Navungal Pathumma Vs. Union of India & Ors.
EmailAppeal: Criminal Appeal No. 858 of 1998
(From the Judgment and Order dated 23.2.98 of the Kerala High Court in O.P. No.7900 of 1997)
(Arising out of S.L.P. (Crl.) No. 1073/98)
(From the Judgment and Order dated 23.2.98 of the Kerala High Court in O.P. No.7900 of 1997)
(Arising out of S.L.P. (Crl.) No. 1073/98)
Petitioner: Navungal Pathumma
Respondent: Union of India & Ors.
Apeal: Criminal Appeal No. 858 of 1998
(From the Judgment and Order dated 23.2.98 of the Kerala High Court in O.P. No.7900 of 1997)
(Arising out of S.L.P. (Crl.) No. 1073/98)
(From the Judgment and Order dated 23.2.98 of the Kerala High Court in O.P. No.7900 of 1997)
(Arising out of S.L.P. (Crl.) No. 1073/98)
Judges: G.T. NANAVATI & S.P. KURDUKAR, JJ.
Date of Judgment: Aug 21, 1998
Appearances:
Raju Ramchandran, Senior Advocate, C.N. Sree Kumar, Advocate with him for the appellant.
G. Prakash, Harish Chandra, S.D. Sharma, R.S. Rana and V.K. Verma, Advocates for the Respondents.
Head Note:
PREVENTIVE DETENTION
COFEPOSA Act
Section 3, 9 Detention – Orders made on 17.1.97 – Declaration thereafter, under Section 9 on 13.2.97 – Representation dated 4.2.97 received on 10.2.97 – Non-consideration of representa-tion, while making declaration – Effects.Held that representa-tion was not considered, and it was delayed. That made the deten-tion illegal.
Held:
The representation made by the detenue was against the order of detention itself. It was therefore necessary to consider it before making the declaration. The decision whether the detention order deserved to be revoked or not was required to be taken before deciding the necessity of making the declaration. Merely because the representation was subsequently rejected cannot justify non consideration of the representation at the time when it ought to have been considered. The reason for non-consideration of the representation before making the declaration being not sustainable, it has to be held that there was undue delay in considering the representation, rendering the continued detention of the detenu illegal.(Para 8)
JUDGEMENT:
NANAVATI, J.
1. Leave granted.
2. Heard learned counsel for the parties.
3. In this appeal, the appellant is challenging the judgment and order passed by the High Court of Kerala in O.P. 7900/97. The appellant is the wife of one M. Ahmmedkutty s/o Kunhammedkutty against whom an order of detention was passed on 28.3.95 by the Government of Kerala, on being satisfied that with a view to prevent him from abetting the smuggling of goods, it was neces-sary to make such an order. The said order was passed under Section 3 of the COFEPOSA Act. Pursuant to the said order, the appellant’s husband was detained on 17.1.97. Thereafter, Mr. Mohile, Additional Secretary to the Government of India made a declaration under Section 9(1) of the Act.
4. The order of detention and his continued detention were challenged by the appellant before the High Court on the follow-ing three grounds.
(1) there was delay in executing the order of detention,
(2) there was no justification for passing the order of deten-tion and
(3) there was delay in considering the representations made by the detenu.
5. The High Court did not find any substance in any of these contentions and, therefore, dismissed the Writ Petition.
6. Mr. Raju Ramchandran, learned counsel for the appellant, is now challenging the order of detention and continued detention of the appellant’s husband on the grounds that:
(1) the representation dated 4.2.97 made by the detenu was
not considered by the Additional Secretary to the
Government of India before making the declaration
under Section 9 of the Act.
(2) there was a delay in considering the representation
made by the detenu by the Additional Secretary to
the Government of India; and
(3) relevant documents pertaining to the detention of
the detenu’s brother were not supplied to or placed
before the detaining authority.
7. Having heard learned counsel and considered the relevant material, we find that this appeal deserves to be allowed on the first two grounds raised by the learned counsel. It is not in dispute that the representation dated 4.2.97 made by the detenu was received by the Ministry of Finance on 10.2.97. It is also not in dispute that before making the declaration under Section 9 on 13.2.97, the representation made by the detenue was not con-sidered. In the affidavit filed by Mr. M.S. Negi, Under Secretary to the Government of India, before the High Court, it was stated as under:-
“A copy of detenue’s representation dated 4.2.97 (and not 30.1.97) addressed to the Advisory Board the Addl. Secretary to the Government of India and Secretary to Home Department, Trivandrum forwarded by the Supdt., Thiruvanathapuram vide his letter dated 4.2.97 was received in COFEPOSA Unit on 10.2.97. Since the proposal for issue of declaration had already been submitted to the Additional Secretary, the representation in question was not considered by the declarating authority.”
