Kanhiya Singh Khanna vs Union Of India And Anr.
1987 Latest Caselaw 407 Del

JUDGMENT

M.K. Chawla, J.

(1) In this petition the only challenge to the order of detention dated 24th March, 1987 under Section 3(1) of the Cofeposa Act (For short called the 'Act') is that the detaining authority has not complied with the mandatory provisions of Section 3(3) of the Act. This provision lays down : "FOR the purposes of clause (5) of Article 22 of the Constitution of India, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made, shall be made as soon as may be after the detention, but ordinarily not later than 5 days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention."

(2) The submission is that the order of detention Along with the grounds of detention were served on the petitioner after the expiry of 10 days of his arrest for which no valid reasons have been given.

(3) To appreciate this proposition one has first to know the background. The thumb-nail of the case is that on 4th September, 1986, at about 11.00 p. m., the petitioner arrived at Sahar International Airport, Bombay from Hong Kong by Cathe Pacific Flight No. Cx 51. He got himself cleared through the red channel. After paying customs duty of Rs. 9,520.00 when he was about to leave the airport, the officers of the Customs Department approached him for his thorough search. The metal detector gave a signal of some metal being concealed on his person. On enquiry, the petitioner admitted that he had concealed three packets of gold containing 8 gold bars of 10 tolas each in his. rectum. The gold recovered was assessed at Rs. 2,08.014.40 at local market value. After completing the formalities at the spot, the accused was produced before the Matropolitan Magistrate, Bombay. He Along with other co-accused was remanded to judicial custody. On 17th September, 1986, the petitioner, however, succeeded in getting himself released on bail on his furnishing a personal bond in the sum of rupees one lakh with one surety in the like amount and on the condition that he shall report once a month to the Collector of Customs, New Delhi.

(4) On 26th of February, 1987, the petitioner was served with a Memorandum issued by the Assistant Collector (Customs), Investigating Cell, Bombay to show cause as to why the goods be not seized and penalty imposed. The petitioner has since submitted the reply to the show cause notice. In the meantime, the .petitioner learnt that an order of his detention has been passed and is pending execution at Police Station Patel Nagar, New Delhi. On coming to know of this development, he immediately surrendered himself before the Station House Officer, Police Station Patel Nagar, New Delhi on 28th April, 1986 and lodged in Central Jail Tihar.

(5) The grievance of the petitioner is that till the filing of the present petition on 8th May 1987 he has not been served with the grounds of detention within the statutory period as laid down in Section 3(3) of the Act. His detention, thus, be held to be bad.

(6) The stand of the respondents is that even though the petitioner surrendered before the Station House Officer, Police Station Patel Nagar, and was sent to Central Jail, Tihar, but the Deputy Commissioner of Police (Hqrs) intimated the Ministry of Finance only on the evening of 6th May, 1987. A copy of the same letter was also received by the Collector of Customs, New Delhi on 7th May, 1987. The grounds of detention and the documents relied upon, were immediately served on the petitioner on that very day. The intimation of the service of the order of detention was sent to the detaining authority on the next day. The detaining authority has given valid reasons of the serving of the order of detention beyond the period of five days but within 15 days of the date of detention. The reasons were intimated to the detenu by Memorandum dated 11th May, 1987. In view of these circumstances, the submission of the learned counsel for the respondent is that the provisions of Section 3(3) of the Act have been duly complied with and the detention on that score cannot be quashed. Is this explanation a valid and satisfactory one, is the question that requires going into.

(7) At the outset, it may bestated that a bare reading of the provisions of Section 3(3) of the Act shows that it is obligatory on the part of the detaining officer to communicate to the detenu the grounds on which the order of detention has been made, promptly. This has to be done as soon as possible and ordinarily not later than five days. However, the detaining authority is permitted to exceed this limitation of five days in exceptional circumstances and valid reasons to be recorded in writing, but under no circumstances later than 15 days. This time limit has been fixed so that the authorities concerned may not play with the liberty of an individual.

