YOOSAF KIZHAKKE KUNHIKA KANDIYIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition is filed by the detenu challenging the order of detention issued on 5.8.1994 by the Secretary to the Government of Maharashtra (Preventive Detention), Home Department, detaining the petitioner under the provisions of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the "Act"). The grounds of detention show clear involvement of the detenu in the activities of smuggling gold into India. The incident in which the petitioner was caught is dated 14.4.1994. The order of detention is passed on 5.8.1994 which was actually served on the petitioner and the petitioner was detailed in pursuance thereof on 19.4.1995 and the detention is for a period of one year.

(2.) ALTHOUGH the detention is challenged on several grounds, the ground made out in para 3/4 (a), in our opinion, is sufficient to vitiate the order. In the aforesaid ground, the petitioner has stated that the detaining authority has not communicated to the detenu, in the grounds of detention, at the time of service of the grounds of detention on the detenu, that the detenu has a right to make a representation to the detaining authority also. The said non-communication has deprived the petitioner of his right to make an effective and purposeful representation to the detaining authority and it has resulted into denial of vital right of the detenu enshrined in Article 22(5) of the Constitution of India.

(3.) WE find it difficult to accept the explanation by the detaining authority. The law as enunciated by the apex Court will have to be held to be the law for all times. In the aforesaid case of Kamkesh Kumar Ishwardas Patel v. Union of India, reported in Judgment Today 1995 (3) S.C. 639 and especially in para 38 thereof, it is clearly laid down that the detenu has a right to make representation to the officer specially empowered for that purpose. It is further observed that this right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation.