M.M.QAZI, J. - (1.) By this petition, the petitioner-detenu has challenged the order of detention dated January 4, 1984 passed by the Assistant Secretary to the Government of Maharashtra, Home Department (Special), detaining the petitioner-detenu under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No. 52 of 1974) (hereinafter referred to as "the Act") with a view to preventing him for engaging in transporting or concealing or keeping smuggled goods. He was taken into custody on the same day, i.e. on January 4, 1984, and the grounds of detention were also formulated and supplied to him on the same day. The incident which gave rise to the impugned order is dated December 7, 1983 when the Customs Officers attached to the Air Intelligence Unit of the Customs (Preventive), Collectorate, Bombay, on suspicion intercepted the petitioner-detenu, who had arrived from Delhi as a domestic passenger by Air-India Flight No. AI-122 with his baggage consisting of one plastic bag and one brown-coloured zipper rolling bag with markings as "SINRICO". The Customs Officers questioned the petitioner-detenu about the contents of the brown-coloured zipper rolling bag and plastic bag. He replied that they were containing used wearing apparels and tin provisions. Not satisfied with this reply, the brown-coloured zipper rolling bag was got opened with the help of a screwdriver in the presence of panchas. On opening the bag, the Customs Officers noticed some used wearing apparels underneath which nine bars of gold with foreign markings and weighing 1 Kg. each were found wrapped in a black-coloured adhesive tape and tied up with the transparent cellophane paper. All the nine gold bars were placed back in the same brown-coloured zipper rolling bag in the presence of panchas. All the aforesaid nine gold bars, totally worth Rs. 16,65,000/- at the local market rate, were seized by the Customs Officers under a panchanama dated December 7, 1983 in the reasonable belief that they were smuggled into India and hence liable to confiscation under the provisions of the Customs Act, 1962.
(2.) Several challenges have been raised in the petition, but Mr. Canteenwalla pressed Ground No. (H) of para 7 of the petition only, which reads thus : "Respondent No. 2 has failed to at all consider the report, if any, sent by the respondent No. 1 to respondent No. 2 under section 3(2) of the COFEPOSA Act. In any event, the same has not at all been expeditiously considered by respondent No. 2 with a view to considering whether or not to revoke the detention order under section 11 of the COFEPOSA. In any event, the petitioner has not been informed of the outcome of consideration, if any, of such report. Six months have already elapsed since the time when the report was supposed to have been forwarded. As such, the detention and/or continued detention is illegal, unconstitutional and void."
(3.) Two affidavits have been placed on record on behalf of the Central Government, one is by Mr. M. Ram Mohan Rao, working as Senior Technical Officer in the Ministry of Finance (Department of Revenue), New Delhi, and the other is by Mr. K.K. Dwivedi, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. Mr. Govilkar the learned Counsel appearing on behalf of the Central Government i.e. the Union of India, has invited our attention to paras 6 and 7 of the affidavit sworn by Mr. Dwivedi, Joint Secretary, in answer to the ground pressed by Mr. Canteenwalla, which read thus : "6. I say and submit that the power of revocation is a discretionary power and that a decision by the Central Government not to interfere with the decision of the State Government after considering the report received under section 3(2) of the said Act, does not mean that the Central Government has failed to determine whether the order of detention need to be revoked or modified under section 11 of the said Act. 7. I say and submit without prejudice to what I have stated above, that provisions of the said Act in general and provisions of sections 3(2) in particular, do not impose any obligation on the Central Government to invariably communicate to the State Government any decision that it may take in respect of the order of detention of a particular detenu which is reported under section 3(2) of the said Act or that the report has been received and considered by the Central Government. I say and submit that it is not at all incumbent upon the Central Government to communicate its decision to the detenu pursuant to the receipt of the report under section 3(2) of the said Act from the State Government except when it decides to revoke the order of the State Government. In no other case whatsoever, any such communication is warranted by the provisions of the said Act.";