AMIR SHAD KHAN AZIZ AHMEDKHAN ALIAS AZIZ MOHAMMAD KHAN Vs. L HMINGLIANA:L HMINGLIANA

JUDGEMENT

(1.) ):- Special leave granted.

(2.) The events leading to the filing of these two appeals, briefly stated, are that on the afternoon of March 25, 1990, the officers of the Directorate of Revenue Intelligence being in possession of information intercepted a motor car at about 3.45 p.m., driven by the appellant Amir Shad Khan with the appellant Aziz Ahmad Khan as his companion. On search of the vehicle 1400 gold bars were recovered. The statements of the two appellants were recorded and thereafter they were formally arrested on March 28, 1990 and produced before the Chief Metropolitan Magistrate, Bombay. The Chief Metropolitan Magistrate granted remand. While the matter was under investigation a proposal was made to the first respondent-Secretary (Preventive Detention), Government of Maharashtra for invoking the powers conferred on him by Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called'the Act). On the very next day after the receipt of the proposal the first respondent passed the impugned orders of detention against the two appellants. These orders were passed under sub-section (1) of Section 3 of the Act with a view to preventing the appellants from smuggling goods and engaging in transporting, keeping and concealing the same. After these detention orders were passed on April 24, 1990 they were served on the appellants along with the grounds of detention and basic documents on which reliance was placed. By clauses (iii), (iv) and (v) of paragraph 43 of the grounds of detention the appellants were informed that they had a right to make a representation to (i) the State Government; (ii) the Central Government; and (iii) the Advisory Board against the detention orders, if they so desired. It was further stated that the representation to the State Government should be addressed to the Minister of State for Home, Mantralaya, Bombay. They were informed that to facilitate expeditious consideration thereof the Superintendent of Jails may be requested to forward the same to the detaining authority so that the Home Department can put up the case to the Minister for consideration. It was further stated that the representation to the Central Government may be addressed to the Secretary, Government of India, Ministry of Finance (Department of Revenue), New Delhi through the Superintendent of Jail. In the case of the Advisory Board the appellants were informed that the representation may be addressed to the Chairman, Advisory Board constituted under the Act and may be forwarded through the Superintendent of jail. On the basis of this advice contained in the grounds of detention the appellants preferred a representation addressed to the Detaining Authority and forwarded it through the Superintendent of Jail, Arthur Road Central Prison, Bombay. It is not necessary to state the various grounds made out in the representation for the revocation of the detention orders but it would suffice to reproduce the last paragraph of the representation. That paragraph reads as under:

(3.) The law of preventive detention is harshto the person detained and, therefore, there can be no doubt that it must be strictly construed. Article 22 (3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of clauses (1) and (2) of the said Article. Clause.(4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of Article 22 reads as under: