Judgment :- Arunachalam, J. A question of interest and im portance, though not res integra in its strict sense has been placed before us. Counsel on either side citing authorities obtensibly in their favour, in spite of their stands being divergent. Petitioner Mohasinia is the wife of detenu Sulthan. By an order dated 30.12.1992, respondent had directed preventive detention of Sulthan in exercise of powers conferred by Sec.3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act 46 of 1988), with a view to prevent him from engaging himself in possession and selling of Narcotic drugs. 2. Petitioner has prayed for issue of a habeas corpus for production of her husband before this Court, to be set at liberty after quashing the impugned order of detention. 3. Brief facts, which had to preventive detention of Sulthan, will have to be stated: On 11. 1992 at 3.15 p.m., on prior information Inspector of Police, Narcotic Intelligence Bureau, Crime Branch, C.I.D. Madras-17, searched premises No.5/33. 23rd Street, M.M.D.A. Colony, Maduravoyal, Madras-102. At the time of search, Jaganathan, and Gopinath were present in the premises. Jaganathan produced a brown colour ‘ecolac’ suit case from beneath the cot in the front room of his house and stated that the suitcase belonged to him the number lock operated by setting numericals 2-9-2. He also opened up the suit case. A polythene cover containing heroin wrapped in an English Magazine and eight bundles of currency all in hundred rupee denomination were found inside the suit case. Heroin weighed 500 grm. Gopinath was searched next. Black colour zip leather bag belonging to him was found to contain 500 gms. of heroin similarly wrapped. Confessional statements were recorded from Gopinath and Jaganathan. On information furnished by Jaganathan, Inspector of Police proceeded to premises No.5/164, M.M.D.A. Colony, 19th Street, Maduravoyal at 4.45 p.m. and found the detenu present there. House search was conducted in the presence of witnesses between 4.45 and 5.15 p.m., after observing all legal formalities. Detenu took out an ever-silver vessel from beneath the cot and produced it to the Inspector of Police. Ever-silver vessel contained an English Magazine Paper pocket, enclosing a polythene cover, containing 500 gms. of heroin. An ever-silver weighing balance with weights of 100, 50, 20, 20 and 10 gms. were also found in the said ever-silver vessel. Detenu took out an ever-silver vessel from beneath the cot and produced it to the Inspector of Police. Ever-silver vessel contained an English Magazine Paper pocket, enclosing a polythene cover, containing 500 gms. of heroin. An ever-silver weighing balance with weights of 100, 50, 20, 20 and 10 gms. were also found in the said ever-silver vessel. A copy of house search list was furnished to the detenu under acknowledgement. Detenu was arrested and his concesion statement was recorded. At 6 p.m. on the same day, on the information furnished by the detenu, Inspector of Police proceeded to door No.5/17, M.M.D.A Colony, 23rd Street, Maduravoyal and found Lilly, wife of Sunny, present therein. She produced a white colour sharp model switch bell and stated that it was used to call the detenu. On return to 5/33, M.M.D.A. Colony, they found Mahendra Raj alias Kili arriving on a motor cycle bearing registration No.T.72-6469, Kawasaki-Bajaj. A cover containing heroin was found concealed on the petrol tank of the vehicle. The said heroin weighed 500 gms. Detenu was arrested, produced before Judicial Magistrate, Poonamallee on 11. 1992 and remanded to judicial custody till 111. 1992. Seized heroin samples were sent for chemical analysis and the report revelaed that the seizure was diacetyl-morohine derived from the opium alkaloid morphine (heroin). After follow up action, impugned order of detention was passed. 4. Though several grounds of challenge from part of the affidavit of the petitioner, filed in support of the writ petition, Mr.Kumar, particularly focussed one single and salient ground, which according to him, may suffice, for the disposal of this writ petition. 5. Ground posed is as hereunder: Grounds of detention inform the detenu, that he has a right to make a representation to the detaining authority and the State Government. In compliance, of the right guaranteed to him in the grounds of detention, on 21. 1993 petitioner forwarded a representation on behalf of her husband (detenu), the only representation made to the detaining authority. While the detaining authority has not disposed of the same, petitioner received a communication dated 2. 1993, that the State Government had considered her representation and had rejected the same. 1993 petitioner forwarded a representation on behalf of her husband (detenu), the only representation made to the detaining authority. While the detaining authority has not disposed of the same, petitioner received a communication dated 2. 1993, that the State Government had considered her representation and had rejected the same. On such rejection two consequences directly follow: (a) Since the detaining authority has an independent right coupled with a duty to consider and dispose of the representation made on behalf of the detenu, that representation in law remains undisposed; (b) By forwarding the representation to the State Government, the detaining authority has deprived the detenu, the right of making a further and fuller representation to the State Government, which he had not exercised till then. 6. In other words, the contention of Mr.B. Kumar, was, that non-consideration of the representation by the detaining authority was in total disregard of the right conferred on the detenu, by Art.22(5) of the Constitution of India read with Sec.12 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act and more so, when the detenu had been informed in the grounds of detention, of such a right available to him. 7. Mr.I. Subramaniam, learned Additional Public Prosecutor, while disputing, the correctness of the principles put forth by Mr.B.Kumar, on the available facts, contended, that even though the order of detention may be passed by an officer specially empowered, as in the instant case, the order of detention was in effect the order of the State and hence the detenu does not have any right under Art.22(5) of the Constitution to make a representation to the officers specially empowered. In other words, his contention was, that if the representation was intended for the purpose of securing the release of the detenu, it could only be made effectively to the authority or authorities who would have the power to revoke the order of detention and not to one on whom such power of revocation has not been conferred by the Act. 8. Counsel on either side, referred to Art.22(4) and (5) of the Constitution and Secs.3, 9 and 12 of Act 46 of 1988. A few decisions of the Supreme Court and principles enunciated by certain High Courts and have also been placed for our intensive scrutiny. 9. 8. Counsel on either side, referred to Art.22(4) and (5) of the Constitution and Secs.3, 9 and 12 of Act 46 of 1988. A few decisions of the Supreme Court and principles enunciated by certain High Courts and have also been placed for our intensive scrutiny. 9. It will be better, initially, to look into the relevant provisions, to appreciate the inherent merits of the submissions made. Under Sec.3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the Central Government or the State Government or any Officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purpose of that section by that Government or any officer of a State Government, not below the rank of Secretary to that Government specially empowered for the purpose of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in Illicit Traffic in Narcotic Drugs and Psychotropic Substances, it was necessary so to do, make an order directing that such person be detained. Apparently the authorities who can make order under this sections are: .(1) The Central Government; .(2) State Government; .(3) Any officer of the Central Government, not below the rank of joint Secretary to that Government specially empowered for the purpose of this section by that Government or .(4) Any officer of a State Government not below the rank of Secretary to that Government specially empowered for the purpose of this section by that Government. Under Sec.3(3) of the Act, for the purpose of Clause (5) of Art.22 of the Constitution, the communication to a person detained in pursuance of a detention order, of the grounds on which the order has been made, shall be made as Soon as may be after detention, but ordinarily not later than 5 days and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention. .10. Since Art.22(5) of the Constitution has been mentioned in Sec.3(3) of the Act, a quick perusal of that Art.is bound to be relevant. .10. Since Art.22(5) of the Constitution has been mentioned in Sec.3(3) of the Act, a quick perusal of that Art.is bound to be relevant. Art.22(5), reads, that 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 ground on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. A combined, reading, of Sec.3(1) of the Act and Art.22(5) of the Constitution, indisputably shows that the authority making the order, has a duty cast upon him, as soon as may be, to communicate to such person the grounds on watch the order has been made and shall afford him the earliest opportunity of making a representation against the order. If the authority making the order, as in the instant case, is the Secretary to the State Government specially empowered under Sec.3(1) of the Act, he is bound to act under Art.22(5) of the Constitution, relating to communication, while affording him the earliest opportunity of making a representation against the order passed by him. Under Sec.9 of the Act for the purposes of Sub-clause (a) of Clause 4 and Sub-clause (c) of Clause 7 of Art.22 of the Constitution, the Central Government and each State Government shall have to set one or more Advisory Boards necessary, each of which shall consist of a Chairman and two other persons possessing qualification specified in Subclause (a) of Clause 4 of Art.22 of the Constitution. Under Sec.9(b), an appropriate Government within 5 weeks from the date of detention of person, under a detention order, shall have to make a reference in respect thereof to the Advisory Board constituted under Sec.9 (a). Correlated duty is cast on the Advisory Board under Sec.9(c) of the Act, to offer its opinion, whether or not there was sufficient case for the detention of the persons concerned and submit the same within 11 weeks from the date of detention. Correlated duty is cast on the Advisory Board under Sec.9(c) of the Act, to offer its opinion, whether or not there was sufficient case for the detention of the persons concerned and submit the same within 11 weeks from the date of detention. Merely because the duty is cast on the Central Government and each State Government, to constitute, one or more Advisory Boards under Sec.9(a) of the Act, it does not necessarily follow, that officers specially empowered by the state Government under Sec.3(1) of the Act, cease to be detaining authorities, as soon as the orders of detention are passed, and communicated, under Sec.3(3) read with Art.22(5) of the Constitution. This aspect will have very great relevance, when we refer to the case law available on this subject. .11. Under Sec. 9(c) of the Act, the detenu has a right to be heard in person, before the Advisory Board offers its opinion, contemplated under law. Further since the Advisory Board, has a duty to consider any representation by the detenu, if one such is received by the State Government or the Central Government, they are bound to forward it for consideration, by the Advisory Board. As far as the Advisory Board is concerned, all that it could do, is to offer its opinion about the existence of sufficient cause or otherwise, for the detention of the person concerned. 12. Power to revoke orders of detention, can be traced, under Sec.9(f) and Sec.12 of the Act. At this stage, it must be mentioned that counsel on either side, fairly stated, to a court question, that disposal of the representation by the authorities concerned, if in favour of the detenu, will only lead to revocation of the impugned orders under Sec.9(f) of the Act and under Sec,12 of the Act. Power of revocation under Sec.9(f) of the Act, can be exercised only by the appropriate Government and not by specially empowered officers, for that category do not get included, under this provision, since the words are clear and categoric, that the approriate Government shall revoke detention order and cause the person to be released forth with, in every case where the Advisory Board has reported, that there was, in its opinion, no sufficient cause for the detention of the person concerned. 