- (1.)This appeal is directed against the judgment dated 18-1-1995-20-1-1995 of the Bombay High Court in Criminal Writ Petition No. 701 of 1994. The appellant is the wife of the detenu, Jayendra Vishnu Thakur. The State of Maharashtra issued an order of detention under S. 3 (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'cofeposa Act') on 5-2-1992. The detenu was served with the order of detention on 13-8-1993 while he was in custody on being arrested on 23-7-1993 in some other criminal case. On 15-9-1993, a declaration was made under S. 9 (i) of the COFEPOSA Act thereby extending the period within which the procedural requirements under S. 8 of the said Act could be complied with. The case of the detenu was referred to the Advisory Board on 15-9-1993 and the Advisory Board gave its opinion stating that there exists sufficient cause for detention of the person concerned and on the basis of the said opinion, the State Government confirmed the order of detention under S. 8 (f) of the Act by order dated 17-11-1993. The appellant filed the writ petition in the Bombay High Court on 15-5-1994 assailing the legality of the order of detention as well as the continued detention of the detenu. The High Court, by the impugned judgment, dismissed the writ petition after negativing all the contentions raised and hence the present appeal.
(2.)At the outset it may be stated that though the period of detention is already over and, therefore, normally this Court would not have gone into the legality of the order of detention, but a proceeding under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as the 'safema') having been initiated, the appellant pressed his appeal and the Court permitted him to raise the contentions. It may not be out of p of place to mention here that the customs authorities received some information that a large scale smuggling of silver is being made in a vessel on 18-9-1991 from Dubai and on the basis of said information the vessel in question was searched and as many as 350 pieces of silver ingots each weighing 35 kgs were recovered from the ship and the persons in the vessel were arrested. Admittedly, the detenu was not present in the vessel. But the statements of persons arrested from the vessel under S. 108 of the Customs Act unequivocally indicate that the silver in question was meant for the detenu and was to be handed over to him. The detaining authority on the basis of such statements of the persons arrested from the vessel, on being satisfied that pre-conditions for issuance of an order of detention under sub-section (i) of S. 3 of the COFEPOSA Act are satisfied though it necessary to pass an order and accordingly issued the impugned order of detention dated 5-2-1992.
(3.)Mr. V. S. Kotwal, learned senior counsel appearing for the appellant raised the following contentions in assailing the order of detention :
1. While issuing the declaration under S. 9 (i) of the Act by order dated 15-9-1993, the detenu not having been informed of a right of representation to the authority issuing the declaration, there has been an infringement of his constitutional right under Art. 22 and, therefore, the impugned order of detention is vitiated and must be set aside.

2. That the order of detention was issued on 6-2-1992 but the same not having been executed till 13-8-1993, there has been an inordinate delay in the execution which renders the detention itself vitiated.

3. At the time of executing the order of detention, the detenu having been already arrested and in custody in another criminal case and there being no consideration/reconsideration regarding the necessity of serving an order of detention by the detaining authority, the detention of the detenu as well as the order of detention itself gets vitiated and should be quashed.