MUMBAI, July 31: The Bombay High Court has acquitted COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities) detenu Nilofar Altaf Masalewala, as he was neither given a hearing by customs officials nor informed of the right to present his case.

Justice S S Parkar set aside the October 1992 detention order, thereby releasing the detenu. Masalewala's wife had moved the High Court stating that ``he was not communicated, neither at the time of the service of the grounds of detention or at any time thereafter, that a detenu has the right to make a representation to the detaining authority. Failure to so communicate... has rendered the detention null and void.''

Masalewala and his associates were arrested in a hotel in the vicinity of Mumbai Central, and two of his cars were intercepted. Twelve jackets were seized from the vehicles. These jackets concealed 100 FM gold bars of ten tolas each. He was produced before the magistrate in Esplanade Court, granted bail for a short period and thereafter issued the order of detention in 1996.

According to the petitioner's counsel Maqsood Khan, the 1995 Supreme Court order (Kamleshkumar Ishwardas Patel vs Union of India) states that detention order is to be set aside if the detenu is not told about the right to present his side to the detaining authority, state government, Central government and advisory board of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.

Interestingly, it has been found that Masalewala had sent his representation to the advisory board in 1997. The copy of the representation was forwarded to the Central government and another copy sent to the detaining authority, which rejected the plea.

Justice Parkar has ruled that the detenu should have been given the earliest opportunity to make his representation. The state home department justified its action by stating that the Supreme Court order on the right of representation was issued only in 1994, and therefore, the detenu of a 1991 Conservation of Foreign Exchange and Prevention of Smuggling Activities case cannot avail of the right. The judge ruled out the argument, stating that Article 22 (5) of the Constitution of India, which existed since 1950, grants the right to the detenu.

Copyright © 1997 Indian Express Newspapers (Bombay) Ltd.