Delhi High Court (April 23, 2002) 2002 (TLS)126850 2002-ILRDLH-9-201 SANJIV GUPTA (IN IC) Vs. Union of India B. A. KHAN ( 1 ). Petitioner, a readymade garment exporter, was detained under Section 3 of COFEPOSA Act by order dated 26. 4. 2001. He was supplied grounds of detention and relied upon ducuments. He, however, made a reprsantation on 22. 10. 2001 and asked for supply of some more documents which was rejected vide order dated 25. 10. 2001. He then again made a representation dated 5. 11. 2001 for revocatiori of his detention which was also turned down by order dated 13. 11. 2001. His case was theireafter referrd to the Advisory Board where he was heard and his detention was subsequently confrmed. ( 2 ) PETITIONER challenges his detention on several grounds. He alleges delay of 8 months and 16 days in passing the detention order which vitiated his detention. According to him, authorities had received information regarding his alleged fraudulent duty draw back claim on 29. 7. 2000 leading to investigalion in which his last statement was recorded on 27. 1. 2001 but despite this they had failed to pass the detention order till as late as on 26. 4. 2001. Reliance in this regard is placed on the Supreme Court judgments in Anand prakash Vs. Union of India (1990) 1 SCC 291 and a judgment of this court in Lal Khmani Vs. Union of india 2000 (1) AD Delhi 246. ( 3 ). Petitioner s second ground of attack is that respondent had also caused delay of 4 months in the execution of the detention order which had gone unexplained vitiating the detention in the process. Support for this Is drawn from the Supreme Court judgment in several cases including A. Mohd. Farooq Vs. Joint Secretary (2000) 2 SCC 360 , K. M. P. Bashir Vs. Union 0f India (1992) 2 SCC 295 and Smt. Sultan Abdul. Kader Vs. Joint Secretary (1998) 8 SCC 343 . ( 4 ). Petitioner s third contention is that respondent had failed to supply him several important material/documents like account opening statements of the alleged three fictitious firms obtained from Punjab national Bank and Oriental Bank of Commerce which had come in his way f making an effective representation against his detention. He had made a representation in this regard on 19. 10. 2001 which was arbitrarily and summarily rejected. He had made a representation in this regard on 19. 10. 2001 which was arbitrarily and summarily rejected. He has cited Supreme Court judgments in Shaukat Ali Vs. Union of India (2000) 7 scc 148 , M. Ahmed Kutty Vs. Union of India 1990 SCC (Crl) 258 and Mehrunissa Begum Vs. The Secretary to government (Political) 2001 Crl. L. J. 3931 to support this. ( 5 ). Petitioner s last submission is that Sponsoring authority had withheld from Detaining Authority some important information/material like account opening documents and statement of account of three alleged fictitious firms and telegrama sent by his wife and also the fact of his having appeared before Custom authorities on 20. 9. 2000 The Detaining Authority had also arbitrarily rejected his demand for supply of legible copies of some documents and their Hindi translation. ( 6 ). Respondent, in his counter, has denied that there was any inordinate or unexplained delay in passing the detention order. It is explained that petitioner did not join investigation at initial stage even though summons were served on him on various dates under section 108 of Customs Act. A complaint was also lodged against him under Sections 172 and 174 of IPC and 108 of customs Act on 9. 10. 2000. Subsequently, non-bailable warrants were issued against him on 20. 10. 2000 which had gone abegging. It is admitted that he recorded his first statement on 30. 11. 2000 under the orders of this court but he again stayed away and failed to appear before the custom authorities on 7. 3. 2001, 24. 3. 2001 and 10. 4. 2001 and it was in these circumstances that the detention order could not be passed till 26. 4. 2001. ( 7 ). Explaining the alleged delay in execution of detention order, it is submitted that petitioner was deliberately avoiding service of the order on him despite action taken against him under Section 7 of the cofeposa Act on 28. 5. 2001 and 19. 7. 2001 respectively. He had also failed to respond to summons dated 7. 6. 2001, 23. 7. 2001 and 10. 9. 2001 issued by the custom authorities. Raids were conducted at his Ashok Vihar residence on 9. 5. 2001, 30. 6. 2001, 30. 7. 2001, 16. 8. 2001 and 5. 10. 2001 but he could not be located till he was apprehended by Delhi Police on 11. 10. 2001. 6. 2001, 23. 7. 2001 and 10. 9. 2001 issued by the custom authorities. Raids were conducted at his Ashok Vihar residence on 9. 5. 2001, 30. 6. 2001, 30. 7. 2001, 16. 8. 2001 and 5. 10. 2001 but he could not be located till he was apprehended by Delhi Police on 11. 10. 2001. It is denied that he had surrendered before the custom authorities ever. ( 8 ). It is claimed that all relevant documents were supplied to him and those mentioned by him at serial nos. 2, 3 and 4 of his representation figured already at pages 21, 22 and 23 of the list of relied documents served on him on 12. 10. 2001 It is further explained that some documents like opening bank account documents were not required to be supplied as these were only referred in the grounds of detention by way of narration. But statement of Bank Account f three fifms as well as copies of shipping bills taken on random basis from EDT System were supplied to him in the list of relied upon documents. It is denied that bank documents referred to by petitioner were not placed before Detaining Authority including the telegrams of his wife. It is also donied that he had appeared before customs Authorities on 20. 9. 2000 and so the question of informing the Detaining Authority on this did not arise. The documents were also not required to be supplied in hindi as he had admitted to have qualified 12th standard and was conversant with English. ( 9 ). If is well settled by now that mere delay in passing the detention order or in its execution does not vitiate the detention in all events and circumstances. Nor does the period of such delay, be that long or short entail such a consequence. The delay in this regard must be shown to bo unreasonable and inordinate and must go unexplained by the Detaining Authority to vitiate the detention. There is no hard and fast rule to adjudge whether the alleged do]ay was unreasonable or inordinate and whether there was any satisfactory explanation for this. It all depended upon the facts and circumstances of the case. ( 10 ). Cases are conceivable where authorities may take time to conduct investigations so as to feel satisfied whether the detention order was liable to be passed or not. It all depended upon the facts and circumstances of the case. ( 10 ). Cases are conceivable where authorities may take time to conduct investigations so as to feel satisfied whether the detention order was liable to be passed or not. They may rail for particulars or undertake some other exercise which may take some time to make the detention order full-proof before it was passed. It could not be said or held in such cas that tim taken was unreasonable or that it had snapped the nexus with the detention to viticte it. The test was whether the alleged delay had snapped the nexus wini the detention and where it was found s, it would surely invalidate the detention. ( 11 ). Dealing with this aspect f the matter, Supreme court observed in M. Ahmed Kutt s case as under:- where the seemingly long time taken for passing the detention order after tho prejudicial act is the result of full and detailed investigation and consideration of the facts of the case, the ground cannot be held to be remote and the detention cannot be held to be had on that ground. In the present case it was submitted for the State that as a thorough investigation of the case was required on the part of the customs authorities both the proceedings under the Customs Act and for prosecution in the criminal court, the proposal. could not have been hurried through. The tracts have not been shown to be untrue. Considering the givenexplanation of the period in between the interception on 30/01/1988 and the order of detention on 25/06/1988 the nexus was not snapped and the ground was not rendered stale and the order of detention was not rendered invalid thereby. " ( 12 ). The same holds true about the delay in execution of detention order, there may be cases where the delay is caused because the detenu is not available to be arrested in execution of the order. He may be absconding or resorting to some other tactics or strategy to frustrate the execution of the order. In such a situation, It can t be said that any such delay, when explained, would hit the detention order. Even in this case also it had to be established the delay caused was unreasonable and inordinate and had gone unexplained so as to vitiato the detention order. ( 13 ). In such a situation, It can t be said that any such delay, when explained, would hit the detention order. Even in this case also it had to be established the delay caused was unreasonable and inordinate and had gone unexplained so as to vitiato the detention order. ( 13 ). The Supreme Court had this to say in Indradeo vs. State of West Bangal AIR 1973 SC 1062 "where at the time of the passing of detetion order, the person sought to be detained was absconding and he was arrested ten months thereafter, mere omission to take steps under ss. 87, 88, Cr. P. C. in issuing proclamation etc. about the person absconding will not per se rendei the detention order either illegal or mala fide. " ( 14 ) THE Supreme Court again said in M. Ahmed Kutty s case:- "where after passing of the detention order the passage of time is caused by the detenu himself by absconding, the satisfaction of the detaining authority cannot be doubted and the detention cannot be held to be bad on ground of delay in execution of the Order. ( 15 ). Even this court in an elaborate and well considered judgment in Dalbir Singh Vs. Union of India (1995) 1 AD 170 had this to hold on the point: "delay in executing a detention order, if satisfactorily explained, cannot vitiate the detention. The detenu has been absconding or trying to evade arrest till he surrendered after initiation of procedure under Sections 82 and 83 cr. P. C. the delay cannot be fatal. Mere fact that powers under Section 7 of COFEPOSA have not been invoked may not lead to inference of neglect. Delay due to lack of co-ordination between the detaining authorities and the officers executing the warrant may not also be fatal. If detenu was, in spite of fiequent search; not found at his known residential address, that could be a valid Axplanation. Delay in translation of documents etc. is relevant. Delay for which the detenu is attributable, such as his moving Courts, is not fatal. Delay to be fatal must be of such length and remain unexplained so as to snap the nexus between the incident and the detention. " ( 16 ). Tested on these parameters, it does not appear to us that there was any unreasonable delay in passing the detention order. Delay to be fatal must be of such length and remain unexplained so as to snap the nexus between the incident and the detention. " ( 16 ). Tested on these parameters, it does not appear to us that there was any unreasonable delay in passing the detention order. The sequence of events given in the counter explains how petitioner had failed to join the investigation leading to the filing of complaint against him under Sections 172 and 174 of IPC and how even non-bailable warrants issued against him had gone unexecuted. He had also failed to appear before custom authorities on various date and if all this time was taken to make sure whether the detention order was liable to be passed against him or not, it could not be said that any undue or unreasonable delay was caused in passing such order. Not it could be held that it had snapped the nexus between the alleged activities of petitioner and that of his detention. ( 17 ). Petitioner s second allegation f delay in execution of detention order also appears to be without any substance. Respondent s counter shows that he had deliberately evaded service despite action taken against him under Section 7 of COFEPOSA Act and had also filled to respond to the summons of tho custom authorities. The raids conducted at his residence several times had also borne no fruit till he was eventually apprehended by Delhi Police on 11. 10. 2001. It is not that respondent was negligent or casual in taking steps to execute the order. On the contrary, requisite stops are shown to have been taken leadiny to the execution of the detention order. If is not, therefore, possible to hold that respondent had committed any unreasonable delay in execution of the ordrr also to vitiate the detention. ( 18 ). Coming to petitioner s grievance about non-supp]y of some material documents, it requires to be made lear that there is an obligation on the detaining authority to supply the relied upon documents only to the detenu to enable him to make an effective representation. Non-supply of such material documents vitiates the detention in the facts and circumstances of the case and no prejudice is required to be shown for this. Non-supply of such material documents vitiates the detention in the facts and circumstances of the case and no prejudice is required to be shown for this. The authority, however, is also required to supply other documents referred to in the ground of detention on demand but non-supply of these would not invalidate the detention unles the detenu shows the prejudice caused to him in making the representation. This position is repeatedly affirmed by the Supreme court and lately in Powanammal Vs State of Tamil Nadu 1 (1999) SLR 191 holding thus:- "whereas non-supply of a copy the document relied upon in the grounds of detention has been held to be ratal to continued detention, the detenue need not show that any prejudice is caused to him. This is because non-supply of such a documont would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenue s complaint of non-supply of document has to be supported by prejudice caused to him in making an effective representation. " ( 19 ). We re also not impressed by petitioner s plea that some important information/documents were not placed before detaining Authority or non-supply of some documents or their Hindi translation had vitiated his detention. His grievance stands adequately answered by respondent and we have no reason to disbelieve the official version on the issue. ( 20 ). We find that petitioner had complained about non-furnishing of documents at serial Nos. 2, 3 and 4 of the relied upon documents but these are said to have been supplied to him under the acknowledgement on 12. 10. 2001. Apart from this, petitioner claims that he was not supplied copies of account opening form of m/s. Future, Sanjeev Garments and Mandra Exports opened at Oriental Bank of Commerce and Punjab National Bank and copies nf documents, cheques and any other correspondence regarding the money drawn from bank or any other document which were seized during investigation. But a perusal of his representation dated 19. 10. 2001 show% that he had asked for the Hindi translation of these documents which suggests that these) documents were supplied to him, though not in Hindi translation. But a perusal of his representation dated 19. 10. 2001 show% that he had asked for the Hindi translation of these documents which suggests that these) documents were supplied to him, though not in Hindi translation. It is not, therefore, possible to hold in the facts and circumstannes that he was not supplied the relied upon documents which had infringed his right to make an effective representation. This petition accordingly fails and is dismissed. --- *** --- .