Court sets aside detention order under COFEPOSA Act for failure to consider revocation order.

The court allowed the writ petition, setting aside the impugned order confirming the detention under the COFEPOSA Act. The court held that the failure to consider the revocation order of a co-detenu by the Advisory Board and the Government vitiated the detention order. Emphasizing constitutional safeguards under Article 22, the court highlighted the importance of providing the detenu with the opportunity to make representations. The non-placement of relevant documents before the detaining authority, including the revocation order, was deemed sufficient to invalidate the detention. The detenu was directed to be released unless required in another case.

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Issues Involved:
1. Legality of the detention order under COFEPOSA Act.
2. Non-consideration of revocation order of a co-detenu by the Advisory Board and the Government.
3. Constitutional safeguards under Article 22 of the Constitution of India.
4. Impact of non-placement of relevant documents before the detaining authority.

Detailed Analysis:

1. Legality of the Detention Order under COFEPOSA Act:
The Habeas Corpus writ petition was filed challenging the detention order (Ext.P1) dated 15.03.2014, issued under Sections 3(1)(i) and 3(1)(ii) of the COFEPOSA Act, 1974, against the detenu, who was detained on 26.08.2018. The detenu had previously challenged this order unsuccessfully at both the High Court and the Supreme Court.

2. Non-consideration of Revocation Order of a Co-detenu by the Advisory Board and the Government:
The core contention in the petition was the non-consideration of Annexure-1, an order revoking the detention of a co-detenu (Sri. Shahbas) in the same transaction, by the Advisory Board and the Government. The petitioner's counsel argued that this failure was fatal to the detention order and its confirmation. The court noted that the Advisory Board had previously found no sufficient reason for detaining the co-detenu, Sri. Shahbas, and thus, the Government had revoked his detention. The court held that the Advisory Board's failure to consider this relevant fact while giving its opinion on the detenu's case vitiated the detention order.

3. Constitutional Safeguards under Article 22 of the Constitution of India:
The court referred to the Constitutional Bench decision in K.M.Abdulla Kunhi v. Union of India, which emphasized the safeguards under Article 22(4) and (5) of the Constitution. These clauses mandate that the detenu should be given the earliest opportunity to make a representation against the detention order, and the Advisory Board must report within three months whether there is sufficient cause for detention. The court reiterated that these safeguards are not mere formalities but essential rights that must be independently considered by the Government.

4. Impact of Non-placement of Relevant Documents before the Detaining Authority:
The court examined the impact of non-placement and non-consideration of the revocation order of the co-detenu before the detaining authority. It referred to various judgments, including the Bombay High Court's decision in Smt. Chandbi Mohomed Hanif Abubakar v. Union of India and the Supreme Court's decision in Alpesh Navinchandra Shah v. State of Maharashtra, which held that non-consideration of such relevant documents vitiates the detention order. The court concluded that the failure to consider Annexure-1 (revocation order of the co-detenu) by both the Advisory Board and the Government was sufficient to vitiate the order confirming the detention of the detenu.

Conclusion:
The court allowed the writ petition, setting aside the impugned order (Ext.P8) dated 12.11.2018, which confirmed the detention order (Ext.P1). The detenu was directed to be released forthwith unless required in any other case.

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