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1992 DIGILAW 49 (KAR)

TAHSEEM BANU v. UNION OF INDIA

1992-01-28

body1992
VENKATACHALA, J. ( 1 ) DETENTION Order dated 22-10-1990 made under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, COFEPOSA Act), detaining Sri Abdul Mateen Kazia, a copy of which is produced at Annexure-A in this writ petition, has been impugned by his wife Smt. Tahseem Banu by filing this writ petition. ( 2 ) MATERIAL facts for deciding this writ petition briefly stated are : detention Order dated 22-10-1990 (Annexure-A) made by the Joint Secretary to Government of India, detaining Abdul Mateen Kazia - husband of the writ petitioner under S. 3 (1) of the COFEPOSA Act for preventing him from acting in any manner prejudicial to the augmentation of foreign exchange, was served on the detenu on 23-5-l99l and he was consequently detained in the Central Prison, Bangalore. Detenu made a representation respecting detention order to the detaining authorities on 23-5-1991 seeking annulment of the detention order on the grounds urged in the representation. But that representation being considered by the detaining authority came to be rejected on 14-6-1991 and the information of rejection was communicated to the detenu on 17-6-l99l. The writ petitioner, wife of the detenu, is said to have sent a representation dated 9-7-1991 to the Secretary, COFEPOSA Unit, Ministry of Finance, North Block, New Delhi, respecting the detention of her husband under the aforesaid detention order. This representation is said to have been received by the COFEPOSA Unit of the Ministry of Finance at New Delhi on 14-8-l99l though it was said to have been sent on 13-7-1991 by Registered Post. It is also admitted that the representation being considered by the detaining authority release of the detenu on parole was ordered on 11-10-1991. In the mean time, on 14-8-1991 the present writ petition was filed by the petitioner who is the wife of the detenu impugning the validity of the detention order by which he was detained. ( 3 ) TWO points are raised before us by Sri Kiran S. Javali, learned counsel for the petitioner, in support of the writ petition. The first of such contentions is that there being delay in considering the representation dated 9-7-1991 made regarding release from detention of the petitioner;s husband, on parole, the impugned detention order by which her husband has been detained stands vitiated. The first of such contentions is that there being delay in considering the representation dated 9-7-1991 made regarding release from detention of the petitioner;s husband, on parole, the impugned detention order by which her husband has been detained stands vitiated. The second contention then is that non-placing of the information relating the Writ Petition No. 53 of 1990 by the sponsoring authority before the detaining authority before the impugned detention order was made, has vitiated the impugned detention order by which the husband of the petitioner has been detained. ( 4 ) WE shall now proceed to examine the sustainability of the said contentions raised. (A)CONTENTIONS No. 1 : A copy of the representation dated 9-7-1991 said to have been made by the Petitioner to the Secretary, COFEPOSA Unit, Ministry of Finance, had not been produced along with the writ petition. We however requested the learned counsel to bring to our notice the request made in that representation to the Secretary, COFEPOSA Unit. He read out to us the representation and the prayer made thereunder. As we have understood the prayer made in the representation, it is a prayer made to the Secretary, COFEPOSA Unit, seeking release of the petitioner;s husband, the detenu under the impugned detention order, on Parole for the reason of his suffering from serious ailment of his body for which he had to undergo special medical treatment. When we find that the prayer in the representation is for releasing the detenu on parole, the question of considering such representation with the same expedition with which representation concerning detention order, should have been done, cannot be a ground for invalidating the detention order by which the detenu has been detained. If that be so, in our view, even if there appears to be any delay in consideration of that representation on the part of the detaining authority, such delay cannot constitute a ground for invalidating the detention order itself. Thus, the first contention fails. (B) Contention No. 2: Coming to this contention, it relates to non-placing of information relating to the Writ Petition No. 53 of 1990 by the sponsoring authority before the detaining authority at the time the detention order was made. Thus, the first contention fails. (B) Contention No. 2: Coming to this contention, it relates to non-placing of information relating to the Writ Petition No. 53 of 1990 by the sponsoring authority before the detaining authority at the time the detention order was made. Writ Petition No. 53 of 1990 which, according to the learned counsel, should have been placed before the detaining authority before the detention order was made by him so that he could have applied his mind to the matter covered in the writ petition, is the one filed by Mohiddin Abdulla in this court in which he had sought release of two brothers of the present detenu from the custody of enforcement authorities on the plea that they had been unlawfully detained by them. It was stated before us that two persons whose release was sought in the said writ petition are brothers of the detenu with whom we are concerned in this writ petition, And, they were taken into custody by the enforcement authorities by making a search of their house when the present detenu was taken into custody by the enforcement authority at Kerala. However, that writ petition was dismissed when the court was informed that the persons brothers of the detenu - who had been arrested had been lawfully arrested and produced before the concerned Magistrate as provided for under law. According to the learned counsel for the petitioner, when the statements made by the said two persons who, it was alleged in the writ petition, had been detained unlawfully were made use of by the detaining authority for the purpose of making detention order, furnishing to him the information relating the writ petition by which their arrest was questioned is material, inasmuch as it cannot be said that as to how that proceeding could have weighed with the detaining authority in deciding on the question of detention of the present detenu, the detenue with whom we are concerned in the present writ petition. We are unable to see how the information which is claimed to have been not furnished, would have, even remotely, influenced the mind of the detaining authority in the matter of making the detention order now made. We are unable to see how the information which is claimed to have been not furnished, would have, even remotely, influenced the mind of the detaining authority in the matter of making the detention order now made. In our view, the information which, it is alleged, has not been furnished, was wholly extraneous to the matter of detention of the present detenu with whom we are concerned, and, therefore, it could not have any hearing on the impugned detention order which had been made by the detaining authorities. In this view of the matter. Second Contention also fails. ( 5 ) IN the result, we find no merit in this writ petition, and, consequently we dismiss the same by discharging the rule issued. However, we make it clear that the dismissal of this writ petition shall not come in the way of the Government revoking the detention order, if they so choose, having regard to the deteriorating health of the detenu, in the event of a request in that regard is made by the petitioner or the detenu himself to the Central Government. No costs. Petition dismissed. --- *** --- .