Gujarat High Court
Hitesh Bhanuprasad Soni And Chatursinh ... vs Union Of India And Ors. on 29 January, 1988
Equivalent citations: [1989]66COMPCAS744(GUJ), (1988)1GLR525(GJ), (1988)1GLR756(GJ)
Author: S.B. Majmudar
Bench: S.B. Majmudar
JUDGMENT Mankad, J.
1. We are called upon to resolve the controversy centring around three questions referred to us by the Division Bench of this court. The questions which have been referred to us arose for consideration before the Division Bench in these two petitions challenging the legality and validity of detention of two persons under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("COFEPOSA" for short). The factual background in which these questions arise for our consideration is as under:
Special Criminal Application No. 240 of 1987 is filed by the son of one Bhanuprasad Parmanand Soni (hereinafter referred to as the "detenu"), who was been detained under sub-section (1) of section 3 of the COFEPOSA. The detention order dated January 20, 1987, was passed by the Additional Chief Secretary to the Government of Gujarat, Home Department ("Detaining Authority" for short) on his being satisfied that with a view to preventing the detenu from engaging himself in keeping smuggled goods, it was necessary to detain the detenu in exercise of the powers conferred under sub-section (1) of section 3 of the COFEPOSA. The order of detention was served on the detenu on January 22, 1987, when he was taken in detention. The detenu was also served with the grounds of detention and the documents on which the detaining authority relied for issuing the order of detention along with the order of detention on January 22, 1987.
2. On September 17, 1986, the Customs officers stationed at Ahmedabad acting on information searched the business premises of the detenu situated on the mezzanine floor of Laxmi Jewellers, Manek Chowk, at Ahmedabad. The detenu was present in his business premises at the time of search. In the course of search, one gold bar with marking indicating foreign origin and weighing 187 grams and valued at Rs.40,000 wrapped in a newspaper was found lying under a matters in the said premises. The officers seized the gold bar under the reasonable belief that the same was smuggled and liable to confiscation under the provisions of the Customs Act, 1962, and the Gold Control Act, 1968. The officers also seized four papers containing some accounts found lying in a drawer of a desk in the said premises. The detenu's statement was recorded by the customs officer on the same day, that is, September 17, 1986. In this statement, the detenu gave details of the business carried on by him and stated that on September 17, 1986, at about 10.30 a.m. one Shivlal Mohanlal Soni of Ahmedabad, who is also known as Shivakaka, came to his business premises and gave him a packet containing the gold bar of 16 tolas with markings indicating foreign origin and told him that he would come with a customer. The detenu stated that he kept the said packet under the mattress and in the meantime. the officers searched his premises and recovered the said packet containing the gold bar. The detenu also stated that in the last three months, prior to the date of the search, Shivakaka had brought packets containing gold bars with markings indicating foreign origin two to three times and brought customers and sold the said gold bars. According to the detenu, Shivakaka used to give him commission of about 50 to 100 rupees for keeping the gold bars. The detenu admitted recovery of four papers containing some accounts from the desk but stated that he did not know who had written the said accounts. In his further statement, recorded on September 18, 1986, the detenu identified the photograph of the said Shivlal Mohanlal Soni as the photograph of the person who had been referred to by him in his statement dated September 17, 1986, and who had delivered the gold bar recovered from his premises on September, 17, 1986. The detenu stated that he was selling gold bars with markings indicating foreign origin in Manek Chowk on commission basis. He stated that apart from Shivakaka, he had sold goods on commission basis by purchasing from other persons also. It was stated that the detenu had purchased three gold bars with markings indicating foreign origin from one Punamchand Laxmichand Kotadia alias Punamchand Marwadi and sold the same to outstation customers whose names he did not remember. Punamchand Laxmichand Kotadia appeared before the Customs officers on October 10, 1986, and stated that he was a certified goldsmith and he was dealing in silver also. He denied having sold gold bars with markings indicating foreign origin to the detenu. In fact he denied having any acquaintance with the detenu. The Customs officers were not able to locate Shivlal Mohanlal Soni alias Shivakaka and obtain his clarifications in the matter, nor had Shivakaka presented himself before the customs officers to clarify the position in spite of the summons issued to him under section 108 of the Customs Act, 1962.
3. The detaining authority on considering the material on record, reached the conclusion that with a view of preventing the detenu from engaging himself in keeping smuggled goods, it was necessary to detain him and, therefore, in exercise of the powers conferred under sub-section (1) of section 3 of the COFEPOSA, the detaining authority, by order dated January 20, 1987, directed that the detenu be detained.
4. The legality and validity of the order passed by the detaining authority was challenged by the detenu's son on various grounds. One of the grounds of challenge was that failure to state in the grounds of detention that the detenu had a right of personal hearing before the Advisory Board had affected his right to make effective and adequate representation under article 22(5) of the Constitution of India. It is not necessary to set out other grounds of challenge since the Division Bench before which the petition came up for hearing has dealt with and decided those grounds and referred for our decision only one ground which is set out above.
5. Special Criminal Application No. 554 of 1987 arises out of the detention of the petitioner in that petition ("detenu" for short). In that case also, under the provisions of the COFEPOSAA, the order which was passed on December 8, 1986, was executed on January 30, 1987. The detaining authority, on being satisfied that, with a view to preventing the detenu from engaging in keeping smuggled goods, it was necessary to detain him under sub-section (1) of section 3 of the COFEPOSA and had, therefore, directed the detention of the detenu by an order dated December 8, 1986. The detenu was served with the order of detention along with the grounds of detention and documents in support thereof on January 30, 1987. In other words, the grounds of detention and the documents on which the detaining authority had relied for passing the order of detention were communicated to the detenu on January 30, 1987, when the order of detention dated December 8, 1986, was served on him and he was taken in detention.
6. The grounds communicated to the detenu disclosed that on August 30, 1986, the customs officers stationed at Mandvi in Kutch district, had searched the vadi of the detenu. At the time of the search, one Batukbha Tejmalji Jadeja who was employed as watchman of the said vadi was present. The said Batukbha Jadeja informed the officers that a few days earlier, a truck had come to the vadi at night and had off-loaded goods which were stored in a room of the building situate in the vadi. The watchman brought the keys and opened the lock of the said building and showed the packages stored in the room. The watchman stated that he was paid Rs.500 by some unknown persons who had accompanied the truck. In the course of search, the officers recovered packages which were found to contain contraband goods. Sixty packages were seized and on detailed examination, they were found to contain synthetic fabrics, zip fasteners, etc., of foreign origin, collectively valued at Rs.28,63,653. The goods were seized under the reasonable belief that the same were smuggled and were liable to confiscation under the Customs Act, 1962. In the further statement recorded on September 2, 1986, watchman Batukbha stated, amongst other things, that he was working in the vadi of the detenu for the last 15 months; that he was a man of confidence of the detenu and that the detenu had instructed him that if any person came to the vadi to store goods, he should permit him to do so. The detenu, in his statement, recorded on September 30, 1986, stated that on August 20, 1986, one Harishchandra Amarsingh Jadeja had met him at his vadi and requested him to store a truck load of smuggled goods in his vadi for a night in case it became necessary for him to do so. The detenu stated that he knew the said Harishchandra Amarsingh Jadeja and his brother Pragji Amarsingh Jadeja for the last six months. They are frequently visiting his vadi. The detenu further stated that on August 22, 1986, Harishchandra Jadeja met him at his vadi and told him that he had brought a truck loaded with smuggled goods which were to be stored in his vadi for a night. The detenu instructed watchman Batukbha to get the goods brought by Harishchandra unloaded and stored in the building in the vadi. The building in which the goods were stored was locked and keys were kept with watchman Batukbha for sate custody. The detenu stated to the effect that Harishchandra paid Rs.500 to watchman, Batukbha, towards labour charges and guarding the goods and promised to pay more when the goods were removed. The detenu stated that Harishchandra had also promised to pay him for storing and guarding the goods. Thereafter, on August 30, 1986, the storing and guarding the goods. Thereafter, on August 30, 1986, the building in the vadi of the detenu was searched by the customs officers as stated above and the goods valued at Rs.28,63,653 were seized under a panchnama.
7. From the material on record, the detaining authority came to the conclusion that the detenu was engaged and was likely to engage himself in keeping smuggled goods and that there was sufficient cause to pass an order of detention against him under the COFEPOSAA. Thus, on being satisfied that it was necessary to detain the detenu with a view to preventing him from engaging himself in keeping smuggled goods, the detaining authority passed the order dated December 8, 1986, directing to detain under sub-section (1) of section 3 of the COFEPOSAA. However, after the order of detention was passed, the detenu was not found available and he, therefore, could not be served withe the order of detention. The detenu was declared "absconder" under the relevant provisions of the arrested and served with the order of detention and the grounds for detention along with the relevant documents and detained under the said order.
8. The detenu challenged the aforesaid order of detention on various grounds. One of the grounds on which the order of detention was challenged was that the detenu's fundamental right to make representation to the detaining authority guaranteed under article 22(5) of the Constitution was violated inasmuch as the grounds of detention, served on the detenu, did not mention that he had a right to make a representation to the detaining authority. It is not necessary to set out the other grounds on which the order of detention was challenged because they have already been dealt with and referred to by the Division Bench before which the aforesaid Special Criminal Application No. 554 of 1987 came up for hearing.
9. The Division Bench, which heard these petitions, did not render any decision on the ground that failure to mention in the grounds of detention that the detenu had a right of personal hearing before the Advisory Board, raised in Special Criminal Application No. 240 of 1987, and the ground that failure to apprise the detenu about his right to make representation to the detaining authority in the case of the detenu in Special Criminal Application No. 554 of 1987, which failure according to the detenu being violative of article 22(5) of the Constitution had rendered the continuous detention void. While dealing with these grounds, the Division Bench referred to the decision of the Supreme Court in Wasi Uddin Ahmed v. District Magistrate, AIR 1981 SC 2166 and the decision of this court in Noormohammad Yakubhai Saiyed and Bhajya Seth v. K. V. Hari Har Das ([1987] 2 GLT 219) Special Criminal Application No. 1265 of 1986, decided on May 1, 1987, and various other decisions of this court in which reliance was placed on the aforesaid decision of the Supreme Court in Wasi Uddin Ahmed's case, AIR 1981 SC 2166, and came to the conclusion that divergent views were expressed in the various decisions of this court in regard to the principles laid down by the Supreme Court in the case of Wasi Uddin Ahmed's case, AIR 1981 SC 2166. The Division Bench was of the view that there is uncertainly as regards the correct principles laid down by the Supreme Court in the case of Wasi Uddin Ahmed's case, AIR 1981 SC 2166, and, therefore, it was necessary that the question arising out of the aforesaid grounds of challenged be referred to a larger Bench. The Division Bench formulated the following questions for reference to the larger Bench:
Special Criminal Application No. 240 of 1987:
"(1) Whether, having regard to the decision of the Supreme Court in the case of Wasi Uddin Ahmed v. District Magistrate, AIR 1981 SC 2166, it is obligatory on the detaining authority while serving the grounds of detention upon the detenu to inform that the detenu has a right of personal hearing before the Advisory Board?
(2) Would failure to inform the detenu as stated above ipso facto result in infraction of article 22(5) of the Constitution of India and invalidation of the order of detention?"
Special Criminal Application No. 554 of 1987:
"(1) Having regard to the decision of the Supreme Court in the case of Wasi Uddin Ahmed v. District Magistrate, AIR 1981 SC 2166, or even otherwise, is it obligatory on the detaining authority, while serving the grounds of detention upon the detenu, to inform that the detenu has a right to make representation against the detention order to the detaining authority and to other authorities, such as, State Government, Central Government and the Advisory Board?
(2) Would failure to inform the detenu as stated above result in infraction of article 22(5) of the Constitution of India and invalidation of the order of detention?"
10. In the grounds of detention communicated to the detenu in Special Criminal Application No. 240 of 1987, it was mentioned as follows:
"You have a constitutional right to make a representation against your detention to the detaining authority, State Government Central Government as well as to the Chairman of the Advisory Board. If you wish to avail of right, then you submit your representation through the jail authorities in the manner indicated below:
1. Representation meant for the detaining authority and State Government should be addressed to the undersigned.
2. Representation meant for the Central Government should be addressed to the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi.
3. Representation meant for the Advisory Board should be addressed to the Chairman, COFEPOSA Advisory Board, in triplicate and forwarded directly through the jail authorities."
11. The grounds were communicated under the signature of Mr. P. P. Rathod, Additional Chief Secretary to the Government, Home Department. It is not disputed that in the grounds communicated to the detenu, it was not mentioned that the detenu had a right of personal hearing before the Advisory Board.
12. In the grounds of detention communicated to the detenu in Special Criminal Application No. 554 of 1987, it was mentioned as under:
"You have a constitutional right to make a representation against your detention to the State Government, Central Government, as well as to the Chairman of the Advisory Board. If you wish to avail of your right, then you should submit your representation thorough the jail authorities in the manner indicated below:
1. Representation meant for the State Government should be addressed to the undersigned.
2. Representation meant for the Central Government should be addressed to the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi.
