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TMI Blog1981 (8) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... s that on 6th February 1981 the advocate of the detenu addressed a letter to the Superintendent, Bombay Central Prison where the detenu was then confined and alongwith this letter he forwarded nine copies of the representation which was to be submitted by the detenu to the Government of Maharashtra against the order of detention. This letter was delivered by the authorities in charge of the Bombay Central Prison to the detenu on 6th February 1981, but on the same day the detenu was shifted from the Bombay Central Prison to Nasik Road Central Prison and the nine copies of the representation were therefore carried by the detenu with him to the Nasik Road Central Prison and from there, the requisite number of copies of the representation duly signed by the detenu were forwarded to the Government of Maharashtra and the Chairman of the Advisory Board on 10th February 1981. This representation was however rejected by the Government of Maharashtra by its letter dated 25th February 1981. It appears that a copy of the representation was also sent by the detenu to the Central Government and by its letter dated 26th February 1981 the Central Government too rejected the representation. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also another related ground urged on behalf of the petitioner and it was that the Minister of State for Home affairs who considered the representation of the detenu was not competent to do so, both by reason of lack of authority as also in view of the fact that the case had already been dealt with by P. V. Nayak. We do not think there is any substance in either of these two grounds. If we look at the order of the detention, it is clear that it was not made by P. V. Nayak in his indi- vidual capacity as an officer of the State Government but it was made by him as representing the State Government. It was the State Government which made the order of detention acting through the instrumentality of P. V. Nayak, Secretary to Government who was authorised so to act for and on behalf of and in the name of the State Government under the Rules of Business. Rule 15 of the Rules of Business of the Government of Maharashtra provided that those Rules may "to such extent as necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister" and in exercise of the power conferred under this Rule, the Governor of Maharashtra issued Instructions for the mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he representation made by the detenu against the order of detention was also therefore required to be considered by the State Government and either it could be disposed of by P. V. Nayak acting for the State Government under the earlier Standing order dated 18th July 1980 or the Minister of State for Home could dispose it of under the later Standing order dated 18th July 1980. Whether P. V. Nayak considered the representation and disposed it of or the Minister of State for Home did so would be immaterial, since both had authority to act for the State Government and wherever be the instrumentality, whether P. V. Nayak or the Minister of State for Home, it would be the State Government which would be considering and dealing with the representation. The only requirement of Article 22 (5) is that the representation of the detenu must be considered by the detaining authority which in the present case is the State Government and this requirement was clearly satisfied because when the Minister of State for Home considered the representation and rejected it, he was acting for the State Government and the consideration and rejection of the representation was by the State Government. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention order by an order dated 23rd March 1981." lt was then contended by Mr. Jethmalani on behalf of the petitioner that under clause (b) of section 8 it as the obligation of the State Government to make a reference to the Advisory Board A within five weeks from the date of detention of the detenu and there was nothing to show that the State Government had made such a reference to the Advisory Board. This contention is also without substance and totally futile, because it is clear from the statement of C. V. Karnik in his affidavit that it was the State Government which referred the case of the detenu to the Advisory Board under clause (b) of section 8 and no material has been placed before us on behalf of the detenu controverting the correctness of this statement. Mr. Jethmalani also raised another contention in this connection and it was that, before making a reference to the Advisory Board, the State Government had not applied its mind to the question whether it was necessary to detain the detenu for a period longer than three months and this non application of mind vitiated the reference to the Advisory Board and the subsequent order of confirmation following upon it. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has not yet applied its mind and determined how long the detention shall be continued, the appropriate Government is bound within five weeks from the date of detention to make a reference to the Advisory Board and if it fails to do so, the continuance of the detention after the expiration of the period of five weeks would be rendered invalid. The Advisory Board is, in every such case where a reference is made, required to submit its report within eleven weeks from the date of detention and if it reports that there is in its opinion no sufficient cause for detention the detaining authority is bound to release the detenu forthwith, even though a period of three months may not have expired since the date of detention. This is a safeguard provided by the COFEPOSA Act, which is applicable in all cases of detention, whether the detention is to be continued beyond a period of three months or not and whether or not the detaining authority has applied its mind and determined, before making a reference to the Advisory Board, as to what shall be the period of detention. We are clearly of the view that it is not at all necessary for the detaining authority to apply its mind and consider at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the State authorities at this stage. Proceeding further we find that the representation sent by the detenu was received in the Home Department of the State Government on 13th February, 1981 and on the same day, a letter was addressed by the Home Department to the Collector of Customs calling for his remarks in regard to the various allegations contained in the representation and para-wise comments were received from the Customs Department on 21st February, 1981. Now, it cannot be said that the Government acted unreasonably in forwarding the representation of the detenu to the Collector of Customs and waiting for the para-wise comments of the Customs Authorities, since there were various allegations made in the representation which called for the comments of the Customs Department and without such comments, the State Government could not fairly and properly consider the representation of the detenu. It may be noted that the communication from the Home Department dated 13th February, 1981 could not have reached the Collector of Customs until 16th February, 1981 because 14th and 15th February were Saturday and Sunday and therefore closed holidays. The reply of the Customs Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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