Research › Browse › Judgment

Allahabad High Court · body

1985 DIGILAW 611 (ALL)

MANOJ KUMAR KHANDUJA v. THE STATE OF U. P.

1985-05-23

I.P.SINGH, R.P.SHUKLA

body1985
I. P. SINGH, J. ( 1 ) MANOJ Kumar Khanduja petitioner (hereinafter referred to as the detenu) has filed this writ petition to challenge the validity of the detention order passed by the State Government, through the Joint Secretary, Home and Confidential Section, under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (No. 52 of 1974) (hereinafter referred to as the COFEPOSA) with a view to preventing him from smuggling goods or engaging in transporting or concealing or keeping smuggled goods. ( 2 ) WE have heard the learned counsel for both sides and are of the opinion that since this writ petition can be disposed of on a short point to be discussed presently, we need not detail the other facts or circumstances involved or detailed in the writ petition. ( 3 ) THE learned counsel for the detenu has pointed out that although the State Government had submitted report to the Central Government under section 3 (2) of the Act, yet it was not forwarded to the Central Government within ten days of the passing of the detention order, thereby violating the said mandatory provisions rendering the detention order invalid. ( 4 ) HOWEVER, in paragraph 7 of the counter affidavit of Sri Rajendra Prasad Fuloria, Upper Division Assistant, Confidential Section 5, Uttar Pradesh Shasan, Lukhnow, it is mentioned that the report as required in section 3 (2) of the Act was sent to the Central Government on 8. 11. 1984. The said section 3 (2) provides that the State Government shall within ten days forward to the Central Government a report in respect of the order (detention order ). The word forward is significient and when the said report was sent to the Central Government on 8. 10. 1984 it means that it was forwarded to the Central Government on the date. In our view, section 4 (2) of the Act was duly complied with. ( 5 ) HOWEVER, the learned counsel for the detenu has argued that once the said report is received by the Central Government, then it has to be disposed of expeditiously by the Central Government. In our view, section 4 (2) of the Act was duly complied with. ( 5 ) HOWEVER, the learned counsel for the detenu has argued that once the said report is received by the Central Government, then it has to be disposed of expeditiously by the Central Government. It is pointed out that, in said paragraph 7 of the counter-affidavit of Sri Fuloria, it is stated that the deponent was not aware of any decision given by the Central Government in that regard; inasmuch as it had not been communicated to the State Government. Union of India is respondent No. 4 to the writ petition. Its notice was duly taken by the Senior Standing Counsel on behalf of the Central Government on 15. 2. 1985. No counter-affidavit has been filed on behalf of Union of India. Thus we have every reason to hold that the said report submitted by the State Government has not so far been disposed of by the Central Government. ( 6 ) WE are of the opinion that when the statute makes it obligatory that the State Government shall forward the report about the making of detention order to the Central Government then it attaches an obligation impliedly on the Central Government to dispose of the same. This will be necessary to make section 11 of the Act, which deals with revocation of detention order by the Central Government, in case the detention order is passed by the State Government meaningful. Only when the report submitted by the State Government is disposed of by the Central Government that the Central Government can reach the conclusion as to whether the particular detention order is to be revoked or not. In this view of the matter, we are supported by a decision in the case of Hitendra Nath Goswami, Petitioner v. State of Assam and others, Respondents1, in which it was held: The discretionary power of the Central Government under section 14 (1) in the context of section 3 (5) is coupled with duty to consider the report received from the State Government with reasonable expedition, notwithstanding that no representation petition has been made by the detenu to the Central Government, what is reasonable expedition depends on the circumstances of the particular case, and in case of breach of such procedural safeguard, the detention order is liable to be set aside and the detenu set at liberty. ( 7 ) THIS was with reference to the provisions of National Security Act, 1980 but section 14 (1) is parrallel to section 11 of COFEPOSA. ( 8 ) IN view of this matter, we allow the writ petition holding the detention order illegal and direct the respondents not to detain Manoj Kumar Khanduja petitioner (detenu) any more in pursuance of the detention order dated 29. 9. 1984 passed by the State Government. It is made clear that the order, which is passed by us to-day, will not entitle the detenu to be released physically if he could be detained in pursuance of any other lawful order or is wanted otherwise in any other matter. Petition allowed. .