http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: NAVUNGAL PATHUMMA

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT:       21/08/1998

BENCH: G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      NANAVATI, J.      Leave granted.      Heard learned counsel for the parties.      In  this  appeal,  the  appellant  is  challenging  the judgment and  other passed  by the  High Court  of Kerala in O.P.  7900/97.   The  appellant   is  the  wife  of  one  M. Ahmmedkutty s/o  Kunhammedkutty against  whom  an  order  of detention was  passed on 28.395 by the Government of Kerala, on being  satisfied that  with a  view to  prevent him  form abetting the  smuggling of  goods, it  was necessary to make such an  order. The said order was passed under Section 3 of the  COFEPOSA   Act.  Pursuant   to  the   said  order,  the appellant’s husband was detained on 17.1.97.      Thereafter, Mr.  Mohile, Additional  Secretary  to  the Government of India made a declaration under Section 9(1) of the Act.      The order of detention and his continued detention were challenged by  the appellant  before the  High Court  on the following three grounds. (1)  there was delay in executing the order of detention. (2)  there was  no justification  for passing  the order  of detention and (3)  there was  delay in  consering the representations made by the detenu.      The High Court did not find nay substance in any of the contentions and, therefore, dismissed the Writ petition.      Mr.  Raju   Ramchandran,  learned   counsel   for   the appellant, is  now challenging  the order  of detention  and continued detention  of the  appellant’s  husband    on  the grounds that:      (1) the  representation dated 4.2.97 made by the detenu           was not  considered by the Additional Secretary to           the  Government   of  India   before  making   the           declaration under Section 9 of the Act.      (2) there was a delay in considering the representation           made by  the detenu by the Additional Secretary to           the Government of India, and      (3) relevant  documents pertaining  to the detention of           the detenu’s  brother  were  not  supplied  to  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

         placed before the detaining authority.      Having heard  learned counsel and consider the relevant material, we find that this appeal deserves to be allowed on the first  two ground  raised by  the learned counsel. It is not in  dispute that  the representation dated 4.297 made by the detenu  was received  by  the  Ministry  of  Finance  on 10.2.97. It  is also  not dispute  that  before  making  the declaration under  Section 9  on 13.2.97, the representation made by  the detenue  was not  considered. In  the affidavit filed by Mr. M.S. Negi, Under Secretary to the Government of India, before the High Court, it was stated as under:-      "    A     copy    of     detenue’s      representation  dated  4.2.97  (and      not  30.1.97)   addressed  to   the      Advisory Board  the Addl. Secretary      to  the  Government  of  India  and      Secretary   to   Home   Department,      Trivandrum forwarded  by the Supdt.      Thiruvanathapuram vide  his  letter      dated  4.2.97   was   received   in      COFEPOSA Unit on 10.2.97. Since the      proposal for  issue of  declaration      had already  been submitted  to the      Additional      Secretary,      the      representation in  question was not      considered   by   the   declarating      authority."      This  statement   makes  it   clear  that   though  the representation had  reached the  Additional secretary he did not consider  it before  making the  declaration. The reason given by  him is  that by  that time proposal for making the declaration was already made. The representation made by the detenue was  against the  order of  detention itself. It was therefore  necessary   to  consider  it  before  making  the declaration.  The   decision  whether  the  detention  order deserved to  be revoked  or not  was required  to  be  taken before deciding  the necessity  of making  the  declaration. Merely because  the representation was subsequently rejected cannot justify  non consideration  of the  representation at the time  when it  ought to have been considered. The reason for non-consideration  of the  representation before  making the declaration  being not  sustainable, it  has to  be held that   there    was   undue   delay   in   considering   the representation, rendering  the continued  detention  of  the detenu illegal.      We, therefore,  allow this  appeal and  direct that the appellant’s  husband  -  Shri  M.  Ahmmedkutty  be  released forthwith  unless  his  presence  is  required  in  Jail  in connection with some other case.