K.M. Harshad Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
detention - vitiated by failure to inform detenu of his constitutional right of representation against an order of declaration that he was likely to engage in smuggling. constitution of india: article 22(5). - - 8. once the declaration under section 9(1) of the cofeposa act dated 11.1.1990 is held to be bad, the order of confirmation for a period of 2 years from 8.8.1989 ipso facto becomes invalid inasmuch as the continued detention of the petitioner was made consequent upon the order of declaration.m.k. chawla, j.1. this petition under article 226 of the constitution of india, read with section 482 of the code of criminal procedure has been filed by the petitioner shri k. m. harshad, seeking the issuance of a writ of habeas corpus or any other writ, order or direction for quashing the order of detention dated 8.8.1989 passed by respondent no. 2 state of kerala under section 3(1) of the conservation of foreign exchange and prevention of smuggling activities act (hereinafter referred to as the cofeposa act), with a view to preventing the petitioner from engaging in transporting, keeping and concealing smuggled gold and from dealing in smuggled gold, and the order of declaration dated 11.1.1990 passed by respondent no. 3 shri k. prakash anand, addl. secretary to the government of india, ministry of finance, new delhi, and the immediate release of the petitioner.2. though a number of grounds have been taken in this petition, but the learned counsel for the petitioner has laid stress only on one point. his submission is that the declaring authority issuing the declaration under section 9(1) of the cofeposa act has not cared to inform the detenu that he has a right to make a representation against the said declaration.3. before dealing with this ground, it is necessary to keep in mind some important dates. on 17.1.1989, the officers of the special customs (preventive) r.c.p. palaghat, intercepted the petitioner at a bus stand and on search of his bag, recovered 2 gold biscuits of foreign origin and indian currency of rs. 4,21,150/-. the petitioner was arrested on 18.1.1989 and was produced before the learned a.c.j.m. (economic offence), ernakulam, on the next date. on 23.1.1989, the petitioner was granted conditional bail. on 30.6.1989, the petitioner along with his co-accused shri k.n. ashik were served with a show cause notice under section 124 of the customs act to which he gave a detailed reply on 30.7.1989.4. shri mohan kumar, commissioner and secretary (home) of the government of india, in exercise of his powers under section 3(1)(iii) and 3(1)(iv) of the cofeposa act passed the impugned order of detention, in consequence of which the petitioner was arrested and detained on that very day. as a follow up action, shri k. prakash anand, addl. secretary to the government of india passed the order of declaration under section 9(1) of the cofeposa act on 11.1.1990. the petitioner forwarded his representation to the detaining authority through superintendent, central prison, trivandrum, against his detention order. this representation was rejected vide orders dated 29.1.1990.5. it is not disputed that in his representation dated 15.1.1990, the petitioner has not at all referred to or challenged his continued detention for a period of 2 years w.e.f. 8.8.1989 by virtue of the order of declaration dated 11.1.1990. according to the learned counsel, the petitioner could not have done so as he being an illiterate and uneducated person was not aware of his constitutional right of making such a representation. there is no explanationn from the side of the respondents. however, the fact remains that in the order of declaration, there is no averment that the petitioner can make a representation to the declaring authority, the central government or the advisory board or high court of kerala, ernakulam.6. this plea of the petitioner is fully covered by the law laid down by the supreme court in case 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.7. this judgment has been followed in series of judgments of this court, and as at 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, thereforee, the declaration was vocative of provisions of article 22(5) of the constitution of india.8. once the declaration under section 9(1) of the cofeposa act dated 11.1.1990 is held to be bad, the order of confirmation for a period of 2 years from 8.8.1989 ipso facto becomes invalid inasmuch as the continued detention of the petitioner was made consequent upon the order of declaration.9. in the result, i accept the petition and make the rule absolute. the order of detention dated 8.8.1989 and the order of continued detention are quashed. the petitioner is directed to be set at liberty forthwith if not required to be detained in any other case.