B M UMMAR FAROOK Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition has been brought under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking quashment of the detention order dated May 11, 1988, passed by respondent No. 2 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act') with a view to preventing the petitioner from abetting the smuggling of goods and engaging in transporting smuggled goods. The petitioner has also sought quashment of declaration dated June 1. 1988, issued by respondent No. 3 under Section 9(1) of COFEPOSA Act.

(2.) As the period of more than one year has elapsed since the petitioner was detained, the learned counsel for the petitioner did not advance any arguments in challenging the detention order. The learned counsel for the petitioner has, however, contended that the contiued detention of the petitioner has become bad inasmuch as the representation made by the petitioner against declaration dated June 1. 1988, has not been considered by the Central Government till now.

(3.) The declaration dated June 1, 1988, was served on the petitioner on June 14, 1988. The petitioner had made a representation dated August 12, 1988, against the aforesaid declaration. It is pleaded by the petitioner that the said representation against the declaration has not been considered by the appropriate authority on behalf of the Central Government and rather the said representation had been considered and rejected by the officer specially empowered who had issued the declaration. It is not disputed before me that the representation against the declaration was never considered by the Central Govrenment i.e. by the Hon'ble Minister concerned and came to be considered and rejected by the officer specially empowered who had issued the declaration. It is now settled law that the detenu has a right to make a representation against the declaration which may be issued by the Central Government under Section 9(1) of COFEPOSA Act. If that is so, the representation against the declaration has to be considered by the Central Government. It has been held in the case of Mohd. Saleem v. Union of India & Others, 1989(3) Delhi Lawyer 77(1), by a Full Bench of this Court that a detenu has a right to make a representation against the detention order and the said representation must be considered by the appropriate Government and not by the officer specially empowered who had issued the detention order. So, for parity of reasons, it must be held that the representation against the declaration also has to be considered by the appropriate Government and not by the officer specially empowered who had issued the declaration.