Shri Brij Mohan Behl vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 627 Del

JUDGMENT

Khan, J.

1. Though petitioner's detention period was to expire shortly in the next few days, his counsel still insisted on testing the waters and wanted us to examine the validity of the detention order any way.

2. Petitioner was detained by order dated 4.8.2000 under Section 3 of COFEPOSA Act which was executed on 30.3.2001. He was supplied the grounds of detention within prescribed time. He also made a representation against his detention which was rejected. His detention order was later approved and confirmed.

3. Petitioner challenges the detention order on oft-repeated grounds viz. long and undue delay in passing of detention order and in its execution, non-supply of legible copies of some documents and failure of sponsoring authority to place some material/information before the detaining authority and all this, according to his, vitiated the detention.

4. Petitioner claims that there was a delay of 26 months in passing the detention order. While the alleged incident against him had taken place on 16.6.1998, proposal for passing the detention order was made by the sponsoring authority on 11.6.1999. The only explanation given by the detaining authority for this delay was that it had received the relevant documents on 28.7.2000 which did not justify the delay. As a matter of fact, almost all documents pertained to 1998 and were in possession of sponsoring authority and at least these should have been forwarded to Detaining Authority promptly. Even sponsoring authority had failed to explain the delay of 11 months from the date of complaint against him (14.7.1999) in sending documents to the detaining authority. All this had frustrated the object of passing the detention order and snapped the connection between his alleged prejudicial activity and his detention. Support for this is drawn from several Supreme Court judgments in Ahamed Mohaideen Zabbar v. State of Tamil Nadu and Ors. 1999 (2) JCC SC 292, S.K. Serajul v. State of West Bengal and Pradeep Nilkanth Paturkar v. Sh. S. Ramamurthi and Ors. .

5. Petitioner also alleges that there was a delay of seven months in execution of detention order which would invalidate it. Even as this order was passed on 4.8.2000, it was not executed till 30.3.2001 and there is no worthwhile explanation for this. Reliance is placed for this again on Supreme Court judgments in S.M.F. Sultan Abdul Kader v. Joint Secretary , K.M.P. Basheer v. State of Karnataka and Anr. and 1992 Crl.L.J.

6. Petitioner's next contention is that sponsoring authority had also failed to inform the detaining authority about his being in judicial custody which could have affected his decision either way. Similarly, day to day orders passed by the ACMM were also not placed before that authority. The detention order was verbatim reproduction of the dossier of the sponsoring authority and suffered from non-application of mind.

7. Petitioner also complains, though meekly, that he was not informed to make a representation against his detention and also alleges that there was a long and undue delay in consideration and disposal of his representation dated 17.4.2001 which was rejected on 29.5.2001.

8. The detaining authority, G.L. Meena, Deputy Secretary (Home) has filed a counter affidavit giving his version. It is explained by him that proposal for petitioner's detention was received on 11.6.1999. It was put before the Screening committee on 5.7.1999 and thereafter sponsoring authority was asked to furnish documents/information which were received in April 2000. The matter was again placed before Screening Committee on 27.4.2000 and the last document/information was received from the sponsoring authority on 28.7.2000 leading to the passing of the order on 2.8.2000 which was issued for execution on 4.8.2000.

9. Mr. M.K. Arora, Deputy Secretary (Preventive), Customs has also filed an affidavit for R-1 in compliance of court order to explain why documents could not be furnished to detaining authority till April 2000. He has explained that NCT of Delhi had requested for submission of all documents with translation by letter dated 29.6.1999. The matter was processed at various levels and since these documents ran into several hundred pages and as some of these had to be obtained from courts also and were to be translated in Hindi, it took time to organise all this and to make available these documents to the detaining authority. As may as 724 documents had to be translated and to top it all an additional set of 41 heads of documents was also requisitioned which took some more time in the process.

10. It is denied that there was any delay in the execution of detention order issued on 4.8.2000 which was endorsed to Police Commissioner, Delhi and Commissioner of Customs for execution. Several raids were conducted by the local police and the Customs Authorities on petitioner's given addresses but he could not be located. Action under Section 7 of COFEPOSA Act was also initiated against him. He ultimately surrendered before ACMM on 29.3.2001 and was remanded to judicial custody which fact was brought to the notice of detaining authority and orders obtained from the authority for execution of the order on him on 30.3.2001. The fact of petitioner being in judicial custody was duly brought to the notice of the detaining authority who had considered the matter and directed execution of the order against the petitioner.