3. Representation meant for the Advisory Board should be addressed to the Chairman COFEPOSA Advisory Board in triplicate and forwarded directly through the jail authorities."
13. The grounds were communicated under the signature of Mr. K. V. Harihar Das, Additional Chief Secretary to the Government of Gujarat, Home Department. It is not disputed that the grounds communicated to the detenu did not mention that the detenu had a right to make a representation against the order of detention to the detaining authority.
14. It was in view of the failure to mention the aforesaid right of the detenu in the grounds that it was urged on behalf of the detenu that their fundamental rights guaranteed under article 22(5) of the Constitution were violated and consequently the orders of detention were vitiated. It was as a result of this contention that the questions reproduced hereinbefore were framed by the Division Bench. These questions have now been placed before us for final decision on the controversy therein. It may be mentioned here that learned counsel appearing for the detenus and the respondents jointly requested that after answering the questions referred to us, we may ourselves, instead of referring the matters back to the Division Bench, decide these matters finally on the facts also. Therefore, by the consent of the parties, we are finally disposing of these petitions by this common judgment since common questions are raised in these petitions.
15. article 22 of the Constitution in for protection against arrest and detention in certain cases. Clauses (4) and (5) of this article are relevant for the purpose of appreciating the rival contentions and they read as under:
"22. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period that 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).
(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."
16. It is also necessary to read sub-section (3) of section 3 and section 8 of the COFEPOSA Act which are relevant for our purpose and they are as under:
"3. (3) For the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention."
"8. For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7) of article 22 of the Constitution,-
(a) the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards, each of which shall consist of Chairman and two other persons possessing the qualifications specified in sub-clause (a) of clause (4) of article 22 of the Constitution;
(b) save as otherwise provided in section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order made a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of article 22 of the Constitution;
(c) the Advisory Board to which a reference is made under clause (b) shall, after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned;
(d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board;
(e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential;
(f) in every case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith."
17. Since the decision of the Supreme Court in Wasi Uddin Ahmed's case, AIR 1981 SC 2166, was rendered in the context of section 8 of the National Security Act, 1980, ("NSA" for short), it will be convenient to reproduce the provisions of the said section for comparing them with the relevant provisions of sub-section (3) of section 3 of the COFEPOSA Act. They read as under:
"8. (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."
18. In Abdul Karim v. State of West Bangal, AIR 1969 SC 1028, the Supreme Court examined article 22 and several provisions of the Preventive Detention Act, 1960 and held that: (1) a person detained under the said Act has a right to be furnished with the grounds for his detention; (2) he has a right to make a representation against the order of his detention; (3) though clause (5) of article 22 does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation, there is, by necessary implication, an obligation on the part of the appropriate Government to consider it; and (4) the constitution of an Advisory Board under section 8 of the said Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. The Supreme Court held that the constitutional right to make a representation guaranteed by article 22(5) must be taken to include, by necessary implication, the constitutional right to a proper consideration of the representation by the authority to whom it is made. The Supreme Court repelled the contention that once the Advisory Board was constituted for consideration of the detenu's case, it was enough if the State Government were to send the representation to the Board for consideration without itself considering it. The court gave several illustrations to show that such a contention was not only incorrect, but it would defeat the provisions of article 22(4)(5) and those of the Preventive Detention Act.
19. The above decision in the case of Abdul Karim, AIR 1969 SC 1028, was referred to in the later decision of the Supreme Court in Pankaj Kumar Chakraborty v. State of West Bengal, AIR 1970 SC 97, it will be useful to reproduce the observations made by the Supreme Court in paragraph 10 of its judgment, while discussing the implications of clauses (4) and (5) of article 22 of the Constitution (at p.100):
"It is true that clause (5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expressions `as soon as may be' and `the earliest opportunity' in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned, it can only be the detaining authority to whom it is to be made which has to consider it. Though clause (5) does not in express terms say so, it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enabling it to detain him. The illustrations given in Abdul Karim's case, AIR 1969 SC 1028, show that clause (5) of article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is, through error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case, the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and communicate the same to the Board. But what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board? If counsel's contention were right, the representation in such cases would not have to be considered either by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation, clause (5) does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases. In our view, it is clear from clauses (4) and (5) of article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again that representation in the light of the circumstances of the case considered by the Board before it gives its opinion. If, in the light of that representation, the Board finds that there is no sufficient cause for detention, the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention. The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Government's obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion."
20. Later on, in its decision in Jayanarayan v. State of West Bengal, AIR 1970 SC 675, the Supreme Court referred to its decision in Pankaj Kumar case, AIR 1970 SC 97, and stayed in paragraph 20 of its judgment as follows (at p. 678):
"Broadly stated, four principles are to be followed in regard to representation of detenus, First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu, the Government will not send the matter to the Advisory Board. If, however, the Government will send the case along with the detenu's representation to the Advisory Board. If, thereafter, the Advisory Board will express an opinion in favor of release of the detenu, the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu, the Government may still exercise the power to release the detenu."
21. It will thus be seen that the Supreme Court has laid down four principles: firstly, that the detenu has to be given the earliest opportunity to make a representation; secondly, that consideration of the representation by the appropriate authority is entirely independent of any action that the Board may deem necessary to take, including consideration of the representation of the detenu by the Board; thirdly, that the representation has to be considered expeditiously and without delay; and fourthly, that before the detenu's case is sent to the Board, the Government is under an obligation to consider and record its opinion on the representation received from the detenu. These principles have been deduced from clauses (4) and (5) of article 22 of the Constitution.
22. The implication of clause (5) of article 22 of the Constitution read with section 11 of the COFEPOSAA came up for consideration before Desai J., of the Supreme Court in Smt. Pushpa v. Union of India, AIR 1979 SC 1953. The Supreme Court held as follows (para 5):
"Clause (5) of article 22 of the Constitutions makes it obligatory for the authority making an order of preventive detention to communicate to the detenu, as soon as may be, the grounds on which the order has been made and should afford him the earliest opportunity of making a representation against the order. This right to make a representation imposes a corresponding duty on the detaining authority to consider the representation because the representation may furnish such information as may necessitate revocation of the detention order as contemplated by section 11 of the COFEPOSAA. Section 11 confers power for revocation of detention orders. The obligation to furnish grounds for preventive detention and the constitutional rights conferred on the detenu to make a representation on receipt of the grounds of detention when read in the context of section 11 would spell out a scheme that the representation, if and when made, may furnish such information to the detaining authority which may necessitate revocation of the detention order. Therefore, the importance of the constitutional right to make a representation and the corresponding duty to consider the representation cannot be underestimated and should not be whittled down."
23. In paragraph 8 of the judgment, the Supreme Court went on to observe:
"There is nothing in the scheme of article 22 or the provisions of the COFEPOSAA, 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 representation. After all, the purpose of a representation is to convince the authority to reconsider 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 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."
24. The provisions of section 11 of the COFEPOSAA which came up for consideration in the aforesaid decision of the Supreme Court are as follows:
"11. (1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified-
(a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government;
(b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government;
(2) The revocation of a detention order shall not bar the making of another detention order under section 3 against the same person."
25. It would appear that on a combined reading of section 11 of the COFEPOSAA and article 22(5) of the Constitution, the Supreme Court held that whenever a statute gives a right to make a representation, it is implicit that the representation will have to be considered by the concerned authority and it has to be done without undue delay. There is no specific provisions either in the COFEPOSAA or clauses (4) and (5) of article 22 of the Constitution, which requires that the detenu has to be apprised of his right to make a representation to the Advisory Board and of his right to be heard personally before the Advisory Board while serving or communicating the grounds of detention.
26. In Santosh Anand v. Union of India [1981] 2 SCC 420, it was held that under article 22(5) as interpreted by the Supreme Court, as also under the provision of section 11 of the COFEPOSAA, it is clear that a representation should be considered by the detaining authority who, on a consideration thereof, can revoke the detention order and if the representation is rejected by the detaining authority it is open to the detenu to approach the State Government for revocation of the order and failing that it is open to him to approach the Central Government to get the detention order revoked. In that case, the detention order was passed by the Chief Secretary, Delhi Administration, acting as a specially empowered officer under section 3 of the COFEPOSAA. The detenu made a representation to the detaining authority. The detaining authority forwarded the representation to the Advisory Board for its consideration. Thereafter, the detenu was informed that his representation had been considered by the Administrator, Delhi, and had been rejected. It appeared that the Chief Secretary, as the detaining authority, had considered the representation of the detenu only for the purpose of submitting the same for orders to the Administration who, in his turn, after consideration it rejected the same as aforesaid. The Chief Secretary, as the detaining authority, himself did not reject it. The Chief Secretary, had made an endorsement under his signature to the effect: "the representation may be rejected", and it was below the endorsement made by the Chief Secretary that the administrator made an endorsement to the effect that he had considered the representation as well as the comments of the Customs Department and after examination thereof, he agreed that the representation had no merit and rejected it. The Supreme Court observed that the representation of the detenu could be said to have been considered by the Chief Secretary at the highest, but he did take the decision to reject it himself. For that purpose, the papers were submitted to the administrator, who, ultimately, rejected the same. It was held that since the representation was not rejected by the detaining authority, constitutional safeguards under article 22(5) , as interpreted by the Supreme Court, could not be said to have been strictly observed or complied with. The continued detention of the detenu was, therefore, held to be illegal.
27. In Tara Chand v. State of Rajasthan, AIR 1980 SC 1361; [1982] 52 Comp Cas 53, the Supreme Court observed (p. 54) "...The detenu was arrested on July 19, 1979, and on the same day, he was served with the grounds of detention in which there was no indication, although there should have been, that the detenu was entitled to make a representation to the detaining authority". This observation was not made in the context of any specific plea raised on behalf of the detenu that it was obligatory on the detaining authority to indicate in the grounds of detention that the detenu had a right to a make a representation to the detaining authority. This passing observation made by the Supreme Court, however, in terms, expression a view to the effect that it should have been indicated in the grounds of detention that the detenu was entitled make a representation to the detaining authority.
28. It was for the first time in the case of Wasi Uddin Ahmed's case, AIR 1981 SC 2166, that a contention was specifically raised that the detenu has to be apprised of his right to make a representation and the right to be heard personally by the Advisory Board. Strong reliance was placed on this decision of the Supreme Court on behalf of the detenu and it was urged that the Supreme Court has clearly laid down that the detenu must be apprised of his aforesaid rights while communicating the grounds of detention, and failure to do so would render the order of detention invalid. On the other hand, it is urged on behalf of the respondents that no such rule or principle of law has been laid down by the Supreme Court in the said decision.
29. In the case of Wasi Uddin Ahmed's case, AIR 1981 SC 2166, a petition under article 32 of the Constitution was moved by the petitioner for the issuance or a writ of habeas corpus for the release of his brother, Manzar Safi alias Safiuddin, who had been detained by an order of detention dated February 21, 1981, passed by the District Magistrate, Aligarh, under sub- section (2) of section 3 of the National Security Act, on his being satisfied that his detention was necessary with a view to preventing him from "acting in any manner prejudicial to the maintenance of public order. On the same day, the District Magistrate made a report to the State Government about the passing of the detention order together with the grounds of detention and all other particulars bearing on the same. The said report and other particulars were considered by the State Government and it approved of the detention order under sub-section (4) of section 3 of the National Security Act and sent a report to the Central Government under section 3(5). The detenu was apprehended on March 9, 1981, and taken to Central Jail, Agra, where he was served with the order of detention together with the grounds of detention as well as documents in support thereof, but the detenu declined to accept the documents on the ground that he was not conversant with Hindi. The State Government forwarded the case of detenu to the Advisory Board in due course under section 10 of the National Security Act along with the detention order together with the grounds of detention. At the hearing before the Advisory Board on April 21, 1981, the detenu submitted his representation. On the same day, the Advisory Board, after considering the material placed before it and the said representation and after giving a personal hearing to the detenu, made a report to the State Government under sub-section (1) of section 11 of the National Security Act to the effect that there was sufficient cause for the detention. By an order dated May 1, 1981, the State Government, in exercise of its powers under sub-section (1) of section 12 of the National Security Act confirmed the order of detention.
