{"id":187701,"date":"1981-08-12T00:00:00","date_gmt":"1981-08-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-masuma-vs-state-of-maharashtra-anr-on-12-august-1981"},"modified":"2018-06-27T05:01:17","modified_gmt":"2018-06-26T23:31:17","slug":"smt-masuma-vs-state-of-maharashtra-anr-on-12-august-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-masuma-vs-state-of-maharashtra-anr-on-12-august-1981","title":{"rendered":"Smt. Masuma vs State Of Maharashtra & Anr on 12 August, 1981"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Smt. Masuma vs State Of Maharashtra & Anr on 12 August, 1981<\/div>\n
Equivalent citations: 1981 AIR 1753, \t\t 1981 SCR (1) 288<\/div>\n
Author: P Bhagwati<\/div>\n
Bench: Bhagwati, P.N.<\/div>\n
           PETITIONER:\nSMT. MASUMA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA & ANR.\n\nDATE OF JUDGMENT12\/08\/1981\n\nBENCH:\nBHAGWATI, P.N.\nBENCH:\nBHAGWATI, P.N.\nERADI, V. BALAKRISHNA (J)\n\nCITATION:\n 1981 AIR 1753\t\t  1981 SCR  (1) 288\n 1981 SCC  (3) 566\t  1981 SCALE  (3)1154\n CITATOR INFO :\n R\t    1983 SC 311\t (7)\n R\t    1988 SC2090\t (22)\n\n\nACT:\n     Conservation of  Foreign  Exchange\t and  Prevention  of\nSmuggling Activities Act, 1974-Detention order passed by the\nSecretary to  Government, but the representation made by the\ndetenu considered  by the  Minister of\tState-Whether such a\nconsideration was  not a  valid and proper consideration and\ntherefore the  detention itself\t was invalid-Constitution of\nIndia, 1950, Article 22(5) read with Rule 15 of the Rules of\nBusiness of Government of Maharashtra read with clauses 4, 5\nand 6  of the  Instructions issued  thereunder\tand  further\nstanding orders\t dated 18th July, 1980-Clause (b) of section\n8 of COFEPOSA, explained.\n\n\n\nHEADNOTE:\n     One Hasnain  Mukhtar Hussain  Lakdawala was detained by\nthe Government of Maharashtra by an order of detention dated\n31st December,\t1980 passed  under section 3(1) of COFEPOSA,\n1974. The  order of  detention was  served on  the detenu on\n17th January,  1981 along  with a  communication dated\t31st\nDecember, 1980 and a letter dated 7th January, 1981 was also\nserved enclosing  copies of the documents relied upon in the\ngrounds of  detention. A  letter dated\t6th  February,\t1981\nalong with  nine copies\t of the representation to be made by\nthe  detenu   sent  by\t the  detenu's\t advocate   to\t the\nSuperintendent, Bombay Central Prison, though handed over to\nthe detenu  by the  prison authorities\ton the\tsame day was\ncarried by  the detenu\tto the\tNasik Road Central Prison to\nwhich he  was shifted  on that\tday. The requisite copies of\nthe representation  duly signed by the detenu were forwarded\nto the\tGovernment and the Chairman of the Advisory Board on\n10th February, 1981. The State Government, however, rejected\nthe representation  by its letter dated 25th February, 1981.\nA copy\tof the representation sent to the Central Government\nwas also  rejected on  26th February  1981. In the meantime,\nthe case  of the  detenu was  referred to the Advisory Board\nand on\t11th March  1981, when\tthe detenu was called for an\noral hearing,  the detenu  handed  over\t four  copies  of  a\nfurther representation\tdated 11th  March 1981,\t praying for\nrevocation of the detention order. The Advisory Board consi-\ndered the  case and  by its  report dated  12th\t March\t1981\nadvised the State Government that there was sufficient cause\nfor the\t detention of  the detenu,  and through\t its  letter\ndated 16th March, 1981 apprised the detenu's advocate of the\nposition. The  State  Government  thereafter  confirmed\t the\norder of  detention. Hence the writ petition by the detenu's\nwife.\n     Dismissing the petition, the Court,\n^\n     HELD:  1:1.   