BALBIR KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has challenged the validity of the detention order dated 13th of August 1987 pursuant to which he was detained on 13th of September 1987. This followed an incident dated 13th of January 1987 when the petitioner driver-cum-owner of truck No. BEL 2546, was intercepted and taken to Gopalganj. It was found loaded with large quantity of pencils, tiger head brand 3 cell torches and 72 pieces of battery operated flying Jet Planes Pan Am Boeing 744, all Chinese made. The detention order was made by the State Government of Bihar under Section 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act) with a view to preventing the detenu from transporting smuggled goods. The grounds of detention were also served upon the detenu within the time requisite.

(2.) . Mr. Mangat who appears for the petitioner has assailed the order of detention on a number of grounds. Without going into the merits or otherwise of the other contentions raised in the petition, this petition, in my opinion, will have to be allowed on the contention that while serving the grounds of detention on the detenu the detaining authority failed to inform the detenu that he has a right to be heard by the Advisory Board. In the present case the detention order having been made by the State Government the grounds of detention disclose that the detenu was informed that he has a right to make a representation to the State Government. He was also informed of the authority to whom he could make this representation. The grounds of detention apart from mentioning the details of the incident and the recoveries made from him and apart from the fact that he has a right to make the representation to the detaining authority does not spell out anything more. The contention of Mr. Mangat, therefore, is that having failed to inform the detenu that he has a right to be beard by the Advisory Board his constitutional safeguard under Article 22(5) has been infringed.

(3.) . Sub-section (3) of Section 3 of COFEPOSA Act clearly lays down as under: