MOHAL LAL NAI Vs. UNION OF INDIA

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution .of India, the petitioner has challenged the order dated 28th of November 1989 made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act) to detain him with a view to preventing him from smuggling goods and a declaration under Section 9(1) of the Act as well as his continued detention in pursuance thereof.

(2.) The petitioner is an Indian citizen. On 4th of October 1989, he arrived at Calcutta Airport from Hongkong and was arrested by the customs officers. On 5th of October 1989, he was produced in the Court of Chief Judicial Magistrate, Barasat 24 Parganas who remanded him to judicial custody. The petitioner moved two bail applications on 5th of October 1989 and 16th of November 1989 which were rejected. While he was in custody, the detention order dated 28th of November 1989 was passed and served upon him in jail along with the grounds of detention. The declaration dated 15th of December 1989 made under section 9(1) of the Act, and the subsequent order dated 23rd of February 1990 confirming his detention for a period of two years, were also served upon the petitioner in jail. He is still in detention.

(3.) First, counsel for the petitioner has challenged the declaration under Section 9 of the Act on the ground that in the body of the said declaration or contemporaneously, the petitioner was not informed that he had a right to make a representation against the declaration to the Central Government and to the Advisory Board. He has contended that the petitioner is not an enlightened person: that he was not aware of his constitutional rights at the time he was taken into detention; and that it was enjoined upon the authority making the declaration to apprise him of the same.