Umesh Bhatia vs Union Of India And Ors.
1993 Latest Caselaw 586 Del

JUDGMENT

Anil Dev Singh, J.

(1) In this writ petition under Article 226 of the Constitution of India, the challenge is to the order of detention dated May 5,1993 passed by the Joint Secretary to the Govern- ment of India against the petitioner. The detention of the petitioner 'has been ordered under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( for short 'COFEPOSA ACT).

(2) The facts set out in the grounds of detention are as under: On March 10,1993 the petitioner was intercepted in the security zone of the Igi Airport, New Delhi, when he was about to fly to Singapore. His baggage was recalled from the aircraft and searched. The search of the baggage resulted in seizure of the following currencies:- "1.US37850 2. Dm 12050 3. Sing. 1450 4. Can. 2050 5. Lira 49,60,000 6. Bahrin Dinar 10; 7. Oman Riyal 10 8. Yen 1000. 9. Thai Bhatt 210. 10. Spanish Pese to 5000 11. Mal 20 12. Uk Pounds 1000 and 13. Us Travellers cheques 1280"

Pursuant to the notice under Section 40 of the Foreign Exchange Regulation Act, 1973 the petitioner, inter alia, admitted the seizure of the foreign currencies from his baggage. He also stated that he had purchased some of the seized travellers cheques as per the following details:- "1) American dollar Tc 240 at the rate of 32.00 from Harish Taneja, who was working at Shyama Guest House, Iit Gate, New Delhi. 2) 200 American Dollar Tc at the rate of Rs.32.00 from Rajiv Grewal who was working at Shyama Guest House. 3) 800 American Dollar Tc at the rate of Rs.32.00 from a Pathan named Mama, who resides somewhere in Ballimaran."

The residential premises of the petitioner were also searched and certain documents were seized. This incident resulted in the arrest of the petitioner. He was produced before the Metropolitan Magistrate who remanded him to custody till March 24, 1993, which was further extended from time to time.

(3) Learned counsel for the petitioner has attacked the impugned order mainly on two grounds:

1.The representation filed by the petitioner was disposed of after a period of 36 days by the Government of India and the delay in disposing of the representation has not been properly explained; and

2.The petitioner was in custody when the order of his detention was made and there was no imminent likelihood of his release on bail. Therefore there was no justification for the detaining authority to pass the impugned order.

(4) It is not disputed that the petitioner on May 19,1993 made are presentation to the Government of India by handing over the same to the Supdt. Central Jail Tihar. This representation was received in the Cofeposa Branch of the Ministry of Finance on May 25, 1993. On the same day, the Joint Secretary-called for the comments of the sponsoring authority and the latter forwarded the comments to the Cofeposa Branch of the Ministry of Finance vide its letter dated June 1, 1993. Comments, however, were received by the concerned branch on June 4, 1993. Thereafter on June 8,1993 Joint Secretary (COFEPOSA) transmitted the papers to the Director General (EIB). The Director General (EIB) in turn sent the file to the Minister of State (Revenue & Expenditure) on June 14, 1993, who submitted the same to the Finance Minister on June 17,1993 for consideration and disposal of the representation. Ultimately on June 19, 1993 the Finance Minister rejected the representation of the petitioner but the file was received back in the Cofeposa Branch on June 24, 1993. The order rejecting the representation was communicated to the petitioner on June 24, 1993 itself.

(5) Learned counsel for the petitioner submits that there has been delay in the disposal of the representation at various levels. He points out that the representation was filed through the Superintendent, Central Jail, Tihar on May 19,1993 but reached the Cofeposa Branch only on May 25, 1993. Learned counsel claims that the tardy movement of the representation was due to the slackness on the part of the authorities concerned. The next phase of the delay, as per the learned counsel, is of ten days, commencing from May 25, 1993, when the Jt.Secretary (COFEPOSA Branch) called for comments of the sponsoring authority, to June 4, 1993, when comments of the sponsoring authority were received in the Cofeposa BRANCH. The third spell of the delay of six days is alleged to have taken place at the level of the Director General (EIB), who received the representation on June 8,1993 but forwarded the same to the Minister of State (Revenue & Expenditure) on June 14,1993, who in turn forwarded the representation to the Finance Minister on June 17, 1993 and the Finance Minister rejected the representation of the petitioner on July 19,1993. Learned counsel for the petitioner pleads that though the Finance Minister considered and decided the representation of the petitioner on July 19,1993, the file, however, was received back on June 24,1993 in the Cofeposa Branch, thus entailing a fourth spell of delay of five days.

(6) Learned counsel appearing for the respondent submits that there was no delay in disposing of the representation. The representation was attended to at all levels with expedition and there was no inaction on the part of the authorities.

