NANDKISHORE PUROHIT Vs. HOME SECRETARY MAHARASHTRA

JUDGEMENT

(1.) In this writ petition the declaration of the detenu i.e. Shri Shyam Ranjit Singh Rathod under the provision of the COFEPOSA ACT, is challenged on various grounds. It is an admitted position that in pursuance of an order issued on 22nd of July, 1985 the detenu came to be detained on the 1st of August, 1985. Along with the order of detention the grounds as well as copies of the documents referred to and relied upon were supplied by the detaining authority to the detenu. Therefore on 16th of August, 1985 a declaration came to be made under section 9(1) of the COFEPOSA Act by the Additional Secretary to the Government of India. This declaration was served on the detenu on 7th of September, 1985. The matter was referred to the Advisory Board on 19th of September, 1985 and ultimately the order of detention came to be confirmed on 6th day of January 1986. Thus it is an admitted position that a reference came to be made to the Advisory Board after the normal period though within the extended time in view of the declaration issued under section 9(1) of the COFEPOSA Act. The relevant portion of the declaration reads as under :

(2.) It is pertinent to note that the order of detention is issued by the State Government whereas the declaration came to be made by the Additional Secretary to the Government of India for and on behalf of the Central Government. It is also admitted position that it was no where stated either in the declaration or contemporaneously otherwise that was the material considered by the declaring authority while making the declaration under section 9(1) of the COFEPOSA Act. In this view of the matter, learned Counsel Shri Karmali placed strong reliance upon the various decisions of this Court including in Criminal Writ Petition No. 14 of 1985 (Smt. Veronica Caitaninho D Souza v. The Union of India and others) decided on 27th November, 1985 by Shah and Couto, JJ., and a subsequent decision in Criminal Writ Petition No. 815 of 1985 (Smt. Roshanara Mohamed Akhtar Motiwala v. The Union of India and others) decided by R.A. Jahagirdar and A.D. Tated, JJ. on 10th January, 1986, a decision in Criminal Writ Petition No. 823 of 1985 (Shri Kishan Chunilal Shah v. Union of India and others)decided by the same Bench on the same day as well as other decisions. He has also placed reliance upon the latest decision of the same bench in Criminal Writ petition No. 69 of 1986 (Mohamed Haneef Umer v. The Union of India) decided on 28th of February, 1986. According to Shri Karmali the present case is wholly covered by the said decisions.

(3.) However, the learned Counsel Shri Agrawal appearing for the Union of India tried to distinguish the said decisions and contended that in the present case after issuance of the declaration, the advocate for the detenu wrote a letter to the Central Government on 25th February, 1985 enquiring as to what was the material on the basis of which the declaration was issued. The Central Government informed the detenu as well as the Advocate for detenu vide its letter dated 7th October, 1985 that the material relied upon was the same as supplied to him and there was no other material which was relied upon while making the declaration. Thereafter the detenu made a representation on 5th December, 1985 which was rejected on 12th December, 1985. In this representation also similar contention was raised which came to be rejected on the same ground. Therefore, according to Shri Agrawal this is a case where the detenu was informed that the declaration was based on the same material, and hence it is distinguishable on facts so far as the earlier decisions in the field are concerned. The contention of Shri Agrawal at the first blush appears to be impressive but when considered in the background of various decisions of this Court, we have no other alternative but to hold that the illegality already committed cannot be cured by such subsequent events. Admittedly the letter dated 7th October, 1985 was issued beyond the period of 68 days from the date of detention.