Yashvir Singh vs Administrator And Ors.
1993 Latest Caselaw 254 Del

JUDGMENT

Sat Pal, J.

(1) The petitioner in this case was defamed in terms of the order dated 4th August, 1992 passed by the Administrator of National Capital Territory of Delhi in exercise of powers conferred by Section 3(l) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA').

(2) It has been alleged in the grounds of detention that on 10th March, 1992 the petitioner arrived from Singapore at I.G.I. Airport, New Delhi. While he was passing through red channel counter, the Custom Authorities asked him whether he was carrying any contraband to which he replied in the negative, but as a result of examination of his baggage, 80 pcs. of Printed Circuit Boards and 8150 pcs. of Integrated Circuits of foreign origin valued at Rs.8,61,150.00 (CIF) were recovered. It has further been alleged that the petitioner in his statement dated 10th March, 1992 recorded under Section 108 of the Customs Act, 1962 admitted the recovery and seizure of the electronics items mentioned hereinabove. Vide order dated 9th November, 1992, the Administrator of National Capital Territory of Delhi in exercise of powers conferred by Section 8(f) of the Cofeposa Act read with Section 10 of the said Act directed that the petitioner be detained for a period of one year from the date of his detention i.e. 2nd September, 1992.

(3) The petitioner submitted a representation dated 19th October, 1992 to the Advisory Board and on 20th October, 1992, he submitted another representation before the Advisory Board. Further the petitioner submitted a representation dated 20th October, 1992 to the President of India.

(4) The petitioner has challenged the order of detention in the present writ petition on the basis of various grounds mentioned in the writ petition. Mr. Malhotra, the learned counsel appearing on behalf of the petitioner, however, confined his arguments to the following two contentions-

I)that the representation dated 19th October, 1992 addressed to the Advisory Board through Jail and the representation dated 20th October, 1992 copy of which was placed before the Advisory Board when the petitioner appeared before that Board on 20th October, 1992 have not been considered by the appropriate Government I.e. the Administrator of National Territory of Delhi and the non-consideration of the aforesaid two representations by the Administrator, is violative of Articles 22(3) and 22(5) of the Constitution of India.

II)that the petitioner had submitted a representation dated 20th October, 1992 to the President of India and the said representation has been rejected by the Govt. of India vide Memo. dated 7th December, 1992, a copy of which has been Filed Along with rejoinder. Thus there is a delay of more than 45 days in disposing of the representation dated 20th October, 1992butthe said delay has not been explained by the Govt. of India in their reply-affidavit.

(5) In support of his first contention, the learned counsel for the petitioner drew my attention to para 4 and ground Ix of the writ petition. In ground Ix, it has been specifically averred that the representation sent to the Advisory Board has not been considered by the appropriate Government and as such the detention of the petitioner is illegal and violative of article 22(5) of the Constitution of India. In this connection, the learned counsel placed reliance of a Supreme Court judgment in the case of mt. Gracy Vs. State of Kenala, . He also relied on a judgment of a learned Single Judge of this Court in Crl.W.310/92, Shri Anang Pal VS. Commissioner of Police decided on 5th February, 1993 and my judgment in Crl.W-324/92, Rajinder Singh VS. Commissioner of police, decided on 4th March, 1993.

(6) As regards the second contention, the learned counsel for the petitioner submitted that there is un-explained delay of about 45 days in the disposal of the representation and thus there is a violation of article 22(5) of the Constitution of India. In this connection, the learned counsel has referred to ground Xv of the writ petition. In support of this contention, learned counsel has placed reliance on a Supreme Court judgment in the case of Raghvendra Singh Vs. Suptd. Distt. Jail, Kanpur and two judgments of this Court in the case of Shah Badal Vs Uoi reported in 1992(3) Crimes 68 and in the case ofCrl.W.43/88 Smt. Zenab Zaki Sayad Vs Uoi decided on 19th January, 1989.

(7) A counter-affidavit has been filed on behalf of the respondent No.1 with regard to the first contention and in reply to ground Ix, it has been stated that the representation made before the Advisory Board was duly considered by the Board while forming opinion for detention. Mr. Sharma, the learned Standing counsel appearing on behalf of the respondent No.1, however, contended that no representation was made by the petitioner to the detaining authority and as such the question of its consideration by the appropriate Government did not arise.

(8) Similarly a reply affidavit has been filed on behalf of respondent No.2 with regard to the second contention, but no explanation has been given with reference to the alleged delay in disposal of the representation dated 20th October, 1992 by the Central Govt.. Mr. Shali, the learned Standing counsel appearing on behalf of the Uoi did not add anything to what has been stated in the aforesaid counter affidavit.

(9) The question which requires consideration in this case is whether the detaining authority was not obliged to consider the representation simply because the same was addressed to the Advisory Board and not to the detaining authority. The answer to this question is found in the judgment of the Supreme Court in the case of Smt.Gracy (supra). It will be relevant to reproduce the following portion from the said judgment :- "IT being settled that the aforesaid dual obligation of consideration of the detentu's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention of the learned Solicitor General. The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguard provided to the detenue in case of preventive detention."

(10) From the law laid down by the Supreme Court in the above mentionedcase,IT is clear that once the detenu makes a representation either to the Advisory Board or to the Detaining authority, such a representation has to be considered by the determining authority independent of its consideration by the Advisory Board. Since the representations dated 19.10.92 and 20.10.992 addressed to the Advisory Board were not considered by the detaining authority, there is a clear violation of the mandate given in Article 22(5) of the Constitution of India and as such the impugned order of detention is liable to be quashed.

(11) The impugned order of detention is also not sustainable in view of the unexplained delay of about 45 days in disposing the representation dated 20th October, 1992 by the Central Government in view of the law laid down by the Supreme Court of India in the case of Raghvinder Singh (supra) and in the case of Mahesh Kumar Chauhan Vs Uoi, .

(12) In view of the reasons given hereinabove, I quash the impugned order of detention dated 4th August, 1992 and the petitioner is directed to be set at liberty, if not required to be defamed in any other proceedings.