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Judgment
V.S. Sirpurkar, J.—The petitioner herein challenges the detention ordered by the first respondent vide order dated 24-6-1996 under S.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter called ''COFEPOSA'' Act as also the further order of declaration dated 12-7-1996 passed under S.9(1) of the said Act, whereby the detention of the petitioner was extended by one more year.
Petitioner is a foreign national. He was holding a German passport. He was bound for Colombo by Air Lanka Flight on 14-5-1996 when he was intercepted by the Customs Intelligence Officers at Anna International Airport, Chennai, on suspicion that he was carrying foreign currency. He was taken to the Visadex situated in the departure hall. His baggages were checked. On questioning, he had declared that he was carrying U.S. Dollars 210 and Pound Sterling 600 and that he did not have any other currency either on his person or in his baggage. When the ''Karrimor'' haversack, which he was carrying was checked, the inner lining was found to be unduly thick and therefore it was ripped open and it was found that number of bundles of foreign currency were kept concealed between the two sponge sheets. It was found that he was in all carrying 28,350 Oman Riyals, 2,23,500 Saudi Riyals, 8640 Bahrain Dinars, 23000 Qatar Riyals, 6000 Kuwait Dinars, 1,75,300 U.A.E. Dirhams, 4850 Pound Sterlings and 55,500 French Francs. The total value of the assorted foreign currency was Rs. 81,18,246.50 on the date of seizure. He gave a voluntary statement on 15-5-1996, wherein, he owned that he visited number of places including Bangalore, Kovalam and Calcutta and that at Kovalam, he met one Hans Fredrick, who was a rich person and along with him he went to Calcutta and further to Bombay. It was further stated by him that Hans Fredrick promised to pay him 1000 US dollars if he carried a huge currency to Singapore, that he gave a haversack and a Video camera and told the petitioner to take flight from Trichy to Colombo and to Singapore, that a Bombay to Madras Jet Airways ticket was given by the said Hans Fredrick and that is how the petitioner reached Madras on 13-5- 1996. He started for Trichy at 10 p.m. by a bus reached Trichy but missed the flight to Colombo. Therefore, he went to Air Lanka Office and got a ticket for Madras to Colombo to Singapore and then came back to Madras from Trichy and went to the International Airport at 9 p.m. and went to check in counter where he checked in the haversack given by his friend Hans. He also carried one bag as hand baggage. On the basis of the statement and on the basis of the recovery, the detention order as stated above has been passed against the petitioner and he was also arrested on 15-5-1996, produced before the Additional Chief Metropolitan Magistrate, E.O.II, Madras and remanded to judicial custody till 28-5-1996. He filed bail application on 15-5-1996 stating that he was innocent and that his statement had been obtained from him by use of force and threat and the statement was retracted. However the petition for bail was dismissed. Another bail petition was filed by the petitioner on 16-5-1996 but the said petition was also dismissed by the Court on 7-6-1996. It was found that the statement given by him was false as no Hotels, the names of which were given by the petitioner, existed either at Kovalam or at Bombay nor was it established that the petitioner along with his friend Hans Fredrick had stayed at such hotels. On the basis of this material, the petitioner was detained as stated above, on the ground that he was likely to indulge in the smuggling activities and that recourse to normal criminal law would not have the desired effect of effectively preventing the petitioner from indulging in smuggling activities.
A further order as already stated, of declaration under S.9 of the COFEPOSA Act was passed by one N.N. Mookerjee, Additional Secretary to the Government of India. The necessary effect of the declaration is that the petitioner''s detention was extended by one more year.
It seems that the detention order was served to the petitioner on 25-6-1996 and the petitioner made the representation immediately thereafter on 16-7-1996. The declaration order however seems to have been served on the petitioner on 25-7-1996. Therefore, the first representation made by the petitioner was even before the service of the declaration and there was no question of challenging the declaration order therein. This representation of the petitioner was rejected by the State Government on 13-9-1996 and the petitioner was so informed on 18-9-1996. However, it seems that as soon as the petitioner got the notice that the Advisory Board was to meet on 9-8-1996, he prepared another representation dated 3-8-1996. This representation was prepared by the petitioner''s counsel in English and it is requested therein that the said representation should be forwarded to all the authorities who are empowered to consider the representation. Needless to mention that in this representation, there is a challenge both to the detention order and the declaration order. The petitioner contends that three copies of this representation dated 3-8-1996 were handed over to the Advisory Board. It seems that the State Government considered this representation dated 3-8-1996 and rejected the same on 19-8-1996, while the Central Government rejected the first representation dated 16-7-1996 as also the second representation dated 3-8-1996 and the third representation dated 7-9-1996 by a single order dated 18-10-1996. The petitioner was informed by me Central Government of the rejection of his representation on 23-10-1996.
