Jasbir Singh vs Central Government and others

Sat Pal, J. (Oral)

In this case, the petitioner was detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (in short, COFEPOSA) vide order, dated 6th September, 1994 (Annexure P1) passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue (COFEPOSA UNIT), New Delhi. The aforesaid order was served on the petitioner on 9th September, 1994 while he was in judicial custody. The aforesaid order has been challenged by the petitioner in this petition on the various grounds mentioned in Para 11 of the Petition.

Notice of this petition was issued to the respondents and the respondents have filed their written statement by way of affidavit of Shri K.L. Verma, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue.

Mr. Sandhu, learned counsel for the petitioner, submits that the order of detention was liable quashed inter alia on the ground that the representation dated 29th September, 1994, submitted by the petitioner to the Central Government was not promptly disposed of by the Central Government. In this connection, he drew my attention to para 10 of the petitioner, wherein it has been stated that the representation was addressed to the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue (the detaining authority in this case) and it was requested in that representation itself that the copy of the said representation be also forwarded to the Central Government through the Finance Minister, Government of India. He submitted that the representation dated 29th September, 1994 which was received in COFEPOSA Unit on 5th October, 1994, was rejected on 7th December, 1994. In support of this contention, the learned counsel placed reliance on the following judgments :

Mohinuddin v. District Magistrate Beed and others, AIR 1987 SC 1977.

Kusho Mahton and another v. The State of Bihar, AIR 1980 SC 789.

The learned counsel further submitted that from the counter affidavit, filed on behalf of the respondents, it appears that the representation submitted by the petitioner to the Central Government was dealt with only after the receipt of the report from the Advisory Board and prior to the receipt of the report of the Advisory Board, the representation was not even placed before the Central Government. He, therefore, contended that the order of detention was liable to be quashed on this ground also. In support of this contention, he placed reliance on a judgment rendered by the Constitution Bench of the Supreme Court in the case of Jaya Narayan Sukul v. State of West Bengal, AIR 1970 SC 675 and judgments in Moosa Hussein Sanghar v. State Of Gujarat and others, 1993 SC (Criminal) 340 : 1993(1) Recent CR 638 (SC) and Mavalshankar Ishwarlal Dave v. State of Gujarat, 1994 Criminal Law Journal 2170.

Mr. Rathee learned Sr. Standing Counsel appearing on behalf of the respondents submitted that the alleged delay in disposing of the representation dated 29th September, 1994 has been duly explained in the counter affidavit filed on behalf of respondents 1 and 2. In this connection he drew my attention to paras 9 and 10 of the counter affidavit wherein it has been stated that the said representation was received in the COFEPOSA Unit on 5th October, 1994 and on the same date comments of the Sponsoring Authority were called for. The comments were received in the COFEPOSA Unit on 18th October, 1994 and since the concerned officer was on tour in connection with Central Advisory Board meeting with effect from 21st October, 1994 to 25th October, 1994 the case was put up before the Detaining Authority on 26th October, 1994 and after considering the representation the Detaining Authority rejected the same on his own behalf as well as the Central Government on 28th October, 1994 and on the same date the detenu was informed. He, therefore, contended that since the delay has been fully explained, the writ is liable to be dismissed.

Learned counsel further submitted that copy of the representation addressed to the Central Advisory Board was forwarded to the said Board and the report of the Advisory Board was received in the Ministry on 16th November, 1994. The case alongwith the said report was submitted before the Joint Secretary (COFEPOSA) on 16th November, 1994 who with his recommendations submitted the case to the Additional Secretary (Administration) on 16th November, 1994. The Additional Secretary considered and submitted the case to the Secretary (Revenue) on 21st November, 1994, 18th November to 20th November being holidays). The Secretary (Revenue) considered and submitted the file to the Minister of State (R&E) on 22nd November, 1994, who was on tour from 23rd November, 1994 to 4th December, 1994 and he could consider the same and submit representation to the Finance Minister on 5th December, 1994. The Finance Minister rejected the representation on 6th December, 1994 and the file was received back in the COFEPOSA Unit on 7th December, 1994 and the detenu was informed on that date.

I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the original records which were produced by the learned counsel for the respondents.

From the records I find that representation addressed to the Detaining Authority was received in the COFEPOSA Unit on 5th October, 1994 and after the comments were received from the Sponsoring Authority, the same was put up by the Under Secretary to the Detaining Authority on 26th October, 1994. The Joint Secretary, (COFEPOSA) who was the detaining authority considered the representation and rejected the same on 28th October, 1994 and there is no unexplained delay in disposing of the representation by the Detaining Authority.

So far as representation addressed to the Central Government is concerned I find from the records that though a copy of the representation addressed to the Central Government was received in the COFEPOSA Unit on 5th October, 1994, but the same was processed in the Ministry on 16th November 1994, when the case was put up by the Under Secretary. From this note it further appears that before putting up note even the report of the Central Advisory Board seeking its opinion had already been received. No explanation whatsoever for delay in processing the representation to the Central Government is forthcoming either from the counter affidavit filed on behalf of the Central Government or from the records produced by the learned counsel for the respondents. There is substantial delay i.e. from 5th October, 1994 to 16th November, 1994, which has not been explained at all by the respondents. On this ground alone the continued detention of the petitioner is liable to be quashed. The view I have taken finds full support from the judgments of the Supreme Court in the case of Mohinuddin (supra) and case of Kusho Mahton (supra).

It may be relevant to point out here that the representation addressed to the detaining authority as well as to the Central Government are required to be disposed of by the Detaining Authority as well as by the Central Government separately and independently. In this connection reference may. be made to a recent Judgment rendered by the Constitution Bench of the Supreme Court in case Kamlesh Kumar Ishwardas Patel v. Union of India and others, 1995(1) AD SC (Cr.) 261 : 1995(2) Recent Criminal Reports 276.

The detention of the petitioner cannot be sustained on another ground. It has been repeatedly held by the Apex Court that representation addressed to the Central Government has to be disposed of expeditiously without waiting for the report of the Central Advisory Board. In this connection reference may be made to the judgments of the Supreme Court in the cases of Jaya Narayan Sukul (supra), Moosa Hussein Sanghar (supra) and Mavalshanakr Ishwarlal Dave (supra) which have been relied upon by the learned counsel for the petitioner. From the records produced by the learned counsel for the respondents it is evident that the representation of the petitioner addressed to the Central Government was kept pending in the files of the department till the report of the Central Advisory Board was received by the COFEPOSA Unit of the department. In view of the law laid down by the Supreme Court, the detention of the petitioner has to be quashed on this ground also.

For the reasons recorded hereinabove, the writ petition is allowed and it is held that continued detention of the petitioner has become illegal. The petitioner is directed to be released forthwith in case he is not required to be detained in any other case.