Bombay High Court
Suresh Vadilal Vyas vs The Union Of India (Uoi) And Ors. on 16 January, 1997
Equivalent citations: 1997(2)BOMCR488, 1997 A I H C 2807, (1997) 3 CRIMES 547, (1997) 3 CURCRIR 236, 1997 CRILR(SC MAH GUJ) 520, (1997) 2 BOM CR 488
Author: S.S. Parkar
Bench: S.S. Parkar
JUDGMENT A.V. Savant, J.
1. Heard the learned Counsel.
2. This is a petition by Suresh Vadilal Vyas, who is an employee of the detenu Suresh Dhansiram Agarwal. By Order dated November 20, 1995 issued by 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), the detenu has been detained under section 3(1) of the COFEPOSA Act with a view to preventing him from smuggling goods in future. The period of detention is one year. The order of detention alongwith the grounds was served on the detenu on 17-2-1996.
3. It appears that the officers of the Marine and Preventive Wing of the Customs Preventive Commissionerate, Mumbai, received some information regarding export of textile fabrics wherein large-scale fraud and misuse of the Duty Exemption Entitlement Certificate (D.E.E.C.) Scheme was being committed by mis-declaring the blend/composition of polyester fabrics and inflating the weight of the consignments and fabricating documents to show much higher exports without actually having made the said exports. This was done with a view to availing inflated entitlement of duty-free import of polyester filament yarn. The licences obtained for inflated entitlment of duty-free import of polyester filament yarn were being sold in open market at a premium after obtaining facility and transferability of such licences on the basis of a fraudulent claim of having fulfilled the export obligation of a much higher value than what was actually done.
4. Pursuant to the receipt of such intelligence reports, the officers of the Marine and Preventive Wing of the Customs Commissionerate, Mumbai, searched the premises of M/s Roopmohan Enterprises, who were the Licensed Clearing Agents. No recovery was made from their premises. However, it transpired that one sub-agent viz. Amol Shipping Agency, was found to be operating on the customs house licence of M/s. Roopmohan Enterprises and this Amol Shipping Agency was found to have master-minded the fraud mentioned above. On 28th July, 1995 statement of Mohit Sharma of M/s. Roopmohan Enterprises was recorded. On the same day, the premises of Amol Shipping Agency, a proprietory concern of Ashok Pokharkar, was searched and recovery of various export related documents was made. The residential premises of Ashok Pokharkar were searched on 28th July 1995. Premises of another concern of Ashok Pokharkar viz. Amit Garments were also searched and a large number of documents were taken over. Statements of employees of Amol Shipping Agency were recorded. Ashok Pokharkar's statements were recorded on various dates between 1st August, 1995 and 27th October, 1995. Ashok Pokharkar's brother Vasant Pokharkar was arrested on 30th July, 1995. Ashok was arrested on 3rd August, 1995. Statement of the detenu Suresh Agarwal was recorded on various dates; between 24th August and 9th September, 1995. The detenue was arrested on 26th August, 1995. He applied for bail on the 7th September, 1995, which was granted on the 12th September, 1995. Statements of the employees of the detenu were recorded.
5. On the basis of the above material, the order of detention was issued on November 20, 1995 and, as stated earlier, it was served on the detenu on 17th February , 1996 alongwith the grounds of detention. Various contentions have been raised by Shri Karmali, learned Counsel for the petitioner. But it is not necessary for us to elaborate any of those contentions, excepting the last one which is mentioned at page 30 of the petition, being Ground No. (xi). In short, the said contention relates to non-consideration of representation dated 4th March, 1996 made by the detenu to the detaining authority. A further facet of the said contention raised in ground (xi) is about non-consideration of the further representation dated 14th March, 1996, which was made by the detenu and which was submitted to the Advisory Board when the Board met at Pune on 15th March, 1996. However, in the light of the arguments advanced before us, it is not necessary for us to consider the second limb of the argument that is raised by way of ground (xi) viz. the non-consideration of the further representation dated 14th March, 1996. We would confine ourselves to the contention regarding the failure on the part of the detaining authority to consider the representation dated 4th March, 1996 that was made to the detaining authority viz. Shri K.L. Verma-respondent No. 2, the concerned Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi.