13. However the power under Sec.12 of the Act is very wide. 13. However the power under Sec.12 of the Act is very wide. It will better to extract Sec.12 of the Act. “12.(1) Without prejudice to the provisions of Sec.21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified; .(a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government; .(b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government.” The opening words of Sec.12(1) of the Act “without prejudice to the provisions of Sec.21 of the General Clauses Act” is a sure assertion, that the provisions under Sec.21 of the General Clauses Act, stand preserved. Leaving aside for a moment, provisions of Sec.21 of the General Clauses Act, under Sec.12(1) of Act 46 of 1988 a detention order made, may at any time, be revoked or modified, (a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government; and (b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government. A plain reading of Sec.12(1) portrays, that if the detention order has been made by an officer of a State Government that can be revoked or modified by that State Government or by the Central Government under Sec.12(1)(a). The Officer of a State Government, does not get power to revoke or modify a detention order, made by him. Under Sec.12(1)(b), Central Government is vested with the power of revoking or modifying a detention order made by an officer of the Central Government or by a State Government. If the provisions of Sec.21 of the General Clauses Act, are excluded, an order or detention made by the State Government, cannot be revoked by it, under Sec.12 and similarly an order made by Central Government cannot be revoked by itself, under this section. We have already seen, that power of revocation under Sec.12 of the Act, is independent of the power vested on the appropriate Government, under Sec.9(f) of the Act, of course limited to those cases, where the opinion of the Advisory Board stands in favour of the detenu. We have already seen, that power of revocation under Sec.12 of the Act, is independent of the power vested on the appropriate Government, under Sec.9(f) of the Act, of course limited to those cases, where the opinion of the Advisory Board stands in favour of the detenu. Naturally the power to revoke or modify a detention order made by the Stat6 Government, by itself, or by Central Government, by itself, will have to be traced in Sec.21 of the General Clauses Act, which provisions, as stated earlier, are preserved under Sec.12 of the Act, Sec.21 of the General Clauses Act reads thus: “Power to issue to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws: here, by any Central Act or Regulations, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and .subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.” Sec. 21 of General Clauses Act, makes it clear, that if any Central Act or Regulation, confers a power to issue an order, then that power included, a power exercisable in the like manner to rescind such orders. We have already taken note of authorities, who are entitled to make orders of detention under Sec.3(1) of the Act. By virtue of Sec.21 of the Act, the Joint Secretary to the Government of India especially empowered for the purpose of that section and secretary to the State Government specially empowered for the purpose of that section by that Government, who happen to pass orders of detention, will have power vested in them to rescind those orders. Even for the State Government or Central Government, to revoke or modify the orders passed by them, necessary power stands provided under Sec.12 of the General Causes Act, read with Secl2 of the Act, and not otherwise. Of course we cannot overlook that orders of detention passed by State Governments, can be revoked or modified under Sec.12(1)(b) of the Act, by the Central Government. 14. Of course we cannot overlook that orders of detention passed by State Governments, can be revoked or modified under Sec.12(1)(b) of the Act, by the Central Government. 14. It will be very difficult to accede to the contention of Mr.I. Subramaniam, learned Additional Public Prosecutor, that soon after orders of detentions are passed by the empowered officers, the orders in effect should he held to be orders made by the State Government and hence" the detenu does not have any right to make a representation, under Art.22(5) of the Constitution, it cannot be disputed, that the authority making the order, has to mandatorily communicate to the detenu as soon as may be grounds on which the order has been made and shall offer him the earliest opportunity of making a representation against the order. Can it be then said, that a moment after an order of preventive detention is issued by an empowered officer, his powers under Sec. 3(3) of the Act get terminated, for, a duty is certainly cast on him as the authority making the order to communicate to the detenu the grounds of detention for the pur-, pose of Art.22 (5) of the Constitution? Under Sec.12 of the Act read with Sec.21 of the General Clauses Act, where an Officer of the State Government or the Central Government had passed an order of detention, having been specially empowered under Sec.3(1) of the Act, he has power to revoke the order on receipt of a representation if he is convinced, that the detention order needs to be revoked. This he can so do, by virtue of Sec.21 of the General Clauses Act, since Sec.12 does not strictly entitle him to do so. This clarifies, why the power under Sec.12 is conferred "without prejudice to the provisions of Sec.21 of the General Clauses Act." We have already stated that powers of revocation conferred under Sec.9(f), on the appropriate Government, is clearly an independent power, which satisfies the requirement of Art.22(4) of the Constitution whereas Sec.12 of the Act satisfies the requirement of later part of Art.22(5) of the Constitution. It will be needlees to reiterate, that, on the legal position aforestated, power of revocation can be exercised by three authorities namely, .(a) Officers of the State Governments or the Central Government, who due to empowerment, have passed the orders of detention: .(b) The State Government; and .(c) The Central Government. While narrating the facts, we have pointed out, that the detenu was informed by the detaining authority, who is the specially empowered Officer of the State Government, that the detenu has a right of representation: (1) to the detaining authority, (2) to the State Government of Tamil Nadu, (3) the Government of India, and (4) to the Advisory Board, against his detention. He was further informed in the grounds of detention, that he may make a representation as against the impugned order of detention to the detaining authority or to the Chief Secretary, Government of Tamil Nadu or Secretary to the Government of India, Ministry of Finance, Department of Revenue, Narcotic Control Bureau, New Delhi-116006, as the case may be. The same had to be forwarded through the Superintendent of Central Prison, where he was detained. The address to which, representation should be sent to the Advisory Board, has also been separately mentioned in the grounds of detention. At the risk of repetition, we have to state, that the petitioner had addressed her representation to the detaining authority, to whom the detenu was informed, that he can forward his representation, in the grounds of detention itself. If that authority, does not consider the representation of the detenu, since we have already seen, that he has nexus to Art.22(5) of the Constitution of India, that will be sufficient to entitle the detenu to succeed, in the relief sought for, in this habeas corpus petition. 15. To our minds, empowerment under Sec.3(1) of the Act, cannot be said to be a limited delegation, which terminates the moment at which the order of detention is passed, for, as stated already, further obligations are cast on the detaining authority. When we have mentioned therein, the empowered officers of the Central and State Governments as well. 15. To our minds, empowerment under Sec.3(1) of the Act, cannot be said to be a limited delegation, which terminates the moment at which the order of detention is passed, for, as stated already, further obligations are cast on the detaining authority. When we have mentioned therein, the empowered officers of the Central and State Governments as well. It cannot be argued, that since the representation has been forwarded to the detaining authorities by the wife of the detenu, it cannot be treated as a representation made by the detenu, to entitle him to plead for other legal obligations, which are cast on the authorities in the disposal of his representation. In Balchand Chorasia v. Union of India, 1978 M.L.J. (Crl.) 254: (1978)1 S.C.J.377(1): A.I.R. 1978 S.C. 297:1978 Crl.L.J. 159: (1978)1 S.C.C. 161 :1978 S.C.C. (Crl.) 77: (1978)2 S.C.R. 401 , Fazal Ali, J., speaking for the Bench stated, that in matters where the liberty of the subject is concerned and a highly cherished right is involved, the representations made by the detenu should be construed liberally and not technically so as to frustrate or defeat the concept of liberty which is engrained in Art.21 of the Constitution. 16. In that case, representation of the detenu was through his counsel. In the opinion of the High Court, the aforesaid representation was not given by the detenu himself but by Mr.Jethmalani, in his capacity as a Member of Parliament. After perusing the representation, the Supreme Court stated that MrJethmalani acted not as a Member of Parliament, but on instructions from his client, namely the detenu. In the circumstances, therefore, the High Court was in error in considering the representation made by the petitioner as being made not by him, but by his counsel. It is manifest that counsel had no personal matter and he was only advocating the cause of his client. In the present case, wife of the detenu has clearly stated in her representation, that on the instructions of her husband, detenu herein, she was forwarding the representation seeking release of her husband from preventive detention. 17. It is manifest that counsel had no personal matter and he was only advocating the cause of his client. In the present case, wife of the detenu has clearly stated in her representation, that on the instructions of her husband, detenu herein, she was forwarding the representation seeking release of her husband from preventive detention. 17. In Smt.Santosh Anand v. Union of India, (1981) 2 S.C.C. 420 , a two Judge Bench of the High Court held "that under Art.22(5) of the Constitution as also under Sec.11, COFEPOSA Act (in pari materia with Sec.12 of Act 46 of 1988), a representation should be considered by the detaining authority, who on a consideration thereof, can revoke the detention order and if the representation is rejected by the detaining authority, it is open to the detenu to approach the State Government for revocation of the order failing that it is open to him to approach the Central Government to get the detention order revoked." In that case, the detaining authority was the Chief Secretary, Delhi Administration, a specially empowered officer under Sec.3 of the Act. Representation of the detenu was rejected by the Administrator of Delhi to whom the Chief Secretary, Delhi Administration forwarded the representation for disposal. Supreme Court observed in that context, that the Chief Secretary did not take the decision to reject the representation himself for which purpose the papers were submitted to the Administrator, who ultimately rejected the same. Hence the representation was not rejected by the detaining authority and as such the constitutional safeguard under Art.22 (5) as interpreted by that court, cannot be said to have been strictly observed or complied with. In that context it was held that continued detention of the detenu was clearly illegal and deserved to be quashed. 