Case Note & Summary
The petitioner, Dina Shah, wife of the detenu Vipul Vinod Shah, filed a writ of habeas corpus under Article 226 of the Constitution of India before the Bombay High Court challenging an order of detention dated 31st January 2005. The detention order was passed by the Principal Secretary (Appeals & Security), Government of Maharashtra, Home Department, invoking powers under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (COFEPOSA) read with the Conservation of Foreign Exchange & Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 and Government Order dated 18th December 1974. The petitioner challenged the detention order on several grounds, but the court found it necessary to dispose of the petition on a single ground raised as Ground No. (XV) in the petition. The ground was that the detenu had submitted a representation jointly addressed to the detaining authority and the Advisory Board, but the detaining authority failed to consider the representation before the expiry of the period of detention. The court held that the failure to consider the representation violated the detenu's constitutional right under Article 22(5) of the Constitution, which guarantees the right to make a representation against the detention order. Consequently, the detention order was rendered illegal. The court allowed the petition, quashed the detention order, and directed the respondents to release the detenu forthwith unless required in any other case.
Headnote
A) Preventive Detention - Right to Make Representation - Article 22(5) of Constitution of India - Section 3(1) of Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 - The detenu made a representation to the detaining authority which was not considered before the expiry of the detention period. The court held that the failure to consider the representation violates the constitutional right under Article 22(5) and renders the detention order illegal. (Paras 1-3) B) Constitutional Law - Habeas Corpus - Article 226 of Constitution of India - The petitioner, wife of the detenu, filed a writ of habeas corpus challenging the detention order. The court allowed the petition and ordered the release of the detenu. (Paras 1-3)
Issue of Consideration
Whether the failure of the detaining authority to consider the representation made by the detenu before the expiry of the period of detention vitiates the detention order?
Final Decision
The court allowed the petition, quashed the detention order dated 31st January 2005, and directed the respondents to release the detenu forthwith unless required in any other case.
Law Points
- Right to make representation under Article 22(5) of Constitution of India
- Duty of detaining authority to consider representation
- Preventive detention under COFEPOSA Act
- 1974