6. Shri Karmali, has invited our attention to the copy of the representation dated 4th March, 1996. It runs into as many as 90 pages, inclusive of annexures. At the top of it, the following title is mentioned :---
"BEFORE SHRI K.L. VERMA, THE JOINT SECRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL ECONOMICS INTELLIGENCE BUREAU, 6TH FLOOR, JANPATH BHAVAN, JANPATH, NEW DELHI.
AND BEFORE THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 6TH FLOOR, "B" WING, JANPATH BHAVAN, JANPATH, NEW DELHI.
AND BEFORE THE HONOURABLE CHAIRMAN AND THE MEMBERS OF THE COFEPOSA CENTRAL ADVISORY BOARD, ROOM NO. 245, 2ND FLOOR, DELHI HIGH COURT BUILDING SHER SHAH ROAD, NEW DELHI.
REPRESENTATION NO. OF 1996
SURESH DHANSIRAM AGARWAL .....PETITIONER
(Detenu)"
7. On page 26 of the said representation, prayer (a) reads as under :---
"5. THE PETITIONER, THEREFORE, PRAYS :---
(a) That this representation be considered by the Detaining Authority under Article 22(5) of the Constitution of India read with section 21 of the General Clauses Act, and the Detaining Authority be pleased to revoke the impugned order of detention and direct that the petitioner be released from detention forthwith and be set at liberty".
8. In the light of the above, the precise contention which has been raised before us is that Shri Verma was the officer specially empowered under section 3(1) of the COFEPOSA Act. He was the detaining authority, though under sub-section (1) of section 3 an order could be made either by the Central Government, or by an officer of the Central Government specially empowered for the said purpose, or by the State Government, or by an officer of the State Government specially empowered for that purpose. The argument is that Shri Verma was an officer specially empowered under sub-section (1) of section 3 of the COFEPOSA Act and he was the detaining authority, who has passed the order of detention. The representation dated 4th March, 1996 was admittedly made to Shri Verma, who was the detaining authority. There is no consideration of the said representation by Shri Verma, and this violates the petitioner's right under Article 22(5) of the Consitution. The contention is that in the scheme of the provisions of Clause (5) of Article 22 it is the detaining authority which has made the order of detention to whom the representation dated 4th March, 1996 was addressed and Shri Verma was required to consider the said representation. Failure to do so would clearly violate Article 22(5), thus, rendering the order of detention illegal.
9. In reply to this contention, affidavit has been filed by Shri Verma, the detaining authority. It is necessary to reproduce the opening part of para 19 of the said affidavit dated 19th August, 1996, which reads as under :---
"19. With reference to paragraph 4, ground (xi) of the petition, it is submitted that first representation dated 4-3-96 from Mrs. A.M.Z. Ansari Advocate on behalf of the detenu which was jointly addressed to the detaining authority, Central Government and the Central Advisory Board was received in the Cofeposa Unit on 7-3-96. Comments of the sponsoring authority were called on the next day i.e. 8-3-96. The sponsoring authority furnished their comments vide letter dated 13-3-96. The case was processed and submitted to the detaining authority i.e. Joint Secretary (Cofeposa) on 19-3-96 (16th and 17th March, 96 were closed holidays being Saturday and Sunday). Joint Secretary (Cofeposa) considered the representation and the comments of the sponsoring authority thereon and recommended to be rejected as being devoid of merits on 20-3-96".
The last sentence in the above quoted portion which we have underlined is very cleverly worded. It says that the "Joint Secretary (COFEPOSA) considered the representation and the comments of the sponsoring authority thereon and recommended to be rejected as being devoid of merits on 20-3-1996". What follows is the averment regarding consideration of the representation dated 4th March, 1996 that was made to the Central Government, with which we are not concerned.
