Order
1. The detenu Ishwardas Bachardas Patel is the father of the petitioner. An order of detention dated 21-1-1994 was made by Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short “the COFEPOSA Act”), which was served on the detenu on 5-2-1994 in the Bombay Central Prison where he was confined in judicial custody in connection with a criminal trial. A representation dated 21-2-1994 against the detention was made, addressed to the detaining authority and the Advisory Board constituted under the COFEPOSA Act. The representation was forwarded by the said Joint Secretary, the detaining authority to the Union Finance Minister and it was rejected by the Central Government on 18-3-1994.
2. A writ petition was filed in the Bombay High Court challenging the detention. Reliance was placed on behalf of the detenu on the decision in Santosh Anand v. Union of India (1981) 2 SCC 420 to contend that the representation was not considered by the detaining authority to whom it was addressed which amounted to violation of the detenu's right under Article 22(5) of the Constitution of India. A Full Bench of the High Court rejected this contention and took the view that the benefit of the decision of this Court in Santosh Anand (1981) 2 SCC 420 was not available to the detenu in view of certain other decisions of this Court. Hence these petitions for grant of special leave to appeal against the decision of the Bombay High Court.
3. Leave granted.
4. It does appear to us prima facie that the decision in Santosh Anand (1981) 2 SCC 420 which is by a two-Judge Bench supports the submission made by Shri Ram Jethmalani on behalf of the detenu to assail his detention. We also find that the several decisions referred on this point are all by benches constituted of two learned Judges. The decisions of this Court subsequent to that in Santosh Anand (1981) 2 SCC 420 have attempted to distinguish Santosh Anand (1981) 2 SCC 420 on the basis of some difference read in the provisions contained in the National Security Act, 1980 as compared to the corresponding provisions in the COFEPOSA Act for taking a different view on this point in cases of detention under the National Security Act. The question is: Whether there is any such real distinction between the provisions of the National Security Act and the COFEPOSA Act to warrant different conclusions on this point in cases relating to the two enactments? This question requires consideration by a larger Bench.
5. In a similar situation, another two-Judge Bench has referred the matter to be heard by a larger Bench in Hansaben Jayantilal Shah v. Union of India (1994) 4 SCC 148. That appears to be the appropriate course for us to adopt in the present case, more so, because this contention has been rejected in the High Court by a Full Bench distinguishing Santosh Anand (1981) 2 SCC 420 in the light of other decisions of this Court.
6. Accordingly, we direct that the papers be placed before Hon'ble Chief Justice of India for a direction to tag it with Hansaben case (1994) 4 SCC 148 for being heard along with that matter by a larger Bench.
7. Shri Jethmalani submitted that in view of this direction for the matter to be heard by a larger Bench, the detenu may be released on parole since the decision of this Court in Santosh Anand (1981) 2 SCC 420 is clearly in favour of the detenu and the period of detention is to expire shortly. In the facts and circumstances of this case and in view of the decision in Santosh Anand (1981) 2 SCC 420 which still holds the field, we deem it fit to accept this prayer. Accordingly, we direct, that unless the detenu is required to be kept in custody by virtue of any order made in the criminal trial or any other matter, he be released on parole on the condition that he will report once every week to the Collector of Customs (Preventive), Bombay and he will also not leave the city of Bombay during the period specified for detention.