There  was  no  constitutional  or  legal\ninfirmity in  the representation  of the  detenu having been\nconsidered by the Minister of State for Home. [294 B]\n     1:2. The  only requirement\t of  Article  22(5)  of\t the\nConstitution is\t that the  representation of  detenu must be\nconsidered by the detaining authority which in\n289\nthe  present   case  was   the\tState  Government  and\tthis\nrequirement was clearly satisfied, because when the Minister\nof State for Home considered the representation and rejected\nit,  he\t  was  acting  for  the\t State\tGovernment  and\t the\nconsideration and rejection of the representation was by the\nState Government. [293 G]\n     1:3. There\t is no requirement express or implied in any\nprovision of  COFEPOSA that the same person who acts for the\nState Government  in making the order of detention must also\nconsider the  representation of detenu. More- over, it would\nreally\tbe   to\t the   advantage  of   the  detenu,  if\t his\nrepresentation is  not considered by the same individual but\nfresh mind is brought to bear upon it. [293 H-294 B]\n     In view of the clear provisions of Rule IS of the Rules\nof Business of the Government of Maharashtra, clauses 4 to 6\nof the\tInstructions issued  by the  Governor thereunder and\nthe  two  standing  orders  dated  18th\t July  1980  it\t was\nimmaterial, whether P.V. Nayak considered the representation\nand disposed  it of,  or the  Minister of State for Home did\nso, since both had authority to act for the State Government\nand whatever  be the  instrumentality, it would be the State\nGovernment which  would be  considering and dealing with the\nrepresentation [292 D-H; 293 F]\n     Smt. Kavita  v. State  of Maharashtra,<\/a>  [1982] I S.C.R.\n138, followed.\n     2. The  State Government  did not\tcommit any breach of\nits constitutional or legal obligation in making a reference\nto the\tAdvisory Board\twithout first determining the period\nfor which the detenu was to be detained. [296 G]\n     2:2. It  is not  at all  necessary\t for  the  detaining\nauthority to  apply its\t mind and  consider at\tthe time  of\npassing the  order of detention or before making a reference\nto the\tAdvisory Board,\t as to\twhat shall  be the period of\ndetention and  whether the  detention  is  to  be  continued\nbeyond a  period of three months or not. The only inhibition\non the\tdetaining  authority  is  that\tit  cannot  lawfully\ncontinue the detention for a period longer than three months\nunless the  Advisory Board has, before the expiration of the\nperiod of  three months,  reported  that  there\t is  in\t its\nopinion sufficient cause for such detention. [296 E-F]\n     2:3. The requirement of clause (4) of Article 22 of the\nConstitution is\t satisfied by  the enactment of section 8(b)\nof  the\t COFEPOSA.  This  provision  for  reference  to\t the\nAdvisory Board\tis not confined to cases where the detaining\nauthority has  already come to a decision that the detention\nshall be continued for a period longer than three months. It\napplies equally\t where the  detaining authority\t has not yet\nmade up its mind as to how long the detention shall continue\nor even\t where the  detention is to continue for a period of\nthree months  or less.\tWhenever any  order of\tdetention is\nmade, whether  the detention  is to  continue for  a  period\nlonger than three months or a period of three months or less\nor the\tdetaining authority has not yet applied its mind and\ndetermined how\tlong the  detention shall  be continued, the\nappropriate Government\tis bound  within five weeks from the\ndate of\t detention to make a reference to the Advisory Board\nand if\tit fails  to do so, the continuance of the detention\nafter the  expiration of  the period of five weeks should be\nrendered invalid.  The Advisory Board is, in every such case\nwhere a reference is made, required to submit its report\n290\nwithin eleven  weeks from  the date  of detention  and if it\nreports that there is in its opinion no sufficient cause for\ndetention, the\tdetaining authority  is bound to release the\ndetenu forthwith,  even though\ta period of three months may\nnot have  expired since\t the date  of detention.  This is  a\nsafeguard provided  by the  COFEPOSA, which is applicable in\nall cases  of detention,  whether the  detention  is  to  be\ncontinued beyond a period of three months or not and whether\nor not\tthe detaining  authority has  applied its  mind\t and\ndetermined, before making a reference to the Advisory Board,\nas to what shall be the period of detention. [295 F-296 E]\n     3. The State Government, in the instant case, cannot be\nsaid to\t be guilty  of any unreasonable delay, at any stage,\nin considering\tthe representation of the detenu. [297D, 299\nB, D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGlNAL JURISDICTION:  Writ Petition Criminal No. 1892
\nof 1981.\n<\/p>\n
     Under Article 32 of the Constitution of India
\n     Ram Jethmalani,  Vineet Kumar, M. G. Karmali and Naresh
\nK Sharma for the Petitioner.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     BHAGWATI J.:  This is  a petition\tfor a writ of Habeas
\nCorpus for  securing the  release  of  one  Hasnain  Mukhtar
\nHussain Lakdawala  (hereinafter referred  to as\t the detenu)
\nwho has been detained by the Government of Maharashtra under
\nan order  of detention\tdated 31st  December  1980  made  in
\nexercise of  the powers\t conferred under section 3(1) of the
\nConservation of Foreign Exchange and Prevention of Smuggling
\nActivities  Act\t  1974\t(hereinafter   referred\t to  as\t the
\nCOFEPOSA. This order of detention though dated 31st December
\n1980 was  served on  the detenu\t on 17th  January  1981\t and
\nalongwith the  order of\t detention,  a\tcommunication,\talso
\ndated  31st   December\t1980,\twas  served  on\t the  detenu
\ncontaining the\tgrounds\t of  detention.\t The  Government  of
\nMaharashtra also  served on  the detenu\t at the\t same time a
\nletter dated  7th  January  1981  enclosing  copies  of\t the
\ndocuments relied  upon\tin  the\t grounds  of  detention.  It
\nappears that on 6th February 1981 the advocate of the detenu
\naddressed a  letter to\tthe Superintendent,  Bombay  Central
\nPrison where the detenu was then confined and alongwith this
\nletter he  forwarded nine copies of the representation which
\nwas to\tbe submitted  by the  detenu to\t the  Government  of
\nMaharashtra against  the order of detention. This letter was
\ndelivered by the authorities in charge of the Bombay Central
\nPrison to  the detenu  on 6th February 1981, but on the same
\nday the detenu was shifted from the Bombay Central Prison to
\nNasik
\n291<\/span>
\nRoad  Central\tPrison\tand   the   nine   copies   of\t the
\nrepresentation were therefore carried by the detenu with him
\nto the\tNasik  Road  Central  Prison  and  from\t there,\t the
\nrequisite number of copies of the representation duly signed
\nby  the\t  detenu  were\t forwarded  to\t the  Government  of
\nMaharashtra and\t the Chairman  of the Advisory Board on 10th
\nFebruary 1981.\tThis representation  was however rejected by
\nthe Government\tof Maharashtra\tby  its\t letter\t dated\t25th
\nFebruary 1981.\tIt appears that a copy of the representation
\nwas also sent by the detenu to the Central Government and by
\nits letter  dated 26th\tFebruary 1981 the Central Government
\ntoo rejected  the representation.  In the meantime, the case
\nof the detenu was referred to the Advisory Board and on 11th
\nMarch 1981, the detenu was called for an oral hearing by the
\nAdvisory Board and at this meeting the detenu handed over to
\nthe Chairman  and Members  of the Advisory Board four copies
\nof a  further representation dated 11th March 1981 addressed
\nby him\tjointly to  the Chairman  and  the  Members  of\t the
\nAdvisory Board\tand the\t Government of\tMaharashtra  praying
\nthat the  Government of Maharashtra may be pleased to revoke
\nthe order  of detention\t and set  the detenu at liberty. The
\nAdvisory Board\tconsidered the\tcase of\t the detenu and by a
\nletter dated  16th March 1981, the Secretary of the Advisory
\nBoard intimated\t to the\t advocate of  the  detenu  that\t the
\nAdvisory Board\thad by\tits report  dated  12th\t March\t1981
\nadvised\t the   Government  of  Maharashtra  that  there\t was
\nsufficient cause  for the detention of the detenu. The State
\nGovernment thereafter  in exercise  of the  powers conferred
\nunder clause  (f) of  section 8\t passed an  order dated 23rd
\nMarch 1981  reciting the opinion given by the Advisory Board
\nand confirming\tthe order  of the  detention. The petitioner
\nwho is\tthe wife  of  the  detenu  thereupon  preferred\t the
\npresent writ  petition challenging  the order  of  detention
\nmade  by   the\tGovernment   of\t Maharashtra   as  also\t the
\ncontinuance of\tthe detention  under  the  subsequent  order
\ndated 23rd March 1981.\n<\/p>\n
