Tharamel Mohammed Bava vs Union Of India And Ors.
1989 Latest Caselaw 374 Del

JUDGMENT

Santosh Duggal, J.

(1) The petitioner challenges his detention in this habeas corpus writ petition filed under Article 226 of the Consti'ution of India, ordered on 9th March, 1988 under the provision of Section 3(l)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short Cofeposa Act) with a view to preventing him from smuggling gold as well as engaging in transportation, concealment or keeping of smuggled gold. The petitioner was put under detention in exercise of the detention order, on 10th March, 1988.

(2) The facts, in so far as they are relevant, are to the effect that the petitioner was intercepted while traveling in a bus on 8th March, 1987 at Calicut. On search, his luggage was found to contain amongst others, five gold biscuits of foreign marking of 10 tolas each as well as Indian currency of the value of Rs. 1,22,000. The statement of the petitioner recorded under section 108 of the Customs Act revealed that this Indian currency was the sale proceeds of five gold biscuits he had brought from Saudi Arabia on 4th June, 1987, at the instance of one Kammad. Pursuant to the investigation done, and statements recorded, the impugned detention order was passed.

(3) The petitioner has raised a number of pleas in the writ petition both in regard to the order of detention as well as declaration under section 9(1) of the Act, and other allied matters, but at the time of hearing Mr. Kochhar pressed one plea, namely that of unexplained and inordinate delay in the disposal of a representation of the petitioner sent through an advocate on 29th July, 1980. The learned counsel pointed out that an averment in this respect is made in clear terms in ground No. Xi of the writ petition. In fact. the grievance was that this representation had not been disposed of till the time the writ petition was filed which was on 15h September, 1988. Mr. Kochhar explained that the writ petition was prepared on instructions received earlier whereas he was subsequently instructed that a memorandum of rejection dated 8th September, 1988 was received by M. K. Damodaran, advocate on 14th September, 1988. For that reason, full averment could not be set out in the writ petition.

(4) The learned counsel for the petitioner has read out the 'ground taken in the writ petition to the effect that there was long and unreasonable delay in the disposal of the representation made to the Central Government as the representation has not been considered till date. He invited my attention to the reply filed by the Central Government in respect to this ground in the counter affidavit filed by one Mr. Kuldip Singh, Under Secretary, Government of India, Ministry of Finance, Department of Revenue. An attempt has been made to explain the delay in this reply affidavit as follows : ".... .that the representation dt. 29-7-88 was received in the Cofeposa Section of the Ministry of Finance en 9-8-88. The said representation was thereafter shown to Joint Secretary who desired to have comments from the Sponsoring Authority. In response to the above, a copy of the representation was forwarded to the Collector of Customs, Cochin on 10-8-88 calling for his comments on the same. The comments dt. 31-8-88 from the Collector Customs, Cochin was received in the Cofeposa Section of the Ministry of Finance on 1-9-88. Thereafter the representation of the advocate along with the comments were placed before the Joint Secretary (COFEPOSA) on 2-9-88. Joint Secretary (COFEPOSA) with his comments forwarded the same to Minister of State for Revenue on the very same day. Minister of State for Revenue with his comments forwarded the representation to Finance Minister on 5-9-88 (2nd, 3rd and 4th Sept. 88 were holidays). However Finance Minister considered and rejected the representation on S-9--88. Thereafter a memorandum rejecting the representation was sent to the detenu on the very same day. The above shows that the representation received from the advocate was considered expeditiously. There is no violation of Article 22(5) of the Constitution."

(5) Mr. Kochhar argued that even though it is apparent that there was delay in transit when the representation dated 29th July. 1988 is shown to have reached the relevant section of the Ministry on 9th August, 1988 but he would not press this aspect of the delay because the representation was sent by registered post and he is not in a position to show that any undue delay had taken place in transit. The learned counsel laid stress on the fact that the counter affidavit reveals that the representation, after it was received on 9^h August, 1988, was forwarded by means of a copy, to the Collector of Customs, Cochin Ob 10th August, 1988 as the Joint Secretary concerned had desired the comments of the said authority, and further that the comments were received back on 1st September, 1988 under cover of letter dated 31st August, 1988.

(6) According to Mr. Kochhar this is a clear case, where 21 days. time had been taken by the sponsoring authority in forwarding the comments and for which there is not even an attempt at explanation in as much as neither the Central Government in the counter has set out any details as to how this period of 21 days was taken in forwarding the comments by the sponsoring authority, nor any effort has been made to get an explanation from the sponsoring authority to account for the period involved which was incumbent upon them to do in order to satisfy the court that the representation had been dealt with expeditiously and in right earnest, as mandated by Article 22(5) of the Constitution, as also by a catena of judgments of the Supreme Court, as well as this Court.

