AMAD HASAN SANGHAR v. STATE — 1986 DIGILAW 144 (GUJ)

S. B. MAJMUDAR, J. ( 1 ) IN this petition under Art. 226 of the Constitution the petitioner who has been preventively detained pursuant to the order passed by the Deputy Secretary Home Department Government of Gujarat under sec. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (COFEPOSA for short) has challenged the said order and has prayed for suitable writ order or direction against the respondents for setting him at liberty. The impugned order at Annexure A dated 16-10-1985 recites that the Government of Gujarat is satisfied with respect to the petitioner that with a view to preventing the detenu from abetting of smuggling of goods it is necessary to preventively detain the petitioner. The grounds of detention of even date have alleged how the petitioner alongwith others has indulged in the alleged act of smuggling and in abetting the same. The smuggled goods comprised of 18 tins consisting of 18000 wrist watches valued at Rs. 54 0 0 They were alleged to have been smuggled into Indian territorial waters of Gujarat through vessel Rehmani. The Department alleges that in the said vessel these contraband goods were smuggled in Indian waters round about 22 hrs. on 21 near western coast. Respondent No. 2 has also issued a declaration under sec. 9 (1) of the COFEPOSA on 3-4-1986 declaring that the authority is satisfied that the petitioner is likely to abet the smuggling of goods into the coast of Gujarat which is an area highly vulnerable to smuggling as defined in Explanation 1 to sec. 9 (1) of the COFEPOSA. The said declaration is also brought in challenge in the present petition. . . . . . . . . . . . . . . . . . . . . . ( 2 ) VARIOUS Contentions have been raised in the petition for challenging the impugned order. Mr. M. T. Parmar Under Secretary Home Department (Special) Sachivalaya Gandhinagar has filed his affidavit-in-reply dated 28-7-1986. Mr. M. L. Wadhwan Additional Secretary to the Government of India has also filed affidavit-in-reply dated 24-7-1986 on behalf of respondent No. 2-Union Government. It was filed in the present proceedings on 30-7-1985. ( 3 ) THAKKAR learned Advocate appearing for the petitioner raised the following contentions in support of the petition:1 That the impugned declaration under sec. Mr. M. L. Wadhwan Additional Secretary to the Government of India has also filed affidavit-in-reply dated 24-7-1986 on behalf of respondent No. 2-Union Government. It was filed in the present proceedings on 30-7-1985. ( 3 ) THAKKAR learned Advocate appearing for the petitioner raised the following contentions in support of the petition:1 That the impugned declaration under sec. 9 (1) at annexure D cannot be pressed in service against the petitioner as the petitioner was given no reasonable opportunity to represent against the said declaration inasmuch as the petitioner who is an illiterate person wasnot explained in his mother tongue i. e. Gujarati the contents of the said declaration at the time when it was served on him in the Central Prison at Sabarmati. 2 That in the incident in question 19 persons were involved including the petitioner and all were detained. That out of these 19 persons all save and except the petitioner have been released from the detention by the order of this court. That out of 18 other persons involved in this incident 9 persons have been released on the ground that there was no material against them for passing the impugned order of detention while other 9 persons have been released by this court on the ground that declaration under sec. 9 (1) qua them was bad and consequently the original order of detention would fail as the opinion of the Advisory Board was not sought for within five weeks of the dates of the orders of detention passed against these detenus. It was therefore faintly submitted that the petitioner who is the last remaining person involved in the incident also deserves to be set at liberty. 3 The petitioners representation against the order of detention as addressed to the State Government as well as the Central Government were not decided within reasonable time and there was gross and undue delay in deciding these representations. Consequently the continued detention of the petitioner under the order of detention has become illegal. . . . . . . . . . . . . . . . ( 4 ) SO far as the first contention is concerned declaration under sec. 9 (1) was in English. However it was supported by Gujarati version. Both of them were served on the petitioner at the Central Prison Sabarmati where he was detained pursuant to the detention order. . . . . . . . . . . . . ( 4 ) SO far as the first contention is concerned declaration under sec. 9 (1) was in English. However it was supported by Gujarati version. Both of them were served on the petitioner at the Central Prison Sabarmati where he was detained pursuant to the detention order. In para 9 of the petition it has been alleged that the declaration issued by respondent No. 2 under sec. 9 of the COFEPOSA was not explained to the petitioner. Contents of the declaration were also not explained to the petitioner. That while serving the declaration the jail authorities had only