Samad Habib Mithani v. Union of India — 1983 DIGILAW 10 (BOM)

JUDGMENT Parekh, J. - By this petition for the writ of habeas corpus the petitioner challenges an order of detention dated the 14th of September, 1982 passed by one B. G. Gujral, Additional Secretary to the Government of India especially empowered under section 3(1) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of the public order. 2. The petitioner's case is that on the 22nd of January 1982 his premises were searched and some documents and a sum of Rs. 95,000/- in Indian currency were taken charge of. That he then addressed a letter dated 9th August 1982 to the Deputy Director of Enforcement. That on the 14th of September 1982 the impugned order was passed. That the said order and the grounds in support thereof were served on the Petitioner on the 18th of September 1982. That on the 30th September 1982 the Petitioner filed the Petition challenging the said order. That thereafter he made representations (a) to the detaining authority, (b) to the Central Government, and (c) to the Advisory Board, by his three letters all dated the 2nd of October 1982 addressed to each of the said three authorities. That he received a reply dated the 5th of November 1982 from the detaining authority saying that his representation to the detaining authority was rejected. According to him, there was no reply received to his representations from the Central Government. That he then moved for leave to amend the petition by adding further grounds. That the leave was duly granted and the Petition come to be amended. 3. The Respondents have in their reply denied the correctness of the several statements and submissions made by the petitioner. 4. The petitioner has challenged the detention order mainly on three grounds: (a) That there was considerable delay by the detaining authority in disposing of his representation and this delay must now vitiate the order. 3. The Respondents have in their reply denied the correctness of the several statements and submissions made by the petitioner. 4. The petitioner has challenged the detention order mainly on three grounds: (a) That there was considerable delay by the detaining authority in disposing of his representation and this delay must now vitiate the order. (b) That the Central Government had not disposed of his representation despite considerable lapse of time and this must vitiate the order, and (c) in any event even if it is assumed that the Central Government had disposed of his representation, then and in that event there had been considerable delay on the part of the Central Government in "disposing of his representation and this delay also must now prove fatal. 5. At the hearing of this petition Mr. Karmali, the learned Advocate for the petitioner urged that there is no dispute that the petitioner had by a letter dated the 2nd of October 1982 made a representation to the detaining authority. That according to the petitioner, this letter was received by the detaining authority on the 4th of October 1982. However, in the affidavit in reply filed by the Respondents, they had contended that this letter was received by the detaining authority on the 7th of October 1982. That we could proceed on the footing that this letter was received by the detaining authority on the 7th of October 1982. That even so, according to the detaining authority, the petitioner's representation was rejected by them on the 23rd of October 1982. In other words, 16 days had gone-by before the detaining authority acted on the representation of the petitioner. That not only this, but this order of rejection dated 23rd October 1982 was communicated to the petitioner on the 5th of November 1982. In other words, there was a further delay of 13 days between the passing of the order by the detaining authority and the communication thereof to the petitioner. That not only this, but this order of rejection dated 23rd October 1982 was communicated to the petitioner on the 5th of November 1982. In other words, there was a further delay of 13 days between the passing of the order by the detaining authority and the communication thereof to the petitioner. That hence in all there was and has been a delay of 29 days and this delay must now be held to be fatal more particularly in view of the ratios laid down in the case of Kamla Kanhaiyalal Khushalani v. State of Maharashtra1 and the ratio laid down in the case of K. I. Singh v. State of Manipur2, as also in the case of Amulya Chandra Dey v. State of West Bengal3. 6. 1n reply to this argument Mr. Govilkar, the learned Counsel for the Respondents, urged that in the affidavit in reply filed by the Respondents it had been stated that this delay was because of "procedural matters". That the Respondents had not in their affidavit in reply expanded on this position and admittedly had given no particulars as to how this delay had occurred although they ought to have done so. But nonetheless he was relying on documents contained in a file of the Finance Department. That these documents show that on 7th October 1982 the Technical Officer of the Finance Department addressed a letter to the Director of Enforcement calling for certain information in connection with the representation made by the petitioner. That as there was no reply, a reminder was sent on 14th October 1982. That thereafter the Technical Officer was constrained to send a further reminder on the 17th of October 1982. That for the third time the Technical Officer sent another reminder on the 19th of October 1982 inter alia stating that a reply should be sent to him so that "action can be taken for disposing