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2002 DIGILAW 1890 (ALL)

VISHAMBHAR DAYAL GUPTA v. STATE O

2002-12-11

R.C.PANDEY, VISHNU SAHAI

body2002
VISHNU SAHAI, J. Through this writ petition preferred under Article 226 of the Constitution of India the petitioner detenu Vishambhar Dayal Gupta has impugned the order dated 10. 4. 2002 passed by the second respondent Sri. C. P. Singh Deputy Secretary Home Government of U. P. , Lucknow detaining him under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act No. 52 of 1974 hereinafter called Cofeposa Act ). 2. The detention order along with the grounds of detention, which are also dated 1. 4. 2002, was served on the petitioner-detenu on 24. 4. 2002 and their true copies have been annexed as Annexures No. 1 and 5 respectively to the petition. 3. The prejudicial activities of the petitioner- detenu impelling the second respondent to issue the impugned order against him are contained in the grounds of detention (Annexure No. 5 ). Since in our view a reference to them is not necessary for the adjudication of the pleadings contained in para 27 of the petition, on which alone this writ petition deserves to succeed, we are not adverting to them. 4. In para 27 of the petition it has been pleaded that on 18. 5. 2002 the petitioner made a representation before the Central Government and the State Government and the said representation has not been disposed off by them expeditiously. It has further been averred that till date the State Government has not disposed of the petitioners representation. 5. Mr. R. P. Misra learned Counsel for the petitioner-detenu strenuously contended before us that it is manifest from the return of Mr. V. K. Khanna, Under-Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi that there was an inordinate delay on the part of the Union of India (opposite party No. 3) in disposing of the said representation. 6. Since learned Counsel for the petitioner has restricted his submission to the delay in disposal of the representation preferred to the Union of India we are only setting out the reply furnished by the Union of India. The said reply is furnished in para 3 of the return of Mr. V. K. Khanna Undersecretary Government of India Ministry of Finance Department of Revenue, New Delhi. The said reply is furnished in para 3 of the return of Mr. V. K. Khanna Undersecretary Government of India Ministry of Finance Department of Revenue, New Delhi. The said para reads thus: that I have read the contents of the affidavit of the petitioner herein and in reply thereto respectively submit as under: "with regard to the averments made in paras 7, 8 and 27 of the Habeas Corpus Writ Petition insofar as these relate to opposite parlies No. 3 and 4, it is respectively submitted that a representation dated 18. 5. 2002 of Vishambhar Dayal Gupta, Cofeposa detenu/petitioner herein, addressed to the Secretary, Government of India, Ministry of Finance, Department of Revenue was received in the Cofeposa section of the Department of Revenue, Ministry of Finance, New Delhi on 27. 5. 2002 (at 5. 55 P. M. ). Para wise comments were called from the Sponsoring Authority vide letter dated 28. 05. 2002. The comments on the representation, sent by the Sponsoring Authority vide their letter No. VIII (14)06/cofeposa/2002/4482, dated 31. 5. 2002, were received in the Cofeposa section on 31. 5. 2002 (at 5. 50 P. M. ). The case file was submitted to the Deputy Secretary (Cofeposa) on 3. 6. 2002 (1st and 2nd June, 2002 were closed holidays being Saturday and Sunday ). The Deputy Secretary (Cofeposa) processed the case and put up to the. Joint Secretary (Cofeposa) on 3. 6. 2002. The Joint Secretary (Cofeposa) in turn submitted the file to the Secretary, Ministry of Finance, Department of Revenue on 3. 6. 2002 itself. The Secretary, Ministry of Finance, Department of Revenue, considered the representation on behalf of the Central Government and rejected the same on 12. 6. 2002 [from 3rd to 8th June, 2002, Secretary (Revenue) was on foreign tour and 9th June, 2002 was a holiday, being Sunday]. The file was received back in the Cofeposa Unit on 13. 6. 2002. A Memorandum rejecting the said representation was sent to the petitioner/detenu herein through the concerned Jail Authority at Lucknow on 13. 6. 2002 itself and the same was conveyed to the Petitioner/detenu herein by the concerned Jail Authority on 15. 6. 2002. In view of the factual position stated above it is respectfully submitted that there has been no undue or unexplained delay in disposing of the representation dated 18. 5. 2002 of the detenu/petition herein. 7. Mr. 6. 