TaxTMI 
TaxTMI 
TaxTMI 
1994 (2) TMI 322
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.... 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. 41/91 341,324,336,426 & 506(ii) IPC r/w 109IPC On 17.1.91 3. D-5 Marina P.S. Crime No. 379/91 448, 324 and 307 IPC On 18.5.91 4. D-5 Marina P.S. Crime No. 380/91 341, 324 IPC On 18.5.91 5. R-7 K.K. Nagar P.S. Crime No. 288/93 141,341,302 & 506(ii) IPC On 10.2.93 6. ....
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....ly 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 order by which he is kept in detention. If he wishes to make such a representation he should address it to the Secretary to Government, Prohibition and Excise Department, Madras 9 and forward it through the Superintendent of Prison in which he is confined as expeditiously as possible." 3. At the outset, the learned counsel in general way submitted that the first six crimes referred to are of 1991 and they are remote and it appears as though the detaining authority has taken them also into consideration and they are not of that magnitude as to disrupt public order and the other two incidents of February 10, 1993 mentioned in the grounds can be only prejudicial to the maintenance o....
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....ext 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 it shows that there is no genuine satisfaction regarding the detention as required under the Act and therefore the order is illegal. As extracted above the detaining authority noted in paragraph 4 that he was aware that the petitioner is on remand and that he was likely to file a bail application and that bail is usually granted by the courts in such cases and that if he comes out on bail, he is likely to indulge in such further illegal activities prejudicial to the maintenance of public order. The learned counsel, however, contended that the petitioner who was involved in a murder case punishable under Section 302 IPC would not be released so casually as is being stated by the detaining authority and that only sho....
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....ction 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 order of detention a few days before the person is likely to be released. * * * Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case." But in later case this question has been considered further and this Court has clearly laid down that no decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances and that the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a de....
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.... 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 detaining authority was aware that the detenu is in custody and it is further mentioned that he was also aware that bail is usually granted by the courts in such cases and it is further emphasised that there is 'imminent possibility' of the detenu coming out on bail. As a matter of fact the High Court in its judgment while considering this aspect also observed thus : "The grounds indicate that the detenu, who was in remand, was likely to file a bail application and come out on bail. This shows the subjective satisfaction of the detaining authority not only of the awareness of the petitioner being in remand, but his subjective satisfaction of the likelihood of the petitioner coming out on bail by filing bail application. Of course, the detaining....
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....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 have been taken into account by the detaining authority in making the order of detention which must be communicated to the detenu. But the real question is whether those materials which have just been placed before the detenu also formed basis for arriving at the necessary satisfaction and whether they thus constitute part of the grounds. In paragraph 3 of the grounds, it is clearly stated that: "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." The grounds fu....
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.... 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 recorded. It can therefore be seen that if the grounds are served beyond five days then the reasons for delay ought to be recorded. The words "as soon as may be" should be understood in the context in which they are used. If the grounds are served within five days, it must be construed that they are served as soon as possible. In the counter- affidavit it is stated that the grounds were served within five days from the date of passing the order. 11. The further submission of the learned counsel for the petitioner is that the detaining authority has the power to revoke the detention and such power is preserved as provided under Section 14 of the Act and that in the grounds it is not indicated that he can make representation for such revocation by the detaining au....
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....o 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 and that the detenu could make representation to the detaining authority also. 13. We see no force in this submission. In Ibrahim Bachu Bafan case10 nothing is mentioned about the right of the detenu to make representation to the detaining authority itself on the basis of the language of Section II of COFEPOSA Act. It is important to note that in COFEPOSA Act, there is no provision to the effect that when an authorised officer of the State Government passes detention order, he should report the fact to the State Government along with the grounds and that no such order shall remain in force for 12 days after making thereof unless in the meantime it has been approved by the State Government. In other words, tile approval of the State Government is not contemplated underCOFEPOSA Act and what all Section 3....
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....r 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 Amir Shad Khan v. L. Hminglianal (1991) 4 SCC 39: 1991 SCC (Cri) 946. 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 II of COFEPOSA Act observed thus : (SCC pp. 48- 49, para 3) "It is obvious from a plain reading of the two clauses of sub-section (1) of Section II that where an order is made by an 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 cle....
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....reas 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 detenu to represent against his detention order. Viewed in this perspective it cannot be said that the power conferred by Section II 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 India1980 Supp SCC 195: 1980 SCC (Cri) 846 it was further observed as under : (SCC p. 50, para 4) " This observation would show that the power of revocation conferred by Section I 1 of the Act has a nexus with the right of representation conferred on the detenu by Article 22(5) and, therefore, the State Government when requested to forward a copy of the representation to the Central Government is under an obligation to do SO." Relying on these observations it is also contended that it must be presumed that ....
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....rounds 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 violated inasmuch as the detenu had been deprived of his right to make a representation to the detaining authority itself before availing of his right to make further representation to the State Government or the Central Government, the detention order was quashed by the High Court. After considering these relevant provisions, it was held as under : (SCC pp. 501-02, para 19) "Lastly, Section I 1, which deals with the powers of revocation of the State Government and the Central Government provides that notwithstanding that an order of detention had been made by an officer of a State Government, the concerned State Government as well as the Central Government are entitled to revoke or modify the order of detention. Similarly, as per clause (b) notwithstanding that an order of detention has been made by an officer of the Central Government or....
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....nments 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 is thus held that under the provisions of the COFEPOSA Act, an order of detention passed by the specially empowered officer acquires a deemed approval of the State Government or the Central Government, as the case may be, automatically and by reason of such deemed approval, the powers of revocation even in terms of Section 21 of the General Clauses Act will fall within the domain of the State Government or the Central Government. In making these observations this Court has also taken note that unlike any other preventive detention Acts the COFEPOSA Act does not provide for any approval by the Government, of an order passed by an officer specially empowered to make the order. That being the legal position, as held by the bench, a fortiori, the detention order passed under the other enactments where there is specific provision ....
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.... 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 case, 1. Therefore, we do not think that the present matter which arises under the Tamil Nadu Act provisions of which on this aspect are similar to National Security Act or Maintenance of Internal Security Act, providing for approval of the detention order by the Government and which are different from COFEPOSA Act, requires to be referred to a larger bench. 19. In Raj Kishore Prasad v. State of Biharl4 which was a case arising under the Prevention of Detention Act, considering the question as to who is the competent authority to consider the representation, this Court held as under: (SCC pp. 13-14, para 6) "When Parliament permitted the Central or State Government to permit exercise of power by the officers like the District Magistrate or Commissioner of Police, it thought it prudent to provide that even if the officers like D....