9911796707
TMI Blog1981 (8) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... nd rejected by the Minister of State for Home on 23rd February, 1981 and necessary intimation to that effect was conveyed to the detenu by a letter dated 25th February 1981. It is impossible to hold in these circumstances that there was any unreasonable delay on the part of the State Government in considering the representation of the detenu . Petition dismissed. - W.P.(CRL.) 1892 OF 1981 - - - Dated:- 12-8-1981 - P.N. BHAGWATI AND V. BALAKRISHNA ERADI, JJ. JUDGMENT This is a petition for a writ of Habeas Corpus for securing the release of one Hasnain Mukhtar Hussain Lakdawala (hereinafter referred to as the detenu) who has been detained by the Government of Maharashtra under an order of detention dated 31st December 1980 made in exercise of the powers conferred under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the COFEPOSA. This order of detention though dated 31st December 1980 was served on the detenu on 17th January 1981 and alongwith the order of detention, a communication, also dated 31st December 1980, was served on the detenu containing the grounds of detention. The Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion given by the Advisory Board and confirming the order of the detention. The petitioner who is the wife of the detenu thereupon preferred the present writ petition challenging the order of detention made by the Government of Maharashtra as also the continuance of the detention under the subsequent order dated 23rd March 1981. There were several grounds urged on behalf of the petitioner in support of the petition and each one of them was seriously pressed before us by Mr. Jethmalani on behalf of the petitioner. The first ground was that the order of detention was made by one P. V. Nayak, Secretary to Government, Revenue and Forest Department and Ex-officio Secretary to Government, Home Department while the representation made by the detenu against the order of detention was considered and disposed of by the Minister of State for Home Affairs not by P. V. Nayak and hence there was no effective consideration of the representation of the detenu as required by law. The argument on behalf of the detenu was that the representation of a detenu must be considered by the same person who has passed the order of detention and since in the present case, the representation was cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 18th July 1980 directing that cases under sub-section (I) of section 3 of the COFEPOSA Act need not be submitted to him or to the Minister of State for the Home Department and that such cases may be allotted to and disposed of by any of the six officers mentioned there one of them being P. V. Nayak. On the same day, another Standing order was issued by Sh. A. R. Antulay Chief Minister of Maharashtra and Minister-in-charge of Home Department in pursuance of the provisions contained in Rule 6 of the Rules of Business, directing inter alia that all cases appertaining to the COFEPOSA Act and all other matters arising under the provisions of that Act may be allotted to the Minister of State for Home Affairs. This latter Standing order provided that nothing contained in it shall affect the directions contained in the earlier Standing order issued on the same day. It will therefore be seen that P. V. Nayak was authorised under the earlier Standing order dated 18th July 1980 to deal with and dispose of cases under sub-section (I) of section 3 of the COFEPOSA and it was in exercise of the authority thus conferred upon him that P. V. Nayak acting for the State Government made the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment as required by clause (f) of section 8 and hence the continuance of the detention was invalid. lt is really difficult to appreciate this contention urged on behalf of the petitioner. It is clear from the annexures to the writ petition that after receipt of the opinion of the Advisory Board that there was in its opinion sufficient cause for the detention of the detenu, the State Government in exercise of the powers conferred under clause (f) of section 8, made an order dated 23rd March 1981 confirming the detention order and continuing the detention of the detenu. This order was expressed to be made By order and in the name of the Governor of Maharashtra and was authenticated by the Under Secretary to the Government of Maharashtra Home Department. It recited in so many terms that it was the State Government which was confirming the order of detention and continuing the detention of the detenu and no material has been placed before us on behalf of the detenu to displace the correctness of this recital. There can therefore be no doubt that the ord r confirming the detention of the detenu was made by the State Government. Moreover, we have the statement on oath made by C. V. Kar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case of every detention the appropriate Government shall, within five weeks from the date of detention, make a reference to the Advisory Board and the Advisory Board is required to make a report as to whether or not there is sufficient cause for the detention of the detenu and submit the same to the appropriate Government within eleven weeks from the date of detention of the detenu. The period of eleven weeks from the date of detention is prescribed for the submission of the report obviously because under clause (4) of Article 22 no detention can lawfully continue for a period longer than three months unless the Advisory Board has reported before the expiration of the period of three months that there is in its opinion sufficient cause for such detention. But one thing is clear that this provision for reference to the Advisory Board is not confined to cases where the detaining authority has already come to a decision that the detention shall be continued for a period longer than three months. It applies equally where the detaining authority has not yet made up its mind as to how long the detention shall continue or even where the detention is to continue for a period of three mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. This contention is also without substance and must be rejected. It is no doubt true that the advocate of the detenu sent nine copies of the representation to the detenu on 6th February, 1981 and these nine copies came to be forwarded to various authorities only on 10th February, 1981 but the affidavit of B. B. Mulay, Jailer attached to the Bombay Central Prison, shows that these nine copies were handed over by B. B. Mulay to the detenu as soon as they were received by him from the emissary of the detenu's advocate and the detenu got B these documents on the same day, namely 6th February, 1981. B. B. Mulay asked the detenu to sign the representation and hand over the same for being forwarded to the State Government but the detenu stated that he would sign the representation only after going through it and he therefore carried the nine copies of the representation with him to the Nasik Central Jail where he was shifted in the evening of 6th February, 1981 and it was only on 10th February, 1981 that he signed all the nine copies of the representation and handed over the same to C. P. Gaekwad, Jailer, In-charge of the Nasik Central Prison and according to the affidavit of C. P ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
