Satish Bhardwaj vs Union Of India And Ors.
1988 Latest Caselaw 261 Del

JUDGMENT

Malik Sharief-Ud-Din, J.

(1) The petitioner has challenged the validity of the detention order dated 5th of March, 1988 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) by the Joint Secretary to the Government Mr. K.L. Verma. This order was passed with a view to preventing the detenu from acting in any manner prejudicial to the augmentation of foreign exchange. This in turn was based on an incident dated 8th of January, 1988 when some documents and cash were recovered from the residence of the petitioner pursuant to some information given by one Jamalu-Ud-Din Rao apprehended on 7th January, 1988 by the Rajasthan police in Jaipur. The documents seized from the residence of the petitioner were explained by him in his statement recorded under Section 40 of the Foreign Exchange Regulation Act and it was found on investigation that the petitioner was indulging in what is commonly known as Hawala transactions. On the date when the petitioner was taken into detention, he was in custody.

(2) Mr. Arora, appearing on behalf of the petitioner, has mainly urged two grounds which, according to him, vitiate the order of detention. It is urged that one of the documents relied upon by the detaining authority was an English translation of the statement of Ashok Kumar and that along with the grounds of detention what was delivered to the detenu was a Hindi translation of the statement of Ashok Kumar and half of his statement in English which actually comprised of six pages, out of which only three pages were delivered to the petitioner. The contention is that the document relied upon by the detaining authority was in English and the detenu was entitled to a full copy of the aforesaid statement in English. It is not denied that subsequently the document in English was supplied to the detenu on his asking. I am not in agreement with the contention of Mr. Arora. All that is required is that the material on which the grounds are formulated must also be delivered to the detenu along with the grounds and that too in the language known to the detenu. There is no dispute that the only language known to the detenu is Hindi and a copy of this statement of Ashok Kumar was deli- vered to the detenu in Hindi. One can understand the force in the contention if it was urged by the detenu that the Hindi transcript of the statement of Ashok Kumar was not the correct translation of the English script. In that event what the conclusions could be I need not speculate. In my view, there- fore, as far as this contention of the petitioner is concerned, it is without any force and is unsustainable.

(3) Next Mr. Arora urged that his representation has not been considered by the detaining authority and the Central Government expeditiously and thee is unexplained delay in the consideration of the representation of the detenu by both the authorities, that is to say, the detaining authority and the Central Government. In ground No. 4 of his petition the detenu has clearly stated that he made a representation both to the detaining authority and the Central Government on 30th of March, 1988 and he was communicated the result thereof through the Superintendent Jail on 29th of April, 1988. Mr. Arora urges that the burden is upon the detaining authority and the Central Government to show that his representation was dealt with continuously till its final disposal and the result thereof was communicated to him thereafter without any loss of time.

(4) Before dealing with this contention it is necessary to notice what the respondents has said in their counter affidavit. It may be stated that the counter affidavit has been filed by Shri S.K. Chaudhary, Under Secretary in the Ministry of Finance and in the verification column thereof he has deposed that the replies filed by him are according to the information contained in the official records of the case and believed by him to be true. Mr. Misra, learned counsel for the Central Government and the detaining authority, has taken me through the original record to indicate that there is some clerical mistake because the original record shows that the representation of the detenu was dealt with by the detaining authority on 13th and rejected on the same day, and thereafter the representation was forwarded to the Central Government along with the record and comments to be dealt with by it. I must place on record my disapproval of the irresponsible manner in which affidavits are being filed in the court. This is highly objectionable, particularly when the affidavit is filed by a responsible functionary of the court The reply to ground No. 4 will show as to how the affidavit does not represent the epact position. I have gone through the record and I find that Mr Misra is right that the representation pertaining to the detaining authority was finally considered by the detaining authority on 13th of April, 1988 and was rejected on the same day. 3t was only thereafter that the papers were forwarded to the Central Government for its consideration.

