Abdul Razak
Dawood Dhanani Vs. Union of India & Ors [2003] Insc 235
(17 April 2003)
N. Santosh
Hegde & B.P. Singh. B.P. Singh, J.
This
appeal by special leave is directed against the judgment and order of the High
Court of Judicature at Bombay dated 24th July, 2002 in Criminal Writ Petition No.464 of 2002 dismissing the
writ petition filed on behalf of the detenu Mohd. Yusuf Razak Dhanani by his
father Shri Abdul Razak Dawood Dhanani appellant herein, challenging his
detention under the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA').
It is
not in dispute that the order of detention dated 20th February, 2002 was passed by the Joint Secretary to the Government
of India, who was specially empowered under Section 3 (1) of the COFEPOSA in
this behalf. The order of detention as well as the grounds of detention were
served on the detenu on 26th
February, 2002. The detenu
on 12th April, 2002 submitted a representation to the
detaining authority, the Secretary to the Government of India, Ministry of
Finance as also to the Chairman of the COFEPOSA Central Advisory Board. In the
said representation various grounds were raised challenging the order of
detention and praying that the order of detention be revoked as there was no
sufficient cause for the appellant's detention. The Advisory Board considered
the case of the detenu on 19th April, 2002
but the opinion of the Advisory Board was not in favour of the release of the detenu.
Thereafter the detaining authority passed an order on 6th May, 2002 rejecting the representation of the
detenu after fully considering the same. By order dated 8th May, 2002 the
representation of the detenu was rejected by the Central Government after
careful consideration.
The
case of the appellant is that he made a second representation on 19th April, 2002 but the same was not considered and
the order of detention was confirmed. Before the High Court it was urged on
behalf of the appellant that the detenu had made a third representation on 14th
May, 2002 but the appellant has not made any submission before us with regard
to the said third representation, and therefore the finding of the High Court
on this aspect of the matter has not been challenged before us.
It was
submitted before us by the appellant that in the second representation of April 19, 2002 new grounds had been taken by the detenu
challenging the order of detention. This representation had been sent to the
Advisory Board with a request that the same may be forwarded to all other
authorities competent under the law to revoke the order of detention. Learned
counsel for the appellant submitted before us, relying upon the judgments of
this Court in Amir Shad Khan & Anr. V. L. Hmingliana & Ors. AIR 1991 SC
1983 and Smt. Gracy V. State of Kerala & Anr.: (1991) 2 SCC 1 that when
such a representation is received by the Advisory Board with a request to
forward the same to the appropriate authorities, the Advisory Board is under an
obligation to forward the same to the competent authorities. Learned Additional
Solicitor General did not dispute the proposition that in such a case it is
only appropriate that the Advisory Board must forward the representation to the
concerned authorities. In the instant case the meeting of the Advisory Board
took place on 19th
April, 2002 and the
second representation also bears the same date.
The
learned Additional Solicitor General submitted that all the relevant materials,
including the second representation which formed part of the papers which came
from the Advisory Board, were considered by the Central Government while
rejecting the representation by order dated 8th May, 2002.
On the
other hand counsel for the appellant submitted that the power under Section 11
of COFEPOSA is independent of the power to confirm the order of detention under
Section 8 (f) of the Act. Both of the powers have to be exercised separately.
The Advisory Board is under an obligation to forward the representation to the
concerned authorities if such a request is made to it by the detenu while
submitting his representation before the Advisory Board, because the detenu has
a constitutional right to make a representation. The constitutional right to
make a representation is not confined to only one representation, and therefore
it is obligatory for the detaining authority as well as the Central Government
to consider and dispose of every representation made by the detenu. He
submitted that the order of 8th May, 2002 disposed of the first representation
of 12th April, 2002 but did not dispose of the second
representation made on 19th
April, 2002. The
second representation of 19th
April, 2002 may have
been considered by the Advisory Board or by the detaining authority, since the
detaining authority formally rejected the representation dated 19th April, 2002 by a separate order dated 8th May, 2002, but the Central Government did not
pass a similar order. So far as the second representation was concerned the
same was never considered or rejected, because the order of May 8, 2002 rejecting the representation specifically refers to
the representation dated 12th
April, 2002 which was
the first representation. He also challenged the order confirming the detention
under Section 8(f) of the Act because the same was passed without first
disposing of the second representation which was made by the detenu on 19th April, 2002.