2002 itself and the same was conveyed to the Petitioner/detenu herein by the concerned Jail Authority on 15. 6. 2002. In view of the factual position stated above it is respectfully submitted that there has been no undue or unexplained delay in disposing of the representation dated 18. 5. 2002 of the detenu/petition herein. 7. Mr. B. B. Saxena learned Counsel for the Union of India strenuously contended that a perusal of para 3 of the return of Mr. V. K. Khanna shows that the third respondent has satisfactorily explained the delay in the disposal of the representation preferred to it by the petitioner-detenu and the continued detention of the petitioner-detenu would not be vitiated on the said vice. 8. We have perused the averments contained in para 27 of the petition those contained in para 3 of the turn of Mr. V. K. Khanna and heard learned Counsel for the parties. We make no bones in observing, that no satisfactory explanation is forthcoming from the side of the Union of India for the inordinate delay in the disposal of the representation made by the petitioner-detenu. The Supreme Court in para 3 of the oft-quoted case of Harish Pahwa v. State of U. P. and others, 1982 (19) ACC 28 (Sum) = AIR 1981 SC 1126 . which related to delay in the disposal of a representation in a detention under the COFEPOSA, has observed thus: " We would emphasise that it is the duty of the State to proceed to determine representations of the character above-mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. " 9. We dare to say that if the explanation furnished in the return of Mr. V. K. Khanna is examined on the touch-stone of the ratio laid down in Harish Pahwas case (supra) the continued detention of the petitioner-detenu would be vitiated on the vice of delay in the disposal of his representation. 10. In the first place it should be borne in mind that the return of Mr. V. K. Khanna is examined on the touch-stone of the ratio laid down in Harish Pahwas case (supra) the continued detention of the petitioner-detenu would be vitiated on the vice of delay in the disposal of his representation. 10. In the first place it should be borne in mind that the return of Mr. V. K. Khanna makes it manifest that the representation of the petitioner-detenu was forwarded by the Joint Secretary (Cofeposa) to the Secretary Ministry of Finance, Department of Revenue on 3. 6. 2002 itself. If the Secretary, Ministry of Finance who was dealing with the representation in COFEPOSA matters and who rejected the petitioner-detenus representation on 12. 6. 2002 was on foreign tour between 3-6. 2002 and 8. 6. 2002, in his absence some other functionary should have been assigned the work of disposing of representations in Cofeposa matters. 11. Representations in Preventive Detention matters cannot be kept in abeyance on the ground that Government functionaries who had to deal with it was on foreign tours. 12. In our judgment no satisfactory explanation is furnished by the third respondent as to why the petitioner-detenus representation was not disposed off between 3. 6. 2002 and 8. 6. 2002. 13. At any rate even if the delay between 3. 6. 2002 and 8. 6. 2002 is excluded and 9. 6. 2002 being closed holiday (Sunday) is also excluded there is no explanation as to why the Secretary Finance did not dispose of the petitioner- detenus representation on 10. 6. 2002 and 11. 6. 2002, and we dare to say that this was on account of his being oblivious to the promptitude with which a representation in a Cofeposa matter had to be disposed off. 14. We have seen that in Harish Pahwas case (supra), the Supreme Court has laid down that a representation in a Preventive Detention is to be continuously dealt with unless it is necessary to wait for some assistance in connection with it unless a final decision is taken and communicated to the detenu. 15. In our view the absence of any satisfactory explanation in the return of Mr. V. K. Khanna, as to why the petitioner-detenus representation was not disposed off between 3. 6. 2002 and 8. 6. 2002 and on 10. 6. 2002 and 11. 6. 2002 would vitiate the continued detention of the petitioner- detenu. 16. 15. In our view the absence of any satisfactory explanation in the return of Mr. V. K. Khanna, as to why the petitioner-detenus representation was not disposed off between 3. 6. 2002 and 8. 6. 2002 and on 10. 6. 2002 and 11. 6. 2002 would vitiate the continued detention of the petitioner- detenu. 