Arvind Kumar Dhuria vs State of U.P. and Others

U.S. Tripathi, J.—By means of this habeas corpus writ Petition, the Petitioner has challenged his detention order dated 7.8.2002, passed by the State of U.P. u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (in short COFEPOSA).

Along with order of detention, the Petitioner was served with the grounds of detention, which disclosed that on 6.6.2002 on the basis of prior information Sleeper Coach No. S-6 of North East Express was checked at Platform No. 3 of Railway Station Mughalsarai by Customs Authorities and Petitioner along with one other person was arrested and on his personal search, he was found in possession of 17 pieces of gold biscuits of China mark and his associate was found in possession of 18 gold biscuits of China mark, which the Petitioner and his associate had concealed in their waist in a packing tape. The weights of the biscuits were 4,080 grams, the value of which was assessed at Rs. 22,11,360. It was 24 carat gold biscuit and of foreign origin. On enquiry the Petitioner and his associate disclosed that the above biscuits were smuggled from Nepal and were handed over to them at Samrat Hotel in New Jalpaiguri to be carried to Allahabad. The Petitioner''s statement was also recorded u/s 108 of Customs Act, in which he admitted that he was smuggling gold of foreign origin. A case was registered against the Petitioner under various provisions of Customs Act and the Petitioner was detained in District Jail, Varanasi in connection with above case. He applied for bail on 8.7.2002, which was rejected by the Magistrate on 10.7.2002. He again moved bail application before Sessions Judge, who allowed the bail application on 24.7.2002. There was real possibility that the Petitioner would be released on furnishing bail and surety bonds and on release on bail, he would indulge in similar activities in transportation of smuggled goods and smuggling.

We have heard Sri Imranulla, learned Counsel for the Petitioner, learned A.G.A. and learned standing counsel for the Respondents and have perused the record.

The detention order was challenged on various grounds, but the learned Counsel for the Petitioner raised only one point that there was unexplained and inordinate delay in disposal of the representation of the Petitioner, which rendered his continued detention invalid.

Learned Counsel for the Petitioner contended that the representation of the Petitioner with eight copies was handed over to the Superintendent, District Jail, Varanasi on 26.8.2002, but he did not transmit the above representation to the authorities concerned, but kept with him for four days and after keeping it for four days returned without any endorsement and the wife of the Petitioner was informed by the Superintendent, District Jail, Varanasi that the representation of the Petitioner shall not be forwarded through him. That again another representation was submitted on 2.9.2002 to the Jail Authorities under registered cover, which was not decided promptly.

In para 13 of the writ petition, it was alleged that the representation of the Petitioner with eight true copies was handed over by the Petitioner to the Superintendent, District Jail, Varanasi, on 26.8.2002. However, after keeping it for four days, the same was returned without any endorsement and the wife of the Petitioner Smt. Kusum was informed by the Superintendent, District Jail, Varanasi, that the representation of the Petitioner shall not be forwarded through him. In paragraph 16 of the petition, it was alleged that thereafter with a forwarding letter, the said representations were again dispatched on 2.9.2002 under registered cover to the Superintendent, District Jail, Varanasi, Principal Secretary (Home), Ministry of Finance, New Delhi, Governor of U.P., Raj Bhawan, Lucknow and the Chairman, Advisory Board (Preventive Detention), Lucknow.

In paragraph 4 of his counter-affidavit dated 12.12.2002 Sri Lal Ratnakar Singh, Deputy Jailor, District Jail, Varanasi, deposed that the Petitioner''s representation dated 4.9.2002, which was addressed to Pramukh Sachiv (Home) (Gopan Anubhag), U.P. Government, Lucknow, Sachiv Vitta Mantralaya (Finance) Vibhag, New Delhi, Chairman, Advisory Board (Detention), U.P. Lucknow, was received through registered post and it was sent on 5.9.2002 to the above authorities. In his supplementary-affidavit dated 12.3.2002, Sri Lal Ratnakar Singh, Deputy Jailor, District Jail, Varanasi deposed that the allegations made in paragraphs 13, 14 and 15 of the petition are wholly incorrect, misconceived and hence denied. The correct facts had already been submitted in the counter-affidavit. However, it is submitted that no representation was submitted in jail, as alleged in para under reply on 26.8.2002, hence there was no question of withholding the same with 3 or 4 days. In fact neither the alleged representation was placed, submitted or intended to submit on 26.8.2002, nor the same was withheld. Four copies of undated representation was submitted by the wife of the Petitioner which was received on 4.9.2002 and it was sent through registered post on 5.9.2002 to the Principal Secretary (Home) Confidential Section, U.P. Lucknow, Secretary, Ministry of Finance and Revenue Department, New Delhi and Chairman, Advisory Board, Lucknow and one copy was retained for office purpose.

