9911796707
TMI Blog1988 (4) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... g smuggled goods. 2. This detention order was passed pursuant to an investigation into an incident dated 15th September, 1983 when two truck loads of contraband foreign goods were caught by the Customs authorities and on investigation some persons were found involved in the acts of smuggling, one of which is the detenu petitioner who immediately after the incident fled the country, and went abroad. The petitioner was, however, arrested pursuant to this detention order on 20th August, 1987 when he was taken into detention. The detention order actually was passed on completion of the investigation on 15th June, 1984. It appears that the State Government followed the procedure laid down by Section 7 of the COFEPOSA Act and the petitioner det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the detention order was also challenged in that writ petition, there is no finding in respect of the same. The preliminary objection, therefore, is over-ruled. 4. The next objection of the counsel for the respondents is that this court has no jurisdiction. This is so said on the ground that the detention order has been passed by the State of Kerala. Without wasting any further time reference may be made to Harish Taneja v. Union Of India and Others, 24 (1983) Delhi Law Times 276, a Division Bench judgment of this court, which I-am bound to follow. In this judgment the court held in respect of a detenu regarding whom detention order was passed in the State of Maharashtra that both Bombay as well as Delhi High Court have the jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , I may refer to its contents, and I quote, it states: Reference your representation dated 10th September, 1987, I am to invite your attention to the reference cited and to inform you that your request has been carefully considered by government but it is regretted that, the same has been rejected. 6. The aforesaid order clearly creates an impression on the mind that possibly the representation has not even been read by the detaining authority and it has been mechanically rejected treating it as a representation against the detention. I say so because had the detaining authority cared to read the representation the order rejecting the representation would definitely have said something about this important request of the detenu that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in arriving at his subjective satisfaction nor is it suggested that the detenu does understand a language other than Malayalam. In fact, there is no duty cast upon the detenu to demand documents from the detaining authority. These are to be supplied to him by the detaining authority even without asking for it. This is a constitutional obligation which the detaining authority has to discharge. In the present case, even after the detenu makes a grievance that large number of documents given to him are in the language which he does not understand, the detaining authority ignores the request and does not tell him anything about the documents but in three sentences rejects the application. This, apart from being non-consideration of the represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion held as under: We must make it clear that the law as laid down by this Court clearly indicates that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order. 8. In that view of the matter, therefore, I find no force in the lastcontention about no prejudice having been caused to the petitioner. In fact, I would like to go to the extent that the detaining authority is no judge of the fact as to whether prejudice has been caused to the detenu or not and the detenu can only say whether he was handicapped in making the proper representation or not. The det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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