AHMED RAZA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has challenged the detention order passed by the Joint Secretary to the Government of India, under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) on 3rd of March 1988. This order was passed with a view to preventing the detena from smuggling of goods.

(2.) . This in turn was based on an incident dated 10th of December 1987 when the petitioner arrived at Calcutta Airport from Bangkok and opted for red channel tor declaring the dutiable articles in his possession. Nothing was recovered from the petitioner. The case set up by the authorities is that there persons, namely, Tashi Lama, Abdul Salam and one A. J. Alliew also landed at Calcutta Airport on the same flight. All the three of them checked in at Green Channel and the customs authorities on search recovered 1277 grams of gold from Tashi Lama. 617 grams of gold from Abdul Salam and 767 grams of gold from A. J. Alliews. This was concealed in inner seams of their jeans. On their statements Abdul Salam and A. J. Alliew arc stated to have disclosed that the gold was given to them by the petitioner. These people were arrested and takn to customs house at Calcutta. They were produced before C..T.M. Barasat on 11th of December 1987 and were remanded to judicial custody till 24th of December, 1987. A bail application moved by the petitioner before the crurt on 11th December 1987 was rejected on that very day. On 24th of December 1987 anoher bail application moved before the C.J.M. Barasat was also rejected on the same day and therefter another bail application was rejected on 7th January 1988. The detenu was. however, ultimately. released by an order of the Calcutta High Court on 12th January 1988 on certain conditions. A number of contentions have been raised by the petitioner out of which two were mainly argued. The first contention of Mr. Kochhar is that the Calcutta High Court had passed a conditional bail order directing, inter-alia, that the petitioner shall not leave the jurisdiction of the High Court of Calcutta without the permission of the court and that his passport had been seized and as such the subjective satisfaction of the detaining authority that the detenu could indulge in smuggling is vitiated. This argument was countered by Mr. Lokur on the ground that all that is required under law is to bring all the facts to the notice of the detaining authority and if the detaining authority is still arrived at a subjective satisfaction keeping in view the background and the modus operandi of the detenu that he was likely to smuggle goods nothing further is required. Since I find out that this petition is to be allowed on a short ground I would not like to deal with this contention in this case.

(3.) . The main contention of Mr. Kochhar is that the detenu had made a representation to the Central Government on 5th May 1988 and that there has been a long unexplained delay in the consideration of this representation. In this regard the detenu has raised a specific ground Nc. 9 alleging that there has been a long and unreasonable delay in the consideration of his representation violating his right under Article 22(5) of the Constitution of India and thereby vitiating the order of detention. This contention of the petitioner will have to be dealt with on the basis of the counter affidavit filed by the opposite party in this regard. In the counter affidavit the detaining authority has asserted that there is no delay in the consideration of the representation. It is stated that the representation though dated 4th May 1988 is signd by the detenu on 5th May 1988 and was received in the secretariat on 13th May 1988. It is further stated that the representation was put up for consideration to the Central Government en 19th of May 1988 and the Central Government on careful consideration rejected the same of 30th May 1988 and a memorandum thereof was conveyed to the detenu on the same day.