JUDGMENT
N. Arumugham, J.
1. By virtue of Article 226 of the Constitution of India, this writ of habeas corpus has been filed by the petitioner who is the wife of the detenu, by name, Shri Mohammad Farook Ibrahim Mugal detained by an order dated 10.6.1991 passed by the Secretary (Preventive Detention) to the Government of Maharashtra, Home Department, Mantralaya, Bombay, 2nd respondent herein, by virtue of sub-clause (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974), impugning the same and praying to quash the said order.
The detention order, grounds of detention and a list of documents relied by the respondents as per Annexures A, B and C to the petition, were served on the detenu on or about 16.10.1997.
2. On a secret information, the Customs Officers of Marine and Preventive Wing, Bombay Preventive Collectorate, searched the residential premises at room No. 19, 3rd floor, 352 Ibrahim Rahimtulla Road Bombay-3 on 16.8.1990 in the presence of two panchas which premises was in the occupancy of the detenu himself. The officers of the Customs then recovered foreign currencies i.e. U. A. E. Dirhams 37,460/- in different denominations equivalent to Indian Rs. 1,87,300/-, along with Indian currency amounting to Rs. 1,48,757/- and five empty cloth jackets meant for concealing foreign market gold bars, two small note books, and loose written sheets serially numbered from 1 to 114. As there was no document produced for the same, the officers seized the above articles under panchanama as provided by the Customs Act, 1962. During investigation of the case, Customs Officers searched the residential premises at room No. 15, 2nd floor, building No. 101/103. Bania Building, Mohammed Umer Kokil Road, (Nishanpada Road), Dongri at 21.30 hours on 16.8.90 after having broke open the lock with the help of Police Officers and a locksmith, as it was found locked. During the search, the Customs Officers recovered Indian currency of Rs. 76,795/- and foreign currencies of 1500 U.S. Dollars and 409 Saudi Riyals in various denominations the currencies were found in a steel cupboard. China silk cloth of foreign origin in trade quantity i.e. length 400 meters valued at Rs. 14,000/- was also found there. They were also seized by the Customs Officers. Consequently, statements of the detenu were recorded on 17.8.90, 18,8.90, 19.8.90, 20.8.90 and 20.9.90. The residential premises of Karim Kapadia situated at D-11, Rose Garden Co-op. Housing Society, Vakola Pipe Line Road, Vakola, Santacruz (E), was searched by Customs Officers on 19.8.90 and officers of the customs found two telephone Nos. 6133303 and 6129601 installed in the premises. Some documents and one passport size photograph of Karim Kapadia etc. were seized under the panchanama. On 18.8.90 they also searched the residential flat No. 8, building No. 8B Kapadia Nagar, C.S.T. Road, Bombay-70 and found that no person was available and after pasting a memorandum of request to the occupants to contact the Senior Superintendent of Customs (Preventive M&P Wing), they left the same. After having broke open the lock of the said premises again with the help of police, it was found that Indian currency of Rs. 6,160/-, two telephones of foreign origin having secret codes on the memory diary display were seized under different panchanama. The detenu accordingly was arrested on 19.8.90 and he was produced before the Additional Chief Metropolitan Magistrate, Esplanade and that he was granted bail of Rs. 2 lakhs S.B. or Rs. 50,000/- cash deposit and that the detenu has availed bail on 6.9.90.
3. Then the statement of Cherparempil Vergese, a friend of Karim Kapadia, was recorded on 20.8.1990. Accordingly searches were made in his residential quarters and recovered 200 Hongkong Dollars notes and Indian currency amounting to Rs. 15,214/- and they were seized under a different panchanama. Consequently, Lalchand Chaneel was arrested on 25.8.1990 and he was produced before the Addl. Chief Metropolitan Magistrate, Esplanade, Bombay and granted bail on 6.9.1990.
4. This was followed by a letter of retraction filed by the detenu on 20.8.1990 in the Court of the learned Additional Chief Metropolitan Magistrate, Esplanade, Bombay and a rebuttal reply thereto was filed by the Assistant Collector of Customs, M & P Investigation Cell, Bombay in the Court on 30.8.90. Statements of the detenu on 17.8.90, 18.8.90, 19.8.90, 20.8.90, 20.9.90 under Section 108 of the Customs Act, 1962 were recorded and that shows that the detenu with the aid of other persons has indulged in prejudicial activities which falls under the category of offences contemplated under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and that having arrived at subjective satisfaction that he is likely to indulge in further prejudicial activities of the above said character in future, proposals were sent to the authorities to detain him under the COFEPOSA Act and that consequently after due consideration by the authorities and perusal of the documents shown in Annexure “C”, the 2nd respondent passed the impugned order of detention and the impugned detention order was served upon the detenu on 10.6.1991 which was shown in Annexure A along with the grounds Annexure B and the list of documents which were relied on and shown in Annexure C on or about 16.10.1997.