     There were\t several grounds  urged\t on  behalf  of\t the
\npetitioner in  support of  the petition and each one of them
\nwas seriously  pressed before us by Mr. Jethmalani on behalf
\nof the\tpetitioner. The\t first ground  was that the order of
\ndetention  was\tmade  by  one  P.  V.  Nayak,  Secretary  to
\nGovernment, Revenue  and Forest\t Department  and  Ex-officio
\nSecretary  to\tGovernment,  Home   Department\t while\t the
\nrepresentation made  by the  detenu  against  the  order  of
\ndetention was  considered and disposed of by the Minister of
\nState for  Home Affairs\t not by\t P. V. Nayak and hence there
\nwas no\teffective consideration of the representation of the
\ndetenu as  required by\tlaw. The  argument on  behalf of the
\ndetenu was that the representation of a
\n292<\/span>
\ndetenu must  be considered by the same person who has passed
\nthe order  of detention\t and since  in the present case, the
\nrepresentation was  considered by a different person, it was
\nnot a  valid and  proper consideration of the representation
\nand the\t continuance of\t the detention\tof  the\t detenu\t was
\ntherefore invalid  There was  also  another  related  ground
\nurged on  behalf of  the petitioner  and  it  was  that\t the
\nMinister of  State  for\t Home  affairs\twho  considered\t the
\nrepresentation of  the detenu  was not\tcompetent to  do so,
\nboth by\t reason of  lack of authority as also in view of the
\nfact that  the case  had already  been dealt  with by  P. V.
\nNayak. We  do not  think there is any substance in either of
\nthese two grounds. If we look at the order of the detention,
\nit is clear that it was not made by P. V. Nayak in his indi-
\nvidual capacity as an officer of the State Government but it
\nwas made by him as representing the State Government. It was
\nthe State  Government which  made  the\torder  of  detention
\nacting through the instrumentality of P. V. Nayak, Secretary
\nto Government who was authorised so to act for and on behalf
\nof and\tin the\tname of the State Government under the Rules
\nof Business.  Rule 15  of  the\tRules  of  Business  of\t the
\nGovernment of  Maharashtra provided that those Rules may “to
\nsuch extent  as necessary be supplemented by instructions to
\nbe issued  by the  Governor  on\t the  advice  of  the  Chief
\nMinister” and  in exercise of the power conferred under this
\nRule, the  Governor of\tMaharashtra issued  Instructions for
\nthe more  convenient transaction  of  the  business  of\t the
\nGovernment. Clauses  (4), (5)  and (6) of these Instructions
\nas they\t stood at  the material\t time provided inter alia as
\nunder:\n<\/p>\n
     4.\t  Except   as\t otherwise   provided\t in    these
\n\t  Instructions, cases  shall ordinarily\t be disposed
\n\t  of by, or under the authority, of the Minister-in-
\n\t  charge, who  may by  means of standing orders give
\n\t  such directions  as he thinks fit for the disposal
\n\t  of  cases   in  the  Department,  Copies  of\tsuch
\n\t  standing orders  shall be sent to the Governor and
\n\t  the Chief Minister.\n<\/p>\n
     5\t  Each Minister\t shall arrange with the Secretary of
\n\t  the Department  what matters or classes of matters
\n\t  are to be brought to his personal notice.\n<\/p>\n
     6.\t      Except   as  otherwise   provided\t  in   these
\n\t  instructions, cases  shall  be  submitted  by\t the
\n\t  Secretary in\tthe Department\tto  which  the\tcase
\n\t  belongs to the Minister-in-charge.\n<\/p>\n
293<\/span><\/p>\n
     Pursuant  to   the\t instructions\tcontained  in  these
\nclauses, Shri  A. R.  Antulay, Chief Minister of Maharashtra
\nand Minister  incharge of  the\tHome  Department,  issued  a
\nStanding order\tdated 18th  July 1980  directing that  cases
\nunder sub-section  (I) of section 3 of the COFEPOSA Act need
\nnot be\tsubmitted to him or to the Minister of State for the
\nHome Department\t and that  such cases may be allotted to and
\ndisposed of  by any  of the six officers mentioned there one
\nof them being P. V. Nayak. On the same day, another Standing
\norder was  issued by  Sh. A.  R. Antulay  Chief Minister  of
\nMaharashtra and\t Minister-in-charge of\tHome  Department  in
\npursuance of the provisions contained in Rule 6 of the Rules