(7) It is not disputed that the representation of the petitioner was received by the Jail Superintendent on May 19,1993 but the same reached the Cofeposa Branch on May 25, 1993" even though Tihar Jail and the Cofeposa Branch are located in the metropolis of Delhi. In regard to the delay in receipt of the representation in the Cofeposa Branch, learned counsel for the respondent submits that the representation was addressed to the Secretary, Ministry ofFinance, Department of Revenue, North Block, New Delhi whereas in the grounds of detention it was pointed out that the representation, if any, should be addressed to the Secretary/Jt.Secretary (COFEPOSA), Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th floor, "B" Wing, Janpath Bhavan, Janpath, New Delhi-110 001.1 have perused therepresentation. It shows that the same was addressed to the Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi. There is no explanation by the petitioner as to why the representation was not addressed to the Secretary/ Jt.Secretary (COFEPOSA) Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th floor, "B" Wing, Janpath Bhavan, New Delhi. The petitioner having failed to abide by the instructions given in the grounds of detention cannot now blame the respondent for the delay, if any, in the receipt of the representation in the Cofeposa Branch. The Cofeposa Branch is located in Janpath while the office of the Secretary, Ministry of Finance is in North Block, New Delhi. The petitioner himself created this confusion which presumably delayed the receipt of the representation in the concerned branch.

(8) In so far as the time taken by the sponsoring authority for sending its comments., on the representation of the petitioner, to the detaining authority is concerned, I do not find that there has been any undue delay in this regard. The sponsoring authority on May 25, 1993 received the direction of the Joint Secretary for furnishing its comments on the representation of the petitioner and the same were recorded on June 1, 1993. Thereafter the comments were dispatched and the same were received in the Ministry of Finance, Cofeposa Branch, on June 4,1993. It is not disputed that June 2, 1993 was a holiday. Having regard to the fact that comments were required to be given by the sponsoring authority after due consideration and application of mind, few days p73 consumed in the process cannot be used to fault the authority or charge it with having taken unreasonable time in sending the comments.

(9) As regards the alleged delay occasioned at the level of the Director General (EIB) is concerned, it needs to be pointed out that the file was sent to the Director General on June 8,1993 and June 12, and 13, 1993 were holidays. On June 14, 1993 representation was submitted to the State Minister for Finance, who in turn forwarded the same to the Minister for Finance. Therefore, the Director General (EIB) took only four effective days to deal with the file. In these circumstances it cannot be said that the Director General (EIB) exhibited any slackness in dealing with the file of the petitioner. The representation was finally transmitted to the Finance Minister on June 17,1993, who disposed it of on June 19,1993. At this level also there was no delay in dealing with the representation of the petitioner as the Minister of Finance took only two days to consider and reject the same. After the rejection of the representation by the Finance Minister, the file was received back in the Cofeposa Branch on June 24, 1993.There is a gap of five days between the rejection of the representation and the receipt of the file by the Cofeposa Branch. Learned counsel for the respondent points out that 19th and 20th June,1993 were holidays. Besides the file had to come back through the same channel. Therefore, it cannot be said that there was any undue and unreasonable delay in the transmission of the file from the office of the Minister of Finance to the office of Jt.Secretary, Cofeposa Branch.

(10) Learned counsel for the petitioner cited number of judgments on the question of delay in dealing with representation of a detenu and the consequence flowing there from. It is not necessary to refer to the decisions cited by the learned counsel for the petitioner as the question of delay has to be seen in the facts of each case and there is no hard and fast rule or a strait-jacket formula which can be applied in determining the same. It is well settled position in law that a detenu has a valuable right under Article 22(5) of the Constitution of India to file a representation against his detention to the detaining authority and correspondingly there is a constitutional duty imposed upon the detaining authority to dispose of his representation within a reasonable period of time. Any inaction, slackness or indifference shown to the representation filed by the detenu infringes Article 22(5) of the Constitution. In the event of unreasonable delay in the disposal of the representation the continued detention of the detenu cannot be sustained. In the present case, there is no delay on the part of the authority in disposing of the representation of the petitioner. Accordingly the first submission of the learned counsel for the petitioner is not tenable and the same is rejected.

(11) Coming to the next submission advanced on behalf of the petitioner, learned counsel for the petitioner has drawn my attention to the fact that the petitioner was in custody when the order of detention was passed and the petitioner had not moved any application for grant of bail.

(12) On the other hand learned counsel for the respondent submits that even on the 54th day of the arrest of the petitioner, no complaint had been filed against the petitioner and there was imminent possibility of the release of the petitioner on the expiry of the 60th day, there being no certainty that the complaint would have been filed by then.