obtained the thumb impression of the petitioner but the jail authorities had not explained the contents of the declaration and hence the petitioner is deprived of the opportunity of making the representation to the Central Government under Art. 22 (5) of the Constitution. This contention is tried to be met on behalf of the Central Government by the Additional Secretary to the Central Government who has filed his affidavit-in-reply dated 24-7-1986 as noted earlier. In para 4 of the said affidavit-in-reply it has been stated that the deponent made the declaration under sec. 9 (1) of the Act. The petitioner was served with a copy of the declaration alongwith its Gujarati translation through the jail authorities and its contents were explained to the detenu and his acknowledgment was obtained in token of his having been so explained. It is therefore submitted that the petitioner was not denied the right to make a representation under Art. 22 (5) of the Constitution. It was denied that the declaration was not explained to the detenu as alleged. It was vehemently submitted on behalf of the petitioner by his advocate Mr. Thakkar that the aforesaid affidavit does not meet the point. That it is totally vague and does not show as to who explained the contents of the declaration to the petitioner and under what circumstances his thumb impression was obtained in token of his having been served with the declaration with its Gujarati version. As this lacuna was pointed out by the learned Advocate for the petitioner the learned Advocate for the respondents sought some time to file proper affidavit of the person who had served the Gujarati version of the contents of the declaration to the petitioner at the jail. As this lacuna was pointed out by the learned Advocate for the petitioner the learned Advocate for the respondents sought some time to file proper affidavit of the person who had served the Gujarati version of the contents of the declaration to the petitioner at the jail. Despite vehement opposition of the learned Advocate for the petitioner we adjourned the final hearing of this matter in the mid-stream to enable the learned Advocate for the respondents to file further affidavit to explain the position with a view to seeing that proper facts are brought on record and that the detenu who is otherwise involved in such large scale smuggling may not get released without proper facts being placed before us by the respondents and may not get the advantage of mere technical submission which may not be backed up by true facts. Thus going a little out of way we granted time to the respondents to file further affidavit even in the midst of the final hearing of this matter though earlier they had full opportunity to file further affidavit if they wanted to do so. We therefore adjourned this matter for a week. Accordingly this petition which was heard on 13-8-1986 was adjourned to 18-8-1986 and then further adjourned to 20-8-1986. On 20-8-1986 further affidavit on behalf of respondent No. 2 has been filed by one Mr. M. K. Gajjar Inspector Customs Ahmedabad. The deponent he stated that the declaration under sec. 9 (1) was passed by Mr. M. L. Wadhwan Additional Secretary to the Government of India under sec. 9 (1) and it was served upon the detenu by the deponent Mr. Gajjar. The detenu was also served upon Gujarati version of the aforesaid declaration. The petitioner was also explained contents of the declaration in the language known to him viz. Gujarati The petitioner put his thumb impression below the endorsement to the effect that he had received Gujarati version of the declaration and the same was readover to him and explained in Gujarati. Shri Gohil Jailor of the Ahmedabad Central Prison had also at-tested the same. Even this affidavit is conspicuously silent about the date on which the declaration and its Gujarati version were served on the petitioner in Sabarmati Prison Ahmedabad and therefore we called upon the respondents to produce the original file regarding the same. Shri Gohil Jailor of the Ahmedabad Central Prison had also at-tested the same. Even this affidavit is conspicuously silent about the date on which the declaration and its Gujarati version were served on the petitioner in Sabarmati Prison Ahmedabad and therefore we called upon the respondents to produce the original file regarding the same. Having seen the same we find that on 13-4-1986 the declaration as well as its Gujarati version were served on the detenu and his thumb impression was obtained. It was attested by the jailor. In view of this further affidavit filed by Mr. Gajjar it appears clear that the detenu was served with the declaration and its Gujarati version and was explained its contents by the deponent Mr. Gajjar on 13-4-1986 in Sabarmati Prison. It is indeed a sorry state of affairs that these facts have been placed before us in compartments though there was no reason why the respondents should not have placed these facts earlier when they filed their detailed affidavit-in-reply in response to the Rule issued in this petition. It is not as if that correct facts must be placed by instalments by the respondents to support their action and that too when their pointed