R.L. Gupta, J.—By this writ petition underArticle 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 the petitioner seeks a declaration that the detention order No. 673/361/91-Cus. VIII dated 20.8.91 passed by the third respondent Shri Mahendra Prasad, Joint Secretary to the Govt. of India, Ministry of Finance, New Delhi under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA Act for short) in respect of Satish Kumar, detenu is illegal, void and bad in law and, therefore, same should be quashed and detenu be set at liberty.
2. Brief facts are that on 3.8.91, the officers of Air Intelligence Unit were maintaining surveillance on the passengers arrived by Thai Airways flight TG-313 inside the Customs arrival hall when one passenger was intercepted by them near the exit gate of the arrival hall while he had opted to go out of the airport through green channel. On scrutiny of the passport it came to light that his name was Satish Verma who had left Delhi only on 1.8.91 for Singapore. On enquiry being made verbally from him about the possession of gold, he denied the same to the Customs Officer. He was taken to a separate counter and on interrogation finally confessed that he had been carrying four small pieces of gold inside his stomach and requested the Customs Officer to allow him to eject those 4 pieces voluntarily. Satish Verma was also noticed to have nodded his neck to give some signal to Paresh Dass, a sweeper of Calcutta Airport Authority, who was then going towards the bath room of the Airport. Paresh Dass went inside the bath room and came out immediately and started moving quickly towards the exit gate. Since he did not stop he was chased and finally intercepted inside the domestic main lounge of Calcutta Airport. Both Satish Verma and Paresh Dass were interrogated and it was known from their statements that the present petitioner had come from Delhi and was waiting out side the Airport building or nearby road to receive gold from Paresh Dass and Satish Verma. So the officers immediately looked for the detenu and found him near Airport gate No. 2 of the Airport Lounge. His statement also indicated that he had come to collect gold from the aforesaid two persons at Airport. Rest of the facts may not be necessary for the decision of this petition.
3. The aforesaid detention order has been challenged on behalf of the detenu on a number of grounds. However, the arguments have been restricted to grounds 12 and 13 of the additional grounds taken up in Cr. M 146/92. The grievance in these grounds is that he had made a representation to the Advisory Board on 29.11.91 and the same had neither been considered by the Appropriate Govt./Authority nor any decision communicated to him. In reply to the aforesaid grounds, it was stated in the counter that the aforesaid representation dated 29.11.91 addressed to the Central Advisory Board was considered by Central Govt. independently but its reply was not issued separately to the petitioner since the confirmation of detention order had been issued on the basis of the report and representation and as such it was not felt necessary to communicate the decision of the representation separately.
4. I have heard arguments advanced by learned Counsel for the parties. In fact, we have a direct authority of this Court on this point in the case of P.K.Madhavan v. Union of India, 1991 JCC 207=44 (1991) DLT 1 (SN) The facts in that case were also similar and the question for consideration there also was whether the representation had been considered by the Govt. independently and whether the decision, if any, was communicated to the petitioner. Rather in that case it was urged on behalf of the respondent that the decision was taken on the representation but the same was communicated in the shape of the confirmation order and it was not considered necessary that the decision of the rejection of the representation should be communicated separately. However, this plea was not accepted by this Court and still it was held that since the decision on the representation was not separately communicated so the detention order was bad in law and there was no compliance of Article 22(5) of the Constitution of India. In view of this position, nothing more remains to be said in this case also because in this case also there was no separate communication regarding rejection of the representation made by the detenu to the Advisory Board.
5. Thus the impugned detention order cannot be sustained and same is hereby quashed. Since the detention order is void so the declaration under Section 9(1) of the Act will also have to be set aside and the same is accordingly set aside. Detenu be set at liberty, if not wanted in any other case or proceedings.