TaxTMI 
TaxTMI 
TaxTMI 
2020 (6) TMI 680
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.... since 11th October, 2019. 2. The brief relevant facts of this case are as under: 2.1 On 21st February, 2018, Joint Secretary to the Government of India, empowered under Section 3(1) of the COFEPOSA Act, 1974, passed the Detention Order for detention of the petitioner for preventing him from abetting smuggling of goods, keeping smuggled goods and dealing in smuggled goods in future. 2.2 The grounds of detention were served on the petitioner on 15th October, 2019. In para 15 of the Detention Order, the petitioner was informed of his right to make a representation against the detention to the Detaining Authority; to the Central Government and to the Advisory Board. Para 15 of the grounds of detention order is reproduced hereunder: "15 You have a right to make representation against your detention to the Detaining Authority, to the Central Government as well as to the Advisory Board. If you wish to avail your right of making representation, you should send it through the Jail Authorities, where you are detained, in the manner indicated below: (i) Representation meant for the Detaining Authority should be addressed to the Joint Secretary (COFEPOSA), Government of India, Ministry....
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....onsidering the representation of the detenues on the ground of awaiting the report of the Central Advisory Board violated the constitutional rights of the detenues. The Supreme Court quashed the detention order holding the detention to be illegal, invalid and unconstitutional and the detenues were directed to be set at liberty forthwith. Reliance is also placed on the judgment of the Kerala High Court in V.K. Anusree v. Union of India, WP(Crl.) No. 45 of 2020 decided on 17th March, 2020 in which the Kerala High Court, following the Ankit Ashok Jalan (supra), quashed the detention order. 4. Mr. Amit Mahajan, learned Standing Counsel urged at the time of the hearing that there is no undue delay on the part of the Detaining Authority to consider the petitioner's representation. It is submitted that the petitioner's representation was received by the Detaining Authority on 06th November, 2019 and was forwarded for comments to the Sponsoring Authority on the same day. While waiting for the comments from the Sponsoring Authority, the Detaining Authority made a reference to the Central Advisory Board on 13th November, 2019. The copy of the representation of the petitioner and the commen....
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.... S.N. Thakur, (1986) 2 SCC 709, Sarwan Kumar v. Madan Lal Aggarwal, (2003) 4 SCC 147 and M.A. Murthy v. State of Karnataka, (2003) 7 SCC 517. Legal position 6. In Ankit Ashok Jalan (supra), the detenues made a representation to the Detaining Authority which was sent for comments to the Sponsoring Authority. The detenue's representation and the comments of the department were thereafter forwarded to the Central Advisory Board. The Detaining authority communicated to the detenues that their representation would be considered after the opinion of the Central Advisory Board. The Central Advisory Board gave its opinion on 06th December, 2019. The Central Government confirmed the detention on 14th January, 2020. The Detaining Authority considered and rejected the representation of the detenues on 14th January, 2020. As such, there was delay of 47 days in considering the representation of the detenues. 7. The detenues challenged the Detention Order on the ground that the Detaining Authority ought to have considered the representation without waiting for the report of the Central Advisory Board and delay in consideration of the representation violated the rights of the detenues guarante....
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....tion to the right to make the representation to the State Government and the Central Government. It must be stated that para 12 of the grounds of detention in the instant case, as quoted hereinabove, is in tune with the law so declared by this Court." 11. In para 19, the Supreme Court considered Pankaj Kumar Chakrabarty v. State of West Bengal, (1969) 3 SCC 400, Jayanarayan Sukul v. State of West Bengal, 1970) 1 SCC 219 and Haradhan Saha v. The State of West Bengal, (1975) 3 SCC 198 and held that the Detaining Authority has to consider the detenue's representation whether made before or after the reference to the Advisory Board. Para 20 of the judgment is reproduced hereunder: "20. It was, thus, clarified that if the representation is received before the matter is referred to the Advisory Board, the Detaining Authority ought to consider such representation; and if the representation is made after the matter is referred to the Advisory Board, the Detaining Authority would first consider it and then send the representation to the Advisory Board." 12. The Supreme Court thereafter considered Frances Coralie Mullin v. W.C. Khambra, (1980) 2 SCC 275, K.M. Abdullah Kunhi and Jayanarav....
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....ence is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha, the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board. D) If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition." 14. In para 34 of the judgment, the Supreme Court noted that K.M. Abdullah Kunhi (supra) held that the Government would wait for the report of the Advisory Board in two situations. Para 34 of the judgment is reproduced hereunder: "34. However, it was for the first time that the decision in K.M. Abdulla Kunhi laid down in paragraph 16 that it would be proper for the Government in the two situations dealt with in said paragraph to await the report of the Board; those two situations being: - a. where the representation is received before the matter is referred to the Advisory Board and where there may not be sufficient time to dispose of the representation be....
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....entation as stated above, we hold that the constitutional rights of the detenues were violated and the detenues are entitled to redressal on that count. We, therefore, allow this Writ Petition and hold the continued detention of the detenues in terms of the Detention Orders to be illegal, invalid and unconstitutional. 47. This writ petition is therefore allowed. The Detention Orders are quashed and the detenues are directed to be set at liberty forthwith, unless their custody is required in connection with any other proceedings or crime" Findings 17. Applying the principles laid down by the Supreme Court in Ankit Ashok Jalan (supra), this Court holds that the Detaining Authority was obliged to expeditiously consider the petitioner's representation without waiting for the opinion of the Central Advisory Board. 18. There is no valid explanation for non-consideration of the petitioner's representation from 06th November, 2019 to 18th December, 2019. There is no merit in the respondents' explanation that they were waiting for the report of the Central Advisory Board. This very objection was raised before the Supreme Court but was rejected in Ankit Ashok Jalan (supra). 19. The del....