The central legal point established in the judgment is the obligation of the Central Government to consider the detenu's representation in accordance with Article 22(5) of the Constitution of India and Section 11 of the COFEPOSA Act, emphasizing the right of the detenu to make a representation and the requirement of proper consideration by the authorities.

NARAYANAN NAMBIAR, J.

The father of detenu Mohammed Sali Ansar, who has been detained under Sections 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the COFEPOSA Act'), seeks a Writ of Habeas Corpus to set his son at liberty.

2. On 11-8-1994, an unaccompanied baggage was cleared by the detenu from the Trivandrum Airport on payment of duty. While the goods were taken to a metador pick-up van, it was intercepted by the Senior Intelligence Officer, Directorate of Revenue Intelligence, Trivandrum and a few of his subordinates. As the Officers have entertained a reasonable belief that the unaccompanied baggage contained contraband goods which are not declared, the entire good were taken to the Customs House where the baggage was opened and inspected. On inspection, it was found that the baggage contained undeclared articles, the total market value of which was estimated at Rs. 26,22,220/-. But, the detenu had only declared articles valued at Rs. 11,150/- for which he paid Rs. 12,750/- as customs duty. On questioning, the detenu had said that the goods did not belong to him, but those were only sent in his name. He also added that he did not possess any document to show that the excess goods suffered customs duty. They articles were seized as the same had been smuggled to India without valid import licence. The detenu was arrested. On questioning him, it was revealed that he was in Riyadh and had returned to India a week prior to 11-8-1994. He was produced before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and was relased on bail on 23-8-1994. The entire goods seized were later confiscated. The detenu did not stake his claim for the goods.

3. While so, on 19-4-1995, the first respondent, State of Kerala, passed an order under Sections 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, directing the detention of the detenu. The order was executed on 24-4-1994. Grounds of detention as well as the copies of the documents which formed the basis thereof were furnished to the detenu subsequently. The detenu is being detained in the Central Prison, Trivandrum. The petitioner made Ext.P3 representation of the Chairman of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. Advisory Board on 26-6-1995 in which he prayed for revocation of the order of detention passed against his son. Though the representation is addressed to the Chairman of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, Advisory Board, it was sent to the State Government by the Jail authorities, who, in turn, forwarded a copy to the Advisory Board. Another copy of the representation was forwarded to the Central Government by the State Government, and copy was retained by the State Government. The Advisory Board considered the representation and rejected the same. The State Government also considered and rejected it and later chose to confirm the order of detention.

4. Though several points were raised in the Original Petition, only one point was pressed before us and that was; though a copy of Ext.P3 representation was forwarded by the State Government to the Central Government, it was not considered by it in the proper perspective. The second respondent, Union of India, has failed in its constitutional obligation and thereby violated Article 22(5) of the Constitution of India and Section 11 of the COFEPOSA Act. We are of the view that there is considerable force in this contention.

5. Ext.P1 is the order of detention in which it is stated that if the detenu desires to make a representation to the Central Government or to the Advisory Board, the same may be addressed to the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi or to the Chairman of the COFEPOSA Advisory Board, High Court of Kerala,