Delhi High Court
Shakil Ahmed Ansari vs Union Of India on 7 May, 1996
Equivalent citations: 1996IIAD(DELHI)613, 1996CRILJ4345, 63(1996)DLT274, 1996(38)DRJ385
JUDGMENT Anil Dev Singh, J.
(1) The petitioner challenges the order of his detention dated May 10, 1995, passed by the Joint Secretary, Government of India, under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the Cofeposa Act'). The facts giving rise to this petition are as under :
(2) On January 31, 1995, one Shri Mohd. Shahnawaz was apprehended by the police authorities at Sikar. He was found to be carrying Rs. 8.18 lakhs in Indian currency. On being questioned by the police Mohd. Shahnawaz stated that the said amount belonged to the petitioner and was meant for hawala payments. Same day the said amount was seized under section 38 of the foreign Exchange Regulation Act, 1973, (for short 'the FERA') by Enforcement Officer, Enforcement Directorate, Jaipur, vide panchnama dated January 31, 1995. Shri Mohd. Shahnawaz in his statement of the same date recorded under section 40 of the Fera gave details 'of the activities and involvement of the petitioner in the hawala transactions. He stated that the said amount was to be paid to certain persons as per the instructions of the petitioner. The slip on which instructions were given by the petitioner was produced by Mohd. Shahnawaz. He also stated that the petitioner used to give him money along with names and addresses of the persons to whom hawala payments were to be made, and he used to make the payments as per his directions. It was also said that the petitioner and his brother-in-law Shri Riyaz Ahmed were equal partners in the hawala business, and while Shri Riyaz Ahmed used to collect money in Saudi Arabia from the Indians working there, the petitioner used to distribute the same to different persons in India through him. Pursuant to the statement of Mohd. Shahnawaz, the residential premises of the petitioner, situate at C-184/27B, Chauhan Banger, Gali No.4, New Seelampur, Delhi, were searched under section 37 of the Fera by the officers of the Enforcement Directorate on February 2, 1995, resulting in recovery and seizure of documents detailed in the panchnama dated February 2, 1995. While the search of the residential premises of the petitioner was in progress one Mohd. Gulfam entered the said premises. His personal search resulted in recovery and seizure of a slip pad as detailed in the panchnama dated February 2, 1995. Shri Mohd. Gulfam in his statement dated February 2, 1995, stated that he started working with his cousin Shri Mohd. Shahnawaz and delivered hawala money to various persons from January 7, 1995 onwards. The slip pad recovered from Mohd. Gulfam contained the names of certain persons to whom hawala money was delivered.
(3) The statement of the petitioner was also recorded under section 40 of the Fera wherein he admitted his involvement and that of his brother-in-law Riyaz Ahmed Ansari in hawala transactions. On February 3, 1995, the petitioner was arrested under section 35 of the Fera by the Enforcement Officer and on February 4, 1995, he was produced before the Additional Chief Metropolitan Magistrate, New Delhi, who remanded him to judicial custody till February 18, 1995. On February 9, 1995, the petitioner filed an application before the Additional Chief Metropolitan Magistrate, New Delhi, for grant of bail. On February 18, 1995, the Enforcement Directorate sought further remand of the petitoner. The Additional Chief Metropolitan Magistrate, New Delhi, by his order dated February 18, 1995, remanded the petitioner to judicial custody till March 4, 1995 which was extended from time to time. Meanwhile, on February 22, 1995, the bail application of the petitioner was also rejected by order of the Additional Chief Metropolitan Magistrate, New Delhi. Subsequently, on April 20, 1995, the petitioner moved a bail application which was granted by the Additional Chief Metropolitan Magistrate, New Delhi, on April 21, 1995, subject to certain conditions. On May 10, 1995, the Joint Secretary, Government of India, specially empowered under section 3(1) of the Cofeposa Act made an order of detention against the petitioner. It is this order of detention which has been challenged by the petitioner before us.
(4) Learned counsel pointed out that the petitioner had made a representation against his detention to the Advisory Board on July 7, 1995. He submitted that the representation was required to be considered not only by the Advisory Board and the Central Government but also by the detaining authority which failed to consider the same resulting in violation of Article 22(5) of the Constitution.
(5) On the other hand, learned counsel for the respondent submitted that since the representation of the petitioner dated July 7, 1995, was considered by the Central Government independently of the opinion of the Advisory Board no further consideration by the detaining authority was necessary. He also contended that a representation of the petitioner dated July 18, 1995, was considered and rejected by the detaining authority, and there was no obligation whatsoever on the part of the detaining authority to have considered the representation dated July 7, 1995, addressed to the Advisory Board. The learned counsel for the petitioner clarifying the position submitted that the representation dated July 7, 1995, addressed to the Advisory Board, contained totally different grounds from the other representation, actually submitted on June 12, 1995 but being referred to by the respondents as the one dated July 18, 1995, and addressed to the detaining.
