LexMEENA JAYENDRA THAKUR versus UNION OF INDIA AND ORS.
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A B MEENA JA YENDRA THAKUR v. UNION OF INDIA AND ORS. SEPTEMBER 22, 1999 [G.B. PATTANAIK, M. SRINIVASAN AND N. SANTOSH HEGDE, JJ.) Preventive Detention : C Conservation of Foreign Exchange and Prevention of Smuggling Ac- D E tivities Act, 1974-Section 3(i), 8(b ), 8(f) and 9(i)-Right of detenu to make representation to the declaring authority-None- intimation of-Held, if the detenu is not intimated of his right to make a representation to the authority issuing the declaration, the Constitutional right conferred under Article 22(5) gets infringed vitiating any further detention-But that would not by itself vitiate the initial order of detention-A subsequent infraction of the detenu 's right or of non-compliance of the procedure prescribed under law, does not affect the validity of the order of detention itself or the satisfaction of the detaining authority while making an order of detention-Constitution of India, 195D-'-Articles 22(4) & (5). Detention Order--Delay in execution of-Question regarding-To be examined in the light of facts and circumstances of each cas~rder of detention passed on 5.2.92 by the detaining authority-Evasion of execution by the detenu--Detenu served on 3.8.9~ after the detaining authority came to know that the detenu had been arrested in another case-Held, there is F sufficient explanation for the delay in execution of the order of detention. Detenu having been already arrested and in custody in another case at the tif11:.e of executing the order of detention-Effect of-Held, this fact does not vitiate the detention of the detenu or the order of detention because the G detaining authority on consideration of all relevant material facts including the fact that there may be a possibility of detenu being released on bail, thought it fit to get the order of detention served on the detenu. Customs Act, 1962--Section 108--Attempt to smuggle 350 pieces of silver ingots in a vessel from Dubai, foiled and persons in the vessel ar- H rested-Such persons making statement under Section 108 of the Customs Act 98 • - - ·' -. -- M.J. THAKUR v. U.O.I. 99 indicating that the silver in question was meant for the detenu and was to be handed over to him-These statements f01ming the sole basis for the subjec- tive satisfaction of the detaining authority for the order of detention against the detenu-Subsequent retraction of statements by those persons-Fwther statements made later on indicating that the original statements under Section 108 were correct and not the retracted statements-Held, this fact being before the detaining authon·ty while issuing the order of detention, the subjective satisfaction of the detaining authority was not vitiated. Customs authorities _received some information that a large scale smuggling of silver was being made in a vessel from Dubai. On the basis of said information, the vessel in question was searched and as many as 350 pieces of silver ingots were recovered from there. The persons in the vessel were arrested and their statements·. under Section 108 of the Cos- toms Act were recorded. The said statements unequivocally indicated that the silver in question was meant for the detenu and was to be handed over or him. On this basis, an order of detention was issued by ~he State under Section 3(i) of the Conservation of Foreign Exchange and Preven- lion ,of Smuggling Activities Act, 1974 on 5.2.92. The drtenu was served with the order of detention on 13/8/93 while he was in custody on being arrested on 23.7.93 in some other criminal case. On 15.9.93, a declaration was made under Section 9(i) of the Act thereby extending the period within which the procedural requirements under Section 8 of the Act could be complied with. The case of the detenu was referred to the Advisory Board on 15.9.93 and the Advisory Board gave its opinion stating that there exists sufficient cause for detention of the person concerned. On the basis of the said opinion, the State Govt. confirmed the order of detention under Section 8(1) of the Act by order dated 17.11.93. The appellant, detenu's wife, filed a writ petition before the High Court assailing the legality of the order of detention as well as the continued detention of the detenu. The said petition was dismissed by the High Court. Hence the present appeal. On behalf of the appellant, it was contended that the detenu was not informed of right of representation to the authority issuing t
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