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

This is a petition for a Writ of Habeas Corpus for securing the release of one Hasnain Mukhtar Hussain Lakdawala (hereinafter referred to as the detenu) who has been detained by the Government of Maharashtra under an order of detention dated 31st Dec. 1980 made in exercise of the powers conferred under Sec. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act). This order of detention though dated 31st Dec. 1980 was served on the detenu on 17th Jan. 1981 and along with the order of detention, a communication, also dated 31st Dec. 1980, was served on the detenu containing the grounds of detention. The Government of Maharashtra also served on the detenu at the same time a letter dated 7th Jan. 1981 enclosing copies of the documents relied upon in the grounds of detention. It appears that on 6th Feb. 1981 the advocate of the detenu addressed a letter to the Superintendent, Bombay Central Prison where the detenu was then confined and along with this letter he forwarded nine copies of the representation which was to be submitted by the detenu to the Government of Maharashtra against the order of detention. This letter was delivered by the authorities in charge of the Bombay Central Prison to the detenu on 6th Feb. 1981, but on the same day the detenu was shifted from the Bombay Central Prison to Nasik Road Central Prison and the nine copies of the representation were therefore carried by the detenu with him to the Nasik Road Central Prison and from there, the requisite number of copies of the representation duly signed by the detenu were forwarded to the Government of Maharashtra and the Chairman of the Advisory Board on 10th February 1981. This representation was however rejected by the Government of Maharashtra by its letter dated 25th Feb. 1981. It appears that a copy of the representation was also sent by the detenu to the Central Government and by its letter dated 26th Feb. 1981 the Central Government too rejected the representation. In the meantime, the case of the detenu was referred to the Advisory Board and on 11th March 1981, the detenu was called for an oral hearing by the Advisory Board and at this meeting the detenu handed over to the Chairman and Members of the Advisory Board four copies of a further representation dated 11th March 1981 addressed by him jointly to the Chairman and the Members of the Advisory Board and the Government of Maharashtra praying that the Government of Maharashtra may be pleased to revoke the order of detention and set the detenu at liberty. The Advisory Board considered the case of the detenu and by a letter dated 16th March 1981, the Secretary of the Advisory Board intimated to the advocate of the detenu that the Advisory Board had by its report dated 12th March 1981 advised the Government of Maharashtra that there was sufficient cause for the detention of the detenu. The State Government thereafter in exercise of the powers conferred under cl. (f) of S. 8 passed an order dated 23rd March 1981 reciting the opinion given by the Advisory Board and confirming the order of the detention. The petitioner who is the wife of the detenu thereupon preferred the present writ petition challenging the order of detention made by the Govt. of Maharashtra as also the continuance of the detention under the subsequent order dated 23rd March 1981.

Reasoning: 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.