Case: Tara Chand Vs. State of Rajasthan and Others

FAZAL ALI J. 1. This writ petition by Tara Chand, a brother of the detenu, Hira Nand, has been filed against an order of detention dated June 30, 1979, passed by the Govt. of Rajasthan under the provisions of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (hereinafter called the " Cofeposa "). The detenu was arrested on July 19, 1979, and on the same day, he was served with the grounds of detention in which there was no indication, although there should have been, that the detenu was entitled to make a representation to the detaining authority. However, Smt. Nita, the wife of the detenu, made two representations dated July 26, 1979, and July 31, 1979, to the State Govt. but the same were rejected on or before the 30th August, 1979. The counsel appearing for the petitioner has not made any grievance regarding the rejection of these two representations by the State Govt. It appears, however, that on the 6th December, 1979, another representation was sent by Smt. Nita to the Home Minister of Rajasthan, the President of India, the Prime Minister of India and the Finance Minister of the Union Govt. praying that the order of detention should be revoked. From a letter sent to the detenu from the Presidents Secretariat on October 9, 1979, it appears that the President had received his representation before October 9, 1979, and the same had been forwarded to the Finance Ministry of the Union Govt. for necessary action. It is common ground that neither the representation was considered by the Union of India nor was any order passed by it. A general plea was taken by Mr. Abdul Khadar that probably the Union of India did not receive this representation at all which, however, is clearly falsified by the letter sent by the President of India, which we have referred to above. In the counter-affidavit filed by the Govt. of India also a very vague and evasive stand appears to have been taken. It is not said that any orders were passed on the representation or that it was considered but it is said that it was to abide by any stand taken by the State Govt. Section 11 (1) of the Cofeposa Act clearly enjoins that the Central Govt. may revoke or modify an order passed by the State Govt. Mr. Abdul Khadar fairly conceded that the Central Govt. had a discretion under s. 11 of the Cofeposa Act to revoke the order of detention. Thus, when once a representation is made to the Central Govt. it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to a violation of the provisions of art. 22(5) so as to render the detention unconstitutional and void.

Decision reasoning: 1[ds]It is common ground that neither the representation was considered by the Union of India nor was any order passed by it. A general plea was taken by Mr. Abdul Khadar that probably the Union of India did not receive this representation at all which, however, is clearly falsified by the letter sent by the President of India, which we have referred to aboveIt is not said that any orders were passed on the representation or that it was considered but it is said that it was to abide by any stand taken by the State Govt. Section 11 (1) of the Cofeposa Act clearly enjoins that the Central Govt. may revoke or modify an order passed by the State Govt. Mr. Abdul Khadar fairly conceded that the Central Govt. had a discretion under s. 11 of the Cofeposa Act to revoke the order of detention. Thus, when once a representation is made to the Central Govt. it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to a violation of the provisions of art. 22(5) so as to render the detention unconstitutional and void.