Charanjit Talwar, J.
(1) After hearing the learned counsel for the parties today we quashed the impugned detention order dated 30th March, 1983, and while making the rule absolute directed that the petitioner, Harish Taneja, be set at liberty forthwith unless required to be detained under another valid order passed by a Court or an authority. We had stated that we would give our reasons later which we do presently.
(2) To appreciate the contentions of the counsel for the parties it is necessary to notice a few facts.
(3) On 4th October, 1982, the petitioner on disembarkation at Bombay airport was arrested under Section 104 of the Customs Act. He was produced before an Additional Chief Metropolitan Magistrate on 5th October, 1982, and was remanded to judicial custody from time to time. He was released on bail on 10th November, 1982. On 23rd March, 1983, a notice was issued to the petitioner by the Assistant Collector of Customs, Bombay, asking him to show cause as to why goods and currency seized from him should not be confiscated and action under Sections 111, 112, 113, 114, 121 and 118(1) of the Customs Act, 1962, be not taken against him. Thereafter with a view to preventing the petitioner from smuggling goods and abetting the smuggling of goods the impugned order was passed. The petitioner was taken into custody and lodged in jail at Bombay.
(4) On behalf of the petitioner his Advocate, Shri U. K. Sharma, wrote a letter on 16th May, 1983 (Annexure 'J' to the petition), to the Governor of the State of Maharashtra, Bombay, seeking, inter alia, address of the Chairman of the Advisory Board before which the petitioner was to be produced so that a representation could be made to that Board for allowing him to seek assistance of a lawyer at the time of hearing. It is the case of the petitioner that he was produced before the Advisory Board on 2nd June, 1983, before whom he made a request that he should be allowed to be assisted by a lawyer or a friend as he was not in a fit state to make a coherent representation against his detention. It is averred in the petition that no reply was given to his representation dated 16th May, 1983, nor did the Advisory Board consider his request for giving him assistance of a lawyer or a friend.
(5) Rule nisi was issued on 28th July, 1983, and the petition was directed to be set down for hearing in the week commencing 9th August, 1983. On 10th August, 1983, Shri M. N. Shroff, Advocate, counsel for respondents 2 and 3, namely, Governor of Maharashtra and Secretary (Home) Maharashtra State Government, sought a short adjournment to enable those respondents to file their counter-affidavit on the ground that they had been served only a week before the date of hearing. The case was adjourned to 16th August, 1983. Liberty, however, was given to the respondents to file their counter-affidavits before that date. In spite of the opportunity granted to answer the rule issued of this petition for a writ of habeas corpus, the respondents including the Union of India have failed to file a return. Thus, the averments in the petition have to be taken as correct.
(6) Three grounds urged by Shri Kapil Sibal, counsel for the petitioner for challenging the validity of the order of detention are :
(I)that the request seeking to be represented by a lawyer or his friend made by the petitioner was not considered by the Govern- ment and the Advisory Board and hence the protection of fundamental right guaranteed to him under Article 21 and Article 22(5) of the Constitution was denied to him :
(II)that a vital fact regarding the issuance of show cause notice (Annexure 'F' to the petition) by the Assistant Collector of Customs, Bombay, which could have influenced the mind of the detaining authority one way or the other, was not considered by it before issuing the impugned detention order and so the satisfaction postulated for issue of a detention order is vitiated;
(III)that the order is bad because of the delay between date of incident and the date of arrest, i.e., 30th March, 1983, on passing of the impugned order.
(7) The contention of respondents 2 and 3 is that this Court has no jurisdiction to entertain this petition as the detaining authority as well as the detenu are outside its jurisdiction. However, it was conceded by the counsel that the representation of the petitioner seeking revocation of the impugned detention order was rejected by the Central Government under Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. Shri Khurana appearing for the Union of India produced the original file before us. On a perusal of the file we found that the petitioner in the aforesaid representation challenged his continued detention, inter alia, on the ground that his request for assistance of a counsel at the time of hearing by the Advisory Board, had not been considered.
(8) Now let us advert to the preliminary objection raised on behalf of respondents 2 and 3. It is apparent from the facts of this case that the representation of the petitioner to the Central Government challenging the continued detention was rejected at Delhi. In view of this fact the jurisdiction of this Court is not ousted although there is no doubt that the Bombay High Court would also have jurisdiction to entertain this petition. The preliminary objection is thus rejected being misconceived.
(9) As noticed above, this is a case in which no return has been filed. The obligation cast upon the respondents under law has not been discharged by them. We have to proceed on the averments in the petition being correct.
(10) It is well-settled that the representation to the Advisory Board by a detenu requesting for legal assistance has to be considered in each case. (See Smt. Kavita v. The Stale of Maharashtra and others, Air 1981 Supreme Court 1611). The petitioner says that he made this request to the Advisory Board but it was not at all considered. This averment cannot be considered as an after-thought as it finds mention in the representation made to the Central Government. Earlier by his counsel's letter dated 16th May, 1983 (copy Annexure 'J') the petitioner had sought information from the Governor of Maharashtra about the address of the Chairman of the Advisory Board so that he could make such a representation to the Board. The representation of the detenu seeking assistance of a counsel or a friend not having been considered, in the special circumstances of the present case, we hold that the safeguard guaranteed by Article 22(5) of the Constitution and Section 8 of the Act was denied to him.
(11) This petition is also liable to succeed on the second contention, namely, that the fact of issuance of show cause notice under the Customs Act has not been considered by the detaining authority. We have gone through the grounds of detention. There is no mention of it. There is no doubt that this fact would have a bearing on the issue and could influence the mind of the detaining authority one way or the other. The satisfaction leading to the passing of the detention order is thus vitiated.
(12) The question of delay in passing the detention order has to be considered in the light of facts of each case. Since no return has been filed and the petition is being accepted on other grounds we do not propose to deal with this contention which is based on facts.
(13) In view of our discussion above, the detention order is liable to be quashed. The detention order as well as the continued detention of the petitioner being illegal the rule is made absolute and the petition is allowed.