KAPIL KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Mr. Naveen Malhotra, Counsel for the petitioner says that though in the writ number of grounds have been raised but he is restricting his arguments to only one ground namely, if the detenu at the hearing of the Advisory Board makes a request in writing seeking permission to examine his witnesses, who are waiting outside, in rebuttal to the grounds raised in the detention order, then can the Advisor, Board reject such a request without assigning any reason.

(2.) According to Mr. Naveen Malhotra, Counsel for the petitioner, a request was made by the petitioner by way of representation dated 27th January, 2000 to the Advisory Board. It was personally handed over to the Advisory Board seeking permission to examine his witness who was standing outside. But the Advisory Board rejected the same vide order dated 5/02/2000. In order to appreciate the challenge raised by Mr. Naveen Malhotra, lets in brief go through the facts of this case. In brief the case of the respondent was that the petitioner arrived at IGI Airport from Hongkong by Air India Flight No. AI-319. He was carrying two checked in baggage beside one Hongkong duty-free polythene bag as cabin baggage. He walked through the green channel and was asked by the Customs Officer whether he was carrying any dutiable item or gold or silver to which he replied in negative. However, on being checked by Customs Preventive Officer search was conducted and from the baggage which the petitioner was carrying, mobile phones and mobile phone adapters. The market value of the same was assessed as Rs. 11,31,390.00 The articles were seized and confiscated. Statement of the petitioner was recorded under Section 108 of the Customs Act, 1962. The petitioner was arrested and produced before the Duty Magistrate. Complaint under Sections 132 and 135(l)(a) of the Customs Act, 1962 was filed. Order of detention was passed on 26/11/1999 under Section 3(1) of the COFEPOSA and the same was served on the petitioner on 27/11/1999. The petitioner represented against the same on 4/ 5/01/2000. The representation made on 5/01/2000 to the Lt. Governor, Government of NCT of Delhi was rejected on 12/01/2000. The petitioner appeared before the Advisory Board alongwith his Counsel on 27/01/2000 and made a representation seeking permission to examine his witness who was standing outside. Another representation reiterating the same was made by the petitioner on 31/01/2000. He was informed on 5/02/2000 that his representation dated 27/01/2000 had been rejected by the Advisory Board. The petitioner was also informed on 10/02/2000 that his representation addressed to the Advisory Board had been considered and rejected by the Lt. Governor. On 14/02/2000 petitioner was informed that Special Secretary- cum-Director General CEIB on behalf of the Central Government and rejected his representation. The petitioner was again informed on 16/02/2000 that his detention order had been confirmed for a period of one year from the date of his detention i.e., 27/11/1999.

(3.) On being served, the Detaining Authority as well as the Union of India filed their respective counter affidavits. On behalf .of the Detaining Authority plea was taken that the detention order was passed on the basis of the material available on record, and that the detention order was in the nature of preventive measure. To the same effect is the plea raised by the Union of India.