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TMI Blog1994 (2) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... manner prejudicial to the maintenance of public order, by an order passed by the Commissioner of Police, Madras. The grounds of detention in support of the order were served on the petitioner in jail on February 20, 1993. In both these petitions, common grounds challenging the detention have been advanced. Before we proceed to consider the same, it 'is necessary to refer to the relevant portions of the grounds which also came under severe attack by the learned counsel for the petitioner. After referring to the subject it was mentioned thus: Thiru Veeramani, male, aged 35, s/o Kalappan, No. 28/1,Ayodhiyakuppam, Madras-5 is a Goonda. He has come to adverse notice in the following cases: S.No. (1) Police Station and Crime No. (2) Sections of law (3) Disposal/ Present Stage (4) 1. D-5 Marina P.S. Crime No. 14/91 341, 323, r/w 34 and 506(ii) IPC On 8.1.91 2. D-5 Marina P.S. Crime No. 41/91 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his material, the authority was satisfied that the petitioner and his associates acted in a manner prejudicial to the maintenance of public order. Towards the end of paragraph 3, it was mentioned as under: In arriving at my subjective satisfaction I have not taken into account the bootlegging activities of Tr. Veeramani or his connection and sentence in the murder case, as revealed in his confessional statement recorded by the Inspector of Police during the course of investigation of Cr. No. 61 of 1993 on the file of the D-5 Marina Police Station. Paragraph 4 of the grounds reads thus: I am aware that Thiru Veeramani is now in remand, he is likely to file a ball application and come out on bail. I am also aware that bail is usually granted by the courts in such cases and hence there is imminent possibility that he will come out on ball. If he comes out on bail, he is likely to indulge in such further illegal activities in future which will be prejudicial to the maintenance of public order...... Relevant portion of paragraph 5 reads thus : Thiru Veeramani is informed that he has a right to make representation in writing against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied that the person comes within the meaning of goonda'. The relevant part of the grounds which is noted above would show that the petitioner Veeramani has come to adverse notice in the six cases mentioned. Then thereafter as required under Section 3(1) of the Act, the detaining authority must satisfy himself that it is necessary to detain such a person. The detaining authority in paragraph 3 has mentioned that the two incidents and the attack on police party by the petitioner and his associates on February 11, 1993 certainlyaffected the maintenance of public order. Therefore it cannot be said that the activities mentioned in the grounds are not prejudicial to the maintenance of public order. 4. The next point urged is that on the date of order of detention the petitioner was already in custody under the orders of the Magistrate who remanded him on February 11, 1993 in connection with Crime Nos. 288 of 1993 and 237 of 1993 being accused of offences punishable under Sections 147, 148, 302, 307 IPC etc. and there was no question of his being released on bail and that as a matter of fact the petitioner did not apply for bail. Therefore, the detention was unwarranted and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he point of time when an order of detention is going to be served on a person, it 1 AIR 1964 SC 334: (1964) 4 SCR 921: (1964) 1 Cri LJ 257must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order underSection 3(1)(a), and this basis is clearly absent in the case of the petitioner. But in the same judgment it was also observed in paragraph 12 that as an abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ. In an earlier paragraph it was further observed thus : [W]hether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be released on bail and that the statement of the detaining authority in the grounds that the detenu is likely to file a bail application and come out on bail and that he was aware that bail is usually granted by the courts in such cases, is illogical and unsound. In this context the learned counsel relied on an unreported judgment of this Court in Rivadeneyra Ricardo Agustin v. Government of the National Capital Territory of Delhit. In that case in the grounds it was only mentioned that there was a 'possibility' of the detenu being released in case he moves a bail application. This Court observed that since the grounds did not indicate that such release was likely or that it was imminent and that on a mere possibility the detention order could not have been passed. The bench also examined the relevant file and observed that there was no material indicating that the release of the petitioner was likely. 8. But in the instant case what we have to mainly see is whether there was awareness in the mind of the detaining authority that the detenu is in custody and that he had reason to believe that he is likely to be released. The grounds do disclose that the detaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to declare him to be a 'goonda' and that the authority must have been influenced by some unproved and irrelevant material. In this context reliance is also placed on some of the averments in the counter-affidavit filed by the detaining authority. In paragraph 10 of the counter- affidavit the detaining authority stated that besides the first information reports, the statement of witnesses under Section 161, the confessional statement of the detenu and various other materials relating to those six cases had been placed and considered and it is also stated that it has not taken into account the bail application or the bail orders in any of the earlier cases nor relied upon. The learned counsel submitted that the material relied upon by the detaining authority has not been supplied to the detenu and that he could not make an effective representation. Therefore the detention is illegal. Learned counsel placed reliance on the judgments of this Court in Debu Mahato v. State of W.B. (1974) 4 SCC 135: 1974 SCC (Cri) 274 and Khudiram Das v. State of W.B. (1975) 2 SCC 8 1: 1975 SCC (Cri)435 wherein it was held that the grounds may not include all the basic facts and materials which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the detenu only on February 20, 1993 and according to the learned counsel the grounds ought to have been served along with the detention order and the authority ought not to have just waited for five days because the same have to be served as soon as may be as required under the statute. Learned counsel for the petitioner, however, relied on a judgment of this Court in A. K. Roy v. Union of India(1982) 1 SCC 271: 1982 SCC (Cri) 152 wherein it was observed that the normal rule is that grounds of detention must be communicated to the detenu without avoidable delay. It is not in dispute that as provided under the Act the grounds can be served within five days. In the counter-affidavit it is stated that the grounds were served within the period prescribed. It is not in dispute that as provided under the Act the grounds were served within five days. In A.K. Roy case(1982) 1 SCC 271: 1982 SCC (Cri) 152 it was also observed that in order to meet practical exigencies of administrative affairs, the authorities are permitted to communicate the grounds of detention not later than five days ordinarily but not later than IO days if there are exceptional circumstances which are to be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding 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. 