Harbhajan Singh Jaura @ Doctor vs Union Of India And Ors.
1991 Latest Caselaw 787 Del

JUDGMENT

Sunanda Bhandare, J.

(1) This petition under Article 226 of the Constitution of India been filed challenging the order of detention dated 29.7.1991 passed by the Joint Secretary to the Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA).

(2) The brief facts are as follows : The petitioner was arrested by the Directorate of Revenue Intelligence on 17.7.1991 when acting on intelligence, the officers of the Directorate Revenue Intelligence intercepted two white Maruti cars bearing Registration No. DL-3C-B-3050 and DL-4C-1957 in front of Cargo Complex near Indira Gandhi International Airport. -On search of Car No. DL-3C-B-3050gold bearing foreign marking was recovered. It is alleged that the said gold was smuggled into India by one Gurdip Singh who travelled to India from Hong Kong by Air France Flight AF-183. The petitioner was traveling in Car No. DL-4C-1957 Along with one Rajinder Singh in the said car. The. petitioner was produced before the Additional Chief Metropolitan Magistrate on the same day and remanded to judicial custody. The petitioner has been in detention in the Central Jail, Tihar since then.

(3) The petitioner has challenged the order of detention on two grounds. It was firstly submitted by the learned Counsel for the petitioner that the petitioner has studied only up to 4th class in Government Primary Rainak Bazar School, District Jullundur. He studied in Punjabi in the said School. The petitioner's mother tongue is also Punjabi and he docs not know English. However, the order of detention and the grounds of detention and other documents relied on by the detaining authority which were supplied to the petitioner were in English. Thus, the petitioner has been deprived of his right of making effective representation against the detention as provided under Article 22(5) of the Constitution of India. It was next contended that the petitioner submitted a representation to the respondent on 2.8.1991 by the 84 same was not considered and disposed of by the respondent till 5.9.1991. Learned Counsel submitted that by the said representation the petitioner had asked for copies of the documents to be supplied in the language known to him i.e. Punjabi and the respondent supplied the documents after the present writ petition was filed by him in this Court. Learned Counsel further submitted that the respondent had not explained the delay in disposing of the representation submitted by the petitioner and that has resulted in violation of his right guaranteed to him under Article 22(5) of the Constitution of India. Learned Counsel submitted that the representation is only of two pages and it could not have taken the respondent such a long time to dispose of the said representation.

(4) On the other hand, it was submitted by the learned Counsel for the respondent that the petitioner knows English and he had put in his signatures in English while receiving the copy of arrest memo and as such the detention order and the grounds were furnished to him in English. It was further submitted that the petitioner made an application for grant of B Class before the Additional Chief Metropolitan Magistrate and he had signed in English and thereafter cancelled that signature and put the signature in Gurmukhi. He, however did not mention that the application was read over to him In Punjabi and that he did not know English language.

(5) On the question of delay, learned Counsel for the respondent submitted that the representation was dated 7.8.1991 and not 2.8.1991 as stated in the writ petition by the petitioner. The said representation was received on 12.8.1991 and the detaining authority received the parawise comments on 23.8.1991. The concerned officer put up the case on 27.8.1991 (24th and 25th being holidays) to the Joint Secretary, COFEPOSA. The Joint Secretary, Cofeposa forwarded it to the Secretary and Director General on 28.8.1991 who in turn sent it to the Minister of State (Revenue) on the same day. The Minister of State (Revenue) sent it to the Finance Minister on 30.8.1991 and Finance Minister considered and rejected the representation on 4.9.1991. A memo informing the petitioner about the rejection of the representation was issued on 5.9.1991. Thus, there was no delay in considering the representation. Learned Counsel submitted that the delay, if any, had taken place in the office of the sponsoring authority who is required to give parawise comments.

(6) The respondent was given an opportunity to file an additional affidavit and to ascertain whether the petitioner knew English. The respondent filed the additional affidavit on 29.11.1991. They were however unable to ascertain the correctness of the certificate issued by the Government Primary Rainak Bazar School, Jullundur and whether the petitioner had studied beyond Class Iv in any other school.