18. In Sat Pal v. State of Punjab, A.I.R. 1981 S.C. 2230:1981 Crl.L.J. 1867, the following observations were made at page 1869: "8. The constitutional imperatives of Art.22(5) enjoin that where the detenu makes simultaneously a representation to the detaining authority as well as an application for revocation under Sec.11 of the Act, they must both be dealt with by the appropriate Governments at the same time, and there is no question of any conflict of jurisdiction. The constitutional imperatives of Art.22(5) enjoin that where the detenu makes simultaneously a representation to the detaining authority as well as an application for revocation under Sec.11 of the Act, they must both be dealt with by the appropriate Governments at the same time, and there is no question of any conflict of jurisdiction. To illustrate, if the Central Government were to revoke an order of detention under Sec.11(1)(b) of the Act, there would be no representation for the State Government to consider, or to refer to the Advisory Board under Sec.8(b); nor will there arise any question of the Advisory Board submitting report to it, or on receipt of such a report confirming the order of detention under Sec.8(f). The other type of case would be where notwithstanding that the order of detention has been confirmed under Sec.8(f), the appropriate Government may, at any time, revoke the same under Sec.11 of the Act. The power of revocation conferred on the appropriate Government under Sec.11 of the Act is independent of the power of confirming or setting aside and order of detention under Sec.8(f)." It was further observed as hereunder: "We have no hesitation in repelling the contention that the power of revocation conferred on the Central Government under Sec.11 is not attracted, until the State Government has considered the representation made by the detenu and rejected it and until the Advisory Board has submitted its report to the State Government. Under the Act, a detenu has the right to simultaneously make a representation to the detaining authority which has to be considered by the Advisory Board, as also the right to apply to the Central Government for revocation of the detention order under Sec.11.” In yet another case, Supreme Court had to again consider the provisions of Sec.11 of the COFEPOSA Act in conjunction with the provisions under Sec.21 of the General Clauses Act, in Ibrahim Bachu Bafan v. State of Gujarat, A.I.R, 1985 S.C. 697. That decision was rendered by a three Judge Bench. That decision was rendered by a three Judge Bench. The observations made therein are extracted hereunder: “The power conferred under clauses (a) and (b) of Sub-sec.(1) of Sec.11 is in fact extention of the power recognised under Sec.21 of the General Clauses Act; the power is exercisable by the authority making the order, the named authorities under clauses (a) and (b) of Sec.11(1) of the Act are also entitled to exercise the power of revocation..... We agree with the submission of Mr.Jethmalani that the words “without prejudice to the provisions of Sec.21 of the General Clauses Act, 1897” used in Sec.11(1) of the Act give expression to the legislative intention that without affecting that right which the authority making the order enjoys under Sec.21 of the General Clauses Act, an order of detention is also available to be revoked or modified by the authorities named in clauses .(a) and (b) of Sec.11(1) of the Act. Power conferred under clauses (a) and (b) of Sec.11 (1) of the Act could not be exercised by the named authorities under Sec.21 of the General Clauses Act as those authorities on whom such power has been conferred under the Act are different from those who made the orders. Therefore, conferment of such power was necessary as parliament rightly found that Sec.21 of the General Clauses Act was not adequate to meet the situation. Thus, while not affecting in any manner and expressly preserving the power under Sec.21 of the General Clauses Act, of the original authority making the order, power to revoke or modify has been conferred on the named authorities.” 19. D.A.Desai, J., sitting singly in Pushpa v. Union of India, A.I.R. 1979 S.C. 1953: 1979 Crl.L.J. 1314: 1979 S.C.C. (Crl.) 1015, stated, that there is nothing in the scheme of Art.22 or the provisions of the COFEPOSA, which requires that the initial representation made by the detenu, on communication of grounds of detention, ought always to be considered by the appropriate Government notwithstanding the fact that the order of detention had been made by an officer specially empowered in that behalf. Undoubtedly, the power to revoke the detention order under Sec.11 is conferred on the State Government and the Central Government whenever an order of detention is made by an officer of the State Government, but that does not imply that the initial representation which a detenu has a right to make after the grounds of detention are furnished to him, must of necessity be made to and considered by the State Government. In fact, the representation can and ought to be made to the detaining authority, because it is he who has to apply his mind to the facts of the case and it is he who has furnished the grounds of detention on which he has acted and it is he who has to be convinced that the action taken by him is unjustified and requires reconsideration.... The representations not in the form of an appeal to the higher authority and, therefore, ipso facto it must go to the State Government. Undoubtedly it would be open to the detenu to make a representation under Sec.11 requesting either the State Government or the Central Government, as the case may be, to revoke the order of detantion. But the initial representation that a detenu has a right to make on receipt of the grounds of detention would ordinarily be addressed to the detaining authority because it is that authority which has taken a decision adverse to the detenu and which has to be persuaded to reconsider the same. Therefore, if the detenu made the representation to the detaining authority, who had passed the detention order, it would be open to that authority to consider the same and after applying his mind, to accept or reject the same. In that context, it was further observed, that the failure to submit the representation addressed to the detaining authority and considered by him to the State Government, would not vitiate the detention order.” 20. However, D.A. Desai, J., sitting along with A.P.Sen, J. in Rajkishore Prasad v. State of Bihar, A.I.R. 1983 S.C. 320: 1983 Crl.L.J. 629: (1982) 3 S.C.C. 10 :1982 S.C.C. (Crl.) 530, sought to distinguish the decision in Smt.Santosh Anand v. Union of India, (1981) 2 S.C.C. 420 . However, D.A. Desai, J., sitting along with A.P.Sen, J. in Rajkishore Prasad v. State of Bihar, A.I.R. 1983 S.C. 320: 1983 Crl.L.J. 629: (1982) 3 S.C.C. 10 :1982 S.C.C. (Crl.) 530, sought to distinguish the decision in Smt.Santosh Anand v. Union of India, (1981) 2 S.C.C. 420 . The following observations were made: “Where the power to detain a person under Sec.3(2) of the Act was exercised by the District Magistrate on being conferred with such power by the appropriate Government viz., State Government in view of Sec.3(3), the forwarding of the representation of the detenu to the State Government by the Magistrate, without considering the same himself, would not invalidate the detention order. The representation of the detenu having been considered by the State Government, it could not be said there was contravention of Art.22(5) of the Constitution or there was failure to consider the representation by the detaining authority. After referring to the decision in Smt.Santhosh Anand’s case, (1981) 2 S.C.C. 420 , it is stated thus: “In that case this Court invalidated the order on the ground that even though the order or detention was made by the Chief Secretary, Delhi Administration, his representation was considered and rejected by the Administrator of Delhi which indicated that the detaining authority did not apply its mind to the representation while reaching this conclusion. The court took note of the fact that the detaining authority itself had forwarded the representation to the Advisory Board via. the Administrator. Even then this Court held that the representation was considered by the Chief Secretary as the detaining authority only for the purpose of submitting the same for orders to the Administrator who in his turn after considering it rejected the same which would mean that the detaining authority did not apply its mind to the representation and it would invalidate the order. However, in view of the specific provisions contained in Sec.8 which requires that the detaining authority shall afford earliest opportunity to make a representation not to detaining authority but to appropriate Government it follows as a corollary that the appropriate Government must consider it. The Chief Minister has considered the representation and rejected it after calling for parawise remarks of the detaining authority. Therefore, it is not possible to accept the contention that the failure of the detaining authority to consider the representation would invalidate the order.” 21. The Chief Minister has considered the representation and rejected it after calling for parawise remarks of the detaining authority. Therefore, it is not possible to accept the contention that the failure of the detaining authority to consider the representation would invalidate the order.” 21. This very question attracted the attention of the Supreme Court in State of Maharashtra v. Sushila Mafatlal Shah, A.I.R. 1988S.C. 2090 and in Amir Shad Khan v. Hminglian, A.I.R. 1991 S.C. 1983. The former decision was rendered by a two member Division Bench, while the later was rendered by a three member Division Bench. 22. In State of Maharashtra v. Sushila Mafatlal Shah, A.I.R. 1988 S.C. 2090 enunciation of law was, that representation to the officer of the Government passing the order of detention, in addition to representation to the State Government and Central Government was not permissible. In other words, it was stated, that Art.22(5) of the Constitution did not provide material for the detenu to contend, that in addition to his right to make a representation to the State Government and the Central Government, he has a further right under Art.22(5) of the Constitution to make a representation to the officer himself as he had made the order of detention. It was further stated, that it could not be said, that order of detention, if passed by an officer of the Government specially empowered under Sec.3(1), but not further empowered under the rules of the Business of the Government to act, would have the effect of making the concerned officer, the detaining authority and not the concerned Government itself. 23. The following observations do require extraction. ”It has been specifically provided in Sec.2(a) that irrespective of whether an order of detention is made by the Central Government or one of its duly authorised officers, the “appropriate Government” as regards the detention order and the detenu will be Central Government only and likewise whether an order of detention is made by a State Government or one of its duly authorised officers, the “appropriate Government” would be the State Government only as regards the detention order and the detenu concerned. Secondly, irrespective of whether an order of detention is made by the State Government or by one of its officers, the obligation to forward, within ten days, a report to the Central Government in respect of the order is cast only upon the State Government. Secondly, irrespective of whether an order of detention is made by the State Government or by one of its officers, the obligation to forward, within ten days, a report to the Central Government in respect of the order is cast only upon the State Government. Thirdly, in the matter of making a reference of the case of a detenu to the Advisory Board under Sec.8(b), the duty of making the reference is cast only on the Central Government or the State Government as the case may be, and not on the officer of the Central Government or the State Government, if he makes the order of detention in exercise of the powers confered on him under Sec.3(1). Lastly Sec.11, which deals with the powers of revocation of the State Government and the Central Government provides, that notwithstanding that an order of detention had been made by an officer of a State Government, the concerned State Government as well as the Central Government are entitled to revoke or modify the order of detention. Similarly, as per Clause (b) notwithstanding that an order of detention has been made by an officer of a Central Government or by a State Government has been empowered to revoke or modify an order of detention. The section does not confer any power of revocation on an officer of the Central or State Government nor does it empower the Central or State Government to delegate the power of revocation to any of its officers. Even though Sec.11 specifies that the powers of revocation conferred on the Central Government/State Government are without prejudice to the provisions of Sec.21 of the General Clauses Act, this reservation will not entitlea specially empowered officer to revoke an order of detention passed by him, because the order of a specially empowered officer acquires “deemed approval” of the State or Central Government, as the case may be, automatically and by reason of such deemed approval, the powers of revocation, even in terms of Sec.21 of the General Clauses Act will fall only within the domain of the State Government and/or Central Government. ................ ................ Even if an order of detention is made by a specially empowered officer of the Centra) 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 decree and extent to which it will stand obligated if the detection 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 Art. 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 Sec.3(1) a specially empowered officer is entitled to pass an order of detention, his constitutional obligations 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 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 address his representation to the officer himself. ....... In other preventive detention Acts such as the National Security Act, Maintenance of Internal Security Act, Preventive Detention Act, etc., an order of detention passed by an officer specially empowered under the Act will cease to have force, after the expiry of the number of days prescribed under the relevant Act, unless the said order is approved by the Government within that period, on the contrary, the COFEPOSA Act does not provides for the State Government or Central Government, passing an order of approving of a detention order, made by one of its officers and therefore the detention order will continue to be operative for the full period of detention unless the order is revoked by the State Government or the Central Government or is quashed by the court for any reason. This is an additional factor to show, that an order of detention passed by an officer has the same force and status as an order of detention passed by the Government itself and this could happen only if an order of detention made by an officer is treated as an order of detention made by the Government itself although through the instrumentality of an officer empowered under Sec.3. ...... It could not be said 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 as 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. It will, therefore, not be to the advantage of the detenu, if it were to be held that in all cases where an order of detention is passed by an officer, the very officer should consider the representation in the first instance and only thereafter the detenu can approach the State Government and the Central Government. Moreover, if for argument’s sake it is to be assumed that an officer passing an order of detention is under a duty to afford the detenu of opportunity to make a representation to himself, in order to give relief to him, it may bead to abuse of powers vested in the officer. The possibility of an officer misusing his powers and passing an order of detention against a person and then revoking it in order to seek profit for himself or for other ignoble means, however, remote it may be, cannot be ruled out". 24. The possibility of an officer misusing his powers and passing an order of detention against a person and then revoking it in order to seek profit for himself or for other ignoble means, however, remote it may be, cannot be ruled out". 24. In this case Supreme Court distinguished the judgment of D.A. Desai, J. sitting singly in Pushpa v. Union of India, A.I.R. 1979 S.C. 1953: 1979 Crl.L.J. 1314:1979 S.C.C. (Crl.) 1015 of facts and observed, that the said decision cannot be treated as one having precedential value. After referring to the decision of a three Judge Bench in Devji Vallabhai Tandal v. Administrator, A.I.R. 1982 S.C. 1029: 1982 Crl.L.J. 799: (1982) 2 S.C.C. 222 : 1982 S.C.C. (Crl.) 403: (1982)1 S.C.J. 413, the Supreme Court held, that the pronouncement having been made by a Bench of three Judges carried with it more binding force than the view taken in Smt.Santoshanand v. Union of India, (1981) 2 S.C.C. 420 . While doing so, it is stated thus: "Besides we have already pointed out that section 11 confers powers of revocation only on the State Government and the Central Government and the Act does not envisage or contemplate an officer of the State Government or the Central Government passing an order of detention also exercising powers of revocation. We must, therefore, hold that the decision in SmtSantoshanand v. Union of India, (1981) 2 S.C.C. 420 , must stand confind to the facts of that case and it cannot be treated as one in which a principle of law of general application in all cases has been enunciated. In fact we may appositely refer in this connection to a decision by a Bench of three Judges of this Court in Devji Vallabhai Tandal v. Administrator, A.I.R. 1982 S.C. 1029: 1982 Crl.L.J. 799: (1982)2 S.C.C. 222 : 1982 S.C.C. (Crl.) 403: (1982)1 S.C.J. 413, where it was held that it is only the Administrator in the Union Teritory of Delhi who is entitled to consider the representation of a detenu and reject the same or accept the same and revoke the order of detention. The pronouncement in this case, being one made by Bench of three Judges, carries with it more binding force than the view taken in Smt.Santoshanand v. Union of India, (1981)2 S.C.C. 420 . The pronouncement in this case, being one made by Bench of three Judges, carries with it more binding force than the view taken in Smt.Santoshanand v. Union of India, (1981)2 S.C.C. 420 . " A reference has also been made to the decision of the Supreme Court in Rajkishore Prasad v. State of Bihar, A.I.R. 1983 S.C. 320: 1983 Crl.L.J. 629: (1982)3 S.C.C. 10 : 1982 S.C.C. (Crl.) 530. To recapitulate, that was a case where the District Magistrate, though he received the representation, had forwarded the same to the State Government without considering it himself. Again in State of Maharashtra v. Sushila Mafatlal Shah, A.I.R. 1988 S.C. 2090, the observation which has been extract already, shows that the COFEPOSA Act, unlike certain other preventive detention Acts, does not provide for the State Government or Central Government passing an order Of approval of a detention order made by one of its officers and therefore the detention order will continue to be operative for the full period of detenu unless the order is revoked by the State Government or Central Government or is quashed by the court for any reason. This was stated as an additional factor to show an order of detention passed by an officer has the same force and status as an order of detention passed by the Government itself and this could happen only if an order of detention made by an officer is treated as an order of detention made by the Government itself although through the instrumentality of an officer empowers under Sec.3 of the Act. 25. In a recent decision reported in Navalshankar Ishwarlal Dave v. State of Gujarat, (1993) 3 J.T. 421 , while considering the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985, in which the order of detention was passed by the District Magistrate (Authorised Officer) the following observations were made: “The mandate of Sec.3(3) is that the action of the authorised officer would be legal only when the State Government approves of it and in its absence of expiry of 12 days detention order should stand lapsed. Sec.15 postulates that without prejudice to the Bombay General Clauses Act, 1904 a detention order may at any time, for reasons to be recorded in the order, be revoked or modified by the State Government notwithstanding that the order has been made by an authorised officer. Sec.15 postulates that without prejudice to the Bombay General Clauses Act, 1904 a detention order may at any time, for reasons to be recorded in the order, be revoked or modified by the State Government notwithstanding that the order has been made by an authorised officer. Sub-sec.(2) is not material for the purpose of this case. Hence omitted. Sec.21 of the General Clauses Act envisage that where, by any Gujarat Act, a power to issue notification, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to amend, vary or rescind any notification, order, rules or bye-laws are issued.... There appears to be a seeming over-lap in consideration of the representation of the detenu and its effect on the orders by the authorities concerned..... In other words, the effect would be that the authorised officer should report as early as possible from the date of the execution of the order of detention to the Government and the order remains valid and in force for 12 days from the date of execution. If the order is not approved by the State Government within 12 days, the order of detention shall stand lapsed. For continuance after 12 days approval is mandatory and remains as fence till it is approved by the Advisory Board. If the Board dispproves, the State Government shall release the detenu forthwith....... The detaining authority has no express power under COFEPOSA to revoke the order of detention after the approval given by the State Government under Sub-sec.(3) of Sec.3 of COFEPOSA The power to rescind the detention order, therefore, would be available to the authorised officer under Sec.21 of the General Clauses Act, only during its operation for 12 days from the date of execution of the detention order or approval by the State Government whichever is later. The general power of revocation was conferred only on the State Government, that too in writing for reasons to be recorded in that behalf. By necessaary implication flowing from Sec.3(3) and concomitant result is that the authorised officer has no express power or general power under Sec.21 of the General Clauses Act to revoke or rescind or modify the order after the State Government approved of it under Sub-sec.(3) of Sec.3 read with Sec.3(1). By necessaary implication flowing from Sec.3(3) and concomitant result is that the authorised officer has no express power or general power under Sec.21 of the General Clauses Act to revoke or rescind or modify the order after the State Government approved of it under Sub-sec.(3) of Sec.3 read with Sec.3(1). The State Government alone, thereafter has power to revoke or rescind the order of detention either on representation under Art.22(5) or under Sec. 15 of COFEPOSA The representation should be disposed of accordingly. The reason is obvious that once the order of detention was approved by the State Government within the afores-tated 12 days period or confirmed by the Advisory Board within the period of seven weeks the exercise of power by the authorised officer would run counter to or in conflict thereof. The State Government has been expressly conferred with powers under Sec.15 to revoke, rescind or modify the order of detention at any time during one year from the date of making the order of detention.” 26. On the basis of the pronouncement of the Supreme Court in Navalshankar Ishwarlal Dave v. State of Gujarat, (1993) 3 J.T. 421 , it appears that an order of detention passed by an officer specially empowered, will cease to have force after the expiry of the number of days prescribed under the relevant Act unless the said order was approved by the Government within that period. During that particular period mentioned in the statute the authorised officer will have power to revoke the preventive order made by him. It. therefore, flows as a corollary that if under COFEPOSA Act and Act 46 of 1988, no provision has been made for approval of a detention order made by one of its officers specially empowered, the order will continue to be operative for the full period of detention unless revocation steps in. If that be so, the specially empowered officer, being one of those authorities who has power to revoke an order of detention made by him in view of Sec.21 of the General Clauses Act, will have to necessarily consider the representation made by the detenu addressed to him, more so when he was informed that he has such a right to make representation to the detaining authority. 27. 27. We will now turn our attention to the judgement of three Member Bench of the Supreme Court in Amirshad Khan v. Hminglian, A.I.R. 1991 S.C. 1983. On this decision, the argument of the learned Additional Public Prosecutor was that the question involved in the impugned writ petition was not directly in issue in Amir Shad Khan v. Hminglian, A.I.R. 1991 S.C. 1983, while it was in issue in State of Maharashtra v. Sushila Mafatlal Shah, A.I.R. 1988 S.C. 2090 and hence we are bound by the decision reported in A.I.R. 1988 S.C. 2090, but not by the one pronounced in 1991, by the Supreme Court, irrespective of the number of judges constituting the Bench, was more in the later decision. To this contention, we will answer, after looking into the laid down by the Supreme Court in the later case. On a plain reading of the decision in Amirshad Khan v. Hminglian, A.I.R. 1991 S.C. 1983, we are able to visualise, that the Supreme Court has consider the scope, for exercise of revocation power, under Sec.11 of the Act read with Sec.21 of the General Clauses Act, of an officer specially empowered, who has ordered detention. That was a case under the COFEPOSA Act where in Sec.11 corresponds to Sec.12 of Act 46 of 1988. After extracting Sec.11 of the COFEPOSA Act, the Supreme Court stated thus: "It is obvious from a plain reading of the two clauses of Sub-sec(1) of Sec.11 that where an order is made by an officer of the State Government, the State Government as well as the Central Government are empowered to revoke the detention order. Where, however, detention order is passed by an officer of the Central Government or a State Government, the Central Government is empowered to revoke the detention order. This provision is clearly without prejudice the Sec.21 of the General Clauses Act which lays down that whereby any Central Act, a power to issue orders is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanctioned conditions, if any, to rescind any order so issued, plainly the authority which has passed the order under any Central Act, is empowered by this provision to rescind the order in the like manner. This provision when read in the context of Sec.11 of the Act makes it clear that the power to rescind conferred on the authority making the detention order by Sec.21 of the General Clauses Act is saved and is not taken away. Under Sec.11 an officer of the State Government or that of the Central Government specially empowered under Sec.3(1) of the Act to make a detention order is not conferred the power to revoke it that power for those officers has to be traced to Sec.21 of the General Clauses Act. Therefore, where an officer of the State Government or the Central Government has passed any detention order and on receipt of a representation he is convinced that the detention order needs to be revoked, he can do so by virtue of Sec.21 of the General Clauses Act, since Sec.11 does not entitle him to do so. If the State Government passes an order of detention and later desires to revoke it, whether upon receipt of a representation from the detenu or otherwise, it would be entitled to do so under Sec.21 of the General Clauses Act, but if the Central Government desires to revoke any order passed by the State Government or its officer, it can do so only under Clause (b) of Sec.11(1) of the Act and not under Sec.21 of the General Clauses Act. This clarifies why the power under Sec.11 is conferred without prejudice to the provisions of Sec.21 of the General Clauses Act. Thus on a conjoint reading of Sec.21 of the General Clauses Act and Sec. 11 of the Act, it becomes clear that the power of revocation can be exercised by three authorities, namely the officer of the State Government or the Central Government, the State Government as well as the Central Government. The power of revocation conferred by Sec.8(f) on the appropriate Government is clearly independent of this power. It is thus clear that Sec.8(f) of the Act satisfies the requirement of Art.22(4) of the Constitution of India whereas Sec.11 of the Act satisfies the requirement of later part of Art.22(5) of the Constitution. The power of revocation conferred by Sec.8(f) on the appropriate Government is clearly independent of this power. It is thus clear that Sec.8(f) of the Act satisfies the requirement of Art.22(4) of the Constitution of India whereas Sec.11 of the Act satisfies the requirement of later part of Art.22(5) of the Constitution. The statutory provisions, therefore, when read in the context of the relevant clauses of Art.22 of the Constitution of India, make it clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the rights conferred on the detenu to represent against the detention order. Viewed in this respective, it cannot be said that the power conferred by Sec.11 of the act has no relation whatsoever with the constitutional obligation cast by Art.22(5) of the Constitution of India”. Punchhi, J., agreed for the release of the detenus, but expressed’ reservation, to Sec.11 of the COFEPOSA Act being treated part of the constitutional guarantee under Art.22(5) of the Constitution of India. In fact there is no divergence in the view of the Supreme court that the officers of State Government and Central Government specially empowered to pass detention orders have the powers to revoke those orders in view of Sec. 21 of the General Clauses Act read with Sec.11 of the COFEPOSA Act or similar such provision we find in Act 46 of 1988. Learned Judges took note of the decision of a two judges Bench in Sat Pal v. State of Punjab, A.I.R. 1981 S.C. 2230:1981 Crl.L.J. 1867. 28. It is of course unfortunate, that the decision of the Supreme Court in State of Maharashtra v. Sushila Mafatlal Shah, A.I.R. 1988 S.C. 2090, was not brought to the notice of the Bench which rendered its decision in Amirsnad Khan v. Hminglian, A.I.R. 1991 S.C. 1983. There cannot be any difference of opinion, that in Amir Shad Khan’s case, A.I.R. 1991 S.C. 1983, the Supreme Court was considering the core of the rights of the detenu and in that light noticed the effect of non-taking of copies of the representation to be forwarded by the detaining authority to the Central Government and the State Government, on the basis of the request made by the detenu. Thus the scope, extent and content of power under Sec.11 of the COFEPOSA Art (in pari materia with Sec.12 of Act 46 of 1988) had been gone into in extenso in Amir Shad Khan’s case, A.I.R. 1991 S.C. 1983. In other words, basic issues arising in disposing of representations by the concerned authorities have been gone into a very great detail in Amir Shad Khan’s case, A.I.R 1991 S.C. 1983. Merely because a question in the form of an issue has not been raised and answered, it will be idle to contend, that substances of the issues involved, has not been the subject matter, of the decision rendered by the Supreme Court in Amir Shad Khan’s case, A.I.R. 1991 S.C. 1983. In the 12 paragraph judgement of the learned Judges, including the separate judgement of Punchhi, J. we are able to see reference to Art.22(5) of the Constitution and reference to Sec.11 of the COFEPOSA Act and Sec.21 of the General Clauses Act in one form or the other, in a majority of paragraphs. In spite of it, if the state has chosen to contend, that in Amir Shad Khan’s case,A.I.R. 1991 S.C. 1983, the question raised in the present habeas corpus petition was not in issue before the Supreme Court, it has to be rejected for it is apparent that ignoring the substances, the State is chasing the shadow. Decision in Smt.Gracy v. State of Kerala, A.I.R. 1991 S.C. 1090: (1991)1 J.T. 371 : (1991)2S.C.C. 1: (1991)1 S.C.R. 421 , relates to a case arising put of a preventive detention, under Act 46 of 1988, such an order of detention having been passed by the Central Government. It was observed therein as follows: “It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Art.22(5) of its consideration by the detaining authority, independent of the opinion, of the Advisory Board, in addition to its consideration by the Advisory Board, while giving its opinion. In other words, one representation of the detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board”. In other words, one representation of the detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board”. In answer to a question whether one of the requirement of consideration by Government was with when the detenu representation instead of being addressed to the Government or also to the Government was addressed only to the Advisory Board and submitted to the Court said that it found it difficult to uphold such a contention which would reduce the duty of the detaining authority from one of substance to mere form. This judgement referred to in Amir Shad Khan’s case, A.I.R. 1991 S.C. 1983, has been stated by us only to the limited extent, of the duty cast on the detaining authority whomsoever it may be, to consider and dispose of the representation addressed to that authority. Since the order of detention was by the Central Government itself, only two authorities had the power to consider the representation and they were the Central Government and the Advisory Board. In the instant case, four authorities, enter into the area, they being the detaining authority, the State Government, the Central Government and the Advisory Board. 29. Again the observations, of a five Judges Bench, of the Supreme Court, in K.M. Abdulla Kunhi and B.L.Abdul Khader v. Union of India, A.I.R. 1991 S.C. 574:1991 Crl.L.J. 790: (1991)1 J.T. 216 : (1991)1 S.C.C. 476 : (1991)1 S.C.R. 102 , will be relevant. This decision directly answers the contention of the learned Additional Public Prosecutor, as to the logic of a detaining authority, allowing the detenu’s plea for revocation, after the confirmation of the order of detention. The Supreme Court stated thus: "It may be borne in mind that the confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation. Secondly, there may be cases where the Government has to consider the representation only after confirmation of detention. Clause (5) of Art.22 suggests that the representation could be received even after confirmation of the order of detention. Secondly, there may be cases where the Government has to consider the representation only after confirmation of detention. Clause (5) of Art.22 suggests that the representation could be received even after confirmation of the order of detention. The words shall afford him the earliest opportunity of making a representation against the order in Clause (5) of Art.22 suggest that the obligation of the Government is to offer thedetenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under Sec.8 of the Act. But if the detenu does not exercise his right to make representation at that stage, but presents it to the Government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statute. The confirmation of the order of detention is not conclusive as against the detenu. It can be revoked suo mow. under Sec.11 or upon a representation of the detenu. It seems to us therefore, that so long as the representation is independently considered by the Government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention. The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention". Sheet-anchor for the contentions of the learned Additional Public Prosecutor is traceable to the law laid down by a Division Bench of the Bombay High Court in Hiralal Ganeshmal Jain v. The State of Maharashtra, 1993 Crl.L.J. 1209, Bombay High Court took the view that the order of detention under Sec.3(1) of the COFEPOSA Act, by an officer specially empowered could not be set aside, on the ground, that the detenu was not informed of his right to make a representation to the officer specially empowered by the State Government. Further though a detenu makes, a representation to the officer specially empowered and the same is not being considered by him, the detenu cannot contend that the detention order is vitiated for non-consideration of his representation by the empowered officer. Further though a detenu makes, a representation to the officer specially empowered and the same is not being considered by him, the detenu cannot contend that the detention order is vitiated for non-consideration of his representation by the empowered officer. Bombay High Court was fully aware of both the judgment of the Supreme Court, on this question, rendered in State