Mohd. Shamsuddin @ Sambu vs Union Of India And Ors.
1990 Latest Caselaw 397 Del

JUDGMENT

V.B. Bansal, J.

(1) Shri Mahendra Prasad, Joint Secretary to the Government of India, specially empowered under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter to be referred to as the Act) passed an order dated 12th December, 1989 for the detention of Shri Mohd. Shamsaddin @ Shamba to be kept in custody in the Presidency Jail, Allpore. Calcutta with a view to preventing him from engaging in transporting smuggled goods and dealing in snuggled goods otherwise than by engaging in concealing or keeping smuggled goods. In pursuance of this order the petitioner was detained on 20th December, 1989 when the grounds of detention were also served upon him.

(2) By way of this petition filed by the petitioner through his brother Shri Adil Hussain under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure the petitioner has prayed for issuance of a writ of habeas corpus or any other appropriate writ, order or direction for quashing the aforesaid order of detention and consequently for his being released from custody.

(3) A number of grounds have been taken by the petitioner in the writ petition to challenge his detention. However, learned counsel for the petitioner has restricted his argument only on the grounds of delay in the forwarding of his representation by the Superintendent Jail to the concerned authorities, the delay in consideration of (be representation and also the delay in communicating the rejection of the petitioner of the petitioner to him.

(4) Learned counsel for the petitioner has submitted that a representation was made by the petitioner on 9th January, 1990 which was handed over to the Superintendent, Presidency Jail, Alipore, Calcutta on the same date bat the respondents have wrongly shown the same having been moved on 15th January, 1990. He has also submitted that there has been an inordinate delay in forwarding the representation by the Superintendent of the aforesaid jail as a result of which the right of the petitioner under Article 22(5) of the Constituted has been violated.

(5) Learned counsel for the respondent has, on the other hand, submitted that at the top of the aforesaid representation date 11th January, 1999 was written but in fact the representation was signed by the detenu only on 15th January, 1990 and it was forwarded by the Superintendent, Presidency Jail vide letter dated 16th January, 1990 and it was received in the department on 19th January, 1990. Learned counsel for the respondent had shown the original representation which confirmed the aforesaid submissions. The representation made by the detenu bear his signatures with date 15th January, 1990. In this circumstances, it cannot be said that there was any delay on part of the Superintendent. Presidency Jail in forwarding the representation to the concerned authorities.

(6) Learned counsel for the petitioner-has submitted tba.t the representation made by the detenu though rejected on 9th February, 1990 was communicated to him only on 21st February, 1990 without any explanation for this inordinate delay which is sufficient to hold that the fundamental right of the petitioner under Article 22(5) has been violated-on account of which the petitioner is liable to be set at liberty.

(7) Submission of the learned counsel for the respondent has been that the letter dated 9th February, 1990 by the Ministry communicating the rejection of the representation was served on the petitioner in jail on 20th February, 1990 and not on 21st February, 1990. Even by considering the date of communication as 20tb February, 1990 there is a delay of Ii days on the part of the respondent. In the' counter-affidavit of the respondent there has not been any explanation whatsoever for the delay in communicating the rejection to the petitioner. Learned council for the respondent has, however, submitted that there were two Saturdays 'and two Sundays in between the aforesaid period and so there could at best be delay of seven days. He bai further submitted that the delay might have occured in transit or at the band of the Superintendent, Presidency Jail, Allpore, Calcutta. However, learned counsel for the respondent had no definite explanation for the delay. I am not to go by surmises and the respondent has to give proper reasonable explanation as to why this period was taken in communicating the result. It is not open to the respondent to urge that there might have been delay on the part of the Superintendent. Admittedly, be is a functionary of the Government and if there Is a delay on the part of any functionary of the government which is not explained its benefit has to be .given to the detenu and it can never be claimed by the Government. In Criminal Writ Petition No. 305 of 1989 (Mohinder Singh Arora v. U.O.I. decided on 7th September, 1989 by a Division Bench of this Court there was an unexplained delay of six days in communicating the decision about the rejection of his representation to the detenu and it was held that in the absence of 'a valid explanation the detention order was liable to be set aside Law is well settled that any representation made by a detent has not only to be dealt with expeditiously but the decision taken has also to be communicated to the detenu expeditiously and without any delay. Reference in this regard can be made to the ca(r)e Harish Pahwa v. State of 'U P. and Ors. . In Cr. W. 641 of 19?9, Arjun Tulsidas Jagwanti v. U.O.1. & Ors decided on 13th December, 1989 representation of the deleing was rejected on 20th October, 1989 and the detenu was confined to Central Jail, Nasik. The rejection memo was sent to the Superintendent, Dum Dum Central Jail, Calcutta where it was received on 27th Oct. 1989 where from it was forwarded to the Superintendent, Central Jail, Nasik where it was served upon him on 11th November, 1989. It was held that there was no plausible explanation for sending the intimation about the rejection of the representation at Calcutta and that there was unexplained delay in informing the detenu about the rejection cf the representation at Calcutta and that there was unexplained delay in informing the detenu about the reject on of his representation on account of which the detention of the detenu was quashed.

(8) In the instant case admittedly the representation was. rejected on 9th February, 1990 and 10th and 11th. February, 1990 were Saturday and Sunday. Even if these two dates are excluded there is an unexplained delay of nine days in communicant the rejection of the same to the detenu, and thereby there is a violation to the provisions contained in Article 22(5) of the Constitution of India on account of which the order of detention is liable to be quashed.

(9) As a result, the petition is allowed. , is made absolute. The order of detention dated 12th December, 1989 is quashed. The petitioner shall be released forthwith, if not required in any other case.