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2013 DIGILAW 2186 (RAJ)

Ajay Kumar Saini v. Union of India

2013-12-04

AMITAVA ROY, VEERENDR SINGH SIRADHANA

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JUDGMENT AMITAVA ROY, J. The validity of the continued detention of Shri Ram Kumar Saini, father of the present petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, hereafter referred to as COFEPOSA), is under assailment, as being violative of Articles 21 & 22 of the Constitution of India. 2. We have heard Ms. Sangita Bhayana and Mr. Suresh Sharma, the learned counsel for the petitioners and Mr. Tej Prakash Sharma, Special Public Prosecutor for the respondent-Union of India. 3. A brief outline of the pleaded facts, being indispensable, has to be sketched at the threshold. The detenu, Shri Ram Kumar Saini has been arrested by the Officials of Police Station Mukundgarh, District Jhunjhunu, Rajasthan on 29.07.2013, pursuant to the order dated 02.05.2011 passed by the Additional Chief Secretary, Home (Group-9) Department, Government of Rajasthan, in exercise of powers under Section 3(1) of the COFEPOSA Act and since then, he is lodged in Central Jail, Jaipur. As the order of detention would reveal, the same was passed as the Detaining Authority was satisfied that with a view to prevent him from activities of keeping concealing and transporting of smuggled goods and abetment of smuggling of goods, it was necessary to invoke the provisions of the COFEPOSA Act. Noticeably, there is a considerable time lag between the order of detention and his arrest. 4. Be that as it may, the grounds furnished to the detenu following his detention disclose, inter alia, that he has been harboring the criminal associates, like Shri Gouri Shankar, financed their trips, coordinated their movements at the time of arrival and departure through airline personnel, indulged in possessing and furthering of sale of smuggled gold, collecting sale proceeds and canalizing the same for gold smuggling etc. He has been identified to be the kingpin of such nefarious activities. That he used to visit Dubai and Sharjah frequently with a motive of smuggling gold and that he had been avoiding arrest inspite of several summons being addressed to him, was also mentioned. 5. A proceeding was also initiated under the Customs Act, 1962, in which a show cause notice was issued on 06.05.2011 requiring, amongst others, the detenu to show cause as to why, in view of the imputations levelled against him therein, action under the various provisions of the said enactment, as detailed, would not be taken against him. 5. A proceeding was also initiated under the Customs Act, 1962, in which a show cause notice was issued on 06.05.2011 requiring, amongst others, the detenu to show cause as to why, in view of the imputations levelled against him therein, action under the various provisions of the said enactment, as detailed, would not be taken against him. The show cause notice, inter alia, mentioned that inspite of several summons, he had not put in his appearance in response thereto before the concerned authorities and that efforts made to apprehend him through professional intelligence networking and partnership alliance with various law enforcement agencies, also did not yield any positive result. Eventually, penalty was imposed on the detenu under Sections 112 (a) & (b) and 114 of the Customs Act, 1962. 6. Following his detention, representations were submitted on behalf of the detenu on 30/31.07.2013 before the Detaining Authority, the State Government as well as the Central Government. A representation on his behalf was also forwarded by his learned counsel to the State Government on 29.07.2013. As the documents made available would reveal, that by communication dated 27.08.2013, Shri Sunil Kumar Singh, Advocate, the learned counsel for the detenu, was intimated the State Government decision of rejecting the representation dated 29.07.2013. Admittedly, the representation forwarded to the Central Government was disposed of by it on 14.10.2013. The petitioner, apart from contending that the charges levelled against the detenu were wholly unfounded and could by no means constitute any ground for preventive detention under the COFEPOSA Act, has principally asserted that the detention of his father is vitiated, in view of inexplicable delay in disposal of his representation by the Central Government as well as the State Government. Having regard to the grounds urged in course of arguments, as would be adverted hereinafter, further dilation of facts is essential. 