When the matter came up before this Court, the period of one year under S.3(1)(i) of the COFEPOSA Act for the initial detention had already elapsed. Learned Counsel appearing for the petitioner therefore only contended that the detention was illegal but concentrated his argument on the declaration aspect because it was only because of the declaration order that the petitioner was continued to be detained. It is needless to mention that the petition is against both the initial order of detention as also the declaration. It will therefore not be necessary for us to go into the aspects of the initial detention as that period had already expired.
The Learned Counsel challenges the declaration order on the main ground that there has been no consideration of the representation made against the declaration. Learned Counsel points out the relevant portion from the declaration order, which is as under:
Shri Klos Krzysztof wieslaw has a right to make a representation to the declaring authority, Central Government as well as to the Chairman, Cofeposa Advisory Board, High Court of Madras against this declaration through jail authorities in the manner indicated below:
(i) Representation meant for the declaring authority should be addressed to the Additional Secretary, Ministry of Finance, Department of Revenue, New Delhi.
(ii) Representation meant for the Central Government should be addressed to the Secretary, Ministry of Finance, Department of Revenue, New Delhi.
(iii) Representation meant for the Advisory Board should be addressed to the Chairman, Cofeposa Advisory Board, High Court Building, Madras.
Learned Counsel strenuously points out that though there has been a rejection by the State Government of the representation against the declaration, dated 3-8-1996 on 19-9-1996 and though there has been a rejection by the Central Government of the representation dated 3-8-1996 along with the earlier representation and the latter representation dated 16-7-1996 and 7-9-1996 respectively by its order dated 18-10-1996, the representation has not at all been considered by the declaring authority, i.e., the Additional Secretary to the Government of India. The Learned Counsel points out that it has been specifically represented to the detenu that he had a right to make a representation against the declaration to the declaring authority. Not only this, but it is further reiterated in the declaration order itself that the representation meant for the declaring authority should be addressed to the Additional Secretary, Ministry of Finance, Department of Revenue, New Delhi. It is further pointed out by the Learned Counsel that there is a specific reference made in his representation dated 3-8-1996 that the said representation should be sent to all the concerned authorities who were empowered to consider the representation and therefore it was imperative that the representation was bound to be considered by the Additional Secretary who was a declaring authority under S.9 of the COFEPOSA. He not having considered the representation, the petitioner has suffered a prejudice and his constitutional right under Art.22(5) has been breached, with the result, that the order of declaration has been vitiated.
Learned Counsel appearing for the second and third respondent stoutly opposed this contention on the ground that the representation against the declaration was already considered by the Central Government, which was the authority under the Act as also by the State Government and the Advisory Board. He further submits that the declaring authority does not come into the picture when it comes to consider the representation against the declaration. According to the Learned Counsel there is no power in the declaring authority to revoke the declaration under S.9 and therefore, there would be no question of his considering the representation against the declaration order. The Learned Counsel also argues that in fact the representation was not made by the petitioner but by his counsel before the Advisory Board and only three copies were served of the representation. Thus, the petitioner had not bothered to send the representation to the Additional Secretary even assuming the Additional Secretary had the power to consider the same.
On the basis of these rival contentions, it has to be seen, whether the declaration order is vitiated because of the non- consideration of the representation against the same by the third respondent.
It must be stated first that factually there is no order passed by the Additional Secretary, the third respondent regarding the representation against the declaration. The representations dated 3-8-1996 and 7-9-1996 are undoubtedly against both the original order of detention as also the subsequent order of declaration passed by the Additional Secretary. The learned Advocate appearing for the second and third respondent could not show that there has been any consideration of the representation dated 3-8-1996 by the third respondent. Therefore, the factual position that the representation was not considered by the Additional Secretary is well established. It has only to be seen as to whether that would be of any assistance to the petitioner.
