T K MAMOO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this writ petition the detenu has challenged the order of detention dated 14th of February 1986 detaining hirn under the provisions of the COFEPOSA Act with a view to preventing hirn frorn Srnuggling goods.

(2.) The order of detention together with the grounds of detention were served on the detenu on 17th February 1986. Thus the detenu carne to be detained in pursuance of the order dated 14th February 1986 on 17th February 1986. it appears from record that a declaration under section 9(1) of the Act was made by the Additional Secretary to the Government of India on 12th March, 1986. Admittedly a copy of this declaration was not served on the detenu till 12th April, 1986 for the reasons best known to the detaining authority. The detenu was produced before the Advisory Board on 9th April 1986. He was interviewed on that day and thereafter opinion of the Advisory Board was conveyed to the Government, on the basis of which the Government confirmed the order of detention. Thus further it is an admitted position in this case that till the detenu Was interviewed by the Advisory Board he was not even made known of the fact that the declaration under Section 9(1) of the Act was ever issued in his case. Therefore admittedly he had no opportunity to make any representation against the said declaration to the Advisory Board. In view of this admitted position it is contended by Shri Siwani, learned counsel appearing for the petitioner, that the present case is wholly covered by the division bench decision of this Court in Jean Jacques Zeplunin Hauff v. The Union of India & ors.,1 by R.A. Jahagirdar and Tated JJ. In our view there is much substance in this contention. In Jean Jacques's case the Division Bench has observed as under: 2 The declaration under Section 9(1) of the COFEPOSA Act was made on 15th February 1985, but the petitioner himself was informed about the same on 4th April 1985. This means that when the petitioners case was referred to the Advisory Board and when the petitioner's case has considered by the Advisory Board, the petitioner had not been posted with the knowledge of a declaration having been made under Section 9(1) of the COFEPOSA Act. Indeed the intimation of the declaration under Section 9(1) of the COFEPOSA Act was given to the petitioner two days after the State Government confirmed the order of detention.

(3.) As has been held by this Court in Jethmal Kapurchand Kothari v. Union of India, Criminal writ petition No. 170 of 1985 decided on 19th July 1985 per Shah J. (with Khatri J.) the right to make a representation against the correctness or validity of the declaration under section 9(1) of the COFEPOSA Act is vested in a detenu when he appears before the Advisory Board. The Advisory Board has two functions, namely, to decide whether the original order of detention was valid and secondly, whether the continuance of the detention of a detenu is justified. While considering the latter question, the Advisory Board is entitled to look into the correctness or otherwise of the declaration made under Section 9(1) of the COFEPOSA Act. It has been so held by this Court in Jethmal Kapurchand Kothari's case. If this is so, then admittedly the petitioner has been denied the right to represent before the Advisory Board, a right which is a valuable one, that the declaration under Section 9(1) of the COFEPOSA Act is invalid, illegal on various grounds available in that regard. Therefore, in our opinion, the continued detention of the petitioner is illegal. He is entitled to be released forthwith. 3. In the present case it is an admitted position that even on the day when the detenu was interviewed by the Advisory Board the detenu had no knowledge about the issuance of the declaration. No copy of the declaration was served upon the detenu till that date. If this is so then in view of the law laid down by this Court in the aforesaid decision a conclusion is inevitable that further detention of the detenu is illegal.