KALLIYATHU KITTAPAN CHANDRESEKHARAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The challenge in this petition is to the order of detention dated 6th September, 1989 made by the Government of Kerala in exercise of powers conferred by Section 3(l) (i) and 3(l)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 directing the detention of the petitioner with a view to preventing him from smuggling of gold and engaging in transporting or concealing or keeping sumggled gold. The challenge is also to the validity of the order of Declaration dated 10'th October, 1989, which has the effect of extending the period of detention of the petitioner.

(2.) The main ground purtforth in support of the petition is that the petitioner was not informed about his constitutional rights under Article 22(5) to make a representation against the order of declaration which, learned counsel, submits not only invalidates the declaration order but has also the effect of invalidating the order of detention as the confirmation was made by the order dated 27th February, 1990 i.e. beyond the period three months from the date of the order of detention. In support of the contention Mr. Kochhar, learned counsel for the petitioner, places reliance on a recent decision of Supreme Court in Jagprit Singh v. Union of India & Ors,Crl.A. 23/1990, decided on 28th March, 1990 and decision of this Court in Crl.W. No. 811/89, Minesh Bhai Nagin Bhai Patel v. Union of India & Ors, decided on 17th May, 1990.

(3.) In Jag Prit Singh's case, the order of detention was made on 2nd September, 1988 and the declaration under Section 9 of the Act had been made on 4th October, 1988. After noticing that the detenu had not been made aware, either in the order of declaration or within a reasonable lime thereafter, that he had a right to make a representation against the declaration to the appropriate authorities, until he wrote to the declaring authority on 10th November, 1981 seeking clarification as to whether he had a right of representation against the declaration and, if so, to which authority and the clarification was furnished to him on 17th November, 1988, the Supreme Court held that there was a delay of about one month and thirteen days before the detenu was made aware of his rights under the Constitution to make an effective representation. That delay in the opinion of the Supreme Court was quite unreasonable and inconsistent with the provisions of Article 22(5) of the Constitution of India and the detention of the detenu beyond the original period of one year was held to be unjustified.