30. The validity of the order of detention was challenged on behalf of the detenu on five grounds, two of which were as follows; (1) while the order of detention was served on the detenu, he was not "informed" in the grounds of detention of his constitutional right to make a representation against such order of detention and also of the right to be heard by the Advisory Board; and (2) the procedural safeguards of article 22(5) and section 8 of the National Security Act were not complied with since the detenu was not supplied with any document till March 25, 1981, and some of them as on the date of hearing of the petition had not been supplied at all, and further that the grounds of detention and the documents in support thereof were in Hindi and not in Urdu, that is, in a language with which the detenu was not conversant. The Supreme Court observed that the constitutional imperatives indicated in article 22(5) are two-fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable, after the detention, communicate to the detenu the grounds on which the order of detention has been made; and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. The right to make a representation implies what it means: "the right of making an effective representation". Where certain documents are relied upon the in grounds of detention, the grounds would be incomplete without such documents. The detenu, therefore, has a right to be furnished with the grounds of detention along with the documents relied upon. The Supreme Court adverted to a series of its decisions, which, on construction of article 22(5) of the Constitution read with sub-section (3) of section 3 of the COFEPOSAA, held that the right of making an effective representation carries with it the right to copies of documents relied upon in the grounds of detention. The Supreme Court observed that the rationale of these decisions is that the right to be supplied with copies of the documents, statements and other materials relied upon in the grounds of detention without any delay flows as a necessary corollary from the right conferred, namely, to be afforded the earliest opportunity of making a representation against the detention, because, unless the former right is available, the letter cannot be meaningfully exercised. The constitutional imperatives of article 22(5) which enjoins a duty on the detaining authority making an order of detention to afford the detenu "the earliest opportunity of making a representation against the order" equally applies to a detention under section 3 of the National Security Act. The Supreme Court rejected the aforesaid two contentions raised on behalf of the detenu by observing as follows in paragraph 17 and 18 of its judgment:
"17. In the instant case, however, there was no infraction of the constitutional safeguards enshrined in article 22(5) . We are satisfied that there was no failure on the part of the Government to discharge its obligations under article 22(5) of the Constitution and section 8 of the Act. There is no warrant for the submission that the detenu was deprived of the right of being afforded the earliest opportunity as enjoined by article 22(5) and section 8 of the Act in that he was not served with the grounds of detention and the relevant documents in support thereof at the earliest opportunity on March 9, 1981, when he was placed under detention or within a reasonable time thereafter and that the documents were indeed not furnished in a language with which he was not conversant. There was no such grievance made in the representation filed by the detenu before the Advisory Board. The contention now raised that the detenu was not furnished with copies of the relevant documents is only an afterthought. In the instant case, the detenu had the earliest opportunity of making a representation when the order of detention as well as grounds of detention were served on him personally on March 9, 1981, at the Central Jail, Agra, but he refused to receive the documents on the ground that they were in Hindi. The detenu disdained from making a representation to the detaining authority. In fact, the detenu did make a detailed representation before the Advisory Board. A bare perusal of the representation shows that it was drawn up by a person conversant with law.
It is unfortunate that there was a failure to mention in the grounds of detention that the detenu had the right to make a representation against the order of detention as envisaged by article 22(5) of the Constitution read with section 8 of the Act, and also the right of being heard before the Advisory Board while he was served with the order of detention. It is expected of a detaining authority while serving an order of detention, as a rule, to mention in the grounds of detention, that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. In the present case, the grounds of detention served upon the detenu do not contain any such recital. It, however, appears that the detenu was furnished with a copy of the Constitution on March 25, 1981, at the Central Jail, Fatehgarh, presumbly at his own request, for the purpose of making a representation against the order of detention. The words "and shall afford" in article 22(5) have a positive content in matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is, therefore, imperative that the detaining authority must "apprise" a detenu of his constitutional right under article 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. The right of the detenu to make a representation under article 22(5) would be, in many cases, of little avail if the detenu is not "informed" of this right. The failure to comply with this requirement, however, does not have the effect of vitiating the impugned order of detention or render the continued detention of the detenu illegal in this case for the reason that the detenu is an enlightended person and has been in active politics and was, therefore, fully cognizant of his right to make a representation under article 22(5) of the Constitution and under section 8 of the Act. In fact, the detenu appeared before the Advisory Board and filed a representation against the order of detention and was also personally heard by the Advisory Board."
31. It was argued on behalf of the detenus that neither in the grounds of detention nor by any other contemporaneous documents do hors the grounds of detention nor by any oral communication was the detenu in Special Criminal Application No. 554 of 1987, at the time when he was served with the grounds of detention or even thereafter, informed that he had a constitutional right to make a representation under article 2295) of the Constitution to the detaining authority, that is Mr. K. V. Harihar Das, himself, who had issued the impugned order of detention. Similarly, the detenu in Special Criminal Application No. 240 of 1987 was not apprised of his right of personal hearing before the Advisory Board in the grounds of detention or any other contemporaneous documents dehors the grounds of detention nor by any oral communication. Relying upon paragraph 18 of the judgment of the Supreme Court in Wasi Uddin Ahmed's case, AIR 1989 SC 2166, it was submitted that it was enjoined upon the detaining authority to have apprised the detenu on the said constitutional rights at the time of the service of the order of detention itself. The detaining authority was, however, blissfully ignorant and totally oblivious of the said rights of the detenus and the corresponding duty cast upon him. The detaining authority, by not apprising the detenus of their said constitutional rights has, it was urged, disabled them from making effective representation at the earliest opportunity and that has resulted in infringement of their constitutional right under article 22(5) of the Constitution. It was submitted that once the detenus' said constitutional right is held to have been infringed, the question, as to whether it caused them prejudice or not, does not arise at all. There is inbuilt prejudice in the infringement of the said right itself. In any case, urged the detenus, the omission to apprise the detenus of their said rights in fact had caused them serve and irreparable injury and prejudice. It was submitted that the Supreme Court has laid down, as a rule of universal application, that it is obligatory upon the detaining authority to apprise the detenus of their afore-said rights and failure or omission to so apprise the detenus would vitiate the orders of detention, without anything more. In other words, according to the detenus, mere failure or omission to apprise the detenus of their aforesaid rights would result in invalidating the detention order. On the other hand, it is submitted, on behalf of the respondents, that what is sought to be urged on behalf of the detenus is not the ratio decidendi of the decision of the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166. It is urged that the ratio decidendi is that on which the court basis its decision and that is its actual decision. No rule should be treated as a ratio, which would not support the ultimate order. It was submitted that the Supreme Court reached its final conclusion on the aforesaid two contentions in paragraph 17 of its judgment. Both the contentions on the basis of which it was sought to be urged that there was infraction of article 22(5) of the Constitution were negatived by the Supreme Court. It was urged that the observations made in paragraph 18 of the judgment were only to point out an ideal situation or state of thing. All that the Supreme Court had suggested in paragraph 18 was that it would be advisable to apprise the detenu of his right of making a representation under article 22(5) of the Constitution and the right of being personally heard by the Advisory Board. It was submitted that if what is urged on behalf of the detenu is the correct legal position emerging from the decision of the Supreme Court in Wasi Uddin Ahmed's case, AIR 1981 SC 2166, the Supreme Court would have held the detention order to be invalid as, admittedly, the detenu was not apprised of his constitutional right to make a representation under article 22(5) and the right of personal hearing before the the Advisory Board. The Supreme Court, however, in terms, held that there was no infraction of the constitutional safeguards enshrined in article 22(5) . Therefore, what the Supreme Court pointed out in paragraph 18 was an ideal situation or state of things to do and suggested of recommended that the detaining authority would be well advised in apprising the detenu of his right of representation and the right of being personally heard by the Advisory Board. It was, therefore, submitted that failure or omission to apprise the detenu of his right to make a representation to the Advisory Board and the right of being personally heard by the Advisory Board would not render the order of detention invalid, since there is no infraction of the constitutional safeguards enshrined in article 22(5) of the Constitution. In the alternative, it was urged on behalf of the respondents that even if the Supreme Court is held to have laid down in the case of Wadi Uddin Ahmed, AIR 1981 SC 2166 that it is obligatory on the detaining authority to apprise the detenu of his aforesaid rights in the grounds of detention, failure to so apprise would not, in all cases, result in infraction of article 22(5) of the Constitution or section 8 of the National Security Act or the corresponding statutory provisions. It was urged that whether or not there is such infraction would depend upon the facts of each case.
32. It is well-settled that a decision of the Supreme Court is not to be read as a statute: a decision of a court is only an authority to what it actually decides. The Supreme Court in State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647, referred with approval to the oft-quoted passage of the Earl of Halsbury in Quinn v. Leathem, [1901] AC 495, which is as under (at p. 651):
"Now before discussing the case of Thomas Francis Allen v. William Gridge Flood, [1898] AC 1 (HL) and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expression which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expression are to be found. The other is that a case which is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
It is not a profitable task to extract a sentence here and a sentence there from a judgment and to build upon it."
33. The Supreme Court has made it abundantly clear in a number of pronouncements as to what exactly binds the lower courts. It is a settled principle that it is not everything said by the Supreme Court in its judgment which is binding as law declared by the Supreme Court. What is considered binding on all the courts is the ratio decidendi of the decision which is to be gathered from the legal problems disclosed by the facts of the case decided by the Supreme Court (vide Calico Mills v. Union of India, [1983] 1 GLR 1). In Dalbir Singh v. State of Punjab, AIR 1979 SC 1384 at pages 1390 and 1391, Sen J., speaking for the Supreme Court, has observed as under:
"According to the well-settled theory of precedents, every decision contains three basic ingredients:
(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) statement of the principles of law applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of (i) and (ii) above.
For the purposes of the parties themselves and their privies, ingredient No. (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purposes of the doctrine of precedents, ingredient No. (ii) is the vital element in the decision. This indeed is the ratio decidendi. (5) It is not everything said by the judge when giving judgment that constitutes a precedent." (Emphasis* added).
34. As observed in Calico Mills v. Union of India. [1983] (1) GLR 1, the Supreme Court has also uttered a warning to the effect that the greatest possible care must be taken to relate the observations of a judge to the precise issue before him and confine such observations even though expressed in broad terms in the general compass of the question before him (vide Madhav Rao Scindia v. Union of India, AIR 1971 SC 530 and A. D. M. Jabalpur v. S. Sukhla, AIR 1976 SC 1207 at page 1378). It is, therefore, evident that the decision of the Supreme Court is only an authority for what it actually decides and the observations made in the judgment should be restricted to the context in which they are made after relating the observations to the precise issue before the court taking care to interpret the observations in the context of the question before the court even though the same are expressed in broad terms. The ratio decidendi of the decision of the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, has to be culled out on the basis of the said settled principles.
35. The decision of the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, was considered by the Division Bench of the Bombay High Court in Mohd. Hussain v. Secretary, Government of Maharashtra, [1982] Crl. LJ 1848. In that case also, one of the contentions which was raised on the behalf of the petitioner, who was detained under sub-section (1) of section 3 of the COFEPOSA was that not communicated at the time of service of the grounds of detention on him that he had a right to make a representation as well as of being heard personally before the Advisory Board and, therefore, there was infringement of the provisions of article 22(5) of the Constitution. The detenu (petitioner) placed reliance on the decision of the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, in support of his above contention. The Division Bench of the Bombay High Court, after quoting paragraph 18 of the Supreme Court, speaking through Sawant J., observed that the following propositions flow from the observations made by the Supreme Court in paragraph 18: (1) the detenu has a right to make a representation against the order of detention and also the right of being personally heard before the Advisory Board by virtue of the provisions of article 22(5) of the Constitution read with section 8 of the National Security Act; (2) it is expected of the detaining authority, as a rule, to make a mention in the grounds of detention that the detenu has such a right; and (3) the failure to comply with the said requirement, viz., of the intimation of such a right does not have the effect of vitiating the order of detention or rendering the continued detention of the detenu illegal in every case. Whether it does or not will depend upon the facts of each case. With respect, we are broadly in agreement with the view taken by the Division Bench of the Bombay High Court.
