UDAY UMESH LALIT,J. - (1.) This petition under Article 32 of the Constitution of India prays for quashing of the Detention Orders, Nos.PD-12001/34/2019-COFEPOSA and PD-12001/35/2019-COFEPOSA, both dated 01.07.2019, issued by the Respondent No.2 against Shri Ashok Kumar Jalan and Shri Amit Jalan respectively dated 01.07.2019 and for a direction that the detenues be set at liberty.
(2.) The facts leading to the filing of this petition, in brief, are as under: (a) On 01.07.2019, Joint Secretary to the Government of India, specially empowered under Section 3(1) of the COFEPOSA Act [The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974] passed the Detention Orders after being satisfied that with a view to prevent the detenues from smuggling goods, abetting the smuggling of goods, and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, in future, it was necessary to make the said Detentions Orders. b) The detenues were served with the Detention Orders, the grounds of detention and the relied upon documents on 02.07.2019. The grounds of detention, in para 12, recited as under:- "You ........... have the right to represent against your detention to the Detaining Authority, to the Central Government as well as to the Advisory Board. If you wish to avail this right, you should send your representation through the Jail Authorities where you are detained, in the manner indicated below: (a) Representation meant for the Detaining Authority should be addressed to the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6 th Floor, B-Wing, Janpath Bhawan, New Delhi-110001. (b) Representation meant for the Central Government should be addressed to the Director General, Central Economic Intelligence Bureau, Government of India, Ministry of Finance, Department of Revenue, 6th Floor, B-Wing, Janpath Bhawan, New Delhi-110001. (c) Representation meant for the Advisory Board should be addressed to the Chairman, COFEPOSA Advisory Board, Delhi High Court, Sher Shah Road, New Delhi-110002. (c) On 18.07.2019 the cases of the detenues were referred to the Central Advisory Board [The Central Advisory Board, Delhi High Court, New Delhi] along with the grounds of detention and relied upon documents. (d) On 22.07.2019 representation dated 17.07.2019 made on behalf of both the detenues, addressed to the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue was received through the Presidency Correctional Home, Alipore, Kolkata. The representation stated inter alia:- "9....(iii) To enable me to make an effective representation at the earliest opportunity, I may please be forthwith provided with- a) a copy of the Retraction Petition of Shri Anand stated to be relied upon in the grounds of detention; b) a copy of the pen-drive or CD/DVD of the CCTV footage directed by the CMM to be submitted on 18 th June, 2019 may please be provided to me and may please be shown to me on a laptop or any other device. 10. Kindly note that unless the aforesaid prayers are considered expeditiously, I am unable to make my final representation to the Central Government and the Advisory Board, etc. Therefore, the instant representation may please be considered as expeditiously as possible in true spirit of Article 22(5) read with Articles 14 and 21 of the Constitution of India." (e) On 24.07.2019, the representation was forwarded to the Sponsoring Authority, namely, DRI, Kolkata for its comments which were received on 29.07.2019. Said representation as well as the para-wise comments received from the Sponsoring Authority were forwarded on 31.07.2019 to the Central Advisory Board. The meeting of the Central Advisory Board was scheduled to be held on 02.08.2019. (f) On 02.08.2019 itself, Writ Petition No.1840 of 2019 preferred on behalf of the detenues was allowed by the High Court [The High Court of Delhi at New Delhi] on the grounds that when the detenues were in judicial custody and there was no imminent possibility of their release on bail and when not even a bail application was preferred by them, the power of preventive detention ought not to have been exercised; and, that non-placement of relevant material in the form of retraction petition of one Shri Anand and its non-consideration by the Detaining Authority vitiated the Detention Orders. The High Court thus quashed the Detention Orders and directed that the detenues be released forthwith. (g) In its Meeting dated 02.08.2019, the Central Advisory Board recorded that since the Detention Orders were quashed, there was no possibility of proceeding further in the matter. (h) The decision of the High Court was challenged in Criminal Appeal No.1746 of 2019 in this Court, which by its Judgment and order dated 22.11.2019 set aside the view taken by the High Court. While allowing the appeal, the detenues were directed to be taken into custody forthwith. The Detaining Authority was thereafter informed by the Jail Superintendent on 27.11.2019 that the detenues were received in custody in pursuance of the decision of this Court. (i) On 02.12.2019 a direction was issued to process the files of the detenues for reference to the Central Advisory Board. After obtaining appropriate approval, the case was referred to the Central Advisory Board on 05.12.2019 stating inter alia:- "Keeping in view the judgment dated 03.06.2015 of the Apex Court delivered in Crl.Appeal No.829 of 2015 arising out of SLP(Crl) No.2489 of 2015 ­ Golam Biswas v. Union of India, the said representations will be considered for disposal by the competent authority only after receipt of opinion of the Hon'ble Board."
(3.) The instant writ petition was filed on or about 16 th December, 2019 challenging the stand taken in the communication dated 05.12.2019 that the representation would be considered only after the receipt of the opinion of the Central Advisory Board. It was submitted that the representation ought to be considered independently by the Detaining Authority and without waiting for the report of the Central Advisory Board; and that the delay in consideration of such representation violated the rights of the detenues guaranteed by the Constitution of India. Soon thereafter, another representation reiterating the stand as aforesaid was made by the Advocate for the detenues on 18.12.2019.;