Case: Smt. Masuma Vs. State Of Maharashtra &amp; Anr

fails to do so, the continuance of the detention after the expiration of the period of five weeks would be rendered invalid. The Advisory Board is, in every such case where a reference is made, required to submit its report within eleven weeks from the date of detention and if it reports that there is in its opinion no. sufficient cause for detention, the detaining authority is bound to release the detenu forthwith even though a period of three months may not have expired since the date of detention. This is a safeguard provided by the COFEPOSA Act, which is applicable in all cases of detention, whether the detention is to be continued beyond a period of three months or not and whether or not the detaining authority has applied its mind and determined, before making a reference to the Advisory Board, as to what shall be the period of detention. We are clearly of the view that 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 the expiration of the period of three months, reported that there is in its opinion sufficient cause for such detention. We must therefore hold that the State Government did not commit any breach of its constitutional or legal obligation in making a reference to the Advisory Board without first determining the period for which the detenu was to be detained.6. Mr. Jethmalani on behalf of the petitioner lastly submitted that there was unreasonable delay on the part of the State Government in considering the representation of the detenu and this delay was fatal to the validity of the continuance of the detention. This contention is also without substance and must be rejected, It is no. doubt true that the advocate of the detenu sent nine copies of the representation to the detenu on 6th Feb. 1981 and these nine copies came to be forwarded to the various authorities only on 10th Feb. 1981, but the affidavit of B. B. Mulay, Jailor attached to the Bombay Central Prison, shows that these nine copies were handed over by B. B. Mulay to the detenu as soon as they were received by him from the emissary of the detenus advocate and the detenu got these documents on the same day, namely, 6th Feb. 1981. B. B. Mulay asked the detenu to sign the representation and hand over the same for being forwarded to the State Government but the detenu stated that he would sign the representation only after going through it and he therefore carried the nine copies of the representation with him to the Nasik Central Jail where he was shifted in the evening of 6th Feb, 1981 and it was only on 10th Feb. 1981 that he signed all the nine copies of the representation and handed over the same to C. P. Gaekwad, Jailor, in-charge of the Nasik Central Prison and according to the affidavit of C. P. Gaekwad these nine copies of the representation duly signed by the detenu were forwarded to the respective authorities on the same day. There was therefore no. unreasonable delay on the part of the State authorities at this stage.7. Proceeding further we find that the representation sent by the detenu was received in the Home Department of the State Government on 13th Feb. 1981 and on the same day, a letter was addressed by the Home Department to the Collector of Customs calling for his remarks in regard to the various allegations contained in the representation and parawise comments were received from the Customs Department on 21st Feb. 1981. Now, it cannot be said that the Government acted unreasonably in forwarding the representation of the detenu to the Collector of Customs and waiting for the parawise comments of the Customs Authorities, since there were various allegations made in the representation which called for the comments of the Customs Department and without such comments, the State Government could not fairly and properly consider the representation of the detenu. It may be noted that the communication from the Home Department dated 13th February, 1981 could not have reached the Collector of Customs until 16th Feb. 1981 because 14th and 15th February were Saturday and Sunday and therefore closed holidays. The reply of the Customs Authorities which was received on 21st February 1981 must have been despatched on 20th Feb. and therefore the Customs Authorities did not have more than four or five days within which to give their comments in regard to the various allegations contained in the representation of the detenu and this time taken by the Customs Authorities cannot be regarded as unreasonable. We do not think that in these circumstances the State Government could be said to be guilty of any unreasonable delay so far as the period between 13th February and 21st February, 1981 is concerned.8. There was also no. unreasonable delay after 21st February, 1981. The affidavit of C. V. Karnik shows that the representation of the detenu was immediately put up before the Minister of State for Home for consideration, in the light of the comments received from the Customs Authorities and the representation was considered and rejected by the Minister of State for Home on 23rd Feb. 1981 and necessary intimation to that effect was conveyed to the detenu by a letter dated 25th February, 1981. It is impossible to hold in these circumstances that there was any unreasonable delay on the part of the State Government in considering the representation of the detenu and this contention of Mr. Jethmalani must be rejected.9.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We do not think there is any substance in either of these two grounds.If we look at the order of the detention, it is clear that it was not made by P. V. Nayak in his individual capacity # as an officer of the State Government but it was made by him as representing the State Government. It was the State Government which made the order of detention acting through the instrumentality of P. V. Nayak, Secretary to Government who was authorised so to act for and on behalf of and in the name of the State Government under the Rules of Business. # Rule 15 of the Rules of Business of the Government of Maharashtra provided that those Rules may "to such extent as necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister" and in exercise of the powers conferred under this Rule, the Governor of Maharashtra issued instructions for the more convenient transaction of the business of the Government Cls. (4), (5) and (6) of these instructions as they stood at the material time provided inter alia asExcept as otherwise provided in these Instructions, cases shall ordinarily be disposed of by, or under the authority, of the Minister-in-charge, who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department, copies of such standing orders shall be sent to the Governor and the Chiefis clear from the annexures to the writ petition that after receipt of the opinion of the Advisory Board that there was in its opinion sufficient cause for the detention of the detenu, the State Government, in exercise of the powers conferred under cl. (f) of S. 8, made an order dated 23rd March 1981 confirming the detention order and continuing the detention of theMr. Jethmalani on behalf of the petitioner lastly submitted that there was unreasonable delay on the part of the State Government in considering the representation of the detenu and this delay was fatal to the validity of the continuance of the detention.This contention is also without substance and must be rejected, It is no. doubt true that the advocate of the detenu sent nine copies of the representation to the detenu on 6th Feb. 1981 and these nine copies came to be forwarded to the various authorities only on 10th Feb. 1981, but the affidavit of B. B. Mulay, Jailor attached to the Bombay Central Prison, shows that these nine copies were handed over by B. B. Mulay to the detenu as soon as they were received by him from the emissary of the detenus advocate and the detenu got these documents on the same day, namely, 6th Feb. 1981. B. B. Mulay asked the detenu to sign the representation and hand over the same for being forwarded to the State Government but the detenu stated that he would sign the representation only after going through it and he therefore carried the nine copies of the representation with him to the Nasik Central Jail where he was shifted in the evening of 6th Feb, 1981 and it was only on 10th Feb. 1981 that he signed all the nine copies of the representation and handed over the same to C. P. Gaekwad, Jailor, in-charge of the Nasik Central Prison and according to the affidavit of C. P. Gaekwad these nine copies of the representation duly signed by the detenu were forwarded to the respective authorities on the same day. There was therefore no. unreasonable delay on the part of the State authorities at this stage.7.There was also no. unreasonable delay after 21st February, 1981. The affidavit of C. V. Karnik shows that the representation of the detenu was immediately put up before the Minister of State for Home for consideration, in the light of the comments received from the Customs Authorities and the representation was considered and rejected by the Minister of State for Home on 23rd Feb. 1981 and necessary intimation to that effect was conveyed to the detenu by a letter dated 25th February, 1981. It is impossible to hold in these circumstances that there was any unreasonable delay on the part of the State Government in considering the representation of the detenu and this contention of Mr. Jethmalani must be rejected.