36. We are unable to accept the contention raised on behalf of the detenus that mere failure or omission to apprise the detenu of his right to make a representation to the various authorities and also the right to be personally heard by the Advisory Board, would vitiate the order of detention in every case. In Wasi Uddin Ahmed's case, AIR 1981 SC 2166, the detaining authority had not mentioned in the grounds of detention served on the detenu in that case that the detenu had a right to make a representation against the detention order and that he also had a right to be heard by the Advisory Board. The detenu did not make any representation to the detaining authority or the appropriate Government. He, however, did make a written representation to the Advisory Board and he was also personally heard by the Advisory Board. If the obligation on the detaining authority to apprise the detenu of his right to make a representation and of his right to be personally heard by the Advisory Board was such that mere failure to discharge it would render the order of detention invalid, the Supreme Court would have held the order of detention passed in that case to be invalid. However, in paragraph 17 of its judgment, the Supreme Court observed that the detenu disdained from making a representation to the detaining authority. In fact, the detenu did make a detailed representation before the Advisory Board and a bare perusal of the representation showed that it was drawn up by a person conversant with law. These observations were made after the Supreme Court held as follows in the opening part of paragraph 17: "In the instant case, however, there was no infraction of the constitutional safeguards enshrined in article 22(5) ." The decision of the Supreme Court that there was no infraction of the constitutional safeguards enshrined in article 22(5) was not confined to the detenu's contention that procedural safeguards of article 22(5) and section 8 of the National Security Act were not complied with since the detenu was not supplied with the documents till March 25, 1981, and the same were not even supplied till the date of hearing of the petition; but it was in the context of both the aforesaid contentions, namely, the contention that the detenu was not apprised, in the grounds of detention, that he had a constitutional right to make a representation against the order of detention and also of the right to be heard by the Advisory Board and the aforesaid contention regarding non-compliance with the procedural safeguards enshrined in article 22(5) and section 8 of the National Security Act by not supplying the documents. The Supreme Court did not lay down an absolute rule that failure or omission to apprise a detenu of his right to make representation and also the right to be heard by the Advisory Board, would necessarily lead to invalidation of the detention order in all cases and this is evident from the observations made in paragraph 18 of the judgment. If the Supreme Court had laid down such absolute proposition, as observed above, it would have held that the detention order in that case was invalid. On the contrary, it was held that there was no infraction of the constitutional safeguards enshrined in article 22(5) . If the detenus' contentions were to be accepted, the final conclusion reached by the Supreme Court would not be consistent with such absolute proposition or rule. We are also not inclined to subscribe to the view canvassed on behalf of the respondents that there is no obligation on the detaining authority to apprise the detenu of his right to make a representation and also the right to be heard by the Advisory Board and failure to apprise the detenu of his rights would, in no case, render the order of detention invalid. As observed above, the ratio decidendi of the Supreme Court has to be gathered from the statements of principles of law applicable to legal problems disclosed by the facts of the case decided by the Supreme Court. 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 are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found and for the proposition that a case is only an authority for what it actually decides. Before culling out the ratio of the decision, the court must, of necessity, examine the precise question or the precise issue which arose before it and identify the principles of law applied by the court in resolving the issue and make a further effort to find out what is the proposition of law which emerges from the decision of the court. (Vide Calico Mills v. Union of India [1983] 1 GLR 1). It is in this perspective that the question will have to be examined as to what exactly has been decided by the Supreme Court in Wasi Uddin Ahmed's case, AIR 1981 SC 2166, and he proposition which emerges therefrom. In our opinion, the observations made by the Supreme Court in paragraphs 17 and 18 of its judgment have to be read together in order to arrive at the correct ratio decidendi of the decision. Whatever is observed in paragraph 17 is subject to that is stated in paragraph 18. It was not merely an ideal situation or state of things which was sought to be pointed out by the Supreme Court, in paragraph 18 as urged on behalf of the respondents. If the Supreme Court was merely indicating an ideal situation or state of things or merely suggesting that it was advisable for the detaining authority to apprise the detenu of his right to make a representation and of his right to be heard by the Advisory Board, it would not have used the expression such as "as a rule" and "imperatives" in paragraph 18. The Supreme Court, in terms, observed that it is expected of the detaining authority, while serving the order of detention, as a rule, to mention in the grounds of detention that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. It was further observed that the words "and shall afford" in article 22(5) have a positive content in matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards, particularly in the case of deprivation of life and liberty is of prime importance to the body politic. It is, therefore, imperative that the detaining authority must "apprise" a detenu of his constitutional right under article 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. These observations made by the Supreme Court would be meaningless, if we were to accept the contention of the respondents. In our opinion, the aforesaid observations are dices of law laid down by the Supreme Court. However, this dictum has to be appreciated in the background of the facts and the actual decision. The Supreme Court, on appreciation of the facts in the case, found that though the detenu was not apprised of his right to make a representation and also of the right to be heard by the Advisory Board, there was no infraction of the constitutional right under article 2295). The right to make a representation is a constitutional right guaranteed under article 22(5) while the right to be heard by the Advisory Board is a statutory right conferred by the relevant statute, but both these have been equated and put on par. However, mere omission or failure to apprise the detenu of his said rights would not necessarily in all cases result in infraction of his said constitutional and statutory rights and consequential invalidation of the detention order. The Supreme Court found that, (1) the detenu was an enlightened person and had been in active politics and was, therefore, fully cognizant of his right to make a representation under article 2295) of the Constitution and under section 8 of the National Security Act; (2) the detenu had in fact appeared before the Advisory Board and filed a written representation against the order of detention; (3) the detenu was personally heard by the Advisory Board; (4) the detenu had disdained from making any representation to the detaining authority; and (5) the detenu was furnished with a copy of the Constitution at his own request. In the background of these facts, the Supreme Court reached the conclusion that there was no infraction of the constitutional safeguards enshrined in article 22(5) . It is further pertinent to note that the Supreme Court has observed that the right of the detenu to make a representation under article 22(5) would be, in many cases, of little avail, if the detenu is not informed of his right. The Supreme Court did not say that this right would be of little or of no avail in all cases. The observations of the Supreme Court clearly indicate that the Supreme Court did not lay down, as a matter of rule, that failure to carry out the obligation of apprising a detenu of his right to make a representation and his right to be heard before the Advisory Board would necessarily lead to infraction of the constitutional safeguards enshrined in article 2295) in all cases. It would depend upon the facts of each case, as to whether or not there has been infraction of the safeguards enshrined in article 22(5) of the Constitution as a result of failure or omission to apprise the detenu of his right to make a representation and of his right to be heard by the Advisory Board. Therefore, we broadly agree with the view taken by the Division Bench of the Bombay High Court in the case of Mohd. Hussain v. Secretary, Govt. of Maharashtra [1982] Crl. LJ 1848.
37. We are, therefore, of the opinion that the Supreme Court has held that it is obligatory on the detaining authority to apprise the detenu of his right to make a representation and the right to be personally heard by the Advisory Board while serving the grounds of detention on him. The right to make a representation is a constitutional right guaranteed under article 22(5) and also a statutory right, and the right to be heard by the Advisory Board, which is otherwise a statutory right, is equated with the said right of representation. Violation of either of these two rights may result in infraction of article 22(5) of the Constitution depending upon the facts of each case. The decision of the Supreme Court referred to above make it clear that the right of representation guaranteed under article 22(5) includes the right to make representation: (1) to the detaining authority, (2) to the appropriate Government, and (3) to the Advisory Board.
38. The propositions which emerge from the decision of the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166 and its earlier decisions are as follows:
(1) the detaining authority must, as soon as may be, that is, as soon as practicable, after the detention, communicate to the detenu the grounds on which the order of detention has been made;
(2) that the detaining authority must supply to the detenu copies of documents relied upon in the grounds of detention. It is, however, not necessary to furnish copies of the documents to which a casual or passing reference may be made in the course of narration of events and which are not relied upon by the detaining authority in making the order of detention.
(3) the detaining authority must afford to the detenu the earliest opportunity of making a representation against the order of detention;
(4) the detenu has a right to make representation against the order of detention to the detaining authority, appropriate Government and the Advisory Board;
(5) the detenu has also a right of being heard by the Advisory Board;
(6) it is obligatory on the detaining authority to apprise the detenu in the grounds of detention that he has such rights as stated in (4) and (5);
(7) failure to comply with the requirement of apprising the detenu of his aforesaid rights would not necessarily invalidate the order of detention in all cases;
(8) whether or not as a result of failure to comply with the requirement of apprising the detenu of his aforesaid rights would result in infraction of the constitutional safeguards enshrined in article 22(5) of the Constitution will depend upon the facts in each case;
(9) consideration of the representation of the detenu by the detaining authority and the appropriate Government is independent of any action by the Advisory Board including consideration of the representation of the detenu by the Advisory Board;
(10) there should not be any delay in the matter of consideration of the detenu's representation by the detaining authority and the appropriate Government;
(11) the appropriate Government has to express its opinion on the representation made by the detenu before sending the case along with the detenu's representation to the Advisory Board.
39. Out attention was also invited to the judgments rendered by different Division Bench of this court in the context of the decision of the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166. The points which are canvassed before us in these two petitions were not elaborately argued before the Division Benches which heard the matters in which those judgments were delivered. In other words, the points, which are argued before us at length, were not put in focus before the court in those matters. We, however, find that broadly speaking, except in one case, the Division Benches have not taken a view which is different from the view which we are taking. We will now briefly refer to these decisions.
40. In Mohmed Kasam Imamuddin Shaikh v. State of Gujarat [1986] GLH (UJ) 4, the Division Bench which heard these cases, referred to the decision of the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, and found that the grounds of detention were totally silent in so far as the detenu's right to make a representation to the Advisory Board was concerned. The detenus were, therefore, deprived of their said rights. The detenus were not even orally informed of such rights at the time of service of the grounds of detention. The Division Bench further found that the facts in the case before it were in no way comparable with the facts which obtained in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166. The detenus before it were illiterate persons who were not alive to their rights under article 22(5) of the Constitution. Therefore, the Division Bench held that the principles enunicated by the Supreme Court when applied to the facts of that case led to the conclusion that omission to mention about the aforesaid rights was fatal to the order of detention.
41. Hasankhan Pirozkhan Pathan v. Commissioner of Police, Ahmedabad, [1986] GLT 210, was also a case where the detaining authority did not inform the detenu in the grounds of detention that he had a right to make a representation to the Advisory Board and also a right to be heard by the Advisory Board. The Division Bench, after referring to the decision of the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, held that the facts in the case before it were not similar to the facts in the case before the Supreme Court. It was, therefore, held that failure to give intimation to the detenu of his aforesaid rights in the grounds of detention would render the order of detention illegal.
42. Ahir Kathad Samat v. State of Gujarat [1986] GLH (UJ) 39, was a case where the detaining authority had not mentioned in the grounds of detention that the detenu had a right to be heard by the Advisory Board. The Division Bench referred to the decision of the Supreme Court in Wasi Uddin Ahmed's case, AIR 1981 SC 2166, and pointed out that it was on the facts in that case that the Supreme Court had not invalidated the detention order on the ground of failure to give intimation to the detenu of his right to make a representation and of the right to be heard personally by the Advisory Board. The Division Bench held: "In the facts and circumstances of this case and particularly in view of the fact that the detenu appears to be a semi-literate person and also appears to be ignorant about his constitutional and statutory rights, failure to inform him that he had a right to be heard before the Advisory Board, should be held sufficient to invalidate the order of detention."
43. In Babubhai Gulambhai Goas v. State of Gujarat [1987] 1 GLH 568, the detenu was an illiterate person who was not conversant with the constitutional requirements of preventive detention. He had not been told that he had a right of representation to the Advisory Board and in fact he did not make any representation to the Advisory Board, though he was personally heard before the Advisory Board. The Division Bench was of the view that the facts in the case before it were similar to the facts in the case of Mohmed Kasam [1986] GLH (UJ) 4. Following the decision of the Division Bench in the said case of Mohamed Kasam, the Division Bench took the view that the case before it could be distinguished from the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, on facts and it ran parallel to the facts in Mohmed Kasam's case. Therefore, following the decision of the Division Bench held that the order of detention was bad.
44. Similar view was taken by the Division Benches in Natverlal Manilal Kayastha v. District Magistrate (Special Criminal Application No. 1178 of 1986 and companies matters decided on April 7, 1987), Jagdish Morarji Tanna v. Union of India (Special Criminal Application No. 1334 of 1986 and companies matters decide on April 28, 1987), Noormohamad Yakubhai Saiyied alias Bhaiya Sheth v. K. V. Harihar Das [1987] 2 GLT 219.
45. Boricha Valabhai Nathubhai v. State of Gujarat [1997] 2 GLR 1230 was a case in which the detaining authority had not mentioned in the grounds of detention that the detenu had a right to make a representation to the detaining authority. It was, however, found that the detenu was literate and knew about his rights. Under the circumstances, it was held that the case would be covered by the ratio of the decisions of the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, and the order of detention could not be held to be invalid. In this view of the matter, the petition filed by the detenu was dismissed.
46. It however, appears that in Motiben Virabhai v. B. K. Sinha (Special Criminal Application No. 1317 of 1986 and companies matter, decided on July 27, 1987), a view different from the one taken in the earlier decisions was taken. The detaining authority had not mentioned in the grounds of detention that the detenu had a right to make a representation to the Advisory Board. In the affidavit-in-reply filed on behalf of the respondents, in that case, it was pointed out that in the grounds of detention, the detenu was informed that if he wished to be heard before the Advisory Board, he should state so in the representation addressed to the State Government. It was further stated that the detenu had submitted a written representation to the Advisory Board and that he had represented his case in person before the Advisory Board. The Division Bench which heard the matter was, however, of the view that the case before it was clearly covered by the judgment in the case of Babhubhai Gulambhai Goas [1987] 1 GLH 568, in which reliance was placed on the decision of the Supreme Court in Wasi Uddin Ahmed's case, AIR 1981 SC 2166. Therefore, following the decision in Babhubhai Gulambhai Goas' case [1987] 1 GLH 568, the Division Bench held that the detention of the detenu was void. With respect, we find ourselves unable to agree with the view taken by the Division Bench. In our opinion, on the facts, the case would be covered by the judgment of the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166. Since the detenu had in fact made a written representation to the Advisory Board and he was in fact heard by the Advisory Board, there was no infraction of the constitutional safeguards enshrined in article 22(5) of the Constitution and his statutory rights under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985.
