M.K. Chawla, J. - (1.) The petitioner was detained pursuant to an order dated 20-6-89 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short, COFEPOSA Act) by Shri A.K. Batabyal, Joint Secretary to the Government of India. The detention order was passed with a view to preventing him from engaging in transporting and concealing smuggled goods. This followed an incident dated 31-5- 89 when at the pointing out of the petitioner 204 gold biscuits of 10. tolas each bearing foreign markings were recovered from a secret cavity specially designed above the window in the wall facing entrance of a bath room-cum-toilet on the first floor of house No. 504, Green Avenue, Amritsar.
(2.) The petitioner has challenged his detention by means of this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking the issuance of a writ of habeas corpus for quashing the aforesaid order of detention and directing his release. The detention order is being challenged on number of grounds but it is not necessary for us to go into the merits or otherwise of all the grounds, as the petition, in my view, can be allowed on any of the following three points. These are: (a) Though the impugned order of detention was issued on 20-6-89, but it was served on the detenu on or about 24-1-90 i.e. after a lapse of about 7 months. The detaining authority has not disclosed the efforts made or the steps taken to serve the impugned order of detention on the detenu during this interregnum period. The belated service of the impugned order of detention on the detenu is fatal. (b) Assuming that the impugned order of detention was justified and warranted to be issued when it was so issued, the detenu having been arrested on or about 19-1-90 by the Police authorities of Dharinda Police Station on an FIR lodged for the offences under the Indian Penal Code, the Arms Act, the TADA. Act and the Official Secrets Act and was in judicial custody, yet at the time of the service of the impugned order of detention, there was no proper consideration of the fact that the detenu was already in custody or that there was no real danger of his release from such custody. In fact, there was not even a remote possibility or any prospects whatsoever of the detenu being released from judicial custody in view of the serious charges levelled against him. The detention of the detenu under these circumstances are unjustified in law and must be held to be mala fide, null and void ; and (c) That neither in the impugned declaration under Section 9(1) of the COFEPOSA Act dated 15-2-90, nor de hors the said declaration by any other contemporaneous documents, the detenu was appraised of hi right to make a representation against the declaration to the declaring authority, the Central Government and the Advisory Board. The failure on the part of the declaring authority in appraising the detenu, who is not an enlightened person, of his constitutional right is violative of Article 22(5) of the Constitution of India and as such the impugned declaration is rendered mala fide and abinitio null and void.
(3.) The case of the respondents as. disclosed in the affidavit of the detaining authority on these aspects is that though the detention order was passed on 20-6-89 but the same could not be served upon the detenu after his release on bail by the orders of the Chief Judicial Magistrate, Amritsar dated 15689. The detenu did not even attend the court of the District & Sessions Judge, Arnritsar in a petition for cancellation of his bail, though the warrants of his arrest were issued It was only when the Directorate of Revenue Intelligence came to know that the detenu has been arrested in the abovesaid case, the order and the grounds of detention were served on him on 2-4-89. For that reason, no action under Section 7 of the COFEPOSA Act was initiated against the detenu, as the application for cancellation of his bail was pending.;