Holding

The Detaining Authority and State Government were obligated to forward the detainees' representation to the Central Government; their refusal violated Article 22(5) read with section 11 of the Act, making the detention orders illegal and subject to quashment.

Summary

The appellants, Amir Shad Khan and Aziz Ahmed Khan, were detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 after gold bars were recovered from their vehicle. They were served detention orders that allowed them to make representations to the State Government, Central Government, and an Advisory Board. The appellants submitted a single representation requesting that copies be forwarded to both the State and Central Governments, but the State Government rejected the representation and did not forward it to the Central Government. The High Court dismissed their habeas corpus petitions, holding that the failure to follow the prescribed mode of address did not vitiate the detention. On appeal, the Supreme Court examined whether the Detaining Authority and State Government were obligated to forward the representation to the Central Government under Article 22(5) of the Constitution and section 11 of the Act. The Court held that such a duty existed, and the refusal to forward the representation violated the constitutional right of the detainees, rendering the detention orders illegal. Consequently, the detention orders were quashed and the appellants were ordered to be released.

Issues considered

Whether the Detaining Authority and State Government's failure to forward the detainees' representation to the Central Government violates Article 22(5) of the Constitution.
Whether section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 confers a constitutional right to have a representation considered by the Central Government.
What is the scope of the revocation power under section 11 of the Act and section 21 of the General Clauses Act in relation to representations.
Whether the detention orders should be set aside on the ground of non‑forwarding of the representation.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 11, s. 21, s. 3, s. 8
Constitution of Indias. Article 22
General Clauses Act, 1897s. 21

Subjects

preventive detentionArticle 22(5)representationdetention orderrevocationsection 11constitutional rightforeign exchange smuggling

Judgment

AMIR SHAD KHAN AZIZ AHMEDKHAN @ AZIZ
A
MOHD. KHAN
v.
L. HMINGLIANA AND ORS.

AUGUST 9, 1991
B
[A.M. AHMADI, V. RAMASW AMI AND M.M. PUNCHHI, JJ.]

Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974--Sections 3, 8, 11 read with section 21, The General
Clauses Act and Article 22, Constitution of India, 1950-Detention-
. + Ob/igations and duties of Detaining Authoriry-:.-Rejection of represen-
tation by State Government-Non-complying detenu's request to for- c
ward representation, taking copy to Central Government-Whether
illegal.

Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974--Section 11 read with Article 22, Constitution of D
India, 1950-Whether confers any constitutional right.

On March 25, 1990, the officers of the Directorate of Revenue
Intelligence intercepted a motor car driven by the appellant No. 1 with
the other appellant as bis companion and recovered 1400 gold bars_
E
The statements of the two appellants were recorded and they were
formally arrested on March 28, 1990 and produced before the Chief
Metropolitan Magistrate, who granted remand.

- While the matter was under investigation, a proposal was made to
the rrrst respondent-Secretaty (Preventive Detention), Government of F
Maharashtra for invoking the powers conferred on him by Section 3 of
the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974.

On the very next day after the receipt uf the proposal the first
respondent passed the orders of detention against the two appellants G
under sub-section (1) of section 3 of the Act.

After these detention orders were passed on April 24, 1990 they
were served on the appellants along with the grounds of detention and
basic documents on which reliance was placed. The appellants were
informed that they had a right to make a representation to (i) the State H

443
444 SUPREME COURT REPORTS (1991) 3 S.C.R.

Government; (ii) the Central Gov<ernment; and (iii) the Advisory Board
A
against the detention order, if they so desired. They were informed that
to facilitate expeditious consideration thereof, · the Superintendent of
Jails may be requested to forward the same to the detaining authority.
The appellants preferred a representation addressed to the Detaining
Authority and forwarded it through the Superintendent of Jail. In the
B last paragraph of that representation a request was made that copies of
the representation may be taken out and the same may be forwarded to
the State Govt. and the Central Govt.

The representation was co11Sidered and rejected by the State
Government. It was, however, not forwarded to the Central Govern- +·
ment and hence the Central Government had no occasion to consider
C the representation of the appellanls for the revocation of the detention
orders.

As the detention orders were not revoked the appellants preferred
separate habeas corpus writ petitions in the High Court which dismis-
D sed both the writ petitions, answering in negative on the question
whether the detention orders were vitiated as the Detaining Authority
as well as the State Government had failed to forward their representa-
tions to the Central Government for the reason that the detenus who
had failed to follow the clear and specific Instructions given in the
· grounds of detention regarding the manner and mode of address to
E various authorities, could not be allowed to reap the benefit of their own
default.

