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Judgment
One Madeena Beevi (petitioner) is the grand-mother of the detenu J. S. M. Kader Riyaz. The detenu, it is said, is a native of Keelakarai and he
has studied up to 8th standard. He, it is stated, had been running a silver shop in the name of ""Hameedha Jewellers"" at No. 146, N.S.C. Bose
Road.
On 27-6-1994, the officers attached to Enforcement Directorate searched the shop premises and seized Indian currency to the tune of Rs.
3,00,000/- and certain incriminating documents. A confession statement was also stated to have been recorded from him. From the incriminating
materials seized and the confessional statement recorded, it transpired that he had been dealing in foreign exchange in violation of the relevant
provisions of FERA, in the sense of himself effecting payments in India, as per the instructions of one Abdullah at Dubai, a person resident outside
India. Consequently, follow-up action had been taken with a view to presenting him in future from acting in any manner prejudicial to the
conservation of foreign exchange resources. The Joint Secretary to the Government of India (first respondent) in exercise of powers conferred by
Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), clamped upon the detenu the
impugned order of detention in his proceedings F. No.673/178/94-CUS-VIII, Government of India, Ministry of Finance, Department of Revenue
dated 20-10-1994.
Mr. B. Kumar, learned Counsel appearing for the petitioner would press into service, the lone and sole ground, namely, that though the
petitioner sent a covering letter dated ""Nil"" along with nine copies of representation to the Superintendent. Central Prison, Madras with a request to
forward the same to the appropriate authorities, yet the said Jail Superintendent who received the same on 7-12-1994, had opted to send one
copy of the representation to the first respondent/empowered authority of the Central Government alone and not send another copy of the
representation to the Union of India/second respondent and failure to send a copy of the representation by the said Jail Superintendent to the
second respondent-Union of India, vitiated the order of detention inasmuch as prejudice had been caused to the detenu, in the sense of his
representation not being considered by Union of India/second respondent and in such state of affairs, he would say, the impugned order of
detention is liable to be set aside.
Mr. K. Asokan, learned Addl. Central Government Standing Counsel representing the respondent 1 and 2, would, however, repel such a
submission and produce all the relevant files and jail records for perusal and consideration of this Court.
The detenu''s right to make a representation had been referred to in paragraph 18 of the ground of detention as reflected below :
You have a right to make representation to the Central Government, Detaining Authority and Advisory Board. If you wish to make a
representation against your detention to the Central Government (Secretary to the Government of India, Ministry of Finance, Department of
Revenue)/Detaining Authority you may do so by addressing it to the Secretary/Joint Secretary (COFEPOSA), Government of India, Ministry of
Finance, Department Revenue, Central Economic Intelligence Bureau, 6th Floor, ''B'' Wing, Janpath Bhawan, Janpath, New Delhi-110001 and
forward the same through the Superintendent of the Prison wherein you are detained.
From what has been extracted above, it is thus crystal clear that in case the detenu wanted to make a representation to the Central Government,
he had to address to Secretary to Government of India, Ministry of Finance, Department of Revenue. If he wanted to make a representation to the
detaining authority, he might do so, by addressing it to the Secretary or Joint Secretary, COFEPOSA, Government of India, Ministry of Finance,
Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, ''B'' Wing, Janpath Bhawan, Janpath, New Delhi-110 001. In case he
chooses to send a representation to the Advisory Board, he can do so by directly addressing a communication to it.
In the case on hand an admitted fact it is, the petitioner had not stated anything in the covering letter addressed to the Superintendent, Central
Prison, Madras specifying the name of the authority to which the representations had to be forwarded. But what all had been stated in covering
letter was to forward the representations to the appropriate authorities and for doing such a feat, sufficient number of copies had been annexed
along with the covering letter. The Superintendent, Central Prison, Madras opted to forward a copy of the representation only to the first
respondent/Empowered authority and not to forward another copy to Union of India/second respondent. No doubt true it is, that the
representation forwarded by the Superintendent, Central Prison, Madras to the first respondent/empowered authority had been considered and
ultimately rejected on 4-1-1995. No grievance, of course, is made as to the consideration and disposal of the representation by the first
respondent/detaining authority. The grievance rather appears to be that on account of the default committed by the Superintendent, Central Prison,
Madras in not forwarding a copy of the representation to Union of India/second respondent, the detenu''s right inhering in his favour under Article
22(5) of the Constitution of India had been infringed, and that on this ground alone, the impugned order of detention is liable to be set aside.
