Bombay High Court
Hiralal Ganeshmal Jain vs The State Of Maharashtra And Others on 4 February, 1992
Equivalent citations: (1992)94BOMLR128, 1993CRILJ1209
Author: Sujata Manohar
Bench: Sujata V. Manohar
JUDGMENT Smt. Sujata Manohar, J.
1. The petitioner is the brother of one Babulal Ganeshmal Jain, who has been detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, by an order of detention dated 13th of September 1990. Thereafter, the Detenu has continued to be in detention as a result of a declaration made under section 9(1) of the COFEPOSA Act on 13th of February 1991.
2. The order of detention is made by Shri L. Hmingliara, Secretary (Preventive Detention) to the Government of Maharashtra, Home Department, who has been specially empowered by the Government of Maharashtra to issue such detention orders under section 3(1) of th COFEPOSA Act. In the ground of detention, the Detenu has been informed that he has a right to make a representation to the State Government against the order of detention and such representation should be addressed to the Minister of State for Home, Mantralaya, Bombay - 400 032, through the Superintendent of Jail, where he is detained. It is also stated that the Detenu has also a right to make a representation to the Central Government against the order of detention and, for that purpose, the Detenu may make a representation and address it to the Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi, through the Superintendent of Jail. The Detenu was further informed that if he desires to make any representation to the Advisory Board constituted under the COFEPOSA Act, he may do so and submit the same through the Superintendent of Jail.
3. The Detenu made a joint representation dated 6th of February 1991, which he addressed to the officer specially empowered who had issued the detention order as well as to the State Government and the Central Government. The representation of the Detenu has been rejected by the State Government and the Detenu has been informed of the same by a letter dated 15th of February 1991 addressed by the State Government to him. The Detenu's representation to the Central Government has also been rejected by the Central Government and the Detenu has been informed of the same by a letter dated 18th of February 1991 addressed by the Central Government to him. There is no response to the representation addressed by the Detenu to the Officer who has issued the order of detention.
4. It is contended by the petitioner that under section 21 of the General Clauses Act, 1897, the Detenu has a right to make a representation to the officer specially empowered under section 3(1) of the COFEPOSA Act, who has issued the order of detention. According to the Petitioner, this right flows from section 21 of the General Clauses Act and is expressly preserved by Section 11(1) of the COFEPOSA Act. It was, therefore, the duty of the detaining, authority under Article 22(5) of the Constitution of India to inform the Detenu, in the ground of detention, of his right to make a representation not merely to the State Government and the Central Government and Advisory Board, but also to the officer specially empowered under section 3(1) of the COFEPOSA Act, who had issued the order of detention. This, however, has not been done in the present case, thus depriving the Detenu of a valuable safeguard under Article 22(5) of the Constitution of India. As a result, the order of detention is bad in law.
5. It is further submitted on behalf of the petitioner that although the Detenu in the present case was not informed of his right to make a representation to the officer who had issued the order of detention, he had, in fact, made a representation to that officer. The officer, however, has not considered the representation even as of now. This has also vitiated the order of detention.
6. In order to consider the submissions made by the Petitioner, it is necessary to examine in brief the relevant provisions of the COFEPOSA Act.
7. Under Section 3(1), the Central Government; the State Government; or any officer of the Central or State Government, not below the ranks specified in that section, who has been specially empowered in this connection by the Government in question, may issue an order of detention under that section. Therefore there are four authorities specified in this section, who can issue an order detention : (1) the Central Government; (2) the State Government; (3) an officer specially empowered by the Central Government; and (4) an officer specially empowered by the State Government. Under Section 3(2), where an order of detention is made either by the State Government or an officer specially empowered by the State Government, it is the State Government alone which has to forward, within ten days, to the Central Government a report in respect of that order. Under section 5, it is the appropriate Government which has the power to regulate the place and conditions of detention. The "appropriate Government" is defined as "the State Government" in the case of a detention order made either by the State Government or an officer specially empowered by the State Government; and "the Central Government" in the case of an order made by the Central Government or an officer specially empowered by the Central Government. Hence, the officer specially empowered has no power to regulate the place and conditions of detention. Similarly, under section 7, special powers are conferred on the appropriate Government in respect of a person who is absconding.