(6) The question which requires consideration is whether the detaining authority is also required to consider the representation of a detenu addressed to the advisory board independently of the opinion of the latter in addition to the consideration by the appropriate Government. In order to resolve the controversy, it will be necessary to refer to Articles 22(4) and 22(5) of the Constitution. First Article 22(5): This Article reads as follows:- "(5)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."
(7) Article 22(5) of the Constitution fixes a twin obligation on the detaining authority to convey to the detenu as soon as may be the grounds on which the order of preventive detention has been made against him and to offer him the earliest opportunity to make a representation against the order of detention. In other words, Article 22(5) confers a right on the detenu to make a representation against the order of detention and at the same time casts the aforesaid twin obligations on the detaining authority so as to ensure that the detenu is afforded a real and effective right to challenge or object to the order of detention at the earliest possible occasion. As is clear from the reading of Article 22(5) it does not declare the authority to whom the representation is to be made by the detenu. Therefore, the question is which is/are the authority/authorities under Article 22(5) to whom representation can be made against the order of detention. As the aim of the detenu in making the representation is to secure his release from detention, the representation must be made to an authority which can revoke the order of detention. Therefore, under Article 22(5) of the Constitution the detenu has a right to make a representation against the order of detention to the authority which can revoke the same. In other words the power of revocation is to be treated as the criterion for ascertaining the authority to whom representation can be made (for short 'the criterion). It is well settled that the authority which has made the order can always revoke the same. This right is inherent and is comprised in the power to make the order. This power is also recognised by Section 21 of the General Clauses Act. Again Section Ii of the Cofeposa empowers the appropriate Government to revoke the order of detention. Under clause (a) of sub-section (1) of section 11, an order made by an officer specially empowered by the State Government can be revoked by the State Government as well as by the Central Government, and under clause (b) of sub-section (1) an order made by an officer specially empowered by the Central Government, or an order made by a State Government, can be revoked by the Central Government. Applying the criterion a detenu can make a representation against his detention to the detaining authority/empowered officer and the State Government or the Central Government as the case may be.
(8) The next Article which needs to be noticed is Article 22(4). This Article reads as under:- "(4)No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clause (a) and (b) of clause (7).
(9) Thus it is clear that excepting the case covered under Article 22(7) the law providing for preventive detention shall not authorise the detention of a person for a period beyond three months unless an Advisory Board has reported within the period of three months that there is sufficient cause for his detention. There is ample judicial authority for the proposition that the right of the petitioner to make a representation to the Advisory Board at the stage of Section 3 of the Cofeposa springs from Article 22(4) of the Constitution and this Article must be deemed to have been incorporated in Section 8 of the Cofeposa which inter-alia deals with the obligation on the part of the Advisory Board to report to the appropriate Government within 11 weeks of the date of the detention of a detenu about the question whether or not there is sufficient cause for his detention. A further right is conferred on the detenu under section 8(f) of the Cofeposa to have his representation addressed to the Advisory Board considered by the appropriate government independently of the opinion of the Advisory Board.
(10) Thus an analysis of Articles 22(4), 22(5), Section 21 of the General Clauses Act and Section 11 of the Cofeposa shows that detenu can submit a representation against the order of his detention to the Advisory Board, detaining authority and the appropriate Government and authorities are bound to consider the same. There is no formality about the filing of the representation. Even one representation addressed to the Advisory Board calls for consideration by the detaining authority and the appropriate Government as they arc empowered to revoke the detention of the detenu.
(11) In Kamleshkumar Ishwardas Patel v. Union of India and others, , it was held that where the detention order under section 3(1) was issued not by the Central Government or by the State Government, but by an officer specially empowered to pass such an order, the grounds of detention must specifically inform the detenu that he would be entitled to represent against his detention not only to the Advisory Board and the Central Government or the State Government, as the case may be, but also to the empowered officer. The Supreme Court based the decision on the construction of Article 22(5), and also on a combined reading of the said Article, section 11 of the Cofeposa Act and section 21 of the General Clauses Act, 1897. In this regard, the Supreme Court held as follows :-
"ARTICLE 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations arc imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Articles 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority who is empowered by law to revoke the order of detention."
"ARTICLES 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation."
"................If the power of revocation is to be treated as the criterion for ascertaining the authority to whom representation can be made, then the representation against an order of detention made by an officer specially empowered by the State Government can be made to the officer who has made the order as well as to the State Government and the Central Government who arc competent to revoke the order. Similarly, the representation against an order made by the State Government can be made to the State Government as well as to the Central Government and the representation against an order made by an officer specially empowered by the Central Government can be made to the officer who has made the order as well as to the Central Government.
