Rajesh Monga vs Union Of India And Ors.
1986 Latest Caselaw 25 Del

JUDGMENT

G.C. Jain, J.

(1) The petitioner, Rajesh Monga has filed this petition under Article 226 of the Constitution of India challenging the order of his defend on made under Section 3(1) .read with Section 2(f) of the Conservation of Foreign Exchange .and Prevention of Smuggling Activities Act, 1974 (for short 'the 'Act'.) by the Administrator of the Union Territory of Delhi with a' view to preventing him from abetting the smuggling of goods,' The order was mad'e on August 16, 1985. It was served on the petitioner on October 7, 1985 when he was detained.

(2) He was served with the grounds of detention on October 10, 1985. These are in narrative form and run into 29 pages. The main ground is the incriminating statement of Sunil Kumar Sood who arrived at the Delhi Airport from Hongkong on August 20, 1984. He declared the contents of his baggage and was assessed to the duty accordingly. The search of his bag- gage, however, revealed excess and concealed goods of the value of Rs. 56,050. His statement under Section 108 of the Customs Act was recorded. He, inter alia, stated that he had gone to Hongkong on August t1, 1984 along with Bhupinder Monga and Deepak Sehgal. Bhupinder had taken with him foreign and Indian Currency given to him by the petitioner. They made purchases in Hongkong. The goods were concealed by Bhupinder and Deepak in the suit case, T.V. etc. and were to be handed over to the petitioner at the airport. The petitioner had paid his air ticket and had also paid the duty assessed on the declared goods. The petitioner had, asked him (Sunil Kumar Sood) not to declare the goods found in excess. The endorsement on the passport on Sunil Kumar Sood showed that prior to this visit he had gone to Hongkong earlier only on August 1, 1984.

(3) Bhupinder Monga who had also arrived at Delhi Airport by the same flight was found in possession of excess and undeclared goods of the value of Rs. 39,636. In his statement under Section 108 of the Customs Act he stated that he had visited Hongkong five times earlier and had sold the goods brought by him on profit. He had earlier imported a T.V. and paid the duty on taking a loan from the petitioner which had been returned. The petitioner knew that he (Bhupinder Monga) was bringing button cells concealed in his baggage. The petitioner bad brought money for payment of duty. The petitioner knew about his (Bhupinder's) illegal activities and lent his money.

(4) Deepak Sehgal and Harish Kumar Chanana also arrived at Delhi Airport by the same flight. Deepak was found in possession of excess and concealed goods of the value of Rs. 12,100. Spot adjudication was made in his case. Harish Kumar Chanana was found in possession of excess and concealed goods of the value of Rs. 51,000. His statement under Section 108 of the Customs Act was recorded. He, however, said nothing incriminating against the petitioner.

(5) One Gurcharan Singh also arrived at Delhi Airport by the same flight. On examining his luggage which be had abandoned it was found to contain undeclared goods of the value of Rs. 36,340.

(6) The statement of the petitioner was recorded under Section 108 of the Customs Act on August 21, 1984. He admitted that he had visited the Airport on August 20, 1984 and had paid Rs. 6,600 to Deepak Sehgal on credit, lie denied his involvement with Bhupinder Monga or Sunil Kumar Sood.

(7) The petitioner was arrested under Section 104 -of the Customs Act on August 21, 1984 and a complaint under Section 125(l) of the Customs Act was filed against him before the Additional Chief Metropolitan Magistrate, Its; the said complaint pre-charge evidence was completed on July 29, 1985. The request of the complainant for producing some more cvidence was however turned down.

(8) Thereafter the impugned detention order was made. No reference under Secion 8 of the Act was admittedly made to the Advisory Board because of the declaration made by the Addl. Secretary to the Government of India under Section 9(1) of the Act on October 16, 1985.

(9) The first contention of the learned counsel for the petitioner is that the alleged incident took place on August 20, 1984, but the detention order was made only on August 16, 1985 and executed on October 7, 1989 when the petitioner was detained. This undue delay of more than a year was fatal.

(10) The credible chain between the grounds of offensive activity alleged by the detaining authority and the purpose of detention is snapped if there is too long and unexplained interval between the offending acts and the order of detention. "Delay ipso facto in passing an order of detention after an Incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority."

