AMIR SHAD KHAN AZIZ AHMEDKHAN @ AZIZ MOHD. KHAN versus L. HMINGLIANA AND ORS.

Citation: [1991] 3 S.C.R. 443 · Decided: 09-08-1991 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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AMIR SHAD KHAN AZIZ AHMEDKHAN @ AZIZ 
MOHD. KHAN 
v. 
L. HMINGLIANA AND ORS. 
AUGUST 9, 1991 
[A.M. AHMADI, V. RAMASW AMI AND M.M. PUNCHHI, JJ.] 
Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974--Sections 3, 8, 11 read with section 21, The General 
Clauses Act and Article 22, Constitution of India, 1950-Detention-
Ob/igations and duties of Detaining Authoriry-:.-Rejection of represen-
tation by State Government-Non-complying detenu's request to for-
ward representation, taking copy to Central Government-Whether 
illegal. 
A 
B 
c 
Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974--Section 11 read with Article 22, Constitution of 
D 
India, 1950-Whether confers any constitutional right. 
On March 25, 1990, the officers of the Directorate of Revenue 
Intelligence intercepted a motor car driven by the appellant No. 1 with 
the other appellant as bis companion and recovered 1400 gold bars_ 
The statements of the two appellants were recorded and they were 
formally arrested on March 28, 1990 and produced before the Chief 
Metropolitan Magistrate, who granted remand. 
While the matter was under investigation, a proposal was made to 
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the rrrst respondent-Secretaty (Preventive Detention), Government of 
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Maharashtra for invoking the powers conferred on him by Section 3 of 
the Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974. 
On the very next day after the receipt uf the proposal the first 
respondent passed the orders of detention against the two appellants 
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under sub-section (1) of section 3 of the Act. 
After these detention orders were passed on April 24, 1990 they 
were served on the appellants along with the grounds of detention and 
basic documents on which reliance was placed. The appellants were 
informed that they had a right to make a representation to (i) the State 
H 
443 
A 
B 
444 
SUPREME COURT REPORTS 
(1991) 3 S.C.R. 
Government; (ii) the Central Gov<ernment; and (iii) the Advisory Board 
against the detention order, if they so desired. They were informed that 
to facilitate expeditious consideration thereof, · the Superintendent of 
Jails may be requested to forward the same to the detaining authority. 
The appellants preferred a representation addressed to the Detaining 
Authority and forwarded it through the Superintendent of Jail. In the 
last paragraph of that representation a request was made that copies of 
the representation may be taken out and the same may be forwarded to 
the State Govt. and the Central Govt. 
The representation was co11Sidered and rejected by the State 
Government. It was, however, not forwarded to the Central Govern-
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ment and hence the Central Government had no occasion to consider 
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the representation of the appellanls for the revocation of the detention 
orders. 
As the detention orders were not revoked the appellants preferred 
separate habeas corpus writ petitions in the High Court which dismis-
D sed both the writ petitions, answering in negative on the question 
whether the detention orders were vitiated as the Detaining Authority 
as well as the State Government had failed to forward their representa-
tions to the Central Government for the reason that the detenus who 
had failed to follow the clear and specific Instructions given in the 
· grounds of detention regarding the manner and mode of address to 
E various authorities, could not be allowed to reap the benefit of their own 
default. 
This view of the High Court "as challenged before this Court by 
the appellants. 
F 
The State Government as well as the Central Government sup-
ported the view taken by the High Court contending that the appellants 
cannot make a grievance if they have despite a clear direction in the 
grounds of detention chosen to deviate therefrom. Once the procedure 
established by law is followed by the respondents the failure on the part 
of the Detaining Authority or the State Government to accede to the 
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request made by the appellants in the last paragraph of their representa-
tions to take out copies thereof and forward the same to the Central 
Government cannot vitiate the detention order. 
The Union of India contended that since no representation had 
reached the Central Government there was DO question or the Central 
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Govenment applying its mind thereto and taking a decision thereon. 
AMIR KHAN .._ HMINGLIANA 
445 
On the question whether failure on the part o
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