8. Under section 8(b), it is the appropriate Government which is required to make a reference in respect of the detention order to the Advisory Board within the time stipulated in that section. Once again, the officer specially empowered has no power to make a reference to the Advisory Board. What is more important, under Section 8(f), where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, it is the appropriate Government which is required to confirm the detention order and continue the detention. If the Advisory Board has reported that in its opinion, no sufficient cause exists for the detention of the person concerned, the appropriate Government is bound to revoke the order of detention and release the Detenu. Once again, the power to confirm the detention order; or, to release the Detenu, under section 8(f) is not conferred on the officer specially empowered. Under Section 9. The Central Government or an officer specially empowered by the Central Government has the power to detain a person for longer periods as set out in that section by making a declaration as set out therein. Under the proviso to section 10, it is stated that nothing contained in that section shall affect the power of the appropriate Government to revoke or modify the detention order at any earlier time.
9. All these provisions spell out a clear scheme, under which, once the order of detention is made, the subsequent powers are to be exercised by the appropriate Government, the only exception being in the case of section 9(1), where apart from the Central Government, even an officer specially empowered by the Central Government can issue a declaration under section 9(1). But, this power to issue a declaration is akin to the power to issue the order of detention. These sections, therefore, clearly indicate that it is the appropriate Government which has to deal with the detention orders after the orders have been made.
10. Section 11 deals with the revocation of detention orders. It reads as follows :-
"11. Revocation of detention orders :-
(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 ........."
11. We may also refer to section 12, which deals with temporary release of detenus, where also the Central Government may temporarily release a detenu, who has been detained by any of the four authorities set out in section 3(1). Under section 12(1A), when the detention order is made by the State Government, or an officer specially empowered by the State Government the State Government may temporarily release a person.
12. Thus, the provisions relating to revocation of detention order and temporary release of persons detained empower the State and the Central Government to issue such orders as set put in those provisions.
13. Shri Karmali, however, relies upon the opening words of Section 11(1), "without prejudice to the provisions of section 21 of the General Clauses Act, 1897". Section 21 of the General Clauses Act, 1897, provides as follows :-
"Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued". He has submitted that since under the COFEPOSA Act, an officer specially empowered either by the State Government or by the Central Government has the power to issue the order of detention, he has the power to revoke the order of detention issued by him and this power is preserved expressly under section 11(1) of the COFEPOSA Act. Therefore, in addition to the authorities specified in section 11, the authority issuing the detention order, including the officer specially empowered under section 3(1) has the power to revoke the order of detention.
14. Section 21 of the General Clauses Act, however, is a rule of construction. Its application depends on the relevant provisions of the statute in question. In the case of Gopi Chand v. Delhi Administration, , the Supreme Court observed that section 21 of the General Clauses Act embodies a rule of construction, the nature and extent of the application of which must inevitably be governed by the relevant provisions of the statute which confers the power to issue the notification. On the same basis, in the case of State of Bihar v. D. N. Ganguly, the Supreme Court did not apply the principles embodied in section 21 of the General Clauses Act to section 10(1) of the Industrial Disputes Act, and held that the Act did not expressly confer any power on the appropriate Government to cancel or supersede a reference made under section 10(1) of that Act. Such power could not be claimed by implication on the strength of section 21 of the General Clauses Act, looking to the scheme of that Act.
15. In the present case, the scheme of the COFEPOSA Act does not envisage that the officer who has been empowered to issue the order of detention plays any further role thereafter. He cannot, for instance, make a reference to the Advisory Board. He can neither confirm nor revoke the detention order as per the opinion of the Advisory Board. He cannot regulate the place or conditions of detention. Section 10, which preserves the power of appropriate Government present to revoke detention orders, makes no reference to any power of the empowered officer to revoke detention orders. The express power of revocation under section 11(1) is also conferred only on the State Government and the Central Government as set out in that section. It is further provided that this express conferment of power is without prejudice to the provisions of section 21 of the General Clauses Act. This provision appears to be ex abundant cautela. It preserves the power of the State or the Central Government to revoke its own order even dehors section 11(1). Thus, for example, although section 11(1)(b) provides that an order made by the State Government can be revoked by the Central Government, section 21 of the General Clauses Act would preserve the power of the State Government itself to revoke the order of detention. But, looking to the scheme of the COFEPOSA Act, an empowered officer officer of the State or the Central Government does not have any power to revoke the order passed by him. In fact, no role is envisaged for him beyond issuance of the detention order. This power cannot be conferred on him by resorting to section 21 of the General Clauses Act, in the teeth of the Scheme of the Act.