10. Both the learned Counsel frankly stated before us that when this matter was heard by the earlier Bench, a doubt had arisen as to whether the representation dated 4th March, 1996, which was addressed to the detaining authority viz. Shri Verma, was at all considered and rejected by him since the last sentence quoted above only talks of a Joint Secretary recommending its rejection. It was not clear as to whether it was actually rejected. If so, when, and by whom ? In reply to these queries which were put by the earlier Bench, certain correspondence ensued between the Additional Commissioner of Customs, Marine and Preventive Wing, Mumbai, and the detaining authority Shri Verma, at New Delhi. Shri Agarwal for respondents No. 1 and 2 has very fairly placed before us the entire bunch of papers to remove the doubt that was raised by the earlier Bench. From the papers produced before us by Shri Agarwal, it is clear that the representation dated 4th March, 1996 made by the petitioner to the detaining authority Shri Verma was never considered by him, but was considered by another Joint Secretary Shri Sikandar Khan and it was rejected as devoid of any merits by Shri Sikandar Khan on 20th March, 1996. The Memo dated 20th March, 1996 issued by the Under Secretary to the Government of India Shri A.K. Sinha is very carefully worded. It reads as under :---
"F. No. 673/135/95-CUS. VIII Government of India Ministry of Finance Department of Revenue Central Economic Intelligence Bureau
---
New Delhi the 20th of March, 1996 MEMORANDUM With reference to representation dated 4-3-1996 from Mrs. A.M. Ansari, Advocate regarding revocation of detention order passed against Shri Suresh D. Agarwal. Shri Suresh D. Agarwal, is hereby informed that the said representation has been carefully considered by the Joint Secretary, but it is regretted that the same has been rejected.
Sd/-
(A.K. SINHA) UNDER SECRETARY TO THE GOVERNMENT OF INDIA Shri Suresh D. Agarwal, COFEPOSA Detenu, C/o. Superintendent, Central Prison, NASIK."
It will be clear from the above quoted Memorandum dated 20th March, 1996 that it does not mention the name of the officer who considered the said representation, nor does it mention the name of the officer or even the designation of the officer who rejected it. There is no reference to the detaining authority having considered or rejected the said representation. In the light of the above pleadings, what Shri Karmali has urged is the failure to consider the said representation by Shri Verma, who was the detaining authority and which is fatal and renders the detention illegal since the right of the defence under Article 22(5) is violated and hence the order of detention is liable to be set aside.
11. Shri. Agrawal, the learned Counsel on behalf of the contesting respondents, on the other hand contended that Shri Verma had proceeded on a short leave during the period Monday, the 18th March to Friday, 22nd March, 1996. He resumed his duties on Monday, the 25th March, 1996. The representation dated 4th March, 1996, which was addressed to the detaining authority was received in the COFEPOSA Unit on 7th March, 1996. The comments of the sponsoring authority were called on the very next day i.e. 8th March and the sponsoring authority had furnished its comments vide letter dated 13th March, 1996. The case was processed and submitted to the detaining authority i.e. the Joint Secretary, COFEPOSA, on the 19th March, 1996. 16th and 17th March, 1996 were closed holidays, being Saturday and Sunday. It is then stated in the affidavit, which we have reproduced in para 9 above that the Joint Secretary, COFEPOSA, considered the representation and the comments of the sponsoring authority thereon and recommended it to be rejected as being devoid of merits on 20th March, 1996. According to Shri Agrawal, in the very scheme of the provisions of section 3 of the COFEPOSA Act, four different authorities have been contemplated, who can exercise the power of detention, viz. (i) the Central Government, (ii) an officer specially empowered by the Central Government, (iii) the State Government, and (iv) an officer specially empowered by the State Government. Counsel contends that though Shri Verma was on a short casual leave, it was not necessary to wait for Shri Verma's arrival and resuming duties on Monday, the 25th March, 1996. Shri Sikandar Khan, who was also authorised to issue orders of detention, was entitled to consider the said representation dated 4th March, 1996, though he was not the detaining authority in this case and though the representation dated 4th March, 1996 was adressed to Shri Verma as the detaining authority. According to Shri Agrawal, the consideration of the representation dated 4th March, 1996 and its rejection by Shri Sikandar Khan, another Joint Secretary, does not vitiate the order of detention since this would not violate the right of the detenu under Article 22, Clause (5) of the Constitution. We will briefly refer to the authorities cited before us on the rival contentions.
