SUNIL FULCHAND SHAH v. UNION OF INDIA — 1988 DIGILAW 82 (GUJ)

J. P. DESAI, J. ( 1 ) MR. M. G. Karmali who appears for the petitioner drew out attention to ground (vi) of challenge at page 12 of the petition and submitted that no affidavit was filed on behalf of the Central Governrent in this regard. He submitted that that was nothing on record to show as to what action was taken by the Central Government after the report was submitted by the State Government as required by Sec. 3 (2) of the COFEPOSA and therefore the continued detention of the detenu is vitiated. He submitted that the State Government was bound to disclose as to whether along with the report the State Government had forwarded copy of the order of detention the grounds and documents an the basis of which the impugned order of detention was issued against the detenu and that bulk of the documents is in Gujarati language while the officer dealing with the matter does not know Gujarati and therefore English translation is required to be sent and there is nothing on record to show as to whether the English translation of the documents was sent or not. The State Government has filed affidavit at page 77 to 81. Para. 7 of the said affidavit deals with this aspect. The said affidavit shows that on the the same day on which the order of detention was issued i. e. 20-10-1984 the report was submitted to the Central Government. It shows that the copy of the order of detention and the grounds of detention which were in English were forwarded to the Central Government along with the Gujarati translation of the same and the documents which were in Gujarati were also forwarded along with the report. The affidavit shows that translation was not submitted but the substratum of the said Gujarati documents was duly incorporated in the grounds of detention in English and that way the State Government has complied with the provisions of Sec. 3 of the COFEPOSA. There is no affidavit on behalf of the Central Government as to when the report was received and how it was dealt with. In view of this the file from the Central Government was called for and we have perused the said file. The said file shows that the matter was dealt with by one Mr. There is no affidavit on behalf of the Central Government as to when the report was received and how it was dealt with. In view of this the file from the Central Government was called for and we have perused the said file. The said file shows that the matter was dealt with by one Mr. Dwivedi Competent Officer of the Central Government authorised to deal with such matters. It appears that the order of detention in English the grounds of detention in English and the documents which were in Gujarati were forwarded to the Central Government and Mr. Dwivedi after receiving the report under Sec. 3 (2) perused the order of detention and the grounds of detention and was of the opinion that no ground was made out for receiving the order of detention. He also at the same time observed that if and when a representation was received from the detenu that representation will be considered. Mr. Karmali submitted that the documents were in Gujarati and the documents were admittedly not got translated in English either by the State Government or by the Central Government and therefore while considering the report under Sec. 3 (2) Mr. Dwivedi could not have looked into the documents or considered them which were in Gujarati because Mr. Dwivedi does not understand Gujarati. The learned Counsel Mr. S. D. Shah appearing for the Union of India fairly conceded that Mr. Dwivedi does not know Gujarati. In fact an affidavit of one Mr. Bakshi Collector of Customs and Central Excise Rajkot has been filed which shows that he was serving at the relevant time as Deputy Secretary Gold Control Department of Revenue New Delhi and he used to explain to Mr. Dwivedi in English the contents of the documents which were in Gujarati language. This makes it clear that Mr. Dwivedi at that time did not know Gujarati. It is pertinent to note that Mr. Bakshi has made a general statement in the affidavit that he used to explain the documents which were in Gujarati to Mr. Dwivedi in English. lie does not say that he explained these particular documents of this case to Mr. Dwivedi. But apart from this it will be difficult for anyone to remember the translation of so many documents which were in Gujarati. If Mr. Dwivedi in English. lie does not say that he explained these particular documents of this case to Mr. Dwivedi. But apart from this it will be difficult for anyone to remember the translation of so many documents which were in Gujarati. If Mr. Dwivedi was expected or bound to consider the documents which were sent along with the order of detention and the grounds of detention then certainly one would be inclined to say that the continued detention of the detenu will be vitiated because he could not have taken proper decision on the report without looking into the English translation of the Gujarati documents which were many in number. He could not have remembered the translation of each and every document assuming that Mr. Bakshi might have explained the contents of the documents to Mr. Dwivedi in English. But the question is whether Mr. Dwivedi was expected