16. This question, however, is not resintegra. In the case of the State of Maharashtra v. Sushila Mafatlal Shah, , the Supreme Court was directly concerned with this question. The challenge before the Supreme Court was to the following effect (Para 5, p. 2094) :-
"As the order of detention had been passed by D. N. Capoor in his capacity as a person specially empowered by the Government of Maharashtra to issue the order of detention under S. 3(1) of the COFEPOSA Act, the detenu had a right to make a representation to him in the first instance and only thereafter to make representation to the State Government or to the Central Government if need be. In the grounds of detention the detenu had only been informed that he had a right to make a representation to the State Government as also to the Government of India against the order of detention, but he had not been communicated that he had also a right to make a representation to the Detaining Authority i.e. D. N. Capoor himself. Failure to notify the detenu of his right to make a representation to the detaining Authority violated the constitutional provisions of Art. 22(5) inasmuch as the detenu had been deprived of his right to make a second representation to the State Government in the event of the Detaining Authority D. N. Capoor, rejecting his representation".
This contention is identical to the contention, which is raised before us. In order to deal with this contention, the Supreme Court framed the following question (Para 10, page 2095) :-
5th February 1992 "(1) Does an order passed by an officer of the State Government or the Central Government, specially empowered for the purposes of S. 3(1) by the respective Government, make him the Detaining Authority and not the State Government or the Central Government as the case may be, and obligate him to inform the detenu that he has a three fold opportunity to make his representations i.e. the first to himself and the other two to the State Government and the Central Government.
(2) Whether for the purposes of the Act, There is any difference between an order of detention passed by an officer of the State Government or the Central Government, solely in exercise of the powers conferred on him under section 3 by the respective Government and an order of detention passed by the State Government or the Central Government as the case may be through an officer who in addition to conferment of powers under section 3 is also empowered under the Standing Rules framed under the Rules of Business of the Government, to act on behalf of the Government.
(3) Whether by reason of the fact that an order of detention is passed by an officer of the State Government or the Central Government specially empowered to act under S. 3 of the Act, a detenu acquires a constitutional right to have his representation first considered by the very officer issuing the detention order before making a representation to the State Government and the Central Government".
17. These are the very questions which arise for determination before us. The Supreme Court, after considering the scheme of the COFEPOSA Act, has come to the conclusion that, under the provisions of the Act, no power of revocation is conferred on an officer of the Central or the State Government, although he may be specially empowered under section 3(1) to make an order of detention. It has said that, even though Section 11 specifies that the powers of revocation conferred on the Central Government or the State Government are without prejudice to the provisions of Section 21 of the General Clauses Act, this reservation will not entitle a specially empowered officer to revoke a detention passed by him, because the order of the specifically empowered officer acquires "deemed approval" of the State or the Central Government, as the case may be, automatically. BY reason of such deemed approval, the powers of revocation, even in terms of Section 21 of the General Clauses Act, will be only with the State Government and/or, the Central Government. In other words, the Supreme Court has held that even though the order of detention may be passed by an officer specially empowered, the order of detention is in effect, the order of the State Government or the Central Government, as the case may be, and, therefore, the detenu does not have any right under Article 22(5) of the Constitution to make a representation to the officer specially empowered. The representation is for the purpose of securing the release of the detenu and hence it can effectively be made only to the authority or the authorities which have the power to revoke the order of detention. The Supreme Court has said in this connection (Para 13, page 2096) :-
"We can, therefore, conclude without further discussion that on the plain language of Art. 22(5) that Art. 22(5) does not provide material for the detenu to contend that in addition to his right to make a representation to the State Government and the Central Government, he has a further right under Art. 22(5) to make a representation to D. N. Capoor himself as he had made the order of detention".
18. While dealing with the contention that the representation should be made to the same officer who had made the order of detention, the Supreme Court said that there is no special advantage to the detenu in having his representation dealt with by the same individual who had made the order of detention; on the contrary, it may, perhaps, be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages. In this connection, the Supreme Court referred to the judgments of the Supreme Court in the case of Kavita v. State of Maharashtra, and Masuma v. State of Maharashtra, .
