Varyam Singh vs Union Of India
1997 Latest Caselaw 573 Del

JUDGMENT

Mahinder Narain, J.

(1) The petitioner Varyam Singh, who was holding passport No. A-0330155, was intercepted near the exit gate of the Indira Gandhi International Airport while he was coming out from the red channel after giving a declaration. Varyam Singh was holding a ticket for the sector Delhi-Frankfurt-Delhi and Emirates ticket for Delhi-Dubai Frankfurt. He had with him two pieces of checked in baggage and one hand carried black colour brief case. He was accompanied by Ranbir Singh who was holding passport No. S-242700, who was also intercepted near the exit gate of the Indira Gandhi International Airport while he was walking through the green channel. He was carrying one checked in suit case in one hand and in one hand a brief case. Both of them were asked to declare whether they had carried any gold from Frankfurt to which both of them replied in the negative.

(2) After their being intercepted, they were taken to the Custom Preventive Room and in the presence of independent witnesses were shown two packets which has been recovered from the aircraft and both of them were asked whether they had got those two packets and concealed the same in the aircraft. They admitted in the first instance that they had brought the said packets and that they had concealed the same in the meals trolley kept at the rear side of the aircraft. Both of them said that some catering staff attending to the aircraft would have removed those packets and were to be handed over the same to these two persons later on. The two packets recovered on 9.7.1996 contained 184 gold biscuits of ten tola each with foreign markings. Nothing incriminating was found from the search of their personal baggage or their person. They, however, later on retracted from their statements.

(3) Order of detention was served not only on Varyam Singh and Ranbir Singh but also on other persons who were involved in removal of the food trolleys from the aircraft. Varyam Singh made representation to the detaining authority himself as well as through his wife. For the purpose of disposing of the present writ petition, we need not refer to the representation which was made by the wife of Varyam Singh.

(4) Varyam Singh made a representation to the Advisory Board on 2.1.1997. This representation was to be considered independently by the detaining authority as well. There is a delay unexplained and unreasonable in consideration of this representation by the detaining authority.

(5) The explanation given by the detaining authority in their counter affidavit regarding the representation made to the Advisory Board is as follows:

"THE allegation of non-consideration of representation dt. 2.1.97 is wrong and the same is denied. It is submitted that the petitioner's representation dt. 2.1.97 which was submitted to the Hon'ble Chairman, Central Advisory Board was considered independently by the detaining authority, the declaring authority and the Central Govt. The detaining authority considered the representation on 15.4.97 and a memo was issued to the petitioner intimating the rejection of his representation by the detaining authority on 15.4.97. The representation was considered by the Central Govt. on 21.4.97 and a memo intimating the rejection of his representation which was addressed to the Advisory Board by the Central Govt. was issued on 22.4.97. The representation was separately considered by the declaring authority on 21.4.97. The relevant file was received back in the Cofeposa Section on 23.4.97 and a memo was issued to the petitioner intimating the rejection of his representation by the declaring authority on 23.4.97 itself. As regards representation dt. 18.11.96, the respondents crave leave to refer to the submissions made in para 2(g) hereinabove."

(6) From para 2(m) of the counter affidavit which has been reproduced above, it is clear that the representation made on 2.1.1997 by the petitioner was considered only on 15.4.1997 by the detaining authority, on 21.4.1997 by the Central Government and the declaring authority. There is, thus, delay of more than three months in considering the representation made by Varyam Singh. There is absolutely no explanation in the counter affidavit as to why it took three months to consider the representation.

(7) Mr. Malhotra appearing for the petitioner has referred to a judgment of the Supreme Court reported as 1986 Scc (Crl.) 60 wherein a Division Bench of the Supreme Court has considered 75 days delay as enormous in matters of preventive detention. In the present case, the delay is of more than 90 days. The Supreme Court had quashed the detention on unexplained delay in the aforesaid judgment, and inasmuch as there is no explanation for the delay of more than 90 days in the instant case, we also have to quash the detention order passed in the instant case.

(8) In view of aforesaid discussion, the writ petition is allowed. The detention order is hereby quashed.

(9) The petitioner Varyam Singh is directed to be set at liberty forthwith, if not required in any other case.

(10) No costs.