TALAB UMAR BHAYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner who is the detenu has challenged by way of this petition the order of detention dated 18-2-1989 passed by the Addl. Chief Secretary to Government, Home Department, Gandhinagar in exercise of the powers under sub-sec. (1) of Sec. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), conferred on him by Government Order dated 12-3-1986, with a view to preventing the detenu from engaging in transporting smuggled goods. The petitioner has also challenged declaration No. 52 of 1989 dated 9-3-1989 issued under Sec. 9(1) of the COFEPOSA by respondent No. 4 herein. The grounds of detention dated 18-2-1989 also were served to the detenu along with the materials at the time of the execution of the order. The order was executed on 19-2-1989.

(2.) The learned Advocate for the petitioner submits that he is challenging before this Court only the declaration issued under Sec. 9(1) of the COFEPOSA Act. He submits that the declaration under Sec. 9(1) was issued on 9-3- 1989 by respondent No. 4 herein. However, he was made aware of his right of representation against the declaration only on 30-8-1990 in pursuance of the letter written by the petitioner on 20-8-1990. He submits that the petitioner wrote a letter on 20-8-1990 which is annexed at Annexure "F", inquiring whether he has a right to make a representation against the declaration under Sec. 9(1) and if he has, to whom he can make a representation. To the aforesaid letter, the Under Secretary to Government of India, wrote a letter dated 20-8-1990 which is Annexure "E" to the petition, wherein he is informed that he can make a representation to the Central Government and the Advisory Board against the declaration also in the manner specified in the grounds of detention. Therefore, it is argued on behalf of the petitioner that the detenu is made aware of his right of representation after 16 months of the making of the declaration. The learned Advocate for the petitioner submits that as a matter of fact, he could not make any written representation to any of the authorities as informed by the letter dated 30-8-1990 at Annexure "E", because he was made aware of his right to make a representation only by the letter dated 230-8-1990. According to the learned Advocate for the petitioner, it was quite unreasonable and inconsistent with the provisions of Art. 22(5) of the Constitution and, therefore, the declaration under Sec. 9(1) of the COFEPOSA be quashed and set aside.

(3.) The learned Advocate for the petitioner relied upon the judgment of the Supreme Court in the case of Jagprit Singh v. Union of India, reported in 1990(3) Crimes 130. Mr. R. R. Tripathi, learned Addl. Public Prosecutor appearing for respondents Nos. 1 to 2 and Mr. Raval appearing for respondents Nos. 3 and 4 had to concede to the legal position as laid down by the Supreme Court in the aforesaid judgment. In the case of Jagprit Singh v. Union of India (supra), at Para 5 the Supreme Court has observed as follows : "Taking up the second contention first, it is not denied on behalf of the respondents that the detenu has a right of representation against the detention order. There is some controversy before us as to whether the detenu has a right to make a representation to the declaring authority or not but we express no opinion on this point for the purpose of this case. But it is undeniable that in the facts and circumstances of this case, the detenu has not been made aware, either in the order of declaration or within a reasonable thereafter that he had a right to make a representation against the declaration to the appropriate authorities. From the papers, placed on record, it was not untill the detenu wrote to the declaring authority on 10-11-1988 seeking clarification as to whether he had a right of representation against the declaration and, if so, to which authority that a clarification on this matter was furnished to him on 17-11-1988. In order words, there has been a delay of about a month and 13 days before the detenu was made aware of his rights under the Constitution to make an effective representation against the declaration. This delay, in our opinion, is quite unreasonable and inconsistent with the provisions of Art. 22(5) of the Constitution of India. In our opinion, in view of the aforesaid position and the law laid down by the Supreme Court, we are of the opinion that in the present case, the delay of 16 months before the detenu was made aware of his right under the Constitution to make an effective representation against the declaration is quite unreasonable and inconsistent with the provisions of Art. 22(5) of the Constitution of India and the detention of the detenu beyond the original period of one year, in the circumstances, was unjustified.