19. As against this direct authority of the Supreme Court, Shri Karmali, learned Advocate for the Petitioner, has relied upon two Judgment of the Supreme Court. The first Judgment is in the case of Ibrahim Bachu Bafan v. State of Gujarat, . In this case, the Supreme Court dealt with a situation where the order of detention was quashed by the High Court of Gujarat on the ground that the order was violative of Article 22(5) of the Constitution. A fortnight thereafter, a fresh order of detention was made detaining the petitioner on the same grounds. The question before the Court was whether the power of making a fresh order under section 11(2) of the COFEPOSA Act is available when the earlier order of detention is quashed by the High Court in the exercise of its powers under Article 226 of the Constitution. Section 11(2) of the COFEPOSA Act provides that the revocation of a detention order shall not bar the making of another order under section 3 against the same person. The Supreme Court held that Section 11(2) was not applicable to a case where the previous detention order was not revoked, but was quashed in a proceeding before the High Court. In considering the scope of Section 11(2) the Court also went into the provisions of Section 11(1) of the COFEPOSA Act. The Court observed that the power conferred under clauses (a) and (b) of sub-section (1) of Section 11 is, in fact, an extension of the power recognised under section 21 of the General Clauses Act and, "while under the General Clauses Act, the power is exercisable by the authority making the order, the named authorities under clauses (a) and (b) of S. 11(1) of the Act are also entitled to exercise the power of revocation".
20. The Supreme Court further said (Para 6, page 699) :-
".......... the words 'without prejudice to the provisions of S. 21 of the General Clauses Act. 1897'used in Section 11(1) of the Act give expression to the legislative intention that without affecting that right which the authority making the order enjoys under section 21 of the General Clauses Act, an order of detention is also available to be revoked or modified by authorities mentioned in clauses (a) and (b) of Section 11(1) of the Act ......."
21. Shri Karmali places strong reliance on these observations of the Supreme Court in support of the contention that as the order of detention is made by the officer specially empowered by the State Government in the present case, he has the power to revoke the order of detention in view of Section 21 of the General Clauses Act.
22. It is, undoubtedly, true that, in general terms, the authority making an order under the COFEPOSA Act would have the power to revoke the order of detention by virtrue of Section 21 of the General Clauses Act unless there is anything in the Act which indicates to the contrary. The Supreme Court in Ibrahim Bachu Bafan's case (supra) was not required to consider whether an order of detention made by an officer specially empowered by the State Government under section 3(1) of the COFEPOSA Act is, in effect, the order of the State Government; or whether such an officer is an independent authority in his own right having all powers and control over the order of detention, including the power to revoke it. This question did not arise before the Supreme Court at all. Hence, these observations of the Supreme Court in Ibrahim Bachu Bafan's case cannot be read as conferring on an officer specially empowered, the power of revocation. Secondly, if the observations do convey this meaning, then the observations are not germane to the ratio of the case before the Supreme Court. These observations, at the highest, can be considered only as obiter dicta of the Supreme Court. They cannot prevail over a direct authority of the Supreme Court, which decides the point in issue before us. We will turn to this aspect a little later.
23. The next authority, on which strong reliance is placed by Shri Karmali, is a recent judgment of the Supreme Court in the case of Amir Shad Khan v. L. Hmingliana, . In fact, it is by virtue of this judgment of the Supreme Court that the plea in question has been taken before us. In Amir Shad Khan's case (supra), the detenu had made a representation to the officer issuing the detention order (who was an officer of the State Government specially empowered under section 3(1)) and forwarded it through the Superintendent of Jail. In his representation the detenu made a request to him that copies of his representation be sent to the State and Central Government for their consideration so as to revoke and/or set aside the order of detention passed against him. The officer forwarded a copy of this representation to the State Government, which considered it and rejected it. The representation, however, was not forwarded by him to the Central Government. And hence, the Central Government had no occasion to consider the representation. The detention order was challenged on the ground that the representation was not forwarded to the Central Government, which had the power to revoke the order of detention, and, hence, the right of the detenu under Article 22(5) of the Constitution was violated. The Supreme Court upheld this challenge to the order of detention. In considering these challenge, the Supreme Court considered the scheme of the COFEPOSA Act, and, in particular, the provisions relating to the revocation of an order of detention under section 11 of the COFEPOSA Act. It observed (Para 3, page 1988 at page 2718 of Cri LJ :-
".... It is obvious from a plain reading of the two clauses of sub-section (1) of Section 11 that where an order is made by the officer of the State Government, the State Government as well as the Central Government are empowered to revoke the detention order. Where, however, the detention order is passed by an officer of the Central Government or a State Government, the Central Government is empowered to revoke the detention order. Now this provision is clearly without prejudice to Section 21 of the General Clauses Act which lays down that where by any Central Act a power to issue order is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions. If any, to rescind any order so issued. Plainly the authority which has passed the order under any Central Act is empowered by this provision to rescind the order in the like manner. This provision when read in the context of Section 11 of the Act makes it clear that the power to rescind conferred on the authority making the detention order by Section 21 of the General Clauses Act is saved and is not taken away. Under Section 11 an officer of the State Government or that of the Central Government specially empowered under section 3(1) of the Act to make a detention order is not conferred the power to revoke it; that power for those officers has to be traced to Section 21 of the General Clauses Act ...."
