HASMINA P Vs. STATE OF KERALA AND ORS

JUDGEMENT

(1.) This application seeking issuance of writ of habeas corpus is one instituted challenging Ext. P1 order of preventive detention issued under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as 'the COFEPOSA Act'. The detenu is Sri. Abdul Razak M @ Ashraf. Heard the learned counsel for the petitioner, the learned State Attorney, as also, the learned counsel for the Directorate of Revenue Intelligence.

(2.) Ext. P1 detention order is dated 07/11/2015. It was served on the detenu on 09/11/2015, when he reached the office of the Investigating Officer to conform with the conditions imposed, while granting him bail in an occurrence registered referable to certain provisions of the Customs Act as well. He was thereafter shifted to the Central Prison and on 09/11/2015 itself, he was served with Ext. P2, which contains the grounds of detention. Ext. P4 would show that the detenu is Sri. Abdul Razak M @ Ashraf. The case of the detenu was referred to the COFEPOSA Advisory Board by the State Government on 03/12/2015. The COFEPOSA Advisory Board gave its advice report on 19/01/2016 as is evident from Ext. P7 Government Order confirming Ext. P1 detention order. It was in the interregnum, that is to say, between 03/12/2015 and 06/01/2016 that Ext. P5 was issued by the detaining authority rejecting the detenu's representation dated 22/12/2015. This means that the detenu's representation reached the detaining authority after the Government had referred the detenu's case to the COFEPOSA Advisory Board and that the aforenoted representation was considered and rejected by the detaining authority, without referring that representation to the COFEPOSA Advisory Board as required by the law made by the Apex Court in Golam Biswas v. Union of India , and Constitutional Bench decision in K.M. Abdulla Kunji v. Union of India and Others,1999 1 SCC 476. The rejection of the representation before the COFEPOSA Advisory Board had taken a decision in the matter is in violation of the provisions of the relevant preventive detention laws, resulting an infringement of the right to make a representation in terms of Article 22(5) of the Constitution of India in terms of the law laid by the Apex Court.