Holding

Reference to the Advisory Board is a ministerial act that may be made by an authorized officer, the period of detention is to be fixed only after the Board’s report, the Minister of State was empowered to consider the representation, and a detenu’s request for counsel must be assessed on its merits but does not confer a statutory right to a lawyer.

Summary

The husband of petitioner Kavita was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) to prevent alleged smuggling. He made representations against his detention, which were rejected, and the Advisory Board later reported sufficient cause to continue detention. The petitioner challenged (1) whether the reference to the Advisory Board had to be made by the Government itself within five weeks, (2) whether a Minister of State could dispose of the representation without specific authority, (3) whether the detenu was entitled to legal representation before the Advisory Board, and (4) whether the period of detention must be specified at the time of the original order. The Supreme Court held that the reference to the Advisory Board is a ministerial act that may be performed by an authorized officer, that the period of detention need not be fixed at the initial order but only after the Board’s report, that the Minister of State was validly empowered by the Maharashtra Rules of Business to consider the representation, and that while a detenu has no statutory right to a lawyer, a request for counsel must be considered on its merits. Consequently, the Court found no procedural infirmity and dismissed both writ petitions.

Issues considered

The reference to the Advisory Board under Section 8(b) of COFEPOSA must be made by the Government itself within five weeks
Whether a Minister of State for Home Affairs can validly dispose of a detenu's representation without explicit authority
Whether a detenu has a right to be represented by a lawyer before the Advisory Board under Section 8(e) of COFEPOSA
Whether the period of detention must be specified at the time of the initial detention order
Whether there was a non‑application of mind in the grounds of detention

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)s. 3(1), s. 3(3), s. 8(b), s. 8(c), s. 8(e), s. 8(f)
Constitution of Indias. Article 166(2), s. Article 166(3), s. Article 21, s. Article 22(4), s. Article 22(5), s. Article 22(7)
General Clauses Acts. 21
Maharashtra Government Rules of Businesss. Rule 6

Subjects

preventive detentionCOFEPOSAAdvisory Boardrepresentationright to counselArticle 21Article 22procedural fairnessMaharashtra Rules of Business

Judgment

138

A KA VITA W/O SUNDER SHANKARDAS
DEVIDASANI ETC.
v.
STATE OF MAHARASHTRA & ORS. ETC. ETC.

8 July 28, 1981

(0. CHINNAPPA REDDY, A.P. SEN AND BAHARUL ISLAM, JJ.]

Constitution of India 1950, Articles 21 and 22 and Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974-S. 8(b}, (c), (e)

c and (f).

Order of detention under Act-Specification of period of detention-To be
done at final stage after consideration of report of Advisory Board.
-
Representation of detenu-Whether to be considered by the same individual
who made the initial order of detention.

D Detenu-Whether has a right to be represented by lawyer before Advisory
Board.

Maharashtra. Government Rules of Business, Rule 6 and Conservation of
Foreign Exchange and Prevention of Smuggling Activities-Maharashtra Detention
Order 1974.

Representation of Detenu-Minister of State for Home Affairs-Whether
competent to deal and dispose of representation.

The husband of the petitioner was Cetained by the State Government
under section 3(1) of the Conservation of Foreign Exchange and Prevention
,of Smuggling Activities Act 1974 with a view to prevent him from smuggling
goods and abetting the smuggling of goods. His representation to the State
F Government was rejected. The Ad,•isory Board informed him by a letter that
the Board had reported to the Government advising them that there was sufficient
material io justify his detention.

In the writ petition filed in this Court it was contended on behalf of the
detenu: (1) although it~was the Government that was required by section 8(b)
of the COFEPOSA to make the reference to the Advisory Board, it was not the
G Government but one of its subordinate officer that had made : the reference, and
that this departure from the prescribed procedural requirement had made the
continued detention of the detenu for any period longer than the five weeks
mentioned in section 8{b) illegal; {2) the representation was disposed of
by the Minister of State of Home Affairs of the State Government
without any authority to do so; (3) the detenu was not permitted to
be represented by a lawyer despite his request that he might be allowed
to engage the services of a lawyer before the Advisory Board; (4) there was a
non·application of the mind of the detaining authority first in making the
KA V!T A V. MAHARASHTRA 139

order of detention and later in considering the representation of the detenu ; A
I and (5) that it was the Assistant Secretary to the State Government who signed
at the bottom of the grounds that he thought it was against the public interest
to disclose the source of intelligence and the facts contained therein.

In the connected writ petition, only the first two of the aforestated con-
tentions were raised.

Dismissing the writ petitions,
B

HELD : 1.(i) The order of detention has not to specify the proposed
period of detention at that stage. Within five days of the detention, detenu is
required to be furnished with the grounds of detention so as to enable him to
make a representation to the detaining authority. (Article 22(5) of the Constitu-
tion and section 3(3), COFEPOSA). Thereafter, within three months from the date
of detention 1 the Advisory Board has to report on the sufficiency of cause c
for such detention. This is a constitutional mandate (Article 22(4) of the
Constitution). In order to enable the Advisory Board to discharge its constitu~
tional obligation the Government is required to make a reference to the Advisory
Board within five weeks from the date of detention. (Section 8(b) of
COFEPOSA). The Advisory Board in its turn is charged with the task of
submitting a report within eleven weeks from the date of detention, specifying
its opinion as to whether or not there is sufficient cause for the detention of the D
person concerned (Section S(c) COFEPOSA). The period of eleven weeks is to
enable compliance with the Constitutional time-limit of three months. On receipt
of the report the Government has to revoke the d<;itention, if the Board has
reported that there is no 'iufficient cause for the detention or, to confirm the
order of detention and specify the period of d:tention if the Board has reported
there is sufficient cause (or the detention. (Section 8(fJ COFEPOSA). In the
meanwhile at any time lhe Central Government in 'iny case, and the State E
Government if the order of detention was m ide by the State Government or by
an Officer of the State Government, are entitled to revoke the order of
detention. [144 C-G]

(ii) There is no constitutional or statutory obligation on any one, until
after the report of the Advisory Board is received to decide finally or
tentatively upon the period of detention. The initial compulsion on the F
detaining authority before making an order of detention is to arrive
at the iatisfaction that it is necessary to detain the person concerned with a view
to preventing him from acting in a certain manner or with a view to preventing
him from committing certain acts. Th.e obligatioo. to specify the period of
detention is upon the appropriate Government and that has to be done at
the final stage, after consideration of the report of the Advisory Board, There
is no intermediate stage at which any tentative conclusion is to be arrived at by G
the Government regarding the period of detention though, at any and every stage,
the Government has the full liberty to revoke the order of dl!tention.
[144 H-145 Cl

(iii) The act of making a reference to the Advisory Board is a mechanical
or ministerial act involving no exercise of discretion, though of course the ff
Government is at the ·stage, as at all other stages at liberty to revoke the
order of detention. The prescription of five weeks in section 8(b) of the
140 SUPREME COURT REPORTS [I 982] I S.C.R.

A COFEPOSA for the making of a reference to the Advisory Board is with a view
to enable the fulfilment of the constitutional requirement of Article 22(4) and not
with a view to imposing an obligation upon the Government to consider the
question of the Jength of detention and arrive at a tentative conclusion even at
that stage. (145 DJ

