R. L. Gupta, J.
1. This petition under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure by the petitioner seeks issuance of a writ of Habeas Corpus or any other appropriate order or direction for quashing the order of detention dated 20.8.91 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA Act for short) by second respondent Shri Mahender Prasad, Joint Secretary to the Government of India, Ministry of Finance, New Delhi and a declaration passed under Section 9(1) of the Act dated 9.9.91 passed by third respondent.
2. The brief facts are that the petitioner had arrived by Thai Airways flight TG—313 on 3.8.91 at the Calcutta Airport. He opted to out of the gate through green channel. While he was near the exit gate with one hand bag, he was verbally enquired if he had any gold with him. He denied the same. However, on suspicion having arisen, he was taken to a separate counter and on interrogation finally confessed that he had been carrying four small pieces of gold inside the stomach which were later on ejected voluntarily. His statement under Section 108 of the Customs Act was also recorded. Besides being prosecuted under the Customs Act the present detention order was also passed against him. It was served on him on 20.8.91 while he was still in jail in connection with a criminal case against him.
3. In the petition a number of grounds have been taken up to challenge the validity of detention order. But during the course of arguments, learned Counsel for the petitioner has restricted his arguments to ground (P) at page 13 of the petition, it is stated herein that his representation dated 29.11.91 addressed to the Hon'ble Advisory Board had not been considered by the Central Government and thus detention had become illegal and bad in law being violative of Article 22(5) of the Constitution of India. In the counter affidavit it is stated that the representation dated 21.11.91 of the detenu had been considered by the Central Government and the detenu had been informed about its rejectionvide Memo dated 20.12.1991.
4. I have heard arguments advanced by learned Counsel for the parties. First of all it may be noted that it is not stated in this para that the representation was actually dated 29.11.91 and, therefore, it is not certain whether in the counter affidavit the reference is to the same representation which has been referred by the petitioner as dated 29.11.91. However, during the course of arguments learned Counsel for the respondent did try to contend that it refers to the same representation and this is just a typographical mistake. In the rejoinder, it is reiterated that the aforesaid representation dated 29.11.91 addressed to the Hon'ble Advisory Board had not been considered by the appropriate Government and in any case no such decision was ever communicated to the petitioner.
5. Mr. Singh on behalf of the respondent has drawn my attention to the confirmation order dated 2.1.92 issued by Under Secretary to the Government of India, a copy of which is Annexure X-II along with the rejoinder of the petitioner. He has specifically drawn my attention to a portion of this confirmation order wherein it is mentioned that the Central Government had fully considered the report of the Advisory Board and the materials on record. By reference to the words, "materials on record" learned Counsel has argued that since the representation dated 29.11.91 also formed part of the material along with the opinion of the Advisory Board, therefore, the same should be deemed to have been considered and its rejection communicated through confirmation order dated 2.1.92. It is difficult to accept this contention on behalf of learned Counsel for the respondent. In the case of P.K. Madhavan v. Union of India, 44 (1991) DLT 1 (SN)=1991 JCC 207, this Court in similar circumstances held that it was necessary for the appropriate Authority to consider such a representation addressed to the Advisory Board separately and communicate its decision to the detenu. Since it was not done in that case also the detention was quashed. In the present case also, it is not possible to stretch the meaning of the words, "materials on record" to the extent that the representation dated 29.11.91 addressed to the Advisory Board was also considered separately by the Central Government In fact the "materials on record" will be those materials only on the basis of which the Hon'ble Advisory Board expresses its opinion one way or the other to the Central Government Since this representation was neither considered by the Central Government nor its decision communicated separately, it has to be held that there is denial of opportunity to the petitioner which is hit by Article 22(5) of the Constitution of India.
6. Therefore, the impugned detention order and the consequent declaration order dated 9.9.91 in respect of the petitioner-detenu are hereby quashed. He will be set at liberty, if not wanted in any other case or proceedings.