Gurmeet Singh vs Union Of India And Others
1990 Latest Caselaw 317 Del

ORDER

1. In this writ petition prayer has been made for quashing the order dated 7th December, 1989 passed under Section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the Act) by the Additional Secretary tb the Government of India with a view to preventing him from smuggling goods and also preventing him from engaging in transporting or concealing or keeping smuggled goods.

2. Detention order dated 23rd November, 1989 was passed against the petitioner by the Administrator of the Union Territory of Delhi in respect of an incident dated 18th June, 1989. The petitioner was detained on 25th November, 1989 and the impugned declaration order was passed on 7th December, 1989.

3. Learned counsel for the petitioner has restricted his argument to one point only. He has submitted that the petitioner was not informed about his right of making a representation against the order of declaration either in the declaration itself or subsequently on account of which he has been deprived of his statutory right of making a representation. It has further been submitted that interim representation dated 5th March, 1990 was sent by him addressed to Shri A. C. Saldanha, Addl. Secretary as also the Secretary to the Government of India, Ministry of Finance, Department of Revenue, Central Secretariat, North Block, New Delhi stating therein that "detent is advised to submit that he has belatedly discovered that he had a right of representation against his continued detention as a result of declaration under section 9(1) of the COFEPOSA Act 1974, about which he ought to have been appraised in the declaration or by way of a separate communication contemporaneously with the declaration so that he could exercise his right under Art. 22 of the Constitution expeditiously in time." It is also submitted that the petitioner wanted confirmation from the Government about his right of making such a representation and prior to that no representation has been made by the petitioner. This representation has admittedly been rejected by the respondent on 12th March, 1990.

4. Learned counsel appearing for the respondent has not controverter the factual position. It is, thus, clear as a fact that the petitioner has not been given information about his right of making a representation against the impugned declaration either in the declaration or thereafter and it is only on 5th March 1990 that the petitioner wanted a confirmation about the knowledge of his right of making a representation.

5. Learned counsel for the petitioner has submitted that there has been a denial of a right of representation to the petitioner making a representation resulting in violation of the provisions contained in Art. 22(5) of the Constitution as a result of which the declaration is unjustified and liable to be set aside. Reliance has been placed on the case Jagprit Singh v. Union of India, (1990) 3 JT 293 (SC), wherein it has clearly been held that a detent has a right to make a representation against a declaration to the appropriate authorities and if no such information is given or if there is unreasonable delay in making him aware of such a right the detention would be inconsistent with the provisions of Art. 22(5) of the Constitution.

6. Learned counsel for the respondent has submitted that Art. 22(5) of the Constitution does not apply to order of declaration and that nature of satisfaction under section 3 is similar to the satisfaction required under Section 9 of the Act. He has submitted that the petitioner was made aware of his right of making a representation while serving him with the order of detention and so the judgment of Jagprit Singh's case (supra) does not appear to be correct law. I am afraid this argument can hardly be open to the counsel to be made in this Court. There is a constitutional mandate for all the Courts in India to follow judgment of Supreme Court. A bare reading of the judgment of Jagprit Singh (supra) makes it abundantly clear that if the petitioner is not made aware of his right of making a representation against a declaration the detention would become unjustified. The declaration in these circumstances has to be set aside.

7. Learned counsel for the petitioner submits that in pursuance of the order of detention dated 23rd November, 1989 the petitioner was detained on 25th November, 1989 and the order of detention was confirmed on 11th May, 1990. Counsel for respondent has verified the correctness of these dates. It is, thus, clear that the order of confirmation of detention was passed beyond three months. There is no dispute about the legal proposition that once the declaration is set aside the consequences would follow including the release of the detent especially when the order of confirmation was also passed more than three months after the order of detention.

8. As a result, the petition is allowed. Rule is made absolute. The order of declaration is set aside. The petitioner be released forthwith if not required in any other case.

9. Petition allowed.