There can be no dispute that the representation dated 3-8-1996 challenges not only the initial detention but also the further declaration. In paragraph 6 of this representation, the petitioner clearly avers that there is no sufficient cause for his detention and there is no cause for his continued detention also. Again in ground (iv) there is a clear challenge to the declaration. The Learned Counsel invited our attention to the last few lines of this representation, which are as under:-
I further request that the above representation may be placed before all the authorities who are empowered to consider. Please revoke the detention.
Thus, it cannot be denied that after the declaration order was passed against the petitioner, the petitioner had made a joint representation dated 3-8-1996. The Learned Counsel appearing for the second and third respondents raised a point that this representation was by a counsel and not by the petitioner and therefore this could not be said to be the representation of the petitioner as he had not even put his signature on the same and it was his counsel who had put the signature. We fail to follow the logic. If the petitioner had engaged a counsel and if the counsel drafted the representation and signed the same, it cannot be said that the representation was not by the petitioner. The Learned Counsel then pointed out that factually only three copies of this representation were submitted before the Advisory Board by the petitioner and therefore enough number of copies were not supplied. This argument apart from being hyper technical is defective in itself. It will have to be seen that in the declaration order also it is stated in a clear cut manner that the detenu had a right to make a representation i) to the Declarating Authority; ii) to the Central Government and iii) to the Chairman, Cofeposa, Advisory Board, High Court of Madras. If on the basis of this representation, the petitioner supplied three copies, the petitioner could not be faulted nor could it be said that the petitioner did not send the representation to the concerned authorities. The petitioner had clearly stated in his representation that the said representation should be placed before all the authorities who are empowered to consider. Again, no rule has been shown before us to suggest that it was incumbent upon the petitioner to supply adequate number of copies of the representation for being considered by the various authorities who are empowered to consider. If there were no sufficient number of copies, the copies could have been prepared in view of the specific request of the petitioner to place his representation before all the authorities empowered to consider the representation or even the original representation could have been circulated before the authorities including the declaring authority. This argument therefore must fail. The argument that the Additional Secretary did not consider the representation because it was not made over to him is rejected as there is no basis to the same.
The Learned Counsel for the petitioner pointed out that once a clear cut representation was made to the petitioner that he had a right to make a representation against the declaration order to the declaring authority, it was imperative on the part of the declaring authority to consider the representation. According to the Learned Counsel the admitted non-consideration of the same must necessarily result in vitiating the order of declaration. The Learned Counsel drew the attention of the Court to the celebrated case of Jagprit Singh v. Union of India & Others (1990 (3) Crimes 130) and pointed out that the Supreme Court had held that there is a right to make a representation against the declaration and the delay in making the detenu aware of his right would render the declaration unreasonable and inconsistent with the provisions of Art.22(5) of the Constitution of India. The Learned Counsel has also relied upon another decision of the Apex Court in Union of India & Another v. Shentharam Gajanan Kanakar & another (1994 SCC (Crl.) 1496), wherein, the Supreme Court has approved and confirmed the decision of the High Court in quashing the detention on the ground that the Marathi version of declaration under S.9(1) did not tally with the declaration order made in English. The Learned Counsel has also relied upon the observations of the Apex Court made in Smt. Hawabi Sayed Arif Sayed Hanif Vs. L. Hmingliana and others, to the following effect:
As pointed out supra the detenu had sufficient time of 11 days to make his representation in connection with his declaration also.
From these three cases, the Learned Counsel urges that there is a right in the detenu to make a representation against the declaration order passed under S.9(1) of the COFEPOSA. Act.
On the other hand, the Learned Counsel for the respondents 2 and 3 Mr. K. Kumar, insists that what is covered in S.11 of COFEPOSA Act is only the detention order and not the declaration. The main stay of the argument is that the opening clause of sub-Section (1) of S.11, which says the power of the detaining authority, who is the author of the order, must be read in conjunction with the latter clauses which has to be only in terms of the detention and not in terms of the declaration order. It is pointed out by the Learned Counsel that the scheme of S.9 is altogether different than the one under S.3. It is their contention that S. 11 is referable only to S.3 and not to S.9, which provides for the declaration.