attention is invited to the lacuna in the midst of the final hearing proceedings in this Court and that only thereafter the respondents would be required to put true facts before this Court. Such procedure to say the least is highly unsatisfactory and leaves much to be desired. It is only because we were indulgent enough despite justified opposition by the learned Advocate for the petitioner in adjourning this petition in the mid-stream of the final hearing not once but twice that correct facts ultimately came on record in connection with the question whether the declaration under sec. 9 (1) was properly served on the detenu and its contents were explained to him in the language known to him. Be that as it may on the principle that better late than never the respondents have ultimately enlightened us about the correct facts centering round this question and the record though belatedly on this aspect has been made complete. In the light of the aforesaid facts which now emerge on the record it is obvious that the first grievance of the petitioner is not well sustained. Affidavit of Mr. In the light of the aforesaid facts which now emerge on the record it is obvious that the first grievance of the petitioner is not well sustained. Affidavit of Mr. Gajjar Inspector of Customs Ahmedabad clearly shows that all necessary formalities were complied with in connection with the effective service of sec. 9 (1) declaration on the detenu. As he was explained the contents of the declaration in his mother tongue it was for him to file proper representation against the same if he was so inclined to file. On the facts of this case it appears clear that the detenu has not filed any such representation against the declaration under sec. 9 (1) to the Central Government. In the facts and circumstances of the case as seen earlier it cannot be said that the detenu was not offered reasonable opportunity to file his representation against sec. 9 (1) declaration. The first contention of Mr. Thakkar therefore fails. . . . . . . . . . . . . . . . ( 5 ) IT is now time for us to refer to the third contention which goes to the rest of the matter. In ground No. 8 of para 10 of the petition it has been alleged that the petitioner had made a representation to the Central Government on 12-4-1986 through the jail authorities but till the date of the petition he has not received any reply from respondent No. 2 as to how respondent No. 2 had dealt with the representation of the petitioner. That on that ground the order of detention was vitiated and was required to be quashed. Below that ground is found ground No. 9 which recites that the petitioner had made a representation to the State Government on 20-5-1986 through the jail authorities but till the date of filing of the petition he had not received any reply from the State Government as to how the State Government had dealt with the said representation. That on account of non-consideration of the representation of the petitioner in time the order of detention has got vitiated and requires to be quashed. Thus non-consideration of the representations by the State Government and the Central Government has been pressed in service for getting out of continued detention pursuant to the impugned detention order. That on account of non-consideration of the representation of the petitioner in time the order of detention has got vitiated and requires to be quashed. Thus non-consideration of the representations by the State Government and the Central Government has been pressed in service for getting out of continued detention pursuant to the impugned detention order. ( 6 ) WE shall first deal with consideration of the petitioners representation against the detention order by the State Government. Mr. M. T. Parmar Under Secretary to the Government of Gujarat Home Department who has filed his affidavit-in-reply on behalf of the State Government on 28-7-1986 has stated in para 16 thereof that the detenus representation dated 20-5-1986 was received in the Home Department on 21 at 15-45 hrs. The said representation was sent to the Collector of Customs for remarks vide his letter dated 25-5-1986. The office of the Collector had sent parawise remarks vide its letter dated 25-5-1986. 25 and 26-5-1986 were holidays. The said letter was received in the Home Department on 29-5-1986 at 16-50. hrs The branch in the Home Department submitted the representation to the Deputy Secretary (Shri Randhava) on 30-5-1986. He cleared the file on the same day and submitted it to the Additional Chief Secretary on that day. The Additional Chief Secretary cleared the file on 31-5-1986 and submitted it to the Chief Minister on the same day. 1-6-1986 was a holiday. The Chief Minister cleared the file on 6-6-1986. The detenu was communicated reply regarding rejection of his representation on 7-6-1986. The detenu received the reply on 8-6-1986 through the jail authorities. It is therefore contended that there was no undue delay for considering the petitioners representation as far as the State Government was concerned. Now a mere look at the aforesaid averments found in para 16 of the affidavit-in-reply shows that upto the stage of the Additional