ADAM HASAN RAJANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner who is the detenu has challenged the order of detention dated 18-2-1989 passed by the Addl. Chief Secretary to Government, Home Department, Gandhinagar, who is respondent No. 2 herein, by exercising the powers under sub-sec. (1) of Sec. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) and directed that the detenu be kept in custody in the Central Prison, Ahmedabad. Along with the order of detention, the grounds of detention and the materials relied upon were served to the detenu at the time of the execution of the order. On 9-3-1989 a declaration under Sec. 9 of the Act was also issued by Shri B. V. Kumar, Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, who is respondent No. 4 herein. Both the order are challenged in this petition.

(2.) The allegations made in the grounds of detention reveal that on 11- 1-1989 the detenu along with others was apprehended when the smuggled gold was being transport in the truck bearing No. GBC 7280. Thus, the present detenu with others was apprehended and the gold was seized under a reasonable belief that the gold was smuggled and was liable to be confiscated under the provisions of the Customs Act and the Gold (Control) Act, 1968.

(3.) The learned Advocate appearing for the petitioner submitted that in the grounds of detention it is mentioned that if the detenu wishes to avail of his right to make a representation, he may submit his representation through the jail authorities in the manner indicated therein. It is stated in the ground of detention that the representation meant for the detaining authority should be addressed to the undersigned, i. e. R. Balkrishnan, Additional Chief Secretary to Government, Home Department, Gandhinagar. It is also stated that the representation meant for the State Government should be sent to the address of the Joint Secretary, Government of Gujarat, Home Department (Special), Sachivalaya, Gandhinagar. It is also stated that if the representation is meant for the Central Government, it should be submitted through the Joint Secretary, (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, Central Economics Intelligence Bureau, and if the representation is meant for the Advisory Board, it should be addressed to the Chairman, COFEPOSA Advisory Board. The learned Advocate for the petitioner submits that thus the detenu is misled and he made a representation to the specially empowered Officer, R. Balkrishnan on 20-7-1988 as per the guidance given in the grounds of detention and it is communicated to the detenu by letter dated 25-7-1989, that the same is rejected by the specially empowered officer after carefully considering the same. It is submitted on behalf of the petitioner that the petitioner was misled in his valuable right and thus there is non-compliance of obligation cast upon the detaining authority to afford an earliest opportunity to make a representation to the State Government. He also submitted that the State Government who is the appropriate authority who has to decide the representation has not decided the same and thus, in the present case, the provision of Art. 22(5) of the Constitution is infringed. It is also submitted on behalf of the petitioner that even though the representation was addressed to the specially empowered officer who issued the detention order, he ought to have got decided the said representation expeditiously at the level of the appropriate authority who is State Government in the present case as there is no right given to the detenu to make representation to specially empowered officer who had passed the detention order. The learned Advocate for the petitioner also submitted that the representation of the detenu has been considered by the authority who had no power and authority to consider the representation and for all these reasons, the continued detention of the petitioner becomes bad.