to go through the documents which wore forwarded to him along with the grounds of detention and the order of detention while considering the report received by the Central Government under Sec. 3 (2) of the Act. ( 2 ) THE submission of Mr. Karmali in this regard was two-fold. The first submission of Mr. Karmali was that the report includes not only the ground of detention but also the material on which the order of detention is passed and therefore the State Government was expected to forward the order of detention the grounds of detention as well as the documents on which the detention order was based. Mr. Karmali submitted that in that case English translation of the documents was required to submitted to the Central Government while submitting the report because if the officer dealing with the matter at that end did not understand Gujarati he will not be in a position to go through the documents ( 3 ) THE second submission is that in any case Mr. Dwivedi was bound to get the documents translated in English before taking decision one way or the other on receiving the report under Sec. 3 (2) and he having not done so the continued detention of the detenu is vitiated. As against this the learned Assistant Government Pleader Mr. J. U. Mehta for the State and Mr. Dwivedi was bound to get the documents translated in English before taking decision one way or the other on receiving the report under Sec. 3 (2) and he having not done so the continued detention of the detenu is vitiated. As against this the learned Assistant Government Pleader Mr. J. U. Mehta for the State and Mr. S. D. Shah for the Union of India submitted that there was sufficient compliance of Sec. 3 (2) of the COFEPOSA in the present case because not only the order of detention and the grounds of detention but even the documents were forwarded to the Central Government while forwarding the report. They submitted that the English translation of the documents was substantially incorporated in the grounds of detention and therefore Mr. Dwivedi who did not know Gujarati was in a position to go through the grounds of detention and decide for himself whether a case was made out for revocation or not. They submitted that looking to the provisions of the Act in question only a report was required to be submitted by the State Government to the Central Government and that the documents were not required to be forwarded at the time of submitting the report. They submitted that even the grounds of detention were not required to be separately submitted to the Central Government if the grounds were incorporated in the report to be submitted under Sec. 3 (2) They drew our attention to sub-sec. (2) of sec. 3 of the COFEPOSA which reads as follows:"when any order of detention is made by a State Government or by an officer empowered by a State Government the State Government shall within ten days forward to the Central Government a report in respect of the order. "they submitted that what is required to be submitted to the Central Government is only a report and nothing more. They fairly conceded that a mere intimation about the detention cannot be said to be a report as contemplated by sub-sec. (2) of Sec. 3 of the COFEPOSA. They submitted that if a comprehensive report showing the grounds of detention and mentioning the substance of the documents upon which the detention order is passed is submitted to the Central Government that will be sufficient compliance with sub-sec. (2) of Sec. 3 of the COFEPOSA. They submitted that if a comprehensive report showing the grounds of detention and mentioning the substance of the documents upon which the detention order is passed is submitted to the Central Government that will be sufficient compliance with sub-sec. (2) of Sec. 3 of the COFEPOSA and that the grounds of detention or the documents upon which the order is passed are not required to be submitted to the Central Government. We find much substance in this submission of the learned Counsel for the respondents because it is pertinent to note that while sub-sec. (2) of Sec. 3 of the COFEPOSA only makes a mention about the report to be submitted to the Central Government the corresponding provisions of the other Acts specifically provide that while forwarding the report the grounds of detention and the documents on which the detention order is passed have to be submitted to the higher authorities. Sub-sec. (3) of Sec. 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act 1980 says that when an order is made by either the District Magistrate or the Commissioner of Police detaining any person he has to report forthwith the said fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter. Similar provision is found in sub-sec. (3) of Sec. 3 of the Preventive Detention Act 1950 which also says that when an order is made by an officer of the State Government he has to forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter Similar provision will be found in sub-sec. (3) of Sec. 3 of the Maintenance of Internal Security Act 1971 In the National Security Act 1980 also similar provision will be found in sub-sec. (4) of Sec. 3 of the said Act. It thus appears that while in other Acts providing for detention a provision is made that together with the report