The counter-affidavit of Sri C. P. Singh, Deputy Secretary, Government of U. P., at Lucknow disclosed that undated representation sent on behalf of the Petitioner to Superintendent, District Jail, Varanasi, through registered post was received at District Jail, Varanasi, on 4.9.2002 which was sent to State Government through registered post on 5.9.2002 which was received on 12.9.2002. Thereafter, copy of representation was sent to Central Government and three copies to Advisory Board on same day, i.e., 12.9.2002. Thereafter the representation was examined by office in concerned section on 13.9.2002 on same day. It was examined by Secretary, Special Secretary and Secretary, Home, U.P. Government. There was holiday on 14th and 15th September, 2002, being second Saturday and Sunday. The aforesaid representation was examined and considered by Chief Secretary and same was rejected on 16.9.2002.

Counter-affidavit of Sri V. K. Khanna on behalf of the Union of India disclosed that representation dated nil of Arvind Kumar Dhuria COFEPOSA detenu/Petitioner addressed to Secretary, Ministry of Finance Department of Revenue, New Delhi, sent by wife of Petitioner was received in COFEPOSA section of the Department of Revenue, Ministry of Finance, New Delhi on 5.9.2002. Parawise comments were called from the Sponsoring Authority, vide letter dated 5.9.2002. The comments on representations sent by Sponsoring Authorities, vide letter dated 9.9.2002 were received on 11.9.2002 in the evening at 5.30 p.m. The case file was submitted to the Under Secretary (COFEPOSA) on 12.9.2002. The Under Secretary (COFEPOSA) processed the care and put up to the Joint Secretary (COFEPOSA) on same day. The Joint Secretary (COFEPOSA) in turn submitted the file to the Secretary, Ministry of Finance, Department of Revenue on 16.9.2002 (14th and 15th September, 2002) were holidays being second Saturday and Sunday respectively). The Secretary, Ministry of Finance considered the representation on behalf of Central Government and rejected the same on 17.9.2002.

From perusal of above counter-affidavits of Sri C. P. Singh and Sri V. K. Khanna, it is clear that representation of the Petitioner were received by the Central Government and State Government on 5.9.2002 and were finally disposed of an 16.9.2002 and 17.9.2002 respectively. Action taken on each and every day has been explained and thus there is no unexplained delay, as actions were taken promptly by the authorities concerned.

The contention of the Petitioner that his representation dated 26.8.2002 was not forwarded to the authorities by the Jail Authorities has been denied by Sri Lal Ratnakar Singh, Deputy Jailor and there is nothing on record to prove that in fact the Petitioner submitted represen-tation to Jail Authorities on 26.8.2002. No doubt, Smt. Kusum Devi, wife of the Petitioner has deposed in her rejoinder-affidavit that contents of para 7 of the counter-affidavit filed by Sri Lal Ratnakar Singh are false and hence denied. But after filing supplementary-affidavit by Sri Lal Ratnakar Singh no supplementary rejoinder-affidavit was filed either by the Petitioner or any person on his behalf. Thus, the allegation in the petition that the Petitioner submitted representation before Jail Authorities on 26.8.2002, was not substantiated by any affidavit of the Petitioner. The representation, which was received to the Jail Authorities on 4.9.2002 was undated and as such there is nothing on record to prove that any represen-tation was submitted by the Petitioner to the Jail Authorities on 26.8.2002, which was not considered and disposed of by the authorities concerned.

It was further contended that the Writ Petition No. 49262 of 2002 filed by Nirmal Kumar Jain, who was apprehended along with the Petitioner was allowed. Record of the above case shows that in the above writ petition, there was inordinate unexplained delay in disposing of the representation of the Petitioner, as there was no averment regarding representation dated 22.8.2002 referred in paragraph 24 of the writ petition. In the instant case, there is specific denial regarding submission of representation on 26.8.2002. Therefore, the grounds on which the above writ petition was allowed was totally different and has no application to the case of the Petitioner.

In this way, we find that there is no delay in deciding representation of the Petitioner.

No other ground was pressed.

We find no force in the writ petition and the same is liable to be dismissed.

The writ petition is, accordingly, dismissed.