(8) In the case in hand, admittedly, there is a delay of about 10 days. There is no record evidencing any reason for this long delay. In the counter, Shri S. K. Chaudhary, Under Secretary to the Government of India, Ministry of Finance, has tried to explain the exceptional circumstances which resulted in the delayed action on their part. He has succeeded to some extent insofar as his Ministry is concerned, inasmuch as immediately on the receipt of the information from the police on 6th May, 1987, the order, necessary formalities were completed on the next day. His affidavit, however, is quite silent on the delay which has occasioned on the part of the police authorities in sending the communication to the detaining authority. At least an affidavit from the Station House Officer or the Officers of the Police Station, responsible for keeping back this important piece of information and explaining the undue delay should have been filed. The Court is infact kept in dark, as to what transpired from the date of arrest of the petitioner i.e. 28th April, 1987 to the sending of the communication to the concerned authorities on 5th May, 1987. Learned counsel for the respondent points out from the Department file that the detaining authority expressed shock over this lapse and asked for the explanation of the officer concerned in not sending the information immediately, but to their utter surprise, this letter has neither been acknowledged nor any reply received. In my view, there is no worthwhile explanation what to talk of exceptional circumstances for the delay which has occasioned at the hand of the police authorities. A very casual approach and carelessness has been shown by the police authorities in dealing with a sensitive matter of detention under Cofeposa Act. There is thus, a flagrant violation of the mandatory provisions of Section 3(3) of the Act.

(9) Even on the alleged prompt action of the detaining authority, I have my reservations. They have tried to be over-smart. under clause (b) of Section 8 of the Act, the appropriate Government is duty bound to make a reference to the Advisory Board within five weeks from the date of detention of a person under a detention order, so as to enable the Advisory Board to make the proper report. This provision can only be resorted to as and when the person concerned has been detained under Section 3(1) of the Act. By order dated 1st of May, 1987, the detaining authority forwarded the cases of five persons, including the petitioner, to the Advisory Board. The papers consisted of one set each of the orders of detention and the grounds of detention of all the persons named in the said leter, detained under Section 3(1) of the act. By this time, the petitioner has neither been served with the order of detention or the grounds of detention nor made aware that his case has been forwared to the Advisory Board or that its meeting is fixed for 14th May, 1987. The language of this letter shows that the detaining authority has come to know of the petitioner's arrest and detention, otherwise there was no question of his case being sent to the Advisory Board, for opinion. Inspite of this they either did more in the matter with urgency, which it deserved or intentionally deprived him of the opportunity to make an effective representation to the detaining authority, the Advisory Board and the Central Government. This fact by itself, is fatal to the impugned order of detention.

(10) The courts time out of number have the occasion to emphasize and remind the detaining authorities of their duties which are imposed by the various Sections of the Act, to act swiftly at all stages and not to lightly interfere or curtail the liberties of the individuals guaranteed under the Constitution of India. Once the rule is issued, it is the bounden duty of the Court to satisfy itself that all the safeguards by the law have been scrupulously observed and the citizens is not deprived of his personal liberty, otherwise than in accordance with law. The burden of showing that the detention is in accordance with the procedure established by law has always been placed by the Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with the procedure established by law. In this case, this precaution has not been taken by the respondents inasmuch as there is. an inordinate delay in the service of the grounds of detention on the petitioner which is against the mandatory provision of the Act. In fact, there is no acceptable or satisfactory explanation of 10 days' delay from the date of the detention till the detenu was served with the grounds of detention. It is not permissible, in matters relating to personal liberty and freedom of a citizen to take either a liberal or a generous view of the lapse on the part of the officers. In such matters it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provision of law. This, by itself, is sufficient for this Court to hold that the provisions of Section 3(3) of the act have not been complied with the respondents and on that ground alone, the order of detention is liable to be quashed.

(11) In the result, the petition succeeds and the order of detention is quashed. Petitioner be released forewith, if not required to be detained by the order of a Competent Court of Authority.