R KESHAVA Vs. M B PRAKASH

JUDGEMENT

(1.) Leave granted.

(2.) Alleging violation of Article 22(5) of the Constitution of India and relying upon a Judgment of this Court in Smt. Gracy vs. State of Kerala (1991) 2 SCC 1, the appellant has challenged the preventive detention of A. Maheshraj, a resident of Bangalore detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as "the Act"). It is submitted that as the representation of the detenu to the Advisory Board has not been considered by the appropriate government, his continuous detention was unconstitutional and liable to be quashed. It is contended that notwithstanding the non filing of the representation to the appropriate government, a duty was cast upon the Advisory Board to transmit the representation, received by it, to the government who had a corresponding obligation to consider it before confirming the order of detention. Placing its reliance upon a subsequent judgment of this Court in Jasbir Singh vs. Lt. Governor, Delhi (1999) 4 SCC 228 and distinguishing the facts of the present case, the High Court dismissed the habeas corpus petition filed before it vide the judgment impugned in this appeal.

(3.) To appreciate the rival contentions of the learned counsel appearing for the parties, it is necessary to refer to some of the admitted facts in this case, which are : On receipt of an intelligence report that a passenger wearing dark grey coloured suit travelling from Singapore was carrying with him electronic goods which he shall attempt to get cleared without payment of duty, the officer of the Customs Headquarters, Preventive, Bangalore kept a watch on the passengers of Flight No. IC 958 which landed at 0930 hrs. on 3-12-1999, and noticed the detenu resembling the descriptions already received. He checked his baggages and completed formalities with Customs authorities. His luggage comprised of two suit-cases, one small hand suit-case, one green coloured zipper handbag and one plastic cover. He had, in his disembarkation Card, declared the goods with him worth Rs. 35,000/-. Having a reasonable belief that the detenu had not made the correct declaration, the officers of the Customs made inquiries from him. Being suspicious, the officers opened the four baggages and checked baggage under Baggage Tag Nos. SQ 144161, SQ144162, SQ144141 and SQ144164 and on examination found to contain electronic goods, namely, Mobile Phones, Mobile Phones in CRD condition, computer parts in commercial quantity, having a total value of Rs. 18,38,300/-. The detenu was informed that as he has attempted to smuggle goods and tried to evade custom duty, the baggage was liable to be confiscated under the provisions of Customs Act, 1962. All the goods found in the baggage of the detenu, as detailed in the Annexures to Mahzar dated 3-12-1999 were seized, packed into suit case, cartons and sealed with seal and signature of the detenu as well as of the Mahzar witnesses. After investigation the detaining authority, in exercise of the powers conferred under Sections 3(1)(i) and 3(1)(iii) of the Act directed the said A. Maheshraj to be detained and kept in custody in Central Prison, Bangalore vide order dated 9-3-2000. The grounds of detention were served upon the detenu in the jail. The detenu was also informed that he can file a representation against the detention order to the Government of Karnataka or the Government of India. The detenu made a representation to the Advisory Board and admittedly did not make any representation either to the Government of India or the State Government or any other authority. He did not even request to the Advisory Board or the jail authorities to forward his representation to any of the governments or authority.