Naresh Chand Jain vs M.V.N. Rao, Additional Secretary
1988 Latest Caselaw 324 Del

JUDGMENT

H.C. Goel, J.

(1) By this writ petition under

(2) The order of detention was served on the petitioner as late as on November 10, 1987. During the in between period of about three years the petitioner had obtained orders of stay from executing the order of detention on two occasions from two different High Courts. On February 17, 1984 the petitioner had obtained an order staying the operation of the order of detention for a period of three month from the Calcutta High Court That petition was dismissed as withdrawn on February 26, 1985. There after the Jammu & Kashmir High Court by its order dated May 8, 1985 had stayed the arrest/detention of the petitioner on a petition filed by him before that Court. That ex parte stay order was later vacated by the Jammu & Kashmir High Court on September 16, 1985. Thereafter the petitioner remained absconded. He again filed a writ petition before this Court praying for quashing of the order of detention on the ground that after the petitioner was ordered to be released on bail by this Court the petitioner had been meticulously complying with the conditions of the bail and further that the purpose of his detention order has been served in as much as more than three years bad already elapsed since September 9, 1983 on which the search of the petitioner's premises was made and on which date the contrabands was alleged to have been found from the house of the petitioner. This petition was dismissed by a Division Bench of this Court by its order dated November 7, 1987. The petitioner again managed to evade his arrest pursuant to the order of detention. He was ultimately detained with effect from November 10, 1987. The petitioner again filed a writ petition under Article 226 of the Constitution before this Court. That was dismissed as withdrawn on May 10, 1988. 'It is after that that the present petition was filed by the petitioner.

(3) MR.MADAN Lokur, learned counsel for the respondents, has, however, stated that as the respondent bad not taken any ground in the return as filed by it such as that the present petition is barred on the principles of res judicata or being an abuse of the process of the Court, he would not like to urge any such ground and that the petition may be considered and disposed of on its own merits.

(4) Now, as regards the present petition a number of grounds have been taken in the petition for challenging the order of detention and the continued detention of the petitioner. However, in my opinion, this petition is bound to succeed on the ground that there has been an inordinate unexplained delay on the part of the respondent No. I in dealing with and disposing of the representation dated January 16, 1988 as submitted by the .petitioner to the detaining authority, respondent. I need hardly say that it is the Settled law that a representation made by a detenu to the detaining authority has got to be dealt with by the detaining authority most expeditiously and the delay, if any, in the disposal thereof has to be satisfactorily explained by the detaining authority by placing the relevant material before the Court. In his representation, copy of Which is Annexure D to the petition, the petitioner had asked for information as to dates of some acts done and orders as passed in the matter of the detention of the petitioner and for supply of copies of 19 documents mentioned at item No. A to S under the heading 'Documents' in the representation. A part of the information as asked for by the petitioner was supplied to the petitioner by the communication dated February Ii, 1988 by respondent No. in which was served on the petitioner on February 17, 1988 and the copies of the asked for documents were i also supplied to the petitioner only on February 17, 1988 i.e. after over a month of the submission of the representation by the petitioner. One Mr.S.K.Chowdhry, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, has filed a counter-affidavit to the petition on behalf of the respondent. In para 5 of his affidavit it is stated that it is denied that there has been a delay in supplying the additional documents. Mr. Chowdhry in his affidavit then detailed the dates and the action taken on those dates in the matter of dealing with the representation of the petitioner which is reproduced below:- "16-1-88Representation sent to the Detaining Authority. 20-1-88 The said representation was received by the Ministry. 21-1-88 The representation was placed before the Detaining Authority who required the comments of the enforcement Directorate to consider the said representation. A letter in this regard was sent to the Enforcement Directorate. 25-1-88 Letter from the. Detaining Authority calling for comments was received by the Enforcement Directorate Zonal Office. 27-1-88 The letter was forwarded to the Enforcement Directorate: Zonal Office. 28-1-88 The comments from the Zonal Office were sent to the HQ. 29-1-88 The Hq forwarded the comments to the Ministry of finance and received by the Ministry on the same day. 1-2-88 The Detaining Authority directs the Enforcement Directorate to provide to him a copy of all the documents asked by the detenu, so that the same can be considered by him. The Detaining Authority also directed the D.R.I, to provide the documents available with them and asked by the detenu for his consideration. 4-2-88 The Hq of the enforcement Directorate directs the Zonal office to provide the documents,so that the same can be placed before the Detaining Authority. 8-2-88 The Zonal Office.,sends the documents to the Hq to be forwarded to Ministry. 10-2-88 The Detaining Authority rejected the represeatation of the detenu but directed supply of document. 11-2-88 .The. reply to the representation is sent to the detenu by the Ministry. 15-2-88 The Hq Enforcement Directorate advised the Zonal Office to supply documents to detenu. 17-2-88 The documents were supplied to the detenu after translation. The detenu acknowledged receipt and legibility of the same. As such the time taken in supplying him these additional documents does not render the detention bad in law and does not violate Article 22 of the Constitution of India."