This view of the High Court "as challenged before this Court by
the appellants.

F The State Government as well as the Central Government sup-
ported the view taken by the High Court contending that the appellants
cannot make a grievance if they have despite a clear direction in the
grounds of detention chosen to deviate therefrom. Once the procedure
established by law is followed by the respondents the failure on the part
of the Detaining Authority or the State Government to accede to the
G request made by the appellants in the last paragraph of their representa-
tions to take out copies thereof and forward the same to the Central
Government cannot vitiate the detention order.

The Union of India contended that since no representation had
reached the Central Government there was DO question or the Central
H Govenment applying its mind thereto and taking a decision thereon.
AMIR KHAN .._ HMINGLIANA 445

On the question whether failure on the part of the Detaining A
Authority as well as the State GoverDIDent to accede to the request of
the appellants to take out copies of the representations and forward the
same to the Central Government for consideration bas resulted. in viola-
tion of their considerational/statutory right to have their representation
considered by the Central Government, and if yes; whether the deten-
tion orders are Hable to be quashed on that ground, allowing the B
appeals, this Court,

HELD: 1. The .Detaining Authority as well as the State Govern-
ment were not justified in taking a hypertecbnical stand that they were
under no obligation to take out copies of the representations and for-
ward them to the Central Government. Such action of the Detaining
Authority and the State Government was unreasonable and resulted in
c
a denial of the appellants' constitutional right. The impugned detention
orders are liable to be quashed and directed that the appellants, who
were in detention, to be set free. (4598-E]

Per A.M. Ahmadi, J. on his behalf himself and V. Ramaswami, J. D
1. Article 22(3)(b) (5) casts a dual obligation on the Detaining Authority,
namely, (i) to communicate to the detenu the grounds ·on which the
detention order b&S been made;· and (ii) to afford to the detenu the
earliest opportunity of making a representation against the detention
order. Consequently the failure to communicate the grounds promptly
or to afford the detenu an opportunity of making a representation E
against the order would clearly violate the constitutional guarantee
afforded to the detenu by clause (5) of Article 22 of the Constitution. It
is by virtue of this right confer~ ol\ the ~tenu that the Detaining
Authority considers it a duty to inform the appellant-detenu of hls right
to make a representation to the State Government, the Central
_Government and the Advisory Board. The right lo make a representa- F
tion against the detention order thus flows from the constitutional
guarantee enshrined in Article 22(5) which casts an obligation on the
authority to ensure that the detenu is afforded an earliest opportunity lo
exercise that right, if be so desires. [450H-451C]

2. The necessity of casting a dual obligation on the authority G
making the detention order is obviously to acquaint the detenu of what
bad weighed with the Detaining Authority for exercising the extraor-
dinary powers of detention without trial conferred by section 3(1) of the
Act and to give the detenu an opportunity to point out any error in the
exercise of that power so that the said authority gets an opportunity lo
undo the harm done by it, if al all, by correcting the error al the earliest H
point of time. [451C-D]
446 SUPREME COURT REPORTS [1991] 3 S.C.R.

3. Under section 11 an officer of the State Government or that of
A
the Central Government speciaHy empowered under section 3(1) of the
Act to make a detention order is not conferred the power to revoke it;
that power for those officers has to be traced to section 21 of the
General Clauses Act. Therefore,, where an officer of the State Govern-
ment or the Central Government has passed any detention order and
8 on receipt of a representation he is convinced that the detention
order needs to be revoked he can do so by virtue of section 21 of
the General Clauses Act since sedion 11 of the Act does not entitle him
to do so. [454A-C]

4. If the State Government passes an order of detention and later
desires to revoke it, whether upon receipt of a representation from the
c detenu or otherwise, it would be entitled to do so under section 21 of the
General Clauses Act but if the Central Government desires to revoke
any order passed by the State GoYernment or its officer it can do so only
under clause (b) of Section 11(1) of the Act and not under section 21 of
the General Clauses Act. [454C-D]
D
5. On a conjoint reading of section 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 officer of the State
Government or the Central Government, the State Government as well
as the Central Government. The power of revocation conferred by
E section 8(0 on the appropriate Government is clearly independent of
this power. It is thus clear that section 8(0 of the Act satisfies the
requirement of Article 22(4) wheireas 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
F 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 he said that the power conferred by
section 11 of the Act has no relation whatsoever with the constitutional
obligation cast by Article 22(5). [4540-G]