Chief Secretary who cleared the file on 31-5-1986 there was due diligence step by step in attending to the petitioners representation. The petitioners representation had reached the Home Department on 21-5-1986 at 15-45 hrs. in the afternoon. Sufficient explanation has been given as to how the representation was dealt with from that time onwards in the Home Department till the entire file left the table of the Additional Chief Secretary on 31-5-1986 and get submitted to the Chief Minister on that very day. in the afternoon. Sufficient explanation has been given as to how the representation was dealt with from that time onwards in the Home Department till the entire file left the table of the Additional Chief Secretary on 31-5-1986 and get submitted to the Chief Minister on that very day. However from that date onwards till 6-6-1986 when the representation was rejected by the Chief Minister the affidavit-in-reply does now throw any light as to how and why the delay at the hand of the Chief Minister was occasioned. It should strike any one who has occasion not only to draft such affidavit but even to read the same at the stage of affirming the same that there is no explanation whatsoever for the period from 31-5-1986 when the representation reached the Chief Minister to 6-6-1986 when the Chief Minister cleared the file. It is easy to visualise and it is high time to appreciate that before the court can pronounce upon the issue whether the explanation for delay is reasonable or not proper material should be placed before the court by the concerned authority putting forward its explanation for the delay. Unless this material is placed it is impossible for the court to pronounce one way or the other as to whether the explanation is justified or not on the facts and circumstances of the case. If no attempt to explain at all is made there would remain no occasion for the court to consider whether there is any reasonable explanation for the delay. On the averments made in the aforesaid affidavit-in-reply there remains total black-out of the facts and circumstances centering round non-consideration of the petitioners representation by the Chief Minister who received the same on 31-5-1986 from the Additional Chief Secretary till he cleared the representation on 6-6-1986. It is not as if that the Chief Minister himself was required to file his affidavit-in-reply as no personal mala fides are alleged by the detenu against the action or inaction of the Chief Minister. But atleast what happened at his end during the relevant time should have been made clear by the authority who thought it fit to file his affidavit to explain the delay. He should have submitted these details having collected necessary information from the Secretariat of the Chief Minister. No such attempt was however made. But atleast what happened at his end during the relevant time should have been made clear by the authority who thought it fit to file his affidavit to explain the delay. He should have submitted these details having collected necessary information from the Secretariat of the Chief Minister. No such attempt was however made. This lacuna became clear during the course of final hearing of this petition on 20-8-1986 which was to recapitulate was the day on which the petition had stood adjourned in the midst of final hearing on the third occasion. In fact as the record stood then the petition would have been allowed on that very day. However the learned Advocate for the respondents made a fervent appeal to us that because of this lacuna the detenu who is knee-deep involved in such large scale international smuggling activities would escape and the respondents though belatedly should be permitted to put their house in order and should be given further opportunity to file additional affidavit on this aspect. We reluctantly granted further adjournment of the matter in the mid-stream and even on the third occasion and adjourned it till today. The learned Advocate for the petitioner was justifiably disturbed and enraged at the latitude shown by us to the respondents from time to time. However we were keen in seeing that if correct facts are not placed before us earlier and if ultimately they are brought on record the detenu who is involved knee-deep in large scale international smuggling activities may not escape on mere technicality. Therefore inspite of his great opposition we adjourned the matter till today and gave extreme latitude to the respondents to file further affidavit on this aspect though they had full opportunity to file a detailed affidavit-in-reply on this aspect earlier but then they did not think it fit to do so for the reasons best known to them. Today when the matter was taken up for further final hearing we were presented with supplementary affidavit-in-reply filed by Mr. M. T. Parmar Under Secretary Home Department Government of Gujarat. That affidavit is dated 22 A copy of the same has been furnished to the learned Advocate for the petitioner. He naturally has nothing more to say about this affidavit and he does not want any further time to file further affidavit-in-rejoinder. M. T. Parmar Under Secretary Home Department Government of Gujarat. That