(5) Mr. Lokur, learned counsel for the respondents submitted that the detaining authority had to call for the comments of the sponsoring authority i.e.the Enforcement Directorate before passing orders on the representation of the petitioner and that the steps taken by him in passing final orders as explained in the said affidavit would show that there was no undue delay on the part of the detaining authority in dealing With and disposing of the representation of the petitioncr.It was submitted that the comments were required to be obtained to find out if the detaining authority was to claim privilege on any documents which was asked by the -petitioner to be supplied to him. According to Mr. Lokur some of the documents that were asked for by the petitioner were not available with the Enforcement Directorate and therefore, the Enforcement Directorate had in turn asked for the supply of those documents to it by the office of the Directorate of Revenue Intelligence on February 1, 1988. It was submitted by Mr. Lokur that the detaining.authority, however, later found that the documents which were not made available to the Enforcement Directorate and which bad been sent for by the Enforcement Directorate from the Directorate of Revenue Intelligence, were already available with the Ministry of Finance, therefore, there was no question of supplying those documents by the Directorate of Revenue Intelligence to the Enforcement Directorate or to the detaining authority, but that the requisition for those documents was made by the enforcement Directorate under a bona fide belief. A scrutiny of the steps taken by and on behalf of the detaining authority during the period from January 16, 1988 to February 17, 1988 as reproduced above clearly shows that the representation of the petitioner was not dealt with expedition as it ought to have been so done and the procedure adopted by the detaining authority, as also by the enforcement Directorate for disposing of the representation was faulty and dilatory. The law being so clear in the matter of disposal of such representations it is expected that .the, detaining authority as also the sponsoring authority such as the .Enforcement Directorate which deals with such cases so frequently should be aware of the legal position that Such representations have to be dealt with most expeditiously and without any loss of time. They are further expected to know the settled position of law that copies of the relevant document as asked for by a detenu have to be supplied to him except on the ground of claiming privilege on any particular document or on some such like ground. It is thus obvious that when a request is made a detent for supply of copies of the relevant documents the detaining authority, as also the sponsoring authority should straightaway take immediate steps to obtain the documents concerned, as also to get copies thereof made so that the authority to whom such a representation is made and has to pass the orders thereon is able to supply copies of those documents to the detenu forthwith. In the present case it is obvious that the detaining authority did not ask the sponsoring authority either to supply the documents in question or the copies thereof to him up to February 1, 1988. The detaining authority in the first instance asked the sponsoring authority only to forward its comments on the representation of the petitioner without, at the same time directing the sponsoring authority i.e. the Enforcement Directorate to supply the documents as also copies thereof to him. The Enforcement Directorate which was the sponsoring authority also did not think it necessary on its own to get the copies of the documents prepared and to forward the original documents and/or copies .thereof to the detaining authority and it took as many as eight days in forwarding their comments to the Ministry of Finance which in turn sent them on to the detaining authority some time on or about January 31, 1988. Another thing to note is that the detaining authority had rejected the representation of the detenu on February 10, 1988 and bad also directed the supply of documents to the detenu on that very day. Even then the documents were not supplied to the petitioner turn six further days and were supplied to him only on February 17, 1988, of course, after getting: them translated in Hindi. In between time was taken by the detaining authority as the detaining authority directed the Directorate of Enforcement and the Headquarters Enforcement Directorate in turn advised its zonal office to supply the documents to the detenu. So far as the question of preparation of the transliteration of the documents is concerned, that should also be done simultaneously Along with the preparation of the copies of the documents as the detaining authority as also the Enforcement Directorate are expected to know that copies to the detenu had to be supplied in the language known to him and they should not do these things, step by step, one after the other. The decision of the Supreme Court in the case of Harish Pahwa v. State of Uttar Pradesh and others, may be read with advantage in this connection. In that case there was no explanation for not taking action by the concerned authorities on three dates namely June 4, June 5 and June 25, 1980 and further there was no explanation as to what consideration was given by the Government to the representation from June 13 , 1980 to June 16 , In that case also comments were called for from the Customs authorities with regard to the allegations made in the representation and the representation was also referred to its law Department for its opinion. The Supreme Court observed that calling comments from other departments, seeking the opinion of secretary after secretary and allowing the representation to lie without being attended to was not the type of action which the State was expected. to take in a matter of such vital importance. The aforesaid unexplained delay was considered to be fatal to the detention of the detenu and his. detention was accordingly quashed.The ratio of this judgment supports my aforesaid view. Inconclusion, in view of what has been said above I accept the writ petition and quash the order of detention and the continued detention of the petitioner. The petitioner be set at liberty forthwith if not required to be detained under any other lawful order.