THARAMEL MOHAMMAD BAVA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner challenges his detention in this habeas corpus writ petition filed under Article 226 of the Consti'ution of India, ordered on 9th March, 1988 under the provision of Section 3(l)(i) and 3(1) (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act) with a viev/ to preventing him from smuggling gold as well as engaging in transportation, concealment or keeping of smuggled gold. The petitioner was put under detention in exercise of the detention order, on 10th March, 1988.

(2.) The facts, in so far as they are relevant, are to the effect that the petitioner was intercepted while travelling in a bus on 8th March, 1987 at Calicut. On search, his luggage was found to contain amongst others, five gold biscuits of foreign marking of 10 tolas each as well as Indian currency of the value of Rs. 1,22,000. The statement of the petitioner recorded under section 108 of the Customs Act revealed that this Indian currency was the sale proceeds of five gold biscuits he had brought from Saudi Arabia on 4th June, 1987, at the instance of one Kammad. Pursuant to the investigation done, and statements recorded, the impugned detention order was passed.

(3.) The petitioner has raised a number of pleas in the writ petition both in regard to the order of detention as well as declaration under section 9(1) of the Act, and other allied matters, but at the time of hearing Mr. Kochhar pressed one plea, namely that of unexplained and inordinate delay in the disposal of a representation of the petitioner sent through an advocate on 29th July, 1980. The learned counsel pointed out that an averment in this respect is made in clear terms in ground No. XI of the writ petition. In fact. the grievance was that this representation had not been disposed of till the time the writ petition was filed which was on 15h September, 1988. Mr. Kochhar explained that the writ petition was prepared on instructions received earlier whereas he was subsequently instructed that a memorandum of rejection dated 8th September, 1988 was received by M. K. Damodaran, advocate on 14th September, 1988. For that reason, full averment could not be set out in the writ petition.