the grounds of detention and other material have to be forwarded there is a clear departure so far as the COFEPOSA is concerned. (4) of Sec. 3 of the said Act. It thus appears that while in other Acts providing for detention a provision is made that together with the report the grounds of detention and other material have to be forwarded there is a clear departure so far as the COFEPOSA is concerned. In view of this we are in agreement with the learned Advocates for the respondents that so far as the COFEPOSA is concerned all that is required to be done by the State Government is to forward a report to the Central Government and nothing more. The report of course should be comprehensive and not a mere intimation and the learned Counsel for the respondents fairly concede that refer intimation cannot be said to be a report. In the present case the order of detention and the grounds of detention read together make out a comprehensive report because the grounds of detention contain substantial incorporation of the statements therein. The documents were in Gujarati and the officer who had to deal with was not in a position to read these documents and therefore we have to ignore the fact that the documents were forwarded while considering whether there was compliance with sub-sec. (2) of Sec. 3 of the COFEPOSA. We are of the opinion that so far as sub-sec. (2) of Sec. 3 of the COFEPOSA is concerned either the order of detention and the grounds of detention are to be forwarded along with the report or a comprehensive report is to be submitted containing the substance of the order of detention the grounds of detention and the substance of the material on which the order of detention is passed. That will be sufficient compliance with sub-sec. (2) of Sec. 3 of the COFEPOSA. In the present case that has been done and therefore it cannot be said that there was violation of sub-sec. (2) of Sec. 3 of the COFEPOSA in the present case. ( 4 ) AS discussed earlier Sec. 3 (2) of the COFEPOSA provides that when an order of detention is made by the State Government or by an officer empowered by the State Government the State Government has to forward to the Central Government a report in respect of the order within ten days. There is no provision for approval of the said order of detention by the Central Government. There is no provision for approval of the said order of detention by the Central Government. So far as other statutes providing for detention are concerned an officer of the State Government who passes an order of detention has to report the fact of detention to the State Government together with the grounds on which the order has been made and such other particulars which have a bearing on the matter and such order is not to remain in force beyond a particular period unless in the meantime it has been approved by the State Government. This shows that when the fact of detention is reported to the State Government about the detention under other statutes the State Government has again to apply its mind and decide whether the order should be approved or not. The State Government has thus to arrive at a subjective satisfaction as if the State Government is itself a detaining authority. It appears that because no approval of the central Government is required under the COFEPOSA while approval of the State Government is required so far as the other statutes are concerned the above distinction is made between sub-sec. (2)- of Sec. 3 of the COFEPOSA and the corresponding provisions in the other Acts. So far as the COFEPOSA is concerned all that the Central Government is required to do in the light of the provisions of Sec. 3 read with Sec. 11 of the COFEPOSA is to apply its mind for the purpose of taking a decision whether the order is to be revoked or modified. The Central Government of course has to apply its mind to the report which of course should be a comprehensive report as discussed earlier for taking a decision whether the order should be revoked or modified while so far as the other statutes are concerned the State Government to which the fact of detention is reported has to apply its mind to the grounds of detention and also the material which have a bearing upon the matter for deciding whether the order should be approved or not. The State Government has thus to apply its mind as if it is a detaining authority because if the State Government does not approve the order the order will not remain in force. The State Government has thus to apply its mind as if it is a detaining authority because if the State Government does not approve the order the order will not remain in force. The State Government is thus similarly situated as the detaining authority itself so far as the other statutes are concerned while it is not so no far as the COFEPOSA is concerned. ( 5 ) OUR attention was drawn by the learned Counsel appearing for the respondents to a decision reported in Bikash Narayan Sarma v. State of Assam and Ors. 1984 Cri. LJ 81 of the Gauhati High Court wherein a view has been taken that the order cannot be set aside on the ground that the Central Government had not applied its mind to the report. The Gauhati High Court has after taking into consideration the decisions of the Supreme Court in Sabir