BHAJAN SINGH v. UNION OF INDIA — 1994 DIGILAW 714 (DEL)

DALVEER BHANDARI ( 1 ) THE petitioner by this Writ petition has challenged the detention order dated 10th December, 1993 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by the Lt. Governor of National Capital Territory of Delhi. ( 2 ) ON 7th July, 1993, the petitioner arrived at Indira Gandhi International Airport from Hong Kong and as a result of his personal search, 1681. 400 grams of gold valued at Rs. 7,56,630. 00 and 32 pieces of wrist watches valued at Rs. 87,600. 00 were recovered from his possession. ( 3 ) ON 8th July, 1993, in a voluntary statement under Section 108 of the Customs Act, 1962, the petitioner admitted the recovery and seizure of gold and wrist watches in the manner stated by the prosecution and the petitioner stated that he brought those goods for selling in greed of earning money because of coming marriage of his daughter, and for bringing those goods, he took loan from his relations. ( 4 ) ON 13. 7. 93, the petitioner addressed application to the Magistrate and retracted his statement u/s 108 of the Customs Act and stated that he has been falsely implicated in the case by the Customs Officers on 7. 7. 93, and the threat and coercion of officer had forced the petitioner to write that gold and watches were recovered from his possession. The petitioner was admitted to bail vide order dated 26. 7. 93. ( 5 ) THE complaint dated 19. 8. 93 for the offence punishable under Sections 132 and 135 (l) (a) of the Customs Act, 1962 was filed against the petitioner in the court of the A. C. M. M. New Delhi. The court took cognizance of the same on 19. 8. 93. ( 6 ) SCRUTINY of the petitioner s passport revealed that he had visited abroad on the following dates:. rm7" S. No. Date of Departure Date of arrival Place visited 1. 08. 06. 93 11. 06. 93 Dubai 2. 06. 07. 93 07. 07. 93 Hongkong ( 7 ) A show cause notice dated 21,10. 93 was issued to the petitioner in adjudication proceedings. He filed reply dated 29. 10. 93 to the said - show cause notice through his counsel. ( 8 ) ON the basis of the foregoing facts and circumstances, the Lt. 06. 93 Dubai 2. 06. 07. 93 07. 07. 93 Hongkong ( 7 ) A show cause notice dated 21,10. 93 was issued to the petitioner in adjudication proceedings. He filed reply dated 29. 10. 93 to the said - show cause notice through his counsel. ( 8 ) ON the basis of the foregoing facts and circumstances, the Lt. Governor of National Capital Territory of Delhi came to the conclusion that the petitioner had the inclination and propensity of indulging in smuggling activities in an organised and clandestine manner, and unless prevented, the petitioner is likely to indulge in smuggling activities in future. Although prosecution and adjudication proceedings under the Customs Act, 1962 have already been initiated against the petitioner, still the Lt, Governor of National Capital Territory of Delhi is satisfied that it is necessary to detain the petitioner under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, to prevent him from engaging in transporting, concealing and keeping smuggled goods in future. ( 9 ) MR. Ashutosh, learned counsel appearing for the petitioner submitted that in the instant case there has been undue, long and unexplained delay in deciding the petitioner s representation, and that there is no explanation. The petitioner submitted his representation on 13. 1. 1994 and that representation was admittedly received by the Central Government on 17. 1. 1994. The petitioner s representation was rejected by the detaining authority on 25. 1. 1994 but the representation submitted to the Central Government was rejected on 17. 2. 1994. Learned counsel for the petitioner invited my attention to para 5 of the counter-affidavit submitted by Mr. Jamna Dass, Under Secretary to the Government of India, Department of Revenue, Ministry of Finance, filed on behalf of Union of India. In para 5 of the affidavit, it is clearly mentioned that the petitioner s representation dated 14. 1. 94 was forwarded by the Superintendent, Central Jail, Tihar, New Delhi and was received on 17. 1. 94 by the COFEPOSA Unit of the Ministry on 17. 1. 1994. It is further mentioned that on receipt of the representation, the same was placed before the concerned authority who directed to call for the comments of the sponsoring authority. The comments were called on 17. 1. 1994 since a reply in response to the representation dated 14. 1. 94 by the COFEPOSA Unit of the Ministry on 17. 1. 1994. It is further mentioned that on receipt of the representation, the same was placed before the concerned authority who directed to call for the comments of the sponsoring authority. The comments were called on 17. 1. 1994 since a reply in response to the representation dated 14. 1. 