11. Delay in consideration and disposal of petitioner's representation dated 17.4.2001 is also denied. It is explained that representation was received in the Home Department on 18.4.2001 and a copy of this was forwarded to the Central Government and also to the Customs Department for seeking comments and necessary action. The comments of the sponsoring authority were received on 24.3.2001 and it was put up before the detaining authority on the same day who considered and rejected it on 17.4.2001 and the outcome was communicated to the petitioner on 30.4.2001.

12. R-1 has also explained the position in this regard. It is submitted that since the representation was received after the reference was made to Advisory Board, it's consideration was kept in abeyance in the light of Supreme Court decision in K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India .

Thereafter comments were sought from sponsoring authority on 23.5.2001 and after receipt of those, matter was put up before the Under Secretary on 24.5.2001 and then before Joint Secretary on 25.5.2001 and was ultimately considered by the Revenue Secretary and rejected on 29.5.2001.

13. Petitioner's allegation that he was not supplied legible copies of some documents is also refuted.

14. The legal position on the delay resulting in invalidation of detention order is well settled. Mere delay long or short whether in passing the order or its execution does not necessarily vitiate a detention order unless it is established to be unreasonable and inordinate and goes unexplained. There is also no hard and fast rule for determining the length of time on the basis of which the delay could be held to be unreasonable or inordinate. There could be cases requiring detailed investigation under the Customs Act or for purposes of criminal prosecution and in which the Detaining Authority could also wait and watch whether to pass detention order or not. Similarly cases were conceivable where a detenu was already in custody and there was no immediate prospect of his being released on bail affording the detaining authority option to decide whether or not to take action in the matter. Likewise, the detaining authority may take its own time in asking for particulars or details from the sponsoring authority to satisfy himself whether or not to pass the detention order. Therefore, it would all depend on the facts and circumstances of the case and whether such delay was satisfactorily explained or not. Where there was no plausible or satisfactory explanation forthcoming and the delay terminate the link between the detenu's alleged prejudicial activity and his detention it would vitiate the detention order. But where it is satisfactorily explained, it would survive and sustain. The test in any case was whether the nexus between a detenu's prejudicial activity had snapped from his detention and where it was found so, it would invalidate the order. Otherwise not.

15. There is no dearth of Supreme Court judgments laying down and affirming this position and, therefore, it would be a repeat exercise to quote from these to prove the obvious. However, brief reference was required to be made to the judgments cited by L/C for petitioner quashing the detention for the unexplained delay. Supreme Court did it in Zabbar's case because Government had failed to explain the delay in passing the detention order. It was the same story in Serajul's case where seven months' delay in passing the order was found unreasonable and had gone unexplained. The same was the position in other cases decided either by the Supreme Court or this court.

16. The only test that can be gathered and culled out from these judgments is that the delay must be inordinate and unreasonable and must go unexplained and snap the link between the detenu's prejudicial activity and his detention to vitiate a detention order. If it is adequately and satisfactorily explained by the Authority, it would not invalidate the order, irrespective of length of time involved.

17. Applying this to the present case, it does not seem to us that the alleged delay was unreasonable and that it had terminated the nexus between petitioner's alleged prejudicial activity and his detention in the facts and circumstances of the case. Though the alleged delay involved in present case is two years or so but respondents have satisfactorily explained it. The matter involved voluminous record and hundreds of documents which had to be procured and translated and made available to the detaining authority to enable him to take a decision for passing the order. It is also not the case that there was any unreasonable or unexplained delay in execution of the detention order. Respondent's case is that they had conducted several raids on the local address of petitioner to serve the order but he was absconding. Action was also taken against him under Section 7 of COFEPOSA Act till he surrendered before ACMM on 29.3.2001 and the order was served on him on 30.3.2001. Therefore, it can't be said or held that respondents were sitting idle and watching on the fence or were dilly delaying the execution of order. That is how the Supreme Court looked at the issue in M.Ahmed Kutty v. Union of India 1990 SCC (Crl) 258:- ere after passing of the detention order the passage of time is caused by the detenu himself by absconding, the satisfaction of the detaining authority cannot be doubted and the detention cannot be held to be had on ground of delay in execution of the order.

18. Petitioner's other plea that there was a delay in consideration and disposal of his representation and also he was not informed of his right to make a representation is belied by the record. Respondents have given day to day account of how his representation was dealt with by them and the result communicated to him promptly and, therefore, it is not possible to hold that and delay in disposal of his representation had vitiated the order.

19. Petitioner's last plea that he was not furnished some legible documents represents his attempt to catch at straws. In any case, it is refuted by the respondents and we have no reason to believe their version in the matter.

20. This petition accordingly fails and is dismissed.