(7) We see no merit in the contention of the learned Counsel for the petitioner that the petitioner ought to have been supplied the documents in Punjabi. We have seen the record and we find that the petitioner has signed in running hand English. The wife of the petitioner who has filed the writ petition has also signed in English, and he knows English. The petitioner had not made any statement before the detaining authority on his arrest and, therefore, the respondents could not have known whether the petitioner knew English or not. The petitioner himself has stated in his application before the Additional Chief Metropolitan Magistrate that he is an Income-tax payee. It is not known whether the petitioner has signed the Returns in English nor it is known whether 85 the contents of the Returns were explained to him in Gurmukhi (Punjabi). However, from the record it is clear that the application for B Class was originally signed by the petitioner in English and then on second thought, the signatures were cancelled and he signed in Punjabi. In none of the applications filed by the petitioner before the Additional Chief Metropolitan Magistrate, he has stated that he does not know English or that the application was read over and explained to him in Punjabi. We find that the petitioner has taken this point as an after-thought when he filed the present writ petition in this Court because the petitioner filed a representation before the respondent on the same day as he filed the present writ petition. The Supreme Court in Kubic Darusz v. Union of India & Others, has observed as follows : "While it is the settled law that the detention, the grounds of detention and the documents referred to and relied on are to be communicated to the detenu in a language understood by him so that he could make effective representation against his detention, the question arises as to whether the Courts have necessarily to accept what is stated by the detenu or is it permissible for the Court to consider the facts and circumstances of the case so as to have a reasonable view as to the detenu's knowledge of (he language in which the ground of detention were served, particularly in a case . where the detenu is a foreign national. If the detenu's statement is to be accepted as correct under all circumstances it would be incumbent on the part of the detaining authority in each such case to furnish the grounds of detention in the mother tongue of the detenu which may involve some delay or difficulty under peculiar circumstances of a case. On the other hand if it is permissible to ascertain whether the statement of the detenu in this regard was correct or not it would involve a subjective determination. It would, of course, always be safer I such cases to furnish translations in the detenu's own language. We are of the view that it would be open for the Court to consider the facts and the circumstances of a case to reasonably ascertain whether the detenu is feigning ignorance of the language or he has such working knowledge as to understand the grounds of detention and the contents of the documents furnished." In the present case also it appears to us that the petitioner had working knowledge of English and, therefore, the detention order cannot be, quashed on the ground that the petitioner was not supplied with copies of the order of detention and other documents relied upon by the detaining authority in Punjabi.

(8) Now coming to the question of delay in consideration of the representation made by the petitioner. We find that even after taking into consideration the number of holidays that had intervened, the sponsoring authority took 10 days to prepare the parawise comments. The respondent has not given any reason or explanation for this delay in the counter-affidavit. It was however orally submitted that the investigation of the matter took a long time and, therefore, parawise comments could not be given by the sponsoring authority and, therefore, the sponsoring authority took such a long time. We find that this explanation is not enough. The detaining authority must dispose of the representation as expeditiously as possible and if it is not possible to do so, then specific reasons and the explanation must be stated in the counter- affidavit. We also do not understand why the file had to be sent from table to table in the same department. 86

(9) The Supreme Court in Rama Dhondu Borde v. V.K. Saraf, Commissioner of Police & Others, scrutinised the question of delay in the light of the right of the detenu under Article 22(5) of the Constitution and observed: "The propositions deducible from the various reported decisions of this Court can be stated thus : The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty-the highly chershed right-which is enshrined in Article 21 of the Constitution. (Para 19) True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. 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. However, in case the gap between the receipt 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." (Para 20)

(10) In fact, as early as in 1981 in Harish Pahwa v. State of U.P. & Others, the Supreme Court observed thus : "Again, we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occagions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon 87 as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu.

(11) Learned Counsel for the respondent referred to the judgment of the Supreme Court in L.M.C. Unmu Saleema v. B.B. Gujral, and submitted that the occasional observations made by the Court.that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expectation with which the representation must be considered and there is no hard and fast rule and the question of delay must be considered on the facts of each case. He also referred to the judgment of the Supreme Court in Madan Lal Anand v. Union of India & Others, wherein the Supreme Court had refused to quash the detention order though there was a long delay in disposing of the representation because the Supreme Court observed that number of holidays had intervened and, therefore, the detaining authority was not able to dispose of the representation at an early date. Undoubtedly, the question of delay has to be considered on facts of each case and there Is no hard and fast rule that the representation must be disposed of in particular number of days. However, since in the present case there is no satisfactory explanation given by the respondent for the delay, the respondent cannot explain the delay in a casual manner. In our view, this ground by itself is sufficient to invalidate continued detention of the petitioner.

(12) In the circumstances, the writ petition is allowed. Rule Is made absolute. The detention order dated 29th July 1991 is quashed. The petitioner be released forthwith, if not required in any other case.