UNION OF INDIA AND ANR. versus HARISH KUMAR

UNION OF INDIA AND ANR. versus HARISH KUMAR

The failure on the part of the Central Government to consider the representation submitted by the detenu renders further detention illegal, but the initial order of detention under Section 3(1) of COFEPOSA does not get vitiated. Non-consideration infringes a guaranteed right, yet only continued detention may be set aside; the original order is not void ab initio and can form the basis for subsequent proceedings under SAFEMA.

Parties
Appellant: Union of India; Respondent: Harish Kumar
Jurisdiction
India
Judgment Date
14 March 2007
Procedural Posture
Criminal Appeal / Appeal From Final Judgment and Order of High Court of Delhi in Writ Petition (cr!) No. 1362 of 2002
Outcome
Appeal allowed
Legal Topics
Preventive Detention, Right to Representation, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, Article 22(5), Article 226, Smugglers and Foreign Exchange Manipulators (forfeiture of Property) Act
Constitutional Law Criminal Law Preventive Detention Right to Representation Conservation of Foreign Exchange and Prevention of Smuggling Activities Act Article 22(5) Article 226 Smugglers and Foreign Exchange Manipulators (forfeiture of Property) Act

Case Brief

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Parties

Union of India

Appellant

Harish Kumar

Respondent

Procedural Posture

Criminal Appeal / Appeal From Final Judgment and Order of High Court of Delhi in Writ Petition (cr!) No. 1362 of 2002

Legal Issues

  1. 1 Whether non-consideration of the detenue's representation to the Central Government vitiates the detention order under COFEPOSA and violates Article 22(5)
  2. 2 Whether the High Court was justified in declaring the detention order void ab initio

Ratio Decidendi

The failure on the part of the Central Government to consider the representation submitted by the detenu renders further detention illegal, but the initial order of detention under Section 3(1) of COFEPOSA does not get vitiated. Non-consideration infringes a guaranteed right, yet only continued detention may be set aside; the original order is not void ab initio and can form the basis for subsequent proceedings under SAFEMA.

Court Disposition

Appeal allowed

Orders

  • No order as to costs
  • There is no legal impediment to proceed against the respondent under SAFEMA