\nof  Business,\tdirecting  inter   alia\t  that\t all   cases
\nappertaining to\t the COFEPOSA  Act  and\t all  other  matters
\narising under  the provisions of that Act may be allotted to
\nthe Minister of State for Home Affairs. This latter Standing
\norder provided that nothing contained in it shall affect the
\ndirections contained in the earlier Standing order issued on
\nthe same day. It will therefore be seen that P. V. Nayak was
\nauthorised under  the earlier Standing order dated 18th July
\n1980 to deal with and dispose of cases under sub-section (I)
\nof section  3 of  the COFEPOSA and it was in exercise of the
\nauthority thus conferred upon him that P. V.
\nNayak acting  for the  State Government\t made the  order  of
\ndetention against  the assessee\t under\tsub-section  (I)  of
\nsection 3.  [t was the State Government which made the order
\nof detention and not P. V. Nayak in his individual capacity.
\nThe representation  made by  the detenu against the order of
\ndetention was  also therefore  required to  be considered by
\nthe State  Government and  either it could be disposed of by
\nP. V.  Nayak acting  for  the  State  Government  under\t the
\nearlier Standing  order dated 18th July 1980 or the Minister
\nof State  for Home  could dispose  it  of  under  the  later
\nStanding order\tdated 18th  July 1980.\tWhether P.  V. Nayak
\nconsidered the\trepresentation and  disposed it\t of  or\t the
\nMinister of State for Home did so would be immaterial, since
\nboth had  authority to\tact for\t the  State  Government\t and
\nwherever be  the instrumentality, whether P. V. Nayak or the
\nMinister of State for Home, it would be the State Government
\nwhich  would   be   considering\t  and\tdealing\t  with\t the
\nrepresentation. The  only requirement  of Article  22 (5) is
\nthat the  representation of the detenu must be considered by
\nthe detaining  authority which\tin the\tpresent case  is the
\nState Government  and this requirement was clearly satisfied
\nbecause when  the Minister  of State for Home considered the
\nrepresentation and  rejected it, he was acting for the State
\nGovernment  and\t the  consideration  and  rejection  of\t the
\nrepresentation was  by the  State Government.  There  is  no
\nrequirement express  or implied\t in  any  provision  of\t the
\nCOFEPOSA that the same person who acts for
\n294<\/span>
\nthe State  Government in  making the order of detention must
\nalso consider  the representation of the detenu. In fact, as
\npointed out  by Chinnappa  Reddy, J. in Smt. Kavita v. State
\nof  Maharashtra<\/a>(l)  a  Government  business  can  never\t get
\nthrough if the same individual has to act for the Government
\nin  every   case  or   proceeding  or  transaction,  however
\nadvantageous it\t may be\t to do so.” Moreover it would really
\nbe to  the advantage  of the detenu if his representation is
\nnot considered\tby the\tsame individual\t but fresh  mind  is
\nbrought to  bear upon  it.  We\tdo  not\t therefore  see\t any
\nconstitutional or  legal  infirmity  in\t the  representation
\nhaving been considered by the Minister of State for Home.\n<\/p>\n
     The next  contention of Mr. Jethmalani on behalf of the
\npetitioner was\tthat there  was nothing\t to  show  that\t the
\ndecision to  confirm the order of detention and continue the
\ndetention of the detenu was taken by the State Government as
\nrequired  by   clause  (f)   of\t section  8  and  hence\t the
\ncontinuance of\tthe detention  was  invalid.  lt  is  really
\ndifficult to  appreciate this  contention urged on behalf of
\nthe petitioner.\t It is\tclear from the annexures to the writ
\npetition that  after receipt  of the opinion of the Advisory
\nBoard that there was in its opinion sufficient cause for the
\ndetention of the detenu, the State Government in exercise of
\nthe powers  conferred under clause (f) of section 8, made an
\norder dated  23rd March\t 1981 confirming the detention order
\nand continuing\tthe detention  of the detenu. This order was
\nexpressed to  be made  “By order  and in  the  name  of\t the
\nGovernor of  Maharashtra” and was authenticated by the Under
\nSecretary to  the Government of Maharashtra Home Department.