(11) Learned counsel for the petitioner submitted that there was prima facie unreasonable delay. In the counter affidavit of Mr. C. P. Tripathi, Deputy Secretary (Home), Delhi Administration filed on behalf of the Delhi Administration, no explanation whatsoever has been given regarding the delay in making the detention order. In reply to ground No. 3 all what was stated was that there was no undue delay in passing the detention order. Thus there was no explanation for this delay. Leraned counsel appearing for the Delhi Administration contended that the Administration was not expected to render any explanation in regard to delay in making the order of detention and arresting the petitioner because no such complaint had been made in the petition.

(12) The contention of the learned counsel for the Administration is not correct. In para 2 of the grounds contained in the petition it has been averred that the impugned order had been passed and was based upon the alleged activities and material which were neither proximate nor relevant but were stale, vague and irrelevant, non-existing and having no rational probity. The petitioner thus had raised the plea that grounds on which the detention order was based were State and there was no proximity between the alleged activities and the order of detention. In any case when the Administration has been called upon to answer the rule issued on a petition for a writ of habeas corpus, It was under an obligation in making its return of the rule and to place all the relevant facts before the court and if there was any delay in making the order of detention or arresting the detenue, which is prima facie unreasonable. it must e,ive reasons explaining the delay.

(13) During the course of the arguments, learned counsel for the Administration explained that the proposal for detention of the petitioner was received on January 15, 1985. The meeting of the screening committee was fixed for February 6. 1985 but this case could not be taken up in the said meeting and it was ultimately considered in the screening committee in its meeting held on March 14, 1985. The draft minutes were prepared and thereafter fair minutes were prepared and signed by all the members of the committee on March 25, 1985. The work of preparing draft grounds of detention and detention order in respect of petitioner was taken in hand and finally completed on July 24, 1985 and put up on July 25, 1985 to the Deputy Secretary (Home) after routing through the Law Department etc. and the matter was put up to the detaining authority on August 10, 1985 aid the orders were made on August'16, 1985.

(14) From the above narration of the facts it is clear that there was a delay from January 15, 1985 to March 14, 1985 when the matter was considered by the screening committee. There was again a delay between March 25, 1985 when the minutes were ready and duly signed and July 24, 1985 when the work of preparing draft grounds of detention and detention orders were taken in hand and completed. So far as the first delay is concerned, it was explained that the case could not be taken up by the screening committee because of the decision of this court in Harish Khera's case quashing his detention order on the ground that the detaining authority had failed to communicate the order of detention to the Central Government within 10 days, as required under Section 3(2) of the Act. In view of that judgment various detention orders had to be revoked and fresh orders had to be passed and therefore the department remained busy. This explanation, in my view, is satisfactory. This delay stands explained.

(15) So far as the delay after March 25, 1985, when the minutes of the screening committee were ready, is concerned, the explanation is that draft grounds of detention in cases of Shiv Raj Dhawan, Pradeep Kumar Chadha, Ajit Singh, Hari Singh etc. which had been approved by the screening committee earlier were prepared and put up for placing before the Administrator ]on March 28, 1985. Till April 9, 1985 orders in cases of Neeraj Malik, Narinder Kumar, (Pradeep Kumar Chadha, Ajit Singh, Shiv Raj Dhawan and Narender Kumar were issued. Thereafter till April 51, 1985 the officials of Cofeposa Cell remained busy in the High Court for 14 days in connection with defending the writ petitions field by different detenus. Thereafter the Custom Deptt. was asked to furnish the latest information with regard to the prosecution and adjudication. Thereafter the work relating to preparation of grounds of detention. translation etc. in respect of Kewal Kumar and Tirlok Singh was taken in hand and finally put up on May 16, 1985. Thereafter the staff of the Cofeposa Cell was busy in this court in connection with various writ petitions till May 31, 1985. Till June Ii, 1985 detention orders in cases of Mahender Gurung, Tari Safki Gurung, Pema Gurung. Raj Kaji Singh were passed after completing the formalities of draft detention orders and grounds of detention and translation thereof in different languages known to different detenus. There after the draft detention grounds of Kuldeep Singh, Narender Kumar, Mahinder Kumar, Ravinder Singh and Gurcharan Singh. running into hundreds of pages were prepared and they were finally put up on July 18, 1985 for placing before the Administration. In other words, the delay, according to the learned counsel for the Administration, was caused because the staff of the Cofeposa Cell was busy in preparing draft grounds of detention etc. in respect of other detenus and in defending the various writ petitions in this Court. This explanation, in my view, is not satisfactory. The work in connection of various detentions and court cases was the usual work of the department. No suggestion even has been made that there was an extraordinary rush of detention cases in those days because of any special circumstances.

