Malik Sharief Uddin, J. (Rule D.B):— The petitioner has challenged the validity of the detention order dated 29th July 1988 passed against Shri Subhash Chander detenu by Shri K.L Verma, Joint Secretary to the Government of India, under section 3(1) of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (for short COFEPOSA). The order of detention was passed with a view to preventing the detenu from engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in concealing or keeping smuggled goods.

2. This followed an incident dated 18th July 1988 when on an intelligence collected by the Economic Intelligence Bureau a raid was conducted on the house of one Ramesh Arya where the wife of Ramesh Arya was to deliver smuggled gold to the petitioner on raiding the premises, one K.G of foreign marked gold was recovered from the possession of the petitioner to whom it had been delivered by Smt. Sunita wife of Ramesh Arya. The officers of the Intelligence Bureau also recovered 2450 U.S dollars and Indian currency worth Rs. 1,12,500/- from the search of the house of Ramesh Arya. Another sum of Rs. 2,00,000/- in Indian currency was recovered from the business premises of Ramesh Arya. There were no documents for the legal acquisition of the foreign marked gold which was seized and the recovered currency was also seized in the belief that these were earnings from smuggled gold.

3. The order of detention is being assailed by Mr. Chawla, learned counsel for the detenu, on a number of grounds such as that some of the documents relied upon by the detaining authority have not been supplied to the detenu and even if deemed to have been supplied their misdescription in the list of documents given to the detenu would show that there has been non-application of mind to the material on which the detention is based. Secondly it is urged that there has been misreading of relied upon documents, thus showing non-application of mind with the result that non-existent prejudicial material has been taken into consideration in arriving at subjective satisfaction. Thirdly, the validity of the detention is challenged on the ground that the representation of the detenu dated 25th of August 1988 has not been considered by the detaining authority, that is, the Central Government upto date.

4. Let us, therefore, examine the first contention. It is 45 of the list of documents supplied to the detenu were not supplied, even though they are referred to and relied upon in the grounds of detention. Para 8 of the grounds of detention reads as under:

“8. While passing the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, I have relied upon the documents mentioned in the enclosed list. Copies of these documents are also enclosed herewith.”

5. In the list enclosed the description of the document mentioned against serial No. 30 is given as an application of Subhash Chander dated 21st July 1988 for not attending the court on 21st July 1988 and against serial No. 45 the document is described as the argument dated 22nd July 1988 on bail application of Yogesh Chander.

6. Mr. Chawla has urged before us that instead of these documents what was actually supplied to the detenu was (i) an application of the Jail Superintendent to the effect that Subhash Chander could not be produced in the court on 21st July 1988, and (ii) a bail order and not arguments as stated in the list. It is submitted that pursuant to his representation dated 22nd of August 1988, the order dated 9th of September 1988 rejecting the same does not even state that the documents have been supplied to the detenu.

7. After carefully considering the contention, we do not agree with the submission. The record shows that every document mentioned in the list has been supplied though these two documents have not been happily described in the list supplied to the detenue. It is submitted by Mr. Chawla that even if it is assumed that documents have been misdescribed in the list, it will clearly show that these were mechanically dealt with and there is total non-application of mind to the material by the detaining authority. According to him, this should be particularly so in the absence of a plea of error by the opposite party. It was further urged that it is a case of continuous non-application of mind as even while rejecting his representation, the detenu was not told that the documents mentioned at serial No. 30 and Sl. No. 45 have been correctly supplied.

8. We may mention that it is noboyd's case that the documents mentioned at serial Nos. 30 and 45 were different than those supplied to the detenu. The detenu on 21st of July 1988 was in judicial custody and had to be produced before the court by the Jail Superintendent. If for some reason the Jail Superintendent was unable to do so, it would always be the Jail Superintendent and not the detenu who would send an application to the court and that is what the document at serial No. 30 is. The bail order described as arguments at serial No. 45 does not make mention of any written arguments having been advanced to the court. How then could there exist any written arguments? We are, therefore, of the view that all the documents referred to and relied upon have been supplied to the detenu. The fact that these are not happily described is neither material nor serious. In our view, the contention fails and simply on this basis we find no justification for the plea that it is a case of non-application of mind.

9. Next it is contended that there has been a misreading of relied upon documents, thus showing total non-application of mind, resulting in consideration of non-existent prejudicial material in arriving at subjective satisfaction. To elaborate the contention, it is submitted in ground No. IX of the writ petition that in para 1 of the grounds of detention the detenu is told as under:

“Since on demand, you could not produce any valid document regarding illicit importation/acquisition/possession of contraband gold the same was seized under section 110 of the Customs Act.”

