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Shri Chandrakant Vithal Dalvi v. Shri R.D Tyagi And Others
Structured Summary of the Opinion (Vishnu Sahai, J.)
Factual and Procedural Background
The detenue (petitioner) challenged before this Court, by way of a petition under Article 226 of the Constitution of India, a detention order dated 28th November 1995 issued by respondent No.1, the Commissioner of Police for Greater Bombay, under the National Security Act (NSA). The detention order and its grounds were served on the detenue on 29th November 1995.
The petitioner made a representation dated 5th December 1995 to respondent No.1 which, according to the petitioner, remained unconsidered. The petitioner contended that non-consideration of that representation violated his fundamental right under Article 22(5) of the Constitution.
The Court heard arguments from Mr. U.N. Tripathi for the petitioner and Mr. Rajiv Patil, Additional Public Prosecutor, for the respondents. After considering submissions and relevant authorities, the Court dismissed the petition, discharged the rule previously issued, and expedited issuance of certified copy.
Legal Issues Presented
- Whether a representation against the detention order under Article 22(5) of the Constitution could lawfully be made to respondent No.1, the Commissioner of Police, in the circumstances of a detention order issued under the National Security Act.
- Whether, under the National Security Act (particularly having regard to section 3(3) and section 3(4)), a detaining authority subordinate to the State Government (such as the Commissioner of Police or a District Magistrate) has the power to revoke a detention order during the initial 12-day period pending approval by the State Government, and if so whether that power implies the authority to entertain representations under Article 22(5).
Arguments of the Parties
Appellant's (Detenue's) Arguments — Mr. U.N. Tripathi
- The detenue had made a representation on 5th December 1995 to respondent No.1, which has not been considered; this omission violated Article 22(5) because the authority receiving a representation has a duty to dispose of it at the earliest opportunity.
- Relying on the ratio in Kamlesh Kumar Ishwardas Patel v. Union of India (1995 (3) S.C. 639 / 1995 (3) Bom. C.R. 69), an authority which can revoke a detention order also has the power to entertain a representation against that order. By parity, when the State Government delegates detention-making power under section 3(3) of the NSA to the Commissioner of Police or District Magistrate, those authorities should have the power to revoke the order (under section 21 of the General Clauses Act) during the 12-day approval period under section 3(4), and therefore they can be the recipients of representations under Article 22(5).
- Invoked Navalashankar Ishwarlal Dave v. State of Gujarat (J.T. 1993 (3) S.C. 421) to support the parity argument that a delegated detaining authority may revoke orders pending approval and thus could entertain representations.
Respondent's Arguments — Mr. Rajiv Patil (Additional Public Prosecutor)
- Contended that the petitioner's contention is not legally tenable.
- Relied on decisions (including Amin Mohammed Qureshi v. Commissioner of Police (1994 Cr. L.J. 2095 / 1995 (2) Bom. C.R. (S.C.) 22) and the Apex Court decision in J.T. 1995 (3) S.C. 639) to show that under the National Security Act the power to revoke a detention order vests with the State Government and that representations under section 8(1) of the NSA should lie to the State Government, not to the subordinate detaining authority.
