minister. At the highest it appears that Shri Verma 'noted' the said representation and recommended its rejection, it is well settled that the representation has to be considered by the Detaining Authority as well and decision taken thereon by the Detaining Authority. In Criminal Writ Petition No. 361 of 1996 decided by us on 16-1-96 we have taken the view that in case of the Detaining Authority being an officer specially empowered under section 3(1) of the COFEPOSA Act to pass the order of detention it is that specially empowered officer who has to consider and take a decision on the said representation. Admittedly that has not been done in the present case.
28. While we are aware of the seriousness of the allegations made against the detenue and the effect of such activities on the economy of the country, we cannot be unmindful of the approach of the Supreme Court in matters of preventive detention. In Smt. Icchu Devi Choraria v. Union of India and others, the Supreme Court was dealing with the question of unreasonable delay in supplying the grounds of detention including the documents relied upon in the said grounds. The Court dealt with the question of the detenues being released as a result of Court's orders at which the Court itself was not very happy. In para 3 of the judgment at pages 1986-87 the Supreme Court has observed as under:
"3.....We may point out straightway that we are not at all happy at the thought that our order may have resulted in setting free a possible smuggler. We are not unmindful of the fact that the COFEPOSA Act has been enacted for the purpose of eradicating the evil of smuggling which is eating into the vitals of the nation like a cancerous growth and eroding the economic stability of the country and when an order is made by the Court releasing a person detained under this Act, it is quite possible that the effect of the order may be to let loose on the society, a smuggler who might in all probability, resume his nefarious activities causing incalculable mischief and harm to the economy of the nation. But at the same time we cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have rightly laid down their lives at its altar in order to secure it, protect it and preserve it. The Constitution has therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the courts have always zealously tried to uphold and enforce these safeguards. Thus Court has also through its judicial pronouncements created various legal but works and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time. It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safeguards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittring down or diluting the safeguards provided by the Constitution and the law. If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be. The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This Court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention."
29. Then in para 5 of the said judgment in Icchu Devi's case (supra) at page 1988 of the report the Supreme Court has further observed as under :
"...This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the Court that it has acted in accordance with law. This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of 'detention or to direct the release of the detenue even though the detention may have been valid till the breach occurred. The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade."
30. As observed earlier, the second representation contained two fresh grounds which have been detailed in para 7 above. As stated by the Supreme Court in the case of Smt. Gracy, (supra), it is immaterial as to whom the representation is addressed. In the present case the second representation was addressed to the Advisory Board. Indisputably a copy ol the second representation was submitted to the sponsoring authority who was present before the Advisory Board. The second representation contained specific averments and prayer requiring the appropriate authorities empowered to revoke the order of detention to consider the said representation. The representation had come to the notice of Shri Verma himself in the process of the matter being considered by the Central Government. However, Shri Verma has not taken any decision on the said representation. Further as observed by the Constitution Bench in Kamleshkumar Ishwardas Patel's case 1995(3) Crimes 26 : 1995(3} Bom.C.R. 69 reiterating the earlier observations in Rattan Singh v. State of Punjab, it may be that detenu may be a smuggler or an economic offender who deserves no sympathy since his activity may paralyse the nation's economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under preventive detention and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that, at least, these safeguards are not denied to the detenues.
31. In our view the observations of the Supreme Court in Zavad Zama Khan's case (supra) are clearly distinguishable in the light of the Constitution Bench decision in Kamleshkumar Ishwardas Patel's case. Similarly the observations of the Supreme Court in Prakash Chandra Mehta's case (supra) cannot be held to be applicable to the facts of the present case. It must be remembered that every observation in a judgment is not the precedent and the binding precedent in a judgment is only its ratio decidendi meaning thereby the rule deductible from application of law to the facts and circumstances of a case. This has been clearly stated by the Supreme Court in Union of India v. Dhanwanti Dew, 1996 A.I.R. S.C.W. 4020. The Supreme Court has ruled at thus page 4024.
"9. Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Hart Kishan Khosla's case, 1993 A.l.R. S.C.W. 105 is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and per se per incuriam. It is not everything said by a Judge white giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contains three basic postulates- (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what i! was is binding, It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi."
32. Keeping in view the above guidelines we are of the view that the ratio of the Supreme Court decided in the cases of (i) Nandalal Bajaj v. The State of Punjab, , (ii) State of U.P. v. Zavad Zama Khan. and (iii) Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & ors., , can have no application to the facts of the present case. In the light of the admitted fact that the second representation dated 11th April 1996 contained two new grounds, in our view it was necessary for Shri Verrna, the specially empowered officer who acted as the Detaining Authority under section 3(1) of the COFEPOSA Act to have considered the said representation and taken decision thereon. Admittedly this has not been done. In this view of the matter, the order of detention results in denial of the right of the detenu to make a representation as guaranteed by Article 22(5) of the Constitution of India.
33. As indicated in para 19 above, in the case of K. Aruna Kumari v. Govt. of A.P., (supra), the Supreme Court has considered its earlier judgments in the cases of (i) Haradhan Saha v. State of West Bengal, and (ii) Zavad Zama Khan, and taken a view that the second representation has to be considered.
34. In the result the order of detention is liable to be set aside. Accordingly the order of detention at Exhibit 'A' dated 4th March 1996 is quashed and set aside. The detenu is ordered to be released forthwith unless he is otherwise required to be detained in any other case.
35. Rule made absolute as above with no order as to costs.
36. Petition allowed.