2.(i) The Maharashtra Government Rules of Business made by the Governor
B in exercise of the powers conferred by Article 166(2) and (3) of the Constitution
provides by Rule 6 that the Chief Minister and a Minister in consultation with
the Chief Minister may allot to a Minister of State or a Deputy Minister any
business appertaining to a Department 01 a par.t of a Department. The
Standing Order made by the Chief ~inister of Maharashtra and Minister for
Horne directs alJotrnei;i_t of the business appertaining to "AU cases of Conserva-
tion of Foreign Exchange and, Prevention of Smuggling Activities Act, 1974 and
c the Conservation of Foreign Exchange and Prevention of Smuggling Activities ...
......... Maharashtra Detention Order, 1974 and all other matters arising under
the provisions of the.said Act and the said Order ...... and any other orders issued
-
under this Act, except. ..... " to the Minister of State for Horne. The Minister of
State for_ Home Affairs was therefore entitled to deal with the representation of
the detenu. (145 H, F·G; 146 A]

D (ii) Governmental business can never get through if the same individual
has to act for the Government at every stage of a proceeding or transaction,
however, advantageous it may be to do so. Nor can it be said that it would
be to the advantage of the detenu to have the matter dealt with by the same
individual at all stages. It may perhaps be to the advantage of the detenu if
fresh minds are brought to bear upon the question at different stages. There is
therefore no substance in the s"uggestion that the representation of the detenu
E, should have been considered by the very individual who had _exercised his mind
at the initial stage of making the order of det~ntion. [146 D, B]

3. While s~ction 8(e} disentitles a detenu from claiming as of right to be
represented by a lawyer, it does not disentit]e him from making a request for the
services of a lawyer. The importance of legal assistance can never be over-stated
and adequate legal assistance may be essential for the protection of the Funda-
F mental Right to life and personal liberty guaranteed by Article 21 of the Consti-
tution and the Right to be heard given to a detenu by section 8(e) of
-
COFEPOSA. These rights may be jeopardised and reduced to mere nothing's
without adequate legal assistance, That would depend on the facts of each
individual case, in the light of the intricacies of the problems involved and other
relevant factors. Therefore, where a detenu makes a request for legal assistance,
his request would have to be considered on its own merit in each individual
G case. [146 H-147 CJ

In the instant case, the State Government merely informed the detenu that
he had no statutory right to be represented by a lawyer before the Advisory
Board. Since it was for the Advisory Board and not for the Government to
afford legal assistance to the detenu the latter, when he was produced before the
H Advisory Board, could have~ if he was so minded, n1ade a request to the
Advisory Board for permission to be represented by a lawyer. He preferred not
to do so. The detenu was, therefore, not wrongfu!Jy denied the assistance of
KA VITA v. MAHARASHTRA ( Chinnappa Reddy, J.) 141

counsel as to the conclusion that procedural fairness, a part of the Fundamental A
Right guaranteed by Article 21 of the Constitution was denied to him. [147 D-E]
I
4. A reading of the grounds of detention reveals that all that was said was
that the documents received by post at the tim: or search pertained to an order
dated 29.11.1980 and not that there was any admission by the detenu that there
was ever an order dated 29.11.1980. [147 H]
B
5. The mistake that it was only the Assistant Secretary of the State
Government who signed at the bottom of the grounds that it was against the
public interest to disc1ose the source of intelligence was explained by the
respondents as a clerical mistake, and was later rectified by making suitable
corrections. [148 CE]

ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 2690
c
of 1981.
(Under article 32 of the Constitution of India)
AND
Writ Petition (Criminal) No. 3241 of 1981. D
(Under article 32 of the Constitution of India)

Ram Jethma/ani and M.S. G,znesh for the Petitioner in W.P.
No. 2690/81.

O.P. Rana and R.N. Poddar for the Respondents in W.P . E
• No. 2690/81.

Ram Jethmalani and Miss. Rani Jethmalani for the Petitioner in
W.P. No. 3241/81.

- Hardyal Hardy, S. Narayanan and Miss A. Subhashini for the
Respondents in W.P. No. 3241/81.
F

The Judgment of the Conrt was delivered by

CHJNNAPPA REDDY, J. These two Writ Petitions (Criminal) may
be disposed of by a single judgment as some of the questions raised
G
are common to both. To begin with, we may refer to the facts in
Writ Petition (Criminal) No. 2690 of 1981. The Government of
Maharashtra, in exercise of the powers under Sec. 3(1) of the
COFEPOSA, directed the detention of Sunder Shankardas Devi-
H
dasani by an order dated March 9, 1981, with a view to prevent him
from smuggling goods and abetting the smuggling of goods. The
142 SUPREME COURT REPORTS (1982] I S.C.R.

