KOCHU KRISHNAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner is himself a detenu who has filed this criminal writ petition for a writ of Habeas Corpus under Art.226 of the Constitution of India challenging the validity of the declaration made under S.9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - hereinafter referred to as "the Act".

(2.) As disclosed in the grounds of detention, in the morning of 4th Nov. 1984 the detenu along with his associates was involved in smuggling into India the contraband gold. It was found in the highlift van bearing Registration No. NMK 3733 of Ambassador flight kitchen. It was hidden in one toilet module. The detenu and two other associates who were sitting in the van were interrogated. The detenu in his statement recorded under S.108 of the Customs Act confirmed that it was a joint operation under the instructions of one Vijay an ex-employee of Plaza Flight Kitchen. After completing the investigation, the sponsoring authority placed the material before the detaining authority for consideration and issuing detention order under the Act. The detaining authority (respondent No. 1) after considering the material placed before him on 27-3-1985 issued the detention order under S.3(1) of the Act. This order was served on the detenu on 29th March, 1985. On 12th April, 1985 a declaration under S.9(1) of the Act was made by the Additional Secretary to the Government of India - the 3rd respondent.

(3.) On 29th July 1985 the detenu sent a writ petition through jail which came to be numbered as Writ Petition No. 564 of 1985. In this writ petition the detenu had prayed for a writ of habeas corpus only against the State of Maharashtra. The very first paragraph of the said petition reads as under : "That, the appellant abovenamed was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, vide Govt. Home Department Order No.SPL/3(A)/PSA0184/278 dated 27th March, 1985. Being aggrieved by the said order of detention the appellant prefers this humble appeal on the following amongst other grounds." In the prayer clause the detenu has prayed that he be ordered to be released after revoking the said impugned order of detention under the Act. 3-A. Since this criminal writ petition was sent through jail the High Court appointed Shri V. G. Madhavi, Advocate, for and on behalf of the detenu to represent him in this criminal writ petition. This Court issued rule nisi on this criminal writ petition. Although the Union of India or the Additional Secretary to the Government of India, who made the declaration under S.9(1) of the Act was not made a party, the concerned department of this Court sent a notice of rule nisi to the Union of India as a party and consequently the rule nisi was served on the Union of India. This is how the Union of India came to be joined as respondent to this Criminal Writ Petition No. 564 of 1985. After hearing both the parties the Division Bench of this Court vide its order dated 6th January, 1986 rejected the criminal writ petition and confirmed the order of detention.