E K ANUSAPA Vs. D N CAPOOR

JUDGEMENT

(1.) The Petitioner who is a National of Thailand has filed this petition under Article 226 of the Constitution of India challenging his detention by virtue of an order dated January 28, 1987, issued under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (hereinafter called the Act) passed by Shri D.N. Capoor, Officer on Special Duty, who was specially empowered by the Government of Maharashtra. The order of detention shows that the Detaning Authority directed the detention of the petitioner with a view to preventing him from smuggling goods. It appears that the petitioners who was arrested in connection with the offence which forms the grounds of detention on August 22, 1986, and on the date of which the order of detention was served on him. viz. January 28, 1987, he was still in jail in connection with the said offence. He was granted bail by the Magistrate, but he did not avail of the same. Along with the order of detention the grounds of detention dated January 28, 1987, were also served on the petitioner. A declaration under section 9(1) of the Act was also issued on February 27, 1987. The present petition has been filed on July 20, 1987. The same day the petitioner also made a representation dated July 20, 1987, addressed to Shri Capoor who passed the order of detention. It appears that Shri Capoor who was the ex officio Secretary and Officer on Special Duty in the Home Department of the Government of Maharashtra at the time of passing of the order of detention was transferred. Our attention is also drawn to the order dated June 30, 1986, issued by the Government specially empowering Shri R.C. Iyer, Secretary (II) to the Government of Maharashtra, Home Department, for the purpose of section 3 of the Act. At the time of hearing of this petition Shri Barday appearing for the State produced before us the office note in this connection. In the office note it is stated that Shri D.N.Capoor who had been specially empowered under section 3(1) of the Act for the purpose of section 3 thereof had been transferred to the Maharashtra Institute of Development Administration, Pune, and in his place Shri R.C.Iyer, Secretary to the Government of Maharashtra, has been posted and a proposal is made that in the above circumstances the appointment of Shri R.C. Iyer under section 3 of the Act may be approved. This note is signed by Shri K.B.Dabholkar, Under Secretary, Home Department, and later on initialled by the Home Secretary, Addl. Chief Secretary and the Cabinet Minister for Home. Thus this note was approved and the aforesaid order dated June 30, 1987, was issued.

(2.) In the petition the petitioner has challenged his detention on various grounds by way of reply the respondents has filed the affidavits of Shri Capoor as well as of Shri R.C. Iyer amongst others. Although a number of grounds challenging the detention have been taken up in petition, it is not necessary for us to deal with all of them since we are satisfied that the order of detention is liable to be set aside on the single ground that the petitioner was not afforded the earliest opportunity of making a representation as envisaged by Article 22(5) of the Constitution.

(3.) Before we turn to the facts of this case as regards the contentions urged before us, it would be useful to bear in mind the well settled legal position regarding the rights of a detenu conferred under Article 22(5) of the Constitution. Article 22(5) of the Constitution provides two important safe guards from the point of view of the detenu. Firstly, when any person is detained in pursuance of an order made under any law providing for preventive detention, 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 secondly he shall afford him the earliest opportunity of making a representation against his detention. Violation of any of these safeguards would obviously render the detention invalid and unconstitutional. In the present case it is not disputed that the first requirement of communication of the grounds on which the order has been made has been satisfied. The question, however, remains whether the detenu has been afforded the earleist opportunity of making a representation. When this constitutional requirement has different facets it must be complied with by the Detaining Authority. In is incumbent on the Detaining Authority to inform the detenu that he has a right to make a representation and also to further inform him as to the authority to whom he could make such a representtion. It is not only the State Goverment and the Central Government to whom powers have been conferred under the Act to revoke the order of detention or the authorities to whom the detenu can make a representation, but having regard to the provisions of section 21 of the General Clauses Act, the representation can also be addressed to the Detaining Authority itself. As a matter of fact, the officer who has been specially empowered to exercise the powers of detention under section 3(1) of the Act would be in a better position to consider and apply his mind to the representation of the detenu. In view of this position, the detenu has a valuable right to have his representation considered by the Detaining Authority, such Detaining Authority being in the present case the officer who was specially empowered under section 3(1) of the Act. If this be so then it is incumbent on the Detaining Authority to inform the detenu about his right to make a representation to the Detaining Authority himself. While conceding that in law it is the duty of the Detaining Authority to inform the detenu as to the authorities to whom he can make the representation, the learned Counsel appearing for the respondent submitted that non-observance of this safeguard should not be considered in isolation and in a pedentic manner. It is submitted that the Court should further address itself to the question whether any prejudice have been really caused to the detenu by reason of the Detaining Authoritys failure to communicate the detenu of his right to make a representation to Detaining Authority himself.On the other hand it was contended by Shri Gupte, the learned Counsel appearing for the detenu, that any infringement of Article 22(5) of the Constitution should be viewed strictly and violation thereof must necessarily have the effect of invalidating the order of detention. The learned Counsel relied on a recent decision of the Supreme Court in (Mrs. Tsering Dolkar v. The Administrator, Union Territory of Delhi) A.I.R. 1987 S.C. 1192. Particular reliance was placed on the observation of the Supreme Court in para-12 of the judgment to the effect that the law as laid down by the Supreme Court clearly indicates that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order. We are conscious that minor infractions in the matter of compliance of the Constitutional safeguards need not necessarily lead to invalidating the order in each case, provided no prejudice is shown to have been caused to the detenu by reasons of such infractions. For instance, the Supreme Court in the case of (State of Rajasthan v. Shamsher Singh) A.I.R. 1985 S.C. 1082, held that in facts of the case no prejudice being caused, the order was not liable to be set aside nearly on account of the delay of a day beyond the statutory period in placing the representation before the Advisory Board in as much as the Advisory Board had caused the matter to be heard on the 10th September, 1984 and before the appointed date the representation was before the Board. This is what the Supreme Court has observed in the case of State of Rajasthan v. Shamsher Singh. "We agree with the principal indicated above and in our opinion, in the fact of the present case, it cannot be said there has been any negligence or remissness on the part of the State Government in dealing with the representation of the detenu or in the matter causing the Advisory Board. We are impressed by the fact that no prejudice has been caused to the detenu on account of the delay of a day beyond the statutory period in placing the representation before the Advisory Board in as much as the Advisory Board had caused the matter to be heard on the 10th September, 1984, and before the appointed date the representation was before the Board. The first ground on which the High Court came to be hold that the detention was invalid has, therefore, to be negatived."