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TMI Blog2019 (4) TMI 2036X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 was challenged by the detenu himself in W.P.(C) No.31214/2016 at the predetention stage. After its dismissal as per Ext.P4 judgment, he unsuccessfully challenged the same before the Hon'ble Apex Court in SLP No.12730/2017. In fact, the SLP was dismissed as infructuous. It is after Ext.P5 order that Ext.P1 order was executed and he was detained. In this writ petition, to mount challenge against Exts.P1 and P8 orders, manifold submissions have been raised. 3. After hearing the learned counsel for the petitioner, the learned counsel appearing for the 3rd respondent, the learned Public Prosecutor and also the Central Government Standing Counsel appearing for the 2nd respondent, we are of the considered view that all the contentions adverted to by the petitioner as also the rival contentions raised by the respondents need not be adverted to before considering and answering one of the questions involved in the matter. According to us, the necessity to consider the other contentions would arise only if we answer that question in the negative. Before adverting to that question, which is to be considered first, it is only apropos to state the facts and circumstances that led to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shahbas on 11.08.2015. While under detention, the said Sri.Shahbas filed a representation before the Advisory Board constituted under the COFEPOSA Act. The Advisory Board, after considering his representation and all the relevant documents which led to the issuance of the detention order, gave its opinion to the State Government that there is no sufficient reason for detaining him under the COFEPOSA Act. Annexure-1 order bearing No.16519/SSA4/2014/Home dated 19.10.2015 would reveal that pursuant to the receipt of the opinion of the Advisory Board, the Government had passed an order, invoking the power under Clause 8 of the COFEPOSA Act, revoking the order of detention dated 25.02.2014 issued against the said Shahbas Mohammed. Consequently, as per Annexure-1 he was ordered to be released forthwith. We referred to the aforesaid aspect to deal with the core contention of the petitioner, which we are going to consider firstly, that though Annexure-1 order of revocation of the order of detention of Sri.Shahbas was annexed along with Ext.P6 representation filed by him, the said relevant factor was not duly taken note of. It is contended by the learned counsel appearing for the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such circumstances, firstly, we will proceed to consider the tenability of the aforementioned contention in the light of the decisions relied on by both sides. 6. In the context of the contentions, at the outset, we will refer to the Constitutional Bench decision of the Hon'ble Apex Court in K.M.Abdulla Kunhi's case (supra). With reference to the constitutional safeguard under Article 22 of the Constitution of India the Apex Court held that Article 22 contains two safeguards in Clauses (4) and (5), therein. The Apex Court went on to hold thus:- "The former requires that if a detenu is liable to be detained for a longer period than three months, his case shall be referred to the Advisory Board which must report before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. The function of the Board is purely advisory and its report will enable the government to detain the person beyond three months provided the detention is valid on his merits and does not otherwise offend the Constitution. Clause (5) of Article 22 provides that when any person is detained in pursuance of an order made under any law providing f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the receipt of report of the Advisory Board. Nor it could be said that the government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The constitution of the Board shows that it consists of eminent persons who are Judges or persons qualified to be Judges of the High Court. It is therefore, proper that the government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirm or cancel the order of detention, the Advisory Board had taken up the matter for such opinion in the case of the co-detenu Sri.Shahbas and Annexure-1 in Ext.P6 would reveal that in respect of Sri.Shahbas the Advisory Board gave an opinion that there is no sufficient reason for detaining him. But, the Advisory Board which gave such an opinion in respect of the co-detenu failed to take note of that aspect while giving its opinion in the case of the detenu. It is such a report given without considering the opinion which the Board itself gave in respect of the codetenu Sri.Shahbas, in the same transaction that was considered by the Government while considering the question of confirmation or otherwise of Ext.P1 order of detention. The learned Public Prosecutor submitted that virtually, the opinion of the Advisory Board in respect of the codetenu namely, Shahbas (Annexure-1 in Ext.P6) was made available to the Government before passing Ext.P8 order. We have carefully scanned Ext.P8 order. There is nothing in Ext.P8 order which would reveal that Annexure-1 in Ext.P6 which is the order revoking the detention of the co-detenu and also opinion of the Advisory Board which led to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Sri.Abulais in the same transaction was known to the Government while issuing Ext.P8 order. Therefore, the question is whether the indisputable fact that the Advisory Board as also the detaining authority had failed to consider the order of revocation of the detention order of the co-detenu in the same transaction viz., Annexure-1 in Ext.P6 passed in relation to Shahbas, is fatal to the order confirming the detention of the detenu and whether it is sufficient to vitiate the same ? 9. We will now, consider the decision of the Hon'ble Apex Court relied on by the learned counsel appearing for the third respondent in Safiya's case (supra). The learned counsel contended that the contentions raised therein are akin to the contentions raised in this case and therefore, the dictum in the decision in Safiya's case is to be followed. We are afraid, the said contention cannot be upheld for the reason given in the said decision itself. In that context, the recital in paragraph 17 of the decision in Safiya's case (supra) assumes relevance and it reads thus:- "Since we are disposing of the appeal on factual basis and on the basis of the records placed before us, we are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an order of revocation of detention of a co-detenu passed after considering the report of the Advisory Board would vitiate the subsequent order confirming the order of detention of a detenu involved in the same transaction. In the context of the aforesaid contention it is also relevant to refer to the decision of the High Court of Uttar Pradesh in Jagdish Prasad Kasana Alias Jaggi v. State of Uttar Pradesh (2001 0 Crl.J 372). For the purpose of this case it is suffice to extract paragraph 11 of the said decision. It reads thus:- "It is not disputed that co-accused Arun Kumar Jain was also detained under Section 3 of the Act, but his detention order was revoked by the State Government on the advice of Advisory Board. It is clear from the affidavit of Sri.A.K.Awasthi, District Magistrate, Meerut dated 24-4-2000 that the order of revocation was well within his knowledge, but it was not considered before passing detention order of the petitioners. Sri.Mahendra Pratap, learned A.G.A. Contemplated that the revocation order was confidential document and was not available to the detaining authority and he had no access to it, therefore, it was not taken into consideration. Relying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hahbas is the head of 'MPC General Trading LLC' that is involved in smuggling activities and it was his detention, in the same transaction, that was revoked as per Annexure-1 of Ext.P6. Non-consideration of all the aforesaid aspects by the Government in the light of the decisions referred supra cannot be lightly taken and according to us, they are sufficient to hold Ext.P8 order confirming the order of detention, as vitiated. Once it is found that Ext.P8 order whereby Ext.P1 order was confirmed is vitiated owing to non-consideration of Annexure-1 in Ext.P6, Ext.P8 order is liable to be interfered with. In such circumstances, we do not think it necessary to consider the other contentions. Ext.P1 order cannot have independent existence once Ext.P8 is interfered with.
Resultantly, this writ petition is allowed. The impugned order viz., Ext.P8 dated 12.11.2018 confirming Ext.P1 order issued against the detenu namely, Shri.Abulais @ Abdul Laise, S/o.M.P.C.Nasser, 95(15/1170), Elavanchalil House, Koduvally, Calicut, Kerala is set aside and the detenu is directed to be released from detention forthwith, if he is not required in any other case. X X X X Extracts X X X X X X X X Extracts X X X X
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