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2016 (8) TMI 1559 - HC - Indian LawsRelease from preventive detention - breach of the constitutional guarantees - detention has not been served on the detenu - HELD THAT - Where declaration of law has been made by the Supreme Court of India it is the law of the land in terms of Article 141 of the Constitution of India. Therefore, the very many principles which apply on terms of the judgments of the Supreme Court are to govern the effectuation of the protective covenant available to the detenu under the preventive detention laws in terms of Sub-Article 5 of Article 22 of the Constitution of India. It is the law laid down by the Apex Court that representation received but not disposed before the case is referred to the COFEPOSA Advisory Board has necessarily to be placed before the Advisory Board and cannot be independently disposed of by the detaining authority during the pendency of the matter with the Advisory Board - the continued detention of the person covered by Ext. P1 order becomes impermissible on the basis of the provisions of the Constitution and the laws. Resultantly, Ext. P1 is hereby declared as null and void. Petition allowed.
Issues:
Writ petition seeking writ of habeas corpus in re K.N. Venugopal's detention based on Ext. P1 order of detention confirmed by Government as per Ext. P7 Government Order after COFEPOSA Advisory Board report. Analysis: 1. The writ petition involved a habeas corpus plea regarding K.N. Venugopal's detention based on Ext. P1 order, confirmed by the Government via Ext. P7 after COFEPOSA Advisory Board report. The detenu had been arrested on 09.11.2015 following the Ext. P1 order and admitted to Central Prison, Thiruvananthapuram on 10.11.2015. Ext. P2 grounds of detention were served on 11.11.2015. The detenu made representations to the State Government, Union of India, and COFEPOSA Advisory Board on 09.12.2015. 2. Ext. P1 was issued on 07.11.2015, and the COFEPOSA Advisory Board report was made on 19.01.2016, leading to the confirmation order on 23.01.2016 (Ext. P7). The detenu's representation (Ext. P3) was rejected by the State Government on 22.12.2015, after the case was referred to the Advisory Board but before the Board's opinion was given on 19.01.2016. 3. The detenu's counsel argued citing legal precedents that if a representation is received before referral to the Advisory Board and not disposed of, it must be forwarded to the Board. The State Attorney contended that Ext. P3 was not a valid representation under Article 22(5) of the Constitution. The Court found Ext. P3 to be a representation seeking release from detention due to not receiving the Malayalam version of the grounds of detention. 4. The State argued that rejection of Ext. P3 did not prejudice the detenu as subsequent decisions confirmed the detention. However, the Court held that the rejection violated established legal principles, including the detenu's right to make a representation before the Advisory Board's opinion. The continued detention under Ext. P1 was declared null and void, ordering the immediate release of the detenu. 5. The judgment emphasized the importance of following legal precedents and upholding the detenu's rights under Article 22(5) of the Constitution. The rejection of the representation during the pendency of the case before the Advisory Board was deemed impermissible, leading to the nullification of the detention order. The Court's decision was based on established legal principles and the detenu's constitutional rights.
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