of Maharashtra v. Sushila Mafatlal Shah, A.I.R. 1988 S.C. 2090, and Amir Shad Khan’s case. A.I.R. 1991 S.C. 1983, Bombay High Court chose to follow the decision of the Supreme Court in State of Maharashtra v. Sushila Mafatlal Shah, A.I.R. 1988S.C. 2090, holding that when there was a direct decision of the Supreme Court, on the point at issue, as against two decisions of the Supreme Court, where observations. It further stated that either the size of the bench of the Supreme Court or the date when the judgment were delivered became irrelevant in that context. While considering precedential value of obiter dicta of Supreme Court, the following observations were made by the Bombay High Court: "In fact, whether the observations of the Supreme Court in Ibrahim Bachu Bafan case, A.I.R. 1985 S.C. 697 and in Amirshad Khan case, A.I.R. 1991 S.C. 1983, have the status even of obiter dicta is a matter of some doubt. In the case of Mohandas Issardas v. A.N. Sattanatham, (1956) 56 Bom.L.R. 1156: 1955 Crl.L.J. 423, a Division Bench of this High Court presided over by Chagla, C.J., has discussed the question as to what is an obiter dictum. The court said that an obiter dictum is an expression of opinion on a point which is not necessary for the decision of a case, but the point in question must arise for determination in that case, although it may not, in fact, be necessary to decide it. It further said (page 1161) at A.I.R. 1955 Bom. 116: ...It is not merely an expression of opinion unconnected with the point that arises, but it must be an opinion giveon a point which arises for determination...” It is only in these circumstances that an obiter dictum of the Supreme Court would be binding on the High Court, the court further said (page 1163) at A.I.R. 1955 Bom. 116: ...It is not merely an expression of opinion unconnected with the point that arises, but it must be an opinion giveon a point which arises for determination...” It is only in these circumstances that an obiter dictum of the Supreme Court would be binding on the High Court, the court further said (page 1163) at A.I.R. 1955 Bom. 117: “...The only opinion (of the “Supreme Court”) which would be binding would be an opinion expressed on a question that arose for the determination of the Supreme Court, and even though ultimately it might be found that the particular question was not necessary for the decision of the case, even so, If an opinion was expressed by the Supreme Court on the question, that the opinion would be binding upon us....” Without going further into this question even if we assume that the observations of the Supreme Court in Ibrahim Bachu Bafan case, A.I.R. 1985 S.C. 697 and Anurshad Khan case, A.I.R. 1991 S.C. 1983, are in nature of obiter dictum and would be ordinarily binding upon us, in the present case, in view of a direct authority of the Supreme Court on the point at issue, which holds contrary to what the obiter dicta an over-rinding effect over the direct findings of the Supreme Court itself. The Bombay High Court has referred to similar conclusion arrived at by a Full Bench of Delhi High Court in Mohammed Saleem v. Union of India, A.I.R. 1989 Delhi 340. The Delhi High Court had to consider the question whether a specially empowered officer under Sec.3(1) of the COFEPOSA Act, had the power to revoke or rescind the order of detention, the answer was that, the specially empowered officer was not obliged to decide the representation of the detenu. The Delhi High Court held that Sec.21 of the General Clauses Act did not “preserve” the powers of an officer specially empowered under Sec.3(1) of the COFEPOSA Act to revoke the order of detention made by him. the Judgement of the Delhi High Court was delivered before the judgement of the Supreme Court in Amir Shad Khan’s case, A.I.R. 1991 S.C. 1983. Further the Delhi High Court took note of the decisions of the Supreme Court in Ibrahim Bachu Bafan case, A.I.R. 1985 S.C. 697 and in Sushila Mafatlal’s case, A.I.R. 1988 S.C. 2090. the Judgement of the Delhi High Court was delivered before the judgement of the Supreme Court in Amir Shad Khan’s case, A.I.R. 1991 S.C. 1983. Further the Delhi High Court took note of the decisions of the Supreme Court in Ibrahim Bachu Bafan case, A.I.R. 1985 S.C. 697 and in Sushila Mafatlal’s case, A.I.R. 1988 S.C. 2090. The process of the reasoning of the Bombay High Court is as follows: ”There are four authorities specified in Sec.3(1), who can issue an order of detention: (1) the Central Government, (2) the State Government, (3) an officer specially empowered by the Central Government, (4) an officer specially empowered by the State Government. The provisions in Secs.3(2), 5, 8(b), 8(f), 9,10 spell out a clear scheme, under which, once the “order of detention is made, the subsequent powers are to be exercised by the appropriate government, the only exception being in the caseofSec.9 (1), where, apart from the Central Government, even an officer specially empowered by the Central Government, can issue a declaration under Sec.9(1). But, this power to issue a declaration is akin to the power to issue the order of detention. These sections, therefore, clearly indicate that it is the appropriate Government which has to deal with the detention orders after the orders have been made. ........... It is evident from the reading of Secs.11,12 and 12(1 A) that the provisions therein relating to revocation of detention orders and temporary release of persons detained, empower the state and the Central Government to issue such orders Sec.11(1) refers to Sec.21 of the General Clauses Act, but it is a rule of construction and its application depends on the relevant provisions of the”statute in question. The scheme of the COFEPOSA Act does not envisage that the officer who has been empowered to issue the order of detention plays any further role thereafter. He cannot for instance, make a reference to the Advisory Board. He can neither confirm nor revoke the detention order as per the opinion of the Advisory Board. He cannot regulate the place or conditions of detention Sec.10 which preserves the power of the appropriate Government to revoke detention orders, makes no reference to any power of the empowered officer to revoke detention orders. Theexpress power of revocation under Sec.11(1) is also conferred only on the State Government and the Central Government as set out in that section. ........ Theexpress power of revocation under Sec.11(1) is also conferred only on the State Government and the Central Government as set out in that section. ........ Even though the order of detention may be passed by an officer specially empowered, the orderof detention, is, in effect, the order of the State Government or the Central Government, ask the case may be, and. therefore, the detenu does not have any right under Art.22(5) of the Constitution to make a representation to the officer specially empowered. The representation is for the purpose of securing the release of the detenu and hence it can effectively be made only to the authority or the authorities which have the power to revoke the order of detention. There is no special advantage to the detenu in having his representation dealt with by the same individual who had made the order of detention; on the contrary; it may, perhaps, be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages. ............. Sec.3 of the COFEPOSA Act merely authorises the State Government or the Central Government to empower an officer not below the ranks set out in that section to issue orders of detention. It is only after such conferment by the State Government that the officer acquires the power to issue an order of detention, Hence, the power of such an officer to issue a detention order does not flow directly from the COFEPOSA Act coupled with empowerment by the State Government or the Central Government. Hence Sec.21 of the General Clauses Act, which, in terms, applies only to a power, which is conferred by the Central Act itself or a regulation, would not apply to an order passed by an officer specially empowered. A resolution of the State Government or the Central Government empowering an officer under Sec.3(1) of the COFEPOSA Act to issue an order of detention does not fall within the definition of ‘Regulation’ under Sec.2 (5) of the General Clauses Act." 29-A. We are of the opinion that the power to pass an order of detention by the officer empowered is vested under Sec.3(1) of the Act. The power to order detention by a particular class of officers in the main, is traceable to Sec.3(1) of the Act, while empowerment by that Government, that is State or Central Government, is only subsidiary for the exercise of power. It cannot be held, that the power to pass orders of detention by the officers specially empowered does not flow from the Central Act. Even in the case of officers under the other preventive detention law, other than COFEPOSA Act, Supreme Court in Navalshankar Ishwarlal Dave v. State of Gujarat, (1993) 3 J.T. 421 , stated that the authority passing an order of detention under Gujarat PASA Act whose order has to be confirmed for its validity within 12 days, during which period,a power or revocation is traceable to Sec.21 of the General Clauses Act. As we have stated earlier, it is possible to envisage, limited delegation by the State Government, in the event of such material being available for court’s scrutiny. But it cannot be presumed, that the detaining authority when he is an empowered officer, ceases to be such an authority, soon after the order of detention is passed, inspite of the power to pass such an order of detention is traceable to the provisions of a Central Act and the empowerment by the appropriate Government is only a corollary necessary thereto. 30. It will be better to repeat in this context that Sec.9(f) of the Act satisfies the requirement of Art.22(4) of the Constitution, whereas Sec.12 of the Act satisfies the requirement of latter part of Arl.22(5) of the Constitution. Again to repat, if Sec.12 of the Act has to be read divorced from Sec.21 of the General Clauses Act, State Government will not have powers, to revoke an order of detention passed by itself. It happens that in K.M.Abdulla Kunhi’s case, A.I.R. 1991 S.C.574: 1991 Crl.L.J. 790: (1991)1 J.T. 216 : (1991)1 S.C.C. 476 : (1991)1 S.C.R. 102 , the detaining authority was the State Government, but what is important is the principle underlying it, that consideration of representation subsequent to the confirmation of detention, would not invalidate confirmation. In H.G. Jain’s case, 1993 Crl.L.J. 1209, the Bombay High Court has referred to the decisions of the Supreme Court in State of Bihar v. D.N. Ganguly, A.I.R. 1958 S.C. 1018 and Gopichand v, Delhi Administration, A.I.R.1959 S.C. 609 to. In H.G. Jain’s case, 1993 Crl.L.J. 1209, the Bombay High Court has referred to the decisions of the Supreme Court in State of Bihar v. D.N. Ganguly, A.I.R. 1958 S.C. 1018 and Gopichand v, Delhi Administration, A.I.R.1959 S.C. 609 to. conclude that Sec.21 of the General Clauses Act, however, was a rule of construction and its application depend on the relevant statute in question. In State of Bihar v. D.N.Ganguly, A.I.R. 1958 S.C. 1018, it was noticed that Sec.10(1) of the Industrial Disputes Act, 1947 did not expressly confer any power on the appropriate Government to cancel or supersede the reference made under that section. It was further held; that such power cannot he claimed by implication on the strength of Sec.21 of the General Clauses Act. The Rule of construction enunciated by Sec.21 of the General Clauses Act, insofar as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of the provisions of Sec.10(1) of the Industrial Disputes Act. Taking note of the scheme of the relevant provisions, it prima facie seemed to be inconsistent with any power in the appropriate Government to cancel the reference made under Sec.10(1) of the Industrial Disputes Act. The following observations of the Supreme Court will be relevant in this context: “In dealing with this question it is important to bear in mind that”power to cancel its order made under Sec.10(1) which the appellant claims, is an absolute power; it is not as if the power to cancel implies the obligation to make another reference in respect of the dispute in question;it is not as if the exercise of the power is subject to the condition that reasons for cancellation of the order should be set out. If the power claimed by the appellant is conceded to the appropriate Government, it would be open to the appropriate Government to , terminate the proceedings before the tribunal at any stage and not to refer the industrial dispute to any other industrial tribunal at all. The discretion given to the appropriate Government under SeclO(1) in the matter of referring industrial dispute to industrial tribunals is very wide; but it seems the power to cancel which is claimed is wider still and it is claimed by implication on the strength of Sec.21 of the General Clauses Act. The discretion given to the appropriate Government under SeclO(1) in the matter of referring industrial dispute to industrial tribunals is very wide; but it seems the power to cancel which is claimed is wider still and it is claimed by implication on the strength of Sec.21 of the General Clauses Act. We have no hesitation in holding, that the rule of construction enunciated by Sec.21 of the General Clauses Act, insofar as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of provisions of Sec.10(1)of the Industrial Disputes Act.