Counsel
for the appellant relied upon several decisions of this Court and urged that a detenu
has a constitutional right to make as many representations as he wishes to
make, and the detaining authority as well as the Central Government are under a
constitutional obligation to dispose them of at the earliest. Counsel refers to
the decision of this Court in Ram Bali Rajbhar V. The State of West Bengal & Ors. : (1975) 4 SCC 47. We
find that the said decision is clearly distinguishable because that was not a
case where an order of detention was sought to be quashed on the ground of
non-consideration of the second representation. In the aforesaid decision this
Court considered the scope of the power and the manner of its exercise
conferred by Section 14 of MISA. It was held that the State Government can
revoke or modify an order of detention if it is satisfied on new or supervening
conditions or facts coming to light, that a revocation or modification had
become necessary. Section 14 of the Act vests a wider power than that which the
State Government may have possessed under the provisions of Section 21 of the
General Clauses Act, 1897. It is left to the Central Government in the exercise
of its discretion, either to exercise the power read with provisions of Section
21 of the General Clauses Act or without the aid of Section 21 of the General
Clauses Act. It was further observed that it would be a reasonable and judicious
exercise of the power under Section 14 of the Act to refer the case once again
to the Advisory Board for its opinion before a subsequent representation made
on "fresh materials" by a detenu is rejected. The subsequent
reference would result from a necessarily implied power of the Government to
act, so far as possible in a like manner to the one it has to adopt in
confirming or revoking the initial detention order under Section 12 of the Act.
The Court did not quash the detention order but only directed the Government to
consider and take an early decision upon the pending fresh representation of
the petitioner. It thus appears that this Court did not quash the order of
detention merely on the ground that the second representation was not disposed
of by the State Government expeditiously. Counsel then relied on the judgment
of this Court in State of Uttar Pradesh V. Zavad Zama Khan : (1984) 3 SCC 505. This was again a case under MISA, 1971
and this Court after referring to the judgment in Sat Pal V. State of Punjab :
(1982) 1 SCC 12 noticed the observation appearing in that judgment which reads
thus :
"The
making of an application for revocation to the Central Government under Section
11 of the Act is, therefore, part of the constitutional right a citizen has
against his detention under a law relating to preventive detention. While
Article 22(5) contemplates the making of a representation against the order of
detention to the detaining authority, which has to be referred by the
appropriate Government to the Advisory Board constituted under Section 8(a) of
the Act, Parliament has, in its wisdom, enacted Section 11 and conferred an
additional safeguard against arbitrary executive action".
Thereafter
this Court went on to hold:- "The principle that emerges from all these
decisions is that the power of revocation conferred on the Central Government
under Section 14 of the Act is a statutory power which may be exercised on
information received by the Central Government from its own sources including
that supplied by the State Government under sub- section (5) of Section 3 or
from the detenu in the form of a petition or representation. It is for the
Central Government to decide whether or not it should revoke the order of
detention in a particular case. In the present case, the detenu was not
deprived of the right of making a representation to the detaining authority
under Article 22(5) of the Constitution read with Section 8(1) of the Act.
Although
the detenu had no right to simultaneously make a representation against the
order of detention to the Central Government under Article 22(5) and there was
no duty cast on the State Government to forward the same to the Central
Government, nevertheless the State Government forwarded the same forthwith. The
Central Government duly considered that representation which in effect was
nothing but a representation for revocation of the order of detention under
Section 14 of the Act. That being so, it was not obligatory on the part of the
Central Government to consider a second representation for revocation under
Section 14." The aforesaid decision therefore does not help the appellant.
The
appellant also relies upon the judgment of this Court in Smt. (1988) 1 SCC 296.