- Argued that distinctions drawn by higher courts between COFEPOSA/PIT NDPS and the NSA make the petitioner's reliance on those authorities inapplicable to NSA detentions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kamlesh Kumar Ishwardas Patel v. Union of India, J.T. 1995 (3) S.C. 639 (also reported 1995 (3) Bom. C.R. 69) | Holds in the context of COFEPOSA and PIT NDPS Acts that an officer specially empowered to issue a detention order had the power to revoke it (by virtue of section 21 of the General Clauses Act) and therefore implicitly had the power to consider representations against the detention order. | The Court examined this authority as relied upon by the petitioner but noted that the Apex Court itself distinguished those Acts from the National Security Act on grounds that under COFEPOSA/PIT NDPS the orders are operative immediately and do not require later approval by the State Government; hence the principle in this case does not directly apply to NSA detentions. |
| Navalashankar Ishwarlal Dave v. State of Gujarat, J.T. 1993 (3) S.C. 421 | Interpreted the Gujarat Prevention of Anti-Social Activities Act (PASA) where delegated detention powers required approval within 12 days; held that during the 12-day period the detaining authority could revoke the order by virtue of section 21 of the General Clauses Act. | The Court acknowledged that this decision could be read as supporting a parity argument, but rejected its applicability because it was not a decision under the National Security Act and because subsequent Apex Court authorities specific to NSA had spoken to the contrary. |
| Amin Mohammed Qureshi v. Commissioner of Police, 1994 Cr. L.J. 2095 (reported as 1995 (2) Bom. C.R. (S.C.) 22) | Considered whether a detaining authority needed to mention in grounds that a detenue could make representations to it; discussed distinctions between COFEPOSA-type regimes and statutes that require approval by the State Government within a specified period (such as NSA). | The Court relied on this authority to support the view that under the National Security Act representations under section 8(1) lie to the State Government and that detaining authorities subordinate to the State Government do not have the power to revoke NSA detentions. |
| Amir Shah Khan v. L. Uminghana, (1991) 4 SCC 39 | Referenced by the Apex Court in the course of discussing representation and detaining authority powers under COFEPOSA-related jurisprudence. | This authority was noted in the opinion as part of the chain of decisions considered by higher courts; the Court here referred to it only insofar as it formed part of the reasoning in cited Apex Court cases distinguishing COFEPOSA-type provisions from the National Security Act. |
Court's Reasoning and Analysis
The Court proceeded in a reasoned sequence:
- It accepted the general proposition that Article 22(5) implicitly includes (a) the detenue's right to make a representation at the earliest opportunity and (b) a corresponding obligation on the authority receiving the representation to dispose of it at the earliest opportunity. The Court treated this as settled law and did not cite authorities for this basic proposition.
- The central legal question identified by the Court was whether, under the National Security Act (NSA), a representation could lawfully be made to the Commissioner of Police (respondent No.1) and whether that officer had authority to revoke a detention order.
- The Court analysed relevant precedents distinguishing regimes. Kamlesh Kumar Ishwardas Patel was considered: in that case (in the COFEPOSA and PIT/NDPS context) the officer specially empowered to issue a detention order could revoke it because such orders became operative immediately and did not require subsequent approval by higher authority; therefore that officer could entertain representations.
- However, the Court emphasised that the Apex Court in Kamlesh expressly distinguished COFEPOSA/PIT NDPS provisions from the National Security Act. The NSA contains an approval mechanism (section 3(4)) requiring that where a subordinate authority (e.g., Commissioner of Police or District Magistrate) issues a detention order it must be approved by the State Government within twelve days, failing which the order would lapse ("a natural death"). The Apex Court had interpreted this to mean the power to revoke the order resides with the State Government, not with the subordinate detaining authority.
- The Court further relied on the Amin Mohammed Qureshi decision (and the discussion in the earlier Apex decisions) to reinforce that under NSA the representation under section 8(1) must lie to the State Government and not to the subordinate detaining authority.
- The Court considered the petitioner's attempt to distinguish those precedents on the narrow ground that the precise question of revocation by the subordinate authority within the 12-day window had not been expressly considered; the Court declined this invitation, concluding it would be presumptuous to hold that the Apex Court was oblivious to the implications of the approval scheme when deciding the cited cases.
- Applying these principles to the facts, the Court held that the Commissioner of Police had no authority under the NSA to revoke the detention order and therefore that no representation in law could lie to him. Consequently, respondent No.1 was under no obligation to consider the representation dated 5th December 1995 made by the detenue to him.
Holding and Implications
PETITION DISMISSED.
Direct consequences and immediate effects as recorded in the opinion:
- The Court concluded that under the National Security Act the power to revoke a detention order vests with the State Government and not with a subordinate detaining authority (such as the Commissioner of Police or the District Magistrate).
- Because the Commissioner of Police had no authority to revoke the NSA detention order, a representation made to him (the representation dated 5th December 1995) was not maintainable and he was under no legal obligation to consider it.
- The petition under Article 226 was dismissed and the rule previously issued was discharged. The Court also ordered expedited issuance of the certified copy of the order.