16. It should be borne in mind that Preventive Detention is a draconian piece of legislation which is justifiable only on the doctrine of necessity, the justification being that sometimes for societal good, personal liberty has to be subordinated. But we make it plain that if the authorities want, be it Union of India or State Government, that this Court should uphold detention-orders, they should ensure that procedural safeguards guaranteed under Article 22 (5) of the Constitution of India are strictly complied with. Bemoaning the lot of the detenu, Chinanappa Reddy, J. , observed in para 4 of the oft-quoted case of Smt. Shalini Soni v. Union of India and others1. AIR 1981 SC431. thus: ". . . . Since all the constitutional protection that a detenu can claim is the little i. e. afforded by the procedural safeguard prescribed by Article 22 (5) read with Article 19, the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of procedural imperative must lead to the release of the detenu. " Article 22 (5) of the Constitution of India read thus: " 22 (5 ). When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. " 17. A perusal of the aforesaid Article would show that the detenu has two distinct fundamental rights: (a) of being furnished by the detaining authority, as soon as may be, copy of the grounds of detention; and (b) of being afforded by him the earliest opportunity of making a representation against the detention order. 18. " 17. A perusal of the aforesaid Article would show that the detenu has two distinct fundamental rights: (a) of being furnished by the detaining authority, as soon as may be, copy of the grounds of detention; and (b) of being afforded by him the earliest opportunity of making a representation against the detention order. 18. It is implicit that for exercising fundamental right (b),it is necessary that the detenus fundamental right (a) is complied with because unless copy of the grounds of detention are furnished to the detenu, he would not be able to prefer a representation at the earliest opportunity. 19. The Supreme Court in a catena of decisions has held that in the right of the detenu to prefer a representation at the earliest opportunity is inherent the obligation on the authority to whom the representation is made to dispose off the same with same promptitude. 20. Where there is lethargy, callousness and unexplained delay on the part of the authority in disposing off a representation, there would be a violation of detenus fundamental right of preferring representation at the earliest opportunity. 21. The solemn seriousness which the Apex Court attaches to the promptitude with which a representation, in a preventive detention matter should be disposed off is manifest from para 9 of the decision rendered by it in the case of Rajamal v. State of Tamil Nadu, 1999 (38) ACC 312 (SC ). A perusal of the said para would show that on 9. 2. 1998 the representation of the detenu was forwarded to the Minister who received it while he was on tour but the Minister passed orders on it only on 14. 2. 1998. On behalf of the respondents it was urged that since the Minister was on tour, the representation could be disposed off on 14. 2. 1998. The Supreme Court rejected the said explanation as being a unjustifiable one. 22. It is distressing that lethargy on the part of the Union of India in disposing off the petitioner-detenus representation would lead to the imperative result of the release of the detenu from detention. But as seen above, it is the Union of India, which is to be blamed for it. It is true that those who commit offences under the Cofeposa Act, erode our economy. But a badman is entitled as much to justice as a good man. But as seen above, it is the Union of India, which is to be blamed for it. It is true that those who commit offences under the Cofeposa Act, erode our economy. But a badman is entitled as much to justice as a good man. And this Court when seized of a detention order in the exercise of its jurisdiction under Article 226 of the Constitution of India, only examines on the touchstone whether it is in conformity with law and not whether the person sought to be preventively detained is a good person or not. And where it finds that the detention is not in conformity with law, it would not hesitate in setting the detenu at liberty. 23. For the said reasons, in our view, on account of the inordinate and unexplained delay in the disposal of the petitioner-detenus representation by the third respondent (Union of India) the continued detention of the petitioner-detenu cannot be sustained in law. As a logical imperative we allow this writ petition and direct that the petitioner-detenu be released forthwith unless wanted in some other case. 24. We also direct the office to send a copy of this judgment to the third and fourth respondents within one week from today. Petition Allowed. .