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TMI Blog1981 (7) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... A further representation made by the detenu on April 25, 1981 was also rejected on May 2, 1981. In the mean-time the Advisory Board met on April 29, 1981 and considered the case of the detenu. By a letter dated May 6, 1981 the detenu was informed by the Advisory Board that the Board had reported to the Government of Maharashtra advising them that there was sufficient material to justify his detention. In this application for the issue of a Writ of Habeas Corpus, the first submission of Shri Jethmalani, learned counsel for the detenu, was that although it was the Government that was required by Sec. 8(b) of the COFEPOSA to make the reference to the Advisory Board, in the instant case, it was not the Government but one of its subordinate officers that had made the reference. There was thus, according to Shri Jethmalani, a departure from the prescribed procedural requirement and for that reason the continued detention of the detenu for any period longer than five weeks mentioned in Sec 8(b) was illegal. Shri Jethmalani's contention was that Sec. 8 (b) required the Government to make a reference to the Advisory Board within five weeks from the date of detention and this meant th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be followed by the Advisory Board and requires the Advisory Board to submit its report within eleven weeks from the date of detention of the person concerned. Sec, 8 (f) stipulates that the appropriate Government shall revoke the detention order and cause the person to be released forthwith if the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned. If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Sec. 11 empowers the State Government to revoke an order of detention made by an Officer of the State Government, and the Central Government to revoke an order of detention made by a State Government, an officer of a State Government or an Officer of the Central Government. The power of the State Government and the Central Government, under Sec. 11 of the COFEPOSA, to revoke orders of detention is in addition to the power under Sec. 21 of the General Clauses Act to revoke their own orders. The first important factor to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o revoke the detention, if the Board has reported that there is no sufficient cause for the detention or, to confirm the order of detention and specify the period of detention if the Board has reported that there is sufficient cause for the detention (Sec. 8(f) COFEPOSA). In the meanwhile, at any time, the Central Government in any case, and the State Government if the order of detention was made by the State Government or by an Officer of the State Government, are entitled to revoke the order of detention. Thus there is no Constitutional or Statutory obligation on anyone, until after the report of the Advisory Board is received to decide finally or tentatively upon the period of detention. The initial compulsion on the detaining authority before making an order of detention is to arrive at the satisfaction that it is necessary to detain the person concerned with a view to preventing him from acting in a certain manner or with a view to preventing him from committing certain acts. The obligation to specify the period of detention is upon the appropriate Government and that has to be done at the final stage, after consideration of the report of the Advisory Board. There is no interm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a Deputy Minister any business appertaining to a Department or a part of a Department. It is, therefore, clear that the Minister of State, Home Affairs, Government of Maharashtra was entitled to deal with the representation of the detenu. It was suggested that it would have been more appropriate if the representation had been considered by the very individual who had exercised his mind at the initial stage of making the order of detention, namely the Secretary to the Government, Shri Samant. There is no substance in this suggestion. The order of detention was not made by Shri Samant as an Officer of the State Government specially empowered in that behalf but by the State Government itself acting through the instrumentality of Shri Samant, a Secretary to Government authorised to so act for the Government under the Rules of Business. Governmental business can never get through if the same individual has to act for the Government at every stage of a proceeding or transaction, however, advantageous it may be to do so. Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages. It may perhaps be to the advantag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Advisory Board. Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, could have; if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer. He preferred not to do so. In the special circumstances of the present case we are not prepared to hold that the detenu was wrongfully denied the assistance of counsel so as to lead to the conclusion that procedural fairness, a part of the Fundamental Right guaranteed by Article 21 of the Constitution was denied to him. The last submission of the learned counsel was that there was a non application of the mind of the detaining authority, first in making the order of detention and later in considering the representation of the detenu. It was contended that the recital in the grounds of detention that detenu had made a statement that certain documents received at the detenu's residence at the time of search pertained to the order dated 29.11.1980 of Shri Abdullahi Amin, Attache, Sudan Consulate was not correct and that the detenu's statement contained no such recital. It was said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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