G 6. It must be realised,that when a person is placed under deten-
tion he has certain handicaps and iif he makes a request that a represen-
tation prepared by him may be forwarded to the Central Government
as well as the State Government for consideration after taking out
copies thereof it would be a denial of his right to represent to the
Central Government if the Detaining Authority as well as .,the State
H Government refuse to accede to his request and omit to forward his
AMIR KHAN '· HMINGLIANA [AHMADI. J.J 447

representation to the Central Government for consideration. In such A
circumstances refusal to accede to their request would be wholly
unreasonable and in total disregard of the right conferred on the
detenn by \rticle 22(5) of the Constitution read with section 11 of
the Act. [458F-G, 459B]

Razia Umar Bakshi v. Union of India & Ors., [1980] 3 SCR 1398; B
Rattan Singh v. State of Punjab & Ors., [1980] 4 SCC 481; Sat Pal v.
State of Punjab & Ors., [1982) l SCC 12 and Smt. Gracy v. State of
Kera/a & Anr., JT (1991) 1 SC 371; Tara Chand v. State of Rajasthan,
[1980] 2 sec 321; referred to.
Per M.M. Punchhi, J. 1. Section 11 of the Act does not confer any
constitutional right on tile detenu to have his representation thereunder c
considered as if under Article 22(5), but merely a provision enabling the
State Government or the Central Government, as the case may be, to
revoke or modify detention orders. Have section 11 of the Act
repealed, it causes no affectation to the constitutional guarantee under
Article 22(5) of the Constitution. Correspondingly, section 11 of the Act
derives no sustenance from the said Article. Both operate in mutually D
exclusive fields, though not as combatants. [459F-G I
CRIMIMAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 485 & 486 of 1991.

From the Judgment and Order dated 31.8.1990 of the Bombay E
High Court in Crl. W. P. Nos. 530 and.531 of the 1990.

R.K. Jain and V.V. Vaze (For the State), Maqsood Khan,
R.S.M. Verma, S.A. Syed, M.T. Khan and A.S. Bhasme (For the
State) for the Appellants.
F
A. Subba Rao, A.D.N. Rao and Ms. Sushma Suri for the
Respondents.

The Judgment of the Court was delivered by

AHMADI, J. Special leave granted. G

The events leading to the filing of these two appeals, briefly
stated, are. that on the afternoon of March 25, 1990, the officers of the
Directorate of Revenue Intelligence being in possession of informa-
tion intercepted a motor car at about 3.45 p.m. driven by the appellant
Amir Shad Khan with the appellant Aziz Ahmad Khan as his compa- H
448 SUPREME COURT REPORTS [1991] 3 S.C.R.

A nion. On search ot the vehicle 1400 gold bars were recovered. The
statements of the two appellants were recorded and thereafter they
were formally arrested on March 28, 1990 and produced before the
Chief Metropolitan Magistrate, Bombay. The Chief Metropolitan
Magistrate granted remand. While the matter was under investigation
a proposal was made to the first respondent. Secretary (Preventive
B Detention), Government of Maharashtra for invoking the powers con-
ferred on him by Section 3 of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (hereinafter called
'the Act'). On the very next day after the receipt of the proposal the
first respondent passed the impu,gned orders of detention against the
two appellants. These orders were passed under sub-section (1) of
section 3 of .the Act with a view to preventing the appellants from
c smuggling goods and engaging in transporting, keeping and concealing
the same. After these detention orders were passed on April 24, 1990
they were served on the appellants along with the grounds of detention
and basic documents on which reliance was placed. By clauses (iii),
(iv) and (v) of paragraph 43 of the grounds of detention the appellants
D were informed that they had a right to make a representation to (i) the
State Government; (ii) the Central Government; and (iii) the Advi-
sory Board against the detention orders, if they so desired. It was
further stated that the representation to the State Government should
be addressed to the Minister of State for Home Mantralaya, Bombay.
They were informed that to facilitate expeditious consideration
E thereof the Superintendent of Jails may be requested to forward the
same to the detaining authority so that the Home Department call put
up the case to the Minister for consideration. It was further stated that"
the representation to the Central Govenment may be addressed to the •
Secretary, Government of India, Ministry of Finance (Department of
Revenue), New Delhi through the Superintendent of Jail. In the case
F of the Advisory Board the appellants were informed that the represen-
tation may be addressed to the Chairman, Advisory Board consti-
tuted under the Act and may be forwarded through the Superinten-
dent of Jail. On the basis of this advice contained in the grounds of
detention the appellants preferred a representation addressed to the
Detaining Authority and forwarded it through the Superintendent of
G Jail, Arther Road Central Prison, Bombay. It is not necessary to state
the various grounds made out in the representation for the revocation
of the detention orders but it would suffice to reproduce the last
paragraph of the representation. That paragraph reads as under:

"I would also like to request you that the copies of these
H representations be sent to the State and Central Govern-
AMIR KHAN v. HMINGLIANA [AHMADI. J.[ 449

ment for their kind consideration in view of the above facts
A
so as to revoke and/or set aside my order of detention and
order my release forth with."
. ".)
It is not disputed that the representation was considered and rejected
by the State Government. It was, however, not forwarded to the Cent-
ral Government and hence the Central Government had no occasion B
to consider the representation of the appellants for the revocation of
the detention orders. As the detention orders were aot revoked the
appellants preferred separate habeas corpus writ petitions which were
numbered Criminal Writ Petitions Nos. 530-31 of 1991 in the High
Court of Bombay under Article 226 of the Constitution. The High
Court on a detailed consideratio.n of the various contentions raised by
the appellants dismissed both the writ petitions. On the question
c
whether the detention orders were vitiated as the Detaining Authority
·as well as the State Government had failed to forward their represen-
tations to the Central Government, the High Court answered in the
negative for the reason that the detenus who had failed to follow the
clear and specific instructions given in the grounds of detention regard-
ing the manner and mode of address to various authorities could not be
allowed to reap the benefit of their own default. On the question
whether the fundamental right guaranteed by Article 22(5) of the Con-
stitution was violated, the High Court observed as under:

"So far we have not come across any authority of this court E
or of the Supreme Court wherein it has been ruled that
despite this express communication to the detenu, if the
detenu makes any representation, the Detaining Authority
is under obligation under Article 22(5) of the Constitution
to take out xerox copies of the same and forward to the
State Government or the Central Government. We are F
afraid, we cannot infer such obligation on the Detaining
Authority or the State Government under Article 22(5) of
the Comtitutiun. But, however, it is advisable that upon
receipt of such representation from the detenu, the Detain-
ing Authority may immediately inform the det.enu about
the procedure that he has to follow in forwa~ding represen- G
tations to the State Government, the Central Government
or the Advisory Board against the order of detention."

It is this view of the High Court which was vehemently challenged
before us by learned counsel for the appellants. In support of his
contention counsel placed strong reliance on four decisions of this H
450 SUPREME COURT REPORTS (1991] 3 S.C.R.

A Cour.t reported in (i) Razia Umar Bakshi v. Union of J~dia & Ors.,
[ 1980] 3 SCR 1398; (ii) Rattan Singh v. State of Punjab & Ors., (1980] 4
SCC 481; (iii) Sat Pal v. State of Punjab & Ors., (1982] 1 SCC 12 and
(iv) Smt. Gracy v. State of Kera/a & Anr., JT (1991) 1SC371. On the
other hand counsel for the State Government as well as the Central
Government supported the view taken by the High Court and con-
B tended that the appellants cannot make a grievance if they have
despite a clear direction in the grounds of detention chosen to deviate
therefrom. Once the procedure established by law is followed by the
respondents the failure on the part of the Detaining Authority or the
State Government to accede to the request made by the appellants in
the last paragraph of their representation to take out copies thereof
and forward the same to the Central Government cannot vitiate the
c detention order. It was further pointed out that a subsequent represen-
tation dated June 5, 1990 made to the Central Government was con-
sidered with despatch and was rejected on June 12, 1990. We may at
this stage state that we are not concerned with the subsequent rep-
resentation. The point which we have been called upon to consider is
D whether failure on the part of the Detaining Authority as well as the
State Government to accede to the request of the appellants to take
out copies of the representations and forward the same to the Central >- •
Government for consideration has resulted in violation of their con-
stitutional/statutory right to have their representation considered by
the Central Government, and if yes, whether the detention orders are
E liable to be quashed on that ground

The law of preventive detention is harsh to the person detained
and, therefore, there can be no doubt that it must be strictly con- •
strued. Article 22(3)(b) denies to a person who is arrested or detained 'r
under any law providing for preventive detention the protection of
F clauses ( 1) and (2) of the said Article. Clause (4) thereof enjoins that
the preventive detention law must conform to the limitations set out
thereunder. Clause (5) of Article 22 reads as under:

"When any person is detained in pursuance of an order
made under any law providing for preventive detention,
G the authority making the 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 op-
portunity of making a representation against the order."

