KAMLA DEVI Vs. SUPERINTENDENT CENTRAL JAIL DELHI

JUDGEMENT

(1.) Sunder Singh has been detained by virtue of an order passed by the Administrator of the Union Territory of Delhi under Section 3(1) read with Section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing him from engaging in transporting, concealing and keeping smuggled goods and also preventing him from abetting the smuggling of goods, viz..wrist watches (foreign origin) into India. The formal order authenticated in the name of the Administrator is dated October II, 1984. In execution of the said order the petitioner was arrested and is at present lodged in Central Jail, Tihar. The Administrator had, in fact, approving the proposal sent by the Customs Department to preventively detain Sunder Singh passed the order qua his detention on October 1,1984 Smt. Kamla Devi, the wife of the aforesaid detenu, has approached this court for issue of a writ of habeas corpus or any other order, writ or direction, as may be appropriate for quashing the detention and ordering that Sunder Singh be set at liberty.

(2.) The detention of Sunder Singh is challenged on various grounds. It is contended that there has been undue delay in resorting to preventive detention when the incident, which led to the impugned order being passed, allegedly was of March 18, 1984. The contention is that Sunder Singh, who was arrested on October 18, 1984, could not be preventively detained under the aforesaid Act for the alleged activity a long time back allegedly, having taken place in March, 1984. The second contention was that there has been denial of both the statutory right and the fundamental right of Sunder Singh inasmuch as reference to the Advisory Board was not made within the stipulated period of five weeks. To meet the contention on behalf of the respondents that a declaration had been made in respect of Sunder Singh under Section 9 of the aforesaid Act, as it is in force now, it was urged that the section was not retroactive, it could not affect persons allegedly having engaged in the act of smuggling etc. at a time when the Delhi Airport was not a vulnerable area, as defined in the aforesaid Act and that the ordinance which preceded the amending Act made it clear that the retrospectivity in the present case had to have relation with the alleged incident and not arrest under the impugned order. It was furtner urged that the right under Article 22(4) of the Constitution was a vested right and could not be taken away by any subsequent amendment. Argument was also raised regarding the classification of vulnerable area, as made by the amending Act, contending that it had no nexus or reasonable nexus with the object that was sought to be achieved.

(3.) The third contention raised was that the reasonableness of the detention order has to be examined as, according to the petitioner, no reasonable person could on the facts disclosed, even in the grounds of detention, come to the conclusion that the detenu was a person who was required to be preventively detained under the aforesaid Act.