Competent Authority under COFEPOSA Act is not required to pass an adjudicatory order while rejecting representation of detenu: SC
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The
Supreme Court on Friday, in Union of India vs. Saleena, has set aside a Kerala
High Court order which had granted the writ of habeas corpus directing the
detenu who was detained under COFEPOSA Act to be set at liberty. The Apex Court
Bench comprising of Justices Dipak Misra and Prafulla C. Pant, however said
that detaining authority should re-examine the matter keeping in view the
principle stated in Sunil Fulchand Shah case and Chandrakant Baddi case within
two months.
Context
The
Division Bench of Kerala High Court had ordered release of Detenu on two
grounds viz. the order rejecting the representation made by the Detenu was
conveyed by under Secretary and not the competent authority the decision of the
competent authority was not communicated and that it was not properly
considered which violated his fundamental right under Article 22(5) of the
Constitution of India.
Adjudicatory order need not be passed
while rejecting representation
The
Bench observed that it is not correct to treat the issue of communication of
rejection of the representation by the competent authority or incorporation of
the order passed by the competent authority in the order of communication as a
constitutional safeguard and the only relevant thing to see is whether the
representation submitted by the detenu has been rejected in a mechanical manner
without application of mind. The Court then perused the relevant file. Upon
perusal of file, the Court said that all the assertions made in the
representation were commented by the Under Secretary and every aspect has been
stated in detail.
The
Court, referring to The Constitution Bench ruling in in Haradhan
Saha, further observed that The competent authority while considering the
representation is not required to pass a speaking order but it must reflect
that there has been real and proper consideration of the representation.
Lekha Nandakumar case not correct
position of law
The
Court observed that decision in Lekha Nandakumar by the Division Bench of
the High Court stating the principle that the order passed by the competent
authority should be communicated failing which there will be a violation of the
constitutional command engrafted under Article 22(5) is not correct. The Court
can always call for the file and peruse whether there has been rejection of the
representation as required under the law, the Bench said.
The
Court also said that the extended proposition in Babu vs. State of Kerala case
is also not legally correct as the jurisdiction of the court is only to see
whether there has been any subjective satisfaction that the proper law had been
applied at the time of detention of the detenu. There is no need on the part of
the competent authority to pass a speaking order and to give reasons on any
facet.
Subjective Satisfaction test
The
Bench further observed “We may ingeminate that when the material, the file, the
representation and the comments on the representation were produced before the
authority and he had mentioned in the order that he had gone through the representation
and not found sufficient ground for exercising the power under Section 11 of
the COFEPOSA Act, it cannot be said that there has been no subjective
satisfaction.”
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