1994 had already been furnished by the Delhi Administration to the detenu. The sponsoring authority further enquired as to whether the comments will be required at that stage also. Sponsoring authority was again requested to furnish parawise comments so as to enable the Ministry to consider the representation independently. The sponsoring authority finally sent comments on 15. 2. 94 which were received in COFEPOSA Unit on 17. 2. 94. The case was processed and submitted to the Joint Secretary, COFEPOSA, who considered and rejected the same on 17. 2. 1994, and a memorandum intimating to the detenu about the rejection by the Central Government was also issued on the same day. ( 10 ) THE question which arises for consideration, in the case is as to whether there is any explanation for the delay in consideration of the representation from 17. 1. 94 to 17. 2. 1994. The irresistible conclusion is that there is no explanation for the delay in consideration of the petitioner s representation by the Central Government from 17. 1. 1994 to 17. 2. 1994. ( 11 ) LEARNED counsel has drawn my attention to a number of Judgments of the Supreme Court in support of his proposition. ( 12 ) LEARNED counsel has invited my attention to the following judgments: I. In Hussain Erumban Vs. Union of India and others (Cr. Writ Petition no. 538/92) this Court quashed the detention order on the ground of unexplained delay of about 8 days in deciding the petitioner s representation. II. In Julia Jose Mavely vs. Union of India and others. , AIR 1992 S. C. 139, the Supreme Court quashed the detention because there was undue and unexplained delay of 28 days in forwarding the comments by sponsoring authority. III. In Ramesh Kumar vs. Union of India, 44 (1991) DLT (SN) 10, the Central Government took 22 days in disposing of the petitioner s representation. Why it took so much time is not explained. III. In Ramesh Kumar vs. Union of India, 44 (1991) DLT (SN) 10, the Central Government took 22 days in disposing of the petitioner s representation. Why it took so much time is not explained. No return has been filed by the Central Government in these circumstances,the continuous detention and the detention orders were set aside. IV. In Yogesh Kumar Sharma vs. Union of India and others, (Crl. W. 377/89), decided by this Court on 23rd October, 1989, this Court quashed the detention order in absence of any explanation by the authorities with regard to the delay caused in deciding the representation for the. period May 22, 1989 to May 29, 1989. V. In Gurjeet Singh Vs. Union of India and others, Cr. W. P. 35/94,decidedon 12th April, 1994, by this Court, the representation was decided by the Lt. Governor, National Capital Territory of Delhi promptly but there was delay in deciding the representation by Central Government. There has been no explanation for the delay in deciding the representation of the petitioner by the Central Government. The Court observed that the authorities concerned ensconced in their cozy chambers had gone in deep slumber, and the Court said that this is an unpardonable delay and quashed the order of detention. VI. In Rama Dhondu Borade vs. V. K. Saraf, Commissioner of Police and others, (1989) 3 S. C. C: 173, the detention order was set aside on account of inordinate and unreasonable delay of 28 days in disposal of representation given by the detenu. VII. In Gazi Khan alias Chotia vs. State of Rajasthan and another, ,1991 Supreme Court Cases (Cri)24, the Supreme Court set aside the detention order for delay of 27 days in disposal of representation before the detaining authority. VIII. Inaslamahmedzahireahmedshaikvs. Union of India and others, J. T. 1989 (2) S. C. 34; the Supreme - Court held the continued detention of the detenu illegal and impermissible on the ground of unreasonable and unexplained delay by the Jair Superintendent in transmitting the representation to the Government. IX. VIII. Inaslamahmedzahireahmedshaikvs. Union of India and others, J. T. 1989 (2) S. C. 34; the Supreme - Court held the continued detention of the detenu illegal and impermissible on the ground of unreasonable and unexplained delay by the Jair Superintendent in transmitting the representation to the Government. IX. In another case Mahesh Kumar Chauhan alias Bante vs. Union of India and others, AIR 1990, S. C. 1455 VII 1990 (2) Crimes, 472, the Supreme Court in a Special Leave Petition filed by the detenu, held that undue and unexplained delay in disposing of the detenu s representation is in violation of the -constitutional obligation enshnned in Article 22 (5) of the Constitution and held the detention order invalid. ( 13 ) I have heard learned counsel for the parties at length and scrutinised the various judgments of their Lordships of the Supreme Court and of this Court, The conclusion is irresistible. When there is undue, long and unexplained delay in consideration of the representation of the detenu by the Central Government, then detention order has to be quashed. The petitioner shall be set at liberty forthwith, if not required to be detained in any other case. ( 14 ) THE petition is accordingly disposed of.