DAYA SHANKAR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner Daya Shanker Singh was detained under S.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as 'COFEPOSA') by an order dated 22nd February, 1989 of the State of U.P. The allegations against the petitioner in the grounds stated were that on the commercial establishment of the petitioner being searched, from the godown of the petitioner which was adjacent, to the shop, several open cartons were found concealed behind the bags of spices. From these cartons 7 V.C.Ps. 'Pye' Brand made in Japan as also 24 bags of foreign made polyester yarn were recovered. As no papers could be produced by the petitioner for keeping these foreign V.C.Ps. and polyester yarn, the custom authorities seized the same and prepared its recovery memo. The value of the seized articles was assessed at Rs. 2,14,000/-. It was alleged in the grounds that in the voluntary statement made by the petitioner before the custom officials on 29-12-1988 he accepted the recovery of these items and had said that these items belonged to one Ganesh Prasad of Mughalsarai, who had put it there before 4 or 5 days of the incident. He admitted his business terms with Ganesh Prasad for the last 5-6 years.

(2.) The order of detention further stated that at the time of passing of the detention order, the petitioner was in Central Jail, Naini in pursuance of the order of remand by a competent Court but since the petitioner was constantly making efforts to be released on bail and as there was apprehension that if released on bail the petitioner would again indulge in the similar activities, hence the detention order was being passed against the petitioner on the ground that he was engaged in concealing and storing the smuggled goods, which he could repeat and for which it was necessary to prevent him by passing the alleged detention order.

(3.) The above mentioned order was served on the detenu on 23-2-1989. So far as the formalities required by COFEPOSA in the matter of detention are concerned, they have not been challenged by the learned counsel for the petitioner in this case. However, Sri A.D. Giri, learned counsel appearing for the petitioner contended that the detention of the petitioner is bad as the copy of the proposal which was made by the custom officials to the government for considering the case of the petitioner for his detention under COFEPOSA, had not been supplied to him, with the result Art.22(5) of the Constitution was violated us the said proposal had been relied upon by the detaining authority while passing the order of detention. The second contention of Shri A.D. Giri was that the petitioner by his representation dated 13-3-1989, which has been annexed as Annexure-III to the petition, had categorically demanded certain papers stating that those documents and particulars were required by him to make an effective representation. However, neither these documents were supplied to the petitioner nor was the petitioner informed why those documents which were the required material not furnished to him. The contention of the learned counsel for the petitioner is that he could not make an effective representation in the absence of those papers and material and, consequently, the petitioner have been deprived of his valuable right to make an effective representation against his order of detention, his continued detention is bad in the eye of law. Although some other points were also taken in the petition and Sri Giri had initially formulated those points to be developed later on, yet, subsequently he confined his submissions only on these two points but reserved his right to address the court if he subsequently deemed necessary to press the petition on those points also.