affidavit is dated 22 A copy of the same has been furnished to the learned Advocate for the petitioner. He naturally has nothing more to say about this affidavit and he does not want any further time to file further affidavit-in-rejoinder. His submission was that even taking this affidavit into consideration the situation for the State Government is not improve at all. Keeping this contention of the learned Advocate for the petitioner in view we now turn to what is slated in the supplementary affidavit- in-reply with a view to finding out as to whether the situation has at all improved for the State of Gujarat. To recapitulate it was felt on the last occasion on 20-8-1986 when this matter was heard that there was no explanation about the delay in considering the petitioners representation at the end of the Chief Minister between 31-5-1986 and 6-6-1986. So far as supplementary affidavit-in-reply dated 22-8-1986 goes it points out in para 3 thereof that the Additional Chief Secretary cleared the file and submitted it to the Chief Minister on 31-5-1986. On 31-5-1986 and 1-6-1986 the Chief Minister was out of District for Government work. That on 2-6-1986 and 3-5-1986 the Chief Minister was heavily preoccupied with office work. On 4-6-1986 he left for New Delhi at 7. 55 a. m. On 5-6-1986 he was at Bombay. On 6-6-1986 this matter being important it was immediately attended to before any inordinate delay takes place and accordingly the Chief Minister cleared the same on 6 and the detenu was communicated the reply regarding rejection of the representation on 6-6-1986. To say the least aforesaid supplementary affidavit-in-reply instead of improving the case for the respondents worsens it. When the representation and the relevant file pertaining to the same reached the table of the Chief Minister on 31-5-1986 it goes without saying that it would have been marked as very important as this affidavit itself shows that on 6-6-1986 this matter being important was immediately attended to. It is not as if that it assumed importance overnight only on 6-6-1986. It must have been treated as urgent on the day on which it was received by the Secretariat of the Chief Minister. It is not as if that it assumed importance overnight only on 6-6-1986. It must have been treated as urgent on the day on which it was received by the Secretariat of the Chief Minister. If that is so even leaving aside 31-5-1986 and 1-6-1986 when the Chief Minister was out of district for Government work and even assuming that that Government work outside the head-quarters was of more pressing nature as compared to the work of attending to the representation of the detenu and even granting that it is difficult to appreciate how the Chief Minister who was said to be heavily preoccupied with Government work on 2-6-1986 and 3-6-1986 meaning thereby at the head-quarters themselves did not think it fit to attend to the file pertaining to the detenus representation which as stated in the supplementary affidavit-in-reply was of important nature. To say the least it was also part and parcel of the office work and Government work of the Chief Minister. Consequently it appears that the detenus representation lay unattended in the Secretariat of the Chief Minister on 2-6-1986 and 3 though the Chief Minister was available for attending to urgent office work at the headquarters on those days. Consequently it must he held that there was undue delay in considering the petitioners representation at the end of the Chief Minister on those days and consequently the representation must be held to be not promptly dealt with from end to end and there was unjustified delay in dealing with the said representation from 2-6-1986 onwards till it got decided on 6 as an important matter. This four-days delay in our view has not been properly explained and that delay on the facts of this case must be held to be unreasonable. Once that conclusion is reached the result would be obvious. The continued detention of the petitioner whose representation has not been promptly dealt with by the State Government cannot be sustained as it would amount to infraction of Art. 22 (5) of the Constitution. ( 7 ) THAT leaves out the second plank of the petitioners contention about non-consideration of his representation promptly by the Central Government. So far as the representation of the detenu to the Central Government is concerned the delay in considering the representation by the Central Government is even more worse Mr. ( 7 ) THAT leaves out the second plank of the petitioners contention about non-consideration of his representation promptly by the Central Government. So far as the representation of the detenu to the Central Government is concerned the delay in considering the representation by the Central Government is even more worse Mr. M. L. Wadhwan Additional Secretary to the Government of India has filed his affidavit- in-reply as noted earlier on 24-7-1986. In para 6 of the affidavit-in- reply it is stated in this connection that the petitioners representation was received by the Central Government on 18-4-1986. The representation was in Gujarati and therefore English translation and parawise comments were called for from Ahmedabad. The parawise comments and the English translation were received on 22-5-1986. The representation was put up for consideration on 3-6-1986 and the deponent rejected the representation on 6-6-1986 and the memorandum rejecting the representation was sent on 6-6-1986. It was therefore submitted that there was no inordinary delay in considering the representation. The aforesaid explanation by the authority considering the representation on behalf of the Central Government itself indicates that parawise comments and English translation of the representation were received at his end by 22-5-1986 and thereafter the representation was put up for his consideration on 3-6-1986. It would strike any one who reads this affidavit much more so to any one who signs such affidavit that there is no explanation given for the delay in processing the representation between 22-5-1986 and 3-6-1986. There is not even a whisper as to what happened during these 12 days when the representation was lying and awaiting consideration in the office of the deponent. Thus no explanation muchless any reasonable explanation was offered for consideration of this Court by the Central Government in this connection. When this vital flaw was pointed out to the learned Counsel for respondent No. 2 Mr. Ajmera on the last occasion when this matter reached hearing on 20-8-1986 Mr. Ajmera for the Central Government vehemently submitted that we should give one more opportunity to the Central Government to put correct facts before the Court and that as the matter was being adjourned for enabling the State Government to file supplementary affidavit in connection with the question of delay in consideration of the representation at that end in fairness even the Central Government might be given that latitude. Though strictly speaking such latitudes were not called for as both the respondents had enough opportunity to put all the relevant facts on the record of this case when they filed their earlier affidavits-in-reply last month as we were inclined to adjourn this matter till today we gave a fresh opportunity to the learned Advocate for respondent No. 2 to file additional affidavit on behalf of the Central Government and to point out the correct facts in connection with consideration of the petitioners representation at the end of the Central Government and to point out as to what happened between 22-5-1986 and 3-6-1986 and whether the representation was at all dealt with during that time and how it was dealt with so that on the basis of that date if at all we can consider and find out as to whether the delay during that period was reasonably explained or not. When this matter reached hearing today the learned Advocate for the Central Government earlier was not present to highlight us but ultimately Mr. Ajmera for respondent No. 2 came to the Court and informed us in the midst of the dictation of this judgment that even though he had called for the relevant information from the Central Government by a telex message the information supplied to him was not apposite and does not pertain to the present question in controversy. Therefore he is not in a position to supply any relevant further information in this connection to us nor has he been in a position to file further affidavit-in-reply in this connection though we had given him time for the same strictly going out of way. In view of this fact situation therefore it must be held that the Central Government has not been able to point out as to how the representation was dealt with between 22-5-1986 and 3-6-1986 when it was put up for consideration of the deponent who rejected the same on 4-6-1986. Mr. Ajmera was right when he submitted that as far as the competent authority was concerned the representation was put up before him on 3 and he promptly considered and rejected it on the next day. Thus there was no delay on his part. However that does not improve the situation in his office. Mr. Ajmera was right when he submitted that as far as the competent authority was concerned the representation was put up before him on 3 and he promptly considered and rejected it on the next day. Thus there was no delay on his part. However that does not improve the situation in his office. The representation was lying ready to be considered from 22-5-1986 onwards as parawise comments and English translation were received by that time from Ahmedabad. Nothing is indicated in the affidavit-in-reply filed by the competent authority as to how and why the said representation though ready for consideration in his office was not placed before him on 23-5-1986 though it was ready on 22-5-1986 and why it was placed before him as late as on 3 Thus delay of 12 days in processing the representation at the end of the competent authority remains totally unexplained and this 12 days unexplained delay introduces a fatal flaw in the detention proceedings and makes the continued detention of the petitioner illegal as it would amount to infraction of Art. 22 (5) of the Constitution. This is the additional ground on which the petition has to be allowed. (The rest of the Judgment is not material for the reports.) rule made absolute. .