Basudev Banik vs Union Of India And Ors.
1988 Latest Caselaw 385 Del

JUDGMENT

P.K. Bahri, J.

(1) The petitioner, who has been detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for shore 'COFE- Posa Act') vide order dated May 23, 1988. passed by respondent No. 2 with a view to prevent him from engaging in transporting smuggled golds, has filed the present petition under Article 226 of the Constitution of India seeking quotient of the said order.

(2) Facts leading to the passing of the order, in brief, are that the Directorate of Intelligence' Officers at Calcutta collected some secret information that one Gopal Banik of Calcutta would be receiving smuggled gold on March 26, 1988, at 4 P.M. near Manichktalla Crossing on Acharyya Prafulla Chandra Road, Calcutta and thus, a raiding party was organized and the petitioner and Gopal Banik were apprehended while the petitioner had passed on packet containing three pieces of gold bars of foreign origin weighing 10 tolas each, to Gopal Bank. After recording the statement of the petitioner under Section. 108 of the Customs Act, 1962, the sponsoring authority put up the case for passing, the detention order. 315

(3) One of the grounds taken in the petition is that the petitioner had made representation to the detaining authority and also to the Central Government against the detention order but the same has not been dealt with expeditiously and that till the filing of the petition no order has been communicated to the detenu regarding the fate of the representations.

(4) In the counter-affidavit filed on behalf of respondents I and 2 by Shri S. K. Chowdhry, Under Secretary in the Ministry of Finance, Department of Revenue, it has been mentioned that the representation of the petitioner dated August 22, 1988, was received by the Department on August 29, 1988 and the same was placed before the Joint Secretary on August 30, 1988, who required the sponsoring authority to give parawise comments and the representation was sent to the sponsoring authority on August 30, 1988, but the parawise comments were not received till September 22, 1988 and thus, a reminder was issued and thereafter, the sponsoring authority had sent the parawise comments vide their letter dated September 30, 1988, which was received in the Department on October 6, 1988 and thereafter the matter was put up before the detaining authority and the detaining authority rejected the representation on October 7. 1988, and as the same representation was addressed to the Central Government, the file was put up before the Minister of State for Revenue and who proposed the rejection of the representation on October 10, 1988 while October 8 and October 9, 1988, were holidays and on October 12, 1988, there presentation was rejected by the Finance Minister and the memorandum was issued on that date. In the whole of the affidavit it is not at all mentioned as to why the sponsoring authority had taken about 36 days in furnishing the opinion. Even if we exclude about 10 days in sending the letter asking for the comments and in receiving the comments by post, even then there is undue delay made by the sponsoring authority in sending the comments as the sponsoring authority took about 26 days in formulating the comments. It is true that delay by itself is not sufficient to quash the detention order but unless and until the delay is explained the court is left with no option but to hold that there has occurred undue delay in considering the representation which has the effect of vitiating the detention order. In criminal writ No. 456/88, Mohd. Shahid v. Union of India & Others, decided on November- 28, 1988(1) I have had the occasion to deal with similar matter. There also the sponsoring authority had taken lot of time in furnishing the comments and no explanation was furnished as to why the delay had occurred at the level of the sponsoring authority in furnishing the comments and it was held that such delay, if not explained would have the effect of vitiating the detention order. I have placed reliance on Saleh Mohammed v. Union of India & Others, where the representation of the detenu remained unattended in the office of the Superintendent (Jail) for over three weeks and it was held that there was inordinate and unreasonable delay in considering the representation of the detenu which amounted to violation of the safeguard provided in Article 22(5) of the Constitution of India. Reference was also made to Harish pahwa v. State of U.P. & Others, , which has laid down that the representation made by the detenu has to be considered without any delay. Counsel for the respondent has, however, brought to my notice Raisuddin @ Babu Tamchi v. The Stale of Uttar Pradesh & Another, . I have gone through this judgment and find that there was no occasion for the Supreme Court to go into this question as to whether the delay if is made at the level of the sponsoring authority is to be explained or not, before the detention order could be" upheld. The only question which was considered by the Supreme Court in this judgment was with regard to the delay, if any, made on the part of the detaining authority and it was held by the Supreme Court that the question whether the representation submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical coining of dates, but by a careful scrutiny of the facts and circumstances of each case. If on such examination, it is found that there was any remissness, indifference or avoidable delay on the part of the detaining-authority State Government in dealing with the representation, it will undoubtedly be treated as a factor vitiating the continued detention of the detenu. On the other hand, if the Court is satisfied that the delay was occasioned not by any lack of diligence or promptness of attention on the part of the party concerned, but due to unavoidable circumstances or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention. In the cited case, it was found that the delay stood duly explained on the part of the detaining authority and thus, the order of detention was not quashed. This judgment is not applicable to the facts of the present case. It is really not possible to hold that if undue and unexplained delay occurs in furnishing the comments by the sponsoring authority, still the court has to uphold the detention order. After all a representation made by the detenu against the order of detention has to be dealt with expeditiously and if any delay occurs which is not explained in dealing with the representation, the order of detention has to be quashed. The sponsoring authority has to be careful in such matters as the detention order is made on the material supplied by the sponsoring authority and once a representation comes against the detention order it is the duty of the sponsoring authority also to see that if the comments are called on such a representation from the sponsoring authority, the sponsoring authority must furnish the comments with due promptitude. One can understand if some reasonable time is taken in collecting some material for furnishing the comments but it must be shown to the court in shape of affidavit as to why the sponsoring authority has taken so much time if the delay occurs in furnishing the comments. In absence of any material, it would G not be possible for the court to hold that the delay which has occurred in furnishing the comments by the sponsoring authority was justified. It is not necessary to deal with other points raised in the writ petition because the impugned order is liable to be quashed on this ground alone that there has occurred undue delay in considering the representation of the detenu inasmuch as no explanation whatsoever has been given for the delay caused by the sponsoring authority in furnishing the comments on the representation.

(5) I allow the writ petition, quash the impugned Older and direct that the petitioner be released immediately if not required to be defamed under any other law.