Ahmed v. Union of India 1980 (3) SCC 295 and Mohd. Dhana Ali v. State of West Bengal AIR 1976 SC 734 taken the above view. We have carefully gone through the above judgment of the Gauhati High Court and with respect to the learned Judges who decided that case we regret our inability to agree with the view propounded in that decision so far as this aspect is concerned. It appears that the Gauhati High Court has placed reliance upon the case of Mohd. Dhana Ali (supra) in reaching this conclusion. We have carefully gone through the decision of Mohd. Dhana Ali (supra) which appears to have been decided on its own facts as observed by the Supreme Court in Sabir Ahmeds case (supra ). It appears that in the case of Mohd. Dhana Ali (supra) the Central Government was not a party to the proceedings. The Supreme Court took the view that as the Central Government was not a party to the petition it was not possible to say that the Central Government had not applied its mind to the report. It is difficult to agree with the view taken by the Gauhati High Court that Mohd. Dhana Alis case lays down that the Central Government has not even to apply its mind to the report. It cannot be said that the report which is submitted to the Central Government is to be placed in a cold storage. The relevant discussion will be found at Para. Dhana Alis case lays down that the Central Government has not even to apply its mind to the report. It cannot be said that the report which is submitted to the Central Government is to be placed in a cold storage. The relevant discussion will be found at Para. 5 in the judgment of the Supreme Court delivered in Mohd. Dhana Alis case (supra ). The Supreme Court has observed at Para. 5 that Sec. 14 of the Maintenance of Internal Security Act only confers a discretion on the Central Government to revoke or modify an order of detention made by the State Government but does not confer any right or privilege on the detenu. It is further observed by the Supreme Court that the mere fact that the Central Government does not choose to revoke or modify the order of detention wit bout anything more cannot necessarily lead to the irresistible inference that the Central Government failed to apply its mind. The Supreme Court has further observed that the State Government had done whatever it was required to do when it sent a report to the Central Government. The Supreme Court has then further observed as follows:" In these circumstances it cannot be said by any stretch of imagination that as Central Government did not apply its mind under Sec. 14 of the Act this would invalidate the order of detention. "there is no material before us to show that the Central Government did not apply its mind at all under Sec. 14 of the Act. The argument on this score is therefore rejected. "these observations made by the Supreme Court do not show that the Central Government has not to apply its mind to the report to be submitted to it by the State Government. All that this decision says is that merely because the Central Government does not revoke or modify the order the order cannot be vitiated. In view of this we are not in a position to agree with the view pressed by the Gauhati High Court. ( 6 ) MR. M. G. Karmali for the petitioner relied upon the decision of the Supreme Court in the case of Sabir Ahmed v. Union of India (supra ). In view of this we are not in a position to agree with the view pressed by the Gauhati High Court. ( 6 ) MR. M. G. Karmali for the petitioner relied upon the decision of the Supreme Court in the case of Sabir Ahmed v. Union of India (supra ). The Supreme Court in that case was considering the question whether the detention will be vitiated if the Central Government does not apply its mind to the representation made by a detenu. The Supreme Court was considering Sec. 11 of the COFEPOSA in that case. Section 11 of the COFEPOSA empowers the Central Government to revoke or modify an order of detention. We would like to reproduce Para. 12 of the aforesaid judgment of the Supreme Court because Mr. Karmali has relied upon the same:"12. It is true that Sec. 3 (2) of COFEPOSA mandates the State Government to send a report to the Central Government. But it does not mean that the representation made by the detenu if any should also be sent along with that report. There appears to be no substance in the contention that the Central Government is under no duty to consider a representation made to it by the detenu for revoking his detention. if it simply repeats the same allegations statement of facts and arguments which were contained in the representation made to the detaining authority. It is common experience that an argument or submission based on certain facts which does not appeal to a tribunal or authority of first instance may find acceptance with a higher tribunal or supervisory authority. Whether or not the detenu has under Sec. 11 a legal right to make a representation to the Central Government is not the real question. The nub of the matter it whether the power conferred by Sec. 11 on the Central Government carries with is a duty to consider any representation made by the detenu expeditiously. The power under Sec. 11 may either be exercised on information received by the Central Government