Gopal Banik vs Union Of India And Ors.
1989 Latest Caselaw 48 Del

JUDGMENT

P.K. Bahri, J.

(1) This petition filed under Article 226 & 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure. seeks quashment of the detention order dated May 23, 1988, passed under Section' 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, by respondent No. 2 with a view. to prevent the petitioner from engaging in transporting and keeping smuggled goods.

(2) The order is challenged on various grounds but I need not refer to all the grounds because this writ petition is liable to succeed on a very short point. It has been pleaded in ground Vii in the writ petition that the petitioner had .made a representation against the detention order and handed over the said representation to the Superintendent (Jail), Calcutta, on July 6, 1988. hill the Superintendent (Jail) had posted the said representation on July 13.1988. and the representation was rejected on August 11, 1.988 and the memo rejecting the representation was received by him on August 23, 1988. He pleaded that his representation had not been dealt with promptly and there has occurred unexplained delay in consideration of his representation , so the order of detention stands vitiated on this score.

(3) Rule in the Write was issued on September 16, 1988, but no counter was filed by the respondents. An application was moved by the petitioner seeking early hearing. in the writ petition of which notice was issued to the respondents for October l3- !988. Although the notice was duly served but no one appeared on behalf of the respondents and the direction was given that the counter be filed within three weeks and the case was adjourned to 'November. 1988. Mr. Rajinder Dutt. Standing Counsel, appeared on that day on behalf of the respondents and he was supplied the complete set of the writ petition with documents and annexures and on his request the respondents were granted 10 days more for filing the counter, and the case was directed to he listed for final hearing in between items 20 & 21. But on November :24, !988, when the case reached for hearing, it was found that no counter has been filed. Still, on request the time was gra.nted for filing counter but in spite of the said order on counter was filed and the case was adjourned to December 2, 1988 and then to December 7, 1988 and December 1". 1988 and again to December 19, 1988 and January 5. 1989. Still no counter has been filed and Mr. Rajinder Dutt, counsel for the respondents, stales that in spite of his having sent repeated reminders to the respondent in writing, no response has been received. It has been held by the Supreme Court in Harish Pohwa v. State of U.P. & Others. , that the respondents must explain that the representation made by the detenu has been dealt with without any undue delay and if any delay occurs in considering the representation, then the authorities must furnish necessary explanation to the court. The detention order passed against Basudev Banik, a co-detent, had been quashed by me in Criminal Writ Petition No. 476/8S.decided on Decemb'er 15, 1988, on the ground that the representation of the said co-detent was not considered promptly and the delay which bad been made at the level of the sponsoring authority in furnishing the comments stood unexplained.In the said case, a return was filed in the shape of counter-affidavit by the respondents, yet the explanation given in affidavit explaining the delay 'made in considering the representation of the co-detent was not satisfactory. In the present case, in absence of any counter-affidavit filed by the respondents, the court has no option but to admit the facts stated in the writ petition as correct. It has been held in Harish Toneja v. U.O 1. , decided by a Division Bench of this Court that if no counter is filed to the writ petition in spite of opportunities, the averments made'in'the'writ petition have to be taken as correct. So, I hold that there has ocourred unexplained delay in considering the representation of the petitioner by the respondents and thus, the continued detention of the petitioner cannot be sustained.

(4) I allow the writ petition, make the rule absolute and quash the continued detention of the petitioner arid direct that the petitioner be set at liberty forthwith if not required to be detained in any other case.