(7) Besides referring to a judgment of this Court in the case of J. M. Bajaj v. Union of India and others. Criminal Writ No. 563 of 1988, decided on 28th February, 1989, (1) which in turn was based on a judgment of the Division Beach of this Court in the case of Rajinder Prasad Khanna v. Union of India and others, 1988(3) Crimes 829, (2) the learned counsel referred to a very recent judgment of the Supreme Court in the case of : Aslam Ahmed Zahir Ahmed Shaik v. Union of India and others, Judgment today 1989 (2) S.C. 34, (3) where delay of Ii days taken in transit was held to be fatal on the view that when it was shown that the Superintendent. Central Prison, Bombay, had taken seven days to dispatch the representation, it was a case of slackness indifference and callous attitude, rendering continued detention of the detenu liable to be revoked. He further pointed out that this Judgment took note of the decision in the case of Vijay Kumar v. State of Jammu and Kashmir and others, , where also stress was laid on the fact that intermediary authorities have also to move with an amount of promptitude so has the statutory guarantee of affording earliest opportunity of leaking the representation and the same reaching the Government is translated into action.

(8) The learned counsel made reference to yet another judgment of this Court in Criminal Writ No. 378 of 19S8 titled : Mohd. Aziz v. Union of India & others, decided on 11th January, 1989 (3) by P. K. Bahri, J., where in the absence of satisfactory explanation, delay of 19 days on the part of sponsoring authority in forwarding comments was held to be such as vitiating the detention order, adding further that when three days, time taken by the Finance Minister in finally disposing of the representation, remained unexplained, that would also impinge upon the validity of the detention order.

(9) Mr. Kochhar also produced copy of an unreported judgment of the Supreme Court in Writ Petition No. 640/80, titled : Shankar Raju Shetty v. Union of India, decided to 26th June, 19a0(6) where stress was laid on the facts that each day's delay must be clearly explained because of the mandate contained in Article 22(5) of the Constitution of India and taking note of that, 12 days' delay was held to be fatal.

(10) The learned counsel thus summed up his arguments, on the basis of the judgments cited by him that in the present case since the sponsoring authority has nut chosen to file any affidavit and the counter filed on behalf of Central Government does not give any indication as to how and under what circumstances 21 days' time was taken by the sponsoring authority in forwarding the comments; continued detention is liable to or revoked.

(11) Mr. G. Prakash, who is counsel for the State of Kerala, did not address any arguments, because the points urged in the petition do not pertain to the State of Kerala

(12) Mr. Satpal appearing for the Union of India, contended that the delay per se was not the relevant factor, and the question before the court ought to be as to whether there was proper explanation for such a delay. He quoted from a very recent judgment of the Supreme Court , Rama Dhondu Borade v. V. K. Saraf, Commissioner of Police and others, (7) where in paragraph 20 it is emphasised that what is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. In so far as the proposition of law is concerned, there can be no doubt in this regard and it is an accepted position that delay by itself is not fatal but the relevant factor is the explanation of the absence thereof. In this very judgment it has been held : "'.....the gap between the receipt and the disposal of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory. such delay could vitiate the order of detention."

(13) Reverting to the facts of that case it is to be observed that the gap between the receipt of the representation and its disposal, was 28 days but the time up to the date of service of order of rejection on the detenu amounted to 32 days. It is farther noticed from the recital of facts that 14 days' delay had occurred on the part of the State Government in forwarding the comments called for by the Central Government in respect to the representation. Except for the narration of dales given, there was no other explanation and in that setting of facts it was held : "This delay when scrutinised in the light of the proposition of law adumbrated above, we are of the view that there is an inordinate and unreasonable delay and the present explanation given by respondent 3 is not satisfactory and acceptable."

(14) The present case is almost on all fours with this reported judgment of the Supreme Court because here also except for a bald statement of the dates given in the counter filled by the Central Government, which reveals delay of 21 days on the part of the sponsoring authority in forwarding the comments. there is no other attempt made to explain the delay, much less to satisfy the court about the justification of such delay. There is also no indication in the counter as to whether the Central Government took care to see that the letter requisitioning the comments is dispatched in such a manner that no time is lost in transit. There is no affidavit of the concerned officer of the sponsoring: authority as to how this time lag of 21 days occurred. I would, therefore, find it to be a case where the delay is indefensible and on the authority of the decisions earlier noticed. I hold it to be a case where the continued detention is liable to be revoked, because -it becomes a case where petitioner's constitutional right of representation, which implies corresponding duty on the Central Government to dispose it of expeditiously and without any unreasonable delay, has been violated.

(15) In the result, I allow the writ petition, confirm the rule and direct that the petitioner be released forthwith if not required lo be detained in. any other case or proceedings.

(16) No order as to costs.