12. In Smt. Pushpa v. Union of India and others, , the Supreme Court considered the question that has been raised before us. There were two representations dated 23rd February, 1979 and 27 March, 1979 made by the detenu, which were dealt with and rejected by the Chief Secretary and it was contended that he was not competent to reject the same since the appropriate Government in that case was the Administration of the Union Territory of Delhi viz. the Lieutenant Governor. In para 8 of the Judgment, the Supreme Court considered the provisions of Clause (5) of Article 22 of the Constitution and observed as under at page 1957 :---
"There is nothing in the scheme of Article 22 or the provisions of the COFEPOSA which requires that the representation ought always to be considered by the appropriate Government notwithstanding the fact that the order of detention has been made by an officer specially empowered in that behalf. Undoubtedly the power to revoke the detention order under section 11 is conferred on the State Government and the Central Government whenever an order of detention is made by an officer of the State Government but that does not imply that the initial representation which a detenu has a right to make after the grounds of detention are furnished to him, must of necessity be made and considered by the State Government. In fact, the representation can and ought to be made to the detaining authority because it is he who has to apply his mind to the facts of the case and it is he who has furnished the grounds of detention on which he has acted and it is he who has to be convinced that the action taken by him is unjustified and requires reconsideration. After all the purposes of a representation is to convince the authority to consider its decision which has resulted in the detention of the detenu. The representation is not in the form of an appeal to the higher authority and, therefore, ipso facto it must go to the State Government. Undoubtedly it would be open to the detenu to make a representation under section 11 requesting either the State Government or the Central Government, as the case may be, to revoke the order of detention. But the initial representation that a detenu has a right to make on receipt of the grounds of detention would ordinarily be addressed to the detaining authority because it is that authority which has taken a decision adverse to the detenu and which has to be persuaded to reconsider the same. Therefore, if the detenu made the representation to the third respondent who had passed the detention order it was open to him to consider the same and after applying his mind to accept or reject the same. The failure to submit the representation addressed to the detaining authority and considered by him to the State Government would not vitiate the detention order".
Relying upon the above ratio, Shri Karmali contended that Shri Verma who was the detaining authority and to whom the representation dated 4th March, 1996 was addressed ought to have considered the same, but in fact it was Shri Sikandar Khan who considered and rejected the said representation.
13. Similar contention was raised in Smt. Santosh Anand v. Union of India and others, . It was held that under Article 22(5), as also under section 11 of the COFEPOSA Act the representation should be considered by the detaining authority, who on consideration thereof, can revoke the detention order. If the representation is rejected by the detaining authority, it is open to the detenu to approach the appropriate Government for revocation of the order. These observations are to be found in para 3 of the Judgment, at page 422 of the Report. In Santosh Anand's case, the order of detention was passed by the Chief Secretary, Delhi Administration, under section 3 of the COFEPOSA Act. Representation made by the detenu was considered by the Chief Secretary, Delhi Administration, but it was rejected by the Administrator of Delhi and not by the Chief Secretary. The Chief Secretary had only made an endorsement on the representation to the effect that the representation may be rejected and below this endorsement made by the Chief Secretary, who was the detaining authority, the Administrator had passed the order that the representation was rejected. This was held to be violative of the detenu's right under Article 22(5) of the Constitution and the order of detention was set aside.
