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TMI Blog2016 (8) TMI 1559X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - W.P. (Crl.) No. 138 of 201 - - - Dated:- 19-8-2016 - T.B. Radhakrishnan and Anu Sivaraman, JJ. For the Appellant: M. Ajay and V.P. Prasad, Advs. For the Respondent: M.S. Breeze, Senior Government Pleader and K.V. Sohan, State Attorney JUDGMENT T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portions of those representations that he is making those representations in English though he is not familiar with English language and having obtained aid and advice to draft and present those representations in English. 4. Following Ext. P1 detention order, the Government issued letter dated 03.12.2015 referring the case of the detenu to the COFEPOSA Advisory Board. The report of the Advisory Board was made on 19.01.2016 and it was thereafter that the confirmation order was issued on 23.01.2016 (Ext. P7). 5. Though the substantial contents of the statement of allegations elaborated in Ext. P2 were referred to by the learned counsel on both sides to buttress their respective arguments impeaching and in support of the preventive det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u is referred to the Board, the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings; and that, in both the situations, there is no question of consideration of representation before the receipt of the report of the Advisory Board. This is among the ratio decidendi of K.M. Abdulla Kunhi (supra), the substance of which has been followed in Golam Biswas (supra) which was a case where the representation pending before the Central Government was rejected during the pendency of proceedings before the Advisory Board. 8. The learned State Attorney argued that absolutely no case of prejudice has been made out by the rejection of Ext. P3 as per Ext. P6 on 22.12.2015 for reasons more than on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the case in hand is concerned, Ext. P3 is admittedly received by the State Government through the Superintendent of the Central Prison. That material was signed by the detenu and it was dated 09.12.2015. In Malayalam, the contents of that specifically state that it is illegal that the detenu has not been served the Malayalam version of the grounds of detention and that because the Malayalam version of the grounds of detention has not been served on the detenu, he is unable to respond to the grounds of detention which are attempted to be made out against him and therefore, he is deprived of properly responding to the grounds of detention. He accordingly concludes Ext. P3 by stating that he should be released from detention. 9. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng its contents in English. We think that this reason having been stated in Ext. P6, it by itself is insufficient to confirm the order of preventive detention by rejecting the representation. The fact of the matter remains that going by the records, the statements recorded under Section 108 of the Customs Act have also been retracted by the detenu. Those are matters which may go for attention in appropriate jurisdiction in accordance with law. It would be unwise for us to step into that arena and make any assessment, either way. 11. On the principle of prejudice, submissions have been made by the learned State Attorney that the detenu has not demonstrated that any prejudice has been caused by rejection of his representation by the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la Kunhi (supra) applies in favour of the detenu. Admittedly, the case relating to the detenu was pending with the Advisory Board on the date when Ext. P6 was issued. 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. We do not find our way but to apply the said ratio of Abdulla Kunhi (supra). With this, we see that the learned Central Government Counsel has made reference to the counter affidavit submitted by the Directorate stating clearly that the decision of the Un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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