Legality of the order of detention.

K.M. Natarajan, J.

This writ petition is fired by the detenu himself under Art.226of the Constitution of India challenging the order of detention dated 13. 1992 passed by the first respondent in exerciseof the powers conferred under Sec.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (as amended) Central Act 52 of 1974) with a view to preventing the detenu from smuggling goods.

2. The facts in so far as they are relevant for the disposal of the writ petition can be briefly stated as follows: On 1. 1992 the detenu who travelled in the name of Kader Mohideen Kasim holding Indian Passport bearing No.H.150670 issued at Madras, arrived from Singapore, by Singapore Airlines Flight, carrying two pieces of hand baggage, namely, one DAI-ICHI TRADING multi colour ploythene bag and one balrin blue colour hand bag, at the Madras Airport. The detenu declared to the Superintendent of Customs that he did not have gold/silver/VCR/CGP/TV and that the value of all other goods was Rs.2,400. The Customs Intelligence Officer on suspicion that the detenu might be carrying gold or silver kept concealed either on his person or in his baggage, intercepted him. He was brought to the Air Intelligence room along with the baggage and the baggage was opened and examined in the presence of two witnesses. On examination of the DAI-CHITRADING multi colour plastic bag, it contained five white cellophane tape covered bundles and two numbers of crude gold rings. When the five white cellophne tape covered bundles were opened, they were found to contain silver garanules weighing 25 kilograms and the two gold rings were found to weigh together 40 grams. Nothing incriminating was found in the other bag. The abovesaid silver granules as well as the two gold rings were recovered under mahazar. The travel documents which include Singapore Airlines Air ticket, the boarding pass and the customs clearance card were seized under the same mahazar. The silver granules and the two gold rings were tested by a licenser goldsmith who testified to be pure silver and gold of 24 carat purity respectively. The detenu was examined on the same day and his statement was recorded. Again he was examined on 1. 1992 in respect of the address given in the passport. His residence No.45, Kachaleeswarar Garden Street, Madras-1, was searched by the Customs Intelligence Officers and nothing incrinimating was recovered. The enquiry revealed that the detenu never lived in the address given in the passport, namely, at No.35, Krishnan Koil Street, Madras-1. The owner of the said premises, Mohana Sundaram was also examined on 1. 1992. The detenu was arrested on 1. 1992 and produced before the Additional Chief Metropolitan Magistrate, E.O.II, on 1. 1992 who remanded him to Judicial custody till 11. 1992. A bail application was filed and a counter to the same was also filed. However, the detenu was released on conditional bail on 1. 1992. Subsequently the condition was also relaxed. It is only on the basis of the above materials and after follow-up action, the first respondent arrived at the subjective satisfaction to detain the detenu under the above said Act, and accordingly, the impunged order was passed.

3. Though the learned counsel for the petitioner, Mr.B.Kumar, challenged the impugned order on various grounds raised in the affidavit filed in support of the main writ petition as well as the supplementary affidavit raising grounds in W.M.P.No.12382 of 1992, he mainly confined his submission to the following ground. In para 9 of the affidavit filed in support of the main writ petition it is contended that there is a serious violation of Art.22(5) of the Constitution. It is stated that one of the documents annexed to the grounds of detention and given to the detenu is the statement of Mohana Sundaram, which is to the effect that nobody by name Kasim or Mustaffa stayed in the house bearing door No.35,Krishnan Koil Street, Madras-1. The sa