We have carefully perused the judgment and we find that even this judgment does
not support the case of the appellant. This was again a case of detention under
the Prevention of Blackmarketing and Maintenance of Supplies of Essential
Commodities Act, 1980 in paragraph 9 of the report, the following observation
is made:
"So
far as the second representation filed by Madhava Rao's cousin Lakshmana Rao is
concerned, it has, in fact, been disposed of by the Central Government but
about 3 months later after its filing. It was argued that Section 14 of the Act
clothes the authority with the power of revoking the detention order, and such
a power carries with it the duty to exercise it whenever and as soon as changed
or new factors call for the exercise of that power. Reliance was placed on the
observations of this Court at page 786 (SCC p. 207) in Haradhan Saha V. State
of West Bengal and those in paragraph 9 of the judgment in Sat Pal V. State of Punjab
. It is true that such a power coupled with the duty exists but the duty to
exercise it arises only where new and relevant facts and circumstances come to
light. This was not so here, and as observed in para 13 of the judgment in
State of U.P. V. Zavad Zama Khan , there is no right in favour of the detenu to
get his successive representations based on the same grounds rejected earlier
to be formally disposed of again. In any event no period of limitation is fixed
for disposal of an application under Section 14 and as we have seen earlier the
second representation filed by Lakshmana Rao indeed, was considered and
rejected".
It
thus appears from the aforesaid judgment that even the statutory power vested
in the Central Government to revoke the order of detention may be exercised in
its discretion only in cases where "fresh materials" or "changed
or new factors" call for the exercise of that power, and there is no right
in favour of the detenu to get his successive representations based on the same
grounds rejected earlier to be formally disposed of again. This principle finds
affirmation in a judgment rendered by a constitution bench of this Court in Makhan
lal Gokul Chand V. Administrator, Union Territory of Delhi and Anr. : (1999) 9
SCC 504 in which this Court found that the petitioner challenged the order of
detention and failed thrice, and yet filed another representation which did not
disclose any fresh material, nor were any subsequent events pointed out which
may have warranted a "fresh" consideration of the representation made
by the detenu. It was only a change in the language of the representation. The
Delhi Administration was, therefore found, justified in rejecting the
representation since there were no "fresh grounds" nor any
"fresh material" or "subsequent events" brought out in the
last representation. There was, therefore, no obligation on the part of the
State to get that representation considered by a "fresh Advisory
Board" and, therefore, the exercise of this discretion by the State in
rejecting the representation and not constituting a "fresh" Advisory
Board could not be faulted. The writ petition was accordingly dismissed.
Faced
with this situation counsel for the appellant submitted that even if a detenu
does not have a constitutional right to make a second representation, in the
facts of this case it must be held that since the first representation was
pending when the second representation was received, it was a part of, or
continuation of the first representation. In any case, it was material before
the Central Government which it was bound to consider.
The
learned Additional Solicitor General submitted that the principle is well
established that there is no constitutional right of a detenu to make
successive representations, nor is there a corresponding obligation on the
competent authority to consider and dispose of such representation by a
separate order, unless the subsequent representation discloses "fresh
grounds" or "fresh material" or any "subsequent event"
which may justify the consideration of another representation. A mere
reiteration of the same grounds on the same material is not sufficient, and in
such a case there is no legal obligation even to consider such a
representation. He further submitted that Article 22(5) speaks of "a
representation" and therefore another representation can be considered
only if new grounds based on fresh materials are brought to the notice of the
competent authority. Having regard to the authorities, we find considerable
force in the submission urged by the learned Additional Solicitor General.
We
have, therefore, carefully perused the first representation dated 12th April,
2002 as well as the second representation dated 19th April, 2002. We requested
counsel for the appellant to point out any new ground based on fresh material
or any subsequent event which justify a reconsideration of the matter on the
basis of the second representation. Having carefully scrutinized the two
representations we do not find any new ground or fresh material in the second
representation made by the detenu. The same grounds and the same materials as
stated in the first representation have been stated in the second
representation, except for the difference in language and the manner of
presentation. Having not found any new ground or fresh material or any
subsequent event justifying a consideration of the second representation of the
detenu, we are not persuaded to hold that in these circumstances the Central
Government was bound to consider the second representation and pass a separate
order disposing of the same. In fact all the grounds stated in the second
representation were also stated in the first representation which was rejected
by the Central Government after obtaining opinion of the Advisory Board and
after due consideration. There was, therefore, no obligation on the part of the
Central Government to pass a similar order again on the basis of the second
representation which did not contain any new or fresh grounds justifying a
fresh consideration.
We,
therefore, find no merit in this appeal and the same is accordingly dismissed.
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