“ Obviously application of the provisions of Sec.21 of the General Clauses Act will depend upon the relevant provisions of the statute in question. 31. In Gopichand’s case, A.I.R. 1959 S.C.609, it was held by the Supreme Court that Sec.19 of the Punjab General Clauses Act like See.21 of the General Clauses Act, embodied a .rule of cons-truction, the nature and extent of the application of which, must inevitably be governed by the relevant provisions of the Statute, which confers the power to issue the notification. The power to cancel the notification can be easily conceded to the competent authority and so also the power to modify of vary it, be. likewise conceded; but the said power must inevitably be exercised, within the limits prescribed by the provisions conferring the said power. How Sec.2o empowers the Provincial Government to declare the whole or any part of the province to be dangerously disturbed area; and if a notification is issued in respect of the whole or any part of the province it may be either cancelled wholly or may be modified restricting the declaration to a specified part of the province. The power to cancel or modify must be exercised in reference to the areas of the Province which it is competent for the Provincial Government to specify as dangerously disturbed. The power to modify cannot obviously include the power to treat the same area as dangerously disturbed for persons accused of crimes committed in the past and not disturbed for other accused of the same of similar offences committed later. That clearly is a legislative function which is wholly outside the authority conferred on the delegate by Sec.20 or Sec.36(1). The Supreme Court was considering the virus of Sec.36(1) of the East Punjab Safety Act. That clearly is a legislative function which is wholly outside the authority conferred on the delegate by Sec.20 or Sec.36(1). The Supreme Court was considering the virus of Sec.36(1) of the East Punjab Safety Act. It will be relevant in this context to extract the observations of the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat, A.I.R. 1985 S.C. 697. They read as hereunder: ”The words “without prejudice to the provisions of Sec.21 of the General Clauses Act, 1897” used in Sec.11(1) of the Act (COFEPOSA) give expression to the legislative intention that without affecting that right which the authority making the order enjoys under Sec.21 of the General Clauses Act, an order of detention is also available to be revoked or modified by authorities named in Clauses (a) and (b) of Sec11(1) of the Act, Power conferred under Clauses (a) and (b) of Sec.11(1) of the Act could not be exercised by the named authorities under Sec.21 of the General Clauses Act as these authorities on whom such power has been conferred under the Act are different from those who made the orders." The applicability of Sec. 21 of General Clauses Act, has already been considered in extenso in Amirshad Khan’s case, 1991 Crl.L.J. 2713: A.I.R. 1991 S.C. 1983 and in State of Maharashtra v. Sushila Mafatlal Saheb,A.I.R. 1988 S.C. 2090. 32. A Division Bench of this Court to which one of us (T.S.Arunachalam, J.), was a party, in W.P.No.8073 of 1993, by its order dated 12. 1991 stated as follows: "As laid down in Amirshad Khan’s case, 1991 Crl.L.J. 2713 and Ibrahim Bachu Bafan v. State of Gujarat, A.I.R. 1985 S.C. 697, the officer who had passed the, order of detention, has power to rescind or revoke it and which power has nexus to Art.22(5) of the Constitution of India, non-consideration by him of the plea for revocation made by the detenu, would be sufficient to entitle the detenu to the relief sought for in the writ petition. Keeping in view the law laid down by the Supreme Court, on binding nature of precedents as well as on the peculiar facts of this case, we have no hesitation in holding that the continued detention of the petitioner would violate the mandate of Art.22(5) of the Constitution." In that case the very question posed in this habeas corpus petition, was the point in issue. Another Division Bench of this Court in Ravi v. State of Tamil Nadu, 1993Crl.L.J. 2326 has agreed with the view expressed by the other Division Bench of this Court in W.P.No.8073 of 1991. On the basis of the principles enunciated in Amirshad Khan’s case, 1991 Crl.L.J. 2713, the question posed for consideration by Second Division Bench was, whether the consideration of the representation by detaining authority (who was the empowered officer of the State Government) and his rejection were not valid and proper as he was not empowered to do so and hence continued detention had become invalid. Division Bench observed "that the third contention that the detaining authority himself has disposed of the representation without forward-ing the same to the State Government was also not tenable in view of the decision rendered by the Apex Court in Amirshad Khan v. Hminglian, 1991 Crl.L.J. 2713: A.I.R. 1991 S.C. 1983 and Ibrahim Bachu Bafan v. State of Gujarat, A.I.R. 1985 S.C. 697. It may also be noted that in a decision of this Court in M.Arumugham v. The Joint Secretary to the Government of India, Ministry of Finance, Department of Revenu, New Delhi, W.P.No. 8073 of 1991 dated 12. 1991, this Court had laid down the "same" principle." 33. Another. Division Bench of this Court in W.P.No.15450 of 1991 by its order dated 21.44992 while considering the very question involved in this habeas corpus petition held that they had not hesitation in holding that the failure to consider the representation of the detenu by the detaining authority (who was empowered officer of the Central Government) and the disposal of the same by the Central Government resulted in the non-obser-vance of constitutional safeguard under Art.22(5) of the Constitution of India and continued the detention of the petitioner violated the mandate of Art.22(5) of the Constitution. 34. In Lachmi Narain v. Union of India, A.I.R. 1976 S.C. 714,while considering Sec.21 of the General Clauses Act and Sec.6(2) of Bengal Finance (Sales Tax) Act, 1941, it was observed as here under: "Nor could the respondents derive any authority or validity from Sec. 21 of the General Clauses Act, for the notifications withdrawing the exemptions. The source from which the power to amend the second schedule, comes in Sec.6(2) of the Bengal Act and not Sec.21 of the General Clauses Act. Sec.21 as pointed out by this Court in Gopichand v. Delhi Administra-. The source from which the power to amend the second schedule, comes in Sec.6(2) of the Bengal Act and not Sec.21 of the General Clauses Act. Sec.21 as pointed out by this Court in Gopichand v. Delhi Administra-. tion, AI.R.1959 S.C. 609: (1959)2 S.C.R. (Supp.) 87f embodies only a rule of construction and the nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification. The power, therefore, had to be exercised within the limits . circumscribed by Sec.6(2) and for the purpose for which it was conferred." 35. In view of the arguement advanced by the learned Additional Public Prosecutor that in the decision of the Supreme Court, in Amir Shad Khan’s case, A.I.R. 1991 S.C. 1983, the question posed in this habeas corpus was not in issue, we are bound to swiftly look into the case law regarding precedents, dicta and obiter dicta. Ramachandra Aiyar J, speaking on behalf of the Full Bench in M. Shaikh Dawood v. Collector of Central Excise, Madras, A.I.R.1961 Mad 1 stated as follows: "A precedent is a judicial decision which contains in itself, a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. The only judicial principles which are authoritative are those which are thus relevant in their subject matter and limited in their scope. All others, at the best, are of merely persuasive efficacy. They are not true ratio decidendi, and are distinguished from them under the name of dicta or obiter dicta, things said by the way. The prerogative of judges is not to make law by formulating and declaring it this pertains to the legislature but to make law by applying it. Judicial declaration, unaccompanied by judicial application, is not of binding authority. ........ Obiter dicta though they may have great weight as such, are not conclusive authority. Obiter dicta in this context mean what the words literallysignify-namely,statements by the way. If a Judge thinks it desirable to give his opinion on some point which not necessary for the decision of the case that has not the binding weight of the decision of the case and the reasons for the decision." 36. Obiter dicta in this context mean what the words literallysignify-namely,statements by the way. If a Judge thinks it desirable to give his opinion on some point which not necessary for the decision of the case that has not the binding weight of the decision of the case and the reasons for the decision." 36. Again a Full Bench of this Court in Philip Jayasingh v. The Joint Registrar of Cooperative Societies, (1992) 1 L.W. 216 , after referring to the observations of the earlier Full Bench in 73 L.W. 491 (F.B.), on precedents, stated that the binding effect of a prior decision does not depend upon whether a particular arguement was considered therein or not, provided that the point with reference to which an arguement was subsequently advanced, was actually decided. The decision of the Supreme Court is binding on the High Court and the latter cannot ignore it on the ground that some relevant provisions of law were not brought to the notice of the Supreme Court or some aspects of the matter in question were not considered by the Supreme Court. Srinivasan, J. has referred to Halsbury’s Laws of England, which sets out only three exceptions to the rule of precedents and the following passage found in paragraph 578, Volume 26, Fourth Edition: "There are, however, three, and only three, exceptions to this rule; thus: (1) the Court of Appeal is entitled and bound to decide which of two conflicting decisions of its own ii will follow; (2) it is bound to refuse to follow a decision of its own which, although -not expressly overruled, cannot, in its opinion, stand, and (3) the Court of Appeal is not bound to follow a decision of its own if given perincuriam." That the courts in this country have followed the same principles and recognised the same three exceptions to the rule of precedent is clear from the following decisions. Jaisri Sahu v. Rajdewan Dubey, A.I.R. 1962 S.C. 83, Ramashrey Roy v. Pashupati Kumar Pathak, A.I.R. 1968 Pat. 1, Yeshbai v. Ganpat Irappa Jangam, A.I.R. 1976 Bom. 20: 76 Bom.L.R. 278, Panjumal Hassotal Advani v. Harpal Singh Abashi Singh Sanhney, A.I.R. 1975 Bom. 120: 76 Bom.L.R. 729: 1975 Mah.L.J. 29, Mamleshwar v. Kanahaiya Lal, A.I.R. 1975 S.C. 907, Rama Rao v. Shantibai, A.I.R. 1977 M.P. 222, Sitaram Hari Salunkhe v. Laxman Rambodh Dubey, A.I.R. 1980 Bom. 1, Yeshbai v. Ganpat Irappa Jangam, A.I.R. 1976 Bom. 20: 76 Bom.L.R. 278, Panjumal Hassotal Advani v. Harpal Singh Abashi Singh Sanhney, A.I.R. 1975 Bom. 120: 76 Bom.L.R. 729: 1975 Mah.L.J. 29, Mamleshwar v. Kanahaiya Lal, A.I.R. 1975 S.C. 907, Rama Rao v. Shantibai, A.I.R. 1977 M.P. 222, Sitaram Hari Salunkhe v. Laxman Rambodh Dubey, A.I.R. 1980 Bom. 55, Thuraka Onnuramma v. Tahsildar, Kadiri, A.I.R. 1980 A.P. 267,Pritam Kaur v. Surjit Singh, A.I.R. 1984 P. & H. 113, Syed Mohideen v. Government of Tamil Nadu, A.I.R. 1986 Mad. 188, A.R.Antulay v. R.S. Nayak, A.I.R. 1988 S.C. 1531: (1988) 2 J.T. 325 : (1988) 2 S.C.C. 602 : 1988 S.C.C. (Crl.) 372, Municipal Corporation of Delhi v. Oomam Kaur, (1989) 1 S.C.C. 101 , Punjab Land Development and Reclaim Corporation Limited v. Presiding Officer, Labour Court, Chandigarh, (1990)2 L.L.J. 70 , Krishnakumar v. Union of India, (1990)4 S.C.C. 207 , State of U.P. v. Synthetics and Chemicals Ltd., (1991)4 S.C.C. 139 . 