MASUMA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a petition for a Writ of Habeas Corpus for securing the release of one Hasnain Mukhtar Hussain Lakdawala (hereinafter referred to as the detenu) who has been detained by the Government of Maharashtra under an order of detention dated 31st Dec. 1980 made in exercise of the powers conferred under Sec. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act). This order of detention though dated 31st Dec. 1980 was served on the detenu on 17th Jan. 1981 and along with the order of detention, a communication, also dated 31st Dec. 1980, was served on the detenu containing the grounds of detention. The Government of Maharashtra also served on the detenu at the same time a letter dated 7th Jan. 1981 enclosing copies of the documents relied upon in the grounds of detention. It appears that on 6th Feb. 1981 the advocate of the detenu addressed a letter to the Superintendent, Bombay Central Prison where the detenu was then confined and along with 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 Feb. 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 Feb. 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 Feb. 1981 the Central Government too rejected the representation. In the meantime, the case of the detenu was referred to the Advisory Board and on 11th March 1981, the detenu was called for an oral hearing by the Advisory Board and at this meeting the detenu handed over to the Chairman and Members of the Advisory Board four copies of a further representation dated 11th March 1981 addressed by him jointly to the Chairman and the Members of the Advisory Board and the Government of Maharashtra praying that the Government of Maharashtra may be pleased to revoke the order of detention and set the detenu at liberty. The Advisory Board considered the case of the detenu and by a letter dated 16th March 1981, the Secretary of the Advisory Board intimated to the advocate of the detenu that the Advisory Board had by its report dated 12th March 1981 advised the Government of Maharashtra that there was sufficient cause for the detention of the detenu. The State Government thereafter in exercise of the powers conferred under cl. (f) of S. 8 passed an order dated 23rd March 1981 reciting the opinion given by the Advisory Board and confirming the order of the detention. The petitioner who is the wife of the detenu thereupon preferred the present writ petition challenging the order of detention made by the Govt. of Maharashtra as also the continuance of the detention under the subsequent order dated 23rd March 1981.

(2.) There were several grounds urged on behalf of the petitioner in support of the petition and each one of them was seriously pressed before us by Mr. Jethmalani on behalf of the petitioner The first ground was that the order of detention was made by one P. V. Nayak, Secretary to Government, Revenue and Forest Department and Ex-officio Secretary to Government, Home Department while the representation made by the detenu against the order of detention was considered and disposed of by the Minister of State for Home Affairs not by P. V. Nayak and hence there was no effective consideration of the representation of the detenu as required by law. The argument on behalf of the detenu was that the representation of a detenu must be considered by the same person who has passed the order of detention and since in the present case, the representation was considered by a different person, it was not a valid and proper consideration of the representation and the continuance of the detention of the detenu was therefore invalid. There was 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 individual 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 powers conferred under this Rule, the Governor of Maharashtra issued instructions for the more convenient transaction of the business of the Government Cls. (4), (5) and (6) of these instructions as they stood at the material time provided inter alia as under

(3.) The next contention of Mr. Jethmalani on behalf of the petitioner was that there was nothing to show that the decision to confirm the order of detention and continue the detention of the detenu was taken by the State Government as required by cl. (f) of S. 8 and hence the continuance of the detention was invalid. It is really difficult to appreciate this contention urged on behalf of the petitioner. It is clear from the annexures to the writ petition that after receipt of the opinion of the Advisory Board that there was in its opinion sufficient cause for the detention of the detenu, the State Government, in exercise of the powers conferred under cl. (f) of S. 8, made an order dated 23rd March 1981 confirming the detention order and continuing the detention of the detenu. This order was expressed to be made "By order and in the name of the Governor of Maharashtra" and was authenticated by the Under Secretary to the Government of Maharashtra Home Department. It recited in so many terms that it was the State Government which was confirming the order of detention and continuing the detention of the detenu and no material has been placed before us on behalf of the detenu to displace the correctness of this recital. There can therefore be no doubt that the order confirming the detention of the detenu was made by the State Government. Moreover, we have the statement on oath made by C. V. Karnik, Assistant Secretary to the Government of Maharashtra, Home Department that "the Government of Maharashtra thereafter under cl. (f) of Sec. 8 of the said Act confirmed the said detention order by an order dated 23rd March 1981."