Bombay High Court
Shri Chandrakant Vithal Dalvi vs Shri R. D. Tyagi And Ors. on 30 September, 1996
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. By means of this petition preferred under Article 226 of the Constitution of India, the petitioner hereinafter referred to as the detenue, has impugned the detention order dated 28th November, 1995 passed by the respondent No.1, the Commissioner of Police for Greater Bombay, detaining him under the National Security Act. The said order along with the grounds of detention was served on the detenue on 29th November, 1995.
2. The prejudicial activities of the detenue necessitating the passing of the detention order are detailed in the grounds of the detention. Since the question raised in the petition by Mr. U.N. Tripathi, learned Counsel for the petitioner, is purely a legal one, we are not adverting to them.
3. Mr. U.N. Tripathi, vehemently urged that on 5th December 1995, the detenue made a representation to the respondent No.1 and the same till date has not been considered by the said respondent. In his contention, this has rendered the detention of the detenue unsustainable in law as his fundamental right conferred by Article 22(5) of the Constitution of India has been violated.
4. There is no quarrel with the proposition that in the fundamental right vested in the detenue by Article 22(5) of The Constitution of India, of making a representation at the earliest oppurtunity against the detention order is also implict a corresponding obligation on the authority to whom the representation is made to dispose off the same at the earliest opportunity. Since the proposition is well-settled, we do not propose referring to any authority.
5. The moot point is as to whether the law provides that a representation could have been made to respondent No.1- The Commissioner of Police, for Greater Bombay. Mr. Tripathi, urged that it could be made by virtue of the ratio laid down in the decision of the Apex Court reported in 1995(3) S.C. page 639 Kamlesh Kumar Ishwardas Patel v.Union of India and others. He contended that the said decision lays down that an authority which has the power to revoke a detention order has also the power to entertain a representation under Articale 22(5) of The Constitution of India. In his contention, the State Government may either make a detention order itself or by virtue of the provisions contained in section(3) of The National Security Act, 1980, it may delegate to the Commissioner of Police or the District Magistrate powers to make a detention order, within their jurisdiction. Mr. Tripathi contends that in case the State Government delegates the power to the Commissioner of Police or the District Magistrate then, during a period of 12 days of the detention order being made by the Commissioner of Police or the District Magistrate, it has to be approved by the State Government under section 3(4) of the said Act and during this period of 12 days or earlier (in case the State Government decided the question of approval earlier), the District Magistrate or The Commissioner of Police will have the power the revoke the order by virtue of the powers vested in him by section 21 of the General Clauses Act, as laid down in 1995 (3) S.C. page 639 (supra).
6. To lend force to his contention, Mr. Tripathi placed reliance on the decision of the Apex Court , Navalashankar Ishwarlal Dave & anr,v. State of Gujrat & ors. In the said decision, the provisions of Gujrat Prevention of Anti Social Activities. Act, (16 of 1985 PASA) came up for consideration before the Apex Court. Under the said Act, by virtue of the provisions contained in section 3(2) the State Government could delegate to the Commissioner of Police or the District Magistrate the powers to detain persons within their jurisdiction but, the detention order had to be approved by the State Government within 12 days. In paragraph 8 of the said decision, the Apex Court held that during this period of 12 days or earlier till such time it came for approvel before the State Government, the detaining authority (The Commissioner of Police/The District Magistrate) by virtue of the powers vested in him by section 21 of the General Causes Act, had the power to revoke or rescind the order. On a parity of reasoning. Mr. Tripathi contended that under the National Security Act, also for a period of 12 days from the date of order or earlier, if the detention order came for approval before the State Government, the Commissioner of Police/The District Magistrate would have the power to revoke the order.
7. We have given our anxious consideration to the submission canvassed by Mr.Tripathi. We have also heard Mr.Rajiv Patil, Additional Public Prosecutor for the respondents, who has strenuously urged that the said contention of Mr. Tripathi is not legally tenable. We are inclined to agree with Mr. Patil.
