Farooq Sheikh Durrani vs Lt. Governor And Anr.
1994 Latest Caselaw 54 Del

JUDGMENT

Jaspal Singh, J.

(1) Of late there has been a burgeoning growth of case law under Article 22(5) of the Constitution relating to the disposal of the representations made by detenus. However, every case being an island unto itself, the case in hand too presents its own hues.

(2) Let me first explore, in Andy Kaufmanish detail, the history of this case.

(3) The petitioner is a Pakistani national. He came to India on November 5, 1992. Six days thereafter while he was about to leave for Karachi from the Indira Gandhi International Airport he was intercepted by the Custom Officials. His search yielded Indian Currency amounting to Rs.10,50,000.00 .This led to his arrest and the recording of his statement under section 108 of the Customs Act, 1962. Later, he was prosecuted and convicted under sections 132 and 135 of the said Act. However, what is relevant for our purposes is that on February 4, 1993 while the above-noted prosecution was still pending, the petitioner was served with an order of detention in exercise of the powers conferred by section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the Act). On March 26, 1993 the petitioner appeared before the Advisory Board and submitted a representation before it. By way of emphasis, it may be mentioned that it is this representation which has provided the bastion to the edifice raised by the petitioner.I will obviously be coming back to it but first let me complete the narrative. The Advisory Board was of the opinion that "there is sufficient cause for the detention of Farooq Sheikh Durrani". This was followed by the Order dated April 16, 1993 by the Lt. Governor of the National Capital Territory of Delhi confirming the detention and further directing under section 10 of the Act that the petitioner be detained for a period of one year from the date of his detention, that is, February 4, 1993. Since this order was the target of lot offire-work,let me reproduce the same. This is how it runs:- "WHEREA San order No.F.5/l./93-Home (P-II) dated 4.2.93 has been passed by the Lt.Governor of the National Capital Territory of Delhi under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for the detention of Shri Farooq Sheikh Durrani. 2. Whereas the case of Shri Farooq Sheikh Durrani was placed before the Advisory Board, who are of the opinion that there is sufficient cause for the detention of Shri Farooq Sheikh Durrani and 3. Whereas, the Lt.Governor of the National Capital Territory of Delhi has fully considered the report of the Advisory Board and materials on record: 4. Now, therefore, in exercise of the powers conferred by section 8(0 of the aforesaid Act, the Lt. Governor of the National Capital Territory of Delhi hereby confirms the aforesaid detention order and further directs under section 10 of the said Act that the said Shri Farooq Sheikh Durrani be detained for a period of one year from the date of his detention i.e. 4-2-93."

(4) The grievance of the petitioner is that the representation made by him before the Advisory Board had neither been considered nor disposed of and that, in any case, even if it was considered and disposed of, its result has not so far been made known to him and thus Article 22(5) of the Constitution stands violated.

(5) MR.P.S.SHARMA who appeared for the State, however, was not willing to accede any ground. His contention was that the order of the Lt.Governor reproduced above had itself made it clear that the representation had been "fully considered" and since that Order was served upon the petitioner on April 16, 1993, it amounted to communication of the result itself. I may hasten to add that with regard to the first limb of his arguments, he had relied upon the following extracted from the Order of April 16, 1993:- "3.Whereas the Lt.Governor of the National Capital Territory of Delhi has fully considered the report of the Advisory Board and the materials on record".

(6) The learned counsel for the petitioner, however, insisted that the result of the representation ought to have been communicated independently and that consequently it could not be conveyed through the order of April 16, 1993.

(7) Though undoubtedly the representation made has to be considered independently I do not think it is necessary to communicate the result taken thereon in any particular form. What is necessary is that the detenu must be made aware of the fate of his representation. If this be so, the rejection of the representation could be communicated through the order of confirmation as well. In other words, the communication of such rejection would not be taken to be bad merely because it forms part of an order of confirmation. However, the main questions still remain and they are; Did the Lt. Governor consider the representation independently and if so, did he really communicate its rejection through the order of April 16, 1993?

(8) Whatever be the stand taken by the State, the Order of April 16,1993 provides it with no passe-partout. The argument that the words: "and the materials on record" refer distinctly to the representation is a futile juristic acrobatics. Let me show how.

(9) The departmental file makes the truth come out in all its hues. Admittedly the report of the Advisory Board was received by the State on April 2, 1993.After April 2, 1993, the first note on the file is of April 6, 1993. The note of April 6, 1993 is of the Deputy Secretary (Home). It makes mention of the report of the Advisory Board and recommends the approval of continued detention of the petitioner for a period of one year from the date of detention i.e. 4-2-1993. The note was approved by the Home Secretary on April 7, 1993. On April 8, 1993 the Lt.Governor made the following note:- "APPROVED turn one year as proposed above. sd/- 8/04/93"

(10) This was followed by a noting of April 15, 1993 to the following eftect:    "FAIR confirmation order is put up for sign. "  

(11) On April 16, 1993 the order in question was issued.  

(12) What is significant to note is that the note of the Deputy Secretary (Home) dated April 6, 1993 referred to by me above makes absolutely no mention of the representation made by the petitioner. In fact the representation is not even obliquely mentioned. The order of the Lt.Governor of April 18, 1993 which has been reproduced above, also makes no mention of the representation nor does it speak of its fate. The nothings made by the officials and the approval accorded by the Lt. Governor being silent about the representation, one wonders whether any one of them was even aware of its existence. This, however, is not all. The note of the Lt. Governor nowhere mentions about his having even gone through the material on record. What may be of interest is that in the Department file at page 126 the following typed but unsigned matter marked "secret" appears:- "I have carefully gone through the entire material on record including the report of the Advisory Board, its proceedings and the material sent by the Advisory Board and also the office note from page 15 ante. I hereby confirm the detention order dated 4.2.93 passed against Shri Farooq Sheikh Durrani for a period of one year from the date of his detention i.e. 4-2-93. (P.K.DAVE) LT.GOVERNOR Of The National Capital Territory Of DELHI."

(13) My palpitating apprehension is that the Lt. Governor was expected to sign on the dotted lines, but, for some inexplicable reason (or was it oversight?), he did not.

(14) Does the entire approach not make a mockery of what is meant to be a very solemn exercise? Article 22(5) of the Constitution is not a mere dressing on a salad. It is there because security of one's liberty against arbitrary intrusion by State is basic to society. The way this case was dealt with displays total non-application of mind, and complete disregard of the conditions which were otherwise indispensable.

(15) What emerges out from above is that neither the representation was independently considered nor taken note of even obliquely and that even while passing the order of approval the Lt.Govemor put the safeguards on the scaffold. However this still is not the end of the matter.

(16) As noticed above the report of the Advisory Board was received by the Home Department on April2, 1993. Till April 6, 1993 it slept over it. Even though the approval had been accorded by the Lt.Governor on April 18, 1993 it was only on April 15, 1993 that a fair continuation order was put up turn signatures. What were the authorities doing from April 2, 1993 to April 6 1993 and in between April 8, 1993 and April 15, 1993? No explanation is forthcoming at all.Is it that the Rip Van Winkles ensconced in the pulp-soft marrow of lassitude, were refusing to come out of their deep slumber?

(17) The impugned detention order is quashed and it is directed that the detenu be released forthwith unless otherwise required.