ABDUL GAFOOR Vs. UNION OF INDIA

JUDGEMENT

(1.) The challenge in this petition is to the order dated 30th January, 1989 by Government of Kerala directing the detention of the petitioner in exercise of powers conferred by Sections 3(1)(i),3(1)(ii) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'The Act'), with view to prevnting him from sumggling goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggling goods. The declaration under Section 9 (1) of the Act dated 2nd March 1989 was made by Sh. B.V. Kumar, Additional Secretary to the Government of India. The said declaration is also under challenge in this petition.

(2.) On 4th September 1989 a representation was made by the petitioner to Central Government of India. English translation of the said representation which was addressed to the President of India is Annexure G to the writ petition. In that representation the petitioner had also challenged the aforesaid declaration made under section 9 (1) of the Act.

(3.) The present petition was filed on 4th October, 1989. One of the grounds taken in petition is that the representation dated 4th September 1989 has not been dealt with promptitude and expeditiously as the same had not been disposed till the filing of the writ petition. In answer to that ground the respondent-Union oF India in the counter affidavit, inter alia, pleaded that on receipt of comments the file was put up to the Joint Secretary to that Government of India who has been empowered to deal with the representation of the detenu and the representation dated 4th September 1989 was considered and rejected on 23rd November 1989. Thus the representation was disposed of after filing of the writ petition. In the rejoinder a plea has been taken by the petitioner that the consideration of the representation by the Joint Secretary is illegal as the declaration under Section 9(1) of the Act has been made by the Additional Secretary and, therefore, the Joint Secretary who was interior in rank was not competent in law to consider the said representation. When this matter came up on 16th March 1990 the respondent was granted an opportunity to file a sur rejoinder to meet the aforesaid plea taken in the rejoinder affidavit, The Union of India has not filed any sur rejoinder.