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Judgment
R. Regupathi, J.—The petitioner herein challenges the impugned orders of detention, dated 13.04.2007, whereby, his brothers by name
Mohamed Asif and Mohamed Masood have been detained under the provisions of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (in short COFEPOSA Act).
The sole ground raised in the above Petitions to beset the orders of detention is, non-consideration of the pre-detention representations, dated
04.04.2007, sent by the mother of the detenus.
It is seen that the detention orders were clamped on the detenus on 13.04.2007 and the pre-detention representations, dated 04.04.2007, have
been sent by their mother to the Law Minister, Government of Tamil Nadu, Chennai, through speed post. Copy of the representations dated
04.04.2007, the certificate issued by the postal authorities in proof of delivery of the speed post to the addressee viz., Law Minister, Govt. of
Tamil Nadu, Chennai, and the acknowledgement, dated 06.04.2007, of the Secretariat for receipt of the post by the office of the Law Minister,
have been furnished in the typed set of papers. On the strength of such materials, it is submitted that those pre-detention representations have not
been taken into consideration at all by the Law Minister while approving the order of detention and that, subsequent to the detention,
representations, dated 09.07.2007, have been sent, wherein, the pre-detention representations have been mentioned; however, while disposing of
the representations dated 09.07.2007, in para No. 7, it is simply stated that the pre-detention representations dated 04.04.2007 had not been
received by the Department.
3-A. Learned counsel for the petitioners has placed much reliance on a Judgment of this Court, rendered in HCP No. 195 of 2007, wherein, it has
been held that the pre-detention representation sent to the Law Minister must be considered and disposed of, failing which, the order of detention
is liable to be quashed on the ground that prejudice was caused to the detenu on account of the same.
Per contra, learned Additional Public Prosecutor submits that no pre- detention representation has been received by the office of the Law
Minister and in that regard, a specific reply was given while disposing of the representations dated 09.07.2007. It is further contended that when
the detenus were intimated/advised to send representation to the authorities specifically mentioned in the grounds of detention, inasmuch as the pre-
detention representations have been erroneously sent to the authority not mentioned in the grounds, the same need not be taken into consideration
at all.
We have carefully considered the contention raised with reference to the materials available on record and also the Division Bench judgment of
this Court cited by the learned counsel for the petitioner. The Division Bench, after taking note of similar counter argument advanced by the
Additional Public Prosecutor by drawing support from the decision reported in AIR 2001 (2) SCC 145 Keshava v. M.B. Prakash and Ors. on
the ground that the representation made on behalf of the detenu before Law Minister cannot be construed as representation before appropriate
Government, distinguished the said decision on the factual aspects involved and held thus:
The ratio of the above decision cannot be applied to the facts of the present case. As per Business Rules of the Government, it is the Law Minister
who considers the representation sent by the detenu, and on behalf of the detenu.
The Bench also relied on the observation made by P. Sathasivam, J. (as He then was) speaking for the Bench in P.M.S. Mohiadeen Sahib v. State
of Tamil Nadu rep. By Secretary to Government, Public (S.C.) Dept., Chennai, and Ors. 2006 (1) MLJ 131, and the said observation is quoted
below:
In the light of the above principles, we are of the view that though the detenu has made pre-detention representation on 4.7.2005, which was
received by the Superintendent, Central Prison, Chennai-9, and forwarded to the addressee, Law Minster, Government of Tamil Nadu on
05.07.2005 itself, in view of the fact that the same had been reiterated in the representation dated 21.7.2005, the Detaining Authority ought to
have verified the earlier representation and passed the order after due consideration. We are satisfied that the Detaining Authority failed to consider
these relevant aspects and the detenu is entitled to succeed.
On considering the facts involved in the present case, we are of the view that there is utter failure on the part of the Government in considering
and disposing of the pre-detention representations made on behalf of the detenus and further, the contra argument advanced by the learned
Additional Public Prosecutor does not merit acceptance in the light of the materials available in the form of proof of delivery,
acknowledgement/entries in the Office Register, etc. It follows that the orders of detention passed against the detenus have to be set aside.
Accordingly, the Habeas Corpus Petitions stand allowed and the detention orders dated 13.04.2007 passed against Mohamed Asif and
Mohamed Masood are quashed. The detenus are directed to be set at liberty forthwith unless they are required in connection with any other case
or cause.