12. In Ibrahim Bachu Bafan v. State of Gujarat(1985) 2 SCC 24: 1985 SCC (Cri) 49 a Bench of three Judges of this Court considered the scope of Section 11(1) of COFEPOSA Act and observed thus : (SCC p. 28, para7) That section provides that a power to issue orders 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 such orders. Under Section 21 of the General Clauses Act, therefore, the authority making an order of detention would be entitled to revoke that order by rescinding it. Relying on this observation, the learned counsel submitted that the detaining authority should have mentioned in the grounds that there is such power of revocation vested in it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the said case no doubt it was observed that as provided under Section 11(2) of the COFEPOSA Act the revocation of detention order shall not bar the making of a fresh order against the same person and that all the three authorities namely the detaining authority, the State Government and the Central Government had the power to revoke or modify. This observation was made while considering the question whether a fresh detention order can be passed after the High Court quashed the order of detention under Article 226 of the Constitution and it was observed as under : (SCC p. 30, para 10) It is, therefore, our clear opinion that in a situation where the order of detention has been quashed by the High Court, sub-section (2) of Section II is not applicable and the detaining authority is not entitled to make another order under Section 3 of the Act on the same grounds. From this observation, we find it difficult to agree that even after the approval by the Government, as provided under the other Acts the detaining authority can competently revoke the detention by itself independently. 15. Yet another judgment of this Court relied upon in this context in Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t desires to revoke any order passed by the State Government or its officer it can do so only under clause (b) of Section II (1) of the Act and not under Section 21 of the General Clauses Act. This clarifies why the power under Section II is conferred without prejudice to the provisions of Section 21 of the General Clauses Act. Thus on a conjoint reading of Section 21 of the General Clauses Act and Section II of the Act it becomes clear that the power of revocation can be exercised by three authorities, namely, the officer of the State Government or the Central Government, the State Government as well as the Central Government. The power of revocation conferred by Section 8(f) on the appropriate Government is clearly independent of this power. It is thus clear that Section 8(f) of the Act satisfies the requirement of Article 22(4) whereas Section II of the Act satisfies the requirement of the latter part of Article 22(5) of the Constitution. The statutory provisions, therefore, when read in the context of the relevant clauses of Article 22, make it clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the right conferred on the dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approved by the State Government as provided for under the other enactments. In such cases, in our view, the question of detaining authority revoking the order after such approval does not arise and the power preserved by virtue of the provisions under General Clauses Act is no more exercisable. 16.However, as a direct authority on this aspect, we find a judgment of a Bench of two Judges of this Court in State of Maharastra v. Sushila Mafatlal Shah(1988) 4 SCC 490: 1989 SCC (Cri) 1 which is directly on the point, where scope of Section II of COFEPOSA Act in conjunction with Section 21 of the Central General Clauses Act as mentioned therein has been considered. In this case Shri D.N. Kapur, Officer on Special Duty and Ex-Officio Secretary to Government of Maharashtra passed an order under COFEPOSA Act against the detenu. While in the grounds it was mentioned that the detenu had a right to make a representation also to the Government of India against the order of detention, he did not specifically mention that the detenu had also a right to make a representation to the detaining authority itself. On the ground that the constitutional safeguards under Article 22(5) had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Government that would constitute the detaining authority under the Act and not the officer concerned who made the order of detention, and it is to that Government the detenu should be afforded opportunity to make representation against the detention order at the earliest opportunity, as envisaged under Article 22(5) and not to the officer making the order of detention in order to provide the detenu an opportunity to make a further representation to the State Government and thereafter to the Central Government if the need arises for doing so. Though by reason of Section 3(1) a specially empowered officer is entitled to pass an order of detention, his constitutional obligation is only to communicate expeditiously to the detenu the grounds of detention and also afford him opportunity to make representation to the appropriate Governments against his detention. The only.further duty to be performed thereafter is to place the representation made by the detenu before the concerned officer or the Minister empowered under the Rules of Business of the Government to deal with such representation if' the detenu addresses his representation to the officer himself (emphasis supplied) It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of Article 22(5). The provisions of the Act are clear and lay down that the detention order has to be approved within 12 days and where there is no such approval, it stands revoked. Therefore the representation to be made by the detenu, after the earliest opportunity was afforded to him, can be only to the Government which has the power to approve or to revoke. That being the position the question of detenu being informed specifically in the grounds that he had also a right to make a representation to the detaining authority itself besides the State Government does not arise. 18. A contention has also been put forward that in view of the observations made by the two benches consisting of three Judges in Ibrahim Bachu Bafan case10 and Amir Shad Khan case , the matter should be referred to a larger bench. As already mentioned both these decisions deal with provisions of COFEPOSA Act where there is no provision for approval and these observations were made in a different context. We may also point out that the judgment in State of Maharashtra v. Sushila Mafatlal Shah(1982) 3 SCC 10: 1982 SCC (Cri) 530 was not brought to the notice of the court in Amir Shad Khan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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