The opinion applies existing Apex Court authority to the facts and does not purport to lay down a new precedent beyond the application of those authorities to the National Security Act context.
Certified copy issuance: expedited (as recorded in the order).
Vishnu Sahai, J.:— By means of this petition preferred under Article 226 of the Constitution of India, the petitioner hereinafter referred to as the detenue, has impugned the detention order dated 28th November, 1995 passed by the respondent No. 1, the Commissioner of police for Greater Bombay, detaining him under the National Security Act. The said order along with the grounds of detention was served on the detenue on 29th November, 1995.
2. The prejudicial activities of the detenue necessitating the passing of the detention order are detailed in the grounds of the detention. Since the question raised in the petition by Mr. U.N Tripathi, learned counsel for the petitioner, is purely a legal one, we are not adverting to them. Mr. U.N Tripathi, vehemently urged that on 5th December 1995, the detenue made a representation to the respondent No. 1 and the same till date has not been considered by the said respondent. In his contention, this has rendered the detention of the detenue unsustainable in law as his fundamental right conferred by Article 22(5) of the Constitution of India has been violated.
3. There is no quarrel with the proposition that in the fundamental right vested in the detenue by Article 22(5) of the Constitution of India, of making a representation at the earliest opportunity against the detention order is also implicit a corresponding obligation on the authority to whom the representation is made to dispose off the same at the earliest opportunity. Since the proposition is well-settled, we do not propose referring to any authority.
4. The moot point is as to whether the law provides that a representation could have been made to respondent No. 1. The Commissioner of Police, for Greater Bombay. Mr. Tripathi, urged that it could be made by virtue of the ratio laid down in the decision of the Apex Court reported in 1995 (3) S.C page 639 : 1995 (3) Bom. C.R 69. (Kamlesh Kumar Ishwardas Patel v. Union of India)1. He contended that the said decision lays down that an authority which has the power to revoke a detention order has also the power to entertain a representation under Article 22(5) of the Constitution of India. In his contention, the State Government may either make a detention order itself or by virtue of the provisions contained in section 3(3) of The National Security Act, 1980, it may delegate to the Commissioner of Police or the District Magistrate powers to make a detention order, within their jurisdiction. Mr. Tripathi contends that in case the State Government delegates the power to the Commissioner of Police or the District Magistrate then, during a period of 12 days of the detention order being made by the Commissioner of Police or the District Magistrate, it has to be approved by the State Government under section 3(4) of the said Act and during this period of 12 days or earlier (in case the State Government decided the question of approval earlier), the District Magistrate or The Commissioner of Police will have the power to revoke the order by virtue of the powers vested in him by section 21 of the General Clauses Act, as laid down in 1995 (3) S.C page 639 (supra).
5. To lend force to his contention, Mr. Tripathi placed reliance on the decision of the Apex Court reported in J.T 1993 (3) S.C 421, (Navalashankar Ishwarlal Dave v. State of Gujrat)2. In the said decision, the provisions of Gujrat Prevention of Anti, Social Activities Act, (16 of 1985 PASA) came up for consideration before the Apex Court. Under the said Act, by virtue of the provisions contained in section 3(2) the State Government could delegate to the Commissioner of Police or the District Magistrate the powers to detain persons within their jurisdiction but, the detention order had to be approved by the State Government within 12 days. In paragraph 8 of the said decision, the Apex Court held that during this period of 12 days or earlier till such time it came for approvel before the State Govermant, the detaining authority (The Commissioner of Police/The District Magistrate) by virtue of the powers vested in him by section 21 of the General Causes Act, had the power to revoke or rescind the order. On a parity of reasoning, Mr. Tripathi contended that under the National Security Act, also for a period of 12 days from the date of order or earlier, if the detention order came for approval before the State Government, the Commissioner of Police/The District Magistrate would have the power to revoke the order.
6. We have given our anxious consideration to the submission canvassed by Mr. Tripathi. We have also heard Mr. Rajiv Patil, Additional Public Prosecutor for the respondents, who has strenuously urged that the said contention of Mr. Tripathi is not legally tenable. We are inclined to agree with Mr. Patil.
