CHARANJIT SINGH GABA Vs. UNION OF INDIA

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution the petitioner has challenged his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the Act) and seeks a writ of habeas corpus or any other appropriate writ, order or direction for his release.

(2.) The petitioner was detained in pursuance to order dated 1 August 1994 of the Lt. Governor of the National Capital Territory of Delhi passed under section 3(1) of the Act on his satisfaction that it was necessary to detain the petitioner with a view to preventing him from smuggling goods and also preventing him from engaging in transporting, concealing and keeping smuggled goods. The petitioner was served with the grounds of detention as required under sub-section (3) of section 3 of the Act for the purpose of clause (5) of Article 22 of the Constitution. The petitioner was told that if he desired to make a representation against his detention to the Lt. Governor and to the Central Government, he could do so by addressing the same to the Lt. Governor at the address given or to the Secretary to the Government of India, Ministry of Finance, Department of Revenue, and again as per the address given. It was stated that he could forward the representation through the Superintendent, Central Jail, Tihar, New Delhi, wherein he has been lodged. Similarly, the detenu was also told that he could represent to the Advisory Board constituted under section 8 of the Act addressing the same to the Chairman, Advisory Board, High Court, New Delhi, and could forward it through the Superintendent, Central Jail, Tihar. Thereafter, Mr. B. Sankaran, Additional Secretary to the Government of India, issued a declaration dated 30 August 1994 under section 9(1) of the Act on his satisfaction that the detenu was likely to engage in smuggling goods into and through the I.G.I. Airport, New Delhi, which was an area highly vulnerable to smuggling as defined in Explanation I to section 9(1) of the Act. The effect of the declaration issued under section 9 of the Act would be that the detenu could be detained for a maximum period of two years whereas otherwise he would have been detained for a maximum period of one year. The detenu was told that he had a right to be represented to the Central Government as well as to the Advisory Board against the declaration in the manner specified in the grounds of detention. That would mean that if the detenu had to represent to the Central Government against the declaration under section 9 of the Act, he should address the same to the Secretary to the Government of India, Ministry of Finance, Department of Revenue, Sixth Floor, lOCBhawan, Janpath, New Delhi, and for the Advisory Board addressed to the Chairman, Advisory Board, COFEPOSA State, High Court of Delhi, Sher Shah Road, New Delhi. Of course, both the representations could be forwarded through the Superintendent, Central Jail, Tihar, New Delhi. The detenu was not told that he could represent against the declaration to the declaring authority as well who, as noted above, is the Additional Secretary to the Government of India.

(3.) The principal contention of Mr. Ashutosh, learned counsel forthe petitioner, has been that constitutional right of the petitioner as conferred upon him under clause (5) of Article 22 of the Constitution has been violated inasmuch as the petitioner has not been informed that he could represent against the declaration to the declaring authority as well who had to independently examine the representation. Before we examine this submission we may as well note in brief the grounds of detention which are in the narrative form.