A grounds of detention, also of the same date, were duly served
on the detenu. The detenu made a representation on April 14, 1981
and this was rejected by the Government on April 25, 1981. A
further representation made by the detenu on April 25, 1981 was also
rejected on May 2, 198l. In the mean·time the Advisory Board met on
April 29, 1981 and considered the case of the detenu. By a letter dated
B May 6, 1981 the detenu was informed by the Advisory Board that the
Board had reported to the Government of Maharashtra advising
them that there was sufficient material to justify his detention.

In this application for the issue of a Writ of Habeas Corpus,

c
the first submission of Shri Jethmalani, learned counsel for the
detenu, was that although it was the Government that was required -
by Sec. 8(b) of the COFEPOSA to make the reference to tl1e
Advisory Board, in the instant case, it was not the Government but
one of its subordinate officers that had :made the rererence. There
was thus, according to Shri Jethmalani, a departure from the pres-
cribed procedural requirement and for that reason the continued
n detention of the detenu for any period longer than five weeks
mentioned in Sec. 8(b) was illegal. Shri Jethmalani's contention was
that Sec. 8 (b) required the Government to make a reference to the
Advisory Board within five weeks from the date of detention and
this meant that the Government had first to decide that it was
necessary to detain the person for more than five weeks and then to
E forward the reference to the Advisory Board. The learned counsel •
would have it that the making of a reference to the Advisory Board
necessitated a decision to detain the detenu for more than five
weeks and this decisiou could be taken by the Government only and
none else.

F We are unable to agree with the submission of Shri Jethmalani.
Art. 22 (4) (a) of the Constitution prescribes that no law providing
for preventive detention shall authorise the detention of a person for·
a longer period than three months unless an Advisory Board consis·
!
ting of persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court has reported before the
G expiration of the said period of three months that there is in its
opinion sufficient cause for such dentention. Art. 22 (7) (c) empowers
Parliament, by law, to prescribe the procedure to be followed by an
Advisory Board in an enquiry under Art. 22 (4) (a). Sec. 3 (l) of
the COFEPOSA authorises the Central Government, the State
H Government an officer of Central Government, not below the rank
of a Joint Secretary specially empowered in that behalf, or an Officer
KAVITA v. MAHARASHTRA (Chlnnappa Reddy, J) 143

of a State Government not below the rank of a Secretary specially A
empowered in that behalf to make an order directing that a person
I be detained, if satisfied, with respect to that person, that it is
necessary to detain him with a view to preventing him from acting
in any manner prejudicial to the conservation or augmentation of
foreign exchange or with a view to preventing him from smuggling
goods, etc. etc. Sec. 3 (3) pr0vides for the communication B
-0f the grounds of detention to the detenu to enable him to
make a representation. The communication has to be ordi-
narily not later than five days of the date of detention though
in exceptional circumstances, for reasons to be recorded in
writing, it may be fifteen days. Sec. 8 provides for the constitution c
- of Advisory Boards and the procedure to be followed by them.
Sec. 8 (b} obliges the appropriate Government, within five
weeks from the date of detention of a person under a deten-
tion order, to make a reference in respect of the detention to the
Advisory Board to enable the Advisory Board to make the report
under Art. 22 (4) (e) of the Constitution. Sec. 8 (c) prescribes the D
procedure to he followed by the Advisory Board and requires the
Advisory Board to submit its report within eleven weeks from the
date of detention of the person concerned. Sec, 8 (f) stipulates that
the appropriate Government shall revoke the detention order and
cause the person to be released forthwith if the Advisory Board has
reported that there is in its opinion no sufficient cause for the
detention of the person concerned. If the Advisory Board reports
.. that there is in its opinion sufficient cause for the detention of the
E
person, the appropriate Government may confirm the detention
order and continue the detention of the person concerned for such
period as it thinks fit. Sec. I l empowers the State Government to
revoke. an order of detention made by an Officer of the State
Government, and the Central Government to revoke an order of F
detention made by a State Government, an officer of a State Govern-
ment or an Officer of the Central Government. The power of the
State Government and the Central Government, under Sec. 11 of the
COFEPOSA, to revoke orders of dentention is in addition to the
power under Sec. 21 of the General Clauses Act to revoke their own
orders. G
The first important factor to be noticed here is that the period
for which a person is to be detained under the COFEPOSA is not to
be determined and specified at the time of making the original order
of detention under Sec. 3(1). It has to be determined and specified at l
the time of confirming the order of dentention under Sec. 8 (f),
after receiving the report of the Advisory Board. The second factor
144 SUPREME COURT REPORTS [1982] ! S.C.R.