24. These observations of the Supreme court are directly contrary to the decision of the Supreme Court in Sushila Mafatlal's (supra). But, in Amir Shad Kha's case, the Supreme Court was not concerned with deciding whether an officer specially empowered under section 3(1) of the COFEPOSA Act had the power to revoke the order of detention or not under section 21 of the General Clauses Act; read with section 11(1) of the COFEPOSA Act. The Supreme Court was concerned with the right of a detenu to have a copy of the representation forwarded to the Central Government, which had admittedly and undisputedly the power to revoke an order of detention. The observations cited above are, therefore, not a part of the ratio decided in Amir Shad Khan's case. A perusal of the judgment also reveals that the attention of the Supreme Court was not drawn to its earlier judgment in Sushila Mafatlal's case, quite possibly because the question of making a reference to Sushila Mafatlal's case did not arise since the point at issue in Amir Shad Khan's case was a little different. The observations referred to above, therefore, are general observations. At the highest, these are obiter dicta of the Supreme Court, they cannot prevail over the direct findings of the Supreme Court on the point which is before us for consideration. The observations are, therefore, not binding on us, but the findings in Sushila Mafatlal's case are.
25. It is undoubtedly true that even obiter dicta of the Supreme Court would be binding on us. But when we have a direct decision of the Supreme Court on the Point at issue, as against two decisions of the Supreme Court where observations to the contrary are in the nature of obiter dicta or general observations, the direct authority prevails over such obiter dicta or general observations.
26. It was sought to be argued that the judgment in Sushila Mafatlal's case is a judgment of only two Judges; while the judgment of three Judges of the Supreme Court. Hence, the latter must prevail. But, once again, the two judgments cannot be compared in the present case in this fashion, because, while one judgment is a direct authority on the question before us, the other judgment only contains obiter dicta of the Supreme Court on the point in issue. Hence, the latter cannot prevail over the former.
27. In fact, whether the observation of the Supreme Court in Ibrahim Bachu Bafan's case and in Amir Shad Khan's case have the status even of obiter dicta is a matter of some doubt. In the cases of Mohandas Issards v. A. N. Sattanatham, reported in LVI (1956) Bom LR 1156 : (1955 Cri LJ 423) a Division Bench of this High Court presided over by Chagla, C.L., has discussed the question as to what is an obiter dictum. The court said that an obiter dictum is an expression of opinion on a point which is not necessary for the decision of a case; but, the point in question must arise for determination in that case, although it may not, in fact, be necessary to decide it. It further said (page 1161) at page 116 of AIR 1955 Bom. :-
"........ It is not merely an expression of opinion unconnected with the point that arises, but it must be an opinion given on a point which arises for determination ......"
It is only in these circumstances that an obiter dictum of the Supreme Court would be binding on the High Court. The court further said (Page 1163) at page 117 of AIR :-
".......... The only opinion (of the Supreme Court) which be binding would be an opinion expressed on a question that arose for the determination of the Supreme Court, and even though ultimately it might be found that the particular question was not necessary for the decision of the case, even so, if an opinion was expressed by the Supreme Court on the question, then the opinion would be binding upon us ...."