14. In Smt. Madhurika C. Merchant v. K.S. Dilipsinghji and others, 1985 Criminal Law Journal 538, a Division Bench of this Court had occasion to consider the precise contention that has been raised before us by Shri Karmali. In para 6 of the Judgment at page 541 of the Report, this Court observed that there may be situations where consideration of the representation of the detenu by the detaining authority who passed the order becomes impossible for various reasons such as death or retirement of the detaining authority who passed the order at the time when representation is received. Such a situation may arise even when the detaining authority has gone abroad or is seriously ill and it is not possible to dispose of the representation expeditiously. In such a case, it may be permissible for the matter being dealt with by another officer who has been invested with powers under sub-section (1) of section 3. However, this Court came to the conclusion that no such compelling reasons, for representation to be dealt with by another officer, existed in Madhurika Merchant's case. We have already indicated above that Shri Verma had proceeded only on a short casual leave from Monday, the 18th March to Friday, the 22nd March, 1996 and looking to the dates mentioned in para 19 of the affidavit of Shri Verma which we have reproduced in para 9 above, it is not possible for us to hold that any of the exceptional circumstances mentioned in Madhurika Merchant's case existed in the present case so as to permit Shri Sikandar Khan to consider and reject the representation made by the detenu. In Madhurika Merchant's case, the order of detention was made on 1st February, 1984 by Shri K.S. Dilipsinghji, Additional Secretary to the Government of India, Ministry of Finance, in exercise of the powers conferred on him by sub-section (1) of section 3 of the COFEPOSA Act. The representation was made by the detenu on February 29, 1984. Papers were put up before another detaining authority viz. M.V.N. Rao. Like Shri Dilipsinghji, Shri Rao was also a specially empowered officer within the meaning of section 3(1) of the COFEPOSA Act. It was then contended on behalf of the respondent that it was immaterial that the representation addressed to the detaining authority was considered by another detaining authority Shri Rao. This Court referred to the decision in Smt. Pushpa's case and Smt. Santosh Anand's case (supra) and came to the conclusion that if the detaining authority Shri Dilipsinghji had not considered the representation himself, it would amount to abdication of power on the part of the detaining authority to consider and dispose of the said representation. Shri Dilipsinghji was bound to consider and dispose of the said representation and consideration by another officer specially empowered who was also a detaining authority viz. Rao, was no consideration in the eyes of law and the continued detention was held to be illegal. These conclusions are to be found in para 8 of the Judgment at page 542 of the Report.
15. Shri Agrawal on behalf of the first two respondents has invited our attention to two decisions of the Supreme Court. In Smt. Kavita v. The State of Maharashtra and others, , the order of detention was not made by an officer of the State Government specially empowered in that behalf, but it was made by the State Government itself acting through the instrumentality of the Secretary to the Government authorised to so act for the Government under the rules of business. In cases where the order of detention is made by an officer specially empowered under section 3(1) of the COFEPOSA Act, the wording is the one which we have in the present case viz. "WHEREAS, I, K.L. Verma, Joint Secretary to the Government of India, specially empowered under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) am satisfied with respect to the person known as Shri Suresh Dhansiram Agarwal, 28, Ashwamegh Bungalow Satellite Road, Ahmedabad-13 that with a view to preventing him from smuggling goods in future, it is necessary to make the following order : ........"However, in cases where the order is made not by an officer of the State Government specially empowered in that behalf, but by the State Government itself, the wording of the Order is "WHEREAS the Government of Maharashtra is satisfied with respect to the person known as ........". Number of orders were produced before us by both the learned Counsel to illustrate this difference between the wording of the Order, depending upon whether it was made by the officer of the appropriate Government specially empowered in that behalf or by the appropriate Government itself. In Kavita's case, the order of detention was made by the Government of Maharashtra under section 3(1) of the COFEPOSA Act directing the detention of one Sunder Shankardas Devidasani. The representation was made by the detenu to the State Government which was rejected by the State Government. It was in these facts that argument was advanced that whereas the order of detention was made by Shri Samant, Secretary to Government, rejection of the representation was by the concerned Minister of State for Home Affairs Shri Abhaysinh Raje Bhosale. In para 5 of the Judgment, at page 1645 of the Report, the Supreme Court observed that the order of detention was not made by Shri Samant as officer of the State Government specially empowered in that behalf, but it was made by the State Government itself acting through the instrumentality of Shri Samant, Secretary to the Government authorised to so act for the Government under the rules of business. It was in this view of the matter that the contention was rejected by the Supreme Court in Kavita's case.