8. This statement makes it clear that though the representation had reached the Additional Secretary he did not consider it before making the declaration. The reason given by him is that by that time proposal for making the declaration was already made. The representation made by the detenue was against the order of detention itself. It was therefore necessary to consider it before making the declaration. The decision whether the detention order deserved to be revoked or not was required to be taken before deciding the necessity of making the declaration. Merely because the representation was subsequently rejected cannot justify non consideration of the representation at the time when it ought to have been considered. The reason for non-consideration of the representation before making the declaration being not sustainable, it has to be held that there was undue delay in considering the representation, rendering the continued detention of the detenu illegal.
9. We, therefore, allow this appeal and direct that the appel-lant’s husband – Shri M. Ahmmedkutty be released forthwith unless his presence is required in jail in connection with some other case.
1. Leave granted.
2. Heard learned counsel for the parties.
3. In this appeal, the appellant is challenging the judgment and order passed by the High Court of Kerala in O.P. 7900/97. The appellant is the wife of one M. Ahmmedkutty s/o Kunhammedkutty against whom an order of detention was passed on 28.3.95 by the Government of Kerala, on being satisfied that with a view to prevent him from abetting the smuggling of goods, it was neces-sary to make such an order. The said order was passed under Section 3 of the COFEPOSA Act. Pursuant to the said order, the appellant’s husband was detained on 17.1.97. Thereafter, Mr. Mohile, Additional Secretary to the Government of India made a declaration under Section 9(1) of the Act.
4. The order of detention and his continued detention were challenged by the appellant before the High Court on the follow-ing three grounds.
(1) there was delay in executing the order of detention,
(2) there was no justification for passing the order of deten-tion and
(3) there was delay in considering the representations made by the detenu.
5. The High Court did not find any substance in any of these contentions and, therefore, dismissed the Writ Petition.
6. Mr. Raju Ramchandran, learned counsel for the appellant, is now challenging the order of detention and continued detention of the appellant’s husband on the grounds that:
(1) the representation dated 4.2.97 made by the detenu was
not considered by the Additional Secretary to the
Government of India before making the declaration
under Section 9 of the Act.
(2) there was a delay in considering the representation
made by the detenu by the Additional Secretary to
the Government of India; and
(3) relevant documents pertaining to the detention of
the detenu’s brother were not supplied to or placed
before the detaining authority.
7. Having heard learned counsel and considered the relevant material, we find that this appeal deserves to be allowed on the first two grounds raised by the learned counsel. It is not in dispute that the representation dated 4.2.97 made by the detenu was received by the Ministry of Finance on 10.2.97. It is also not in dispute that before making the declaration under Section 9 on 13.2.97, the representation made by the detenue was not con-sidered. In the affidavit filed by Mr. M.S. Negi, Under Secretary to the Government of India, before the High Court, it was stated as under:-
“A copy of detenue’s representation dated 4.2.97 (and not 30.1.97) addressed to the Advisory Board the Addl. Secretary to the Government of India and Secretary to Home Department, Trivandrum forwarded by the Supdt., Thiruvanathapuram vide his letter dated 4.2.97 was received in COFEPOSA Unit on 10.2.97. Since the proposal for issue of declaration had already been submitted to the Additional Secretary, the representation in question was not considered by the declarating authority.”
8. This statement makes it clear that though the representation had reached the Additional Secretary he did not consider it before making the declaration. The reason given by him is that by that time proposal for making the declaration was already made. The representation made by the detenue was against the order of detention itself. It was therefore necessary to consider it before making the declaration. The decision whether the detention order deserved to be revoked or not was required to be taken before deciding the necessity of making the declaration. Merely because the representation was subsequently rejected cannot justify non consideration of the representation at the time when it ought to have been considered. The reason for non-consideration of the representation before making the declaration being not sustainable, it has to be held that there was undue delay in considering the representation, rendering the continued detention of the detenu illegal.
9. We, therefore, allow this appeal and direct that the appel-lant’s husband – Shri M. Ahmmedkutty be released forthwith unless his presence is required in jail in connection with some other case.
