Y MOHAMED ALI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE petitioner herein challenges the impugned orders of detention, dated 13.04.2007, whereby, his brothers by name Mohamed Asif and Mohamed Masood have been detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA Act).

(2.) THE sole ground raised in the above Petitions to beset the orders of detention is, non-consideration of the pre-detention representations, dated 04.04.2007, sent by the mother of the detents.

(3.) WE have carefully considered the contention raised with reference to the materials available on record and also the Division Bench judgment of this Court cited by the learned counsel for the petitioner. The Division Bench, after taking note of similar counter argument advanced by the Additional Public Prosecutor by drawing support from the decision reported in AIR 2001 (2) SCC 145 (Keshava vs. M.B. Prakash and others) on the ground that the representation made on behalf of the detent before Law Minister cannot be construed as representation before appropriate Government, distinguished the said decision on the factual aspects involved and held thus:"The ratio of the above decision cannot be applied to the facts of the present case. As per Business Rules of the Government, it is the Law Minister who considers the representation sent by the detent, and on behalf of the detent."The Bench also relied on the observation made by P. Sathasivam, J. (as He then was) speaking for the Bench in P.M.S. Mohiadeen Sahib v. State of Tamil Nadu rep. By Secretary to Government, Public (S.C.) Dept., Chennai, and others (2006 (1) MLJ 131), and the said observation is quoted below:-".13. In the light of the above principles, we are of the view that though the detent has made pre-detention representation on 4.7.2005, which was received by the Superintendent, Central Prison, Chennai-9, and forwarded to the addressee, Law Minster, Government of Tamil Nadu on 05.07.2005 itself, in view of the fact that the same had been reiterated in the representation dated 21.7.2005, the Detaining Authority ought to have verified the earlier representation and passed the order after due consideration. WE are satisfied that the Detaining Authority failed to consider these relevant aspects and the detent is entitled to succeed. ".