Rameshwar Dass vs Union Of India And Anr.
1995 Latest Caselaw 113 Del

JUDGMENT

Vijender Jain, J.

(1) The petitioner was detained in pursuance to detention order dated 2.5.1994 made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to "COFEPOSA"). It is submitted by the learned counsel for the petitioner that detenu was placed under arrest on 17.8.1993 and produced in the Court of Additional Chief Metropolitan Magistrate on 18.9.1993. Thereafter he was remanded to judicial custody. It was extended from time to time and ultimately the detenu was released on bail on 26.10.1993. It has also been stated by the petitioner that as the surety of the petitioner moved the Court for cancellation of surety, the petitioner was again taken into custody on 16.5.1994. The order of detention was served on the petitioner when he was in judicial custody on 17.5.1994. The learned counsel for the petitioner has also argued that when the petitioner was in judicial custody on 16.5.1994 the detention order which was served on 17.5.1994, and no bail application was pending before the Court, there was no imminent likelihood of release of the petitioner from the judicial custody and, therefore, the detention is wholly unwarranted, unjustified and illegal. Another ground of challenge to the detention order raised by the learned counsel for the petitioner is that the subjective satisfaction of the detaining authority stood vitiated as the detaining authority relied upon the incriminating statement of co-detenu, Prem Prakash, and has not considered the retraction statement of the detenu filed on 8.4.1994 on his production in the Court. It has also been argued that the said retraction was neither placed before nor considered by the detaining authority as the same did not find mention in the list of documents supplied to the detenu along with the grounds of detention.

(2) The next ground urged before me by the learned counsel for the petitioner is that the petitioner was served about 1760 pages, however, on careful perusal the detenu pointed out certain documents as not legible in his interim representation dated 30.6.1994 and requested for legible copies of the same. It was only on 9.7.1994 detenu was served a fresh set of re- quested documents but by that time the meeting of the Advisory Board was already held and detenu could not represent him properly and effectively. Non-supply of the documents within the statutory period implies to an infraction of his right under Article 22(5) of the Constitution of India as the detaining authority has failed to communicate the entire material relied upon and on this ground also he has assailed the detention order. Apart from these grounds, the other grounds have also been urged by the petitioner like non-supply of ground of detrition and relied upon documents in Hindi language known to the detenu, supply of irrelevant ments taken into consideration for arriving at subjective satisfaction by the detaining authority which reflects non- application of mind and documents which are unintellligible, which amounts to non-communication of the grounds of detention as envisaged under Section 3(3) of the Cofeposa Act read with Article 22(5) of the Constitution of India.

(3) Let me deal with the arguments of the learned counsel for the petitioner that when the detention order was served on the petitioner, the petitioner was in judicial custody and, therefore, to pass a preventive detention order on the ground that if he is enlarged, he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in Such activities shows non- application of the mind of the detaining authority. In Binod Singh V.District Magistrate, Dhanbad "IN this case there were grounds for the passing of the detention order but after that the detenu has surrendered for whatever reasons, therefore, the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact the detenu was in custody or that there was any real danger of his release. Nor does it appear that before the service there was consideration of this aspect properly. In the facts and circumstances of this case, therefore, the continued detention of the detenu under the Act is not justified."

(4) The fact that the petitioner had been in jail, if this fact was brought to the notice of the detaining authority before the detention order was served upon the detenu in jail, it might have influenced the mind of the detaining authority that no useful purpose would be served because the petitioner was already in jail. Therefore, before serving of the detention order, a material fact can come into existence which ought to have been considered by the detaining authority at the time of communication of detention order. In Amir Shad Khan V.L.Hmingliana & Ors. it was noticed that the law of preventive detention is harsh to the person detained and, therefore, there can be no doubt that it must be strictly con- strued. This argument has been advanced by the petitioner at the time of hearing of the arguments though this ground has not been taken by the petitioner in the petition.

(5) MS.BARKHA Babbar, learned counsel for the respondent, has stated that even if the ground has been taken by the petitioner in the petition, it is of no consequence. Learned counsel for the respondent has also cited a decision of the Division Bench of this Court in Criminal Writ No.547/1994 decided on 23.11.1994 Kimati Lal Sethi V.Lt.Governor, Ncp of Delhi & Ors. in support of her arguments. The detaining authority in exercise of powers conferred under the Cofeposa Act passes an order on the ground that on the release of the petitioner, there is likelihood of his indulging in prejudicial activities then it is incumbent upon the detaining authority to be satisfied at the time of passing the order as well as at the time of serving the order on the detenu that there was likelihood of detenu being released from the judicial custody on the basis of material placed before the detaining authority. On this ground alone that the petitioner was in judicial custody and there was no material which would show that there was likelihood of his release from the judicial custody on the day detention order was served on the petitioner, vitiates the order of detention.

(6) The other ground which has been urged before me by the petitioner is that there was undue delay in disposing of the representation of the petitioner, which the petitioner had submitted on 30.6.1994 inter alia stating that some information and documents may be supplied to the petitioner to effectively make representation. The documents as requested for by the petitioner was only supplied on 9.7.1994 and in the meantime , the Advisory Board held the meeting on 2.7.1994 thereby precluding the petitioner from effectively representing the case before the Advisory Board and ultimately on 25.7.1994 the representation was rejected. Learned counsel for the petitioner has submitted that there is an inordinate delay in disposing the representation of the petitioner. The reply of the respondent is that the representation dated 13.6.1994 was received on 14.6.1994. The letter was written to the sponsoring authority on 16.6.1994 inviting the comments from the sponsoring authority and the comments were received on 27.6.1994, which was examined and request for revocation was rejected on 5.7.1994. The explanation given in the counter-affidavit is not sufficient. The representation of the detenu has to be dealt with abundant care and promptitude, when a citizen is deprived of its liberty by the State action, special care has to be taken to see that the repre. sentation is disposed of expeditiously. If the delay has been caused on bonafide and genuine reasons, the delay must be explained by the respondent. I do not find any explanation in the affidavit for such delay with the office of the sponsoring authority and the reply is not within the parameters of the guidelines laid down by the Supreme Court in this regard. In T.A. Abdul Rahman V.State of Kerala 1989 (4) Jt 444, it was held that "the right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality." In Rashid S.K. V. State of West Bengal 1983 (3) Scc 476, Supreme Court held I - ".....THEultimate objective of the provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty the right which is highly chershed in our Republic and its protection against arbitrary and unlawful invasion."

(7) In view of the catena of cases, the detaining authority has failed to dispose the representation of the petitioner with promptitude and has failed to give any cogent reasons for delay. On this ground alone, the detention order passed on 2.5.1994 by the respondent should be quashed. I need not go to the other grounds agitated before me by the learned counsel for the petitioner, I quash the detention order passed on 2.5.1994. The detenu shall be released forthwith, if not required in any other case and is not being detained under an order of competent Court. The rule is made absolute.

(8) PETITION is disposed of accordingly.