S.K. Jangir vs Union Of India
1991 Latest Caselaw 393 Del

ORDER

1. In this writ petition filed under Art. 226 of the Constitution of India read with S. 482, Cr.P.C. Shri S. K. Jangir (hereinafter referred to as the petitioner) has challenged the order of detention dated 3-12-90 passed under section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA) by the Joint Secretary to the Govt. of India.

2. In brief, the allegations against the petitioner are that on 7th October, 1990, the petitioner arrived at IGI Airport, New Delhi from Dubai. He made a wrong declaration about the goods which he had brought along with him. He was intercepted at the exit gate and as a result of the search of his baggage, it was revealed that he has kept concealed ? seven gold biscuits of foreign marking of ten tolas each weighing 816.20 grams valued at Rs. 2,77,508 (M.V.). On checking of his passport, it also came to light that he had been to Dubai three times earlier from 1984 to 1990. On these allegations he was arrested and booked for an offence under section s. 132 and 135 of the Customs Act, 1962 on 7th October, 1990, itself for an offence of smuggling gold of foreign origin into India in contravention of the provisions of Customs Act, 1962. The impugned detention order was passed on 3-12-1990 and it was served on the petitioner on 17-12-1990.

3. Though the petitioner has challenged the detention order on various grounds, but at the time of arguments, only ground No. X was pressed, which mentions that the petitioner/detenu sent a representation dated 29-1-91 to respondent No. 1 i.e., Union of India through the Supdt. Jail, whereby he besides demanding certain documents made a prayer for revocation of the detention order. However, till the filing of this writ petition, the petitioner has not received any reply from the respondent. It is urged that it is enjoined on the respondents to show to the court that the representation of the detenu was continuously considered till its final decision and communication thereof to the detenu and on their failure to do so, the respondents rendered the impugned detention order illegal and void.

4. It has been submitted by the learned counsel for the petitioner that there has been delay in consideration of the representation submitted by the petitioner. In this regard, I find that in ground No. X of the writ petition, the case set up by the petitioner is that he made a representation on 29-1-91 to respondent No. 1 (Union of India) through Supdt. Jail whereby the detenu besides demanding certain documents made a prayer for revocation of the impugned detention order but till the filing of this writ petition on 25-2-91, no order had been passed on the same. In other words, the case set up by the petitioner in the writ petition is that the representation submitted by the petitioner on 29-1-91 had not been considered till the filing of the writ petition on 25-2-1991, as he did not receive any reply from respondent Union of India till that date.

5. In the counter-affidavit of Shri Mahinder Parshad, Joint Secretary to the Govt. of India, dated 29-4-1991, filed on behalf of the respondents, it has been stated that the petitioner's representation dated 1-2-1991 (not 29-1-91 as mentioned in the writ petition) was received on 4-2-1991 and on the same date, the representation was placed before the detaining authority who directed to call for the comments of the sponsoring authority. Comments were called for on the same date. When the comments were not received, up to 14-2-1991, a reminder was also issued on the same date. The sponsoring authority submitted their comments vide letter dated 25-2-1991 and the same was received in the unit on 27-2-1991. The case was processed and submitted to the detaining authority i.e. the Joint Secretary (COFEPOSA) and on the same date the Joint Secretary forwarded the case file to the Finance Minister. The Finance Minister considered and rejected the representation on 4-3-91. The case file was received back from the Minister's office on 5-3-1991 and on 6-3-1991 a Memorandum intimating the decision about rejection of his representation was issued to the detenu. Thus, there was no undue and unexplained delay in the consideration of the representation of the detenu.

6. As per the affidavit filed on behalf of the respondent, there is delay of 21 days on the part of the sponsoring authority in furnishing the comments to the detaining authority and this delay remains unexplained. Counsel for the respondent has submitted that as far as Union of India is concerned, there has not been any delay on the part of the officers/officials concerned regarding dealing of the representation and if there is any lapse, it would be only on the part of the officials of the Customs Department who sponsored the case for the detention of the petitioner. This contention of the respondent is devoid of any merit. It cannot be denied that the Customs Department is the functionary of the Govt. of India and if there is delay on the part of the functionary, it would not be open to the appropriate authority to take shelter that there was no delay on its part. Whatever may be the reasons, the fact remains that comments on the representation were asked on 4-2-1991 and the same were received on 25-2-1991. It is not disputed that the sponsoring authority is located at Delhi itself. The delay of 21 days has not been explained.

7. It is settled principle of law, as laid down by the Supreme Court in various decisions, that the detenu has an independent constitutional right to make his representation under Art. 22(5) of the Constitution of India. Correspondingly there is 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 Art. 21 of the Constitution. Which 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.

8. In Mahesh Kumar Chauhan v. Union of India 1990 (2) Crimes 472 : 1990 Cri LJ 1507 it has been observed by the Supreme Court that "in spite of the weighty pronouncements of this court making the legal position clear, it is still disquieting to note that on many occasions the appropriate authorities cause considerable delay in considering and disposing of representations and also exhibit culpable indifference in explaining such delay. We feel that in case the appropriate authority is unable to explain personally the delay at various stages, then it will be desirable - indeed appropriate for the concerned authority or authorities at whose hands the delay has occurred to individually explain such delay."

9. In this case, as is apparent from the record this delay of 21 days which has occurred in sending the comments by the sponsoring authority has not been explained at all, This unexplained delay of 21 days in furnishing comments by the sponsoring authority is sufficient for quashing the detention order and for holding that the detention order is invalid. The impugned order thus cannot be sustained on this ground alone.

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

11. Petition allowed.