\nIt recited in so many terms that it was the State Government
\nwhich was  confirming the  order of detention and continuing
\nthe detention  of the detenu and no material has been placed
\nbefore\tus   on\t behalf\t  of  the  detenu  to  displace\t the
\ncorrectness of this recital. There can therefore be no doubt
\nthat the  ord r\t confirming the\t detention of the detenu was
\nmade  by   the\tState  Government.  Moreover,  we  have\t the
\nstatement on  oath made by C. V. Karnik, Assistant Secretary
\nto the\tGovernment of Maharashtra, Home Department that “the
\nGovernment of  Maharashtra thereafter  under clause  (f)  of
\nsection 8 of the said Act confirmed the said detention order
\nby an order dated 23rd March 1981.”\n<\/p>\n
     lt was  then contended  by Mr.  Jethmalani on behalf of
\nthe petitioner\tthat under clause (b) of section 8 it as the
\nobligation of
\n295<\/span>
\nthe State  Government to  make a  reference to\tthe Advisory
\nBoard A\t within five weeks from the date of detention of the
\ndetenu\tand  there  was\t nothing  to  show  that  the  State
\nGovernment had\tmade such a reference to the Advisory Board.
\nThis  contention  is  also  without  substance\tand  totally
\nfutile, because\t it is\tclear from  the statement  of C.  V.
\nKarnik in  his affidavit  that it  was the  State Government
\nwhich referred\tthe case of the detenu to the Advisory Board
\nunder clause  (b) of  section 8\t and no\t material  has\tbeen
\nplaced before  us on  behalf of the detenu controverting the
\ncorrectness of\tthis statement.\t Mr. Jethmalani\t also raised
\nanother contention  in this  connection\t and  it  was  that,
\nbefore making  a reference  to the Advisory Board, the State
\nGovernment had\tnot applied its mind to the question whether
\nit was\tnecessary to  detain the  detenu for a period longer
\nthan three  months and this non application of mind vitiated
\nthe reference to the Advisory Board and the subsequent order
\nof confirmation\t following upon\t it.  The  argument  of\t Mr.
\nJethmalani was\tthat it\t was only  if the  State  Government
\ndecided to  detain a  person for  a period longer than three
\nmonths that it was required to refer the case of such person
\nto the Advisory Board and it was therefore necessary for the
\nState Government  in every  case of  detention to  apply its
\nmind and  consider at least before making a reference to the
\nAdvisory Board whether the detention was to be continued for
\na period  longer than  three months. We are of the view that
\nthis argument  is not  well founded and must be rejected. It
\nis clear  that\tunder  clause  (4)  of\tArticle\t 22  no\t law
\nproviding  for\t preventive  detention\t can  authorise\t the
\ndetention of  a person for a period longer than three months
\nunless the Advisory Board has reported before the expiration
\nof the\tperiod of  three months that there is in its opinion
\nsufficient cause  for such  detention. This  requirement  of
\nclause (4)  of Article\t22 is  satisfied by the enactment of
\nsection 8  iq the  COFEPOSA. Section  8 clause\t(b) provides
\nthat in\t case of  every detention the appropriate Government
\nshall, within  five weeks from the date of detention, make a
\nreference to  the Advisory  Board and  the Advisory Board is
\nrequired to  make a  report as\tto whether  or not  there is
\nsufficient cause  for the detention of the detenu and submit
\nthe same  to the  appropriate Government within eleven weeks
\nfrom the  date of  detention of\t the detenu.  The period  of
\neleven weeks  from the\tdate of\t detention is prescribed for
\nthe submission\tof the report obviously because under clause
\n(4) of\tArticle 22  no detention can lawfully continue for a
\nperiod longer  than three  months unless  the Advisory Board
\nhas reported  before the  expiration of\t the period of three
