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2014 DIGILAW 1109 (BOM)

Riyaz Ahmed Batatawala v. State of Maharashtra

2014-05-02

A.A.SAYED, ABHAY SHREENIWAS OKA

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JUDGMENT : Abhay Shreeniwas Oka, J. 1. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 31st January 2014 passed against him under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (For short "COFEPOSA"). By the said order, the petitioner was ordered to be preventively detained. The first submission of the learned Counsel appearing for the petitioner in support of challenge to the order of preventive detention is based on alleged delay in disposal of the representation made by the petitioner through his Advocate against the order of preventive detention. He invited our attention to grounds (i) and (j). He pointed out that the petitioner submitted a representation through his Advocate on 11th February 2014 to the Detaining Authority as well as to the State Government. He pointed out that the said representation dated 11th February 2014 was belatedly decided by the Detaining Authority on 28th February 2014 and the same is also belatedly decided by the State Government on 4th March 2014. He submitted that gross delay in deciding the representation has not been explained in the affidavits in reply filed by the Sponsoring Authority as well as by the Detaining Authority. Inviting our attention to the constitutional requirement of expeditious disposal of representation as spelt out from clause 5 of Article22, he urged that even by taking the statements made in the reply as correct, there is a violation of constitutional safeguard. He relied upon the three decisions of the Apex Court in support of his contention. The first decision is in the case of (Harish Pahwa Vs. State of U.P.), A.I.R. 1981 S.C. 1126 the second one is in the case of (Rajammal Vs. State of Tamil Nadu and another), 1999 (1) LJ (S.C.) 265. Lastly, he relied upon the decision of the Apex Court in the case of (Rama Dhondu Borade Vs. V.K. Saraf Commissioner of Police and others), 1989 (3) Bom.C.R. 400 (S.C.) : 1989 (3) S.C.C. 173 . The learned APP relying upon the statement made in the reply submitted that there was no inordinate delay in disposal of the representation and that the delay, if any, has been duly explained in the reply. 2. The first reply is filed by Shri Kiran Kumar Karlapu, Assistant Commissioner of Customs, COFEPOSA Cell, C.S.I. Airport, Mumbai. The learned APP relying upon the statement made in the reply submitted that there was no inordinate delay in disposal of the representation and that the delay, if any, has been duly explained in the reply. 2. The first reply is filed by Shri Kiran Kumar Karlapu, Assistant Commissioner of Customs, COFEPOSA Cell, C.S.I. Airport, Mumbai. In the said reply, in paragraph 15, it is stated that the letter dated 15th February 2014 addressed by the Detaining Authority was received on 19th February 2014. After preparing para wise comments on 25th February 2014, the same were duly sent to the Detaining Authority on 26th February 2014. 3. It will be necessary to make a reference to the affidavit in reply filed by Smt. Medha Gadgil, Additional Chief Secretary (Detaining Authority). In paragraph 14 of the said reply, the Detaining Authority has stated thus: "14. With reference Para 5(i) of the petition, I say that therepresentation dated 11.2.2014 was received by our office on 14.2.2014 late in the evening. The para wise comments on each and every points raised in the representation were called from the Sponsoring Authority on 15.2.2014. A reminder letter was sent on 24.2.2014. The Sponsoring Authority sent the para wise comments on 25.2.2014. The para wise comments on the representation were submitted for my consideration and appropriate orders on 28.2.2014. On 28.2.2014, after carefully considering the representation and the para wise remarks of the Sponsoring Authority, I rejected the representation. The rejection reply was sent to the detenu through Superintendent, Nashik Road Central Prison, Nashik vide letter dated 1.3.2014." (Underline supplied). 4. There is no separate affidavit in reply filed on behalf of the State Government. In paragraph 15, the Detaining Authority who was at the relevant time the Additional Chief Secretary (appeals and Security), Home Department, has also attempted to deal with on the issue of delay on the part of the State Government. Therefore, it will be necessary to quote what is stated in paragraph 15 of the said affidavit. "15 With reference to para 5(j) of the Petition, I say that the para wise comments on the representation received from the Sponsoring Authority were submitted for consideration and appropriate orders of the State Government i.e. Additional Chief Secretary (Home), Home Department, Government of Maharashtra on 28.2.2014. "15 With reference to para 5(j) of the Petition, I say that the para wise comments on the representation received from the Sponsoring Authority were submitted for