10. Mr. Chawla urges that there is no material on the basis of which it could be said that any demand was made from the detenu to produce any document as stated in the grounds. He contends that the only document is the Panchnama which shows that the demand for documents was made only from Smt. Sunita.

11. Factually Mr. Chawla seems to be correct, but we fail to understand as to how he can derive any benefit from this proposition. While considering such propositions, we cannot give a go-by to the common sense. This particular reference in the grounds will have to be appreciated on the facts and background of this case.

12. The facts as gathered on intelligence by the authorities are that one Ramesh Arya, resident of E-146, Lajpat Nagar-I, New Delhi was responsible for movement of contraband gold from Sinagpore to India and that the detenu was looking after the movement and disposal of the smuggled gold in Delhi, after it was smuggled into India. On a specific intelligence that on 18th of July 1988, at 13.45 hours the detenu will be proceeding to the said house of Ramesh Arya for receiving contraband gold from the wife of Ramesh Arya, the officers searched the said house resulting in recovery of US Dollors 2450 and Indian currency worth Rs. 1,12,500/- and the personal search of the detenu resulted in one K.G of foreign marked gold.

13. The case is that gold was given to be detenu by Smt. Sunita wife of Ramesh Arya. It was natural for the authorities to ask from her if she had any documents about the lawful possession of this gold as it could only be seized in the absence of any document regarding the lawful possession. The detenu at that time was also present. It is in this context that this particular fact is imputed to the detenu. It was known to the authorities that the detenu will be receiving gold from Smt. Sunita and that is what he has also admitted before the concerned authorities. It is not the case of the detenu that he had shy documentary proof of legal possession of contraband gold. It cannot, therefore, be said that the detaining authority has relied on non-existent material or that there has been non-application of mind. The fact is that the detenu did receive foreign marked gold from Smt. Sunita regarding the legal possession of which there were no documents with them. The inference on the facts of this case that the detenu failed to produce any proof of legal possession, in our view, is not misplaced.

14. Mr. Chawla urges that the incriminating facts are the recovery and failure to account for the same and one does not know how much of it has gone into formation of the subjective satisfaction. In our view, the infirmity pointed out is neither material nor serious and would not vitiate the detention. Assuming, though not granting, it to be a valid argument there still is the fact of recovery of gold from the detenu which by itself is a valid and relevant material for the formation of subjective satisfaction. See Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and others, A.I.R 1986 Supreme Court page 687.(1)

15. The last and the final contention of the learned counsel for the detenu is that he made a representation to the detaining authority on 25th of August 1988 as appears at page 28 of the writ petition and on 9th of September 1988 this representation was considered and rejected by the officer empowered under section 3(1) of the cofeposa. It is submitted (i) that the representation has been rejected by the same officer specially empowered under section 3(1) of the COFEPOSA which is bad in law as it ought to have been dealt with by the Central Government which in law is the detaining authority, (ii) that the power conferred under section 11 of the COFEPOSA is not correlatable to the obligation of the appropriate government to consider the representation made under Article 22(5) of the Constitution, (iii) even on facts of this case while considering the representation Shri K.L Verma has acted as an officer specially empowered under section 3(1) of the COFEPOSA and not as a Central Government empowered under the Transaction of Business Rules. Fourth, even after he (Joint Secretary) has considered the representation in the capacity of the Central Government the same individual could not have acted as such while considering the representation of the detenu.

16. To elaborate the contention, it is submitted that conferment of power by the Transaction of Business Rules under section 11 of the COFEPOSA upon the specially empowered officer under section 3(1) does not confer upon him the jurisdiction to consider the representation. Reliance is placed upon Abdul Aziz alias Ajjo v. Delhi Administration and others, 1981 Supreme Court Case (Crl.) page 742. (7) wherein the Supreme Court has made the following observations:

“The right of a detenu to have his representation considered ‘at the earliest opportunity’ and the obligation of the detaining authority to consider the representation ‘at the earliest opportunity’ are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, or the National Security Act or, for the matter any other Parliamentary or State law providing for preventive detention. They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law.”

17. Mr. Chawla submits that section 11 of the COFEPOSA confers a supervisory power so as to enable the appropriate government to revoke an order of detention even on its own and the object is that the appropriate government is not rendered helpless in certain situations. He contends that consideration of a representation cannot be under section 11 which obligation necessarily has to be discharged under Article 22(5) of the Constitution. That under Article 22(5) of the Constitution, the right of the detenu to have his representation considered expeditiously, creates a corresponding obligation on the detaining authority to consider the same with utmost promptitude. According to him there is nothing in section 11 of the COFEPOASA which confers a jurisdiction to consider the representation and it is, in fact, the Constitutional duty to be performed by the detaining authority the appropriate Govt. Mr. Chawla further submits that even if an officer is empowered under section 11 of the COFEPOSA by virtue of the Transaction of Business Rules it does not entitle him to consider the representation which is a Constitutional duty to be discharged only by the appropriate Government.