The Learned Counsel for the petitioner however points out that in the celebrated case of Kamleshkumar Ishwardas Patel v. Union of India (1995 S C C (Crl.) 643 , a view has been taken by the Supreme Court, relying on the words in the opening clause of S.11, that it is incumbent on the detaining authority to inform the detenu that he could make a representation to the empowered Officer, who is the author of the order and the said Officer must consider the same. The Learned Counsel was at pains to point out that the Supreme Court has taken a view in that case that an Officer who has passed the order must always be deemed to have the power to withdraw the same. According to the Learned Counsel for the respondents, however this analogy could not be extended to the order passed under S.9 and must be restricted only to the order passed under S.3 of the COFEPOSA Act in terms of the judgment itself. The Learned Counsel for the petitioner also invited our attention to the Full Bench decision of the Delhi High Court in Akhilesh Kumar Tyagi v. Union of India (1996 CrI.L.T. 965) as also to the Full Bench decision of the Bombay High Court in Sandeep Atmaram Parwal Vs. The State of Maharashtra and others, and pointed out that both the Full Benches have taken a view that the right of representation has not been only limited to the detention order passed under S.3 but also to the order passed under S.9. The Learned Counsel strenuously points out that both the Full Benches, more particularly, the Bombay High Court Full Bench have taken a view that after all the order under S.9 is nothing but an extension of the detention and results in the further incarceration of the detenu without trial and therefore, what applies to a detention order also must necessarily apply to an order extending the same. A heavy reliance has been placed by both the Courts on Kamleshkumar Ishwardas Patel''s case and the Delhi High Court Full Bench has also very heavily relied upon Jagprit Singh case, It was also tried to be argued on behalf of the respondents that Jagprit Singh''s case could not apply as it could not be said to be a settled law as that case proceeded on a concession made by the Central Government that there was a right of representation against the order of declaration also. The Learned Counsel for the respondents also very strenuously urged that Kamleshkumar Ishwardas Patel''s case proceeded solely on the basis of the opening clause of S.11, which was applicable to the order passed under S.3 alone. According to the Learned Counsel, nothing had prevented the legislature from including the further words engulfing the order passed by S.9 also. In so far as the question, whether Kamleshkumar Ishwardas Patel''s case proceeds only on the basis of the opening clause of S.11, it will have to be said that the contention raised on behalf of the respondents is clearly incorrect. Though a very heavy reliance is placed in Kamleshkumar Ishwardas Patel''s case on the opening clause of S.11 and though it would appear prima-facie that the Apex Court went on to base its judgment only on those words, in fact, it is not so. Undoubtedly, in paragraph 17, the Apex Court proceeds to quote S.11 of the COFEPOSA Act verbatim along with the opening clause of Sub-Section (1). So also, in paragraph 21, mere is a reference to S.21 of the General Clauses Act and the Court proceeds on to hold, "In view of S.21 of the General Clauses Act the authority which has made the order of detention would be competent to revoke the said order." In paragraph 23, the Apex Court proceeds to hold, that
If the power of revocation is to be treated as the criterion for ascertaining the authority to whom representation can be made, then the representation against an order of detention made by an officer specially empowered by the State Government can be made to the officer who has made the order as well as to the State Government and the Central Government who are competent to revoke the order. Similarly, the representation against an order made by the State Government can be made to the State Government as well as to the Central Government and the representation against an order made by an officer specially empowered by the Central Government can be made to the officer who has made the order as well as to the Central Government;
Similarly, in paragraph 24, the Supreme Court, has made the following observation:
As pointed out earlier, the use of these words preserves the power of the officer making the order under S.21 of the General Clauses Act to revoke the order made by him. It cannot, therefore, be said that the conferment of the power of revocation on the Central Government and the State Government under S.11 has the effect of depriving the officer making the order of detention of the power to revoke the order made by him. If that is so the officer who has made the order of detention is competent to consider the representation made by the person detained against the order of detention made by such officer.