from its own sources including that supplied under Sec. 3 by the State Government or from the detenu in the form of a petition or representation. Whether or not the Central Government on such petition representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. Whether or not the Central Government on such petition representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power under Sec. 11 is a supervisory power. It is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government. If this statutory safeguard is to retain its meaning and efficacy the Central Government must discharge its supervisory responsibility with constant vigilance and watchful care. The report received under Sec. 3 or any communication or petition received from the detenu must be considered with reasonable expedition. What is reasonable expedition is a question depending on the circumstances of the particular case. No hard and fast Rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence callous inaction avoidable red-tapism and unduly protracted procrastination. "the discussion made at Para. 12 shows that the Central Government can exercise the powers under Sec. 11 either on information received by the Central Government from its own sources including that supplied under Sec. 3 by the State Government or from the detenu in the form of a petition or representation. The discretion as observed by the Supreme Court is coupled with a duty and that duty is inherent in the very nature of the jurisdiction. The supervisory power conferred by Sec. 11 on the Central Government is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government and if this statutory safeguard is to retain its meaning and efficacy the Central Government must discharge its supervisory responsibility with constant vigilance and watchful care. The report received under Sec. 3 or any communication or petition received from the detenu must be considered with reasonable expedition as observed by the Supreme Court. These observations do not in any way lay down that the same standard has to be applied while applying its mind to the report under Sec. 3 (2) by the Central Government as has to be applied while considering a representation. These observations do not in any way lay down that the same standard has to be applied while applying its mind to the report under Sec. 3 (2) by the Central Government as has to be applied while considering a representation. If a report is submitted to the Central Government and the Central Government takes a decision on the report in absence of any representation or petition by the detenu that the Central Government does not think it fit to revoke or modify the order then that decision does not become final because the Central Government has again to apply its mind to the representation or petition if any received from the detenu and then take a decision whether the order is required to be revoked or modified. If the Central Government takes a decision on a representation or petition from the detenu that no case is made out for revoking or modifying the order of detention then that order will be small so far as the Central Government is concerned and therefore while considering a representation or petition the Central Government is bound to apply its mind not only to the report submitted to it by the State Government but also to the material upon which the order of detention is passed. The Central Government in that case shall have to apply its mind as if it itself is for detaining authority but while considering only the report submitted to it under Sec. 3 (2) all that is required to be done by the Central Government is to look into the report which of course should be a comprehensive report as discussed by us a little earlier and then take a decision whether the order is required to be revoked or modified. We may again mention here even at the cost of repetition that the observations made by the Supreme Court in the case of Sabir Ahmed (supra) upon which Mr. Karmali relies cannot be read as laying down that even while considering the report of the State Government the Central Government has even to look into the material on which the order is passed. Karmali relies cannot be read as laying down that even while considering the report of the State Government the Central Government has even to look into the material on which the order is passed. The Supreme Court was not considering as to what will be the effect if the material on which the order is passed is not considered by the Central Government while exercising its powers under Sec. 11 of the Act on the report submitted to it by a State Government. It cannot be said from the observations made by the Supreme Court in the above case that the continued detention of the detenu will be vitiated if the Central Government applies its mind only to the report submitted to it under Sec. 3 (2) of the Act without anything more. All that the Supreme Court says is that the Central Government has to apply its mind to the report submitted to it for considering whether any interference is called for or not. We are not inclined to agree with the submission made by Mr. Karmali that even though sub-sec. (2) of Sec. 3 of the COFEPOSA does not provide that the State Government has