28. Without going further into this question, even if we assume that the observations of the Supreme Court in Ibrahim Bachu Bafan's case and Amir Shad Khan's case are in the nature of obiter dicta and would be ordinarily binding upon us, in the present case, in view of a direct authority of the Supreme Court on the point at issue, which holds contrary to what the obiter dicta state, we cannot give to these obiter dicta an overriding effect over the direct findings of the Supreme Court itself. The size of the Bench of the Supreme Court, or, the date when the Judgments were delivered, becomes irrelevant in this context.
29. We are fortified in this conclusion by a decision of the Full Bench of the Delhi High Court in the case of Mohd. Saleem v. Union of India, . The Delhi High Court was also required to decide whether a specially empowered officer under section 3(1) of the COFEPOSA Act, has the power to revoke or rescind the detention order. The Full Bench of the Delhi High Court held that under the scheme of the COFEPOSA Act, the detaining authority is the Central Government or the State Government, as the case may be, inspite of the fact that the detention order has been made throughout the instrumentality of an officer empowered under section 3(1). The detenu has no right to have his representation decided by the specially empowered officer and the specially empowered officer is not obliged to decide the representation of a detenu. The Delhi High Court also held that Section 21 of the General Clauses Act does not "preserve" the powers of an officer specially empowered under section 3(1) of the COFEPOSA Act to revoke the order of detention made by him. The Judgment of the Delhi High Court was delivered before the Judgment of the Supreme Court in Amir Shad Khan's case. The Delhi High Court, however, had before it the judgments of the Supreme Court in Ibrahim Bachu Bafan's case and in Sushila Mafatlal's case, the Delhi High Court has also held that the observations of the Supreme Court in Ibrahim Bachu Bafan's cases in this connection are obiter dicta and they cannot prevail over the decision of the Supreme Court in Sushila Mafatlal's case.
30. Shri Karmali has relied upon the decision of the Supreme Court in the case of Tara Chand v. State of Rajasthan, in order to establish that the right of the detenu to make a representation to the Central Government is a right which flows from Article 22(5) of the Constitution. We need not examine this aspect any further, because there is no dispute that under Article 22(5) of the Constitution, a detenu has guaranteed to him a right to make a representation. Such a representation, to have any effect, must be a representation to all those authorities who have the power to revoke an order of detention or to rescind it. Since this is a right which flows from Article 22(5) of the Constitution, a denial of this right would undoubtedly result in the order of detection being set aside. We, therefore, need not examine any further authorities in this connection.
31. It was also submitted before us by the learned Advocate-General that Section 21 of the General Clauses Act can have no application to a situation such as the one which is before us. Section 21 of the General Clauses Act, states : "Where, by any Central Act or Regulation, a power to issue ..... order .... is conferred, then that power includes a power ..... to ..... rescind ..... orders ...... so issued". It is submitted by him that the power to make an order of detention is not conferred on the specially empowered officer under the COFEPOSA Act. S. 3 of the COFEPOSA Act merely authorises the State Government or the Central Government to empower an officer not below the ranks set out in that section to issue order of detention. It is only after such conferment by the State Government that the officer acquires the power to issue an order of detention. Hence, the power of such an officer to issue a detention order does not flow directly from the COFEPOSA Act. It flows from the COFEPOSA Act coupled with empowerment by the State Government or the Central Government. Hence, Section 21 of the General Clauses Act, which in terms applies only to a power which is conferred by the Central Act itself, or a Regulation, would not apply to an order passed by an officer specially empowered. He has also drawn our attention to the definition of 'Regulation' under section 2(50) of the General Clauses Act. "Regulation" is defined to mean" a Regulation made by the President under Article 240 of the Constitution and shall include a Regulation made by the President under Article 243 thereof and a Regulation made by the Central Government under the Government of India Act, 1870, or the Government of India Act, 1915, 1919, or the Government of India Act, 1935." A resolution of the State Government or the Central Government empowering an officer under section 3(1) of the COFEPOSA Act to issue an order of detention does not fall within the definition of 'Regulation' under section 2(50) of the General Clauses Act. There is considerable force in this submission also.
32. In the premises, the detention order in the present case cannot be set aside on the ground that the Detenu was not informed of his right to make a representation to the officer specially empowered by the State Government and who had issued the order of detention in the present case. The further contention that the representation, which was in fact made by the a detenu to the officer specially empowered not being considered by him, also loses force, because the officer has no power to revoke the order of detention after considering the representation, and hence, any representation to him would be pointless.
33. In the premises, the petition is dismissed and the rule is discharged.
34. Petition dismissed.