This clause casts a dual obligation on the Detaining Authority,
H namely, (i) to communicate to the detenu the grounds on which the
AMIR KHAN v. HMINGLIANA [AHMADI. J.[ 451

detention order has been made; and (ii) to afford to the detenu the A
earliest opportunity of making a representation against the detention
order. Consequently the failure to communicate the grounds promptly
or to afford the detenu an opportunity of making a representation
against the order would clearly violate the constitutional guarantee
afforded to the detenu by clause (5) of Article 22 of the Constitution.
It is by virtue of this right conferred on the detenu that the Detaining B
Authority considers it a duty to inform the appellant-detenu of his
right to make a representation to the State Government, the Central
Government and the Advisory Board. The right to make a representa-
tion against the detention order thus ' flows from the constitutional
guarantee enshrined in Article 22(5) which casts an obligation on the
authority to ensure that the detenu is afforded an earliest opportunity
to exercise that right, if he so desires. The necessity of casting a dual
c
obligation on the authority making the detention order is obviously to
acquaint the detenu of what had weighed with the Detaining Authority
for exercising the extraordinary powers of detention without trial con-
ferred by section 3(1) of the Act and to give the detenu an opportunity
to point out any error in the exercise of that power so that the said D
authority gets an opportunity to undo the harm done by it, if at all, by
correcting the error at the earliest point of time. Once it is realised that
Article 22(5) confers a right of representation, the next question is-to
whom must the representation be made. The grounds of detention
clearly inform the detenu that he can make a representation to the
State Government, the Central Government as well as the Advisory E
Board. There can be no doubt that the representation must be made to
the authority which has the power to rescind or revoke the decision, if ·.
need be. Our search for the authority must, therefore, take us to the--
statute since the answer cannot be found from Article 22(5) of the
Constitution read in isolation. As pointed out earlier that clause casts
an obligation on the authority making the detention order to afford to F
the detenu an earliest opportunity to make a representation against
the detention order. If we are to go by the statement in the grounds of
detention our search for that authority would end since the grounds of
detention themselves state the authorities to which the representation
must be made. The question must be answered in the context of the
relevant provisions of the law. Now as stated earlier by clause (5) of G
Article 22 a dual obligation is cast on the authority making the deten-
tion order one on which is to afford to the detenu an earliest oppor-
tunity of making a representation against the order which obligation
has been met by informing the detenu in the grounds of detention to
whom his representation should be addressed. But the authority to
which the representation is addressed must have statutory backing. In H
452 SUPREME COURT REPORTS (1991] 3 S.C.R.

A order to trace the source for the statutory backing it would be
advantageous to notice the scheme of the Act providing for preventive
detention. Section 2(b) defines a detention order to mean an order
made under section 3. Sub-section ( 1) of section 3 empowers the Cent-
ral Government or the State Government or any officer of the Central
Government, not below the rank of a Joint Secretary to that Govern-
B ment, specially empowered for the purposes of this section by that
Government, or any officer of a State Government, not below the
rank of a Secretary to that Government, specially empowered for the
purposes of this section by that Government, to make an order of
detention with respect to any person with a view to preventing him
from acting in any manner prejudicial to the conservation or augmen-
tation of foreign exchange or with a view to preventing him from doing
c any one of the five prejudicial acts enumerated thereunder. Sub-
section (2) of that section provides that when any order of detention is
made by a State Government or by an officer empowered by a State
Government, the State Government shall, within ten days, forward to
the Central Government a report in respect of the order. It is evident
D from this provision that whenever a detention order is made by the
State Government or its officer specially empowered for that purpose
an obligation is cast on the State Government to forward a report to
the Central Government in respect of that order within ten days. The
purpose of this provision is clearly to enable the Central Government
to keep an eye on the exercise of power under section 3( !) by the State
Government or its officer. Then comes sub-section (3) which reads as
under:

"For the purposes of clause (5) of Article 22 of the Con- •
stitution, the communication to a person detained in 'r •
pursuance of a detention order of the grounds on which the
F order has been made shall be made as soon as may be after
the detention, but oridinarily not later than five days, and
in exceptional circumsltances and for reasons to be recor-
ded in writing, not later than fifteen days, from the date of
detention."

G This provision is clearly intended to meet the obligation cast by Article
22(5) that the grounds of detention shall be communicated 'as soon as
may be'. The legislation has, therefore, fixed the outer limit within
which the grounds of detention must be communicated to the detenu.
Thus the first part of the obligation cast by Article 22(5) is met by
section 3(3) of the Act. Section 8 provides for the Constitution of
H Advisory Boards. This section is clearly to meet the obligation of
AMIR KHAN •. HMINGLIANA [AHMADI, J.J 453

sub-clause (a) of clause 4 and sub-clause (c) of clause 7 of Article 22 of
A
the Constitution. Section 8(f) which has some relevance provides that
in every case where the Advisory Board has reported that there is in its
opinion sufficient cause for the detention of a person, the appropriate
Government may confirm the detention order and continue the deten-
tion of the person concerned for such period as it thinks fit and in
every case where the Advisory Board has reported that there is in its B
opinion no sufficient cause for the detention of the person concerned,
the appropriate Government shall revoke the detention order and
cause the person to be released forthwith. This provision clearly
obliges the appropriate Government to order revocation of the deten-
tion order if the Advisory Board reports want of sufficient cause for
detention of that person. Then comes section 11 which reads as under:
c
"Revocation of detention orders-