".............HAVINGregard to the provisions of Article 22(5) of the Constitution and the provisions of the Cofeposa Act and the Pit Ndps Act the question posed is thus answered: Where the detention order has been made under Section 3 of the Cofeposa act and the Pit Ndps Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him, to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation."
".....By specially empowering a particular Act and the Pit Ndps act the Central Government or the State Government confers an independent power on the said officer to make an order of detention after arriving at his own satisfaction about the activities of the person sought to be detained. Since the detention of the person detained draws its legal sanction from the order passed by such officer, the officer is the detaining authority in respect of the said person. He continues to be the detaining authority so long as the order of detention remains operative. He ceases to be the detaining authority only when the order of detention ceases to operate. This would be on the expiry of the period of detention as prescribed by law or on the order being revoked by the officer himself or by the authority mentioned in Section 11 of the Cofeposa Act and Section 12 of the Pit Ndps Act. There is nothing in the provisions of these enactments to show that the role of the officer comes to an end after he has made the order of detention and that thereafter he ceases to be the detaining authority and the concerned government which had empowered him assumes the role of the detaining authority. We are unable to construe the provisions of the said enactments as providing for such a limited entrustment of power on the officer who is specially empowered to pass the order. An indication to the contrary is given in Section Ii of the Cofeposa Act and Section 12 of the Pit Ndps Act which preserve the power of such officer to revoke the order that was made by him, this means that the officer does not go out of the picture after he has passed the order of detention. It must, therefore, be held that the officer specially empowered for that purpose continues to the detaining authority and is not displaced by the concerned government after he has made the order of detention. Therefore, by virtue of his being the detaining authority he is required to consider the representation of the person detained against the order of detention."
"..........HAVINGfound that the representation of the person detained was not considered by the officer making the order of detention the High Court was in error in holding that the said failure on the part of the detaining authority to consider and decide the representation is not fatal to the order of detention. We arc, therefore, unable to uphold the answer given by the Full Bench to question No.3 and, in our view, the said question should he answered in the affirmative. On that basis it has to be held that since there was a denial of the Constitutional safeguard provided to the detenu under Article 22(5) of the Constitution on account on the failure on the part of the officer who had made the order of detention to independently consider the representation submitted by the detenu against his detention and to take a decision on the said representation the further detention of the detenu Ishwardas Bechardas Patel is rendered illegal."
(12) Thus, it is clear from the aforesaid observations of the apex Court that the detenu has a right to make a representation against the order of his detention to the Advisory Board, the empowered officer (the detaining authority) and the Central Government or the State Government as the case may be, and the said authorities are under an obligation to decide the same. It is also apparent that the function of the empowered officer/the detaining authority does not come to an end after the making of the order of detention by him and he remains in picture even after he has passed the order of detention. So long as he continues to be the detaining authority he is required to consider the representation of the detenu even though it may have been addressed to the Advisory Board as under Article 22(5) and section 21 of the General Clauses Act he can revoke the order of detention.
(13) In Gracy v. Stale of Kerala, , the Supreme Court held that Article 22(5) imposes a dual obligation of consideration of the detenu's representation by the Advisory Board and by the detaining authority independently of the opinion of the Advisory Board. In this regard it was held as follows :- "IT is being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Art. 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of his obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Art. 22(5) in support of the contention of the learned Solicitor General. The contents of Art. 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Art. 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Art. 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention. "
(14) The Bombay High Court in Suresh Rajkumar Seth v. Union of India and another, 1995 Crl.LJ. 3703, relying on the Gracy's case (supra) and the decision of the Supreme Court in Kamleshkumar Ishwardas Patel case (supra) held that the detaining authority was obliged to consider the representation addressed by a detenu to the Advisory Board even though the Central Government had considered the representation of the detenu independently of the opinion of the Advisory Board. In this context the Bombay High Court held as follows :- "IN the above case the detenu was informed that he had a right to make representation to the detaining authority, Central Government and Central Advisory Board against the detention order. The detenu's case was referred by the Central Government to the Central Advisory Board. During the pendency of the reference before the Advisory Board, the detenu made his representation to the Advisory .Board. The Advisory Board considered the reference relating to the detenu made by the Central Government and also the detenu's representation submitted to it. The Advisory Board gave an opinion that there was sufficient cause to justify his preventive detention. The Central Government then made an order dated 24th April 1990 confirming his detention and directed that the detenu be detained. The Advisory Board had considered the detenu's representation before sending its opinion to the Central Government along with the entire record including the representation submitted by the detenu. The Central Government thereafter made an order of confirmation of arrest of the detenu on the basis of the opinion of the Advisory Board. But there was no independent consideration of the detenu's representation by the Central Government at any time. It was on these facts that the Supreme Court has made the above observations and has found that, that was a case of infraction of the guaranteed right under Art, 22(5) of the Constitution on account of the Central Government's omission, to consider the detenu's representation independent of its consideration by the Advisory Board.