(13) Before discussing the submissions of the learned counsel for the parties it is necessary to consider the state of law on the question as to whether or not in respect of a person in custody, a detention order can validly be passed. In large number of decisions, it has been conclusively laid down that the mere fact of the detenu being in custody, when the order of detention is made and served, will not invalidate a detention order.(See: N.Meera Rani Vs. Government of Tamilnadu and another , Abdul Razak Abdul Wahab Sheikh Vs. S.N.Sinha, Commissioner of Police, Ahmedabad and another and Kamar unissa Vs.Union of India and another . In the case of Kamar unissa (Supra), the Supreme court while considering the question of validity of a detention order passed against a. person who was already in custody observed as follows:- "13.From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this court stated in the case of Ramesh Yadav was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is incustody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention.This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody".

(14) Having regard to the above decision, what has to be seen is : whether the detaining authority was alive to the fact that the petitioner was already in custody; whether the detaining authority had reason to believe on the basis of the material that there was a real possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in prejudicial activities. In this regard a perusal of para 12 of the grounds of the detention would be essential. This reads as under which reads as under: "12.INview of the foregoing,lhavenohesitationin arriving at the conclusion that you have been engaged in unauthorised transaction in foreign exchange in violation of the provisions of the Foreign Exchange Regulation Act, 1973. I am also satisfied that these unauthorised transactions indulged in by you have affected the foreign exchange resources of the country adversely. I am aware that you are in judicial custody. However, the possibility of your filing bail application for getting released on bail cannot be ruled out. Keeping in view your role in this case, I am satisfied that in the event of your release on bail, unless prevented, you are likely to indulge yourself in the activities prejudicial to the augmentation of foreign exchange resources of the country. Therefore, even though adjudication and prosecution proceedings under the Foreign Exchange Regulation Act, 1973 are likely to be initiated against you, I am satisfied that you should be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing you from indulging in activities prejudicial to the augmentation of country's foreign exchange resources, infuture."

(15) The above para reveals that the detaining authority was undoubtedly aware of the petitioner being in actual custody at the time of passing the detention order but it has not disclosed any material on the basis of which it could be said that there was a real possibility of the petitioner being released on bail.

(16) It is not disputed by the learned counsel for the respondent that in fact no bail application was moved by the petitioner. In the counter-affidavit of the respondent, there is not even a whisper about the stand which is now being taken before me by the learned counsel for the respondent that the complaint had not been filed even on the 54th day and the petitioner was likely to be released after expiry of period of 60 days. Besides para 12 of the grounds of detention avers that there was merely a possibility of the petitioner being released on bail. It is nowhere stated that there was an imminent likelihood of the petitioner being released on bail. In the case of Rivadeneyra Ricardo Agustin V. Government of the National Capital Territory of Delhi and others (Writ Petition (Cri.) 604 of 1992 decided on April 8, 1993) the Supreme Court while dealing with question of validity of the detention order of a person who was already in custody was confronted with the following para in the grounds of detention: "THE Administrator of the National Capital Territory of Delhi is aware that you are in judicial custody and had not moved any bail application in the court(s) after 9.6.92 but nothing prevents you from moving bail applications and possibility of your release on bail cannot be ruled out in the near future. Keeping in view your modus operandi to smuggle gold into india and frequent visits to India, the Administrator of the National Captial.Territory of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once you are released."

(17) It may be noted that the above ground of detention alluded to the fact that there was a possibility of the release of the detenu on bail. Similarly in the case in hand, as already seen, the grounds of detention, inter alia, speak of the possibility of the petitioner being released on bail. The Supreme Court in the aforesaid case, while considering the implication of the possibility of the release of the detenu on bail, held as follows: "THE above statement merely speaks of a possibility of the detenu's release in case he moves a bail petition. It neither says that such release was or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this court in Kamarunissa. Even in the return filed in this petition, the Authority has not stated ( in response to Ground "B' of writ petition) that there was material before him upon which he was satisified that the petitioner was likely to be released or that such release was imminent........In the circumstances, we must hold that the principle enunciated by this court in Kamar unissa Vs. Union of India and others squarely applies and the order is liable to be quashed."

(18) Therefore when a detenu is already in custody the detaining authority before passing an order for his preventive detention must come to the conclusion that the release of the detenu was imminent on his moving an application for bail and the authority must disclose the material on which it bases its conclusion.

(19) Having regard to the aforesaid discussion, I am of the opinion that the detaining authority failed to properly apply its mind to this aspect of the matter. No material what soever has been disclosed as to how the detaining authority came to the conclusion that there was a possibility of the petitioner being released on bail. Accordingly the detention of the petitioner cannot be sustained.

(20) Learned counsel for the petitioner also urges that the sponsoring authority sup- pressed certain facts as it did not produce the documents before the detaining authority which were relevant for the purpose of deciding as to whether the petitioner should be preventally detained under Section 3 of the Cofeposa Act. It is not necessary to go into this question as the petition succeeds on the second point. Accordingly the rule is made absolute arid the detention order is quashed. The respondent is directed to release the petitioner forthwith unless he is required in some other case.