47. It would thus appear that except in one case, this court has consistently taken the view that whether or not failure to inform the detenu of his right to make a representation under article 22(5) and the relevant provisions of the statute under which the order of detention is passed and of the right to be heard by the Advisory Board, would render the order of detention void, would depend upon the facts of each case. The Division Benches, which heard the matters, examined the facts of each case and it was in the light of the facts of the case that it was decided as to whether or not there was infraction of the constitutional safeguards enshrined in article 22(5) or the statutory right. It has not been held, except in one case, pointed out above, that mere failure to mention in the grounds of detention that the detenu had the aforesaid rights would ipso facto render the detention order void or invalid. In Motiben Virabhai v. B. K. Sinha (Special Criminal Application No. 1217 of 1986), also, the court did not specifically hold that mere failure to mention about such rights would result in invalidation of the order of detention. But having regard to the facts in the case to which we have already drawn attention, it would appear that such was the view of the Division Bench. As already observed above, if such were the view taken by the Division Bench, with respect, we find ourselves unable to agree with it. However, by and large, the view which we have taken is consistent with the view taken by this court in the majority of cases, which were decided in the context of the decision of the Supreme Court in Wasi Uddin Ahmed's case, AIR 1981 SC 2466.
48. Our attention was also drawn to various decisions of the Bombay High Court, including the decision in Mohamad Hussain's case [1982] Crl. LJ 1848, to which reference is already made above. We do not find anything in these decisions which is not consistent with the view which we were taking. In Sushila Mafatlal Shah v. Union of India (Criminal Writ Petition No. 356 of 1987 decided on July 24, 1987), the detaining authority had failed to communicate to the detenu that he had a right to make a representation to the detaining authority. There is nothing in the judgment to indicate that the detenu had in fact made a representation to the detaining authority. It is under these circumstances that the Division Bench of the Bombay High Court, which heard the matter, held that as the detenu was deprived of his right to make a representation to the detaining authority in the first instance, and if his representation was rejected, then make another representation to the State Government and the Central Government, the provision of article 22(5) of the Constitution were violated. It would, therefore, appear that it was on the facts of the case that the court held that the order of detention was vitiated.
49. The facts in the case of Shenaz Begum v. State of Maharashtra (Criminal Writ Petition No. 631 of 1987 decided on September 11, 1987), which was heard by a Division Bench of the Bombay High Court consisting of C. S. Dharmadhikari, Actg. C. J. and V. P. Tipnia J., were similar to the facts in the case of Sushila Mafatlal Shah (supra). It was urged on behalf of the State Government in that case that the decision in the case of Sushila Mafatlal Shah case (supra) required reconsideration. However, it appears that the Division Bench declined to differ from the decision in the case of Sushila Mafatlal Shah's case (supra) which was not challenged before the higher court and observed that judicial discipline required that the decisions which were binding upon them must govern the case before them. In the result, the Division Bench made the rule absolute and directed release of the detenu forthwith.
50. In Alexander Rodrigues v. D. N. Capoor (Criminal Writ Petition No. 37 of 1987 decided on November 30, 1987), which was heard by the Panaji Bench (Goa) of the Bombay High Court, the detaining authority failed to inform the detenu that he was entitled to make a representation against the order of detention to the detaining authority, although it was mentioned in the grounds of detention that the detenu was entitled to represent against the order of detention to the Central Government as well as the State Government. There was nothing on record to indicate that the detenu had in fact made a representation to the detaining authority. It was, however, sought to be urged that no prejudice had been caused to the detenu by failure to mention that he had a right to make a representation to the detaining authority inasmuch as he had failed to make a representation to the Central Government and the State Government though it was specifically mentioned in the grounds of detention that he had a right to make a representation to these authorities. The Division Bench of the Bombay High Court, which heard the matter however, rejected this contention and, following the decision in the case of Sushila Mafatlal Shah (supra) and other decisions referred to in the judgment, quashed and set aside the order of detention. It would appear that it was in the light of the facts in each case that the order of detention was held to be invalid on the ground of failure to mention about the aforesaid rights in the grounds of detention. In none of the decisions of the Bombay High Court to which our attention was drawn, has it been held that failure to mention about the said rights in the grounds of detention would necessarily render the order of detention invalid in all cases. On the contrary, as already observed above, in the case of Mohmad Hussain [1982] Crl LJ 1848, the Division Bench of the Bombay High Court held that failure to comply with the requirement of giving intimation of the said right does not have the effect of vitiating the order of detention or render the continued detention of the detenu illegal in every case. Whether it does or not, will depend upon the facts of each case. This is the same view which we have taken and no decision of the Bombay High Court is cited before us wherein a different view is taken. In Mohmad Hussain's case (supra), the detenu was not apprised of his right of making a representation to the Advisory Board and of his right to be personally heard before the Advisory Board at the time when the order of detention was made. The Division Bench of the Bombay High Court, in the first instance, pointed out that so far as these two rights are concerned, article 22(5) does not spell out the same. The Division Bench went on to observe that the only right spelt out by the said article is that the representation made to the detaining authority will be considered independendly by the Advisory Board. Secondly, his right of being personally heard is a right conferred upon him by clause (c) of section 8 of the COFEPOSA Act. With respect, we are not in complete agreement with the above view. The right to make a representation to the Advisory Board also flows from article 22(5) as held by the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166. In other words, this right is also considered to be a constitutional right guaranteed under article 22(5) of the constitutional right guaranteed under article 22(5) of the Constitution. It is true that so far as the detenu's right of being personally heard by the Advisory Board is concerned, it is a statutory right conferred upon him by clause (c0 of section 8 of the COFEPOSA Act, but this right is also equated with the constitutional right to make a representation. After making the statement of law, as stated above, the Division Bench of the Bombay High Court found that so far as the detenu's right of being personally heard by the Advisory Board was concerned, the record showed, and it was not disputed that the Advisory Board, by its letter dated November 16, 1981, had informed the detenu that if he wished to make any representation against his detention, he could do so and address his representation to the Chairman of the Advisory Board immediately. He was also informed by the very same letter that the date of his personal interview will be communicated to him at a later stage. In spite of this letter, the detenu did not make any representation to the Advisory Board. However, he was personally interviewed by the Board on December 16, 1981, and there was no grievance made in that behalf. In view of these facts, the Division Bench held that there was no breach of either constitutional or statutory provisions in that case. The Division Bench rejected the contention that merely because the petitioner was not informed, at the time of service of the grounds of detention upon him, of his right to make a representation and of being heard personally before the Advisory Board, either the order of detention or his detention there under had become illegal. It would, therefore, appear that the Division Bench of the Bombay High Court has in the case of Mohmad Hussain [1982] Crl LJ 1848, taken the same view which we are now taking. We have already observed above that we broadly agree with the view taken by the Bombay High Court in the case of Mohmad Hussain (supra).
51. In the light of what is discussed above, we answer the questions referred to us in these two petitions as under:-
Special Criminal Application No. 240 of 1987:-
_______________________________________________________________________ Question Answers _______________________________________________________________________
1. Whether, having regard to the Yes. It is obligatory on the decision of the Supreme Court in detaining authority while serving the case of Wasi Uddin Ahmed v. the grounds of detention upon the District Magistrate [1981] AIR 1981 detenu to apprise him that he has a SC 2166, is it obligatory on the right of personal hearing before detaining authority, while serving the Advisory Board.
the ground of detention upon the detenu, to inform that the detenu No. Failure to inform the detenu as has a right of personal hearing stated above would not ipso facto before the Advisory Board? result in infraction of article 22(5) of the Constitution of India
2. Would failure to inform the and invalidation of the order of detenu as stated above ipso facto detention. Whether or not there is result in infraction of article any infraction of article 22(5) of 22(5) of the Constitution of India the Constitution would depend upon and invalidation of the order of the facts of each case.
detention?
Special Criminal Application No. 554 of 1987:-
1. Having regard to the decision of Yes. Having regard to the decision the Supreme Court in the case of of the Supreme Court in the case of Wasi Uddin Ahmed v. District Wasi Uddin Ahmed v. District Magistrate [1981] AIR 1981 SC 2166, Magistrate, since the question in or even otherwise, is it obligatory covered by the direct decision of on the detaining authority, while the Supreme Court in the said case, serving the grounds of detention it is not necessary to examine upon the detenu, to inform that the whether, even apart from the detenu has a right to make a decision of the Supreme Court in representation against the the said case, there is such detention order to the detaining obligation on the detaining authority and to other authorities, authority. such as, the State Government, the Central Government and the Advisory Board?
2. Would failure to inform the Not in all cases. It would depend detenu as stated above result in upon the facts of each case whether infraction of article 22(5) of the or not there is infraction of Constitution of India and article 22(5) of the Constitution invalidation of the order of and consequent invalidation of the detention? order of detention as a result of such failure.
52. We have already stated above that learned counsel for the parties to these petitions requested us to finally decide these two petitions on appreciation of the facts in the light of the decision which we may take. In other words, learned counsel requested us to dispose of these petitions finally instead of sending them back to the Division Bench after answering the questions which are referred to us. We therefore, now proceed to examine the facts in each of these petitions and render our decision in the light of the answers given by us to the questions referred to us.
53. The detenu in Special Criminal Application No. 240 of 1987 was not informed that he had a right to be heard by the Advisory Board when he was served with the order of detention and the grounds of detention. However, as held by us, this would not ipso facto result in infraction of article 22(5) of the Constitution and invalidation of the order of detention. In the affidavit-in-reply of Mr. P. N. Roy Choudhary, Deputy Secretary, Home Department (Special), it is stated that though it is not stated in the grounds of detention that the detenu has a right of personal hearing before the Advisory Board is given as and when the personal hearing before the Advisory Board is given as and when the Advisory Board fixes the date of hearing and the State Government informs about the said date of hearing, well in advance, to the detenu by a letter. It is further stated that in the instant case, the detenu was informed of the date of hearing by a letter of the State Government dated March 9, 1987, stating that hearing of the detenu's case before the Advisory Board was fixed on March 17, 1987. It was further stated that the detenu was fully heard by the Advisory Board. This letter dated March 9, 1987, was produced before us. The letter was received by the detenu on the same day, that is, March 9, 1987, and it was clearly stated in this letter that the detenu would be heard by the Advisory Board on March 17, 1987. It is not disputed that the detenu was heard by the Advisory Board on March 17, 1987. There is nothing on record to show that full opportunity of being heard was not given to the detenu before the Advisory Board. No grievance as regards the personal hearing given by the Advisory Board is made by the detenu. It was submitted on behalf of the detenu that the detenu was given only seven days' time before the date of hearing before the Advisory Board and , therefore, it could not be said that the detenu was given sufficient time to represent his case and examine witnesses, if he wanted to examine them. However, as already pointed out above, no grievance whatsoever with regard to the hearing given to the detenu by the Advisory Board is made before the Advisory Board. There is nothing on record to indicate that the detenu complained to the Advisory Board that he did not have sufficient time and that he wanted more time to represent his case and to examine witnesses, are of the opinion that there is no infraction of the constitutional safeguards enshrined in article 22(5) of the Constitution or the statutory right conferred under clause (c) of section 8 of the COFEPOSA. Since the order grounds urged on behalf of the detenu are already rejected by the Division Bench, which has referred the question to us as stated above, we reject the contention that the order of detention is invalid and that his continued detention is illegal. The petition fails on all the grounds which are urged on behalf of the detenu and consequently it deserves to be rejected.
54. It is not disputed that the detenu in Special Criminal Application No. 554 of 1987, in the grounds of detention, was not apprised of his right to make a representation to the detaining authority. As pointed out above, all that was stated in the grounds of detention was that the detenu had a constitutional right to make a representation against his detention to the State Government, Central Government as well as the Chairman of the Advisory Board. So far as the representation to the State Government was concerned, the detenu was directed to address it to the "undersigned", that is, Mr. K. V. Harihar Das, Additional Chief Secretary to the Government of Gujarat, the detaining authority. The detenu did not make any representation to the detaining authority. The representation which the detenu made to the State Government was made through the detaining authority. It is stated in the affidavit-in-reply of Mr. P. N. Roy Choudhary, Deputy Secretary, Home Department (Special), that the detaining authority had also applied his mind to the representation made by the detenu and thereafter the said representation was also placed before the Honourable Chief Minister who also considered and rejected the representation made by the detenu. It would, therefore, appear that the detaining authority merely considered the representation of the detenu and placed it before the Chief Minister. He did not reject it after considering the same. It would, therefore, appear that no representation in fact was made to the detaining authority and though the representation addressed to the State Government was considered by the detaining authority, he did not render any decision thereon. This case, in our opinion, would therefore be squarely covered by the decision of the Supreme Court in Santosh Anand v. Union of India [1981] 2 SCC 420 referred to above. In that case also, the representation made by the detenu was considered by the detaining authority but it did not take any decision to reject the same himself. It was, therefore, held by the Supreme Court that the constitutional safeguard under article 22(5) of the Constitution had not been strictly observed or complied with. The same would be the position in the instant case also. The position would have been different had the detaining authority through through whose hands the representation passed, having considered it, had himself rejected it independently of its also being rejected by the State Government. In that case, it could have been effectively urged on behalf of the respondents that the constitutional right of the detenu was in fact not infracted and the continued detention of the detenu was not rendered invalid on the score. However, such is not the position on the facts of this case. We, therefore, hold that in the instant case also, the constitutional safeguards under article 22(5) of the Constitution have not been strictly observed or complied with. Other grounds urged on behalf of the detenu before the Division Bench are already rejected by it when it referred the question to us as stated above and, therefore, we need not deal with them. In the result, the continued detention of the detenu must be held to be illegal. Special Criminal Application No. 554 of 1987, therefore, deserves to be allowed.
