Pramod Kumar Garg @ Ravinder ... vs Union Of India And Ors.
1994 Latest Caselaw 370 Del

JUDGMENT

D.P. Wadhwa, J.

(1) The petitioner, a detenu under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974(for short 'the Act'), filed this petition under Article 226 of the Constitution for his release from the custody. The petitioner was detained on 3 January 1994 under order dated 22 December 1993 by the Lt. Governor of the National Capital Territory of Delhi in the exercise of the powers conferred upon him under section 3 of the Act on his satisfaction that it was necessary to detain the petitioner with a view to preventing him from smuggling goods and also preventing him from engaging in transporting, concealing and keeping smuggled goods. The petitioner was supplied with the grounds of detention. He had been intercepted on the night of 18/19 September 1993 when he arrived from Hongkong via Bangkok by an Air France flight at Indira Gandhi International Airport, New Delhi. He had concealed gold secreted in his body which he ejected through his rectum. This resulted in recovery of 14 pieces of gold biscuits of ten tolas each bearing foreign markings having 24 carat purity and valued at over Rs.7.18 lakhs. Scrutiny of his passport revealed that he had visited abroad as many as ten times in the year 1993 for short durations even for three or four days.

(2) This petition was filed on I February 1994 when notice to show cause was issued to the respondents as to why rule nisi be not issued. There are three respondents, namely, the Union of India through the Secretary, Ministry of Finance, Department of Revenue; the Lt. Governor of the Govt. of National Capital Territory of Delhi; and the Superintendent, Central Jail, Tihar, where the petitioner had been detained. The notice issued was returnable on21Februry1994. On thisdatc,only counsel for the first respondent appeared and none for respondents 2 and 3. Time was granted to file answer to show cause notice within ten days and the matter was adjourned to 4 March 1994. On this date, counsel for Union of India said that she would be filing her answer to show cause notice in-the registry during the course of the day. Again none appeared for respondents 2 and 3. We, therefore, issued notice to Mr. P.S. Sharma, Standing Counsel p63 (Criminal), Delhi Administration, for Ii March 1994, when again nobody appeared for respondents 2and3 and the matter was adjourned to 16 March 1994. On this date, Mr.P.S. Sharma appeared and on his request we adjourned the matter to 18 March 1994. Proceedings of 18 March 1994 were recorded as under:- "CRIMINAL.W.77/94: Mr. Sharma says the file is in the process of being put up before the Lt. Governor. Mr. Malhotra says the Advisory Board meeting was held on 18 February 1994 and till date he has not been informed whether his detention has been confirmed or the Advisory Board has given opinion that there is no sufficient cause for the detention of the petitioner. We will require Mr. Sharma to produce the relevant file by 21 March 1994. "

On 21 March 1994 we recorded as under :-    "CR.Writ No. 77/94: Mr. Sharma says he had a talk with the Deputy Secretary on Friday last and he told him that he would himself go to the Lt. Governor and get the file from there. Let the matter be listed again on 22 March 1994 when the concerned Deputy Secretary (Home) with relevant file shall appear in court in person. "  

On 22 March 1994 Mr. M.U.Siddiqui, Deputy Secretary (Home), Govt. of National Capital Territory of Delhi, appeared. It was stated that the Advisory Board constituted under section 8 of the Act, and to whom the case of the petitioner was referred for opinion as to whether or not there was sufficient cause for his detention, had opined on 22 February 1994 that there was no sufficient cause for the detention of the petitioner. The petitioner was released only on 22 March 1994 from detention.   

(3) It was a serious matter. On the one hand, nobody appeared for respondents 2 and 3 in spite of service, and it was only after we persisted that it came to light that the Advisory Board had given opinion that there was no sufficient cause for the detention of the petitioner which was on 22 February 1994, but the petitioner could be released only on 22 March 1994.   