A of importance which calls for attention is that while an order of
detention may be made by the State Government, the Central '
Government or an Officer of either Government specially empowered
in that behalf, an order of detention may only be confirmed by the
appropriate Government. Keeping in mind these two factors, we
may now examine the time-scheme under the COFEPOSA. First
B the detaining authority, who may be the Central Government, the
State Government or an Officer of either Government, specially
empowered in that behalf, must be satisfied that it is necessary
to detain a person with a view to preventing him from acting in a
certain manner or doing certain thing,, and if so, satisfied, an order

c of detention may be made (Sec. 3 (I), COFEPOSA). The order of
detention has not to specify the proposed period of detention at that
stage. Within five days of the detention, the detenu is required to
-
be furnished with the grounds of detention so as to enable him to
make a representation to the detaining authority (Art. 22(5) of the
Constitution and Sec. 3(3), COFEPOSA). Thereafter, within three
months from the date of detention, the Advisory Board has to report
D
the sufficiency of cause for such dentention. This is a constitu-
tional mandate (Art. 22(4) of the Constitution). In order to enable
the Advisory Board to discharge its constitutional obligation, the
Government is required to make a reference to the Advisory Board
within five weeks from the date or detention (Sec. S(b) of
COFEPOSA). The Advisory Board in its turn is charged with the
E
task of submitting a report within eleven weeks from the date of •
detention, specifying its opinion as to whether or not there is
sufficient cause for the detention of the person concerned (Sec. S(c),
COFEPOSA). Quite obviously the period of eleven weeks from the
date of detention prescribed for the submission of the report of the
Advisory Board is to enable compliance with the Constitutional
F
time•limit of three months. On receipt of the report the Govern-
ment has to revoke the detention, if the Board has reported that
there is no sufficient cause for the detention or, to confirm the order
of detention and specify the period of detention if the Board has
reported that there is sufficient cause for the detention (Sec. S(f)
G COFEPOSA). In the meanwhile, at any time, the Central Govern-
ment in any case, and the State Government if the order of detention
was made by the State Government or by an Officer of the State
Government, are entitled to revoke the order of detention. Thus there
is no Constitutional or Statutory obligation on anyone, until after the
report of the Advisory Board is received to decide finally or
H tentatively upon the period of detention. The initial compulsion
on the detaining authority before making an order of detention i•
KAVITA v. MAHARASHTRA (Chinnappa Reddy, J.) 145

to arrive at the satisfaction that it is necessary to detain the person A
concerned with a view to preventing him from acting in a certain
manner or with a view to preventing him from committing certain
acts. The obligation to specify the period of detention is upon the
appropriate Government and that has to be done at the final stage,
after consideration of the report of the Advisory Board. There is
no intermediate stage at which any tentative conclusion is to be
arrived at by the Government regarding the period of detention 8
though, at any and every stage, the Government has the full liberty
to revoke the order of detention. We are, therefore, of the view that
the act of making a reference to the Advisory Board is a mechanical
or ministerial act involving no exercise of discretion, though of
course the Government is at that stage, as at all other stages, at
liberty to revoke the order of detention. The prescription of five c
weeks in Sec. 8(b) of the COFEPOSA for the making of a reference
to the Advisory Board is with a view to enable the fulfilment of the
Constitutional requirement of Art. 22(4) and not with a view to
imposing an obligation upon the Government to consider the
question of the length of detention and arrive at a tentative conclu-
sion even at that stage. We, therefore, reject the first submission of D
Shri Jethmalani.