18. Page 5 of the reply to the rejoinder shows that the representation of the detenu was dealt with by the Joint Secretary. The order rejecting the representation shows that it was done by the detaining authority. To resolve the controversy we sent for records and found that it was, in fact, considered and rejected by Shri K.L Verma, Joint Secretary, specially empowered under section 3(1) of the cofeposa. The state of law as at present makes it obligatory upon him to place the representation before the detaining authority for consideration which duty he has failed to discharge. In this regard Mr. Chawla has placed reliance on The State of Maharashtra and another v. Smt. Sushila Mafatlal Shah and others, Judgments Today 1988 (3) S.C p. 646.(3)

19. In the case supra the question that came up for consideration before the Supreme Court was whether the officer specially empowered under section 3(1) of the COFEPOSA was obliged to inform the detenu that he has a right to make a representation to himself apart from the appropriate government. The Supreme Court answered it in negative holding that the detaining authority is not the officer passing the order but the appropriate government. The Supreme Court formulated three questions in dealing with the case supra and answered them as under:

“Q. 1. Does an order passed by an officer of the State Government or the Central Government, specially empowered for the purposes of Section 3(1) by the respective Government, make him the detaining authority and not the State Government or the Central Government as the case may be, and obligate him to inform the detenu that he has a threefold opportunity to make his representation i.e the first to himself and the other two to the State Government?”

Ans.: Even if the order of detention is made by a specially empowered officer of the Central Government or the State Government, as the case may be, the said order will give rise to obligations to be fulfilled by the Government to the same degree and extent to which it will stand obligated if the detention order had been made by the Government itself. If that be so, then it is the concerned Government that would constitute the detaining authority under the Act and not the officer concerned who made the order of detention and it is to that Government the detenu should be afforded opportunity to make representation against the detention order at the earliest opportunity, as envisaged under Article 22(5) and not to the officer making the order of detention in order to provide the detenu an opportunity to make a further representation to the State Government and thereafter to the Central Government if the need arises for doing so. Though by reason of Section 3(1) a specially empowered officer is entitled to pass an order of detention, his constitutional obligation is only to communicate expeditiously to the detenu the grounds of detention and also afford him opportunity to make representation to the appropriate Governments against his detention. The only further duty to be performed thereafter is to place the representation made by thereafter is to place the representation made by the detenu before the concerned officer or the Minister empowered under the Rules of Business of the Government to deal with such representation if the detenu addresses his representation to the officer himself.

(emphasis supplied)

Q. 2. Whether for the purposes of the Act, there is any difference between an order of detention passed by an officer of the State Government or the Central Government solely in exercise of the powers conferred on him under Section 3 by the respective Government and an order of detention passed by the State Government or the Central Government as the case may be through an officer who in addition to conferment of powers under Section 3 is also empowered under the Standing Rules framed under the Rules of Business of the Government, to act on behalf of the Government?”

Ans.: It is also relevant to clarify at this juncture the position as regards an order of detention passed by an officer specially empowered under section 3(1) vis-a-vis an order of detention passed by another officer who besides being empowered under section 3(1) is also conferred authority under the Rules of Business of the Government to act on behalf of the Government. This difference in the conferment of powers upon the officers falling under the two categories cannot have any impact on the nature of the detention orders respectively passed by them because the common factor entitling the officers falling in the two classes is their empowerment under Section 3(1) of the Act. Without such empowerment an officer, even if he be empowered to act on behalf of the Government under the Rules of Business, cannot pass an order of detention against anyone. If this position is realised, then it follows that there is no scope for contending that a detention order made by an officer empowered to act under the Act but not having additional empowerment under the Rules of Business of the Government will not have the effect of making the Government the detaining authority and instead would make the officer alone the detaining authority and by reason of it stand obligated to afford opportunity to the detenu to make a representation to himself before making his representation to the State Government and the Central Government. It is also relevant to note that the Act confers powers of revocation only upon the State Government and the Central Government and no provision is made for an officer making an order of detention to exercise powers of revocation. When such is the case, any insistence upon the officer making the detention order considering the representation of the detenu himself will be nothing but a futile and meaningless exercise ………… We have already pointed out that unlike in other preventive detention acts, the COFEPOSA Act does not provide for approval by the Central or State Government of an order of detention passed by one of its duly empowered officers and, consequently an order of detention passed by an officer acquires ‘deemed approval’ by the Government from the time of its issue and by reason of it, the Government becomes the detaining authority and thereby constitutionally obligated to consider the representation made by the detenu with utmost expedition.

