- (1.) A. P. Misra, J. The petitioner has challenged the detention order dated 30th June, 1989 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'cofeposa Act' ).
(2.) BEFORE dealing with the ground of challenge it is necessary to give certain fact. The incident alleged is dated 16th April, 1989 and the petitioner was arrested on 18th April, 1989. On 26th April, 1989 and 3rd May, 1989, the Special Chief Judicial Magistrate, Allahabad and the Session Court respectively rejected the petitioner's bail application. On 16th May, 1989 the High Court granted bail. The impugned order of detention thereafter was passed on 30th June, 1989. However, the order could only be executed on 30th June, 1995. The State has given elaborate dates justifying the delay in executing the said order as according to the State, the petitioner was absconding. However, on the other hand, learned Counsel for the petitioner has referred to the admitted fact that on 26th October, 1994 the petitioner presented himself before the Special Chief Judicial Magistrate, Allahabad, on the basis of non-bailable warrant in case under the Customs Act, which was on the basis of the complaint filed before the Special Chief Judicial Magistrate, Allahabad, of 5th December, 1990 under the Customs Act and he was sent to jail and remained in the Central Jail, Nine, Allahabad, till 29th October, 1994. Thereafter on 30th October, 1994 he was granted bail. Further reference that on 27th July, 1989 a show-cause notice was issued by the authorities under the Customs Act to the petitioner at the same address, which was replied by the petitioner. Thus, the aforesaid facts could not constitute the case of the petitioner to be an absconder. In the counter-affidavit various facts and dates have been referred to show that the respondents made all the efforts, but could not succeed in serving the detention order. Hence, the delay in serving the detention order on the petitioner is not on account of any laches on behalf of the respondents. However, since we are deciding this petition on a different short ground, hence not necessary to give details of the various dates referred in the counter-affidavit. An argument was raised on behalf of the State, since petitioner challenged the detention order before the Rajasthan High Court (Jodhpur) through Writ Petition No. 1311 of 1992, which was dismissed, hence the present petition will not be maintainable. On the other hand, learned counsel for the petitioner repelling this argument, made submissions that irrespective of this there cannot be any repudiate in the matter of liberty of a person under the preventive detention law, but even if the impugned order could be said to be valid, the question still is whether the respon dent authorities considered the representation of the petitioner in accordance with law and have performed their obligations under the law and the Constitution or not. All these grounds are subsequent to the detention order. In other words, even if detention order could be valid, his continued detention on failure to perform the constitutional obligation by the respondent authorities would be illegal. It is further urged that the petition in the Rajasthan High Court was not a habeas corpus petition and petitioner was not under detention, the present petition is a habeas corpus petition. This argument has merit. This writ petition filed in the Rajasthan High Court, as aforesaid, would not be a bar to hear the present petition. The argument for the petitioner is that the respondent authorities failed to perform their obligation of intimating the petitioner that he has also a right to make a representation to the Central Government under Section 11 of the COFEPOSA Act, which is mandatory. Thus his conti nued detention is rendered illegal.
(3.) ON 28th June, 1995, the Chief Judicial Magistrate, Bikaner (Rajasthan) passed an order for serving the detention order dated 30th June, 1989, which was actually served on him and the petitioner presented himself before the State of Uttar Pradesh on 30th June, 1995 and taken in custody and was sent to Central Jail, Fatehgarh on 2nd July, 1995. The allegation is on 3rd 7uly, 1995, Pairokar of the petitioner prayed about permitting him to meet the detenu for preparing and making a representation by him, which was not permitted by the jail authority. Instead, he was directed for making the said representation through registered letter. Thereafter, by means of registered post the petitioner's representation dated 14th July, 1995 was received in the said jail and, after getting the signature of the petitioner was sent to the authority concerned. The main question pressed by the learned counsel for the petitioner, on which we are deciding this petition, is that the respondent authori ties did not intimate the petitioner regarding his right of making representation to the Central Government which renders his continued detention illegal. It is not in dispute, nor it has been stated that the detaining authority, while serving the detention order or at any time subsequently, ever intimated the detenu about his right of making the representation to the Central Government under Section 11 of the Act. In the counter-affidavit filed by Dr. Samar Bahadur Singh, Deputy Jailor, Central Jail, Fatehgath, the only averment in this regard is that the representation, which is given by the petitioner on 14th July, 1995 was forwarded through special messenger to the authority concerned and further that the representation submitted by the petitioner was sent to the State Government as well as Central Government. In the counter-affidavit filed by A. Q. Farooqui, Special Secretary, Home Department, Government of Uttar Pradesh, Lucknow, it is stated (relevant portion is quoted hereunder): ". . . . . . . . . . But if the detaining authority is State Government, there will be no violation of Article 22 (5) of the Constitution of India, if the detaining authority has not disclosed in the detention order that the petitioner can make his representation to the Central Government. Though the Central Government has power in the present case, to revoke the impugned order but it is mention here that actually the petitioner has sent his representation to the State Government which was also addressed to the President of India. The State Government received the representation and sent a copy to the Central Government on 3-8-1995 i. e. , after receiving the comment of the sponsoring authority in the matter. ";