7. The respondents in their reply, while affirming the grounds on which the preventive detention has been effected, have reiterated that though the order thereof had been passed on 02.05.2011, the detenu had been absconding thereafter and avoiding the investigating agency and did not co-operate with the investigation as well. 7. The respondents in their reply, while affirming the grounds on which the preventive detention has been effected, have reiterated that though the order thereof had been passed on 02.05.2011, the detenu had been absconding thereafter and avoiding the investigating agency and did not co-operate with the investigation as well. While narrating, in detail, the facts in endorsement of the imputations levelled against the detenu constituting a ground for his preventive detention under the COFEPOSA Act, the respondents disclosed that meanwhile, the Advisory Board, under the enactment, had determined the detention to be valid and had recommended continuance thereof, as permissible under the COFEPOSA Act. They, however, admitted that the detenu representation dated 30.07.2013, addressed to the Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi was rejected on 14.10.2013, whereafter the decision was communicated to Shri Ram Kumar Saini, the detenu through the Superintendent, Central Jail, Jaipur. That the decision was also communicated to the Detaining Authority by letter dated 17.10.2013, has been stated as well. According to the respondents, these correspondences had also been taken note of by the Advisory Board in recording its final recommendations. The respondents have denied the allegations of delay in disposal of the detenu representation. 8. Ms. Bhayana has emphatically argued that the inordinate delay in execution of the order of detention, per se, renders the arrest of the detenu invalid. She has urged that it is apparent on the face of the record that the representation of the detenu, addressed to the Central Government and the State Government, had not been dealt with and decided with due expedition and promptness and his continued detention is thus constitutionally impermissible, in absence of any explanation for the delay. That the detention of the petitioner father is also unsustainable in law and on facts due to the time lag between the date of alleged incident of 10.05.2010 which is the genesis of the accusations and the order of detention, has also been emphasized. To buttress her arguments, Ms. Bhayana has placed reliance on the decision of the Apex Court in Aslam Ahmed Zahire Ahmed Shaik v. Union of India and Ors, JT 1989(2) S.C. 34 : ( AIR 1989 SC 1403 ), and of the High Court of Gauhati in Jubenoor Hussain v. Union of India, 2002 Law Suit (Gau) 205. 9. Mr. To buttress her arguments, Ms. Bhayana has placed reliance on the decision of the Apex Court in Aslam Ahmed Zahire Ahmed Shaik v. Union of India and Ors, JT 1989(2) S.C. 34 : ( AIR 1989 SC 1403 ), and of the High Court of Gauhati in Jubenoor Hussain v. Union of India, 2002 Law Suit (Gau) 205. 9. Mr. Sharma, in reply, has urged that having regard to the deep rooted facts attendant on the charges, on which the detenu has been incarcerated, this Court in the exercise of its extraordinary powers, ought not endeavor to evaluate the adequacy and sufficiency thereof. The Detaining Authority, having derived its satisfaction on the basis of the materials on record that the power under Section 3(1) of the COFEPOSA Act needs to be invoked, no interference therewith by undertaking a process of fresh analysis thereof by this Court ought to be made. While contending that the Central Government, in the facts and circumstances, did act with the required alacrity and diligence in considering and rejecting the detenu representation, the learned counsel has asserted further that he (detenu) had been avoiding his arrest inspite of the best efforts to apprehend him, and thus the plea of delay in execution of the order of detention, is patently frivolous and lacks in bonafide. No records have been laid before this Court on behalf of the respondents. No other plea has been raised. 10. We have scrutinized the relevant facts to the extent necessary. The arguments advanced as well have been duly taken note of. 11. That there is an appreciable time lag in the matter of disposal of the detenu representation dated 30.07.2013 by the Central Government, is a matter of record. According to the respondents, his representation was disposed of on 14.10.2013. Arithmetically it is 75 days, which by all measures, is unduly long having regard to the constitutional as well as statutory obligation of the authorities under the Act including the Central Government, to dispose of the representation by a detenu suffering preventive detention at the earliest. Noticeably, no explanation is forthcoming in the replies of the respondents citing any reason for this otherwise enormous delay. In absence of any such justification, the delay assuredly has to be held to be not only formidable, but also unexplained. 