(1) Without prejudice to the provisions of section 21 of the
General Clauses Act, 1897, a detention order may, at any
time, be revoked or modified- D

(a) notwithstanding that the order has been made by an
officer of a State Government, by that .State Government
or by the Central Government.

(b) notwithstanding that the order has been made by an E
officer of the Central Government or by a State Govern-
ment, by the Central Government."

, "( Sub-section (2) is not relevant for our purpose. It is obvious from a
plain reading of the two clauses of sub-section (1) of section 11 that
where an order is made by an officer of the State Government, the F
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 Govern-
ment, the Central Government is empowered to revoke the detention
order. Now this provision is clearly without prejudice to section 21 of
the General Clauses Act which lays down that where by any Central G
'!. .Act a power to issue orders is conferred, then that power includes a
power, exercisable in the like manner and subject to the like sanction
and conditions, if any, to rescind any order so issued. Plainly the
authority which has passed the order under any Central Act is
empowered by this provision to rescind the order in like manner. This
provision when read in the context of section 11 of the Act makes it H
454 SUPREME COURT REPORTS [1991] 3 S.C.R.

clear that the power to rescind conferred on the authority making the
A
detention order by section 21 of the General Clauses Act is saved and
is not taken away. Under section 11 an officer of the State Govern-
ment or that of the Central Government specially empowered under
section 3( 1) of the Act to make a detention order is not conferred the
power to revoke it; that power for those officers has to be traced to
B section 21 of the General Clauses Act. Therefore, where an officer of
the State Government or the Central Government has passed any
detention order and on receipt of a representation he is convinced that
the detention order needs to be revoked he can do so by virtue of
section 21 of the General Clauses Act since section 11 of the Act does
not entitle him to do so. If the State Government passes an order of
detention and later desires to revoke it, whether upon receipt of a
+-
c representation from the detenu or otherwise, it would be entitled to do
so under section 21 of the General Clauses Act but if the Central
Government desires to revoke any order passed by the State Govern-
ment or its officer it can do so only under clause (b) of Section 11( 1) of
the Act and not under section 21 of the General Clauses Act. This
D clarifies why the power under section 11 is conferred without prejudice
to the provisions of section 21 of the General Clauses Act. Thus on a
con joint reading of section 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 officer of the State Govern··
mentor the Central Government, the State Government as well as the
E 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 require-
ment 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 rele-
F vant 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
constitution! obligation cast by Article 22(5).
G
We may now turn to the case law on which reliance was placed. V
In Razia Umar's case, S. Murtaza Fazal Ali, J. sitting singly during
· vacation was concerned with a more or less similar situation. In that
case a detention order was passed by the State Government against
which the detenu had made a representation to the said Government.
H By that representation he also prayed that his representation may be
AMfR KHAN v. HMINGLIANA [AHMADI, J.) 455

forwarded to the Central Government for being considered. That rep-
A
resentation was disposed of by the State Government but it was not
forwarded to the Central Government, notwithstanding the specific
prayer of the detenu. The defence taken was that the detenu had
himself sent a copy of his representation to the Central Government
and, therefore, the Detaining Authortiy did not consider it necessary
to forward the representation to the Central Government. The B
defence of the State Government was held to be wholly unacceptable
on the following line of reasoning:

"Section 11 of the Act confers .a constitutional right on the
detenu to have his representation considered by the Cent-
ral Government. It is true that the Central Government has
a discretion to revoke or confirm the detention but the c
detenu has undoubtedly a right that his representation
should be considered by the Central Government for what-
ever worth it is. The mere fact .that the detenu had sent a
copy to the Central Government does not absolve the
detaining authority from the statutory duty of forwarding D
the representation to the Central Government."
(Emphasis supplied)

This observation would show that the power of revocation conferred
by section 11 of the Act has a nexus with the right of representation
conferred on the detenu by Article 22(5) and, therefore, the State E
Government when requested to forward a copy ofthe representation
to the Central Government is under an obligation to do so. The
learned counsel for the appellant further pointed out that our case
stands on.a stronger footing because, admittedly, the appellants had
not forwarded a copy of their representation to the Central Govern-
ment as in Razia Umar's.case. · F

The High Court distinguished this decision on the ground that
the facts of Razia Umar'a case reveal that the detenu had sent a sepa-
rate representation to the Detaining Authority with a request to for-
ward the same to the State Government and the Central Government
whereas in our case only one representation was sent to the Detaining G
Authority with a request that copies thereof be taken out and sent to
the State Government as well as the Central Government for their
consideration. With respect, this distinction has nothing to do with the
ratio of the decision; if at all, as rightly pointed out counsel for the
appellants, the facts of this case are stronger than those of Razia
Umar's case. H
456 SUPREME COURT REPORTS [1991] 3 S.C.R.

