Sanjeev Mody vs Union Of India And Ors.
1987 Latest Caselaw 410 Del

JUDGMENT

Malik Sharief-Ud-Din, J.

(1) The petitioner has challenged his detention order dated 30th of March 1987 passed by Mr. Tarun Roy, Joint Secretary to the Govt. of India under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, as amended. This detention order was made with a view to preventing the detenu Sanjeev Mody from smuggling goods and is based on the incident dated 22-2-1987 when the petitioner was allegedly brought back from the aircraft of the British Airliner and was found carrying Indian currency amounting to Rs. 21,40,000, which he was allegedly trying to smuggle out of the country.

(2) The detention order is being challenged on a variety of grounds. Mr. Mittal, arguing the case of the petitioner urged that there has been unexplained and avoidable delay in the consideration of the representation of the petitioner, which the petitioner had made on 17th of July, 1987 against the order of detention. According to him the representation was considered and rejected only on 19th of August, 1987 though intimation about it was conveyed to the petitioner on 26th of August, 1987. The other contention of Mr. Mittal is that some material and relevant document like flight coupon has been suppressed from the detaining authority thereby vitiated his satisfaction. Mr. Mittal's contention seems to be that flight coupons were before the detaining authority. He could have compared it with the entries on the counter-foil of the ticket and could have noticed the discrepancies therein which might have affected the satisfaction of the detaining authority this way or the other. Third contention urged by Mr. Mittal is that even though the grounds of detention show that the detaining authority has taken into account the flight manifest air ticket, flight coupon, bail application, medical report of the petitioner and the baggage claim tag. These documents were not supplied to him despite a representation in this regard and they were supplied to him only when on 21st of August, after his representation was dismissed and rejected on 19th of August, 1987.

(3) Let me, therefore, take the first contention of Mr. Mittal for consideration. The admitted position is that the petitioner drafted the representation on 17th July, 1987 which was delivered to the Superintendent of Jail on 20-7-1987. It was only rejected on 19th of August, 1987 though the intimation about its rejection was given to the detenu on 26th of August, 1987. Now before adverting to the explanation tendered by the respondents in their counter affidavit I would like to make it clear that the admitted legal position is that the representation of the detenu must be considered without unnecessary delay. The Supreme Court says that it has to be so as the liberty of a citizen is at stake and no allowance can be granted to the detaining authority for being careless or showing any indifference to the consideration of the representation of the detenu. The government therefore, is constitutionally bound to consider the repre- sentation as expeditiously as possible. The legal position further is that there can be no hard and fast rules as to what constitutes delay. This aspect has to be examined and adjudged in the light of the facts of each particular case.

(4) With this in view let me refer to the stand of the respondents as taken by them in this regard in their counter-affidavit. The respondents have averred : "I state that the petitioner's representation dated 17th of July, 1987 was handed over to the Superintendent of Jain on 20th of July, 1987, and forwarded to the Cofeposa section on 23-7-1987. This was received by the Cofeposa Section on 24th of July, 1987. On the same day the petition was sent to the Collector of Customs for his comments. This was done because the petitioner had made various allegations against the officials of the Customs Department before whom his statement under section 108 of the Customs Act was recorded and also the seizure affected. The comments of the Collector were forwarded on 14th of August, 1987 and 15th and 16th of August, 1987 were holidays and the petitioner's representation was put up before me Along with the comments thereafter and after examining the same I rejected it on 19th August, 1987."

This is the sum total of the reply by way of explaining as to how the representation of the detenu was dealt with by the detaining authority. It would appear that this was for the first time before the detaining authority on 19th of August, 1987, when it was rejected. There is no indication in the affidavit that earlier on 19th of August, 1987 the detaining authority had at any stage dealt with the representation. It, however, seems that it was dealt with in the office of the detaining authority by persons who had no power to dealt with the representation, a matter essentially meant for the consideration of the detaining authority. That apart the representation was admittedly handed over to the Superintendent of Jail on 20th of July, 1987 and there is a delay of 3 days in passing it on to the detaining authority leaving the court to guess in the absence of explanation as to why these three days were wasted. The court is told that it was received in the Cofeposa section on 24th of July, 1987 and was sent to the Collector of Customs for comments and received back almost after 21 days. It is not as if the detaining authority is not aware that the representation of the detenu is to be considered without any waste of time. In that view of the matter even if the comments of the Collector were necessary the detaining authority ought to have apprised him of the urgency of the matter and asked him to submit the comments within reasonable time. Obviously it appears that there was a total insensitivity and extreme indifference towards the representation and Collector of Customs was left to send his comments if and when he considered it necessary. Thus the things do not stop there. Having received the comments on 14th of August the placing of this representation before the detaining authority is further deferred till 19th of August, 1987. Even after granting allowance for two holidays, 15th and 16th, there is no explanation as to why another two days were wasted before the representation was submitted to the detaining authority for its consideration. The representation even though rejected on 19th of August, 1987, the intimation about its rejection was conveyed to the detenu on 26th August 1987. This shows that there has been total carelessness and indifference in consideration of the representation and further more total indifference towards the detenu by not caring to intimate him about its rejection soon thereafter, judging in the light of the peculiar facts of this case, I am of the view that this delay in the consideration of the representation of the detenu is unpardonable. On this ground alone in my view the detention stands vitiated and the petition has to be allowed. Since I am allowing the petition on this ground alone, there is no need for me to go into the merits or otherwise of the other contentions raised by Mr. Mittal. The petition is allowed and the detention order is quashed. The petitioner shall be set at liberty Along with unless required in some other case.