Bimla Rani vs Union Of India And Ors.
1986 Latest Caselaw 81 Del

JUDGMENT

Malik, J.

(1) The detenu Bimla Rani petitioner herein has challenged the validity of the detention order dated 25th of March 1987 passed by Shri Tarun Roy, Joint Secretary to the Government of India, under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act of 1974 (as amended). The detention order, was passed with a view to preventing the detenu from smuggling goods and is based on an incident dated 16th of February 1986 when she was found smuggling 14 foreign marked gold bars each weighing 100 grams and one foreign made gold bit weighing 10 grams. The petitioner is a citizen of Singapore and was traveling from Singapore to Madras where she was caught by customs people in the process of smuggling gold. Mr. Pinaki, learned counsel for the petitioner, urged a number of grounds before me to press his point that the detention is vitiated and is unsustainable in law but it is not necessary for me to go into all the contentions as I find this petition will have to be allowed on the ground that there is no proximity between the incident and the detention order which has been essentially passed with a view to prevent the petitioner in indulging in a prejudicial activity, namely, smuggling of goods.

(2) Mr. Pinaki contended that the order of detention dated 25th of March 1987 is entirely based on the incident dated 16th of February 1986 and it has been passed after a lapse of almost 13 months and, therefore. it suffers from the vice of being, stale. Mr. Pinaki further contended that the detaining; authority has failed to put forward a satisfactory explanation as to why it failed to pass the detention order .for such a long time if the purpose really was to prevent the petitioner from indulging in prejudicial activities. According to him this vitiates the detention order as in the strict sense of the word this becomes a punitive detention which is not permissible.

(3) It would be seen that after her apprehension on 16th of February 1986 the petitioner was presented before the Additional Chief Metropolitan Magistrate, Madras on 17lh of February 1986 who remanded her to judicial custody till 3rd of March 1986. On 24th of February 1986 she was enlarged on bail on the condition that she will continue to report to the Assistant Collector at Madras. She reported on 25th, 26th and 27th of February 1986. Even during these days when the was available no detention order was passed. It seems, there- after the petitioner jumped bail and went back to Singapore on a fake passport and subsequently on a red alert she was arrested from Indira Gandhi International Airport, New Delhi on 13th of March 1987 when she was found in possession of some foreign currency and Indian currency turn which adjudication proceedings were taken and she was there and then fined Rs. 5,000. It is in these circumstances that Mr. Pinaki contends that the incident dated 16th of February 1986 is too stale and cannot form the basis for preventive detention as the nexus between the incident and the need to resort to preventive detention is snapped.

(4) At this stage, I must advent to the counter affidavit wherein the respondents have very frankly stated the facts in the following terms, : "It would be seen from para 9 of the grounds of detention that the investigations were conducted till 19-5-1986 and the 'proposals for detention of the petitioner under the provisions of Cofeposa Act, 1974 were thereafter sent to the Government of Tamil Nadu on 12-6-86. The State Government had raised certain queries and they were supplied within September and October, 1986. However, the State Government in their communication dated 12-11-86 felt that the de(tention order if issued could not be executed in view of the fact that the present whereabouts of the petitioner in India were not known. Subsequent to 'the apprehension of the petitioner at 1. G. International Airport on 13-3-87 in pursuance of Red Alert No. 43/86, dated 24-4-86, the Government of Tamil Nadu was again requested by the Madras Custom House on 18-3-87 to issue the detention order on top priority basis. In the meantime, the specially empowered officer of the Central Government issued the detention orders on 25-3-87."

This is,in fact, the way in which the delay in passing the detention order has been explained. It is amazing that even after a lapse of 13 months the detention order had to be issued by the Central Government itself. For 13 long months the Central Government kept on corresponding with the State Government for passing the detention order but the State Government did not oblige. U'timately, the court is told that the Central Government asked the State Government to issue The detention order on top priority basis. This is rather surprising as if the State Government had to take orders for passing the detention order without applying its own mind. If the detention order was to be passed by the State Government it could be done by it after its application of mind to the facts of a particular case and the mind to the facts could not be. applied by the Central Government unless the Central Government itself wanted to act on a set of facts. That apart, it appears that despite this communication to the State Government on 18th March 1987 the Central Government took action and passed the detention order on 25,th of March 1987. The counter affidavit cleariy goes to show that the detention order is in respect of the incident dt. 16th Feb., 1986 and even though investigation was complete on 19th May 1986 it is surprising io find that the Central Government did not take any action and ultimately decided to take action on 25th of March 1987, when the nexus between the incident and the need to detain had totally snapped. "The explanation that the detention order could not have beer- executed, in the circumstances, is no explanation for delay not known, in the circumstances of this case, seems to be far from satisfactory. If the detaining authority was of the view that it was necessary to preventively detain the petitioner with a view to prevent her from smuggling goods it ought to have passed the detention order right in time. If the detention order could not be executed for the reason of the petitioner having left the country, that would be altogether a different matter and, perhaps, could' be a very good explanation for delay in the execution of the" detention order." That the detention order could not have been executed, in the circumstances, is no explanation for delay in passing the detention order. In the facts and circumstances of this case I fully agree with Mr. Pinaki that there has been a long delay in the passing of the detention order which has not been satisfactorily explained in the present case. Mr. Dutt, however, urged that there are cases in which long delay has been condoned because of proper explanation. I believe that the ratio of all the judgments on the point is that delay by itself is not fatal. All that is required is that it must be properly explained, and what is properly explained will depend upon the facts and circumstances of each case. The facts and circumstances of the case in hand are such that the delay in passing the detention order is unpardonable. For the reasons stated, this petition is allowed and the detention order is quashed. The petitioner shall be released forthwith from detention unless required in some other case.