16. In Smt. Masuma v. State of Maharashtra and another, , similar situation arose. The order of detention was made by the State Government, acting through the instrumentality of Shri P.V. Nayak, Secretary to the Government, who was authorised to so act on behalf of the State Government under the rules of business framed under Article 166 of the Constitution of India. The representation was, however, considered and disposed of by the Minister of State for Home rejecting the same. The Supreme Court observed in para 2 of the Judgment at page 1755 of the Report that the only requirement of Article 22(5) was that the representation of the detenu must be considered by the detaining authority, which in that case was the State Government and the said requirement was clearly satisfied because when the Minister of State for Home considered the representation and rejected it, he was acting for the State Government and consideration and rejection of that representation was by the State. Reliance was also placed on the earlier decision in Kavita's case, as is clear from the observations of the Supreme Court in para 2 of the Judgment in Masuma's case at page 1755 of the Report.
17. An attempt was also made by Shri Agrawal to seek some support from the decision of the Supreme Court in Mst. L.M.S. Ummu Saleema v. B.B. Gujaral and another, A.I.R. 1981 S.C. 1991. In Saleema's case, the detaining authority viz. B.B. Gujaral was not available from 13th to 16th February, 1981 as he had gone abroad. He returned on the 16th and considered the matter on the 19th February, 1981. While observing that in such cases appropriate arrangements may be made for considering the detenu's representation, the Supreme Court came to the conclusion that the delay in considering the representation, which was received by the detaining authority on 13th February, 1981, was satisfactorily explained. We do not think that the ratio of this decision is of any assistance to Shri Agrawal.
18. However, the controversy is now set at rest by the decision of the Constitution Bench of the Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India and others, Judgment Today 1995(3) S.C. 639 : 1995(3) Bom.C.R. 69 (S.C.). The Constitution Bench had occasion to consider the contention in the light of an apparent conflict between some of the decisions of the Supreme Court. The Constitution Bench considered the relevant provisions of law and the decisions which had given rise to some doubt and held that the Supreme Court in, The State of Maharashtra v. Smt. Sushila Mafatlal Shah and others, reported at 1988(4) Bom. C.R. 441 (S.C.) : Judgment Today proceeded on some wrong premise in so far as it laid down that where an order of detention was made by an officer specially empowered for the purpose, the representation against the order of detention was not required to be considered by such officer and it is only to be considered by appropriate Government empowering such officer. These observations are to be found in para 36 of the Judgment at page 656 of the Report, which reads as under :---
"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".
19. However, before coming to the above conclusion, the Supreme Court made it clear in para 34 at page 655 that by specially empowering a particular officer under the COFEPOSA Act the detention of the person detained draws its legal sanction from the order passed by such officer and it is he who is the detaining authority in respect 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. Considering the scheme of the provisions of the COFEPOSA Act, as also the PITNDPS Act, the Supreme Court further observed in para 34 at page 656 that there was 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 a detaining authority. Relying upon section 11 of the COFEPOSA Act, read with section 21 of the General Clauses Act, it was observed that the officer who made the order of detention reserves in him the power to revoke the order that was made by him. This meant that the officer who acted as the detaining authority did not go out of picture after he had passed the order of detention. It was, therefore, concluded in para 34 that the officer specially empowered for that purpose continued to be the detaining authority and was not displaced by the concerned Government after he made the order of detention. In this view of the matter, the officer who was the detaining authority was obliged to consider the representation of the person detained.
20. In para 35 of the Judgment in Kamleshkumar's case, at page 656 the Constitution Bench considered the two decisions, on which Shri Agrawal has placed reliance, viz. (i) Kavita v. State of Maharashtra, ; and (ii) Masuma v. State of Maharashtra, , and the Court observed that the said two decisions did not relate to an order made by an officer specially empowered for the purpose and hence, they did not have a bearing on the question as to whether the representation against the order made by the officer specially empowered for that purpose is required to be considered by such officer. We may reproduce the relevant observations in para 35 at page 656 of the Report which read as under :---
"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 acting 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".