to forward to the Central Government the grounds of detention and the material on which the order is passed the Central Government is bound to consider the material also while considering the report. If the Central Government on receiving the report sits silent over the same and does not apply its mind to the same then the continued detention will certainly be vitiated in view of the clear pronouncement of the Supreme Court in the case of Sabir Ahmed (supra) and other two decisions viz. Tara Chand case and Shyam Ambalal Siroya case referred to by the Supreme Court in Para. 15 of the judgment. ( 7 ) THE discussion made above will go to show that the continued detention of the detenu based on the order of detention dated 20-10-1984 passed by the officer on Special Duty and Ex-officio Joint Secretary to the Govt. of Gujarat Home Department (Special) is not vitiated because the decision not to revoke or modify the order of detention was taken by the Central Government only on going through the detention report and the grounds of detention. We may mention here even at the cost of repetition that the officer of the Central Government Mr. of Gujarat Home Department (Special) is not vitiated because the decision not to revoke or modify the order of detention was taken by the Central Government only on going through the detention report and the grounds of detention. We may mention here even at the cost of repetition that the officer of the Central Government Mr. K. K. Dwivedi who has taken the decision not to revoke or modify the order has specifically observed in the endorsement made by him that he had carefully gone through the detention report and the grounds of detention. It is nowhere stated that he had also carefully gone through the other material on record through he has only stated that having regard to the material on record and the provisions of the Act there was no reason to revoke or modify the order. He nowhere states that he had also gone through the material which was in Gujarati. He has even mentioned that as and when a representation is received the matter will be reconsidered in the light of the pleas that the detenu may make. The Competent Officer Mr. Dwivedi was thus conscious of the position that if a representation was received it was required to be considered. ( 8 ) THE detenu was required to undergo detention for a period of one year from the date of his arrest in pursuance of the order of detention dated 20-10-1984 but in the present case a declaration under Sec. 9 (1) of the COFEPOSA has been issued and if that Notification is not vitiated then the detenu will be required to undergo detention for a period of two years. The learned Advocate Mr. Karmali for the petitioner contended and in our opinion. very rightly that the Notification under Sec. 9 (1) of the COFEPOSA is vitiated because English translation of the Gujarati documents was not placed before the Competent Officer Mr. M. L. Wadhwan who issued the declaration Annexure D dated 22-7-1986 who did not know Gujarati. The learned Counsel Mr. S. D. Shah appearing for the Union of India very fairly conceded that it was a fact that Mr. M. L. Wadhwan did not know Gujarati. In view of this English translation of the documents was required to be placed before him when he applied his mind whether declaration under Sec. 9 (1) should be issued or not. S. D. Shah appearing for the Union of India very fairly conceded that it was a fact that Mr. M. L. Wadhwan did not know Gujarati. In view of this English translation of the documents was required to be placed before him when he applied his mind whether declaration under Sec. 9 (1) should be issued or not. When no such translation of the documents was placed before him the Notification under Sec. 9 (1) is vitiated. The learned Advocates appearing for the respondents were unable to satisfy us that the Notification under Sec. 9 is not vitiated inspite of the above fact. Hence so far as Sec. 9 (1) Notification is concerned it is required to be quashed with the result that the petitioner shall have to undergo detention for a period of one year only from the date of his arrest in pursuance of the order dated 20 of course excluding the period during which he was out of custody as a result of the order passed by us in this petition earlier whereby we quashed the detention. (See State of Gujarat v. Adam Hasam Bhaya AIR 1981 SC 2005 ). In the present case the order of detention and the continued detention of the detenu in pursuance of the said order of detention is not vitiated because the provisions of Sec. 8 of the COFEPOSA have been complied with in the present case notwithstanding the fact that Sec. 9 (1) Notification was issued in the present case. If the requirements of Sec. 8 were not followed in the present case but the requirements of Sec. 9 only were followed then the original order of detention and the continued detention in pursuance of that order would also be vitiated once it is found that Sec. 9 (1) Notification is vitiated. But in the present case it is not 80 and; therefore notwithstanding the fact that Sec. 9 (1) Notification is being quashed the order of detention and the continued detention in pursuance of the original order of detention is not vitiated. Rule partly allowed .