55. In the result, Special Criminal Application No. 240 of 1987 is rejected and rule issued therein is discharged. Special Criminal Application No. 554 of 1987 is allowed and rule is made absolute. The detenu in the said Special Criminal Application No. 554 of 1987 is ordered to be released forthwith, if not otherwise to be detained in connection with any other case.
56. Ordered accordingly.
Shah, J.
57. I have had the advantage of going through the judgment rendered by the majority, but I find it difficult to share the views expressed therein in view of the following:
In the above two petitions, a Division Bench of this court has referred the following questions for our consideration:
Special Criminal Application No. 240 of 1987:
(1) Whether, having regard to the decision of the Supreme Court in the case of Wasi Uddin Ahmed v. District Magistrate [1981] AIR 1981 SC 2166 it is obligatory on the detaining authority, while serving the grounds of detention upon the detenu, to inform that the Advisory Board has a right of personal hearing before the Advisory Board?
(2) Would failure to inform the detenu as stated above ipso facto result in infraction of article 22(5) of the Constitution of India and invalidation of the order of detention?
Special Criminal Application No. 554 of 1987:
(1) Having regard to the decision of the Supreme Court in the case of Wasi Uddin Ahmed v. District Magistrate, AIR 1981 SC 2166 or even otherwise, is it obligatory on the detaining authority while serving the grounds of detention upon the detenu to inform that the detenu has a right to make a representation against the detention order to the detaining authority and to other authorities, such as, the State Government, Central Government an the Advisory Board?
(2) Would failure to inform the detenu as stated above result in infraction of article 22(5) of the Constitution of India and invalidation of the order of detention?
Both the aforesaid references have arisen under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, ("COFEPOSA") in short.
The factual background so far as is relevant for the purpose of these references in Special Criminal Application No. 240 of 1987 is as under:
(a) Special Criminal Application No. 240 of 1987 has been filed by the son of one Bhanuprasad Parmanand Soni, who has been detained under sub-section (1) of section 3 of the COFEPOSA. The order of detention is dated January 20, 1987. The same has been passed by the Additional Chief Secretary to the Government of Gujarat, Home Department ("detaining authority" for short). The said order was served on the detenu on January 22, 1987, along with the grounds of detention and on the said date, the detenu was taken in detention.
(b) In the grounds of detention communicated to the detenu in Petition No. 240 of 1987, it has been mentioned as follows:
"You have a constitutional right to make a representation against your detention to the detention authority, State Government, Central Government as well as to the Chairman of the Advisory Board. If you wish to avail of your right, then you should submit your representation through the jail authorities in the manner indicated below:
1. Representation meant for the detaining authority and State Government should be addressed to the undersigned:
2. Representation meant for the Central Government should be addressed to the Additional Secretary to the Government of India Ministry of Finance, Department of Revenue, New Delhi;
3. Representation meant for the Advisory Board should be addressed to the Chairman, COFEPOSA Advisory Board, in triplicate and forwarded directly through the jail authorities."
58. It is not in dispute that, in the said grounds, it was not mentioned that the detenu had a right of personal hearing before the Advisory Board. The legality and validity of the said order of detention was challenged by the son of the detenu on various grounds. One of the grounds of challenge was to the effect that failure to state in the grounds of detention that the detenu had a right of personal hearing before the Advisory Board had affected his right to make an effective and adequate representation under article 22(5) of the Constitution of India. It is not necessary to set out the other grounds of challenge in Petition No. 240 of 1987, as the Division Bench before which the petition had come up for hearing has dealt with and decided those grounds and has referred the above questions based only on the aforementioned ground.
59. Similarly, the factual background in Petition No. 554 of 1987 so far as is relevant for our purpose is that the order of detention was passed on December 8, 1986, under the provisions of the COFEPOSA Act. The same was served on January 30, 1987. The detenu, was is the petitioner in this petition, was served with the grounds of detention and documents in support thereof on the same date, namely, January 30, 1987. The detenu was taken in detention also on the same date.
(a) In the grounds of detention in this petition, it was mentioned as under:-
"You have a constitutional right to make a representation against your detention to the State Government, Central Government as well as to the Chairman of the Advisory Board. If you wish to avail to your right, then you should submit your representation through the jail authorities in the manner indicated below:
1. Representation meant for the State Government should be addressed to the undersigned:
2. Representation meant for the Central Government should be addressed to the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi;
3. Representation meant for the Advisory Board should be addressed to the Chairman COFEPOSA Advisory Board, in triplicate and forwarded directly through the jail authorities."
60. It is not in dispute that the grounds communicated to the detenu did not mention that the detenu had a right to make a representation against the order of detention to the detaining authority. In this petition also, the detenu had challenged the said order of detention on several grounds. One of the grounds on which the challenge was based was that the detenu's fundamental right to make a representation to the detaining authority, guaranteed under article 22(5) of the Constitution of India, was violated inasmuch as the grounds of detention served on the detenu did not mention that he had a right to make a representation to the detaining authority. It is not necessary to set out the other grounds on which the order of detention was challenged, as the same have already been dealt with and decided by the Division Bench before which Petition No. 554 of 1987 came up for hearing.
61. The Division Bench which heard these petitions did not render any decision on the ground that failure to mention in the grounds of detention that the detenu had a right of personal hearing before the Advisory Board raised in Petition No. 240 of 1987 and the ground that failure to apprise the detenu about his right to make a representation to the detaining authority in the case to make a representation to the detaining authority in the case of the detenu in Petition No. 554 of 1987, which grounds according to the detenus were violative of article 22(5) of the Constitution. While considering the aforesaid grounds on which the Division Bench did not render decision, the Division Bench referred to the decision of the Supreme Court in Wasi Uddin Ahmed v. District Magistrate, AIR 1981 SC 2166, a decision of this court rendered in Special Criminal Application No. 1265 of 1986 decided on May 1, 1987, Noormohamad Yakubhai Saiyed alias Bhaiya Sheth v. K. V. Hari Har Das [1987] 2 GLT 219 and various decisions of this court, in which reliance was placed on the aforesaid decisions of the Supreme Court in Wasi Uddin Ahmed, AIR 1981 SC 2166, and came to the conclusion that divergent views were expressed in the various decisions of this court in regard to the principles laid down by the Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166. The Division Bench felt that there was uncertainly as regards the correct principles laid down by the Supreme Court in the aforesaid case of Wasi Uddin Ahmed, AIR 1981 SC 2166, and, therefore, it became necessary to refer the questions which arose out of the aforesaid grounds of challenge to a larger Bench. Hence, the present references.
62. It is apposite to mention at this stage that learned counsel for the detenus and the respondents jointly requested that after answering the questions referred to us, we may ourselves, instead of referring the matters back to the Division Bench, decide these matters finally on facts also. These petitions are, therefore, being disposed of by this common judgment, since common questions are involved in these petitions:
In Icchu Devi Choraria v. Union of India, AIR 1980 SC 1983 the Supreme Court had occasion to consider article 22 of the Constitution. While considering the same, it has observed as under (at p. 1986):
"We may point out straightaway that we are not at all happy at the though 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 loses 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 only in a free society 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, this court has also, through its judicial pronouncements, created various legal bulwarks and breakwaters into the vast powers conferred on the executive by the law 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 whittling down or diluting the safeguards provided by the Constitution and the law. If the detaining authority wants to preventive 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 order 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." (Emphasis* supplied)
63. In Tara Chand v. State of Rajasthan, [1982] 52 Comp Cas 53 (SC) a case under the COFEPOSA Act, it was observed by the Supreme Court that the detenu was arrested on July 19, 1979, and on the same day, he was served with the grounds of detention in which there was no indication, although there should have been that the detenu was entitled to make a representation to the detaining authority. (Emphasis* supplied)
64. In Raziay Umar Bakshi v. Union of India, [1981] 51 Comp Cas 460 (SC) it has been observed as under (at p. 462):
"We have pointed out in several cases that courts frown on detention without trial and insist on the strict compliance with the constitutional safeguards enshrined in article 22(5) to the letter of the law, because non-compliance with these safeguards would itself be sufficient to vitiate the order of detention. Despite our repeated observations, unfortunately, however, the detaining authority continues to pass orders of detention in a casual or cavalier fashion with the result that the courts are compelled to release the detenu." (Emphasis* supplied)
65. The aforesaid decisions clearly point out as to how the Supreme Court is aware of the safeguards under article 22(5) of the Constitution. This also makes it clear that non-compliance with the safeguards would itself be sufficient to vitiate the order of detention, without more. In other words, the question of prejudice, while considering such safeguards, is irrelevant.
66. In none of the decisions prior to the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, had a contention been specifically raised that the detenu had to be apprised of his right to make a representation and of the right to be heard personally by the Advisory Board. This contention arose for the first time in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166. Strong reliance was placed on this decision of the Supreme Court on behalf of the detenus and it was pointedly urged that the Supreme Court had clearly laid down in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, that the detenu must be apprised of his aforesaid rights while communicating the grounds of detention and failure to do so would render the order of detention invalid. The respondents, on the other hand, claimed that no such rule or principle of law has been laid down by the Supreme Court in the said decision.
67. Before detailed discussion is entered upon regarding the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, it is necessary to refer to article 141 of the Constitution, which provides as under:
"The law declared by the Supreme Court shall be binding on all courts within the territory of India."
68. This article empowers she Supreme Court to "declare the law" and not to enact it. Statements on matters other than "law", for example facts, have no binding force, for the facts of no two cases would be similar. What is binding is the ratio of the decision and not any finding on facts, or the opinion of the court on any question, which was not required to be decided in a particular case. So far as obiter dicta are concerned, as obiter dictum is an observation by a court on a legal question suggested by a case before it but not arising in such manner as to require decision. It is not binding as a precedent because the observation was unnecessary for the decision pronounced by the court.
69. Keeping the aforesaid principles in mind, let us examine the aforesaid case of Wasi Uddin Ahmed, AIR 1981 SC 2166. At the outset, it needs to be emphasised that in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, a point was directly and specifically in issue as under:
"Having regard to article 22(5) of the Constitution, has a detenu to be apprised of his right to make a representation and the right to be heard personally by the Advisory Board?"
70. An answer to the aforesaid question has been provided by the Supreme Court in unmistakable and clearest terms and also with all emphasis. The answer provided in Wasi Uddin Ahmed's case, AIR 1981 SC 2166, to the aforesaid would be the law declared under article 141 of the Constitution and not the conclusion that the Supreme Court arrived at on the facts and in connection with the detention order that was before it in Wasi Uddin Ahmed's case, AIR 1981 SC 2166. An answer to the said question has to be regarded as the ratio decidendi of the case. It cannot evidently be regarded as obiter. How the law thus declared is applied to the facts of Wasi Uddin Ahmed's case, AIR 1981 SC 2166, and what conclusion is arrived at on the said facts by the Supreme Court, cannot be regard as "law declared" because the facts have no binding force and the facts of no two cases would be identical.
71. In the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, a petition under article 32 of the Constitution was moved by the petitioner for the issuance of a writ of habeas corpus for the release of his brother, Manzar Safi alias Safiuddin, who had been detained by an order of detention dated February 21, 1981, passed by the District Magistrate, Aligarh, under sub-section (2) of section 3 of the National Security Act, 1980 (Act No. 65 of 1980), on his being satisfied that the detention of Manzar Safi was necessary with a view to preventing him from "acting in any manner prejudicial to the maintenance of public order". On the same day, the District Magistrate made a report to the State Government about the passing of the detention order together with the grounds of detention. The said report was considered by the State Government and it approved the detention order under sub-section (4) of section 3 of the said Act and sent a report to the Central Government under section 3(5). The detenu was apprehended on March 9, 1981, and taken to Central Jail, Agra, where he was served with the order of detention together with the grounds of detention as well as documents on the ground that he was not conversant with Hindi. The State Government forwarded the case of the detenu to the Advisory Board in due course under section 10 of the said Act along with the distention order together with the grounds of detention. At the hearing before the Advisory Board on April 21, 1981, the detenu submitted his representation. On the same day, the Advisory Board, after considering the material placed before it and the said representation and after giving a personal hearing to the detenu, made a report to the State Government, under sub-section (1) of section 11 of the Act to the effect that there was sufficient cause for the detention. By an order dated May 1, 1981, the State Government, in exercise of the powers under sub-section (1) of section 12 of the said Act, confirmed the order of detention.