(15) The Supreme Court has found that the power of preventive detention is an extra- ordinary power and hence before interference with personal liberty can be justified, strict compliance of Art. 22(5) is necessary. It has emphasised that Art. 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest in order to offer him the earliest opportunity of making representation against the detention order. Implicit in its obligation is the obligation to consider and decide the representation when made, as expeditiously as possible. The requirement of consideration of the representation by the detaining authority is independent of the requirement of its separate consideration by the Advisory Board. The consideration of the representation by the Advisory Board does not relieve the obligation of the consideration of the representative by the detaining authority. The order of detention is passed by the detaining authority. Hence on a representation being made it is the duty of the detaining authority to consider the same and if the representation is accepted there lies the obligation on the part of the detaining authority to revoke the order of detention. It has further been clarified that merely because the representation is made only to the Advisory Board the same does not relieve the detaining authority from considering the same. The contents of the Art. 22(5) as well as the nature of duty imposed thereby on the detaining authority shows that so long as there is a representation made by the detenu an obligation is cast both on the detaining authority as also on the Advisory Board to consider the same independently. In the case of Smt. Santosh Anand v. Union of India, , a representation was made by the detenu to the Chief Secretary being the detaining authority and the said authority forwarded the same to the Administrator, i.e., the State Government with the endorsement "the representation may be rejected". It was contended that there was non- consideration of the representation and rejection by the detaining authority which resulted in denial of the constitutional safeguard under Art. 22(5) of the Constitution of India. The said contention was accepted by the Supreme Court by observing "IT is thus clear to us that the representation could be said to have been considered by the Chief Secretary at the highest but he did not take the decision to reject the same himself and for that purpose the papers wre submitted to the Administrator who ultimately rejected the same. There is no affidavit filed by the Chief Secretary before us staling that he had rejected the representation. The representation was therefore not rejected by the detaining authority and as such the constitutional safe-guard under Art. 22(5) as interpreted by this Court, cannot be said to have been strictly observed or complied with."
"...........INview of the aforesaid decisions of the Apex Court we have no hesitation in holding that the detaining authority owes an independent obligation to consider the representation of a detenu and non- consideration of the same results in denial of the constitutional safeguards of Article 22(5) of the Constitution of India. We further hold that an endorsement or a noting made by the detaining authority to the effect that the representation may or should be rejected cannot and does not satisfy the requirement of consideration of the representation by the detaining authority so as to fulfilll a the requirement of Article 22(5) of the Constitution of India. In the instant case there has been non-consideration of the representation by the detaining authority as the endorsement made by him docs not amount to his either accepting or rejecting the representation. It does not amount to the detaining authority taking an independent decision on the representation. As a result there has been an infraction of the Constitutional obligation cast by Art. 22(5). This has been rendered the continued detention of the detenu null and void.
(16) As already pointed out and as is also manifest from the aforesaid decisions, the power to revoke the detention in so far as the detaining authority is concerned, flows from Article 22(5) of the Constitution and also from section 21 of the General Clauses Act. The detaining authority being in picture and having the power to revoke the order of detention is under a consitutional mandate to consider the representation of a detenu independently of the opinion of the Advisory Board. This principle would apply with greater force where the representation filed before the Advisory Board was based on the grounds which were not urged in an early representation which was addressed to the detaining authority. We have perused the representation of the petitioner dated July 7, 1995, a copy of which is at pages 53 to 55 of the writ record, and another representation a copy of which is at pages 42 to 49 of the writ record, and we find that the grounds arc not the same. In the representation dated July 7, 1995, the point which has been urged is regarding non-consideration of his earlier representations dated June 12, 1995, and July 3, 1995, as the same were allegedly returned to the petitioner in the first instance on the ground that the copies furnished along with the representations were not sufficient and required corrections to be carried out. In the representation dated July 7, 1995, the petitioner complained that he has been of Derivates of his right to make an effective representation at the earliest possible point of time. In the other representation the petitioner had taken several grounds which arc not mentioned in the representation dated July 7, 1995.
(17) In view of the aforesaid discussion, we hold that the detaining authority was required to consider the representation of the petitioner dated July 7, 1995, and nonconsideration of the same has resulted in violation of Article 22(5) of the Constitution.
(18) Accordingly the petition succeeds and the rule is made absolute. The respondent is directed to release the petitioner forthwith if not required in connection with any other case.