TaxTMI 
TaxTMI 
2006 (10) TMI 435
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...., the detenu was furnished with the grounds of detention dated 7.10.2005 which were also supplied to him that very day. The Detaining Authority submitted a report to the Government as required under law within 12 days from the date of order of detention, which passed an order approving the detention under Section 3(3) of the Act. The order of approval is dated 11.10.2005. The aforesaid order of detention was challenged before the High Court. During the pendency of the proceedings before the High Court the Advisory Board to whom the Government had referred the matter also approved the order of detention. The Government accepted the said report and passed an order in terms of Section 13 of the Act. The said order of the Government was not called in question by the detenu. Several points were urged in support of the habeas corpus petition. Primarily following points were urged in support of the habeas corpus petition. Firstly, even assuming that the detenu is a boot-legger within the meaning of Section 2(b) of the Act, his activities cannot be considered as likely to affect adversely the maintenance of public order. Secondly, the detenu had submitted his reply to the Detaining Autho....
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....hich was made and has been appropriately dealt with and in any event the detenu did not avail opportunity granted to him to make representation to the State Government. The High Court's judgment is in order. It was pointed out that the judgment of this Court in State of Maharashtra and Ors. v. Santosh Shankar Acharya (2000 (7) SCC 463) runs counter to Veeramani v. State of Tamil Nadu (1994 (2) SCC 337) which is a decision rendered by a Constitution Bench. We shall first deal with the plea taken by learned counsel for the State about Santosh Shankar Acharya's case (supra) running countered to Veeramani's case (supra). It has been noted that Veeramani's case (supra) was related to a detention under the COFEPOSA Act. In the said case in para 15 it was noted as follows:- "15. Yet another judgment of this Court relied upon in this context in Amir Shad Khan v. L. Hmingliana (1991 (4) SCC 39). That was also a case under COFEPOSA Act where the detaining authority as well as the State Government failed to forward the representation of the detenu to the Central Government. In that context this Court after having examined the provisions of Section 11 of....
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....ion 21 of the General Clauses Act and Section 11 of the Act it becomes clear that the power of revocation can be exercised by three authorities, namely, 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 11 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 detenu to represent against his detention order. Viewed in this perspective it cannot be said that the power conferred by Section 11 of the Act has no relation whatsoever with the constitutional obligation cast by Article 22(5)." Thereafter, referring to the judgment of this Court in Raziya Umar Bakshi (Smt) v. Union of India (1980 Supp SCC 195) it was further observed as u....
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....oval of the State Government is mandatory. There is no such provision in COFEPOSA. A combined reading of Sections 3 and 8 of the COFEPOSA shows that there are three authorities involved. The approval of the State Government under the Act is necessary because of Section 3(2) of the Act. A peculiar situation may arise if representation is made to three authorities. Suppose in a given case two of the authorities reject the representation and one authority accepts it. It is not conceivable that one is bound by the order of the other. Section 8 of the COFEPOSA deals with different situations and provides for a hierarchy. There is no such parallel provision in the Act. A reading of sub-section (3) of Section 3 of the Act makes it clear that the same becomes operative the moment it is passed. But it ceases to be operative unless it is approved within 12 days. In this connection para 6 of Santosh Shankar Acharya's case (supra) is relevant. The same reads as follows:- "The counsel appearing for the State strongly relied upon the decision of this Court in Veeramani v. State of Tamil Nadu, (1994 (2) SCC 337), wherein an order of detention had been issued under the provision of Tamil Na....
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.... Court did not entertain the contention that detaining authority under the provisions of National Security Act has a right to consider the representation on the ground that the order of detention had been approved by the State Government yet it had been observed that constitutionally speaking a duty is cast on the detaining authority to consider the representation which would obviously mean that if such representation is made prior to the approval of the order of detention by the State Government. This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by thi....
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....ly or with ulterior motives. In the present case, the order (grounds) of detention specifically indicated the authority to whom the representation was to be made. Such indication is also part of the move to facilitate an expeditious consideration of the representations actually made. 18. The respondent does not appear to have come with clean hands to the Court. In the writ petition there was no mention that the representation was made to the President; instead it was specifically stated in paragraph 23 that the representation was made by registered post to the first respondent on 11.5.2000 and a similar representation was made to the second respondent. Before the High Court in the writ petition the first and the second respondent were described as follows: "1. State of Tamil Nadu Rep. By its Secretary, Government of Tamil Nadu, Public (SC) Department, Fort St. George, Chennai, 600 009. 2. Union of India, Rep. By its Secretary Ministry of Finance, Department of Revenue, New Delhi." 19. As noted supra, for the first time in the review application it was disclosed that the representation was made to the President of India and no representation was made to the State of Tamil Nadu o....
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....ade to deflect the course of justice by letting loose red herrings the Court has to take serious note of unclean approach. Whenever a representation is made to the President or the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but day to day administration at respective levels are carried on by the Heads of the Department- Ministries concerned and designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in a given case. If really the citizen concerned genuinely and honestly felt or is interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the really concerned authorities and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry for relief o....