5. Aggrieved at this impugned order, the wife of the detenu has sought a writ of mandamus by virtue of Article 226 of the Constitution of India by raising only one ground that was shown in para 3 Clause (i) of the writ petition which is stated as herein under :-
3(i) The detenu was not communicated at the time of service of the grounds of detention or at any time thereafter till date that the detenu had a right to make representation to the Detaining Authority himself against the impugned order of detention. Failure to do so communicate to the detenu in the grounds of detention the aforesaid right, has vitiated the impugned order of detention and has rendered the continued detention of the detenu null and void.
6. Mrs. Ansari, learned Counsel appearing for the petitioner canvassed her argument to substantiate the only ground above referred only. She would contend that the non-appraisal of the detenu while serving the grounds of detention or the detention order about the constitutional mandate that the detenu has a right to make representation to the Detaining Authority, is very fatal to the detention order, itself and that in this regard there is a clear nexsus in the fundamental rights enshrined in the Constitution, viz. Article 22(5) which is likely to cause every prejudice thereby to the detenu and that, therefore, it has become vitiated.
7. We have heard the rival submissions canvassed by Mrs. Ansari, learned Counsel for the petitioner and Mr. Rajiv Patil learned Additional Public Prosecutor for State.
8. It is significant to note at this stage that the response to the attack made by Mrs. Ansari referred to in para 8 of the reply affidavit filed by Mr. M.M. Kamble, Joint Secretary to the Government of Maharashtra Home Department (Special), Mantralaya, Mumbai; in his sworn affidavit which became necessary for us to advert the same as it is :
8. With reference to paragraph 3(i) of the petition, I say that the order of detention is dated 10.6.1991 which was passed by Shri J.P. Dange, the then Detaining Authority, and at the relevant time the position in law was different as the Hon’ble Supreme Court on 17.4.1995 in K.I. Patel v. Union of India Criminal Writ Petition No. 284 of 1994 held that the detenu has right to make representation to the Detaining Authority against the order of detention and such right has to be communicated to the detenu by appraising him of the grounds of detention, I say that at the time of issuing the detention order, the detenu was not appraised of his right to make representation to the Detaining Authority against the detention order, whereas the detention order issued against the detenu in the present case is dated 10.6.1991 and such right of the detenu was not defined by the Hon’ble Supreme Court at the relevant point of time. I say that the order of detention and the grounds of detention dated 10.6.1991 were issued according to law which was then prevalent and therefore it cannot be said that the order of detention is illegal and bad in law.
9. In the context of the rival position pointed out above, we have perused the grounds of detention and the detention order itself. Concedingly, either the detention order on the grounds of detention did not contain any specific reference to the intimation or the instruction or the telling by the Detaining Authority to the detenu that he has got a right to make a representation to the Detaining Authority. Having perused from paras II to V, it is made clear that the Detaining Authority has conspicuously not made any intimation or telling to the detenu about his right to make a representation to the Detaining Authority who detained the detenu behind the bar by curtailing his freedom of movement.
10. At this juncture, it has become relevant to quote clause 5 of Article 22 of the Constitution of India which is as under :-
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making an order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against that order.
11. A casual reading, even of the above Article of the Constitution of India, would clearly imply and indicate that employing of the word “shall” at two places that the Detaining Authority has necessarily to inform the detenu about his right to make a representation and that is a mandate inbuilt in the said Article and that aspect of it has to be necessarily carried out as mandatory. Any violation of the above mandate is clearly violative of the right vested with every citizen conferred with the right under the Constitution. Therefore, the argument advanced by Mrs. Ansari only on one ground, has some force in this case.
12. In Kamleshkumar Ishwardas Patel v. Union of India , the larger Bench of the Supreme Court has held the ratio in this regard as stated hereunder :-
Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the Detaining Authority, i.e. the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.
The Supreme Court in the said case in para 38 at page 68 has further held as follows :-
Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PITNDPS Act the question posed is thus answered : Where the detention order has been made under Section 3 of the COFEPOSA Act and the PITNDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation.
13. Importing the judicial pronouncement made by the Apex Court as above referred to the facts of the instant case, non-appraisal of the right of the detenu by the Detaining Authority in the grounds of detention, while it was served on 16.10.1997 in Annexure B, clearly comes within the teeth of law above settled by the Apex Court and that, therefore, the valuable constitutional right conferred upon the detenu herein has thus been violated.
14. Excepting the above ground, no other ground has been formulated challenging the impugned order of detention and no other point has been argued by the learned Counsel for the petitioner.
15. For the above reasonings, the impugned order of detention dated 10.6.1991 shown in Annexure “A” is hereby quashed. Accordingly this writ petition must succeed.
16. In the result, for all the foregoing reasonings, this writ petition succeeds and accordingly it is allowed. Consequently the detention order, bearing No. SPL3(A)/PSA0190/530 dated 10.6.91 passed by the 2nd respondent against the detenu is hereby quashed and accordingly the detenu is set at liberty forthwith unless he is required to be in prison for any other offences.
Rule is thus made absolute.
