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Tara Chand v. State Of Rajasthan And Others
Factual and Procedural Background
This writ petition was filed by Tara Chand, brother of the detenu Hira Nand, challenging a detention order dated June 30, 1979 issued by the Government of Rajasthan under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detenu was arrested on July 19, 1979 and served the grounds of detention on the same day. The grounds did not indicate (though they should have) that the detenu was entitled to make a representation to the detaining authority.
The detenu’s wife, Smt. Nita, made two representations dated July 26, 1979 and July 31, 1979 to the State Government; these were rejected on or before August 30, 1979, and no grievance was pressed regarding those rejections. Subsequently, another representation was sent (dated December 6, 1979) to multiple authorities including the Home Minister of Rajasthan and central constitutional/executive authorities, seeking revocation of the detention. A letter from the President’s Secretariat dated October 9, 1979 indicated that the President had received the representation before that date and forwarded it to the Union Finance Ministry for necessary action. It was common ground that the Union of India neither considered the representation nor passed any order on it.
Legal Issues Presented
- Whether the Union of India/Central Government was duty-bound to consider the detenu’s representation seeking revocation of a State Government detention order under COFEPOSA, and whether failure/inordinate delay to do so violates Article 22(5) of the Constitution.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court noted that the detenu’s later representation had, in fact, reached the President’s Secretariat and was forwarded to the Union Finance Ministry, undermining the submission that the Union of India likely did not receive it. The court also observed that the counter-affidavit on behalf of the Government of India was vague and evasive: it did not assert that the representation was considered or that any order was passed, but suggested that the Union would abide by the State Government’s stand.
The court relied on Section 11(1) of COFEPOSA, which provides that the Central Government may revoke or modify an order of detention passed by a State Government. Since the Central Government has discretion under Section 11 to revoke detention, the court held that once a representation is made to the Central Government, it becomes duty-bound to consider it so as to decide whether to accept or reject it.
The court further held that an inordinate delay in considering such a representation amounts to a violation of Article 22(5) of the Constitution, rendering the detention unconstitutional and void. On the admitted position that the Union of India neither considered the representation nor passed any order, the court concluded that the detention could not be sustained.
Holding and Implications
ALLOWED; DETENU TO BE RELEASED FORTHWITH.
The direct consequence was that Hira Nand’s detention order was set aside as unconstitutional due to violation of Article 22(5) arising from the Central Government’s failure/inordinate delay in considering the representation. The opinion does not discuss any broader implications beyond granting immediate release and does not indicate that any new precedent was set.
S. Murtaza Fazal Ali, J.— This writ petition by Tara Chand, a brother of the detenu, Hira Nand, has been filed against and order of detention dated June 30, 1979 passed by the Government of Rajasthan under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter called “the COFEPOSA”). The detenu was arrested on July 19, 1979 and on the same day he was served with the grounds of detention in which there was no indication, although there should have been that the detenu was entitled to make a representation to the detaining authority. However, Smt Nita, the wife of the detenu, made two representations dated July 26, 1979 and July 31, 1979 to the State Government but the same were rejected on or before August 30, 1979. The counsel appearing for the petitioner has not made any grievance regarding the rejection of these two representations by the State Government. It appears, however, that on December 6, 1979 another representation was sent by Smt Nita to the Home Minister of Rajasthan, the President of India, the Prime Minister of India and the Finance Minister of the Union Government praying that the order of detention should be revoked. From a letter sent to the detenu from the President's Secretariat on October 9, 1979, it appears that the President had received his representation before October 9, 1979 and the same had been forwarded to the Finance Ministry of the Union Government for necessary action. It is common ground that neither the representation was considered by the Union of India nor was any order passed by it. A general plea was taken by Mr Abdul Khadar that probably the Union of India did not receive his representation at all which, however, is clearly falsified by the letter sent by the President of India, which we have referred to above. In the counter-affidavit filed by the Government of India also a very vague and evasive stand appears to have been taken. It is not said that any orders were passed on the representation or that it was considered but it is said that it was to abide by any stand taken by the State Government. Section 11(1) of the COFEPOSA Act clearly enjoins that the Central Government may revoke or modify an order passed by the State Government. Mr Abdul Khadar fairly conceded that the Central Government has a discretion under Section 11 of the COFEPOSA Act to revoke the order of detention. Thus when once a representation is made to the Central Government, it is duty-bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of Article 22(5) so as to render the detention unconstitutional and void. We, therefore, allow the petition and direct that the detenu be released forthwith.
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