20. As per the third question as to whether a detenu acquires a constitutional right to have his representation first considered by the very officer issuing the detention order before making a representation to the State Government and the Central Government has been negatived by the Supreme Court.

21. In our view, the observations made in the case supra, clearly lay down the law on the subject under our consideration. It is obvious that even if a representation is addressed to the very same officer who made the order he has to place it before the detaining authority for consideration.

22. It was urged before us by the learned counsel for the respondents that even if it be the state of law where is the prohibition for the officer specially empowered to provide the detenu an opportunity to make a representation to himself as well and to consider the same. It is so urged because in this case opportunity was provided to the detenu to make a representation to the officer as also to the Central Government through the Secretary. In our view, this argument is based on the assumption that the specially empowered officer has the jurisdiction to consider the representation. In Smt. Sushila Mafatlal Shah case supra, the Supreme Court has clearly held that all that the specially empowered officer has to do is to place the representation before the concerned officer of Minister concerned even if it is addressed to him.

23. Next it is urged by the learned counsel for the respondents that the officer specially empowered in this case was additionally also empowered to act as the Central Government under the instrument F. No. 685/14/84-Cus VIII Government of India, Ministry of Finance to the Department of Revenue dated 14-9-1984 under which the officer has also been empowered to act as the Central Government under section 11 of the COFEPOSA and that this empowerment is under Rule 3 of the Government of India (Transaction of Business) Rules. We may at once point out that this argument is unsustainable and the answer to it is again provided by the case of Sushila Mafatlal (supra) wherein it is clearly stated that this would make no difference and would not make the officer the detaining authority. Moreover, there are two obstacles which, in our view stand in the way of this contention. In the first place section 11 of the Act confers upon the Government the power to revoke and the power to make a fresh detention order on the same ground. It does not cast any duty upon the appropriate government. The duty to consider the representation by the detaining authority expeditiously is cast upon it by Article 22(5) of the Constitution. It cannot, therefore, be urged that by virtue of delegation of powers under section 11 of the Act, this duty to consider the representation by the detaining authority also stands delegated. This cannot be so even by implication.

24. The next obstacle that stands in the way of this contention is that the same officer who passed the detention order could not be constituted as a supervisory authority under section 11 of the cofeposa. The expression ‘supervisory’ as normally understood would be an authority superior to the one whose action is subject to supervision. In Sabir Ahmed v. Union Of India. (1980) 3 SCC 295(4) it has been held:

“The power under section 11 of the COFEPOSA is a supervisory. This power may be exercised on information received by the Central Government from its own sources including the report sent by the State Government under section 3(2) which does not require that the representation made by the detenu, if any, should also be sent along with the report. The power under section 11 is also exercisable on receipt of a petition or representation from the detenu for revocation of the detention. Such a representation may simply repeat the same allegations, statements of facts and arguments which were continued in the representation made to the detaining authority.”

25. This being the state of law, the same officer who made the detention order could not be constituted into a supervisory authority over himself. This procedure would be hit by Article 21 of the Constitution inasmuch as such a course for consideration of detenu's representation would neither be just and fair nor reasonable. The very nature of the power mandates that it must be exercised by a person higher in rank than the one who made the order.

26. In Vijaya Kumar Gujral… v. Union Of India & Ors.…, 1988 Criminal Law Journal p. 1198,(5) a Division Bench of this court has also held that the representation of the detenu cannot be considered by the same officer who made the order even though he may apart from empowerment under section 3 be also empowered to act as the Central Government under section 11 of the COFEPOSA under the Business Rules of the Government. This, in fact, is the ratio arrived at in the aforesaid case, though for reasons different than those we are relying upon. In our view, due compliance with the mandate of Article 22(5) warrants that even if the representation is considered by an officer functioning as Central Government by virtue of delegation of powers under the Business Rules he must be higher in rank and in any case other than the one who made the order of detention as an officer specially empowered under section 3(1) of the cofeposa.

27. In conclusion, we hold that the representation of the detenu has not been considered upto date by the detaining authority and on this ground the detention stands vitiated. We allow the petition and make the rule absolute. The continued detention of the detenu is quashed. He shall be released forthwith unless otherwise required.

M.B.L Petition allowed.