Jasbir Kaur vs Union of India and another

Swatanter Kumar, J.

This is a petition under Article 226/227 of the Constitution of India praying for issuance of appropriate writ, orders or directions to the respondents for release of the petitioner by setting aside the orders of detention, Annexure P1, to the petition dated 11.10.1994. The petitioner claims to be a lawabiding citizen and is stated to have been detained under Section 3(1) of COFEPOSA Act vide order, aforesaid, for a period of one year from the date of his detention. The petitioner was detained on 1.5.1995. The petitioner has challenged the order of detention on various grounds, but the learned counsel for the petitioner has primarily based upon the ground that the representation of the petitioner which was addressed to the Detaining Authority and the Central Advisory Board, was not considered by the Central Government. The order of detention was confirmed on 27.7.95. This plea has been specifically raised in ground 6G of the grounds taken in the writ petition. The nonconsideration and disposal of the representation of the petitioner by the Central Government, according to the learned counsel for the petitioner, vitiates the detention order and consequently, the petitioner is entitled to be set free forthwith.

The confirmation order was passed by the Detaining Authority on 27.7.1995, as aforesaid while the Central Advisory Board has passed the order on 7.7.1995. The representation was submitted by the petitioner on 1.5.1995. In reply to this ground, no details have been given by the Union of India. However, it has been averred in the joint reply to grounds 6G and H that the representation dated 1.5.1995 was addressed to the Joint Secretary (Cofeposa) with copy to the Central Advisory Board and the same has been independently considered by respective authority. It is further stated that as the representation was not addressed to the Central Government, the question of considering the same by the Central Government does not arise. The only question raised by the learned counsel for the parties is whether the Central Government was obliged to consider the representation of the petitioner or not while the copy was not addressed to the said Government. For this purpose, the learned counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Moosa Husein Sanghar v. The State of Gujarat and others, 1993(1) All India Criminal Law Reporter 351. This ground was specifically urged before the Supreme Court and the Supreme Court upheld this ground while expressing its view as under :

"Shri Krishna Rao, in our view, is right in his submission that even though the representation was addressed to the Advisory Board, but since it was forwarded to the Advisory Board through the State Government, it was incumbent upon the State Government to have considered the said representation and it could not return the same to the appellant without considering it on the ground that it was not addressed to it but was addressed to the Advisory Board. Reference in this context, may be made to the decisions of this Court in Kubic Dariusz v. Union of India and Others, 1990(1) All India Criminal L.R. 632 (SC) and Smt. Gracy v. State of Kerala and another, 1991(1) SCR 421. In K. Dariusz v. Union of India (supra), the representation of the detenu was addressed to the Chairman, Advisory Board and it was argued on behalf of the Union of India that the said representation need not have been dealt with by the Central Government. Rejecting the said contention, it was held :

"In the instant case though the representation was addressed to the Chairman, Central Advisory Board, the same was forwarded by the Jail Authorities and it must be taken to have been a representation to the appropriate Government which was to consider it before placing it before the Advisory Board and the same having not been done Article 22(5) had to be held to have been violated."

Consistent view is taken by the Supreme Court in Smt. Gracy v. State of Kerala and another, 1991(1) Recent Criminal Reports 508 : 1991(2) C.L.R. 247 where the Supreme Court after discussing the matter in detail held as under :

"It being settled that the aforesaid dual obligation of consideration of the detenu''s representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it.

The mode of address is only a matter of form which cannot whittle down the requirement of the Constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in the case of preventive detention."

In view of above facts and the law settled to the Supreme Court, it is clear that the Central Government was obliged to consider the representation of the petitioner irrespective of the fact that it too was not addressed to the concerned Government. For this reason alone, the petition needs to be allowed. Consequently the petition is allowed and the order of detention dated 11.10.1994 is hereby set aside. The petitioner shall be set free forthwith. There shall be no order as to costs.