(4) Under clause (b) of sections of the Act, the Government of the National Capital Territory of Delhi, within five weeks of the date of detention of the pedtitioner, was to make reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make report as envisaged under subclause    (A)of clause (4) of Article 22 of the Constitution. Under clause (c) of section 8, the Advisory Board is to give its opinion within eleven weeks from the date of detention of the person concerned as to whether or not there is sufficient cause for his detention. Clause (f) is as under :- (f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned far such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion' no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith."  

The Advisory board gave its opinion on 22 February 1994 and on the same day it was forwarded to the Deputy Secretary (Home), Government of National Capital Territory of Delhi. After the receipt of the letter dated 22 February 1994 from the Deputy Registrar (COFEPOSA) of this Court sending therewith the opinion of the Advisory Board, there is a note on the file of the Home (Police II) Department of the Govt. of Nct of Delhi dated I March 1994 which note is as under 28) Vide F.R., Min. of Finance has furnished the copy of represent action dt. 24.1.94 made by Sh: Pramod Kumar Garg Along with comments of the customs deptt. on it. In this case the rep.ort of the Hon'ble Advisory Board has been received which did not find sufficient cause for the continued detention of Sh. Pramod Kumar Garg. In view of this, no action is required on it & it may be kept on record. " This file had been then marked to the Deputy Secretary (Home). This matter stopped at that. Then it appears on the basis of the letter dated 22 February 1994 from the Deputy Registrar, Delhi High Court, as aforesaid, a note is prepared only on 8 March 1994 wherein it is mentioned that in view of the opinion of the Advisory Board the file might kindly be placed before the Lt. Governor for ordering revocation of detention order dated 22 December 1993 passed against the petitioner. The Deputy Secretary (Home) deals with the file on the same very day and sends the file to the Secretary (Home) who records his note on the following day and also mentions that the ground as to why the Advisory Board did not find sufficient cause for detention of the detenu be brought to the notice of the Customs Department. The file is received in the office of the Lt. Governor on 10 March 1994 and it is only on 20 March 1994 that the Lt. Governor passed the following order    "REVOKED.Such negligence where the liberty of an individual is concerned, does little credit to those handling matters. "  

(5) A separate file is maintained in the office of the Lt. Governor. On 10 March 1994 when the file is received in the Lt. Governor's Secretariat, Mr.B.R. Bhardwaj, Administrative Officer records his note on 11 March 1994. He records the reason for the opinion of the Advisory Board and also the fact that the Advisory Board did not find sufficient cause for the detention of the petitioner. He places the file before the Secretary to the Lt. Governor for consideration by Hon'ble the Lt. Governor. The Secretary to the Lt. Governor puts up the file before the Lt. Governor on 15 March 1994 stating that the Lt. Governor might kindly approve the proposal of the Home Department. As noted above, the order of detention is revoked by the Lt. Governor on 20 March 1994.   

(6) In the files shown to us there is no mention anywhere as to when the notice in the present writ petition was received by the department and how that was processed. We have already referred to above the court proceedings when nobody appeared for the Lt. Governor and the Superintendent, Central Jail, though service had been effected on the Standing Counsel (Criminal) on 7 February 1994.   

(7) The petitioner is released from detention after 28 days of the opinion of the Advisory Board that there was no sufficient cause for his detention. It is quite a piquant situation that it should have taken 28 days to revoke the order of detention. This Court recorded on 22 March 1994 that clause (f) of section 8 of the Act mandates the release of the detenu immediately when the Advisory Board opines that there was no sufficient cause for the detention of a detenu. Then this Court in order to provide opportunity to "respondent No.2 to explain the grounds for delay in revoking the detention order granted two weeks' time to file an affidavit. As far as the first respondent is concerned, no action was called for. The affidavit on behalf of the second respondent was filed by the Deputy Secretary (Home) on 19 April 1994. In this affidavit, clause (f) of section 8 of the Act has been reproduced and then it is stated that the plain reading of this clause would reveal that it had two limbs, the first limb being not qualified with the word "forthwith", and that the rafter followed the second limb which said "and cause the person to be released forthwith". It was stated that the word "release" was qualified with the word "forthwith" and that the release of the person was a consequential action after the order was revoked by the appropriate Government, and it was the function of the authority with whom the detenu was detained, i.e., the Superintendent, Jail, to comply with the order of the Government revoking the detention order and to release the detenu "forthwith". It was stated that the detention order might be illegal if the detenu was kept in detention for long after the order was revoked by the Government, and that clause (f) did not enjoin upon the Government to revoke the detention order "forthwith", and that if the revocation order was passed within the overall limit of three months for which a person could be detained without referring the matter to the Advisory Board, the provision of law stood complied with. Yet another stand, without prejudice to this, in the affidavit of the Deputy Secretary (Home) was that the respondents bonafide believed that after the receipt of the opinion of the Advisory Board, both confirmation and revocation orders were to be dealt with within the overall limit of three months, i.e., the maximum period for which a person could be detained even without referring the matter to the Advisory Board. Then it was stated that the report of the Advisory Board was received in the Home Department in the evening of 24 February 1994 and the file containing the opinion of the Advisory Board was processed and put up by the office on 8 March 1994. As to the delay during the period 24 February 1994 to 7 March 1994 it is explained that there were four holidays. Further reason is stated as under :-    "The Cofeposa Branch is short of three officials for more than a year. Out of the three officials available with the Cofeposa Branch one Asstt. was on leave during this period, one Udc was on leave from 28.2.1994to3.3.1994. The only Assistant left was busy in the Hon'ble High Court in connection with Cofeposa case, namely, Harvinder Singh vs. Union of India & ors., heard in Court No. I on 1.3.1994,2.3.1994 and 4.3.1994. During this period, besides dealing with the normal official work, the following action, requiring immediate time bound attention was processed by the branch :- 1. Representation of Shri Mandip Singh was dealt with. 2. One case was processed for passing the detention order. 3. One person namely,Sh.Ajit Singh was detained during the period and relevant documents including punjab translation were served upon him. 4. 55 Parliament questions were attended for reply. 5. It is also submitted that from the above it may be seen that the officials of the branch, with the depleted strength, were busy in equally urgent time bound action, besides other routine matters. The time taken in putting up the matter for revoking the detention order before the detaining authority was unavoidable. The detaining authority was also busy in urgent state matters including on going session of State Assembly. "  

Then it is stated that the petitioner could have been detained up to three months irrespective of the opinion of the Advisory Board and that in the present case the petitioner was released within 77 days of his detention, i.e., within 3 months from the date of detention and immediately after the revocation of the detention order by the Government, and that he was not kept in detention beyond the period of three months which respondents said was the maximum period prescribed for detention without referring the matter to the Advisory Board. Reference in this connection in the affidavit of the Deputy Secretary (Home) has been drawn to the various decisions of the Supreme Court, namely, Pooran Lal LakhanPal v. Union of India, Air 1958 S.C. 169; D.S. Roy v. Union of India, Air 1972 S.C. 192; and Keshav Nilkanth Jogelkar v. Commissioner of Police, Bombay, . Then the affidavit refers to various provisions of the Act to submit that legislature provided for time schedule for different acts and actions to be taken within the time schedule as prescribed by the Act. It is stated that this time schedule is evolved obviously to provide an expeditious opportunity at different levels for testing justification of the detention order, and that though the rigours of time schedule could not be relaxed but anything done within the time frame was not unjustified. As regards the jurisdiction of the Advisory Board it is stated that it is not a judicial body and rather is in the nature of a body charged with the responsibility of advising the executive Government in regard to cases of preventive detention where it is intended that such detention shall last for more than three months. Reference was also made to a passage from the decision in D.S.Roy v.Union of India, AIR1972S.C. 192, where the court observed: "It would, therefore, prima facie appear that action should be taken immediately after the receipt of the report of the Advisory Board or at any rate within three months from the date a person is detained." It is stated, on the basis of this observation, that whatever the report of the Advisory Board the action by the executive is to be taken within an overall period of three months, and that the detention order would be illegal if a person is detained beyond the period of three months. Decisions of the Supreme Court in A.K. Roy & others v. Union of India and others, (1982) S.C.C. 272, and Verramani v. State of Tamilnadu, 1991 (1) Crimes 624, have been referred to in the affidavit for the meaning of the expression "as soon as may be" for the purpose of service of the grounds of detention, and it is stated that courts have held that in order to meet practical exigencies of administrative affairs the authorities were permitted to communicate the grounds of detention not later than five days ordinarily but not later than ten days if there were exceptional circumstances which were to be recorded. The decision of the Supreme Court in Keshav Nilkanth Jogelkar v. Commissioner of Police, Bombay, , has been referred to in the affidavit to explain the word "forthwith". It is stated that the test which the court applied for determining whether the report was made "forthwith" was whether the act was done with all reasonable dispatch and without avoidable delay. Maxwell on Interpretation of Statutes has also been referred to in the affidavit to say that the word "forthwith" does not require instantaneous compliance with the statutory requirement. It is then stated that in preventive detention matters harm is caused to the detenu if he is detained beyond the time of three months from the date of detention after the receipt of the opinion of the Advisory Board of insufficient cause or without the opinion of the Advisory Board as to the sufficiency of cause, and that it implies that while interpreting the words of statute the court have not confined themselves to the dictionary meanings of the words, but have taken into consideration the administrative exigencies and practical difficulties of the Government.

(8) From the affidavit filed by the Deputy Secretary (Home), on behalf of respondents 2 and 3, it will appear that their stand is as under : (1) the word "forthwith" appearing in clause (f) of section 8 of the Act is after the detention order is revoked, and that it concerns the jail authorities; (2) the detaining authority has power to detain a detenu for 90 days from the date of his detention irrespective of the opinion of the Advisory Board; and (3) action could not be taken on the Advisory Board's report due to exigency of work.

(9) The proposition given by the respondents is startling. It is unthinkable that when the Advisory Board has given its opinion that there is no sufficient cause for the detention of the detenu he can nevertheless be kept in custody for a period of three months. We repeatedly asked Mr, Sharma, Standing Counsel for Delhi Administration, that in case a detenu is taken into custody on 1 January 1994 and his case is referred to the Advisory Board for its opinion within one week of the detention and the Advisory Board within one week there after gives its opinion that there is no sufficient cause for detention of the detenu and that opinion reaches the detaining authority by 15 January 1994,could it be that the detenu can still be kept in detention up to 30 or 31 March 1994. He parried the question and again and again referred to the aforesaid decisions of the Supreme Court to submit that there would not be any illegality if the detenu is nevertheless detained for a period of three months from the date of detention. It appears to us that the respondents have no regard for the personal liberty of the petitioner and Article 21 of the Constitution has perhaps no meaning for them. Under Article 21,no person shall be deprived of his life or personal liberty except according to procedure established by law. Under clause (1) of Article 22 of the Constitution, no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. Then under clause (2), he is to be produced before the magistrate within 24 hours of his arrest excluding the time necessary for the journey and no such person shall -be detained in custody beyond the said period without the authority of a magistrate. Clauses (1) and (2), however, do not apply to any person who is arrested or detained under any law providing for preventive detention, and here it is the Act, which we have to refer to, which provides for preventive detention. Then clause (4) of Article 22 puts limitation on the law providing for preventive detention, and this clause (4) is as under :- "(4)HNo law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless - (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) or clause (7)."

To this clause the relatable law under the Act is contained in section 8 of the Act, relevant portion of which we have already reproduced above. Then under clause (5) of Article 22 of the Constitution, when any person is detained in pursuance of an order made, under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. To this clause is related two sub-sections (2) and (3) of section 3 of the Act, which areas under "(2)When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. (3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. "Then clause 7 of Article 22 is relevant and is as under :-"(7)4 Parliament may by law prescribe - (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)."

(10) It has been held that the Act is valid under Article 22 of the Constitution,and, therefore, one has to refer to the provisions of the Act itself for the purpose of passing of the order of detention,the detention,the opinion of the Advisory Board, and action on that by the detaining authority. It is apparent, therefore, that the moment opinion of the Advisory Board is received that there is no sufficient cause for the detention of the detenu,the detaining authority."shall revoke the detention order and cause the person to be released forthwith". The law as laid does not contemplate any exceptions and we cannot read into this law the case put by the respondents that in spite of opinion of the Advisory Board that there is no sufficient cause for the detention of aperson, the detaining authority has, nodoubt, to revoke the detention order but that could be done within three months of the date of detention of the detenu irrespective of the fact when opinion of the Advisory Board was received, and that once the detention order is revoked it is for the jail authorities where the person is confined to release him "forthwith". We do not think such proposition could ever have been advanced by the respondents. Of course, we are not unmindful of the fact that once the opinion of the Advisory Board is received the detenu is not to be released at once and time is required to meet administrative exigencies. As to what the expression "as soon as may be" or the word "forthwith" mean, the Supreme Court has already laid down the guidelines.

(11) Then the explanation offered by the respondents as to how the delay occured only adds insult to an injury. Is the personal liberty of a person dependent upon the presence or absence of a clerk in the office or that he or the department looking after Cofeposa matters over-worked ? Stand of the respondents appears to be that unless the file moves in a prescribed fashion it cannot reach the detaining authority. .Nothing can be more incongruous than that. The Lt. Governor himself while revoking the detention order disapproved the conduct of the officers handling the case terming it "negligence". Yet the stand taken by the respondents is sought to be justified before us. It is just illogical. We, however, record our satisfaction with the order issued by the Lt. Governor for future guidance to the officers, which was shown to us during course of hearing. It is as under :- "LT.GOVERNOR'S Secretariat Raj NIWAS: DELHI. No.F.9(3)(11)/94-RN/3922231 Order In order to eliminate any possible delay due to administrative exigencies, it is hereby ordered that cases relating to Cofeposa Act, cases for revocation of Orders and release of detenus/prisoners that involve the personal liberty of citizens may be brought in person by a responsible officer of the department concerned and immediately placed before me for my consideration. Heads of Departments may please ensure strict compliance of these instructions. sd/- (P.K. Dave) Lieut. Governor, Delhi. 13.5.1994 Copy to:- 1. Chief Secretary, Govt. of Nct of Delhi. 2. All Heads of Departments, Govt.of Nct of Delhi. '

(12) Nevertheless, in the present case the petitioner has been illegally detained for a period of 28 days. His fundamental right as enshrined in Article 21 of the Constitution has been breached. He would be entitled to compensation. Follow ing our judgment in Burhanuddin Tahevali Bilaspurwala v. Union of India and others, : 1993 (27) Drj 649 (DB) : 1993 (4) Delhi Lawyer 430 (DB), in which we relied on the decisions of the Supreme Court in Nilabati Behera (Smt.) alias Lalita Behera v. State of Orissa and others, ; and Bhim Singh v. State of J&K and others, , we award compensation to the petitioner at the rate of Rs.l,000/ for each day of his illegal detention.This will total to Rs.25,000.00 . Petitioner could have been released within 2/3 days of the opinion of the Advisory Board. A question also arises: why should State suffer and compensation paid out of the public revenue for the negligence shown by the functionaries of the State. In the circumstances of the present case we leave it to the Lt. Governor to recover the compensation, or any part of it, from the officers who were negligent in processing the case of the petitioner with urgency it required. We find there has been a failure at all levels.

(13) Since the petitioner has already been set at liberty no further orders are required in this petition except that we award a sum of Rs.25,000 / - as compensation to the petitioner to be paid by the Government of the National Capital Territory of Delhi.

(14) Petitioner will also be entitled to costs. Counsel fee Rs.3,000.00 .