VIJAYA KUMAR GUJARAL Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition under article 226 of the Constitution of India challenge is made to the order of detention dated 17/12/1985 passed by the Administrator, Union Territory of Delhi, respondent No.2, under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the COFEPOSA) with a view to preventing Vijaya Kumar Gujral, petitioner, from smuggling gold into India and also from abetting him in smuggling of gold. In the grounds of detention it is stated that on February 5, 1985, five packages lying at the A.F. Godownin C.W.C. Import Cargo Unit, Gurgaon Road, New Delhi were examined by the customs officers in the presence of one Shri Mohd. Ali Abdi, Second Secretary, Somalia Embassy. On examination 200 gold biscuits were recovered. Shri Mohd. Ali Abdi confirmed that the contents of the five packages were as per the invoice. The packages had been imported by said Shri Abdi. Shri Abdi had appointed M/s. Capital Refrigeration of which the petitioner is the sole proprietor as his indenting agent. The gold biscuits are alleged to. have been imported concealed in the cking range, washing machine and two porcelain flower vessels of the consignment by the petitioner in connivance with the exporter of Hong-Kong. Shri Abdi on demand could not produce any proof of the lawful import of the gold biscuits. They were accordingly seized under Section 1 10 of the Customs Act (for short 'the Act'). Shri Abdi had received the air waybill on January 24, 1985. He then obtained an exemption certificate and handed over the papers to M/s. Maydee &Co. Customs Clearing Agents, alongwith the invoice Shri Abdi also handed over one invoice No. CT 002/85 dated January 15, 19.85 of M/s. Time Polythene & Printing Manufacturer of Hongkong issued in his name to the petitioer. On the basis of the material as stated in the grounds of detention the order of detention was passed by the detaining authority. It is alleged that the petitioner had absconded since the day of the seizure of the contraband i.e. February 5, 1985. He appeared before the customs officers for the first time <PG>16</PG> on May 27, 1985 in compliance to the summons served on him. He had been released on bail by this Court on that date i.e. on May 27, 1985.

(2.) The petitioner was detained on December 20, 1985 in pursuance of the order of detention dated December 17, 1985 and the grounds of detention were served on him on December 24, 1985. Thereafter Shri M.L. Wadhawan, Additional Secretary to the Government of India, passed a declaration under Section 9(1) of the COFEPOSA on January 8, 1986. The petitioner made a representation to the detaining authority on January 13, 1986. The same was, however, rejected by the Administrator, Union Territory of Delhi and the same was conveyed to the petitioner vide memorandum dated February 3, 1986. The petitioner then made a representation to the President of India on February 7, 1986 against the declaration under Section 9(1) of the COFEPOSA and prayed that the order of detention be revoked and he be set at liberty. This was impliedly rejected and the result was conveyed to the petitioner vide memorandum dated February 17, 1986. The petitioner filed the present writ petition on March 3, 1986. The petitioner was produced before the Advisory Board on May 7, 1986 to whom he submitted a representation in writing. The order of detention having been cleared by the Advisory Board, the Administrator passed the order confirming the detention order of the petitioner on June 3, 1986. The petitioner thereafter raised additional grounds by way of amendment of the writ petition challenging the order of detention and his continued detention.

(3.) . Mr. Harjinder Singh, learned counsel for the petitioner, challenged the detention including the continued detention of the petitioner on diverse grounds. We would first of all deal with the ground on which the petition must succeed. This ground relates to the declaration dated January 8, 1986 undersection 9(1) of the COFEPOSA as made by Shri M.L. Wadhawan, Additional Secretary, Ministry of Finance, Government of India, being duly empowered in that behalf and a copy of which was served on the petitioner. The petitioner made a representation dated February 17, 1986 against the same addressed to the President of India. As per the return filed by respondents 1 and 2, this representation was also dealt with and disposed of by Shri Wadhawan acting as the Central Government, also being duly empowered in that behalf. A communication dated February 17, 1986 in response to the said representation of the petitioner was sent by an Under Secretary to the Government of India, Ministry of Finance to the petitioner. In the representation the petitioner stated that no material has been disclosed to the petitioner in the declaration as made; that it was incumbent upon the 'declaring authority' to have informed the petitioner of the material that had been taken into consideration in arriving at the satisfaction. It was also stated that the declaration was otherwise vague. In the end it was requested that the order of detention passed against the petitioner be revoked and he be set at liberty forthwith.