NISSA HASSAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Mr. Ali Hassan, Pavathethu Vadakkethil, Puliyoor Vanchi North, Thazhava P.O., Karunagappally, Kollam District has been directed to be detained and kept in custody in the Central Prison, Thiruvananthapuram by order of the Additional Chief Secretary & Principal Secretary to Government, issued on behalf of the Government of Kerala, in exercise of powers conferred on him by S.3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act) Ext. P 1 dated 1012005 is the order of detention, which is presently challenged at the hands of his wife Nissa Hassan. Along with Ext. P 1 order, the grounds of detention supplied to the detenu has been produced and separately marked as Ext. P 2. The petitioner has also challenged Ext. P 5 dated 2632005, whereunder the Government had confirmed the detention, in exercise of powers under S.8(f) of the COFEPOSA Act, directing that the detention shall continue for a period of one year from 2412005. The petitioner has also produced Ext. P 4 memorandum dated 2422005 issued by the Government of India informing the detenu that the Central Government has rejected the representation, whereby he had requested for review of the order of detention. The challenge is against Exts. P 1 and P 5.

(2.) Learned counsel for the petitioner highlighted principally three points, in support of the submission that the orders were vitiated. According to him, the attention of this Court has to be focused on the reasonableness, even if the order is one passed under the COFEPOSA Act. Referring to the Judgment of this Court, reported in Lekha Nandakumar v. Government of India ( 2004 (2) KLT 1094 ) and other decided cases, it is pointed out that there was unexplained delay in passing the orders and this itself was a circumstance justifying interference.

(3.) The second point of submission was that the rejection of representation without adequate care and application of mind, in the manner as above, in effect denied the benefit of a constitutional mandate as available to the detenu. Support had been attempted to be drawn from the decision reported in Raziya v. Government of Kerala ( 2004 (1) KLT 836 (SC). The delay in considering the representation, which was alleged to be there in the present case, also was a factor which could have come to the assistance of the petitioner for compelling release of her husband. Advertence was made to the judgment in Ahamed Nassar v. State of Tamil Nadu (1999 SCC (Crl.) 1469), which dealt with a case in similar situation.