ORDER
1. These two writ petitions have been filed for issue of writ of habeas corpus to quash the orders of detention passed in G.O. No. SR/I/1036-7/87 dated 8-12-1987 and G.O. No. SR/I/1036-8/87 dated 8-12-1987 by the first respondent and to direct, the respondents to set the detenus, N. Natarajan alias Murugan and E. Mani, now detained in the Central Prison, Madras at liberty.
2. The facts leading to the passing of the said orders of detention are as follows :- On 13-4-1987, on the basis of information received from the Collector of Central Excise, Madras, the Customs Officers stopped the lorry TMA 4767 at Konalai on the Trichy Madras Trunk Road and found five occupants in the cabin. The persons admitted their name as follows :-
1. C. Mani, Taxi Driver.
2. M. Vijayakumar, Lorry Driver.
3. P. Kothandam, Lorry Driver.
4. N. Lakshmanan, Lorry Cleaner.
5. A. V. Srinivasan, Lorry Cleaner.
3. On examining the lorry, 21 gunny bags in wet condition were found beneath the Fertilizer bags which were covered by Tarpaulin. When they were opened in the presence of witnesses, they were found to contain many foreign Video cassettes, Video Cassette tapes totalling 2,240 and Cassette tapes 1,580 in number BASF Cassette tapes 100 and Funai Video Cassette Players 8, all valued at Rs. 5,70,300/-. As there valid permit for import, they Were seized by the custom Officers along with lorry and Urea bags for taking further action under the Customs Act. On the confession statement made by the detenus, S. Mani and M. Vijayakumar, the other detenu F. Natarajan was traced as the person engaged in transport of smuggled goods from Tuticorin to madras by lorry. The detenu Natarajan also gave a statement admitting the transport of smuggled goods. After further investigation the impugned orders of detention were Passed by the first respondent u/Ss. 3(1)(ii), 3(1)(iii) and 3(1)(iv) of the COFEPOSA 1974 with a view to preventing them from abetting the smuggling of goods, engaging in transporting smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping the smuggled goods.
4. The impugned orders of detention have been challenged on various grounds in the affidavits filed in support of these writ petitions. A counter affidavit has been filed denying the allegations made in the said affidavits. However, Mr. Natarajan learned counsel appearing for the Petitioners confined his arguments to two points viz., that the representations of the detenus were not considered by the Central Government but only by the Under Secretary who is an empowered officer and that the documents demanded by the detenu were not furnished to them.
5. It was contended on behalf of the detenus that the representations sent by them were not considered by the Central Government but the same was considered and disposed of by the person who is not legally empowered to consider the same. This fact has not been disputed in the counter affidavit. On the other hand, it is admitted that the representations were rejected by the empowered officer. Reliance was placed on the decision of this Court in W.P. Nos. 14855 to 14857 and 14954 of 1988 dated 17-8-1989 (Iskala Bala Venkata Krishnaiah alias I. B. v. Krishnaiah etc. v. The Joint Secretary to the Govt. of India, Ministry of Finance Depart of Revenue, New Delhi) and the decision of the, Supreme Court in State, of Maharashtra v. Sushila Mafalal Shaj wherein the Division Bench in which we both of us were parties considered this question elaborately. The Bench took note of the decision of the Supreme Court in which held that the provisions of the Act do not confer any power of revocation on an officer of the Central or State Government nor does it empower the Central or State Government to delegate the power of revocation to any of its officers. The said ruling of the Supreme Court makes it clear that the specially empowered officer has to pass on the representation even if it was received by him, to the concerned officer or the Minister empowered by the Rules of business and the representations cannot be disposed of by him because the Government concerned would constitute the detaining authority under the Act and not the officer concerned who made the order of detention. Therefore, once the representation of the detenu has not been considered by the Central Government or the State Government as the case may be, the non-consideration by the detaining authority of the representations made by the detenus would make the detention of the respective detenus in each of these writ petitions illegal.
6. The abovesaid principles would squarely apply to the facts of the present case. It is clear that irrespective of the fact that detention order is being passed by the officer empowered the detaining authority under the Act is not the officer concerned but the Government and it is to that Government the detenu should be afforded an opportunity to make representation which has to be disposed of expeditiously by the Government and not by the officer empowered who has only a duty to forward it to the concerned officer or minister of the Government for the disposal of the representation. In view of this legal position, we have to hold that the continued detention of these detenus will not be in accordance with law and therefore, they will have to be necessarily quashed. Accordingly, the writ petitions are allowed and the impugned orders of detention are quashed and the detenus are directed to be set at liberty forthwith unless they are required in any other case. No costs.
7. Petition allowed.