12. Noticeably, no explanation is forthcoming in the replies of the respondents citing any reason for this otherwise enormous delay. In absence of any such justification, the delay assuredly has to be held to be not only formidable, but also unexplained. 12. It is no longer res integra that the right of a detenu under preventive detention, to have his representation decided at the earliest, is guaranteed under Article 22(5) of the Constitution of India and any delay on the part of the concerned authorities, would result in invalidation of such detention. This view gains support from the decision, amongst others, of the Hon'ble Apex Court in Aslam Ahmed Zahire Ahmed Shaik ( AIR 1989 SC 1403 ) (supra), where even a let-up of 11 days in transmitting the representation to the Central Government contributing to the delay in disposal thereof, was held to be in denial of the constitutional right of the detenu therein. The High Court of Gauhati in Md. Monisur Islam v. Union of India and others, 2002(3) GLT 249, on the aspect of constitutional obligation of the authorities concerned to attend to and dispose of the representation by a detenu under preventive detention with the required expedition and concern, has observed thus:- “the golden thread of consistent judicial opinion on the topic which runs through the authorities referred to above seems to be that our Constitution while conceding the power of preventive detention has prescribed procedural safeguards for protecting a citizen against arbitrary and unjustified invasion of his personal liberty and a duty has been cast on the courts to zealously guard against infringement of the cherished right of personal liberty and to ensure that such procedural safeguards are not denied to the person concerned. As has been observed by the Apex Court, the power of preventive detention is a draconian power justified only in the interest of public security and order and, it is tolerated in a free society as a necessary evil. It follows thus, that the provisions of law authorising the preventive detention will have to be rigorously enforced and any breach thereof would be at the pain of invalidation of the related orders and decisions affecting the person concerned. The right to have the earliest opportunity of making a representation against the order of preventive detention has really its roots in the constitutional guarantee enshrined in Article 22(5) of the Constitution of India. The right to have the earliest opportunity of making a representation against the order of preventive detention has really its roots in the constitutional guarantee enshrined in Article 22(5) of the Constitution of India. Any provision in the Act which requires affording of such an opportunity to the detenu is in addition to such constitutional right. While interpreting the expression earliest it is not so much the number of day which counts but what really matters is with what live concern and promptness, the representation is processed and attended to at different levels and stage to stage. True, it is neither possible nor advisable to lay down a rigid period of time to be uniformly applicable to all cases within which the period the representation of the detenu has to be disposed of but, it is incumbent on the authorities, keeping in view their solemn obligation in that regard, to do so with reasonable expedition and utmost concern. The judicial pronouncements noticed hereinabove, clearly proclaim that if the provisions of the Act are not scrupulously adhered to and if the representation submitted by the detenu is not attended to and disposed of at the earliest, the same vitiates the continued detention so much so that even if such representation is eventually dismissed on merits, the illegality does not get effaced. The constitutional mandate, therefore, brooks no unreasonable delay in the matter of consideration of the representation of the detenu.” 13. We respectfully agree with the above judicial enunciation, as referred to hereinabove. To reiterate, in the facts and circumstances of the case, there has been an enormous and unexplained delay in disposal of the detenu representation by the Central Government as well as the State Government. On this ground alone, in view of the emphatic judicial pronouncements, as adverted to hereinabove, we have no hesitation to hold that the continued detention of the detenu in the case in hand, is constitutionally invalid. 14. In this view of the matter, we adjudge the detention of the detenu, Shri Ram Kumar Saini, to be legally unsustainable and direct his release in the present case, unless he is required to be detained in connection with any other case. All orders pertaining to his detention in the case in hand are interfered with. In view of this finding, we refrain from examining the other points urged. Order accordingly.