RAHEEM KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This habeas corpus petition under Article 226 of the Constitution of India has been put in on behalf of Raheem Khan who has been detained under Sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act) vide order dt. 10-9-92 passed by Shri D. D. Sud, Dy. Secretary, Home (Security) Rajasthan, Jaipur.

(2.) The detention has been called in question mainly on the grounds that (i) the detention order Annexure 1 was passed after delay of nearly six months from the alleged seizure of the 250 foreign marked gold biscuits from a bag held by the petitioner on 20-3-1992, (ii) the detenu was already in custody and, therefore, there was no justification for passing the detention order, (iii) the detenu is illiterate and he was not read over and explained the grounds of detention and, therefore, he could not make effective representation, (iv) the detention order was served after a period of 41/2 years and no explanation has been given for the inordinate delay caused in the service of order of detention, and (v) the detention order was passed by the Dy. Secretary to the Government whereas such power could be exercised by the Secretary to the Government. An affidavit has been filed in support of the petition.

(3.) Respondent No. 2 in his reply justified the detention of Raheem Khan. It was averred that the detenu was arrested by the police on 20-3-92 under Sec. 3/6 of I.P.P.R. and under Section 307, IPC and he was subsequently arrested on 11-4-1992 under the Customs Act whereupon proposals for his detention under the COFEPOSA Act were sent to the headquarters on 17-6-1992 at Jaipur and the orders were issued by the Government of Rajasthan on 10-9-1992, and thus there was no inordinate delay in issuing the detention order. Regarding the averment in the petition that the petitioner was illiterate and grounds of detention were not read over and explained to him, it was averred that the Superintendent, Central Jail has not been made party who could alone give suitable reply to the averments in this regard. For the delay caused in the service of the detention order, it was stated that the detenu was hiding in Pakistan and 78 attempts were made to arrest him during the period November, 1992 to November, 1996 but as he was in Pakistan he could not be arrested and the order could not be served.