Harwinder Singh vs Union Of India And Ors.
1994 Latest Caselaw 162 Del

JUDGMENT

Bhat, J.

(1) The appeal is against an order dismissing the writ petition of the appellant (referred as the petitioner hereinafter) seeking his release from detention.

(2) The petitioner was detained by virtue of an order dated 23/4/1993 made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (here in after called the Act). It was alleged against the petitioner that on 8/1/1993 he was carrying two pieces of pure gold weighing in all 2913.500 gms.valuedatRs.11,53,746.00 . Petitioner had arrived at the Indira Gandhi International Airport, New Delhi from Dubai by a flight. He was detained on the date of the impugned order. According to him he sent two representations on 28/4/1993, one addressed to the Detaining Authority (the Govt. of the National Capital Territory of Delhi), and another to the 1st respondent. He had also sent another representation on 13/5/1993. On 19/5/1993, the petitioner filed the writ petition challenging the detention order and it was admitted on 21/5/1993.

(3) Petitioner urged several contentions, all of which were rejected by the learned Single Judge. As we are of the view that the petitioner is entitled to be released from detention, in view of the unexplained delay in considering his representation, it is unnecessary to refer to the other contentions.

(4) As to the delay, the following facts are to be noted: (1) In the writ petition, the petitioner stated thus:- "THAT the petitioner/detenu says and submits that he sent a representation dated 28/4/1993 (Annexure'D') to detaining authority through Jail Supdt., whereby besides asking for the order of detention and grounds of detention in Gurmukhi/Hindi, a language known to the petitioner, a prayer was also made for revocation of the impugned detention order. However, till the filing of the writ petition, he has not received any reply whatsoever from detaining authority. It is submitted that it is enjoined upon the respondents to show to this Hon'ble Court that the said representation of the, petitioner was dealt with continuously till its final disposal and communication thereof to the detenu and on their failure to do so the respondents would render the impugned detention order illegal and void."

(5) The 1st respondent did not file any counter or reply affidavit. Respondents 2 & 3 in their reply affidavit stated that it was for the 1st respondent to explain the delay (referred as para Vi of the writ petition). However, they stated that the representation dated 13/5/1993 had been considered and rejected by the Central Government on 1/6/1993. (2) In this appeal, the 1st respondent has filed a reply affidavit. At para 3, this affidavit stated: "IN reply to the contents of para 4 it is submitted that the detenu's representation dated 3/5/93 and 13/5/93 were forwarded by Supdt., Tihar Jail, New Delhi and both the representations were received in the Cofeposa Unit of the Ministry on 10/5/93and 18/5/93 respectively. On receipt of the representations, the same were placed before the considering authority who directed to call for the para wise comments of the Sponsoring Authority. The comments were called on the 1st representation on 11/5/1993 and on the 2nd representation on 18/5/93. The Sponsoring Authority furnished parawise comments vide their letters dated 20/5/1993 and 27/5/1993 respectively and the same were received in the Cofeposa Unit on 21/5/93 for the 1st representation and 28/5/93 for the 2nd representation. The case was processed and submitted to Joint Secretary (Cofeposa) on 31/5/1993 (29/5/93 & 30/5/1993 were Holidays, being Saturday and Sunday). The joint Secretary Cofeposa is an officer empowered to consider such representations made by the detenues against the orders issued by the Government of National Capital Territory of Delhi. Joint Secretary (Cofeposa) considered the representations and being devoid of merit rejected the same on 1/6/1993 and on the very say day, a memorandum informing the detenu about rejection of his representations by the Central Government was also issued. There was no undue or unexplained delay in considering the representations of the detenu by the Central Government."

From the above narration of the dates the learned counsel for the petitioner pointed out three sets of delays: (I)Admittedly the 1st representation was dated 3/5/1993. This was forwarded by the Jail Superintendent to the Cofeposa Unit of the 1st respondent on 10/5/1993. In the course of arguments before us, the learned counsel for the respondents 2 & 3 stated that this representation sent by the Jail Superintendent through a special messenger on 4/5/1993; if so, how could there be such a delay for the representation to reach the Cofeposa Unit till 10/5/93, when both the Jail Supdt. and the 1st respondent's Cofeposa Unit are at Delhi itself. This delay of six days is not explained. (ii) Comments were called on this representation on 11/5/1993;but the Sponsoring Authority (who is also in Delhi) furnished the comments on 20/5/1993, involving another 9 days delay. (iii) Comments were received at the Cofeposa Unit on 21/5/1993, but the case was processed as on 31/5/1993; out of these 10 days, 2 days being Holidays may be excluded; even then there was a delay of 8 days. Thus in all the delay of 23 days remains unexplained.

(6) The learned counsel for the petitioner pointed out that, since, no reply affidavit was filed to the writ petition, we should not entertain the present reply affidavit of the 1st respondent. Alternatively she contended that, even on the basis of the present reply affidavit, a total delay of 23 days has not been explained and therefore, the detention of the petitioner is unconstitutional, being violative of Article 22(5) of the Constitution of India.

(7) The alternative contention of the learned counsel for the petitioner, is sufficient to dispose of the appeal. However, the learned counsel for the 1st respondent raised a preliminary objection to the maintainability of this appeal, on the ground that the appeal arises out of an order made in exercise of Criminal jurisdiction and no Letters Patent appeal lies. RE: Maintainability Of The APPEAL:

(8) The learned counsel for the 1st respondent contended that this appeal is not maintainable, because the proceedings arise out of the Criminal jurisdiction of the Court, and that a writ petition seeking a writ of Habeas Corpus, is a criminal proceedings. It was argued that Letters Patent Appeal lies only against a judgment rendered in a civil proceedings. A decision of this Court dated 2/8/1985 in The Administrator Vs. Mohinder Kumar Agarwal (L.P.A. 110 of 1985) was referred. There the short order of the court was as follows:- "THIS appeal is incompetent under Clause X of Letters Patent. Letters Patent Appeal lies only against the exercise of Civil Jurisdiction by the Learned Single Judge of the High Court. No Letters Patent Appeal lies against exercise of Criminal Jurisdiction by the High Court. This appeal is dismissed."

(9) We assume that the above decision was rendered in an appeal from a decision in a writ petition seeking the relief of writ of Habeas Corpus. We are of the view that we are not bound by the said decision; firstly, there is no discussion on the relevant question, and the Court assumed that a writ petition filed under Article 226 of the Constitution of India, wherein, detention order is sought to be quashed, is a proceeding under the Criminal Jurisdiction; secondly, this assumption now stands over-ruled by the decision of the Supreme Court in Umaji Keshao Meshram and others Vs.Smt. Radhikabai & another, , wherein the court observed: "CONSEQUENTLY where a petition filed under Article 226 of the Constitution is according to the rules of a particular High Court heard by a single Judge, an intra-Court appeal will lie from that judgment if such a right of appeal is provided in the charter of that High Court, whether such Charter be Letters Patent or a Statute. Clause 15 of the Letters Patent of the Bombay High Court gives in such a case a right of intra-court appeal and, therefore, the decision of a single Judge of that High Court given in a petition under Article 226 would be appealable to a Division Bench of that High Court."

(10) Though the decision was rendered in the context of a writ petition filed challenging an order under the Tenancy Act, the decision brings out the nature of the proceedings under Article 226 of the Constitution of India as also the scope of an intra-court appeal provided under the Letters Patent or a Statute.

(11) While tracing the history of writ jurisdiction vested in the Chartered High Court, the Supreme Court referred to a few decisions of various High Courts and the Privy Council, where, it was held that such a jurisdiction was an Original Jurisdiction of the High Court and therefore, an order made in the exercise of the said jurisdiction was appealable under the Letters Patent. The Supreme Court referred to a Bench decision of the Bombay High Court in Mahomedalli Allabux Vs. lymailji Abdulali; Air 1926 Bombay 332. In the said decision of the Bombay High Court, the facts were:- "A learned Single Judge had issued a writ of Habeas Corpus, in the exercise of the then powers under Section 491 of the Criminal Procedure Code (as also invoked the "Common Law Powers" of the Court). It was in the year 1926. Question was whether the writ was issued in the exercise of criminal jurisdiction; the Division Bench held that, the order of the Judge directing a writ of Habeas Corpus was not an order made in the exercise of criminal jurisdiction."

(12) We are also of the view that, only because for the sake of convenience, such a writ petition file under Article 226 of the Constitution of India is identified by the nomenclature of "Criminal Writ", it cannot be considered as a proceeding under the Criminal jurisdiction. Article 226 itself refers to several writs which could be issued by the High Court. It creates a constitutional jurisdiction, which is entirely original; in ordinary parlance, it can be referred as a Special Jurisdiction; it cannot be classified as a Criminal jurisdiction, at all, only because, a person in detention can invoke it for his release, In fact, the right sought to be projected and enforced by the petitioner, is a fundamental right and his case is that his fundamental right is violated.

(13) A detention under Cofeposa is not a detention consequent on any finding of guilt; it is not penal at all. Detention order is made on the basis of "suspicion" based on relevant materials; the detention order is purely preventive, to prevent the detenu from indulging in certain activities for a specified period. We over rule the petitioner's objection. RE: Delay In Considering The REPRESENTATION:

(14) Learned counsel for the I st respondent strongly relied upon the decision of the Supreme Court in Smt. Kamlabai Vs. Commissioner of Police, Nagpur, , where the petitioner contended that from 18/6/1992 to 13/7/1992 no explanation was given regarding the delay in considering the representation of the detenu. Representation was dated 11/5/1992, which was received on 14/5/1992. Reply was given on 26/5/1992 by the State Government. The delay with the Central Government was explained through an affidavit pointing out the wireless messages sent asking for informations; but it is not clear whether no specific mention of this period between 18/6/1992 to 13/7/1992 was made in the affidavit. The Supreme Court observed: "THE delay by itself is not a ground which proves to be fatal, if there is an explanation. However, the short delay cannot be given undue importance having regard to the administrative actions. We do not think that the delay in this case is so inordinate as to warrant interference."

(15) This decision has to be taken Along with other several decisions of the Supreme Court where, repeatedly the Supreme Court pointed out that whether the delay in considering the representation of the detenu is fatal to the detention depends upon the facts of each case, and that normally the authority to whom representation was made has to explain the delay by filing an affidavit in answer to the writ petition challenging the detention. If the representation was to the Central Government and delay is alleged against it, it is for the Central Government to explain the delay and non-filing of an affidavit by the Central Government in answer to the writ petition, on this aspect of the case, should result in drawing an adverse inference against it and court may have to hold that there has been an unexplained delay. It is only in exceptional cases. Court may ignore the non-filing of the affidavit by the Authority responsible for the delay.

(16) The requirement to consider the representation expeditiously flows from Article 22(5) of the Constitution. Delay defeats the detenu's right to have his representation considered with utmost speed.

(17) In Ram Sukrya Mhatre Vs. R.D. Tyagi 6- Others; 1992 Scc (Cr.) 960, the Supreme Court held, at para 7 (at page 962): "IT is settled law that right to representation under Article 22(5) of the Constitution includes right to expeditious disposal not only by the State Government under the relevant provision of the statute, but also by the Central Government. But in each case it is one of fact to be ascertained whether the Central Government or the State Government, as the case may be, has caused delay due to negligence, callous inaction, avoidable red-tapism and undue protraction by the authorities concerned. As stated earlier, expedition is the rule and delay defeats mandate of -Article 22(5). So the authority is obligated to explain the delay by either filing a counter affidavit by the officer concerned on behalf of the appropriate government or by producing the record in dealing with the case. Unfortunately, in this case the delay was not properly explained in the counter affidavit filed on behalf of the Central Government. Pursuant to the notice issued by this Court, the record has been produced before this court. The note file discloses that on August 8, 1991 the officer concerned put up the note before the Deputy Secretary, who in turn has submitted the file on August 9, 1991 before the Joint Secretary. The Joint Secretary expressed his views on August 12,1991 and on the same day the Secretary also disposed of the same and forwarded the file to the Home Minister. The Home Minister on consideration of the record, by his noting dated August 24,1991 rejected the representation of the appellant and thereafter it was duly communicated on August 27, 1991."

(18) In Mahesh Kumar Chauhan (a) Bante Vs. Union of India and others, delay in sending the comments by the Sponsoring Authority vitiated the detention. Comments were sought by the Department on 25/8/1989, but comments were sent only on 11/9/1989 (a delay of 17 days).

(19) In Gazikhan @ Chotia Vs. State of Rajasthan and another; 1991 Scc (Cri.) 24, there was no explanation for the delay between July 3 to9,1989 i.e. 7 days, even to put up a note on the basis of the comments received; this vitiated the detention. No affidavit was filed by the authority, and the delay was sought to be explained in the affidavit of a Deputy Superintendent of Police.

(20) In Rattan Singh Vs. State of Punjab and others; , delay was caused. by the Jail Superintendent to forward the representation, resulting in the detention getting vitiated. At page 483 the court pointed out: "MAY be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. By the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those those safeguards are not denied to the detenues. Section 11(1) of Cofeposa confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation . to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must therefore be held illegal and the detenu set free."

(21) In Julia Jose Mavely Vs. Union of India and others; 1992Crl.L.J.109, the Sponsoring Authority delayed the sending of his comments; there was no affidavit filed by the Union of India; similarly Sponsoring Authority also did not file his affidavit. Supreme Court laid emphasis on the fact that the Union of India failed to explain the delay by filing an affidavit (vide para 3 of the report).

(22) In Aslam Ahmed Zahire Ahmed Shaik Vs. Union of India & Others; Jt 1989(2) SC34, there was a delay of 7 days in transmitting the representation, from the Jail Superintendent to the Central Government; Jail Superintendent failed to explain this delay and the Supreme Court held that the detention cannot be continued validly.

(23) In Rama Dhondu Borade Vs. Shri V.K. Saraf, Commissioner of Police & Others; ; failure to explain a delay of 7 days (on 17th, 19th, 21st and 24th to 26th October, 1988) resulted in setting the detenu free from detention.

(24) The relevant principle as to why delay in considering the representation violates the detention, was explained by a Bench of 5 Judges of the Supreme Court in K.M. Abdulla Kunhi & Abdul Khader Vs. Union of India; 1991(52)ELT321. At page 324 the court observed: "THE representation relates to the liberty of the individual, the highly chershed right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words 'as soon as may be' occurring in Clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal."

(25) The delay in the instant case remains unexplained; even administrative reasons are not forthcoming. In the circumstances, we are constrained to hold that the continuation of the petitioner's detention (who has already undergone about 10 months' detention) will be illegal. Consequently, we direct the release of the petitioner forthwith, unless he is required to be detained under any other order or proceedings. The Letters Patent Appeal is allowed accordingly.