(5) Now to notice the reply to ground No. 4, the respondents have stated that the representation dated 30th of March, 1988 was received in the Cofeposa section on the same day. The detaining authority sought comments from the sponsoring authority and accordingly the representation was sent to the sponsoring authority the same day. Comments from the sponsoring authority were received on 11th April, 1988 and a note incorporating the points raised in the representation was put up to the detaining authority on 12th April, 1988 who considered the same on 13th of April, 1988 and forwarded the file to the Hon'ble Finance Minister through the Minister of State for Revenue. Since the representation was to be considered by the Central Government also, the Minister of State for Revenue perused the file and sent the same to the Finance Minister on 13th of April, 1988. The Finance Minister who was away from the headquarters considered the representation on his return on 25th April, 1988. The file was received on 27th April, 1988 and the memorandum was received on 28th of April, 1988. This is how the delay in this case has been explained.

(6) Before I deal with this point I may make a reference to the decision in the case HarishPahwav. State of U.P., A.I.R. 1981 Supreme Court 112 The ratio of this judgment is that the representations of the detenus must I determined with utmost expedition which, according to the Supreme Court means that the matter must be taken up for consideration as soon as such representation is received and dealt with continuously unless it is absolute necessary to wait for some assistance in connection with it, until a final decision is taken and communicated to the detenu. The Supreme Court has clearly, therefore, laid down the law that no authority concerned with the representation of the detenu can show any indifference towards the representation This is so said because the liberty of a person is at stake and he preventively being detained without a trial. The Supreme Court has found that the representation was not being dealt with continuously till it is finally decided this way or the other. The Supreme Court has also said that the decision must be communicated to the detenu forthwith.

(7) Now dealing with the explanation of the respondents in the light of the observations of the Supreme Court I must at once state that the explanation to me appears to be far from being satistaclory. Mr. Misra has taken me through the record where I find that the decision of seeking comments in fact taken by the detaining authority. This means that having received representation it was immediately submitted for consideration of the detain authority but the detaining authority found it necessary to call for comments before taking a decision thereon. The representation admittedly was sent to the sponsoring authority on the same day and the comments were received 11th April, 1988 Mr. Misra states that 31st March, 1st April, 2nd April and 3rd April were public holidays and there were only 5 working days in between Assuming what Mr. Misra states is correct, as I do not have the calendar of the Central Government before me, there is still 5 days delay which has not been explained at all. Both the detaining authority as well as the sponsoring authority are having their offices in Delhi. The sponsoring authority is really interested party and is very much interested in the detention of the detenu as it is he who sponsors the detention. The detaining authority has, therefore, to be on its guard and when comments are sought from the sponsoring authority, the detaining authority is expected to make sure that the sponsoring authority does not drag on the matter. In any case, there is no explanation for the 5 days delay and nothing is said as to what was being done with the .representation of the detenu.

(8) It is stated that the representation thereafter was submitted to the 'detaining authority on 12th April, 1988 which was considered and rejected on 13th April, 1988. The rejection is not borne out by the affidavit but as stated earlier Mr. Misra has taken me through the record which bears it out that the representation of the detenu was considered and rejected by the detaining authority on 13th of April, 1988. The affidavit says that it was considered and forwarded to the Central Government. It may be that there is some clerical mistake in this regard but when an affidavit is submitted in a court of law the person who submits it is expected to be very careful and before it is sworn in he ought to verify it properly and compare it with the record and make sure that there are no mistakes. In any case, be that what it is, the detaining authority does not state that his decision rejecting the representation was conveyed by him to the detenu.

(9) Admittedly, the representation of the detenu was addressed to the detaining authority as also to the Central Government and, admittedly, two copies thereof were received in the concerned secretariat of the Central Government. In normal course when the detaining authority received the representation addressed to him as also to the Central Government, a copy of the representation addressed to the Central Government, he must .necessarily forward it to the concerned Minister in the Central Government for his consideration. There is no dispute in respect of the fact that the authority to consider the representation on behalf of the Central Government is the Minister concerned. In the present case, what exactly has happened is that right from 30th March, 1988 till .13th of April, 1988 the representation addressed to the Central Government by the detenu was practically detained by the detaining authority with himself. That also goes to show that there is -no explanation by the Central Government as to how it dealt with the repre- sentation of the detenu from 30th of March, 1988 till 13th of April, 1988. There is some more explanation tendered by the respondents in respect of as to how the representation came to be dealt with by the Central Government there- after. Having come to the conclusion that the representation of the petitioner -detenu was not dealt with as required by law there is no need for me to go into the merits of the remaining explanation in this regard. On this ground alone, therefore, this petition is allowed. The continued detention of the petitioner is quashed and it is directed that he shall be released forthwith unless required in some other case.