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1987 DIGILAW 64 (PAT)

Ashok Kumar Choudhary v. State of Bihar

1987-03-09

N.P.SINGH, YADUNATH SHARAN SINGH

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JUDGMENT : N. P. Singh & Yadunath Sharan Singh, JJ.–This writ application has been filed on behalf of the petitioner for quashing an ORDER :of detention issued under section 3 (1) (ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the Cofeposa'). 2. From the statements made in the application and the documents annexed thereto it appears that on 25.7.1985 the truck bearing No. BIU 8485 belonging to the petitioner was seized at Raghopur Railway Crossing in the district of Saharsa by the Customs (Preventive) Party and on Inspection contraband Ganja was found on the truck. The driver of the truck was arrested and produced before the Sub-Divisional Judicial Magistrate, Virpur at Supaul, who remanded him to jail custody. According to the petitioner, he having learnt as out the seizure of the truck aforesaid filed an application for release of the truck which was released by ORDER :dated 1.1.1987 to the petitioner on furnishing security to the satisfaction of the Court. 3. After more than a year from the date of the seizure the petitioner was arrested on 24.8.1986 and the ORDER :of detention which had been issued on 29.4.1986 was served on him. The grounds of detention was served on the Petitioner on 25.8.1986. From the ORDER :of detention and grounds the petitioner learnt that he has been taken in custody under an ORDER :issued under sub-section (1) (ii) of section 3 of the Cofeposa because of the seizure of his truck on 25.7.1985 aforesaid in which contraband Ganja weighing about 82 quintals had been found. After arrest the petitioner filed his representation on 28.9.1986 which was forwarded by the jail authority on 29.9.1986. The representation was rejected by the State Government on 26.12.1986. 4. On behalf of the petitioner it was urged that in the facts and Circumstances of the present case, there has been unusual delay in issuance of the detention ORDER :as well as in considering the representation filed on behalf of the petitioner after he was taken in custody which shall vitiate the detention of the petitioner. In this connection it was pointed out that although the truck was seized on 25.7.1985 the Customs Department forwarded the proposal for detention of the petitioner to the State Government no 24.2.1986 i.e. after seven months of the seizure. In this connection it was pointed out that although the truck was seized on 25.7.1985 the Customs Department forwarded the proposal for detention of the petitioner to the State Government no 24.2.1986 i.e. after seven months of the seizure. The proposal was received on 27.2.1986 by the State Government but no concrete step was taken till 24.3.1986. On 24.3.1986, the Joint Secretary made proposal to the Special Secretary for issuance of an ORDER :of detention. On 30th March, 1986, the file was endorsed by the Special Secretary to the Chief Minister, who approved the same on 1.4.1986. Although the Chief Minister had approved the proposal on 1.4.1986, the ORDER :of detention was issued on 29.4.1986. According to the petitioner, there is no reasonable explanation for the delay between 1.4.1986 and 29.4.1986. It was pointed out that the same delay has been caused in the disposal of the representation of the petitioner which was filed on 28.9.1986 and rejected and 26.12.1986 i. e. after three months from the date it was filed on behalf of the petitioner. This delay has also not been explained by the respondent State, according to the petitioner. 5. Counter affidavits have been filed on behalf of the Customs Department as well as the State of Bihar. The dates mentioned above have not been disputed. On behalf of the Customs Department it has been pointed out that in normal course of event some time is taken by the department before a proposal for detention is forwarded to the State Government. It was urged by the counsel appearing for the department that after seizure of the truck the petitioner, who is the owner of the truck, had to be ascertained before the proposal could be forwarded to the State Government. Whatever may be said so far the Customs Department is concerned, we fail to understand as to why the proposal which had been forwarded by the Customs Department, moved with a snail's speed before the State Government. Although the proposal was received on 27.2.1986, no concrete step appears to have been taken till 24.3.1986 for about a month. Again after the Chief Minister approved the proposal of the detention of the petitioner on 1.4.1986, the ORDER :of detention was issued on 29.4.1986. Although the proposal was received on 27.2.1986, no concrete step appears to have been taken till 24.3.1986 for about a month. Again after the Chief Minister approved the proposal of the detention of the petitioner on 1.4.1986, the ORDER :of detention was issued on 29.4.1986. In the counter affidavit, the only explanation given is that it took some time to prepare the copies of the ORDER :of detention and other relevant documents which had to be forwarded for being served on the petitioner. It has also been stated that between the period 1.4.1986 and 29.4.1986 some Sundays and some other holidays intervened. 