Santosh Chandra Chatterjee vs Union Of India
1992 Latest Caselaw 199 Del

JUDGMENT

Dalveer Bhandari, J.

(1) This petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing and getting aside the order of detention dated 22.2.91, passed by Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, under Section 3(1) of the Cofeposa Act and the declaration dated 22.3.91 passed under section 9(1) of the Act. The petitioner has challenged the detention order on the ground of undue delay in consideration of his representation.

(2) Brief facts necessary to dispose of this petition are set out as under;--

(3) That on 11.1,91, the petitioner was intercepted in the Customs Departure Hall of Calcutta Airport, just before the petitioner was proceeding to Singapore via Bangkok by Air India flight No. Ai 306.

(4) When the petitioner reported to the Customs Counter for his customs clearance, the intelligence officer started scrutinizing his travel documents, in course of which it came to light, that the petitioner was working as a Cargo Agent for some shipping company though in the column of profession, it was stated to be "Seaman" in the passport. The petitioner had declared that he had only 150 Thai Bhat and no other currency with him. The concerned officer was not satisfied with the statement of the petitioner and searched the baggage and during search, 1300 Us $, 270 Hongkong dollars and 170 Thai Bhat and Indian currency of Rs. 6501 were recovered.

(5) In personal search, 7000 U.K. Pounds were also recovered. Two pieces of small stones believed to be diamonds and three other pieces of precious stones were also recovered. The value of currency and stones put together was around Rs. 2, 85, 760.00 .

(6) It was submitted by the petitioner that in pursuance of the detention order, dated 22,2.91, the petitioner was detained.

(7) The petitioner has challenged the detention and sent his representation dated 8.4.91. The petitioner did not receive any reply to his representation for an unduly long period. On 6.6.91, the petitioner received a Memorandum dated 27.5.91 which was signed by Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi mentioning that the petitioner's representation dated 22.4.91 regarding revocation of detention order dated 22 2.91 has been carefully considered by the Central Government but it is regretted that the same has been rejected.

(8) The petitioner submits that a perusal of the said Memorandum dated 224.91 shows that the representation of the petitioner dated 8.4.91 must have been received by the Department of Revenue, Ministry of Finance only on 22.4 91. The petitioner has reason to believe that the representation dated 8.4.91, addressed to the Central Government was forwarded by the jail authorities of Dum Dum at least a week or 10 days after it was handed over to them for dispatch. This long delay on the part of the jail authorities in forwarding his representation makes his continued detention illegal. There has been undue and unreasonable delay on the part of the Central Government in considering the representation of the petitioner dated 8.4.91, which was rejected vide Memorandum dated 27.591. The unreasonable delay is violative of Article 22(5) of the Constitution and renders the detention order Illegal.

(9) Shri R.P. Kapur, Under Secretary to the Government of India, Ministry of Finance. Department of Revenue has filed the counter-affidavit on behalf of the respondents. In joint reply to paras 10 and 11 of the writ petition, the respondent has mentioned that the petitioner's representation is dated 22.4 91 and not 8.4.91 as contended by the petitioner. In rejoinder, learned Counsel for the petitioner submitted that even if the date of representation is taken as 22.4.91, even then, there is long and undue delay in considering the petitioner's representation.

(10) In the counter-affidavit, it is mentioned that the representation dated 22.491 was received from Calcutta in the Cofeposa Unit of the Ministry on 6.5.1991 and on the same date was placed before the detention 689 authority who called for comments from the sponsoring authority. Comments were called for on 7.5 91 and the same were supplied vide letter dated 15.5.91 received in the Cofeposa unit on 17.5.91. The case was processed and submitted to the Joint Secretary on the same date. It was considered and submitted to Secretary (Revenue) on 18.5.91. The Secretary (Revenue) considered the same and rejected it on 21.5.91. The case papers were received back on 23.5.91. A memo intimating the petitioner was issued on 27.5.91. It may be noted that 24th, 25th, 26th May, 1991 were holidays. The rejection was communicated to the petitioner within 36 days. It is as admitted position that the petitioner received in jail. Memo dated 27.5.91 on 6.6.91. Therefore, this is the further delay which has been caused by the respondent. The respondent had tried to give explanation which is far from convincing.

(11) The Hon'ble Supreme Court has been repeatedly mentioning that the matters relating to personal liberty have to be decided expeditiously. Inaction, lethargy and undue delay in disposal of petitioner's representation has always been adversely commented upon by the Supreme Court and High Courts in a number of decisions.

(12) Shri Rohit Kochhar, learned Counsel for the petitioner has brought to the notice of this Court decision dated 7.9.89 delivered in Crl. Writ Petition no. 305/89, Mahinder Singh Arora v. Union of India, etc.. The facts of this case are somewhat similar. In this case also, the petitioner was intercepted In Calcutta. In this case, the delay was much less but even then the Court observed that it was imperative on the part of the concerned authorities to discharge the obligation of dealing with and transmitting the decision with all reasonable promptness and diligence. The detention order was quashed by the Court.

(13) Learned Counsel also placed reliance on the Judgment reported as Harish Pahwa v. State of U.P. and Anothers, . In this case, the Hon'ble Supreme Court has observed that the representation of the detenu must be considered at the earliest possible opportunity and must be continuously considered until final decision is taken thereon and the other facet is that the result thereof must be immediately communicated to the detenu. In the said Judgment, it is also mentioned that no authority concerned with the disposal of the representation of the detenu can show any indifference towards the representation. This is so said because the liberty of a person is at stake and he is preventively being detained without trial.

(14) Learned Counsel for the petitioner has also brought the attention of this Court to a decision of the Supreme Court in Aslam Ahmed Zahire Ahmed Shaik v. Union of India and Others, J.T. 1989 (2) Sc 34. In this case, the Court observed as under :- "In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible." It is submitted that the delay is much longer in the instant case without any convincing explanation.

(15) The learned Counsel has also Invited the attention of the Court to the decision in Gazi Khan alias Chotia v. State of Rajasthan and Another, . In this case, the detention order was quashed because there was no explanation for the delay of 7 days for the Assistant Secretary merely to put up a note on the basis of the comments of the District Magistrate. The Court observed the Additional affidavit shown by the Commissioner and Secretary also does not whisper any explanation as to why such a delay of 7 days has occurred at the hands of the Assistant Secretary. Therefore, the detention order passed against the detenu would be liable to be set aside on the ground that there was breach of constitution obligation as enshrined under Article 22(5) of the Constitution.

(16) The learned Counsel has also placed reliance on the celebrated case Rama Dhondu Borade v. V.K.. Saraf, Commissioner of Police and Others, . In this case, the Court has virtually demanded explanation of each day's delay from the respondent and calculated each day's delay and has shown Court's concern for each day's delay. The Court in the concluding paragraph has mentioned that the gap between receipt and disposal of the representation is 28 days hut up to the date of service of the order of rejection on the detenu the delay amounts to 32 days. The Court said that this delay when scrutinized in the light of the proposition of law adumbrated above, the Court reached the conclusion that there is an inordinate and unreasonable delay and the present explanation given by respondent no. 3 is not satisfactory and unacceptable. The Court quashed the detention order.

(17) On careful analysis of all the abovementioned judgments, the position which emerges is unambiguous and clear that undue and unreasonable delay in disposal of the petitioner's statutory representation vitiates the detention order. The delay amounts to breach of constitutional obligation as enshrined under Article 22(5) of the Constitution of India.

(18) In the result, the impugned detention order dated 22.2.91 and declaration dated 22.3.91, are bad in law and are liable to be quashed. The detenu shall be released forthwith if not required to be detained in any other case.