Delhi High Court
P. Moideen Kutty vs Union Of India (Uoi) And Anr. on 20 August, 1990
Equivalent citations: 1991 (33) ECR 67 Delhi
Author: M Chawla
Bench: M Chawla
ORDER
M.K. Chawla, J.
1. The petitioner Shri P. Moideen Kutty, has filed this writ petition under Article 226 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure for issuing a writ of habeas corpus or any other writ, order or direction against the order of his detention dated 13.6.1989 under Section 3(1)(i), and his continued detention under declaration No. 200/89 dated 23.8.1989 issued by the Addl. Secretary, to the Government of India, New Delhi, Under Section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (hereinafter referred to as the COFEPOSA Act).
2. The petitioner was detained and kept an custody in the Central Prison, Trivandrum on 4th August, 1989, with a view to preventing him from smuggling gold. This followed an incident where the Customs Intelligence Officers of the State of Kerala intercepted the petitioner at Trivandrum Airport and from his possession, 7 yellow coloured discs with hole in the centre were found concealed in water motor lowana, and recovered. The licensed gold dealer assessed the yellow metal and certified that the said discs were gold with 24 carats purity weighing 1631.6 grams, valued at Rs. 5,13,954.00.
3. Learned Counsel for the petitioner does not propose to go into the details of the circumstances leading to the recovery of 7 gold discs from his person resulting in his detention as according to him this petition can be disposed of on the short ground that while passing the order of declaration, Under Section 9(1) of the COFEPOSA Act, the authorities concerned have not informed the petitioner that he has a right to make the representation against the said declaration also to the declaring authority or to the Central Government. The petitioner being an illiterate and uneducated person, is not supposed to know the law unless and until made aware of his constitutional right to make such a representation.
4. Respondent No. 1-Union of India in spite of service of the notice of filing of this petition, on 6.4.1990, has not cared to file the counter till today, to explain the question involved. In fact, there is no appearance on their behalf. The State of Kerala respondent No. 2 even though have filed the counter, but there is no reply to this question as it does not relate to them.
5. In this view of the matter, this Court has no other option but to follow the law laid down by the Supreme Court in Jagpreet Singh v. Union of India and Ors. Crl. A. 23/90, decided on March 23,1990. It is a very short judgment which lays down:
From the papers placed on record, it was not until the detenu wrote to the Declaring Authority on 10.11.1988 seeking clarification as to whether he had a right of representation against the declaration and, if so, to which authority. The clarification on this matter was furnished to the petitioner on 17.11.1988. In other words, there has been a delay of about a month and 13 days before the detenu was made aware of his rights under the Constitution to make an effective representation against the declaration. This delay in our opinion, is quite unreasonable and inconsistent with the provisions of Article 22(5) of the Constitution. The detention of the detenu beyond the original period of one year in the circumstances was unjustified.
6. This judgment has been followed in series of Judgments of this Court, and as present advised, I have no intention to take a different view. Prima facie, the detenu has been, deprived of his constitutional right to make a representation against the declaration and, therefore, the declaration was violative of provisions of Article 22(5) of the Constitution of India.
7. Once the declaration Under Section 9(1) of the COFEPOSA Act dated 23.8.1989 is held to be bad, the order of confirmation dated 10.1.1990 for a period of 2 years from 4.8.1989 ipso facto becomes invalid inasmuch as the continued detention of the petitioner was made consequent upon the order of declaration.
8. In the result, I accept the petition and make the Rule absolute. The order of detention dated 13.6.1989 and the order of continued detention dated 23.8.1989 are quashed. The petitioner is directed to be set at liberty forthwith if not required to be detained in any other case.