The Supreme Court has then made a reference to the reported decision in Ibrahim Bachu Bafan Vs. State of Gujarat and Ors, as also to the celebrated cases of Amir Shad Khan and another Vs. L. Hmingliana and others, and State of Maharashtra and Another Vs. Sushila Mafatlal Shah and Others, From this, the Learned Counsel has advanced the argument that it was solely due to the opening clause in sub-section (1) that the Supreme Court has taken a view that the officer who passes the detention order would also have the power to revoke it and therefore, a clear cut idea, has to be given to the detenu that he had a right to make a representation to that officer also. The argument is clearly incorrect. Though it only appears that the Supreme Court has relied upon the user of the word ''Preserves'' paragraph 24, the portion of which, we have quoted above, would clearly suggest, that the Supreme Court has merely acknowledged the power which was already there in the officer passing the detention order. The Supreme Court has not taken a view that such power is ''created'' because of the said opening clause of S.11. The Supreme Court has acknowledged this power to be always there and has taken a view that existence of the clause merely ''preserves'' the power. In this behalf, the observations made by the Apex Court in paragraph 6 are extremely telling. The observations are to the following effect;
Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by S.21 of the General Clauses Act, 1897 though it does not flow from it. It can therefore be said that Art.22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order.
(underlining is ours)
Thus, it is clear that in Kamleshkumar Ishwardas Patel''s case, it is not because of the opening clause of sub-section (1) of S.11 alone that the power to revoke the detention was viewed in favour of the officer making the order of detention but the Supreme Court has clearly laid down the law that such power was always there and it was inherent and that S.21 of the General Clauses Act only acknowledges the same and the power does not flow from that Section. The proposition of law crystallised from this case, thus appears to be, that an authority which passes an order has always the inherent power to withdraw the same.
But the matter does not rest herein this case as the Learned Counsel for the respondent very strenuously questioned the correctness of the decisions of the Full Benches of the Delhi High Court and Bombay High Court and pointed out that the question would still be, whether what was made applicable to an order of detention, could also be made applicable to the order of declaration under S.9 in view of the totally different schemes. We are afraid that this argument is not open to the respondent at least in this case in view of the peculiarity of the facts. In Delhi case, the facts clearly show that it was not informed to the detenu that he had a right to submit a representation against the order of declaration not only to the Advisory Board and Central Government but also to the declaring authority. Similarly, in Bombay case, it is clear from the facts, that in the declaration order, it was not informed that the detenu had a right to make a representation before the declaring authority, in addition to a right to make representation before the other authorities including Central Government and the State Government. Such is not the case here. We have already extracted the relevant portion of the declaration order, which has a very clear term, informing the detenu of his right to make a representation to the declaring authority. What is found here is that in spite of such information having been extended to the detenu, the declaring authority has not chosen to deal with the representation at all and that is an admitted factual position. There is, thus, a very clear breach on the part of the declaring authority in not considering the representation at all. This is a distinguishing factor between the two full Bench Cases and the present case and in that view, it would not be necessary for us to go into the broader question as to whether the Full Benches clearly proceeded on the factual basis that it was not at all informed to the detenu that he had a right to send the representation to the declaring authority against the declaration order under S.9. That was a view in favour of the detenu and it was held that it amounted to the breach of the right of the detenu of his representation being considered under Art.22(5) of the Constitution of India. Here, there is a clear cut communication made to the detenu that he could forward the representation, thereby, the detenu is assured that if a representation is made to the declaring authority, it shall so consider. It has been found factually, that the detenu did in fact send the representation and the declaring authority has not acted upon the same, nor has it bothered to consider the same. This itself, according to us, would constitute a clear cut breach of the Constitutional guarantee contained in Art.22(5). After all, the detenu who had lost his personal liberty could not have been made to fact with a hollow promise by the declaring authority that if the representation was made to it, it would be considered. The personal liberty has been guarded zealously by the Apex Court as also the other Courts. On this backdrop, if it was informed to the detenu that he could make a representation to the declaring authority, it was incumbent upon the declaring authority to have considered the representation one way or the other. The non-consideration of such a representation, which has proved to have been made, which is clear from the facts given above, would undoubtedly result in vitiating the declaration order. In view of all this, it would not at all be necessary for us to go into the broader question raised by the Learned Counsel for the respondent to consider whether the Full Bench decisions of the Delhi and Bombay High Courts are correctly decided. It would not be our task.
However, we do find that the declaring authority having not considered the representation, which it had promised to consider in the declaration order itself, would result in rendering the said declaration void. We have already pointed out that the initial period of one year of the detention under S.3 is already over and it is only because of the declaration that the detenu is further incarcerated. In view of what we have found, we find that the declaration order cannot succeed and must be set aside. It is accordingly set aside. It is therefore further ordered that the detenu be set at liberty forthwith unless he is required in any other matter. Rule is made absolute in the above terms.