GURMIT SINGH GHOTRA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a Habeas Corpus Petition under Article 226 of the Constitution of India for release of the petitioner from custody. The petitioner had been detained by virtue of order dated 20.10.1994 issued by the Lt. Governor of the National Capital Territory of Delhi in exercise of powers conferred upon him by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short the Act), on a satisfaction that it was necessary to detain the detenu with a view to preventing him from smuggling goods. In furtherance to this order the petitioner was detained on 20.10.1994 itself in as much as he was in judicial custody on that date. Thereafter the 4th respondent, Additional Secretary to the Government of India in exercise of powers conferred upon him by the Central Government issued a declaration under Section 9 of the Act. THIS was on 16.11.1994. The result of the declaration would be that though the petitioner would have suffered detention for a period of one year as per order dated 20.10.1994 he would have remained in detention for a period of 2 years.

(2.) THE petitioner, as we refer to the grounds of detention, was apprehended on 27.8.1994 at Indira Gandhi International Airport while carrying 16 Kgs. of foreign marked gold concealed either in his specially made packets or in the socks. THE gold valued Rs. 27.90 lacs. THE grounds also show frequent visits of the petitioner abroad. Various grounds have been taken to have the detention quashed, but Mr. Harjinder Singh, the learned counsel appearing for the petitioner has confined his attack to the validity of the declaration issued under Section 9 of the Act. He says that law is now well settled that the detenu should halve been apprised of the fact that he could make a representation against the declaration before the declaring authority as well. This point is no longer res intergra as it is covered by a Full Bench decision of this court in Akhilesh Kumar Tyagi v. Union of India and others, quashing the declaration as bad on the ground that the report of .the Advisory Board has been issued beyond 11 weeks. In that case also the declaration did not mention the fact that the detenu could make representation against his detention to the declaring authority. It was held, therefore, that the declaration was violative of clause (5) of Article 22 of the Constitution of the India. Following that decision as well as a Bench decision of this court in Charanjit Singh Gaba v. Union of India, we find that the declaration in the present case violates clause (5) of Article 22 of the Constitution of India. Since the Advisory Board constituted under Section 8 of the Act held its sitting on 24.3.1995, the opinion of the Advisory Board was sent beyond a period of 3 months, the detention of the petitioner, therefore, also becomes illegal. In this view of the matter the petition is allowed. THE petitioner be set at liberty forth-with unless he is required in any other case. Petition allowed.