JUDGMENT
Pendse, J.
1. The Joint Secretary to the Government of India, Ministry of Finance, by order dated March 8, 1988 passed in exercise of powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “the Act”) directed detention of Sunil V. Desai with a view to preventing him from smuggling goods and abetting the smuggling of goods. The order of detention was served on May 2, 1988 and the grounds of detention were furnished.
2. The grounds, inter alia, recites that a consignment consisting of 4 packages weighing 446 kgs. arrived at Cargo Terminal of Indira Gandhi International Airport, New Delhi, from Singapore on November 9, 1987. The goods were consigned to M/s. Charu International (P) Ltd., New Delhi. A Bill of Entry dated November 10, 1987 for clearance of the consignment in the name of M/s. Charu International (P) Ltd., alongwith delivery orders from the consignors with an invoice from Vijay Bank and packing list, etc., was filed with the Customs Authorities. The consignment was under surveillance of the Customs Cargo Preventive Unit. A written complaint dated November 16, 1987, was received from M/s. Charu International complaining that M/s. Charu International had never put an order and bogus documents were tendered in the name of M/s. Charu International. During the enquiries made by the Cargo Preventive Unit of the Customs, it was noticed that some of the officers employed in the Ministry of Finance were involved with the import in the bogus name and were also responsible for clearing of the consignment. The consignment was really meant for the detenu who is carrying on business in Bombay. The detenu reached New Delhi and on being confronted had to admit that the goods were imported by him in the name of a Delhi based firm illegally by misdeclaration of invoice. The Customs Authorities seized the goods and recorded the statement of the detenu. Statements of various other persons were recorded and on the strength of these material, the Detaining Authority came to the conclusion that the detenu was involved in smuggling goods and abetting smuggling of goods into India and unless prevented, he will continue to do so in future. As a result of this conclusion, the impugned order of detention came to be passed and the order is under challenge at the behest of the father of the detenu.
3. Mr. Karmali, learned counsel appearing on behalf of the detenu, submitted that the order detention is required to be struck down as the representation made by the detenu to the Detaining Authority was not considered. The petition in para 6(CC) specifically raises a contention that the detenu was not intimated about the fate of the representation made on May 10, 1988 to the Detaining Authority. Mr. Karmali submitted that in case the representation was not considered by the Detaining Authority, then the order of detention cannot be sustained and continued detention of the detenu is illegal. In answer to the petition, K. L. Verma, Joint Secretary of the Government of India as the Detaining Authority has filed return sworn on July 29, 1988. With reference to the claim made by the detenu in para 6(CC) of the petition, it is averred as follows :-
“It is also denied that the representation addressed to the detaining authority was not considered by the detaining authority. It is submitted that the representation dated 10.5.1988 was considered and rejected by the detaining authority. It is, however, submitted that the communication to the detenu on the said representation was not communicated inadvertently as file, in the meantime has to be forwarded to the Central Government for consideration of his representation.”
It is not clear from the above assertion as to when the representation was considered and rejected. When the petition reached for hearing on last Wednesday, we enquired from the learned counsel appearing for the Detaining Authority as to the date of rejection of the representation and the counsel stated that requisite file would be sent for from New Delhi and the answer would be given. Today, Mr. Desai appearing on behalf of the Detaining Authority handed over to us the requisite file to claim that the representation was rejected on June 1, 1988. We perused the file after it was shown to the counsel for the detenu. On perusal of the file, we find that the Detaining Authority had never rejected the representation. The file indicates that on May 31, 1988, S. Ghosh, Senior Technical Officer, put up a note stating that the representation made by the detenu dose not merit any consideration and may be rejected. A further note was prepared by S. Ghosh on June 1, 1988 and orders were sought on the following three submissions :-
“(a) Rejection of representation made on May 10, 1988 from the detenu by the Central Government;
(b) Rejection of representation dated May 18, 1988 from the detenu addressed to the Detaining Authority; and
(c) Rejection of representation dated May 18, 1988 addressed to the Central Government.”
It is necessary to state at this juncture that the detenu had made two separate and independent representations on May 10, 1988 and May 18, 1988. The representation dated May 10, 1988 was against the impugned order of detention of while the representation dated May 18, 1988 was seeking grant of order of parole on the ground that the father of the detenu was ill and required to be attended immediately. Now, on the submission made by Ghosh, the Detaining Authority passed the following order :-
“I reject the request for parole as Detaining Authority.”
This order was passed on June 1, 1988. The file reflects curious facts of the order passed by the Detaining Authority. In the first instance, the Detaining Authority has not bothered to examine and determine the representation made against the impugned order of detention but has proceeded to turn down only representation dated May 18, 1988 for grant of parole. Secondly, there is something amass in the file shown to us because we find that the Detaining Authority has rejected grant of parole by making endorsements at two places on the submission forwarded by S. Ghosh. In normal course, the submission would be answered by making an endorsement at the foot of the submission and, indeed, the file reflects that such an endorsement was made by the Detaining Authority. The curious part is that an identical endorsement is made on an earlier page by the Detaining Authority. The counsel for the Detaining Authority could not give any reasonable explanation as to why two identical endorsements were required to be made on one submission. Apart from this lacuna, it is clear from perusal of the file that though the submission was made to the Detaining Authority to reject the representation against the order of detention, the Detaining Authority has not applied its mind to that submission and passed any order. The Detaining Authority merely examined whether parole should be granted and proceeded to reject the request. The Detaining Authority has clearly failed to discharge the duties required to be carried out under the provisions of the Act in not examining the representation against the order of detention and passing appropriate orders thereon. From the perusal of the file, it is clear that the Detaining Authority has not considered or rejected the representation dated May 10, 1988 and the claim made in the return that it was rejected and merely not communicated due to inadvertence is incorrect. As the Detaining Authority has failed to consider the representation made from May 10, 1988 onwards, the continued detention cannot be sustained and the order of detention is required to be struck down.
4. According, rule is made absolute and the impugned order of detention is quashed and set aside and the detenu is directed to be released forthwith.