consideration and appropriate orders of the State Government i.e. Additional Chief Secretary (Home), Home Department, Government of Maharashtra on 28.2.2014. On 4.3.2014, after carefully considering the representation and the para wise remarks of the Sponsoring Authority, the representation was rejected by State Government i.e. Additional Chief Secretary (Home), Home Department, Government of Maharashtra. The rejection reply was sent to the detenu through Superintendent, Nashik Road Central Prison, Nashik vide letter dated 5.3.2014." (Underline added) 5. Thus, admitted position is that on 11th February 2014, a representation made by the petitioner through his Advocate was received by the Detaining Authority and the State Government. The same was received on 11th February 2014, but was placed before the Detaining Authority on 14th February 2014. We fail to understand as to why the Detaining Authority called for the para wise comments of the Sponsoring Authority. It is not stated as to why the Sponsoring Authority did not submit para wise comments till 25th February 2014. The Sponsoring Authority received letter dated 15th February 2014 on 19th February 2014. The para wise comments were submitted by it on 26th February 2014. In the affidavit of the Sponsoring Authority, not even an effort is made to explain the delay of six days in preparing the para wise comments. The Detaining Authority has not explained as to why para wise comments of the Sponsoring Authority were required. There is no explanation whatsoever for the delay in disposal of the representation of the Detaining Authority. As regards the delay on the part of the State Government, it is stated that after the representation dated 11th February 2014 was received, para wise comments on the representation from the Sponsoring Authority were called for. The date on which the para wise comments were received is not disclosed. It is merely stated that the representation and para wise comments were submitted to the Additional Chief Secretary, Home Department on 28th February 2014 and the decision was taken on 4th March 2014. 6. It is contended by the learned APP the duration of alleged delay is very short. In the case of Rajammal (supra), the Apex Court held that the duration or range of delay in disposal of the representation is not material. 6. It is contended by the learned APP the duration of alleged delay is very short. In the case of Rajammal (supra), the Apex Court held that the duration or range of delay in disposal of the representation is not material. It will be necessary to make a reference to paragraph 9 of the said decision which reads thus: "9. The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned." (Underline added) 7. In the case of Harish Pahwa (supra), the Apex Court has held thus: "In our opinion, the manner in which the representation made by the appellant has been dealt with reveals a sorry state of affairs in the matter of consideration of representation made by persons detained without trial. There is no explanation at all as to why no action was taken in reference to the representation on 4th, 5th and 25th of June, 1980. It is also not clear what consideration was given by the Government to the representation from 13th June 1980 to 16th June 1980 when we find that it culminated only in a reference to the Law Department nor it is apparent why the Law Department had to be consulted at all. Again, we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasis 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. This not having been done in the present case we have no option but to declare the detention unconstitutional. We order accordingly, allow the appeal and direct that the appellant be set at liberty forthwith. Appeal allowed." (Underline added) 8. Coming back to the factual aspects of the case in hand, there is no explanation as to why the Sponsoring authority did not submit para wise comments from 14th February 2014 till 25th February 2014. Thus, the delay in submitting para wise comments is not satisfactorily explained in the affidavit. Therefore, continuation of the order of preventive detention stands vitiated. Moreover, there is absolutely no explanation for delay in disposal of the representation filed by the State Government. There is complete absence of explanation for delay in so far as rejection of the representation made by the petitioner to the State Government is concerned. Therefore, the petition must succeed as constitutional safeguard under Clause 5 of the Article 22 has been violated. Hence, we pass the following order: Rule is made absolute in terms of prayer Clause (b) which reads thus: "(b) That the order of detention being No. PSA/1213/C.R.19/SPL3(A) dated 31.1.2014 passed against the detenu under section 3(1) of COFEPOSA Act, 1974 by the Principal Secretary (appeals and Security) Government of Maharashtra, Home Department and Detaining Authority be quashed and set aside and on quashing the above said order of detention, the detenu be released forthwith."