TaxTMI 
TaxTMI 
1994 (8) TMI 319
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....s failure to take independent decision on revocation of order of detention by the specially empowered officer under the COFEPOSA Act and merely forwarding the same with recommendation to reject, result in non-compliance with constitutional safeguard under Art. 22(5) of the Constitution. 2. We have heard very interesting arguments advanced by Mr. Karmali for the Petitioner, by Mr. Agrawal for the Union of India and by Mrs. Ranjana Desai for the State of Maharashtra and while we have derived considerable assistance from them, we have never entertained any doubt throughout the course of the arguments that the answers to question No. 1 and also question No. 2 must be in the affirmative. 3. Article 22(5) categorically provides that when a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making an order shall, as soon as may be, communicate to such person the grounds on which the order has been made and "shall afford him the earliest opportunity of making a representation against the order". This clause does not specify as to whom the representation is to be made and how the representation is to be dealt with, bu....
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....d since as a result of the operation of Art. 367 of the Constitution, the provisions of the General Clauses Act, 1897 apply for the interpretation of the Constitution also, the person "making the order" would automatically be clothed with the power to revoke or modify the same. We, therefore, have no manner of doubt that even though Section 11 of the COFEPOSA Act expressly mentions only the State Government or the Central Government as the authority empowered to revoke or modify a detention order, the authority making the order of detention would also have clear authority to revoke or otherwise modify the same as a result of the operation of the provisions of Sections 21 of the General Clauses Act, which has been expressly (though unnecessarily) saved by the provisions of Section 11 of the COFEPOSA Act and also of Art. 22(5) of the Constitution read with Art. 367 thereof. This ought to have been sufficient to dispose of question No. 1 as noted hereinabove, but then, as noted in the Order of Reference, a two Judge Bench decision of the Supreme Court in Sushila Mafatlal Shah 1989CriLJ99 appears to be very categorical in laying down that there is nothing in the COFEPOSA Act ....
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....n of later three Judge Bench in Amir Shad Khan 1991CriLJ2713 where, though without any advertence to either Ibrahim Bachu Bafan 1985CriLJ533 (supra) or Sushila Mafatlal Shah, 1989CriLJ99 (supra), it has again been held that under section 21 of the General Clauses Act, operation whereof has been expressly saved by the opening words of Section 11 of the COFEPOSA Act, the officer making order of detention in exercise of the power specially conferred upon him under section 3 of the COFEPOSA Act, is also the authority to whom the person detained is entitled to make representation against the order of detention and such officer is also obliged to consider the same and to make decision thereon. 6. While making the Order of Reference, the Division Bench, speaking through Mohta, J., was inclined to hold that it was to be governed by the decisions in Ibrahim, Bachu Bafan 1985CriLJ533 (supra) and Amir Shad Khan 1991CriLJ2713 (supra), as they emanated from Larger Benches that than in Sushila Mafatlal Shah 1989CriLJ99 (supra). But his attention was drawn to a Division Bench decision of this High Court in Hiralal Ganeshmal Jain (1992)94BOMLR128 Where the Division Bench, speaking through Sujata ....
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....h order under section 11(2) of the COFEPOSA Act was not available to be exercised as the previous order was not revoked under section 11(1) but was only quashed by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution and in Amir Shad Khan 1991CriLJ2713 (supra) the order of detention was quashed on the ground that even though the detenu categorically requested the Detaining Authority to take out copies of his representation and to send them to the State Government and the Central Government, the same request was not acceded to resulting thereby in violation of the provisions of Article 22(5) and, therefore the observations in the aforesaid two decisions relating to the power and obligation of the officer making the order of detention to consider and decide the representation made by the detenu were obviously obiter dicta. But as we have already indicated, any observation in any decision of the Supreme Court amounting to clear declaration of law is good enough to bind us under Article 141, whether or not any such declaration has been followed therein with actual application. And that being so, the declaration of law emanating from a large....
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....d invalidate the detention order. 10. It must, however, been noted that under the COFEPOSA Act, as will clearly appear from the provisions of Section 11 thereof, the State Government or the Central Government, as the case may be, are also the appropriate authorities for consideration of the representation, though the officer specially empowered to make the order of detention is also one such authority because of the provisions of Section 21 of the General Clauses Act. The question, therefore, is that where such a representation is made to the officer making the order of detention, whether the failure on his part to come to a final decision on his own would by itself, be fatal if, in fact, the officer nevertheless forwarded the representation to the appropriate Government and the latter considered and rejected the same. The entire basis for the decision in Santosh Anand (supra) is the assumption that the detenu cannot approach the State Government unless and until the representation is rejected by the detaining authority and/or cannot approach the Central Government either unless he fails to get relief from the State Government. The observation (at p. 422) that "if the represe....
