SANTOSH MADHAVAN Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India has been filed challenging the detention order dated the 4th November, 1985 passed by the Commissioner & Secretary, Home Department, Government of Kerala under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA) and also a declaration made under Section 9 (1) of the said Act made by Shri M. L. Wadhwan, Additional Secretary, Government of India, respondent No. 2. It was the case of the detaining authority that on the 10th May, 1985, the Superintendent, Special Customs Preventive Unit, Trichur along with his companions had made a search of a room occupied by the petitioner detenu in Casino Hotel from where one gold biscuit etc. were recovered and on inquiry it was found that 40 foreign make gold biscuits have been given to one Sindhi at Bombay and had been brought by covering the same in carbon papers and concealing them in the sterio set and sold to one jeweller at Trichur.

(2.) The petitioner had challenged the detention order on various grounds wch I need not reproduce because counsel for the petitioner had made a statement that now the petitioner does not challenge the detention order. Counsel for the petitioner has now confined the challenge only to the declaration made under Section 9(1) by respondent No. 2. The declaration which had been issued under Section 9 (1) shows that the declaring authority had satisfied itself from the material bearing on the matter in its possession. It is not disclosed in this declaration as to whether the declaring authority had considered only the material which was placed before the detaining authority when the detention order was passed or it had considered any additional material for being satisfied for making this declaration.

(3.) Counsel for the petitioner had vehemently argued that it was the bounden duty of the declaring authority to have made it clear in this declaration as to what specific material it had considered before making this declaration. The Counsel for the Union of India has on the other hand contended that it should be presumed that the detaining authority must have considered only the material which was there before the detaining authority at the time the detention order was made and the said material was admittedly served on the detenu pari passu the grounds of detention. Shri S. K. Choudhry, who is working as Under Secretary in the Ministry of Finance, has filed counter affidavit on behalf of respondents I and 2 but he does not mention in his afiidavit as to whether the declaring authority, respondent No. 2 had considered only the material which was already there with the detaining authority before passing the detention order or whether any other material had been considered by the declaring authority before making the declaration. No affidavit of respondent No. 2 in this connection has been filed.