Abdul Majid vs Union Of India And Ors.
1991 Latest Caselaw 28 Del

JUDGMENT

V.B. Bansal, J.

(1) This is a petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure. 1973 praying for his being released after setting aside the order of detention dated 30-1-1990.

(2) On 30-1-1990 the Administrator of the Union Territory of Delhi in exercise of the powers conferred by Section 3(1) read with Section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act) passed an order for the detention of Abdul Majid, petitioner here, to prevent from smuggling goods, preventing him from entering into, transporting, keeping smuggled goods and also from dealing with the smuggled goods otherwise than by engaging in smuggled goods. This order was served on the petitioner on 12-2-1990 when the grounds of detention and the documents relied upon for his detention were so handed over to him.

(3) Briefly stated the allegations have been that on 22-9-1989 he arrived at Indira Gandhi International Airport, New Delhi, on 22-9-1989 by Air India A-l 808 He declared certain articles and after paying necessary custom duties was coming out of the hall when he was intercepted at the exit gate and on enquiry informed the officials of the Customs that be did not have gold etc. However, on search in the presence of independent witnesses he was found having one gold biscuit, one 10 tola and from the baggage 14 biscuits of ten tolas each were recovered. These were seized and the statement of the petitioner was recorded under Section 108 of the Customs Act.

(4) A number of grounds have been taken by the petitioner in the writ petition for quashing of the order of detention. Learned counsel for the petitioner has however, restricted his arguments to one point only i.e. inordinate delay in the disposal of the representation made by the petitioner to the Central Government.

(5) Case of the petitioner has been that a representation dated 26-3-1990 -was made by the petitioner to the detaining authority. Administrator, Union Territory of Delhi and also the Union of India Learned counsel for the respondent has, however submitted that this Representation is dated 27-3-1990 and not 26-3-1990. Learned counsel for the petitioner does not challenge the assertion of the learned counsel for the respondents that the date of the representation is 27-3-1990. It is the admitted case of the parties that the representation of the petitioner was forwarded by the Superintendent Tihar Jail, to the Central Government which was received in the Cofeposa Unit of the Ministry on 29-3-1990. The same is stated to have been placed the Joint Secretary Cofeposa for his consideration on 30-3 1990 and under his directions comments of the sponsoring authority were called on the same date. These comments dated 2-5-1990 were received in the Cofeposa Unit on 3-5-1990, and the file was submitted to the Joint Secretary, Cofeposa on 4-5-1990. The representation was rejected by the appropriate authority on the same date and the memo regarding the rejection was issued on the same date. These are the assertions made by respondent No 1 in para 4 of the affidavit of Shri R. Desikan, Under Secretary to the Govt. of India. These dates are not controvert by the learned counsel for the petitioner.

(6) Learned counsel for the petitioner submits that there has been delay of 32 days on the part of the sponsoring authority in furnishing the comments to the detaining authority and this delay remains unexplained. He has also submitted that it is the bounden duty of the detaining authority to dispose of the representation made by a detenu expeditiously and any lapse in this regard would vitiate the detention itself, under Article 22(5) of the Constitution of India. The affidavit of Shri M.J. Siddiqui, Deputy Secretary Home Delhi Administration sworn on 14-1-1991 indicates that respondent No. 2 has no knowledge with regard to the allegations of delay in the disposal of the representation, since the Delhi Administration was not concerned about it. Learned counsel for respondent No. 1 has. however, submitted that as far as the Union of India is concerned, there has not been any delay on the part of the officers/concerned regarding the representation and if there is any lapse, it would be only on the part of the officials or the Customs Department who sponsored the case for the detention of the petitioner. It cannot be disputed that the Customs Department is a functionary of the Govt. of India and if there is any delay on the part of the functionary of the Government it would not be open to the appropriate authority to take shelter that there was no delay on its part. Whatever may be the reason the fact remains that the comments on the representation moved by the petitioner asked for on 30-3-1990 were furnished on 2-5-90. It is not disputed that the sponsoring authority is located at Delhi itself. There is absolutely no explanation for the delay in dealing with the representation and on this account alone the order of detention is liable to be set aside Mahesh Kumar Chauhan alias Banta v. Union of India and others. 1990(2) S.C. 592 is a clear authority on this point. There was a delay of about 16 days in furnishing the comments by the sponsoring authority which was held to be sufficient for quashing the detention order was invalid. The impugned order thus cannot be sustained on this shore ground.

(7) As a result the writ petition is allowed, the,Rule is made absolute and the order of detention is set aside The petitioner is ordered to.be released forthwith, if not required in any other case.