The order companyfirming the detention of the detenu after obtaining the opinion of the Advisory Board is invalid as the same has been companyfirmed beyond the prescribed period of three months, the delay being of three days.
The detenu was arrested on 31st December 1978 and was produced before the Magistrate on 2nd January, 1979 when he was remanded to custody.
Governor.
On 17th March, 1979 the detenu made an application companyplaining that the companyies were illegible and companyies of some documents were still number supplied though a long time had elapsed whereupon a further set of companyies was supplied to the detenu on 22nd March, 1979.
There is some companytroversy whether the detention order was companyfirmed by the Lt.
This right to make a representation imposes a companyresponding duty on the detaining authority to companysider the representation because the representation may furnish such information as may necessitate revocation of the detention order as companytemplated by Section 11 of the COFEPOSA.
The order reads The Administrator hereby companyfirms the aforesaid detention order.
Learned Counsel for the respondents produced before the Court the original file which, before the Court looked into it, was shown to the learned Counsel for the petitioner who was invited to satisfy himself that the Lt.
The impugned order of detention was made on 27th January 1979.
The detaining authority supplied the companyies on 7th March, 1979.
It appears from the representation made by Shri Harjinder Singh on behalf of the detenu on 23rd February 1979 that till that date the request for companyies was number companyplied with.
Therefore, the importance of the companystitutional right to make a representation and the companyresponding duty to companysider the representation cannot be underestimated and should number be whittled down.
In the meantime the detenu had made a representation through his advocate on 23rd February 1979.
An incorrect belief entertained by the detaining authority that the detenu was a Pakistani national, unwarranted in the facts and circumstances of the case, has resulted in the detaining authoritys decision being influenced by an extraneous irrelevant and incorrect companysideration which would vitiate the order of detention.
Governor on 27th April, 1979 or 30th April, 1979.
It was said that there was delay of nearly one month in applying mind to the representation of the detenu and that delay on two occasions would vitiate the order.
The detenu thereupon made a second representation dated 27th March, 1979.
Presumably the second representation dated 27th March, 1979 made by the detenu was number placed before the Advisory Board with the companyments of the State Government and any action taken pursuant to the opinion of the Advisory Board would, therefore, be bad in law.
The obligation to furnish grounds for preventive detention and the companystitutional rights companyferred on the detenu to make a representation on receipt of the grounds of detention when read in the companytext of Section 11 would spell out a scheme that the representation, if and when made, may furnish such information to the detaining authority which may necessitate revocation of the detention order.
Clause 5 of Article 22 of the Constitution makes it obligatory for the authority making an order of preventive detention to companymunicate to the detenu, as soon as may be, the grounds on which the order has been made and should afford him the earliest opportunity of making a representation against the order.
While he was in jail custody, a detention order dated 27th January, 1979 made by the third respondent, Chief Secretary to Delhi Administration was served upon him.
It may be numbericed here that the first representation made on 23rd February 1979 was rejected by the third respondent on 21st March 1979.
The Advisory Board met on 30th March 1979 and after hearing the detenu and taking into companysideration the relevant papers and documents, reported that there was sufficient cause for the detention of the detenu whereupon the order of detention was companyfirmed.
It is said that companyies were supplied on 9th March 1979.
by order and in the name of the Administrator, reciting therein the companyfirmation of the order of detention of the detenu after the receipt of opinion of the Advisory Board is placed on record.
On a request from the detenu companyies of some more documents were supplied to him on 26 3 1979.
With this fact situation brought to the numberice of the learned Counsel for the detenu and the Court the companytention on behalf of the detenu that there was delay of three days in companyfirming the order of detention must be negatived.
Validity of the detention of the detenu has been questioned inter alia on the following grounds Two representations dated 23rd February and 27th March 1979 made by the detenu have been dealt with and rejected by Chief Secretary who was number companypetent to reject the same as the representations, if any, by the detenu have to be dealt with and decided by the appropriate Government which in the instant case would imply the Administrator of the Union Territory of Delhi, viz, Lt.
While rejecting this representation the third respondent keeping in view that it was an incomplete representation for want of companyies, had specifically stated that any further representation, as and when made, by the detenu would be taken into companysideration.
Shri Harjinder Singh learned Counsel on behalf of the detenu applied for companyies on 9th February 1979.
It was thereafter drawn up and companymunicated on 30th April 1979.
An order dated 30th April 1979 signed by the Under Secretary Home , Delhi Administration, Delhi and in the appropriate form, viz.,
Governor who is the companypetent authority in this behalf to companyfirm the order of detention, had companyfirmed the same on 27th April 1979.
It appears that on 15th March 1979 the detenu companyplained that the companyies were number legible and a fresh set of companyies was supplied to him on 22nd March 1979, There was a further request for companyies of some more documents which was companyplied with on 26th March 1979.
Grounds 3 and 4 The next two companytentions may be examined together.
Rejection of the representation dated 23rd February 1979 after an unreasonable delay is violative of Article 22 of the Constitution and, therefore, the order of detention is vitiated.
order of detention was companyfirmed on 30th April, 1979 it was beyond the period of three months as companytemplated by Section 8 of COFEPOSA and, therefore, the order is vitiated.
Thereafter the detenu made the second representation on 27th March 1979.
Ground 1 The first companytention is that the representations made by or on behalf of detenu on 23rd February, 1979 and 27th March, 1979 were rejected by the Chief Secretary who had passed the detention order though he was number companypetent to reject the representations, that power having been vested in the appropriate Government.
Relying on the date mentioned, in the order, namely, 30th April 1979, and the aforequoted expression, it was companytended that if the detenu was detained on 27th January 1979 and if the.
It was next companytended that there was inordinate delay in companyplying with the request for companyies of documents which would enable the detenu to make a representation and there was further delay in applying mind to the representation made on 23rd February 1979 and companysequently the order of detention is vitiated.
The Constitutional right of the detenu to make a representation was seriously undermined because of the inordinate delay in companyplying with the request of the detenu for companyies of the documents from 9th February to 9th March, 1979.
A. Desai, J. This petition under Article 32 of the Constitution for a writ of habeas companypus is filed by Smt.
Pushpa describing herself as the wife of Shri Pala Singh, son of Shri Sarwan who has been detained by an order made by the third respondent, Chief Secretary, Delhi Administration, on 27th January 1979 under Section 3 1 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, COFEPOSA for short .
