Case: Sabir Ahmed Vs. Union of India and Others

The detenu was in the custody of the Customs when on September 8, 1979, he was produced before the Metropolitan Magistrate, Esplanade Court, Bombay and was remanded to judicial custody and later on granted bail by the Sessions Judge by an order, dated September 28,October 2, 1979, an order of detention passed under Section 3(1) of COFEPOSA by Shri Pradhan, the Secretary to Maharashtra Government in the Home Department, was served on him. The grounds of detention were also served on him on the sameNovember 14, 1979, the detenu made a representation to the detaining authority, in which he inter alia asked for supply of the copies of documents and statements relied upon in the grounds of detention. The representation of the detenu was not dealt with by Shri Pradhan, but by the Minister of State in the Home Ministry of the State Government, and was rejected on December 10, 1979. The Minister is said to have been authorised to deal with the representation of detenus by a Standing Order made by the Chief Minister on December 3, 1979. In the meantime, the Advisory Board met and considered the representation of the detenu and made a report to the Government on December 6, 1979 for approval of the detention. The said Minister had dealt with the representation and rejected it after the Board had made its reports to theNovember, 19, 1979, the detenu made an application to the Central Government for revocation of the order of his detention under Section 11 of COFEPOSA, and this has not been dealt with by that Government till today

Reasoning: The power under sect ion 11 may either be exercised if on information received by the Central Government from its own sources including that supplied under Section 3 by the State Government, or, from the detenu in the form of a petition or representation. Whether o r not the Central Government on such petition/representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power under section 11 is a supervisory power. It is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government. If this statutory safeguard is to retain its meaning an d efficacy, the Central Government must discharge its supervisory responsibility with constant vigilance and watchful care. The report received under Section 3, or any communication or petition received from the detenu must be considered with reasonable expedition. What is reasonable expedition is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable redtapism and unduly protractedin paragraph 7 of his affidavit, also, he had mentioned that he had sent a communication to the Central Government, Department of Revenue, COFEPOSA Branch, asking for revocation of the detention order, but no reply had been received. In spite of the fact that this ground was specifically taken, Mr. R.K. Thawani, Deputy Secretary to the Government of India, Ministry of Finance, has not in his counter-affidavit said anything with regard to this plea or the facts alleged in the affidavit of the writ-petitioner. The conclusion is, therefore inescapable that the Central Government has not at all considered the petition made by the detenu requesting for revocation of his detention under section 11. According to the allegations in the writ petition, this written communication was sent by the detenu to the Central Government on November 19, 1979. We are now in the middle of March,to the counter-affidavit filed by Mr. S. M. Sule, Under-Secretary to the Government of Maharashtra, Home Department, Mr.Nain submitted that, in his opinion, the Central Government did not consider the representation/petition of the detenu because it might be labouring under a misapprehension that once a writ petition for habeas corpus has been filed on behalf of the detenu and the court is seized of the case, anything done by the Government thereafter might amount to contempt of court.The apologetic explanation imagined by him contrary to the stand taken in Mr. Sules counter-affidavit, is hardly an excuse for not performing, its statutory duty by the Central Government. Although, about four months have gone by since the despatch of the representation by the detenu, yet the Central Government has not applied its mind to it. It has just ignoredratio of Tara Chands case and Shyam Ambalal Siroyas case applied with all its force to the facts of the instant case. The decision in Mohd. Dhana Ali Khan, (supra) stands on its own peculiar facts. In principle, there is no conflict between the ratio of that case and the two subsequent decisionsratio of Tara Chands case was followed in Shyam Ambalal Siroyas case, wherein a stand similar to the one before us was taken by the Central Government in the counter-affidavit filed on its behalf. The stand taken was that the detention order was not vitiated merely because the Central Government had not considered the representation of the detenu made to it for revocation of the detention under section 11 of thethat case, the representation addressed to the Central Government was not forwarded to the Central Government an d, as such, was left unattended for nearly fouris true that in Shyam Ambalal Siroyas case, the detaining authority was a Additional Secretary to the Central Government. But he did not derive his authority to pass the detention order from the rules of business framed by the Central Government under Article 77(3) of the Constitution. Such authority was given to him under the statute itself. It is, therefore, not correct to say that in that case, the order passed by the detaining authority was to be deemed an order passed by the Central Government itself. In any case, so far as the ratio of that decision is concerned, this is a distinction without aAmdalal Siroyas case was a decision rendered by a Bench of three learned Judges. We are bound by the ratio of the two aforesaid decisions. Respectfully following the same, we hold that since a representation made by the detenu to the Central Government has been ignored and left unattended for a period of about four months, the detention cannot be justified as being according to procedure prescribed by law. In view of the stand taken by the respondent-State in the counter-affidavit filed on its behalf, we do not feel inclined, in the circumstances of the case, to issue a direction to the Central Government to consider and dispose of the representation of the detenu,apologetic explanation imagined by him contrary to the stand taken in Mr. Sulesis hardly an excuse for not performing, its statutory duty by the Central Government. Although, about four months have gone by since the despatch of the representation by the detenu, yet the Central Government has not applied its mind to it. It has just ignored