Preventive detention representation review: the detaining officer may revoke or modify the order, and effective consideration by competent authority suffices.

Under the preventive detention scheme, the officer specially empowered to make the detention order is also competent to consider a representation and, applying Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act with Section 21 of the General Clauses Act, to revoke or modify the order. The later Supreme Court observations recognising that power were treated as binding declarations of law under Article 141. The text further states that detention is not vitiated merely because the detaining officer did not independently dispose of the representation, where the representation was in substance considered and decided by the appropriate authority, because Article 22(5) is satisfied by effective consideration by a competent authority.

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Issues: (i) Whether the officer specially empowered under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 has power to revoke or modify a detention order under Section 11 of that Act read with Section 21 of the General Clauses Act, 1897. (ii) Whether the observations in the later Supreme Court decision on the officer's power to consider a representation are binding. (iii) Whether failure by the detaining officer to take an independent decision on a representation, where the representation is in fact considered by the appropriate authority, vitiates detention under Article 22(5) of the Constitution of India.

Issue (i): Whether the officer specially empowered under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 has power to revoke or modify a detention order under Section 11 of that Act read with Section 21 of the General Clauses Act, 1897.

Analysis: Section 11 of the Act empowers the State Government and the Central Government to revoke or modify detention orders, but the opening words preserve the operation of Section 21 of the General Clauses Act, 1897. The power to make an order carries with it the power to rescind, vary, or revoke it, and Article 22(5) speaks of the authority making the order. Reading these provisions together, the detaining officer is also an authority competent to receive and decide a representation and to revoke or modify the order.

Conclusion: The officer specially empowered has power to revoke or modify the detention order, and the answer is in the affirmative.

Issue (ii): Whether the observations in the later Supreme Court decision on the officer's power to consider a representation are binding.

Analysis: A clear declaration of law by the Supreme Court is binding under Article 141 of the Constitution of India even if it is not strictly necessary for disposal of the case. Where contrary observations emanate from Benches of co-equal strength, the High Court must follow the decision that is better in point of law, and a declaration by a larger Bench carries greater authority. The observations recognising the officer's power and duty to consider the representation were treated as binding declarations of law.

Conclusion: The observations are binding, and the answer is in the affirmative.

Issue (iii): Whether failure by the detaining officer to take an independent decision on a representation, where the representation is in fact considered by the appropriate authority, vitiates detention under Article 22(5) of the Constitution of India.

Analysis: Article 22(5) requires an opportunity to make a representation, but the Act permits simultaneous consideration by the detaining officer and the appropriate Government. The controlling consideration is whether the representation was in substance and in fact considered by an appropriate authority. Where the representation reaches and is decided by the competent authority, the mere omission of a lower authority to take an independent final decision does not, by itself, invalidate the detention. The approach favours substance over technicality and applies the prejudice principle.

Conclusion: Such omission does not by itself vitiate detention where the representation has been duly considered by the appropriate authority, and the answer is in the negative.

Final Conclusion: The reference was answered by holding that the detaining officer has revocation power and that the relevant Supreme Court observations are binding, while a detention order is not automatically invalid merely because the detaining officer did not independently dispose of the representation when the competent authority did so in substance.

Ratio Decidendi: Under the preventive detention scheme, the authority that makes the order may also consider a representation and revoke or modify the order, and detention is not invalidated by a lower authority's omission if the representation has been effectively considered by a competent authority in substance.

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