The second submission of the learned counsel for the detenu
was that the representation was disposed of by the Minister of State,
• Home Affairs, Government, of Maharashtra without any authority
to do so. It is somewhat strange that this contention should have E
been raised before us. We understand that this very contention
was previously raised in another Writ Petition and that the relevant
standing order was produced before the Court at the hearing of the
Writ Petition and that it was also shown to the learned counsel.
The standing order is made by Shri A.R. Antulay, Chief Minister of
Maharashtra and Minister for Home and it directs allotment of the
F
business appertaining to "All cases of Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 and the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities" . Maharashtra Detention Order, 1974 and all other matters
arising under the provisions of the said Act and the said order ......
G
and any other orders issued under this Act, except. ......... " (We
are not concerned with the exceptions) to the Minister of State for
Home, Shri Abbey Singh Maharaj Raje Bhosale. Rule 6 of the
Maharashtra Govt. Rules of Business made by the Governor of
H
Maharashtra in exercise of the powers conferred by Article 166 (2)
and (3) of the Constitution provides that tho Chief Mi:Jister and a
146 SUPREME COURT REPORTS (1982] l s.C.R.

A Minister in consultation with the Chief Minister may allot to a
Minister of State or a Deputy Minister any business appertaining
to a Department or a part of a Department. It is, therefore,
clear that the Minister of State, Home Affairs, Government
of Maharashtra was entitled to deal with the representation
of the detenu. It was suggested that it would have been more
B appropriate if the representation had been considered by the very
individual who bad exercised his mind at the initial stage of making
the order of detention, namely the Secretary to the Government,
Shri Samant. There is no substance in this suggestion. The order
of detention was not made by Shri Samant as an Officer of the State

c
Government specially empowered in that behalf but by the State
Government itself acting through the instrumentality of Sbri Samant, -
a Secretary to Government authorised to so act for the Government
under the Rules of Business. Governmental business can never get
through if the same individual has to act for the Government at
every stage of a proceeding or transaction, however, advantageous
it may be to do so. Nor can it be said that it would be to the
D advantage of the detenu to have the matter dealt with by the same
individual at all stages. It may perhaps be to the advantage of the
_ detenu if fresh minds are brought to bear upon the question at
different stages. It is unnecessary to pursue the matter any further
as we find no constitutional or legal infirmity in the representation
having been considered by the Minister of State, Home Affairs,
E Government of Maharashtra. •

The learned counsel next submitted that the detenu was not
permitted to be represer,ted by a lawyer despite his request that he
might be allowed to engage the services of a lawyer before the
Advisory Board. In his representation to the Government the
F detenu did make a request to be permitted to be represented by a
lawyer. The Government informed him that under the provisions of
Sec. 8(e) of the COFEPOSA he was not entitled to be represented
by a lawyer before the Advisory Board and therefore, it was not
possible to grant his request. The complaint of the learned counsel
for the detenu was that while a detenu may not be entitled, as of
G
right, to be represente1 by a lawyer before the Advisory Board,
there was no bar against a lawyer being permitted to appear before
the Advisory Board and therefore, the request of a detenu to be
represented by a lawyer had to be considered on the merits of each
H individual case. This the learned counsel submitted had not been
done in the present case and the detenu's request was never placed
before the Advisory Board. It is true that while Sec. 8(e) disentitles
/
KAVITA v. MAHARASHTRA (Chinnappa Reddy, J.) 147