37. In Raval & Company v. K.G. Ramachandran, A.I.R. 1974 S.C. 818: (1974) 1 S.C.C. 424 on precedents, Supreme Court observed as here under: "But we must point out that the general observations therein should be confined to the facts of those cases. Any general observation cannot apply in interpreting the provisions of an act unless this Court has applied its mind to and analysed the provisions of the particular Act." 38. A Full Bench of the Calcutta High Court in Ratanlal Bansilal v. Kishorilal Goenka, A.I.R. 1993 Cal. 144, stated thus: "Therefore, where a declaration of law, though not directly arising from the issue before the court, has application in the ratio, such declaration cannot be said to be an obiter..... ....There are various tests to find out whether a particular observation of the court is part of the ratio or its obiter. The first test is whether that part of the decision results from the determination of a live issue, raised between the parties. A judge may let fall various observations not precisely relevant to the issue before him. A hypothetical situation may be taken for illustration and he may hypothetically apply a law. Such illustration not being the issue it would not be proper to accord the observation equal weight with that is given to his actual decision. A judge may let fall various observations not precisely relevant to the issue before him. A hypothetical situation may be taken for illustration and he may hypothetically apply a law. Such illustration not being the issue it would not be proper to accord the observation equal weight with that is given to his actual decision. In Mahindra and Mahindra, A.I.R. 1979 S.C. 789, what happened is that having decided the case on the unamended Sec.100 of the Code, which was the live issue, the Supreme Court felt it unnecessary to pronounce on the question of applicability of the amended Sec. 100 of the Code but it was nevertheless tempted academically to indicate how it would have decided if that were necessary. Such observation cannot be endowed with the authority of an actual decision. It may have importance or persuasive value but not the authoritative value." 39. A Full Bench of the Karnataka High Court in Govindanaik G. Kalaghatigi v. West Patent Press Company Ltd., A.I.R. 1980 Karn. 92, held that if two decisions of the Supreme Court on a question of law cannot be reconciled and one of them is by a larger Bench while the other is by a similar Bench, the decision of the larger Bench, whether it is earlier or later in point of time, should be followed by High Courts and other courts. 40. In Union of India v. K.S. Subramanian, A.I.R. 1976 S.C. 2433: (1977) 1 S.C.R. 87 : (1977) 1 Lab.L.J. 5: (1977)1 Lab.L.N. 213, Supreme Court stated, that the proper course for a High Court is to try to find out and follow the opinions expressed by a larger benches of the Supreme Court in preference to those expressed by smaller benches of the court. That is the practice followed by the Supreme Court itself. The practice has now crysta-lized into a rule of law declared by the Supreme Court. If, however, the High Courtis of opinion that the views expressed by larger benches of the Supreme Court are not applicable to the facts of the case, it should say so giving reasons supporting its point of view. Agaom,it can be stated, that even if there is no list, still the Supreme Court can lay down law. If, however, the High Courtis of opinion that the views expressed by larger benches of the Supreme Court are not applicable to the facts of the case, it should say so giving reasons supporting its point of view. Agaom,it can be stated, that even if there is no list, still the Supreme Court can lay down law. In Francis Coralie v. Union Territory of Delhi, A.I.R. 1981 S.C. 746: 1981 M.L.J. (Crl.) 331: (1981) 2 S.C.J. 18: 1981 Crl.L.J. 305: (1981) 1 S.C.C. 608 : 1981 S.C.C. (Crl.) 212: (1981)2 S.C.R. 516 , though the Delhi Administration was prepared to offer two concessions at the hearing of the petition, it was observed by the Supreme Court as follows: "Though those two concessions were made on behalf of the respondents at the hearing of the petition before us, the question still remains whether sub-clauses (i) and (ii) of Clause 3(b) are valid and it is necessary that we should examine this question in the context of our constitutional values, since there are a large number of detenus under the COFEPOSA Act and the conditions of their detention in regard to interviews must be finally settled by this Court. 41. Again in Maneka Gandhi v. Union of India, A.I.R. 1978S.C. 597, after nothing the contentions of Attorney General on behalf of the Government extracted in paragraph 4 of its judgement, the Supreme Court nonetheless discussed the question of natural justice fully. Ultimately, the Supreme Court stated "that having regard to the majority view and in view of the statement made by the learned Attorney General to which reference had already been made in judgement, we do not think it necessary to formally interfere with the impugned order. We accordingly dispose of the writ petition without passing any formal order". 42. Again in Navujoti Co-operative Group Housing Society v. Union of India, A.I.R. 1993 S.C. 155, Supreme Court has discussed at length the concept of "legitimate expectation though the impugned order itself had since been withdrawn. 43. In Mis. Good Year India Ltd v. State of Haryana, A.I.R. 1990 S.C. 781, on precedents, Supreme Court observed as follows: "It is well settled that a precedent is an authority only for what it actually decides and not for what may remotely or even logivally follows from it." 44. 43. In Mis. Good Year India Ltd v. State of Haryana, A.I.R. 1990 S.C. 781, on precedents, Supreme Court observed as follows: "It is well settled that a precedent is an authority only for what it actually decides and not for what may remotely or even logivally follows from it." 44. In M/s. Ranchoddas v. Union of India, A.I.R. 1961 S.C. 935, Supreme Court stated, that the fact is that the question was never required to be tested in any of these cases and could not, therefore, have been treated as decided by this Court. 45. Having noticed the law of precedents, by referring to a cross section of decided cases, it can easily be concluded, that in Amirshad Khan’s case, A.I.R. 1991 S.C. 1983, Supreme Court had applied its mind to section 11 of the COFEPOSA Act and Sec. 21 of the General Clauses Act and analysed the provisions of both the Acts before arriving at a conclusion, that the detenu had a right, of his representation being disposed of by the detaining authority, who has power of revocation, due to a combined reading of the Sec.11 of the COFEPOSA Act and Sec.21 of the General Clauses Act. Similarly in our opinion, the decision of the Supreme Court in Amirshad Khan’s case, A.I.R. 1991 S.C. 1983, contains a principle which thus forms“that authoritative element” which, as observed by S.Ramachandra Aiyar J in A.I.R. 1961 Mad. 1, is often termed the ratio decidendi. It will not be possible for us to hold, as sought to be submitted by the learned Additional Public Prosecutor, that the observations of the Supreme Court in Amir-shad Khan’s case, A.I.R. 1991 S.C.1983, were only casual observations and the consideration was indirect. As stated earlier, effect of the decision rendered by the Supreme Court in Amirshad Khan’s case,A.I.R 1991 S.C. 1983, was on the foundation of the right that the detenu had and the effects that would follow when that right mandated was sought to be denied. It was not a futile exercise that the Supreme Court had made while considering Sec.21 of the General Clauses Act in conjunction with Sec.11 of the COFEPOSA Act. 46. There is vital distinction between preventive detention and punitive detention. It was not a futile exercise that the Supreme Court had made while considering Sec.21 of the General Clauses Act in conjunction with Sec.11 of the COFEPOSA Act. 46. There is vital distinction between preventive detention and punitive detention. Punitive detention is intended to inflict punishment on a person who is found by the judicial process to have committed an offence while preventive detention is not by way of punishment at all, but it is intended to prevent a person from indulging in activities injuries to society. The power of preventive detention has been recognised as a necessary evil and it is tolerated in a free society in the larger interest of security of State and maintenance of public order. It is a drastic power to detain a person without trial. In that context if there are two views of the Supreme Court one conflicting with the other, we are of the view, that one in favour of the detenu will have to be applied by us. The observation of ours is of course, in addition to our already expressed opinion: In Amir Shad Khan’s case, A.I.R. 1991 S.C. 1983, the law enunciated is binding on us, since it was the outcome of a thorough thrashing put of the various provisions of COFEPOSA Act and General Clauses Act and also rendered by three Member Division Bench of the Supreme Court, while the decision of the Supreme Court in State of Maharashtra v. Sushila Mafatlal, A.I.R. 1988 S.C. 2090, was rendered by two Member division Bench. The later decision has also taken note of the power to revoke an order of detention passed by the State Government, traceable to the provisions of Sec.21 of the General Clauses Act, which power was prima facie absent in Sec.11 of the Act. The later decision has also taken note of the power to revoke an order of detention passed by the State Government, traceable to the provisions of Sec.21 of the General Clauses Act, which power was prima facie absent in Sec.11 of the Act. With due respect, we are unable to agree with the view expressed by a Division Bench of the Bombay High Court in Hiralal Ganesh and Jain v. The State of Maharashtra, 1993 Crl.L.J. 1209, that it was a matter of doubt, if the observations of the Supreme Court in Ibrahim Bachu Bafan’s case, A.I.R. 1985 S.C. 697 and in Amirshad Khan’s case, A.I.R 1991 S.C. 1983 (both rendered by a three Judges Bench) have the status even of obiter dicta and in any event even assuming that those observations would ordinarily be binding on them, they cannot have an overriding effect over the direct findings in Sushila Mafatlal Shah’s case, A.I.R. 1985 S.C. 697, (decision by a two Judges Bench) and that the numerical strength of the Bench of the Supreme Court in that context was irrelevant. We have already given out our reasons for our conclusions and our discussion will reveal, that except in two cases, the view in unison, of the Supreme Court, appears to be in consonance with the view expressed in Amir Shad Khan’s case, A.I.R. 1991 S.C. 1983. It will not be possible for us to either erase totally or shadow out the observations of the Supreme Court in Amir Shad Khan’s case, A.I.R. 1991 S.C. 1983, as not binding, though on a consideration of the relevant provisions of law in extenso connected with the liberty of a citizen, certain principles of importance have been enunciated. We are able to discern a clear solvage, in the law on precedents, as to when and when not the observations of the Supreme Court will be binding. 47. We do visualise, a probable incongruity, in the event of an empowered officer, choosing to revoke an order of detention passed by him, after a representation to the State or Central Government stood rejected and that too on the same grounds, for under Sec.12 of the Act read with section 21 of the General Clauses Act, such power of revocation can be exercised at any time. All the authorities including the Advisory Board, came into the picture due to the statute and execise independent statutory powers conferred on them respectively. We are now concerned with the liberty of a citizen and his mandated right. This anamoly, if it can be so termed, will have to be resolved by the Legislature or by the terms of delegation itself and not by courts. 48. On the basis of our reasoning aforestated, impugned order of detention will have to be necessarily set aside. The detenu is ordered to be set at liberty forthwith unless his detention is otherwise required. This habeas corpus petition is allowed.