\nmonths that  there is  in its  opinion sufficient  cause for
\nsuch detention.\t But one  thing is clear that this provision
\nfor reference to the Advisory Board is not confined to cases
\nwhere
\n296<\/span>
\nthe detaining  authority has already come to a decision that
\nthe detention  shall be\t continued for\ta period longer than
\nthree  months.\t It  applies  equally  where  the  detaining
\nauthority has  not yet\tmade up\t its mind as to how long the
\ndetention shall\t continue or  even where the detention is to
\ncontinue for  a period of three months or less. Whenever any
\norder of  detention is\tmade, whether  the detention  is  to
\ncontinue for  a period\tlonger than three months or a period
\nof three  months or  less or the detaining authority has not
\nyet applied  its mind  and determined how long the detention
\nshall be  continued, the  appropriate  Government  is  bound
\nwithin five  weeks from\t the date  of detention\t to  make  a
\nreference to  the Advisory  Board and  if it fails to do so,
\nthe continuance of the detention after the expiration of the
\nperiod of five weeks would be rendered invalid. The Advisory
\nBoard is,  in every  such case\twhere a\t reference is  made,
\nrequired to  submit its\t report within eleven weeks from the
\ndate of\t detention and\tif it  reports that  there is in its
\nopinion no  sufficient cause  for  detention  the  detaining
\nauthority is  bound to\trelease the  detenu forthwith,\teven
\nthough a  period of  three months may not have expired since
\nthe date  of detention.\t This is a safeguard provided by the
\nCOFEPOSA Act, which is applicable in all cases of detention,
\nwhether the  detention is to be continued beyond a period of
\nthree months  or  not  and  whether  or\t not  the  detaining
\nauthority has applied its mind and determined, before making
\na reference  to the  Advisory Board, as to what shall be the
\nperiod of  detention. We  are clearly of the view that it is
\nnot at\tall necessary  for the\tdetaining authority to apply
\nits mind  and consider\tat the\ttime of passing the order of
\ndetention or  before making  a\treference  to  the  Advisory
\nBoard, as  to what  shall be  the period  of  detention\t and
\nwhether the  detention is to be continued beyond a period of
\nthree months  or not.  The only\t inhibition on the detaining
\nauthority is  that it cannot lawfully continue the detention
\nfor a  period longer  than three  months unless the Advisory
\nBoard has,  before the\texpiration of  the period  of  three
\nmonths, reported  that three  is in  its opinion  sufficient
\ncause for  such detention.  We must  therefore hold that the
\nState  Government   did\t not   commit  any   breach  of\t its
\nconstitutional or  legal obligation in making a reference to
\nthe Advisory  Board without first determining the period for
\nwhich the detenu was to be detained.\n<\/p>\n
     Mr. Jethmalani  on\t behalf\t of  the  petitioner  lastly
\nsubmitted that\tthere was  unreasonable delay on the part of
\nthe State  Government in  considering the  representation of
\nthe detenu  and this  delay was fatal to the validity of the
\ncontinuance  of\t the  detention.  This\tcontention  is\talso
\nwithout substance and must be rejected. It is no
\n297<\/span>
\ndoubt true  that the advocate of the detenu sent nine copies
\nof the\trepresentation to  the detenu  on 6th February, 1981
\nand these  nine copies\tcame  to  be  forwarded\t to  various
\nauthorities only on 10th February, 1981 but the affidavit of
\nB. B.  Mulay, Jailer  attached to the Bombay Central Prison,
\nshows that these nine copies were handed over by B. B. Mulay
\nto the\tdetenu as soon as they were received by him from the
\nemissary of the detenu’s advocate and the detenu got B these
\ndocuments on the same day, namely 6th February, 1981. B. B.