a detenu from claiming as··· of right to be represented by a lawyer, it A
does not disentitle him from making a request for the services of a
lawyer. We agree that the importance of legal assistance can never
be over-stated and as often than nota dequate legal assistance may be
essential for the protection of the Fundamental Right to life and per-
sona! liberty guaranteed by Article 21 of the Constitution and the Right
to be heard given to a detenu by Sec. 8(e), COFEPOSA. These rights B
may be jeopardised and reduced to more nothings without adequate
legal assistance. That would depend on the facts of each individual
case, in the light of the intricacies of the problems involved and
other relevai;it factors. Therefore, where a detenu makes :a request

-
for legal assistance, his request would have to be considered on its
own merit in each individual case. In the present case, the Govern- c
ment merely informed the detenu that he had no statutory right to
be represented by a lawyer before the Advisory Board. Since it was
for the Advisory Board and not for the Government to afford legal
assistance to the detenu the latter, when he was produced before
,
·; the Advisory Board, could have; if he was so minded, made a
request to the Advisory Board for permission to be represented by a D
lawyer. He preferred not to do so. In the special circumstances
of the present case we are not prepared to hold that the detenu was
wrongfully denied the assistance of counsel so as to lead to the
conclusion that procedural fairness, a part of the Fundamental
Right guaranteed by Article 21 of the Constitution was denied to
him. E

The last submission of the learned counsel was that there was
a non application of the mind of the detaining authority, first in
making the order of detention and later in considering the represen-

- tation of the detenu. It was contended that the recital in the grounds
of detention that detenu had made a statement that certain documents
received at the detenu's residence at the time of search pertained to
the order dated 29.ll.1980 of Shri Abdullahi Amin, Attache, Sudan
F

Consulate was not correct and that the detenu's statement contained
no such recital. It was said that the grounds of detention read as
if the detenu had admitted the existence of the order dated 29.11.80
in the statement made by him. We do not find any substance in G
this submission. A reading of the document leaves no such impres-
sion. All that was said was that the documents received by post at
the time of search pertained to an order dated 29.11.80 and not
that there was admission by the detenu that there was ever an order
dated 29.11.80. It was then contended that in the course of com- H
munication of the grounds of detention the detenu was informed that
148 SUPREME COURT REPORTS (1982] I S.C.R.

A it was against the public interest to disclose the source of intelligence
and the further facts contained therein. The actual sentence by \
which privilege was claimed against disclosure was as follows :

"I consider it against public interest to disclose the
source of intelligence referred to in the grounds furnished
B above and further consider it against public interest to
disclose further facts contained therein".

The argument was that the grounds did not state that the Govern-
ment considered it against public interest to disclose the source of
intelligence and the further facts contained therein but that it was
c the Assistant Secretary to the Government of Maharashtra who
signed at the bottom of the grounds that though it was against the
public interest to 'disclose the source of intelligence and the facts
-
contained therein. The emphasis was on the use of the first person
by the Assistant Secretary. This was explained by the respondents
as a Clerical mistake and was later rectified by making suitable
D corrections. It was contended that the discovery of the mistake
and its rectification was after the Advisory Board had submitted
its report, though the detenu had even earlier, raised the
question that it was the Government and not the Assistant Secretary
that could claim privilege. It was not brought to the notice
of the Advisory Board at any time that the mistake was only clerical.
E We have the least hesitation in rejecting the contention. The
mistake is so obviously clerical that we cannot permit the detenu. to ..
take advantage of it. In the result W.P. No. 2690/81 is dismissed.
,..
The first two questions raised in the previous Writ Petition
are common to Writ Petition No. 3241 of 1981 also. An additional
F point was sought to be raised that the copy of a certain document
was not supplied to the detenu but after verification the point
was abandoned by the learned counsel. Ti1is Writ PetitioJ is also
dismissed.

N.V.K. Petitions dismissed.