Saroj Tuneja vs Union Of India
1992 Latest Caselaw 459 Del

JUDGMENT

Vsha Ivlehka, J.

(1) Mrs, Saroj Taneja petitioner has assailed the order of detention passed against her on 5th June, 1991 under See.3(1) to the Conservation of Foreign Exchange arid Prevention of Smuggling Activities Act, 1974 (herein after called the Cofaposa Act) served on her on 17th July, 1991. Detention order was issued by Shri Mahendra Prasad, Joint Secretary to the Government of India. It is slated therein that with a view to preventing her from smuggling goods it was necessary that she should be detained and kept in custody in the Central Jail, Tihar, New Delhi. With this detention order the grounds of detention were also supplied to the petitioner.

(2) In nut shell, the case as set up against the petitioner is that the petitioner arrived at Calcutta Airport from Singapore by Singapore Airlines Flight No. SQ-416 on 30th April. 1991. On the same flight SITU. Shakuntla Sodhi was also traveling and alighted at Calcutta Airport with the petitioner. The petitioner and Smt. Sodhi were traveling together and when they proceeded for immigration the authorities became suspicious. The petitioner along with the said Suit.Shankuntla Sodhi were intercepted inside the green channel by the Customs Officers and on investigation an examination of their beggage. it was found that they were having gold biscuits secretly concealed inside the private part of their body. From the said packet which was recovered from the petitioner it was found that it contained six pieces of gold biscuits of 10 coats each and one cut piece of gold of 70 gms. all with foreign markings, total quantity being 770 gms. (approximately) valued at Rs. 2,68,000.00 . The said goods were sized because it was found that the same was smuggled into India and was liable to confiscation under the provisions of Customs Act, 1902 read with Fera 1973. The petitioner made a voluntary statement on 30th April, 1991 under Section 106 of the Customs Act. In the said statement the petitioner staled that previously she used to go to Singapore and back to Delhi via Calcutta and the gold she brought at the asking of one Sardarji and that she know that Smt. Shakuntla Sodhi was also passed on the gold by the said Sardarji. It was on the basis of this voluntary statement recorded by the petitioner and Smt. Shakuntla Sodhi that the authority came to the conclusion that she was efficient in smuggling gold into India an that it was necessary to arrest her so that she should not indulge any further in smuggling goods. She was further advised that if she so wishes she could make representation against the order of detention to the Central Government and the Advisory Board.

(3) The challenge to the detention order has been made primarily on the ground that the authority has taken almost one and a half months in executing the detention order which is against the well settled principles of law and, therefore, the detention is bad. Besides this Mr. Ashok Arora appearing for the petitioner also took up other grounds but during the course of arguments he confined his arguments on this ground only.

(4) The order to appreciate the arguments of Mr. Arora that detention order has been executed late one has to keep in mind the pronouncement to the Apex Court and of this Court in various judgments. There are catena of judgments in which it has been held that the detention order must be executed expeditiously and with promptitude. If it could not be executed then the delay has to be explained satisfactorily. Therefore, we have to sec whether Mi this case the delay to one and a half months has been explained satisfactorily or not.

(5) In this case. the detention order was passed on 5th June, 1991 but was executed on 17th July, 1991. i.e. after 45 days. This fact the petitioner has mentioned in para Vi of the grounds in the petition which is reproduced as under:- "THAT the petitioner / detenu says and submits that although the impugned order was passed on. 5th of June, 1991, yet it was not executed till 17th July, 1991 despute the fact that during this period, the petitioner was always available at the given address. It is submitted that long and undue delay in execution of order of detention costs doubt on the genuineness of the detention authority to detain the petitioner preventively. So, therefore, on this count also the order of detention becomes illegal and void."

(6) In reply to this para the Union of India has submitted as under:- "LN reply to Ground Vi the order of detention and grounds of detention and all irrelevant documents were served on detent on 17th July, 1991 and her signature obtained".

(7) The persual of the reply shows that the respondent has not applied its mind to the averments and the allegations made by the petitioner. The point raised by the petitioner was that the detention order which was passed on 5th June, 1991 remained unserved and executed till 17th July, 1991. There is no explanation for this delay what to talk of satisfactory explanation of the delay. The reply is vague, rather it completely ignores the specific averments made buy the petitioner in para Vi of his petition. Merely filing of this reply is not sufficient. Respondent was given opportunity to explain and feed the averments of the petitioner. But respondent miserably failed to avail this apportunity. It has neither explained the delay nor explained what steps were taken by it in executing the detention order on the petitioner. It is also not the case to explain the delay. What to talk of explaining the delay, the import of the averments of the petitioner have, in fact, been not understood by the respondent. Reply shows the casual manner in which it stated that the grounds of detention, order of the detention and the documents were supplied on 17th July, 1991. Why the detention order could not be served with a promptitude and in a reasonable period has not been explained, nor any care was taken to annex any document justifying the delay on its part. This shows non-application of the mind throughout. There has to be a "Live and proximate link" between the passing of the detention order and the time it is executed. In this case Mr. Arora contended that the link stood snapped because of the delay. If for one and a half months the detaining authority was not worried about the smuggling activity what fresh fact came before the detaining authority after one and a half months when it executed the detention order.

(8) Counsel for the respondent contented that in the case of Abdul Salam alias Thiyyan Vs. Union of India and Anr. Supreme Court has taken the view that the mere delay in arresting the detenu does not throw doubt on the genuineness of the subjective satisfaction and reasons for delay. But where such an authority does not make any effort to inform this Court as to how it arrived at its subjective satisfaction and the reasons for delay, then such a delay will cast doubt. The question for consideration will always be whether the said delay has been satisfactory explained or not and what steps were taken by the respondent to executing the detention order with promptitude. On going through the reply we cannot come to the conclusion that the delay has been satisfactorily explained. Persual of the record shows that the delay has not been explained at all. Therefore, I find no force in the submission of the counsel for the respondent that the delay is no ground to quash the detention. In fact, in this case neither the delay has been explained nor any document has been annexed with the affidavit which could prima facie explain the delay or the steps taken by the respondent in executing the detention order. Therefore, I will not hesitate to say that it clearly establishes that there was no nexus or proximity in time between the incident and the satisfaction arrived at. Even otherwise, on account of this delay the detention order is liable to be quashed, In this regard reliance can be placed on the decision of the Supreme Court in the case of K.P.M. Basheer Vs. State of Karnataka & others reported in 1992 (1) Crimes 996. This view if also observed by the Supreme Court in the case of P.V.Iqbal Vs. Union of India & Ors. reported in Crimes 1992 (1) 166.

(9) In all the cases the law has been well settled that if there is an unexplained delay in arresting or serving the order of detention on the detenu then detention is invalid.

(10) In view of the fact that there was unexplained delay in executing the detention order. I hold that the detention is liable to be struck down. I accordingly accept the petition and make the rule absolute. The order of detention and the continued detention is hereby quashed and direct the petitioner be set at liberty forthwith, if not required in any other case.