(a) The validity of the said order of detention was challenged in the said petition on several grounds. As stated above, the aforesaid contentions that the detenu had to be apprised of his right to make a representation and of the right to he heard personally by the Advisory Board were directly and specifically raised in the said case on behalf of the petitioner. While dealing with the said contentions, the Supreme Court observed as under in paragraph 17 and 18 of the judgment:
"17. In the instant case, however, there was no infraction of the constitutional safeguards enshrined in article 22(5) . We are satisfied that there was no failure on the part of the Government to discharge its obligations under article 22(5) of the Constitution and section 8 of the Act. There is no warrant for the submission that the detenu was deprived of the right of being afforded the earliest opportunity as enjoined by article 22(5) and section 8 of the Act in that he was not served with the grounds of detention and the relevant documents in support thereof at the earliest opportunity on March 9, 1981, when he was placed under detention or within a reasonable time thereafter and that the documents were indeed not furnished in a language with which he was conversant. There was no such grievance made in the representation filed by the detenu before the Advisory Board. The contention now raised that the detenu was not furnished with copies of the relevant documents is only an afterthough. In the instant case, the detenu had the earliest opportunity of making a representation when the order of detention as well as grounds of detention were served on him personally on March 9, 1981, at the Central Jail, Agra, but he refused to receive the documents on the ground that they were in Hindi. The detenu disdained from making a representation to the detaining authority. In fact, the detenu did make a detailed representation before the Advisory Board. A bare perusal of the representation would show that it was drawn up by a person conversant with law.
18. It is unfortunate that there was a failure to mention in the grounds of detention that the detenu had the right to make a representation against the order of detention as envisaged by article 22(5) of the Constitution read with section 8 of the Act, and also of his right of being heard before the Advisory Board while he was served with the order of detention. It is expected of a detaining authority, while serving an order of detention, as a rule, to mention in the grounds of detention, that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. In the present case, the grounds of detention served upon the detenu do not contain any such recital. It, however, appears that the detenu was furnished a copy of the Constitution on March 25, 1981, at the Central Jail, Fatehgarh, presumably a his own request, for the purpose of making a representation against the order of detention. The words `and shall afford' in article 22(5) have a positive content in matters of personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty, is of prime importance to the body politic. It is, therefore, imperative that the detaining authority must `apprise' a detenu of his constitutional right under article 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. The right of the detenu to make a representation under article 22(5) would be, in many cases, of little avail if the detenu is not `informed' of this right. The failure to comply with this requirement, however does not have the effect of vitiating the impugned order of detention or render the continued detention of the detenu illegal in this case for the reason that the detenu is an enlightened person and has been in active politics and was, therefore, fully cognisant of his right to make a representation under article 22(5) of the Constitution and under section 8 of the Act. In fact, the detenu appeared before the Advisory Board and filed a representation against the order of detention and was also personally heard by the Advisory Board."
(b) In paragraph 17, the Supreme Court has observed that the detenu had the earliest opportunity of making a representation when the order of detention as well as grounds of detention were served on him personally on March 9, 1981, at the Central Jail, Agra, but the detenu refused to receive the documents on the grounds that they were in Hindi and so it was the detenu who disdained from making a representation to the detaining authority. After observing as aforesaid in paragraph 17, the Supreme Court proceeded further to state in paragraph 18 that it was unfortunate that there was a failure to mention in the grounds of detention that the detenu had the right to make a representation against the order of detention as envisaged by article 22(5) read with section 8 of the Act and also of the right of being heard before the Advisory Board while he was served with the order of detention. These observations were made by the Supreme Court after it had noticed the facts regarding the detenu before the Supreme Court and after it had concluded in paragraph 17 that there was not warrant for the submission that the detenu was deprived of the right of being afforded the earliest opportunity as enjoined by article 22(5) and section 8 of the Act in that he was not served with the grounds of detention and the relevant documents in support thereof at the earliest opportunity on March 9, 1981, when he was placed under detention or within a reasonable time thereafter and that the documents were indeed not furnished in a language with which he was conversant. The Supreme Court had not only called it unfortunate that there was a failure to mention in the grounds of detention that the detenu had a right to make a representation against the order of detention as envisaged by article 22(5) read with section 8 of the Act and also of the right of being heard by the Advisory Board while he was served with the order of detention, but also proceeded to say with emphasis that it was expected of a detaining authority, while serving an order of detention, as a rule, to mention in the grounds of detention that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. It further proceeded to observe that the words "and shall afford" in article 22(5) had a positive content in matters of personal liberty; that the law insists upon the literal performance of a procedural requirement; that the need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty was of prime importance to the body politic; and that, therefore, it was imperative that the detaining authority must "apprise" a detenu of his constitutional right under article 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. It appears that the Supreme Court was thus declaring the law vis-a- vis article 22(5) of the Constitution and that too even after noticing the particular facts of Wasi Uddin Ahmed's case, AIR 1981 SC 2166. That was, therefore, the ratio decidendi of Wasi Uddin Ahmed's case, AIR 1981 SC 2166, in view of article 141.
(c) It is true that the Supreme Court in Wasi Uddin Ahmed's case (supra) did not ultimately set aside the order of detention pursuant to the aforesaid "ratio decidendi". But how the said ratio decidendi has been applied by the Supreme Court itself to the facts of the case before it cannot whittle down the said ratio decidendi. As stated above, statements on matters other than "law" for example facts, have no binding force, for the facts of no two cases would be similar. The aforesaid answer provided by the Supreme Court to the aforesaid contentions has to be regarded as the ratio decidendi of the case. That answer cannot evidently be regarded as obiter being an answer provided on contentions which were directly and specifically in issue. How the law thus declared is applied to the facts of Wasi Uddin Ahmed's case, AIR 1981 SC 2166, and what conclusion is arrived at on the said facts by the Supreme Court cannot be regarded as "law declared", because facts have no binding force and the facts of no two cases would be identical. In that view of the matter, it cannot be said with force that there is any inconsistency between the contents of aforesaid paragraph 17 and the contents of aforesaid paragraph 18.
(d) Apart from the aforesaid, if the Supreme Court was carving out an exception in Wasi Uddin Ahmed's case, AIR 1981 SC 2166, then they would not have called it "unfortunate". If the Supreme Court was carving out an exception, then it would also not have stated after noticing the facts in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, that it was, therefore, imperative that the detaining authority must apprise a detenu of his constitutional rights under article 22(5) to make a representation against the order of detention and of his rights to be heard before the Advisory Board. The Supreme Court, if it was really carving out an exception, would not also have stated that the words "and shall afford" in article 22(5) have a positive content in matters of personal liberty; that the law insists upon the literal performance of procedural requirements and that the need for observance of procedural safeguards particularly in cases of deprivation of life and liberty was of prime importance to the body politic and that, therefore, it was imperative that the detaining authority must "apprise" a detenu of his constitutional right under article 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board.
(e) The Supreme Court has used the expression "in many cases" in paragraph 18, as stated above. Looking to the contents of the whole decision and the emphasis put by the Supreme Court, while considering article 22(5) of the Constitution, it would seem that this was only a manner of expression and that by using the said expression, the Supreme Court had not carved out any exception or else it would not have also used expression such as "unfortunate", "as a rule", "imperative" and "must apprise".
(f) In paragraph 18 of the judgment in Wasi Uddin Ahmed's case, AIR 1981 SC 2166, the Supreme Court has also observed that the words "and shall afford" in article 22(5) have a positive content in matters of personal liberty and that the law insists upon the literal performance of a procedural requirement. The aforesaid observations would lose all meaning if the detenu was merely left to guess as to whom he should make a representation. Again, if the detenu was not apprised of his right to make a representation to the detaining authority while he was served with the grounds of detention, then it can hardly be said that he was afforded an opportunity at the earliest as per article 22(5) .
(g) Reading the decision in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, as a whole, it does not seem that the Supreme Court was saying that if the facts were similar as in the case of the detenu, Manzar Safi, then the detaining authority may not mention in the grounds of detention that the detenu had the right to make a representation against the order of detention as envisaged by article 22(5) read with section 8 of the Act and also the right of being heard before the Advisory Board while he was served with the detention order. The evident purpose of the Supreme Court while so stating was that such a lapse should not occur on the part of the detaining authority, in view of the interpretation that they were putting on article 22(5) read with section 8 of the said Act and by using the words, as a rule, "unfortunate", "imperative" and "must apprise". The Supreme Court was ensuring that the said purpose may not be infrastructrured. Furthermore, in Wasi Uddin Ahmed's case, AIR 1981 SC 2166, the Supreme Court has not used the expression that each case will depend upon its own facts. Wherever the Supreme Court wanted to say that each case will depend upon its facts, it has stated so itself. The Supreme Court in the aforesaid case of Ichhu Devi Choraria,AIR 1980 SC 1983, in the context of supplying documents to the detenu expeditiously, has observed as under:
"What is reasonable expedition will depend on the facts of each case."
72. Again, in Johney D' Couto v. State of Tamil Nadu, [1988] 63 Comp Cas 781, the Supreme Court, in paragraph 5 of the judgment, has made a mention of the case of Kavita v. State of Maharashtra, [1983] 53 Comp Cas 384 (SC) and has reproduced the observation of Chinnappa Reddy J. as under (at p. 784):
"Therefore, where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case..."
73. It further seems that since the aforesaid was absent in the order of detention that had already been passed, they were taking care to declare the law regarding article 22(5) read with section 8 of the said Act on a point that was directly and specifically raised before it; and that being the ratio decidendi and the law declared under article 141 of the Constitution, the same has to be followed by the High Courts and all concerned. It has seems that the Supreme Court has not allowed the hard facts of the case of Wasi Uddin Ahmad, AIR 1981 SC 2166, to make bad law.
74. The conclusion, therefore, is inevitable, pursuant to the said ratio decidendi, that mere failure or omission to apprise the detenus of their aforesaid right would result in invalidating the order of detention. The contentions, therefore, of the respondents: (1) that the ratio decidendi is that on which the court basis its decision and what is its actual decision; (2) no rule should be treated as a ratio which would not support the ultimate order; (3) that the Supreme Court reached its final conclusion on the aforesaid two contentions in paragraph 17 of its judgment in Wasi Uddin Ahmed's case, AIR 1981 SC 2166; (4) that both the contentions on the basis of which it was sought to be urged that there was infraction of article 22(5) of the Constitution were negatived by the Supreme Court; (5) that the observations made in paragraph 18 of the judgment were only to point out an ideal thing; (6) that all that the Supreme Court had suggested in paragraph 18 was that it would be advisable to apprise the detenu of his right of making a representation under article 22(5) of the Constitution and the right of being personally heard by the Advisory Board; (7) that if what was suggested on behalf of the detenu was the correct legal position emerging from the decision of the Supreme Court in Wasi Uddin Ahmed's case, AIR 1981 SC 2166, the Supreme Court would have held the detention order to be invalid as admittedly, the detenu was not apprised of his constitutional right to make a representation under article 22(5) and the right of personal hearing before the Advisory Board; and (8) that failure or omission to apprise the detenu of his right to make a representation to the Advisory Board and the right of being personally heard by the Advisory Board would not render the orders of detention invalid since there was no infraction of the constitutional safeguards enshrined under article 22(5) of the Constitution, cannot be accepted in the light of what has been stated hereinabove. Even the alternative submission on behalf of the respondents to the effect that even if the Supreme Court is held to have laid down in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, that it is obligatory on the detaining authority to apprise the detenu of the aforesaid rights in the grounds of detention, failure to so apprise would not, in all cases, result in infraction of article 22(5) of the Constitution or section 8 of the National Security Act or the corresponding statutory provisions and that whether or not there is such infraction would depend upon the facts of each case also cannot be accepted in the light of what has been stated hereinabove.
75. Strong reliance was put on behalf of the respondents on the decision in Mohd. Hussain v. Secretary, Government of Maharashtra [1982] Crl LJ 1848, rendered by the Division Bench of the Bombay High Court. In this case also, one of the contentions which was raised on behalf of the petitioner who was detained under sub-section (1) of section 3 of the COFEPOSA Act was that he was not communicated, at the time of service, of the grounds of detention on him that he had a right to make a representation as well as of being heard personally before the Advisory Board and, therefore, there was infringement of the provisions of the article 22(5) of the Constitution. The case of Wasi Uddin Ahmed, AIR 1981 SC 2166, was considered in this decision. The Bench, speaking through Sawant J., observed that the following propositions flow from the observations made by the Supreme Court in paragraph 18:
1. The detenu has a right to make a representation against the order of detention and also the right of being personally heard before the Advisory Board by virtue of the provisions of article 22(5) of the Constitution read with section 8 of the National Security Act.
2. It is expected of the detaining authority, as a rule, to make a mention in the grounds of detention that the detenu has such rights; and
3. The failure to comply with the said requirement, viz., of the intimation of such a right, does not have the effect of vitiating the order of detention or rendering the continued detention of the detenu illegal in every case. Whether it does or not will depend upon the facts of each case.