In support of this submission, Mr. B. Kumar learned Counsel for the petitioner place implicit reliance on two decisions emerging from the Apex
Court of this country. We may now refer to them :
(a) In Jayaprakash v. District Magistrate, 1993 SCC Cri 121, the District Magistrate along with the grounds of detention specifically informed the
detenu that he has a right to make a representation to the State Government and also to the Central Govt. The representation sent by the detenu
was neither addressed to the state Government nor to the Central Government. He only mentioned ""Home Secretary"" as the addressee without
further indicating whether he meant Home Secretary to the State Government or the Central Government. However the detenu gave nine copies of
the representation to the Superintendent of Jail for onward submission to the authorities. The Superintendent of Jail, however, sent the
representations only to the State Government and not to the Central Government. In such a situation, the Apex Court expressed :
When the detenu gave sufficient number of copies of his representation and left it to the jail authorities to forward the same to the authorities as
specified in the grounds of detention, the Superintendent of Jail was legally bound to send one copy to the Central Government. We are, therefore,
of the view that the detenu was denied his right to make an effective representation and on that short ground his detention is liable to be quashed.
(b) In Bairmelu v. State of Tamil Nadu, 1995 SCC (Cri) 224, the wife of the detenu sent a representation, along with a covering letter dated 4-5-
1994 addressed to the Superintendent, Central Prison, Madras. She has stated in the said letter enclosing the representation with nine copies as
under :
My husband M. Balakrishnan, s/o Murugappan is detained in your prison as a detenu under COFEPOSA Act. As per his instructions, I am
enclosing his representation. Please send the same to the persons mentioned in the grounds immediately.
The Superintendent of Central Prison, of course sent one copy of the representation, out of nine copies supplied to him, to the State Government.
However, he failed to send one copy of the representation out of nine copies supplied to him to the Central Government. It transpires that only the
Collector of Customs having come to know about this, sent a copy of the same to the Central Government in a belated fashion. By doing so, there
was a delay of 84 days in sending the representation to the Central Government. In considering the failure on the part of the Superintendent of
Central Prison in forwarding a copy of the representation out of nine copies supplied to him to the Central Government, the Apex Court quoted the
decision in Jayaprakash''s case (supra) and followed and what the Apex Court stated in that connection is relevant, which is reflected as below :-
As held by this Court in Jai Prakash case when the detenu gave sufficient number of copies of the representation and left it to the Jail authorities to
forward the same to the authorities as specified in the grounds of detention, the Superintendent of Jail was legally bound to send one copy to the
Central Government. We are, therefore, of the view that the detenu was denied his right to make an effective representation at the earliest
opportunity and on that short ground his continued detention is liable to be held illegal. In our view on the facts of the present case the ratio of the
decision of this Court in Jai Prakash case has squarely got attracted.
The ratio as laid down in Jayaprakash case (supra) and literally followed by the Apex Court in H. Alamelu case (supra) is squarely applicable to
the facts of the instant case. To recapitulate, the petitioner sent a covering letter to the Superintendent of Central Prison along with sufficient
number of copies of representation to be forwarded to the ""Appropriate Authorities"". ''Appropriate Authorities'' in this connection would mean, not
only the first respondent/empowered authority but also Union of India/second respondent. Since the representation had not been forwarded to the
Central Government, the detenu''s right inhering in his favour under Article 22(5) of the Constitution of India, had been infringed and on this short
ground alone, his continued detention, is to be held illegal.
In that view of the matter, the impugned order of detention is set aside and the detenu is ordered to be set at liberty forthwith, unless and until
he is required to be detained in connection with any other case. The Habeas Corpus Petition is, thus allowed.
Petition allowed.