B.S. Pujji vs Union Of India And Ors.
1987 Latest Caselaw 344 Del

JUDGMENT

Malik Sharief-Ud-Din, J.

(1) (ORAL)IN pursuance of a detention order dated 30th March 1987, the petitioner was detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended). The detention order was passed with a view to preventing the petitioner from abetting the smuggling of goods. It was passed by Shri Tarun Roy, Joint Secretary to the Government of India.

(2) Briefly stating the facts are that on 22nd February 1987, one Sanjeev Mody, holder of India Passport No. W-966202 issued at Delhi on 6th February 1985, was called back by the Customs Officer from the aircraft. He was going to Dubai on British Airways flight No. BA-146. On checking of his baggage, Rs. 21,40,000.00 (Indian currency) were recovered from one of his suit-cases. The money was seized under section 10 of the Customs Act on the plea that this currency was being exported out of India in violation of the provisions of the Customs Act and Foreign Exchange Regulation Act, Sanjeev Mody is supposed to have given a detailed statement before the concerned authorities wherein the present petitioner was nominated as the person who was to deliver this baggage containing the aforesaid Indian currency to him in the aircraft. He had further stated that the petitioner had told him that he would meet him in the aircraft. Sanjeev Mody has given further details about the smuggling of the Indian currency and the manner of its use. I need not give the entire details which are contained in the grounds of detention. In the ultimate analysis the detaining authority on the basis of the material placed before it was satisfied that the petitioner was involved in abetting the smuggling of goods. On the basis of this subjective satisfaction of the detaining authority a detention order was passed.

(3) The petitioner along with Sanjeev Mody was arrested on 22nd February 1987. They were produced, before the Magistrate on 23rd February 1987, and their bail application was rejected on the same day. Subsequently, on 24th February, 1987, both of them were released on bail. In pursuance of this detention order dated 30th March 1987, the detenu came to be arrested-on 3rd April, 1987 when he was also delivered the grounds of detention. On 13th April, 1987 the detenu made a detailed representation against his detention to the detaining authority regarding which he received an intimation On 12th May, 1987 that his representation has been considered and rejected. Meanwhile, on 16th April, 1987 the detenu was informed that his case will be forwarded to the Advisory Board. Consequently, the detenu was produced before the Advisory Board on 30th April, 1987 where he moved another representation for consideration of the Advisory Board. The present writ petition was filed on 6th May, 1987.

(4) Before proceeding further I may notice that in the intimation dated 12th May, 1987 the petitioner was informed that they are also sending him copies of certain documents which were, in fact, delivered to the petitioner after hearing the detenu by the Advisory Board on 27th May, 1987.

(5) The petitioner has attacked the detention order on a variety of grounds. Mr. Harjinder Singh while arguing the petitioner's case urged that the representation dated 13th April, 1987 has not been placed before the Advisory Board and thus his right under Article 22(5) has been violated. He has further contended that the detaining authority has failed to consider his representation before his case was forwarded to the Advisory Board for its opinion. Mr. Harjinder Singh next urged that there has been an unexplained and inordinate delay in considering his representation by the detaining authority and on that count the detention order stands vitiated. He has also contended that he has been deprived of making an effective and purposeful representation inasmuch as certain documents relied upon and referred to in the grounds of detention were not made available to him for making effective representation at least to the Advisory Board where he had the last opportunity to explain his case and that non-supply of such documents also vitiates the detention order. Mr. Harjinder Singh has also urged that some material documents have been suppressed from the detaining authority which also vitiates the subjective satisfaction of the detaining authority.

(6) I have heard the learned counsel for the parties at great length. I would first like to take up for consideration the contention of Mr. Harjinder Singh that there has been undue and unexplained delay in the consideration of the representation by the detaining authority. The petitioner has made a specific averment in this regard. In ground No. 13 and in the counter-affidavit the respondents have given some details as to how this representation came to be considered and has made reference to certain dates and circumstances to explain that there has been no avoidable delay in considering the representation of the petitioner. The reply is to the following effect :- "THAT the representation dated 13-4-1987 was forwarded by the jail authorities on 14-4-1987 which was received by the Department of Revenue on 16-4-1987 and since 17th, 18th, 19th April, 1987 were government holidays, the representations were received in the Cofeposa unit on 20-4-1987. On 22-4-1987 the representation was sent to the Collectorate of Customs, Delhi for obtaining parawise comments. The comments were received on 5-5-1987. The concerned Officer dealing with the case was on official tour from 3-5-1987 to 11-5-1987 to Madras, where the Advisory Board hearings were being held. However on 8-5-1987 a note incorporating the comments made in the representation and the department's reply thereto were put up by the Under Secretary on 8-5-1987 for consideration, 9th May, and 10th May, 1987 were public holidays. The representation was considered on 11-5-1987 and rejected. Memorandum conveying that the representation has been considered and rejected was issued on 12-5-1987."

(7) There is no dispute on the point of law that it is a constitutional imperative that the representation of the petitioner must be considered with utmost vigilance and promptitude. This is because the liberty of a citizen is at stake. The clear-cut legal position is that the appropriate government is bound to consider the representation as expeditiously as possible as any delay in consideration of the representation would be un-constitutional and irresponsible act. This is so as the Constitution clearly enshrines that the detenu has a right to have his representation considered as soon as possible as his personal liberty is at stake. However, there can be no hard and fast rule as to what would constitute an unnecessary delay. This will have essentially to be judged and it would depend upon the facts and circumstances of such and every case.

(8) Frankly speaking, I am a little surprised at the vague manner in which the non-consideration of the representation with promptitude and vigilance has been tried to be explained. One can understand that the representation was received in the Cofeposa unit on 20-4-1987. But it was for the first time that the representation was sent to the Collectorate of Customs Delhi on 22-4-1987 for obtaining parawise comments, leaving the court to guess what the appropriate authority was doing from 20-4-1987 to 22-4-1987. It is possible that the representation of the petitioner needed comments from the sponsoring authority. I am of the view that even though there can be no serious challenge to the sending of this. representation for comments of the Collectorate of customs, there is an unexplained delay of two days between 20th and 22nd April, 1987. The court is not taken into confidence as to what the appropriate authority was doing during these two days. The court is told that the comments were received on 5th May, 1987 and delay thereafter is sought to be explained on the pretext that the concerned officer was away on tour from 3rd of May to 11th of May, 1987. It is, however, stated that in the absence of the concerned officer suddenly on 8th May, 1987 an Under Secretary was asked to prepare his note and submit the representation for consideration. The court is told that 9th and 10th of May being holidays the representation was actually considered on 11th May, 1987. Having procured the comments of the CoUectorate of Customs by the Sponsoring authority, there is hardly any requirement for any other authority or official in the office of appropriate authority to intervene in the matter since it was essentially a matter for the consideration of the detaining authority. He alone had to apply his mind and pass appropriate orders on the representation of the detenu. This obviously is an explanation which has been put forward for the sake of explanation and is neither factually nor legally valid or plausible. It is obvious that the detaining authority has been indifferent lethargically to the consideration of the representation of the detenu and thereby the safeguards guaranteed to the detenu under Article 22(5) have been violated. It is impossible for the court to grant any allowance to the detaining authority for such indifference, To my mind, therefore, there has been an unexplained delay on the part of the detaining authority in consideration of the petitioner's representation. On this score alone the detention is vitiated.

(9) Having said so there is hardly any need for me to go into the other contentions of the petitioner or make any comments on their merits or otherwise. For the reasons stated above, the petition is allowed. The detention of the petitioner is quashed. He shall be set at liberty forthwith unless wanted in some other case.