A In Rattan Singh's case the facts reveal that the detenu had written
a letter to the Superintendent of Central Jail, Amritsar, enclosing
therewith two representations one of which was addressed to the Joint
Secretary, Department of Home, Government of Punjab, Chandi-
garh, and the other to the Secretary, Union Ministry of Finance,
Department of Revenue, New Delhi. The Jail Superintendent was
B requested to forward the representations to the State Government as
well as the Central Government. In the counter filed on behalf uf the
Central Government it was stated that no representation by or on
behalf of the detenu had been received by the Central Government. It
was contended that failure to forward the representation to the Cent-
ral Government and the consequent failure of the Central Govern-
ment to apply its mind to the representation vitiated the detention
c order. This Court held that the detenu was unaccountably deprived of
a valuable right to defend and assert his fundamental right to personal
liberty. Chandrachud. CJ. who spoke for the three-Judge Bench,
observed as under:

D "But the laws of preventive detention afford only a
modicum of safeguards to persons detained under them
and if freedom and liberty are to have any meaning in our
democratic set up, it is essential that at least those safe-
guards are not denied to the detenus. Section 11(1) of
COFEPOSA confers upon the Central Government the
E power to revoke an order of detention even if it is made by
the State Government or its officer. That power, in order
to be real and effective, must imply the right in a detenu to
make a representation to the Central Government against
the order of detention. The failure in this case on the part y
either of the Jail Superintendent or the State Government
F to forward the detenu's representation to the Central
Government has deprived the detenu of the valuable right
to have his detention revoked by that Government. The
continued detention of the detenu must, therefore, be held
illegal and the detenu set free."

G In taking this view reliance was placed on an earlier decision of this
Court in Tara Chand v. State of Rajasthan, [1980] 2 SCC 321.

In Sat Pal's case also counsel for the detenu had forwarded two
representations one meant for the Central Government and other for
the State Government for exercise of power under section 11 of the
H Act. The Jail Superintendent who was requested by a forwarding letter
AMIR KHAN v. HMINGLIANA [AHMADI. J.] 457

to sent the representations to the appropriate Governments after
A
obtaining the signatures of the detenu thereon forwarded them to the
Joint Secretary in the State Government with an endorsement that one
'r ...J of them may be forwarded to the Central Government. The represen-
talion of the detenu to the Central Government was not forwarded to
that Government by the State Government promptly. It was, there-
fore, contended that the detention order was rendered illegal and B
liable to be quashed. Dealing with this contention this Court observed
that the making of an application for revocation of the order of deten-
tion by the Central Government under section 11 of the Act is part of
. 1' the constitutional right a citizen has against his detention under a law
relating to preventive detention. It was, therefore, observed:

"It is, therefore, idle to contend that this State Govern- c
:\
ment had no duty to forward the representation made by
the detenu to the Central Government for revocation of his
order of detention under section 11 of the Act."

In taking this view the Court placed reliance on Rattan Singh's case D

-1 Gracy's case may not be entirely apposite because the question
which the court was required to consider in that case was that the
.
i representation made to the Advisory Board was not taken into con-
sideration by the Central Government after the papers were laid
before it with the opinion of the Advisory Board that there was suffi- E
cient cause to justify the preventive detention. That was, therefore, a
case in which the representation was very much before the Central
~ Government and it failed to consider the same before confirming and
'( fixing the duration of the detention order. In that case, therefore, the
question for consideration was whether it was incumbent on the part of
the Central Government to consider a representation addressed to the F
Advisory Board notwithstanding its rejection by the Advisory Board.
Such is not the question before us but counsel for the appellants
invited our attention to certain observations made in paragraphs 8 and
9 which indicate that the detenu's right for consideration of his rep-
resentation by the Central Government flows from Article 22(5),
irrespective of the fact whether the representation is addressed to the G
., "'i Detaining Authority or to the Advisory Board or both. These observa-
tions though made in a different fact-situation do support the submis-
sion made on behalf of the appellants. But counsel for the respondents
argued that the observations were too broadly stated. It is not neces-
sary for. us to examine this contention as the earlier decisions are
sufficient to uphold the appellants' contention. H
458 SUPREME COURT REPORTS (19911 3 s.c.~.

