Arjun Tulsidas Jagwani vs Union Of India And Ors.
1989 Latest Caselaw 595 Del

JUDGMENT

P.K. Bahri, J.

(1) In this petition filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner has sought quotient of the detention order dated March 27, 1989, passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 (for short 'COFEPOSA Act') and a declaration dated April 17, 1989, issued under Section 9(1) of the Cofeposa Act by respondent No. 3.

(2) It is not necessary to refer to the facts of the case or to various grounds pleaded in the writ petition as this petition is liable to succeed on a very short point.

(3) In para 18 of the petition it has been pleaded that the detenu made a representation dated September 3, 1989 through the Superintendent, Dum Dum Central Jail, Calcutta, und the same has'not been dealt with by the authorities with due promptitude. In the corresponding para in the counter- affidavit, it has been pleaded that representation was dated September 12, 1989 and not dated September 3, 1989 and was received in the Ministry on September 26, 1989 and the same was forwarded for comments to the sponsoring authority at Calcutta oil September 28, 1989, where it was received on October 3, 1989 and parawise comments dated October 6, 1989, were received on October 11, 1989 and the same were processed through the detaining authority and were put up to the Central Government on October 18, 1989, as October 13 to 15, 1989 were holidays and the detaining authority put up its report before the Minister of State for Revenue on October 19, 1989, who considered the representation and rejected the same subject to the approval of the Hon'ble Finance Minister on the same day and the Hon'ble Finance Minister considered the matter and rejected the representation on October 20, 1989 and the file was received back on October 23, 1989 while previous two days were holidays and the memo of rejection was issued on October 24, 1989. It is not mentioned in this affidavit as to when the rejection memo was communicated to the detenu. However, in the rejoinder, the detenu has pleaded that the rejection memo dated October 24, 1989 was served on him in Jail on November 11, 1989. This fact is not disputed before me.

(4) Counsel for the petitioner has urged that there has been given no explanation as to why it took about 14 days in the representation reaching the Ministry from Superintendent Jail and why it took about 18 days in communicating the rejection memo to the detenu in Jail. He also pointed out that the affidavit filed by Shri A.K. Batabyal. Joint Secretary to the Government of India, is also not very clear as to when the representation was dealt with by the detaining authority as at one place it is mentioned that the representation was forwarded to the Minister of State on October 18, 1989 while in the second breath it is mentioned that the same was sent on October 19, 1982. However, I do not find that it is very material delay in this respect. In any case, the delay has to be explained by the respondents with regard to the period September 12, 1989 to October. 26, 1989 when the representation was sent from Jail through its Superintendent and the period when the rejection memo dated October 24, 1989, was communicated to the detenu on November 11, 1989.

(5) Counsel for the petitioner has made reference to a Division Bench judgment of this Court in Criminal Writ Petition No. 305/89, Mahinder Singh v. Union of India & Others, decided on September 7, 1989, where there had taken place, a delay of about six days in communicating the memo of rejection of the representation to the detenu and the detention of the detenu was considered vitiated. It has been emphasized in this very judgment that there has to be given reasonable explanation with regard to the delay which occurred as to how the representation of the petitioner was dealt with and handled by the Department till the rejection was communicated to the detenu.

(6) Counsel for the petitioner has also made reference to Mohd. Aziz v. Union of India & Others, Criminal Writ Petition No. 378/88, decided on January 11. 1988, by this Court, where the detention was quashed on account of delay occurring in considering the representation by the Finance Minister for about six days while three days were holidays. A perusal of this judgment shows that there had occurred a delay in submitting the comments as well by the sponsoring authority which remained unexplained -and the period taken was about 19 days. At any rate, the ratio .laid down in the. case of Mahinder Singh (supra) clearly applies to the facts of the present case.

(7) Counsel for the respondents has, however, pointed out from the record that in fact, the representation dated September 12, 1989, was received in the Ministry on September 19, 1989, but it was dealt with only on September 26 1989. Even then no explanation has been given as to why the representation remained unattended for the period September 19, 1989 to September 26, 1989. It has also come on the record that the petitioner who was earlier detained in the Central Jail, Dum Dum, Calcutta, was, under the orders of the detaining authority passed somewhere in August 1989, transferred to the Central Jail, Nasik (Maharashtra) on September 20, 1989. Still, the rejection memo was initially sent to the Superintendent Central Jail, Dum Dum, Calcutta, where it was received on October 27, 1989 and it is. also shown from the record that on the same day it was forwarded to the Superintendent Central Jail, Nasik (Maharashtra), for being served on the detenu. However, no explanation has been given as to why it took about 15 days in that communication reaching the detenu from Superintendent, Central Jail, Dum Dum, Calcutta. Counsel for the respondent has pointed out that there might hove taken place some postal delay but it is not possible to hold that it would have taken about 15 days for a letter to reach from Calcutta to Nasik (Maharashtra). At any rate, no explanation has been given whatsoever for the delay which has occurred in dealing with the representation when it was received and also the delay which has occurred in sending the rejection memo to the detenu. After all the defaming authority was very much aware that the detenu was confined in Nasik Jail and thus, he had no business to send the rejection memo to the Dum Dum Central Jail, Calcutta, where the petitioner was earlier confined.

(8) In view of the above discussion, I hold that on account of the unexplained delay taking place in dealing with the representation of the detenu and in communicating the rejection memo to the detenu, the continued detention of the petitioner has become vitiated.

(9) I allow the writ petition, make the rule absolute and quash the continued detention of the petitioner and direct that the petitioner be released from Jail, if not required to be detained in any other case.