76. With respect to the aforesaid propositions Nos. 1 and 2, there can be no dispute. So far as proposition No. 3 is concerned, it is difficult to agree that the same flows from the observations made by the Supreme Court in paragraph 18 for the reasons already stated hereinabove. In Mohd. Hussain's case [1982] Crl. LJ 1848, the detenu was not apprised of his rights of making a representation to the Advisory Board and of his right to be personally heard before the Advisory Board at the time when the order of detention was made. The Division Bench of the Bombay High Court in the first instance pointed out that so far as the said two rights were concerned, article 22(5) does not spell out the same. The Division Bench further observed that the only right spelt out by the said article was that the representation made to the detaining authority would be considered indepedently by the Advisory Board and that his right of being personally heard was a right conferred upon him by clause (c) of section 8 of the COFEPOSA Act. With respect, it is not possible to subscribe to the said view also since the right to make a representation to the Advisory Board flows from article 22(5) as held by Supreme Court in the case of Wasi Uddin Ahmed, AIR 1981 SC 2166.
77. The decisions of this court in Mohd Kasam Imamudin Shaikh v. State of Gujarat [1986] GLH (UJ) 4; Hasankhan pirozkhan Pathan v. Commissioner of Police, Ahmedabad [1986] GLT 201; Ahir Kathad Samat v. State of Gujarat [1986] GLH (UJ) 39; Babubhai Gulambhai Goas v. State of Gujarat [1987] 1 GLH 568; Natvarlal Manilal Kayasha v. District Magistrate (Special Criminal Application No. 1178 of 1989 and companies matters decided on April 7, 1987); Jagdish Morarji Tanna v. Union of India (Special Criminal Application No. 1334 of 1986 and companies matters decided on April 28, 1987) and Noormohamad Yakubbai Saiyed alias Bhaiya Sheth v. K. V. Hari Har Das [1987] 2 GLT 219, were cases in which the Division Benches referred to the case of Wasi Uddin Ahmed, AIR 1981 SC 2166, and concluded on the basis of the said case of Wasi Uddin Ahmed, nothing that the respective facts in each of the aforesaid cases were different from the facts of Wasi Uddin Ahmed's case. In all the aforesaid cases, it has not been considered by the respective Division Benches as to what was the ratio decidendi in the case of Wasi Uddin Ahmed (supra) in the light of article 141 of the Constitution and whether the ultimate conclusion on facts in Wasi Uddin Ahmed's case, AIR 1981 SC 2166, reached by the Supreme Court could be regarded as a ratio decidendi in the light of article 141 of the Constitution. In none of the aforesaid decisions rendered by the respective Division Bench, has it been concluded as having been laid down in Wasi Uddin Ahmad's case that each case would depend upon its own facts. Not much assistance, therefore, can be had from the aforesaid decisions of this court while considering the present references.
78. Boricha Valabhai Nathubhai v. State of Gujarat [1987] 2 GLR 1230 was a case in which the detaining authority had not mentioned the grounds of detention that the detenu had a right to make a representation to the detaining authority. On facts, it was found that the detenu was literate and knew about his rights. Under the circumstances, it was held that the case would be covered by the ratio of the decision of the Supreme Court in the case of Wasi Ahmed, AIR 1981 SC 2166, and the order of detention could not be held to be invalid. In this view of the matter, the petition filed by the detenu was dismissed. With respect, there, the case of Wasi Uddin Ahmed (supra) has not been viewed in the proper perspective. It has not been considered as to what will be the ratio decidendi of Wasi Uddin Ahmed's case (supra) in view of article 141, the ratio decidendi of that case could be said to be the ultimate decision on the facts of Wasi Uddin Ahmed's case (supra) rendered by the Supreme Court. With respect, not much assistance, therefore, can be had from this decision also while considering the present references.
79. It appears that in Motiben Virabhai v. B. K. Sinha (Special Criminal Application No. 1317 of 1986 and another companion matter decided on July 27, 1987), a Division Bench of this court had taken the view as stated hereinafter:
"The detaining authority in this case had not mentioned in the grounds of detention that the detenu had a right to make a representation to the Advisory Board and a right to be heard before the Advisory Board. In the affidavit-in-reply filed on behalf of the respondents in that case, it was pointed out that in the grounds of detention, the detenu was informed that if he wished to be heard before the Advisory Board, he should so state in the representation addressed to the State Government. It was further stated that the detenu had submitted a written representation to the Advisory Board and that he had represented his case in person before the Advisory Board". The Division Bench was of the view that the case before it was clearly covered by the judgment in the case of Babubhai Gulambhai Goad [1987] 1 GLH 568 in which reliance was placed on the decision of the Supreme Court in Wasi Uddin Ahmed's case, AIR 1981 SC 2166. The Division Bench, therefore, reached the conclusion that the detention of the detenu was void. It is true that in this decision also, there is no discussion regarding the ratio decidendi pursuant to article 141 of the Constitution. The conclusion, however, drawn by the Division Bench is in keeping with what has been stated hereinabove regarding the ratio decidendi in Wasi Uddin Ahmed's case AIR 1981 SC 2166. I am, therefore, in respectful agreement with the conclusion arrived at in the aforesaid decision of Motiben Virabhai (Special Criminal Application 1317 of 1986 decided on July 27, 1987).
80. Several decisions of the Bombay High Court were referred to during the course of hearing. Amongst them was the decision rendered by a Division Bench (Coram: C.S. Dharmadikari, Actg. C.J. and V.P. Tipnis J.) dated September 11, 1987, in Criminal Writ Petition No. 631 of 1987 (Shenaz Begum v. State of Maharashtra). One of the contentions raised in the said petition was that in the case in question, the detaining authority who had issued the order of detention in his capacity as an officer specially empowered under sub-section (1) of section 3 of the COFEPOSA Act had only communicated to the detenu that he had a right to make a representation to the State Government as also to the Central Government, but he had not communication to the detenu that he had also a right to make a representation to the detaining authority itself and that that would violate the provisions of article 22(5) of the Constitution of India, since it would deprive the detenu of his right to make a representation to the detaining authority in the first instance. In support of the said contention, reliance was placed upon the Division Bench decision of the Bombay High Court in Criminal Writ Petition No. 356 of 1987 (Sushila Mafatlal Shah v. Union of India), decided on July 23/24, 1987. Learned counsel appearing of the respondent-State Government had not disputed that the case before the Division Bench was wholly covered by the aforesaid decision in Sushila Mafatlal Shah's case (Criminal Writ No. 356 of 1987, decided on July 23/24, 1987). However, it was contended that the said decision required reconsideration. It ws further contended that if the detenu is informed that he had a right to make a representation to the higher authority, then in view of the provisions of section 21 of the General Clauses Act, it was not necessary to inform him that he had also a right to make a representation to the detaining authority itself. According to learned counsel, the law laid down by the Bombay High Court in Sushila Mafatlal Shah's case runs counter to the decision of the Supreme Court in Raj Kishore Prasad v. State of Bihar, AIR 1983 SC 320. The Division Bench concluded that it was not possible for them to accept the said contention of learned counsel and that the decision in Raj Kishore Prasad's case, AIR 1983 SC 320, was specifically considered by the Division Bench in Sushila Mafatlal Shah's case (Criminal Writ Petition No. 356 of 1987, decided on July 23/24, 1987). After considering various decisions in the field and relying upon the decisions of the Supreme Court in Santosh Anand v. Union of India [1981] 2 SCC 420 and Pushpa v. Union of India, AIR 1979 SC 1953, the Division Bench ultimately came to the following conclusion:
"In the instant case, the detaining authority who had issued the order of detention in his capacity as an officer specially empowered under sub- section (1) of section 3 of the COFEPOSA Act had communicated to the detenu that he had a right to make a representation to the State Government as also to the Central Government. He had not communicated to the detenu that he had also a right to make a representation to the detaining authority himself. This, in our opinion, would violate the provisions of article 22(5) of the Constitution since it would deprive the detenu of his right to make a representation to the detaining authority in the first instance, and if his representation was rejected, then make another representation to the State Government and the Central representation. In view of the fact the provisions of article 22(5) of the Constitution have been breached by the detaining authority, must came to the conclusion that the order of detention in the instant case stands vitiated."
81. It was further observed that but for relying upon the same decision cited in the said judgment, nothing new had been argued or brought to the notice of the Division Bench. It was also observed that the Division Bench was informed that the decision of the Bombay High Court in Sushila Mafatlal Shah's case (supra) had been subsequently followed by another Division Bench also and that till the date of the judgment, namely, September 11, 1987, the said judgment had not been challenged before the higher court. It was in the aforesaid circumstances that the request for reconsideration of the decision in Sushila Mafatlal Shah's case (supra) was not accepted.
82. One more decision needs to be referred to. That is a decision rendered by the Panaji Bench (Goa) of the Bombay High Court in the case of Alexander Rodrigues v. D. N. Capoor (Criminal Writ Petition No. 37 of 1987 dated November 30, 1987). The order of detention in the said case was challenged on the ground that although the detaining authority informed the petitioner that he was entitled to representation against the order of detention to the Central Government as well as to the State Government, he failed to inform him that he was also entitled to represent against the said order to the detaining authority itself. In this decision, reliance was put on the aforesaid decision in Sushila Mafatlal Shah's case (Criminal Writ Petition No. 356 of 1987 decided on July 23/24, 1987) as also on the aforesaid decision in which the request for reconsideration was turned down and the same were followed. It was, however, urged by the learned Public Prosecutor in the said case that even if it was necessary to inform the detenu of his right to represent against the detention order to the detaining authority itself, if such information was not given to him, the said defect will not be fatal, since no prejudice was caused to him by such omission. While considering the said submission, it has been observed that article 22(5) of the Constitution specially gives a right to the detenu to represent against a detention order and the detenu should be fully informed about his rights to represent against such order and that if the detenu had chosen not to make a representation to one of the authorities to whom he could make it, that in no manner dispenses the detaining authority from giving full information to the detenus about his rights and that it was for the detenu to approach any of the authorities to whom he could make a representation. In that view of the matter, the order of detention was quashed and set aside in the said case.
83. In the light of what is discussed hereinabove, the questions referred to in these two petitions are answered as follows:
Special Criminal Application No. 240 of 1987:
__________________________________________________________________________ Question Answer __________________________________________________________________________
1. Whether, having regard to the Yes. It is obligatory on the decision of the Supreme Court in detaining authority while serving the case of Wasi Uddin Ahmed v. the grounds of detention upon the District Magistrate, AIR 1981 SC detenu to apprise him that he has a 2166, it is obligatory on the right of personal hearing before detaining authority while serving the Advisory Board.
the grounds of detention upon the detenu to inform the detenu that he has a right of personal hearing before the Advisory Board?
2. Would failure to inform the Yes. Failure to inform the detenu, detenu, as stated above, ipso facto as stated above, would ipso facto result in infraction of article result in infraction of article 22(5) of the Constitution of India 22(5) of the Constitution of India and invalidation of the order of and invalidation of the order of detention? detention. Whether or not there is nay infraction of article 22(5) would not depend upon the facts of each case.
Special Criminal Application No. 554 of 1987:
_________________________________________________________________________ Question Answer _________________________________________________________________________
1. Having regard to the decision of Yes. Having regard to the decision the Supreme Court in the case of of the Supreme Court in the case of Wasi Uddin Ahmed v. District Wasi Uddin Ahmed v. District Magistrate, AIR 1981 SC 2166, or Magistrate, AIR 1981 SC 2166, since even otherwise, is it obligatory on the decision is covered by the the detailing authority, while direct decision of the Supreme serving the grounds of detention Court in the said case, it is not upon the detenu, to inform the necessary to examine whether, even detenu that he has a right to make apart from the decision of the a representation against the Supreme Court in the said case, detention order to the detaining there is such obligation on the authority and to other authorities detaining authority.
such as State Government, Central Government and the Advisory Board?
2. Would failure to inform the Yes. It would not depend upon the detenu, as stated above, result in facts of each case also whether or infraction of article 22(5) of the not there is infraction of article Constitution of India and 22(5) of the Constitution , and invalidation of the order of consequent invalidation of the detention? order of detention as a result of such failure.
As stated in the earlier part of the judgment, we are required to dispose of the petitions finally on facts of the petitions on facts also.
84. In view of the answers given to the questions referred in Special Criminal Application No. 240 of 1987 in this judgment, the order of detention in question cannot be sustained and has to be set aside. The same is, therefore, quashed and set aside and the detenu is ordered to be released, if not required in any other matter and if he has not already been released on the basis that the period of his detention has already ended. Rule is made absolute accordingly.
85. In Special Criminal Application No. 554 of 1987 also, in view of the answers given to the referred questions, the order of detention in question cannot be sustained and the same has to be quashed and set aside. The same is, therefore, hereby quashed and set aside and the detenu is ordered to be released forthwith, unless required in any other case. Rule is made absolute accordingly.
FINAL ORDER OF THE COURT
86. The questions referred to this Bench by the Divisional Bench shall stand answered and the petitions shall stand disposed of as per the majority view.
87. In the result, Special Criminal Application No. 240 of 1987 is rejected and rule issued therein is discharged. Special Criminal Application No. 554 of 1987 is allowed and rule is made absolute. The detenu in the said Special Criminal Application No. 554 of 1987 is ordered to be released forthwith, if not otherwise to be detained in connection with any other case.
88. Ordered accordingly.