JASBIR KAUR Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a petition under Article 226/227 of the Constitution of India praying for issuance of appropriate writ, orders or directions to the respondents for release of the petitioner by setting aside the orders of detention, Annexure P-1, to the petition dated 11.10.1994. The petitioner claims to be a law-abiding citizen and is stated to have been detained under Section 3(1) of COFEPOSA Act vide order, aforesaid, for a period of one year from the date of his detention. The petitioner was detained on 1.5.1995. The petitioner has challenged the order of detention on various grounds, but the learned counsel for the petitioner has primarily based upon the ground that the representation of the petitioner which was addressed to the Detaining Authority and the Central Advisory Board, was not considered by the Central Government. The order of detention was confirmed on 27.7.95. This plea has been specifically raised in ground 6-G of the grounds taken in the writ petition. The non-consideration and disposal of the representation of the petitioner by the Central Government, according to the learned counsel for the petitioner, vitiates the detention order and consequently, the petitioner is entitled to be set free forthwith.

(2.) THE confirmation order was passed by the Detaining Authority on 27.7.1995, as aforesaid while the Central Advisory Board has passed the order on 7.7.1995. The representation was submitted by the petitioner on 1.5.1995. In reply to this ground, no details have been given by the Union of India. However, it has been averred in the joint reply to grounds 6-G and H that the representation dated 1.5.1995 was addressed to the Joint Secretary (Cofeposa) with copy to the Central Advisory Board and the same has been independently considered by respective authority. It is further stated that as the representation was not addressed to the Central Government, the question of considering the same by the Central Government does not arise. The only question raised by the learned counsel for the parties is whether the Central Government was obliged to consider the representation of the petitioner or not while the copy was not addressed to the said Government. For this purpose, the learned counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Moosa Husein Sanghar v. The State of Gujarat and others, 1993(1) All India Criminal Law Reporter 351. This ground was specifically urged before the Supreme Court and the Supreme Court upheld this ground while expressing its view as under :-

(3.) IN view of above facts and the law settled to the Supreme Court, it is clear that the Central Government was obliged to consider the representation of the petitioner irrespective of the fact that it too was not addressed to the concerned Government. For this reason alone, the petition needs to be allowed. Consequently the petition is allowed and the order of detention dated 11.10.1994 is hereby set aside. The petitioner shall be set free forthwith. There shall be no order as to costs.