(16) Learned counsel for the Administration fairly placed the relevant file before me. The file contains a note regarding the signing of the minutes by all the members on March 25, 1985. Thereafter next noting is dated May 9, 1985 staling six other cases are under preparation, latest position be called for. Thereafter there is a note under the date June 18, 1986 staling that other cases were under preparation. After 18th June the noting is dated July 26, 1985. There is nothing on the file to show that the officials of the Cofeposa Cell were were busy between March 26, 1985 to May 9, 1985 and thereafter. In spite of the fact that the arguments continued for 314 days the Administration did not care to file any affidavit of any responsible officer in support of the contention that the officials of the Cofeposa Cell were busy all these four months.

(17) Learned counsel for the Administration had relied on a decision of the Division Bench of this Court in In that case the minutes of the screening committee were signed by the members on January 21, 1985 and the detention order was made on March '21, 1985 i.e. after two months. It was explained that the delay was because of the decision of this Court in Harish Khera's case. This explanation was accepted as satisfactory. This judgment, in my view, does not help the respondent at all. I have taken the effect of this decision into consideration regarding the delay between January 15, 1985 when the proposal was received and March 14, 1985 when the screening committee considered the proposal. The effect of Harish Khera's case had come to an end by that time. "The delay after the minutes were ready, has not been duly explained. The explanation that the officials of the department were busy in preparing the grounds of detention etc. of other detenus and in' defending the writ petitions, in my view, was not satisfactory.

(18) As noticed above the petitioner was arrested under Section 104 of the Customs Act on August 21, 1984. Proposal for detention, however, was moved only on January 14, 1985. No affidavit has been filed explaining this delay. However during the course of the arguments it was explained that the proposal was mooted on October 10, 1984. Fair copy was typed on 6-11-84. Some query was made on 7-11-84. The matter was discussed on 12-11-84. Proposal was then sent to Headquarter on 28-11-84 and lair proposal was typed on 9-1-85.

(19) The above explanation showed that it took 25 days in typing the fair proposal at the first instance and then it took 4G days in typing the final fair proposal. This delay was uncondonable. The delay having not been satisfactorily explained the detention order was liable to be quashed as there was no proximity between the prejudicial activity and the detention order.

(20) There is another infirmity. The grounds of retention and the copies of documents were supplied to the petitioner on October 10, 1985. He made a representation dated October 30, 1985, to the Deputy Secretary (Home) requesting him to supply the copies of various documents mentioned therein to enable him to prepare and file his representation, as the documents already supplied were not legible. None of the documents demanded, however, was admittedly supplied. I have gone through the original copies supplied to the petitioner. Admittedly some of the pages of those documents were not legible. These included part statement of Sunil Kumar Sood which was the basis of the detention. This amounted to the denial of the right of having communicated the grounds and of having afforded the opportunity of making a representation against the order.

(21) Learned counsel for the Administration contended that the petitioner had acknowledged the receipt of the grounds and copies of documents and had also acknowledged in writing that the same were legible. That. I think, is of no consequence. When he made a representation that certain documents were not legible, it was the duty of the Administration to verify the correctness of the averments made. Part statement of Sunil Kumar Sood was admittedly not legible.

(22) In the view I have taken above it is not necessary to go into other contentions raised on behalf of the petitioner.

(23) For the reasons aforesaid the petition succeeds. The rule is accordingly made absolute. The petitioner is directed to be released forthwith from his detention unless required to be detained under any other valid order of a competent court or authority.