Judgment

ORDER :- This petition for habeas corpus has been filed by the cousin of the detenu for setting aside the order of detention of the detenu. It appears that the order of detention against the detenu was passed on 4-10-1980 and served on him on 1-11-1980 when the detenu was taken into custody. On 6-11-1980 and 18-11-1980 some documents were served on the detenu. The final instalment of the documents and materials was served on the detenu on 21-11-1980. A representation was made by the detenu on 27-11-1980 which was rejected by the State Govt. on 30-12-1980. It is, therefore, clear that the order of detention suffers from two infirmities first, that the document, and materials were not supplied pari passu the grounds of detention and secondly, that there is delay of more that a month in disposing of the representation which itself is fatal to the order of detention. For these reasons, therefore, the petition is allowed and the continued detention is held void. The detenu is directed to be released forthwith.

Petition allowed.

$AIR 1981 SC 1753

= 1981 Cri. L. J. 1256

11111

-12-8-1981.

P.N. BHAGWATI AND V. BALAKRISHNA ERADI, JJ.

Smt. Masuma, Petitioner v. State of Maharashtra and another, Respondents.

Criminal Writ Petn. No. 1892 of 1981, D/-12-8-1981.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974), S.3(1) and S.8(f) - Order of detention made by Secretary to Govt. in exercise of power under S.3(1) - Representation disposed of by Minister of State for Home Affairs - Validity.

(i) Constitution of India, Art.22(5) and Art.166

(ii) Maharashtra Government Rules of Business R.15.

Where the order of detention was made by the Secretary to Govt. in exercise of powers conferred under S.3(1) the order could not be said to be invalid merely because the representation made by the detenu against the order of detention was considered and disposed of by the Minister of State for Home Affairs. When the order was not made by the Secretary to Govt. in his individual capacity as an officer of the State Govt. but it was made by him as representing the State Govt. it was the State Govt. which made the order of detention acting through the instrumentality of the Secretary to Govt. who was authorised so to act for and on behalf of and in the name of the State Govt. under the Rules of Business. There is no requirement express or implied in any provision of the COFEPOSA Act that the same person who acts for the State Govt. in making the order of detention must also consider the representation of the detenu. Further, when the Secretary of Govt. was authorised under standing order of the Chief Minister to deal with and dispose of the case and it was in exercise of the authority thus conferred that he acting for the State Govt. made the order of detention against the detenu under S.3(1), it was the State Govt. which made the order of detention and not the Secretary of Govt. in his individual capacity. Further, when the order of detention was made in the name of the Governor of the State and was authenticated by the Under Secretary to the Govt. and recited in so many words that it was the State Govt. which was confirming the order of detention and continuing the detention it could not be said that the decision to confirm the order of detention and continue the detention was not taken by the State Govt. as required by S.8(f) when the correctness of the order was not displaced by the detenu. AIR 1981 SC 1641, Rel. on. (Paras 2 and 3)

Furthermore, it is not at all necessary for the detaining authority to apply its mind and consider at the time of passing the order of detention or before making a reference to the Advisory Board as to what shall be the period of detention and whether the detention is to be continued beyond a period of three months or not. The only inhibition on the detaining authority is that it cannot lawfully continue the detention for a period longer than three months unless the Advisory Board has, before th