8. In Kamleshkumar Ishwardas Patel's case, (supra) the controversy before the Apex Court was whether a representation could be made to the officer specially empowered to issue a detention order under the COPEPOSA Act and PIT NDPS Act. In paragraph 34, the Apex Court held that under the said Acts, the very moment an order was made by an Officer specially empowered to make it, it became operative and it did not require the approval of the State Government or the Central Government. It also held that it was implicit that such an Officer had the power to revoke the detention order by virtue of the provisions contained in section 21 of the General Clauses Act, and since it had the power to revoke a detention order, it was also implicit that it had the power to consider a representation against the said detention order.
In the said decision, Their Lordships expressly distinguished the provisions contained in PIT NDPS Act and the COFEPOSA Act with those contained in the National Security Act, 1980. Their Lordships observed that under the National Security Act by virtue of the provisions contained in section 3(4) of the Act unless the detention order made by an authority subordinate to the State Government was approved by the State Government within twelve days the orders would die a natural death. They further held that this was the reason as to why section 8(1) of the said Act envisaged that a representation should be made against the detention order to the State Government.
9. Mr. Rajiv Patil cited before us the decision of the Apex Court reported in 1994 Criminal Law Journal page 2095 :1995(2) Bom.C.R. (S.C.) 22 Amin Mohammed Qureshi v. Commissioner of Police, wherein in paragraph 3 the Apex Court considered the submission viz. that the detaining authority did not specifically mention in the grounds that the detenue had also a right to make a representation to it besides making such representations to the Central Government and the State Government. In connection with the said submission, it also considered the decision of the Apex Court in Amir Shad Khan v. L. Uminghana, . Repudiating the said submissions, Their Lordships observed that the said authority pertained to a case under COFEPOSA Act wherein unlike the National Security Act, there was no provision regarding the approval of the State Government within 12 days in respect of the detention order.
10. In our view, the decisions (supra) and 1994 Cr.L.J.2095 (supra) squarely make it explicit that under the National Security Act, the power to revoke the detention order is vested with the State Government and not with the detaining authority subordinate to it i.e. the Commissioner of Police or the District Magistrate.
11. Mr.Tripathi vehemently contended that in neither of the above decisions, the Apex Court has considered the question as to whether within a period of 12 days of the issuing of a detention order the Commissioner of Police or the District Magistrate would have the power to revoke the detention order. He urged that the point agitated by him is not covered by them. In his contention, within twelve days, representation can be made to the Commissioner of Police or the District Magistrate. It would be presumptuous on our part to hold that when the Apex Court decided cases (supra) and 1994 Cr.L.J. pg. 2095 (supra) it was oblivious to the question whether the Commissioner of Police or the District Magistrate could have revoked the detention within 12 days of its being issued. Accordingly, we are not impressed with this submission of Mr. Tripathi.
12. It may be that on a parity of reasoning the decision of the Apex Court,in Navalashankar Ishwarlal Dave & anr. v. State of Gujrat & ors., supports the contention of Mr. Tripathi but, we are not inclined to accept it, because it was not rendered in a case under the National Security Act and the ones rendered by the Apex Court and reported in J.T. 1995(3) page 639 (supra) and 1994 Cr.L.J. page 2095 (supra) have directly laid down that the representation under section 8(1) of the National Security Act would lie to the State Government.
13. Pursuant to the above discussion, in our judgment, the Commissioner of Police, respondent No.1 had no authority to revoke the detention order and consequently no representation could be made to him in law. And that being so, respondent No. 1 was under no obligation to consider the representation dated 5th December, 1995 made by the detenue to him.
14. For the aforesaid reasons, we find no merit in this petition and dismiss the same. Rule issued earlier is discharged.
Before parting with this order, we would be failing in our fairness if we do not mention that with great skill and tenacity, both Mr. Tripathi and Mr. Rajiv Patil have argued this brief. Their assistance in no small measure has helped us in disposing off the matter.
Issuance of certified copy is expedited.