\nMulay asked  the detenu\t to sign the representation and hand
\nover the  same for  being forwarded  to the State Government
\nbut the\t detenu stated that he would sign the representation
\nonly after  going through  it and  he therefore\t carried the
\nnine copies  of the  representation with  him to  the  Nasik
\nCentral Jail  where he\twas shifted  in the  evening of\t 6th
\nFebruary, 1981\tand it\twas only on 10th February, 1981 that
\nhe signed  all the  nine copies\t of the\t representation\t and
\nhanded over  the same to C. P. Gaekwad, Jailer, In-charge of
\nthe Nasik  Central Prison  and according to the affidavit of
\nC. P.  Gaekwad, these nine copies of the representation duly
\nsigned by  the\tdetenu\twere  forwarded\t to  the  respective
\nauthorities on\tthe same  day. There  was therefore  no\t un-
\nreasonable delay  on the  part of  the State  authorities at
\nthis stage.\n<\/p>\n
     Proceeding further we find that the representation sent
\nby the\tdetenu was  received in\t the Home  Department of the
\nState Government on 13th February, 1981 and on the same day,
\na letter  was  addressed  by  the  Home\t Department  to\t the
\nCollector of  Customs calling  for his\tremarks in regard to
\nthe various  allegations contained in the representation and
\npara-wise comments were received from the Customs Department
\non 21st\t February, 1981.  Now, it  cannot be  said that\t the
\nGovernment   acted    unreasonably   in\t   forwarding\t the
\nrepresentation of the detenu to the Collector of Customs and
\nwaiting\t for   the  para-wise\tcomments  of   the   Customs
\nAuthorities, since  there were\tvarious allegations  made in
\nthe representation  which called  for the  comments  of\t the
\nCustoms Department  and without\t such  comments,  the  State
\nGovernment  could  not\tfairly\tand  properly  consider\t the
\nrepresentation of  the detenu.\tIt may\tbe  noted  that\t the
\ncommunication from  the Home Department dated 13th February,
\n1981 could  not have  reached the Collector of Customs until
\n16th February,\t1981 because  14th and\t15th  February\twere
\nSaturday and Sunday and therefore closed holidays. The reply
\nof the\tCustoms\t Authorities  which  was  received  on\t21st
\nFebruary 1981 must have been despatched on 20th February and
\ntherefore the  Customs Authorities  did not  have more\tthan
\nfour or\t five days  within which  to give  their comments in
\nregard to the various allegations contained in the repre-\n<\/p>\n
298<\/span><\/p>\n
sentation of  the detenu  and this time taken by the Customs
\nAuthorities cannot  be regarded\t as unreasonable.  We do not
\nthink that in these circumstances the State Government could
\nbe said to be guilty of any unreasonable delay so far as the
\nperiod between\t13th February  and 21st\t February,  1981  is
\nconcerned.\n<\/p>\n
     There  was\t  also\tno  unreasonable  delay\t after\t21st
\nFebruary, 1981. The affidavit of C. V. Karnik shows that the
\nrepresentation of  the detenu  was immediately put up before
\nthe Minister  of State\tfor Home  for consideration,  in the
\nlight of  the comments received from the Customs Authorities
\nand the\t representation was  considered and  rejected by the
\nMinister of  State for\tHome  on  23rd\tFebruary,  1981\t and
\nnecessary intimation  to that  effect was  conveyed  to\t the
\ndetenu\tby   a\tletter\tdated  25th  February  1981.  It  is
\nimpossible to hold in these circumstances that there was any
\nunreasonable delay  on the  part of  the State Government in
\nconsidering  the  representation  of  the  detenu  and\tthis
\ncontention of Mr. Jethmalani must be rejected.\n<\/p>\n
     These were\t all the  contentions urged on behalf of the
\npetitioner and\tsince there  is no  substance in  them,\t the
\npetition fails and is dismissed.\n<\/p>\n
S. R.\t\t\t\t\t Petition dismissed.\n299<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Smt. Masuma vs State Of Maharashtra & Anr on 12 August, 1981 Equivalent citations: 1981 AIR 1753, 1981 SCR (1) 288 Author: P Bhagwati Bench: Bhagwati, P.N. PETITIONER: SMT. MASUMA Vs. RESPONDENT: STATE OF MAHARASHTRA & ANR. DATE OF JUDGMENT12\/08\/1981 BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. ERADI, V. BALAKRISHNA (J) CITATION: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-187701","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSmt. 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