21. We have already indicated earlier that having regard to the wording of the order of detention dated 20-11-1995, it is clear that Shri K.L. Verma, Joint Secretary to the Government of India was specially empowered under section 3(1) of the COFEPOSA Act to pass the order of detention. The very opening sentence of the order of detention, which we have already quoted in para 15 above, makes it very clear and leaves no doubt that it was Shri K.L. Verma, officer specially empowered under section 3(1) of the Act who was satisfied with respect to the detenue that with a view to preventing him from smuggling goods in future it was necessary to detain him. The representation dated 4th March, 1996 was received, as per his own affidavit, in his office on 7th March, 1996. Comments of the sponsoring authority were called on the very next day, 8th March, 1996 and the comments were furnished on 13th March, 1996. Shri Verma was very much available for considering the representation on 13, 14 and 15th March, 1996. 16th and 17th March, 1996 being Saturday and Sunday were closed holidays. It is true that from Monday, the 18th March, to Friday, the 22nd March, 1996, Shri Verma was on short casual leave. There was no application for extention of his leave and Shri Verma resumed his duties on Monday, 25th March, 1996, 23rd and 24th March being Saturday and Sunday were closed holidays. The observations of the Supreme Court in para 7 of the Judgment in Ummu Saleema's case at (supra) clearly show that if the delay is properly explained as a result of the temporary absence of the detaining authority, the courts are not averse to accepting such an explanation. It is an admitted fact that the representation dated 4th March, 1996 was never considered by Shri Verma, nor was it rejected by Shri Verma. Shri Agrawal has, fairly, made available to us the entire notings on the file which leave no dobut whatsoever that the representation dated 4th March, 1996 was never considered by the detaining authority viz. Shri Verma, who was specially empowered under section 3(1) of the Act, but it was considered and rejected by Shri Sikandar Khan on 20th March, 1996. The original notings and the xerox copies thereof made available to us remove the ambiguity in para 19 of the affidavit of Shri Verma which we have reproduced in para 9 above.
22. There is, thus, no doubt in our mind that in the light of the decisions of the Supreme Court in (i) Smt. Pushpa's case and (ii) Smt. Santosh Anand's case (supra) and the decision of the Division Bench of this Court in Smt. Madhurika Merchant's case (supra), the representation dated 4th March, 1996 made by the detenu was required to be considered by Shri K.L. Verma, who was the detaining authority, having been specially empowered under section 3(1) of the COFEPOSA Act and who had passed the order of detention in the present case. As stated earlier, the representation dated 4th March, 1996 was made to Shri Verma. There was a separate representation made to the Central Government and we are not concerned with the question of consideration of the representation addressed to the Central Government. In our view, the ratio of the decisions cited by Shri Agrawal in Smt. Kavita's case (supra) and Smt. Masuma's case (supra) can have no application whatsoever to the facts of the present case.
23. If there were any doubts, the controversy is set at rest in the light of the Constitution Bench decision of the Supreme Court in Kamleshkumar's case and the companion matters reported at Judgment Today 1995(3) S.C. 639. We do not wish to burden this Judgment with the elaborate analysis of the various cases. We have already reproduced the relevant observations of the Constitution Bench in the Judgment in Kamleshkumar's case. That leaves no doubt whatsoever that in the present case the representation dated 4th March, 1996 made by the detenu to the detaining authority Shri K.L. Verma had to be considered by Shri Verma himself and it was not considered by Shri Verma, but was considered and rejected by another Joint Secretary viz. Shri Sikandar Khan. This was, in our view, wholly impermissible in the scheme of Article 22(5) of the Constitution of India.
24. In this view of the matter, the order of detention cannot be sustained. The same is quashed and set aside and the detenu is ordered to be released forthwith, unless he is otherwise required to be detained in some other case. Rule is accordingly made absolute. There will, however, be no order as to costs.
25. Certified copy expedited.