of these (i.e., the petitioner's) representations without any further delay". That in pursuance of this letter, comments were received by the detaining authority on the 23rd of October 1982, and on that very day an order rejecting the representation of the petitioner was passed by the detaining authority. That this order was communicated to the petitioner on the 5th of November 1982. That he Mr. That in pursuance of this letter, comments were received by the detaining authority on the 23rd of October 1982, and on that very day an order rejecting the representation of the petitioner was passed by the detaining authority. That this order was communicated to the petitioner on the 5th of November 1982. That he Mr. Govilkar could not, however, state as to why the said order dated the 23rd of October 1982 could not be communicated to the petitioner till the 5th of November 1982. Mr. Govilkar contended that in the circumstances the petitioner's grievance as to delay could not survive. 7. Considering the rival contentions on this point, it may be stated that in the first instance it is not understandable as to why if the Respondents were relying on these facts, they did not set them out in their affidavit, although this matter was time and again adjourned to enable the Respondents to make and file a proper affidavit. But be that as it may, in view of the documents referred to by Mr. Govilkar at the hearing of the matter we called upon Mr. Govilkar to produce the correspondence referred to by him, and Mr. Govilkar fairly conceded that although he had referred to two letters one dated the 4th of October 1982 and the second dated the 17th October 1982, he was not in a position to produce the said two letters as they were not in the file. That he had only referred to these letters in view of the Contents of the letter dated the 18th of October 1982, and in any event he could not state as to what were the contents of the two letters that were missing. Having said so much, Mr. Govilkar went on to say that a closer scrutiny of the letter dated the 18th of October 1982 revealed that the figure "I" in the date 17th October 1982 seemed to be con celled. In other words, it appeared that there was no letter of 17th October 1982. That he, however, could not make any categorical statement as to the correct position in view of the fact that the Officer of the department was not present. All this has clearly detracted from the Respondent's case. In other words, it appeared that there was no letter of 17th October 1982. That he, however, could not make any categorical statement as to the correct position in view of the fact that the Officer of the department was not present. All this has clearly detracted from the Respondent's case. We do not wish to comment upon the manner in which the Respondents' case is being conducted, but we are constrained to add that the approach is totally in different and the manner is extremely unhappy. All these lapses emphasise only one aspect, viz., that the Respondents have been unable to afford any cogent explanation for the delay which is inordinate. This must now vitiate the order. 8. Mr. Karmali next urged that the petitioner had made a representation to the Central Government on the 2nd of October 1982, which, according to the Respondents, was received by the Central Government on the 7th of October 1982. That it is in the Respondents affidavit that this representation was placed before the Ministry concerned on the 29th of October 1982 and that the representation was rejected by the Central Government on 3rd of October (sic. Nov.) 1982. That according to the Respondents, intimation thereof was sent to the petitioner on the 5th of November 1982. That the petitioner did not admit that he had received any intimation from the Central Government but he would proceed on the footing that an intimation was given to the petitioner. That even so, the Respondents had not explained the delay between the 7th of October 1982 and the 5th of November 1982. That this delay must now prove fatal. 9. In reply, Mr. Govilkar only reiterated that the file was placed before the Minister on the 29th of October 1982 and that the Minister concerned looked into the matter only on the 3rd of November 1982 and had rejected the petitioner's representation on that day. That this rejection was communicated to the petitioner on the 5th of November 1982. Mr. Govilkar urged that it cannot however be said that there was any inordinate delay in dealing with this matter. 10. Considering the rival contentions on this point, here again it is apparent that there has been inordinate delay on the part of the Central Government in considering the petitioner's representation and in communicating its decision. Mr. Govilkar urged that it cannot however be said that there was any inordinate delay in dealing with this matter. 10. Considering the rival contentions on this point, here again it is apparent that there has been inordinate delay on the part of the Central Government in considering the petitioner's representation and in communicating its decision. No attempt has been made to offer any explanation for the delay. In the circumstances, the delay must be considered to be inordinate and must vitiate the order. 11. In view of this discussion, it is not necessary to deal with the other grounds canvassed in the petition. 12. In the result, the order dated 14th September 1982 is quashed and set aside. The rule is made absolute. The petitioner is directed to be set at liberty if not otherwise required. Petition allowed 1. A.I.R. 1981 S.C. 814. 2. A.I.R. 1972 S.C. 438. 3. A.I.R. 1973 S.C. 1179.