JEETHA Vs. UNION OF INDIA

JUDGEMENT

(1.) The above Writ Petition (Crl.) has been filed by the wife of the detenu, who is under orders of detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Ext.P1 is the detention order which was passed on 22.05.2019. Petitioner has moved an application seeking interim release of the detenu pointing out that similarly situated persons have already been released on the basis of the judgment of this Court in W.P.(Crl.) Nos.377/2019 and 378/2019. It is contended that the above writ petition could not be heard and disposed of due to the countrywide lock down and that the detention period is to expire on 31.05.2020. Applications submitted under Section 11 of the COFEPOSA Act for revoking the detention order have been dismissed. Petitioner hence prays that the detenu may be released temporarily invoking the power under Section 12 of the COFEPOSA Act.

(2.) We heard the counsel for the petitioner and the counsel for the respondents.

(3.) The counsel for the respondents contend that an application under Section 12 the COFEPOSA Act has to be primarily considered by the Government and the question of invoking the jurisdiction of the Court under Article 226 would arise only if there is an unjustifiable refusal of a request under Section 12 by the Government. Reliance is placed on the Constitution Bench judgment of the Hon'ble Supreme Court in Sunil Fulchand Shah v. Union of India and Others [(2000) 3 SCC 409].