Pathumma Vs. Union of India & Ors  INSC 430
(21 August 1998)
Nanavati Nanavati, J.
learned counsel for the parties.
this appeal, the appellant is challenging the judgment and other passed by the High
Court of Kerala in O.P. 7900/97. The appellant is the wife of one M. Ahmmedkutty
s/o Kunhammedkutty against whom an order of detention was passed on 28.395 by
the Government of Kerala, on being satisfied that with a view to prevent him
form abetting the smuggling of goods, it was necessary to make such an order.
The said order was passed under Section 3 of the COFEPOSA Act. Pursuant to the
said order, the appellant's husband was detained on 17.1.97.
Mr. Mohile, Additional Secretary to the Government of India made a declaration
under Section 9(1) of the Act.
order of detention and his continued detention were challenged by the appellant
before the High Court on the following three grounds.
was delay in executing the order of detention.
was no justification for passing the order of detention and
was delay in consering the representations made by the detenu.
High Court did not find nay substance in any of the contentions and, therefore,
dismissed the Writ petition.
Ramchandran, learned counsel for the appellant, is now challenging the order of
detention and continued detention of the appellant's husband on the grounds
the representation dated 4.2.97 made by the detenu was not considered by the
Additional Secretary to the Government of India before making the declaration
under Section 9 of the Act.
was a delay in considering the representation made by the detenu by the
Additional Secretary to the Government of India, and
documents pertaining to the detention of the detenu's brother were not supplied
to or placed before the detaining authority.
heard learned counsel and consider the relevant material, we find that this
appeal deserves to be allowed on the first two ground raised by the learned
counsel. It is not in dispute that the representation dated 4.297 made by the detenu
was received by the Ministry of Finance on 10.2.97. It is also not dispute that
before making the declaration under Section 9 on 13.2.97, the representation
made by the detenue was not considered. In the affidavit filed by Mr. M.S. Negi,
Under Secretary to the Government of India, before the High Court, it was
stated as under:- " A copy of detenue's representation dated 4.2.97 (and
not 30.1.97) addressed to the Advisory Board the Addl. Secretary to the
Government of India and Secretary to Home Department, Trivandrum forwarded by
the Suppdt. Thiruvanathapuram vide his letter dated 4.2.97 was received in
COFEPOSA Unit on 10.2.97. Since the proposal for issue of declaration had
already been submitted to the Additional Secretary, the representation in
question was not considered by the declarating authority." This statement
makes it clear that though the representation had reached the Additional secretary
he did not consider it before making the declaration. The reason given by him
is that by that time proposal for making the declaration was already made. The
representation made by the detenue was against the order of detention itself.
It was therefore necessary to consider it before making the declaration. The
decision whether the detention order deserved to be revoked or not was required
to be taken before deciding the necessity of making the declaration.
because the representation was subsequently rejected cannot justify non
consideration of the representation at the time when it ought to have been
considered. The reason for non-consideration of the representation before
making the declaration being not sustainable, it has to be held that there was
undue delay in considering the representation, rendering the continued
detention of the detenu illegal.
therefore, allow this appeal and direct that the appellant's husband - Shri M. Ahmmedkutty
be released forthwith unless his presence is required in Jail in connection
with some other case.