JAGDISH CHANDRA MITTAL Vs. ADHIKSHAK KENDRIYA KARAGAR

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and learned counsel for the State at length.

(2.) THE petitioner by means of this writ petition has challenged the order of detention dated 26th April, 1991 passed as against petitioner by Up- Sachiv, Gopan Vibhag, U. P Government under section 3 (1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Before dealing with the questions raised by the petitioner, it is necessary to quote necessary facts. On 23rd November, 1990 a Custom authority at Bahraich has seized gold, precious stones, a draft of Rs. 10,000/- a diary, Rs. 2192,00 in cash and ticket from Nepal to Nepalganj recovered from the possession of the petitioner On 24th November, 1990 a Panchnama was executed. In consequence thereof a search was made at the residences of petitioner and one Mr. Javedi at Bombay on 22nd November and 26th November, 1990 respectively. However, nothing incriminating was found. A statement of petitioner thereafter was recorded u/Secs.104 and 107 of the Customs Act. THE petitioner was taken in custody on 25th November, 1990 and his remand was extended till 7th December, 1990. On 6th December, 1990 a bail application was moved by the petitioner before the Chief Judicial Magistrate which was rejected on the same day. On 7th December, 1990 the remand was extended. THE petitioner thereafter moved the second bail application on 12th December, 1990 which was again rejected by the Special Judicial Magistrate on 19th December, 1990. THE petitioner's bail application was also rejected by the District and Sessions Judge on 2nd January, 1991. A notice of filing a bail application before the High Court was given to the Special counsel for the Custom Department on 4th January, 1990. Bail application of the petitioner was finally allowed by the High Court on 31st January, 1991 which is Annexure 4 to the writ petition. THEreafter on 1st February, 1991 the petitioner was released from the jail custody. On 5th February. 1991 a letter was sent to the Custom authority alongwith an affidavit retracting earlier admission made u/Secs.104 and 107 of the Customs Act which was recorded on 20th and 27th November, 1990. This letter is Annexure 11 to the petitioner. On 9th April, 1991 a show cause notice u/Sec.112 of the Customs Act was given to the petitioner. After receipt of the same on 23rd April, 1991 the petitioner demanded certain documents in order to reply to the aforesaid show cause notice. It is relevant to mention here that on 26th April, 1991 the aforesaid impugned order of detention alongwith ground of detention was passed by the detaining authority. This detention order was actually served on the petitioner on 19th May, 1991 when he was at Jaipur and was detained at Central Jail Bareilly on 10th of May, 1991.

(3.) THE main two points urged by the learned counsel for the petitioner, firstly, that the detaining authority while passing the detention order as against the petitioner was not aware of the petitioner being outside jail and hence on account of non-awareness itself the detention order is illegal. Secondly: it was contended that on the date the detention order was passed admittedly the bail application moved by the petitioner before the High Court and comment of the sponsoring authority viz. the custom authority in the present case to the said application already having come in existence, and it not being placed before the detaining authority or if placed the same not being supplied to the detenu itself takes away effective right of the detenu under Article 22 (5) of the Constitution of India for making effective representation and thus the detention order also be quashed on this ground alone. THE second ground is that the relevant papers and the material documents, the petitioner having prayed for it being supplied through application dated 4th June, 1991, the respondents not supplying the same itself takes away the right of the petitioner for making effective reply in support of his representation as against the detention order and thus on account of this also the detention order be quashed.