6. About the delay in disposal of the representation filed on behalf of the petitioner between 28.9.1986 and 26.12.1986 it has been stated, in the counter affidavit, that there presentation of the petitioner had been misplaced and because of that a delay of about three months occurred. The necessity of issuing a detention ORDER :and consideration of the representation filed by the detenu has been impressed by the Supreme Court consistently from time to time, pointing out that in matter of preventive detention the prompt action taken by the detaining authority and considering the representation of such a detenu are virtually two important steps, in absence where of the very ORDER :of detention is vitiated. Whenever an ORDER :of detention has been issued after an unreasonable delay or has been executed after an unreasonable delay it has been pointed out by the Courts that because of the conduct of the detaining authority itself it is apparent that they are in no hurry to prevent the detenu from pursuing the activity of smuggling or disturbing the public ORDER :. In the instant case, not only the ORDER :of detention was issued after an unreasonable delay for which there is no reasonable explanation. In this view, it was executed also in a leisurely manner. The ORDER :of detention was issued on 29.4.1986 but the petitioner was taken in custody on 24.8.1986 after four months. There is no statement, in the counter affidavit, that during this period the petitioner was not available or was avoiding service of the detention ORDER :. 7. The delay in disposal of the representation, as mentioned above, has further complicated the issue. There is no statement, in the counter affidavit, that during this period the petitioner was not available or was avoiding service of the detention ORDER :. 7. The delay in disposal of the representation, as mentioned above, has further complicated the issue. On behalf of the petitioner reference was made to the JUDGMENT :s of the Supreme Court in the cases of Rattan Singh v. State of Punjab (AIR 1982 Supreme Court 1), Icchu Devi v. Union of India AIR 1980 Supreme Court 1983) and Pabitra N. Rana v. Union of India AIR 1980 Supreme Court 798). On behalf of the State reliance was placed on the JUDGMENT : of the Supreme Court in the case of Hemlata v. State of Maharastara AIR 1982 Supreme Court 8). It is well-known that it is always open to the detaining authority to explain the delay in the consideration of the representation as well as in the issuance of the ORDER :of detention. If the detaining authority products materials, on the basis of which this Court is satisfied that the delay has been caused in spite of necessary steps taken by the authorities of the State there is no question of the ORDER :of detention being vitiated. But, in the instant case, the only explanation given for delay in the issuance of the detention ORDER :is that copies of the ORDER :of detention had to be prepared before it could be forwarded to the detaining authority, Similarly, in respect of the delay in consideration of the representation it has been stated that initially the representation filed on behalf of the petitioner was misplaced. Because of the aforesaid reason, in our view there should not have been a delay of one month and three months respectively. On the materials producedi before this Court, it is not possible to come to the conclusion that the delay has been explained. It appears that the petitioner has remained in jail pursuant to the ORDER :of detention for about seven months. In such a situation, we are left with no option but to hold that the ORDER :of detention has been vitiated. 8. It appears that the petitioner has remained in jail pursuant to the ORDER :of detention for about seven months. In such a situation, we are left with no option but to hold that the ORDER :of detention has been vitiated. 8. In view of the findings aforesaid, there is no necessity of entering into the question as to whether the State Government could have confirmed the ORDER :of detention on the basis of the advice given by only two members of the Advisory Board although under the provisions of section 8 of the Cofeposa the Advisory Board must consist of three members. 9. This writ application is, accordingly, allowed. The petitioner should be released from custody, if not required in connection with any other case. Application allowed.