MOOSA HUSEIN SANGHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) On December 1, 1992, after hearing Shri P. Krishna Rao, learned counsel for the appellant and Shri D. Dave, learned counsel for the respondents in this appeal, we passed the following order:

(2.) We hereby set out the reasons for the said order:- On December 10, 1990, a vessel MSV Naran Prasad "No. BHN - 4" was sighted by the customs officers during the course of patrolling near Kalukhar Island and it was seen to be proceeding towards Salaya. On the basis of information received earlier, the customs officers approached the said vessel and boarded it. The appellant was the tindel of the vessel and was present in it. On search of the said vessel, 25 jackets, each containing 100 gold biscuits, weighing 10 tolas each, were found in diesel tank. The gold biscuits bore markings of foreign origin. The gold as well as the vessel were seized. On February 21, 1991, the Principal Secretary to the Government of Gujarat, Home Department (Special), in exercise of the power conferred under subs. (1) of S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the Act") passed an order for the detention of the appellant with a view to preventing him from smuggling goods. The said order was served on the appellant on February 26, 1991. On March 22, 1991, a declaration was made by the Central Government under S. 9(l) of the Act. The appellant handed over a representation dated March 15, 1991, to Jail authorities for onward transmission. The said representation was addressed to the Advisory Board and was forwarded by the jail authorities to the detaining authority on March 16, 1991, and was received by the detaining authority on March 18, 1991. It was returned back to the appellant on March 27, 1991, and the appellant was asked to follow the manner of serving representation meant for the Advisory Board as indicated in the grounds of detention. In the meanwhile on March 25, 1991, the matter of detention of the appellant was referred for consideration to the Advisory Board. On March 30, 1991, the appellant again sent his representation addressed to the Advisory Board of Gujarat at Ahmedabad through jail authorities but the said representation instead of being sent to the Advisory Board in the High Court at Ahmedabad, was sent to the Advisory Board in the High Court at Delhi. The Xerox copies of the representation of the appellant were later on sent to the Chairman of the Advisory Board at Ahemdabad and the same was laid before the Advisory Board on April 30, 1991. The Advisory Board sent its opinion to the State Government on May 6, 1991, and after considering the said report of the Advisory Board, the State Government made the order dated May 13, 1991 confirming the order of detention. On the same day, i.e., May 13, 1991, the State Government passed an order rejecting the representation of the appellant. The appellant filed a writ petition (Special Criminal Application No. 869 of 1991) in the High Court of Gujarat at Ahmedabad under Art. 226 of the Constitution challenging the legality of his detention. The said writ petition was dismissed by the High Court by judgment dated October 1, 1991. Feeling aggrieved by the said decision of the High Court, the appellant has filed this appeal.

(3.) Shri Krishna Rao, the learned counsel for the appellant urged the following two contentions before us:-