Harjinder Singh vs Union Of India And Ors.
1993 Latest Caselaw 427 Del

JUDGMENT

Anil Dev Singh, J.

(1) This is a writ petition' under Article 226 of the Constitution of India with the prayer that the detention order dated December 8, 1992 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA") passed against the petitioner by detaining authority, respondent No. 2 be quashed.

(2) The allegations on the basis of which the petitioner was detailed, briefly stated are as under : The petitioner was intercepted at Igi Airport by the! custom authorities, when he arrived from Hong Kong on September 1, 1992 and was subjected to personal search. As a result of the personal search of the petitioner 1708.400 grams of gold valued at Rs. 6,83,360.00 was recovered from his possession. Pursuant to notice under Section 108 of the Customs Act, 1962, the petitioner admitted that he brought the said gold from Hong Kong clandestinely and also admitted its recovery and seizure on his search by the custom authorities. The petitioner was arrested in connection with the incident and was produced before the Acmm, New Delhi on the same day viz. September 1, 1992, who remanded him to judicial custody. On November 18, 1992 'he petitioner was released on interim bail for a period of one month. Ultimately on December 8, 1992 the impugned detention order was passed against the petitioner which was served on him on December Ii, 1992.

(3) Learned counsel for the petitioner, Ms. Sangita, submits that the petitioner made a representation to the Advisory Board on February 8, 1993 which was presented personally by the counsel for the petitioner on the said date. It is submission of the learned counsel for the petitioner that the representation of the petitioner was not considered by the State resulting in violation of the provision of Article 22(5) of the Constitution.

(4) On the other hand, Mr. Handa, learned counsel appearing for the respondent submits that before confirming the detention order, the representation of the petitioner, which was presented before the Advisory Board, was duly considered by the detaining authority and was rejected by its order dated September 15117 passed under Section 8(f) of the Cofeposa, 1993. To prove his point, the learned counsel invited my attention to order dated 15117th February, 1993 and laid emphasis on the third para thereof, which states as under :    "WHEREAS,the Lt. Governor of the National Capital Territory of Delhi has fatty considered the report of the Advisory Board and materials on record."  

(5) He contends that from the reading of the above para it is clear that the detaining authority, while passing the said order, considered the entire material on record including the representation of the petitioner.  

(6) I have considered the respective submissions of the learned counsel for the parties. It is well settled that the representation of a detenu to the Advisory Board, must be considered by the detaining authority as well. The detaining authority is required to apply its mind to the representation not withstanding the fact that the same was filed before the Advisory Board and considered by it. In the present case, the order of the detaining authority confirming the detention order nowhere states 'that the representation of the petitioner was considered. It is not enough to say that it considered all the material on record while confirming he detenion order. The representation of the detenu must be disposed of by the detaining authority by a specific order which should be communicated to the detenu. The detaining authority cannot by a sweeping statement like the one contained in para. 3 of the order brush aside the representation of a detenu. In this. case, the detaining authority passed the order of confirmation dated 15117th February, 1993 on receipt of the opinion. of the Advisory Board, without making any mention of the detenu's representation. It, therefore, clearly follows that there has been no indepedent consideration of the petitioner's representation by the detaining authority.

(7) In P. K. Madhavan Vs. Union of India 1991 Jcc 207 this court while dealing with a similar situation held as follows : "11'. Learned counsel for the petitioner has submitted that the petitioner had made a representation dated October 25, 1989 addressed to the Chairman, Cofeposa Advisory Board through the Jail Super in indent. He has submitted that it was the constitutional obligation of the appropriate Government to consider the said representation independently of it being considered by the Cofeposa Advisory Board. According to him, this representation has not been considered by the appropriate Government uptil now and, thus, the right of the petitioner of having a representation considered expeditiously under Article 22(5) of the Constitution has been violated. This plea has been specifically been raised by the petitioner in para 19 of the writ petition. In para 19 of the counter affidavit of Mr. Rajesh Nayyar sworn on September 25, 1990, it has been stated that no representation dated October 25, 1989 was received from the detenu but the representation dated November 2, 1989 of the detenu was received Along with the report of the Advisory Board. It has also been stated in the said para that the Advisory Board has considered this representation and that the confirmation order was passed after considering the materials including the representation submitted to the Advisory Board. From a reading of the reply filed on behalf of respondent No. 3, it is clear that the making . of a representation against the order of detention by the petitioner has been admitted though the date of such representation is stated to be on November 2, 1989. 12. The Quiestion, however, for consideration is as to whether this representation has been considered by the State Government and whether the decision, if any, taken on it was communicated to the petitioner. In this regard, it would be necessary to refer to the order dated February 27, 1990 issued by the Government of Kerala, thereby confirming the order of detention'. I have gone through this order and do not find any mention about the appropriate authority having disposed of this representation after consideration. There is no document on behalf of respondent No. 3 to indicate that decision, if any, taken by the Government to reject the said representation was ever communicated to the petitioner. Learned counsel for respondent No. 3, in fact has made a statement at the Bar during arguments that no such order rejecting the said representation of the petitioner was passed by the appropriate Government and, thus, there could possibly no question of sending a communication to the petitioner in this regard. Thus, as a fact it has been proved on record that the representation dated November 2, 1989 moved by the petitioner against his detention has not been disposed of by the appropriate Government uptil now."

(8) The Supreme Court in Smt. Gracy Vs. State of Kerala & another while considering the case of the detenu. who had made a representation before the Advisory Board and the Government without bestowing its independent consideration on his representation confirmed the order of detention, held as follows : "6. It is thus clear that the obligation of the Government to consider the representation is different and in' addition to the obligation of the Board to consider it alt the time of hearing the reference before giving its opinion to the Government. Consideration of the representation by the Government has to be uninfluenced by the view of the Advisory Board- In short the detenue's right to have the representation considered by the Government under Article 22(5) is independent of the consideration of the detenu's case and his representation by the Advisory Board. This position in law is also not disputed before us." Again in Satish Kumar @ Sachin Kumar @ Ashwini Kumar Bansal @ Bhaiya Vs. Union of India and other decided on January 7, 1993 (Crl. W. No. 551 of 19910 this court observed as follows : "INfact, we have a direct authority of this court on this point in the case of P. K. Madhavan Vs. Union, of India 1991 Jcc 207. The facts in that case were also similar and the question for consideration there also was whether the representation had been considered by the Government independently and whether the decision, if any, was communicated to the petitioner. Rather in that case it was urged on behalf of the respondent that the decision was taken on the representation but the same was communicated in the shape of the confirmation order audit was not considered necessary that the decision of the rejection of the representation should be communicated separately. However, this plea was not accepted by this court and still it was held that since the decision on the representation was not separately communicated so that detention order was bad in law and there was no compliance of Article 22(5) of the Constitution of India. In view of this position, nothing more remains to be said in this case also because in this case also there was no separate communication regarding rejection of the representation made by the detenu to the Advisory Board."

(9) In view of the above discussion the petition succeeds. The detention order is set aside and the respondent is directed to release the petitioner forthwith, if not wanted in connection with any other case.