Puran Singh vs Union of India (UOI) and Another

S.S. Grewal, J.—This petition under Articles 226/227 of the Constitution of India relates to quashment of detention order dated 29.6.1989 (Annexure p/1) passed against the present petitioner u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (as amended) (hereinafter referred to as ''COFEPOSA'' Act) with a view to prevent him from abetting the smuggling of goods.

In brief, facts relevant for the disposal of this petition as emerged from the grounds of detention (Annexure p/2) are that in pursuance to information received by officers of the Directorate of Revenue Intelligence, car bearing registration No. DNA 2616 was intercepted along with its lone occupant namely Joginder Mohan alias Babu, at about 8.30 P.M. on 28.5.1989. The said car along with its lone occupant was escorted to the office of the Directorate of Revenue Intelligence, Lodhi Road, New Delhi. From thorough search of the said car 370 foreign marked gold biscuits of 10 Tolas each, collectively valued at Rs. 1,38,11.360/- were recovered from two secret cavities in the side panels above the floor board in front of the car. On the following day, Joginder Mohan alias Babu in his statement admitted that under the instructions of the present petitioner, he accompanied Pala Singh petitioner''s brother-in-law to village Gaggobua in Fiat car No. DNA 2616 to the house of Partap Singh, where, consignment of 370 gold biscuits was concealed in two secret cavities of that car. Both Pala Singh and Joginder Mohan alias Babu returned in that car to the house of the present petitioner in Kennedy Avenue, Amritsar and from there Joginder Mohan was directed by the petitioner to take the consignment to Delhi. The present petitioner was summoned in the office of the Director of Revenue Intelligence on 15.6.1989 but he did not appear on that day, or, on 21.6.1989. On the basis of the statements of Joginder Mohan, Partap Singh and others, as well as on the basis of documents mentioned therein, the impugned order of detention was passed against the present petitioner.

The learned Counsel for the parties were heard.

It was contended on behalf of the petitioner that there was delay in passing the impugned order, as well as execution of the impugned order of detention on the petitioner, and, the said delay has not been properly explained. In the instant case the impugned order was passed within one month of the recovery of large quantity of gold biscuits from Joginder Mohan, who was the carrier and has taken the consignment allegedly at the instance of the present petitioner. Taking into consideration the fact that after recovery of gold biscuits, the Directorate of Revenue Intelligence made enquiries from various sources in order to verify the confessional statement of Joginder Mohan, which was subsequently retracted, and thereafter the impugned order of detention was passed after some delay. It is true that the petitioner was arrested on 25.8.1989 in criminal case and thereafter the impugned order of detention was served on him on 6.9.1989 in the jail itself. However, there is no plausible explanation, as to why no appropriate efforts were made for execution of the impugned order of detention on the petitioner for a period of about 2 1/4 months. In reply to para No. 3 of the petition, Union of India has also taken the position that the petitioner was absconding. However, no proper material has been brought on the record, which, could show that the petitioner has either absconded, or, was declared as a Proclaimed Offender.

The second contention raised by the learned Counsel for the petitioner is that the representation made by the petitioner on 17.9.1989 through the jail authority to the Central Government (Annexure P/5) was not considered expeditiously, as contemplated under Article 22(5) of the Constitution of India. Superintendent Central Jail, Amritsar in its reply has taken up position, that the copy of the representation was submitted by the petitioner on 11.10.1989, though, it was prepared by his counsel on 17.9.1989 and the same was forwarded to the quarter concerned on the same day. According to the return filed by Union of India, the said representation was received in the department on 20.10.1989. The same was forwarded for comments of the sponsoring authority on 23.10.1989, 21st and 22nd October, 1989 being holidays. In the meantime copy of the said representation was received in the office of the Deputy Director, Directorate of Revenue Intelligence, Zonal Unit, on 23.10.1989. Parawise comments were received in the department on 25.10.1989 and put up before the concerned authority on 26.10.1989 and was finally rejected on 30.10.1989. Memorandum to that effect was issued on 1.11.1989. It does not stand to reason that even though the representation was prepared by the counsel on 17.9.1989, it would not be immediately submitted to the jail authorities. Incidentally affidavit of Superintendent Central Jail, Amritsar, posted in said jail on 17.9.1989, has not been produced on the record of this case, in order to rebut the assertion made on behalf of the petitioner that representation against the detention of the petitioner was submitted to the Superintendent Central Jail, Amritsar on 17.9.1989 and not on 11.10.1989. In these circumstances it is difficult to uphold the plea taken up by the jail authorities that only copy of the representation was actually received on 11.10.1989. It is quite obvious that the lame explanation referred to above has been put forth by the jail authorities, in order to cover up their own negligence. Normally, it would not take more than 2 or 3 days for the representation of the petitioner sent by the jail authority through post to reach the concerned authority at Delhi. It is thus difficult to believe that the representation sent by the jail authority, Amritsar would take 9 days to reach the authority concerned at Delhi. The matter did not rest here, it took another 10 days before the representation was finally considered and rejected after obtaining parawise comments from the sponsoring authority, which, too had been received in the department concerned on 25.10.1989. From the circumstances of the present case referred to above it is quite apparent, that, there has been sufficient undue and unexplained delay of 24 days on the part of the jail Superintendent in not sending the representation to the concerned authority and the latter too had not promptly disposed of such representation and had taken 10 days in disposing the representation of the petitioner. The inordinate and unreasonable delay in despatch and consideration of the representation of the petitioner by the Union of India is clear violation of the safeguards provided under Article 22(5) of the Constitution of India, where, the liberty of an individual is curtailed under law of preventive detention.

I find support in my view on this point from the authorities of the apex Court in Shri. Saleh Mohammed Vs. Union of India (UOI) and Others, , Aslam Ahmed Zahire Ahmad Shaik v. Union of India and Ors. 1989 C.A.R. 210 and Rama Dhondu Barde v. Shri V. K. Saraf, Commissioner of Police and Ors. 1989 C.A.R. 213 : 1989 (24) ECR 7. In the latter authority after reviewing its earlier decisions, the apex Court observed as under:

The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him, and, requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty-the highly cherished right-which is enshrined in Article 21 of the Constitution.

In para No. 15 of the said report, it was further observed as under:

True, there is no prescribed period either under the provisions of the Constitutional or under the concerned detention law within which the representation should be dealt with. The use of word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.

The authority cited on behalf of Union of India in Abdu Salarn Thiyyan v. Union of India and Ors. 1990 2 S.L.R. 52 is not applicable to the facts and circumstances of the case in hand, inasmuch as the representation in that particular case was in Malyalam and there were some allegations regarding non-placement of document and non-supply of certain documents to the detenu. Therefore, the copy of the representation was sent to the sponsoring authority i.e. Collector Customs, Cochin on that very day and the comments from the Collector of Customs, Cochin were received after 17 days and the Additional Secretary examined them and with his comments forwarded the same to the Minister of State for Revenue, and, the latter forwarded the representation on the same day to the Finance Minister, who considered and rejected the same on 1.11.1988 and thereafter memorandum rejecting the representation was sent to the detenu on the following day and it was held that the representation was considered expeditiously and there is no negligence or callous inaction or avoidable red-taptism. The facts and circumstances of the case in hand are entirely different from the facts of the afore-cited authority. Thus the authority in Abdu Salam''s case (supra) is clearly distinguishable and not applicable to the facts of the case in hand.

Another important aspect of the case is that the impugned order of detention passed against Joginder Mohan alias Babu on 29th June, 1989 u/s 3(1) of the COFEPOSA Act with a view to prevent the said petitioner from engaging in transporting smuggled goods and the declaration dated July 19, 1989 issued u/s 9(1) of the Act was quashed vide order of Hon''ble Mr. Justice P.K. Bahri of Delhi High Court dated February 19,1990 in Criminal Writ Petition No. 723 of 1989. Similarly, the impugned order of detention passed against Partap Singh, in whose house consignment of gold biscuits relating to this very case was transferred, and, concealed in the secret cavities of car No. DNA 2616, was set aside by J.S. Sekhon J. in Criminal Writ Petition No. 3612 of 1989, decided on 21.3.1990. Besides, the petitioner is already in detention in two criminal cases relating to F.I.R. No. 15 dated 17.7.1989 of police station Gharinda under Sections 411/414 Indian Penal Code 25/54/59 of the Indian Arms Act, 18/20/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985 and 14 of the Foreign Act and in F.I.R. No. 178 of 1989 of Police Station, Gharinda under Sections 307/34 Indian Penal Code, 3/34/40 Indian Passport Act, 14 Foreign Act and 5 of the Terrorist Disruptive (Prevention) Activities Act. It is quite unlikely that the petitioner would be released on bail in aforesaid criminal cases, particularly, with regard to offence u/s 5 of the Terrorist Disruptive (Prevention) Activities Act until and unless the State counsel accedes to the request for grant of bail.

For the foregoing reasons the impugned order of detention. Annexure P/1, passed against the present petitioner cannot be legally sustained; the same is directed to be quashed and this petition is accordingly allowed to the extent indicated above.