In the case before us th1~ facts .clearly show that the appellants
A
had made a request to the Detaining Authority to take out copies of
his representation and forward them to the State Government as well
as the Central Governmem for consideration. Counsel for the Detain-
ing Authority as well as the State Government contended that no such
duty was cast on the said respondents to take out copies and forward
B them to the Cent1131 Government for consideration. Counsel for the
Union of India contended that since no such representation had
reached the Central Government there was no question of the Central
Government applying its mind thereto and taking a decision thereon.
In support, reliance was placed on Phillippa Anne Duke v. The State of
Tamil Nadu & Ors., [1982] 3 SCR 769 a judgment rendered by
+.
0. Chinnappa Reddy, J. sitting singly. In that case the two petitioners
c who were British nationals wen! detained for smuggling electric equip-
ments and goods secreted in specially made compartments/cavities of
their Mercedez Benz Van. Representations were presented on their
behalf to the Prime Minister of India during her visit to England. No
decision was taken on those representations and hence it was con-
D tended that the detention orders deserved to be quashed. This Court
held .that representation from whatever source addressed to whosoever
officer of one or other department of the Government cannot be f '

treated as representations under the Act. It was further held that the
Bout De Papier presented to the Prime Minister of India during her
visit to Britain and the subsequent reminder addressed to the External
E Affairs Ministry could not be treated as representations to the Central
Government. It is, therefore, obvious that this decision turned on its
special facts and is no authority for the proposition that the Detaining
Authority or the State Government was under no obligation to for-
ward the representations to the Central Government.

F It must be realised that when a person is placed under detention
he has certain handicaps and if he makes a request that a representa-
tion prepared by him may be forwarded to the Central Government as
well as the State Government for consideration after taking out copies
thereof it would be a denial of his right to represent to the Central
Government if the Detaining Authority as well as the State Govern-
G ment refuse to accede to his request and omit to forward his represen-
tation to the Central Government for consideration. It is difficult to
understand why such a technical and rigid view should be taken by the
concerned authorities in matters of personal liberty where a person is
kept in preventive detention without trial. Detenus may be literate or
illiterate, they may have access to legal advice or otherwise, they may
H or may not be in a position to prepare more than one copy of the
AMIR KHAN v. HMINGLIANA [PUNCHHI. J.J 459

representation and if they make a request to the authorities which 'A
have the facilities to take out copies to do so and forward them for
consideration to the Central Government, would it be just and fair to
refuse to do so? In such circumstances refusal to accede to their
request would be wholly unreasonable and in total disregard of the.,
right conferred on the detenu by Article 22( 5) of the Constitution read
with section 11 of the Act. We are, therefore, of the opinion that the B
Detaining Authority as well as the State Government were not
justified in taking a hyper-technical stand that they were under n1:1
obligation to take out copies of the representations ancj forward them
, t to the Central Government. We think that this approach on the part of
the Detaining Authority and the State Government has robbed the
appellants of their constitutional right under Article 22(5) read with C
section 11 of the Act to have their representation considered by the
Central Government. The request of the detenus was not unreason-
able. On the contrary the action of the Detaining Authority and the ·
State Government was unreasonable and resulted in a denial of the
appellants' constitutional right. The impugned detention orders are.
therefore, liable to be quashed. D

In the result we allow these appeals, set aside the order of the
High Court and quash the detention orders on this single ground. We
direct that both the appellants who are in detention shall be set free at
once unless they are required in any other pending matter.
E
PUNCHHI, J. I agree to the release of the detenus, but in the
facts and circumstances of the case. I have reservations to section 11 of
the Conservation of Foreign Exchangeand Prevention of Smuggl-
ing Activities Act, 1974 being treated part of the constitutional
guarantee under Article 22(5) of the Constitution of India. Section 11
of the Act does not confer any constitutional right on the detenu to F
have his representation thereunder considered as if under Article
22(5), but merely a provision enabling the State Government or the
Central Government, as the case may be, to revoke or modify deten-
tion orders. Have section 1 1 of the Act repealed, it causes no affecta-
tion to the constitutional guarantee under Article 22(5) of the Con-
stitution. Correspondingly, section 11 of the Act derives no sustenance G
from the said Article. Both operate in mutually exclusive fields,
though not as combatants. Both the detenu> may be set free as pro-
posed by my learned brother, A.M. Ahmadi, J.

V.P.R. Appeals allowed.