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....uld also be noted that the decision in Santosh Anand (supra) was also noticed by the two-Judge Bench in Raj Kishore Prasad 1983 CriLJ 629 (supra). 12. There should be no doubt, as pointed out in Sat Pal 1981 CriLJ 1867 (supra), which was a case under the COFEPOSA Act, that "the Court must look at the substance of the matter and not act on mere technicality. We must not for a moment forget that all the rights guaranteed by Part III of the Constitution may be required to suffer in the interests of the security of the State as has been pointed out by a three-Judge Bench of the Supreme Court, while dealing with a case under the COFEPOSA Act, in Prakash Chandra Mehta 1986CriLJ786 , to which our attention has been drawn by Mr. Agrawal. The relevant observations are as hereunder :- ".... smuggling of foreign exchange racketeering and related activities have a deleterious effect on the national economy and thereby a serious adverse effect on the security of State. The society must be protected from that social menace by immobilizing the persons by detention of the persons engaged in those operations and to disrupt the machinery established for furthering smuggling and foreign ....
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....e same has finally been considered by an appropriate authority specified under the relevant law. As we have already noted, in the case at hand, even assuming that there was a failure on the part of the officer making the order of detention to consider and decide the representation, the representation has nevertheless been considered and decided by the Finance Minister, who is undoubtedly an appropriate authority for the purpose of consideration of the representation and decision thereon. 14. It has been pointed out by one of us, while speaking for a Special Bench of the Calcutta High Court in Bholanath v. Madanmohan (1988) 1 CALLT 1 (HC) on the question as to the course to be followed by the High Court when confronted with contrary decisions of the Supreme Court emanating from Benches of co-equal strength, as hereunder :- "..... When contrary decisions of the Supreme Court emanate from Benches of equal strength, the course to be adopted by the High Court is, firstly, to try to reconcile and to explain those contrary decisions by assuming, as far as possible, that they applied to different sets of circumstances. This in fact is a course which was recommended by our ancient J....
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....ollow the one which is later in point of time, but may follow the one which, in its view, is better in point of law. Sandhawalia, C.J. in the Full Bench decision of the Punjab & Haryana High Court in Indo-Swiss Time Ltd. v. Umarao took this view with the concurrence of the other two learned Judges, though as to the actual decision, the other learned Judges differed from the learned Chief Justice. In the Karnataka Full Bench decision in Govinda Naik v. West Patent Press Co. AIR 1980 Kant 92 , the minority consisting of two of the learned Judges speaking through Jagannatha Shetty, J. also took the same view (supra, at p. 95) and in fact the same has been referred to with approval by Sandhawalia, C.J. in the Full Bench decision in Indo-Swiss Time (supra)." "This later view appears to us to be in perfect consonance with what our ancient Jurist Narada declared - Dharmashastra Virodhe Tu Yuktiyukta Vidhe Smrita - that is, when the Dharmashastras or Law Codes of equal authority conflict with one another, the one appearing to be reasonable, or more reasonable is to be preferred and followed. A modern Jurist, Seervai, has also advocated a similar view in his Constitutional Law o....
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....equal strength, perhaps the better course would have been to constitute a larger Bench, it has, however, been observed that for otherwise the subordinate Courts are placed under the embarrassment of preferring one view to another, both equally binding on them. According to the Supreme Court, therefore, when confronted with two contrary decisions of equal authority, the subordinate Court is not necessarily obliged to follow the later, but would have to perform the embarrassing task "of preferring one view to another". ".... We are, however, inclined to think that no blanket proposition can be laid down either in favour of the earlier or the later decision and, as indicated hereinbefore, and as has also been indicated by the Supreme Court in Atma Ram AIR 1959 SC 519 (supra), the subordinate Court would have to prefer one to the other and not necessarily obliged, as a matter, of course, to follow either the former or the later in point of time, but must follow that one, which according to it, is better in point of law. As old may not always be the gold, the new is also not necessarily golden and ringing out the old and bringing in the new cannot always be an invariabl....
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....465 of the Code of Criminal Procedure, 1973, and also its predecessor, being Section 537 of the preceding Code of 1898. In the United States of America, however, because of the prohibition contained the Fourth Amendment of the American Constitution against unreasonable search and seizure, the principle of "exclusionary rule of evidence" has been evolved providing that materials obtained by illegal search or seizure must be excluded from evidence against the criminal. As already noted, this rule of "exclusionary rule of evidence" has virtually been ruled out in India by the aforesaid provisions of the Code of Criminal Procedure, and as has been held by the Supreme Court in a series of decisions, the illegality of search or seizure will not vitiate the seizure or shut out any evidence collected thereby unless prejudice to the accused has in fact been shown to have taken place. Reference in this connection may be made, among others, to the decisions of the Supreme Court in Sunder Singh 1956 CriLJ 801, Radha Kisan (1963) IILLJ 667 SC and in Natwarlal 1980 CriLJ 429 . Even in America, the birth place of the "exclusionary rule of evidence", a deviation is no....