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TMI Blog1999 (9) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... icient cause for detention of the person concerned and on the basis of the said opinion, the State Government confirmed the order of detention under section 8(f) by order dated 17-11-1993. The appellant filed the writ petition in the Bombay High Court on 15-5-1994 assailing the legality of the order of detention as well as the continued detention of the detenue. The High Court, by the impugned judgment, dismissed the writ petition after negativing all the contentions raised and hence the present appeal. 2. At the outset it may be stated that though the period of detention is already over and, therefore, normally this Court would not have gone into the legality of the order of detention, but a proceeding under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 ('the SAFEMA') having been initiated, the appellant pressed his appeal and the Court permitted him to raise the contentions. It may not be out of place to mention here that the customs authorities received some information that a large scale smuggling of silver is being made in a vessel on 18-9-1991 from Dubai and on the basis of said information the vessel in question was searched and as many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .N. Goswami, the learned senior counsel appearing for the Union of India and Mr. I.G. Shah, the learned senior counsel appearing for the State of Maharashtra repelled the submissions of Mr. V.S. Kotwal and contended that the High Court was fully justified in rejecting the contentions advanced on behalf of the detenue. Mr. Goswami also further contended that even assuming there has been some infraction of the procedural requirements on account of which there has been an infringement of the constitutional right of the detenue in making a representation then the continued detention becomes invalid and not the order of detention itself. In this view of the matter, Mr. Goswami contends that the period of detention having already expired, question of declaring his continued detention illegal does not arise and further the order of detention that was issued by the detaining authority on 5-2-1992 cannot be invalidated. Mr. K.G. Shah, the learned senior counsel appearing for the State of Maharashtra contended that non-consideration of the retraction made by the persons who were in the vessel, does not vitiate the subjective satisfaction of the detaining authority inasmuch as the detaining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist of a Chairman and two other persons pos- sessing the qualifications specified in sub-clause (a) of clause (4) of article 22 of the Constitution; (b)save as otherwise provided in section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of article 22 of the Constitution; (c )the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods into, out of or through any area highly vulnerable to smuggling; or (c )engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly vulnerable to smuggling, and makes a declaration to that effect within five weeks of the detention of such person." 7. In support of this contention, Mr. Kotwal, the learned senior counsel relies upon the decision of the Full Bench of the Bombay High Court in the case of Sandeep Atmaram Parwal v. State of Maharashtra 1996 II LJ 1 as well the decision of Full Bench of the Delhi High Court in the case of Akhilesh Kumar Tyagi v. Union of India 1996 Crl. LJ 965. He also relies upon the decision of this Court in Shibapada Mukherjee v. State of West Bengal 1974 (3) SCC 50 and the decision in Kamleshkumar Ishwardas Patel v. Union of India JT 1995(3) SC 639 and the decision of the Constitution Bench of this Court in A.K. Roy v. Union of India 1982 (1) SCC 271. 8. There cannot be any dispute that the right to make a representation of a detenue is the most valuable right conferred upon him under article 22 of the Constitution and if there has been any infraction of such right then certainly the detenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for continuance of such detention, and hence such right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation. In this view of the matter, the conclusion becomes irresistible that the authority issuing a declaration under section 9 must intimate the detenue that he has right of opportunity to represent to the declaring authority and non-intimation of the same infringes upon the constitutional right of the detenue to make a representation under article 22(5) and, therefore, the notification issued under section 9(1) becomes invalid and the continued detention pursuant to such declaration and the opinion of the Advisory Board within the extended period as well as the confirmation by the State Government are vitiated. But the further question that requires to be answered is whether the initial order of detention issued under section 3(1) can be held to be ab initio void on the aforesaid infraction of the right of the detenue. On this question, we are unable to agree with the submission of Mr. Kotwal, inasmuch as article 22(4) itself provides for a law fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a high order. The facts that the report of such an Advisory Board has to be obtained before the expiry of three months from the date of detention shows that the maximum period within which the detaining authority can on its own satisfaction detain a period is three months." 11. In Jagprit Singh v. Union of India JT 1990 (3) SC 293 where there had been a delay of one month and 13 days before the detenue was made aware of his right to make an effective representation against declaration, this Court held that it is contrary to the provision of article 22(5) of the Constitution and, therefore, the detention of the detenue after the original period of one year, in the circumstances, was unjustified. The Court further set aside the detention of the detenue beyond September, 1989 and not the original order of detention that had been issued on 2-9-1988. This case was directly on the applicability of section 9 of the COFEPOSA Act and direct authority in support of our conclusion. 12. It is not necessary to multiply authorities on this question. We, therefore, while agreeing with Mr. Kotwal that there has been an infraction of the right of detenue under article 22 as the declaring auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict Magistrate 1986 (4) SCC 416. In the aforesaid case, this Court has observed : "If a man is in custody and there is no imminent possibility of his being released, the power of preventing detention should not be exercised. In the instant case when the actual order of detention was served upon the detenue, the detaining was in jail. There is no indication that this factor or the question that the said detenue might be released or that there was such a possibility of his release, was taken into consideration by the detaining properly and seriously before the service of the order." It is this observation on which Mr. Kotwal heavily relies upon. But as has been stated earlier in the affidavit filed, it has been indicated that not only the fact that the detenue is in custody on being arrested in some other case was brought to the notice of the detaining authority, but also the detaining authority on consideration of all relevant material inculding the fact that there may be a possibility of detenue being released on bail, thought it fit to get the order of detention served on the detenue. In the premises, the ratio in the aforesaid case will have no application. This is not a case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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