7. In Kamleshkumar Ishwardas Patel's case, J.T 1995 (3) S.C 639 (supra) the controversy before the Apex Court was whether a representation could be made to the officer specially empowered to issue a detention order under the COFEPOSA Act and PIT NDPS Act. In paragraph 34, the Apex Court held that under the said Acts, the very moment an order was made by an Officer specially empowered to make it, it became operative and it did not require the approval of the State Government or the Central Government. It also held that it was implicit that such an Officer had the power to revoke the detention order by virtue of the provisions contained in section 21 of the General Clauses Act, and since it had the power to revoke a detention order, it was also implicit that it had the power to consider a representation against the said detention order.
8. In the said decision, Their Lordships expressly distinguished the provisions contained in PIT NDPS Act and the COFEPOSA Act with those contained in the National Security Act, 1980. Their Lordships observed that under the National Security Act by virtue of the provisions contained insertion 3(4) of the Act unless the detention order made by an authority subordinate to the State Government was approved by the State Government within twelve days the order would the a natural death. They further held that this was the reason as to why section 8(1) of the said Act envisaged that a representation should be made against the detention order to the State Government.
9. Mr. Rajiv Patil cited before us the decision of the Apex Court reported in 1994 Criminal Law Journal page 2095 : 1995 (2) Bom. C.R (S.C) 22 (Amin Mohammed Qureshi v. Commissioner of Police)3, wherein in paragraph 3 the Apex Court considered the submission viz. that the detaining authority did not specifically mention in the grounds that the detenue had also a right to make a representation to it besides making such representations to the Cental Government and the State Government. In connection with the said submission, it also considered the decision of the Apex Court in (Amir Shad Khan v. L. Uminghana)4, (1991) 4 SCC 39. Repudiating the said submissions. Their Lordships observed that the said authority pertained to a case under COFEPOSA Act wherein unlike the National Security Act, there was no provision regarding the approval of the State Government within 12 days in respect of the detention order.
10. In our view, the decisions reported in J.T 1995 (3) S.C 639 (supra) and 1994 Cr. L.J 2095 (supra) squarely make it explicit that under the National Security Act, the power to revoke the detention order is vested with the State Government and not with the detaining authority subordinate to it i.e the Commissioner of Police or the District Magistrate.
11. Mr. Tripathi vehemently contended that in neither of the above decisions, the Apex Court has considered the question as to whether within a period of 12 days of the issuing of a detention order the Commissioner of Police or the District Magistrate would have the power to revoke the detention order. He urged that the point agitated by him is not covered by them. In his contention, within twelve days, representation can be made to the Commissioner of Police or the District Magistrate. It would be presumptuous on our part to hold that when the Apex Court decided cases reported in J.T 1995 (3) S.C pg. 639 (supra) and 1994 Cr. L.J pg. 2095 (supra) it was oblivious to the question whether the Commissioner of Police or the District Magistrate could have revoked the detention within 12 days of its being issued. Accordingly, we are not impressed with this submission of Mr. Tripathi.
12. It may be that on a parity of reasoning the decision of the Apex Court, in (Navalshankar Ishwarlal Dave v. State of Gujrat)5, J.T 1993 (3) S.C 421 supports the contention of Mr. Tripathi but, we are not inclined to accept it, because it was not rendered in a case under the National Security Act and the ones rendered by the Apex Court and reported in J.T 1995 (3) page 639 (supra) and 1994 Cr. L.J page 2095 (supra) have directly laid down that the representation under section 8(1) of the National Security Act would lie to the State Government.
13. Pursuant to the above discussion, in our judgment, the Commissioner of Police, respondent No. 1 had no authority to revoke the detention order and consequently no representation could be made to him in law. And that being so, respondent No. 1 was under no obligation to consider the representation dated 5th December, 1995 made by the detenue to him.
14. For the aforesaid reasons, we find no merit in this petition and dismiss the same. Rule issued earlier is discharged. Before parting with this order, we would failing in our fairness if we do not mention that with great skill and tenacity, both Mr. Tripathi and Mr. Rajiv Patil have argued this brief. Their assistance in no small measure has helped us in disposing off the matter.
15. Issuance of certified copy is expedited.
16. Petition dismissed.
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