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Judgment
Sat Pal, J.
In this case, the petitioner was detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1994 (hereinafter referred to as the COFEPOSA) vide order, dated 4th May, 1995 (Annexure P1) passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. The aforesaid order was served upon the petitioner on 8th May, 1995 while he was in judicial custody. The said order has been challenged by the petitioner in this petition on the various grounds mentioned in para 8 of the petition.
Notice of the petition was issued to the respondents on 31st May, 1995. During the pendency of the petition, the petitioner filed an application bearing No. Cr. Misc. 290 of 1995 seeking permission of the court to take additional grounds for challenging the detention order (annexure P1). This application was allowed vide order, dated 20th September, 1995. While allowing this application, the learned Standing Counsel for the Union of India was permitted to file reply to this application before the date fixed for arguments of the main case.
Reply affidavit on behalf of the Union of India has been filed. A separate written statement by way of affidavit has also been filed on behalf of respondent No. 3.
Mr. Sandhu, learned counsel appearing on behalf of the petitioner, submitted that the order of detention was liable to be quashed inter alia on the ground that the representation dated 25th May, 1995 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 paras 4, 6 and ground No. (iv) of the petition. He submitted that the said representation was received in the COFEPOSA Unit on 1st June, 1995, but the same was submitted to the Minister concerned on 16th June, 1995 and thus there was unexplained delay of 16 days. He further submitted that though the representation was submitted to the Minister concerned on 16th June, 1995, the same was rejected by the Minister on 26th June, 1995 and thus there was further unexplained delay of 10 days in the disposal of the representation. In support of the submissions, the learned counsel placed reliance on the following judgments.
Harish Pahwa v. State of U.P., AIR 1981 SC 1126.
Mohinuddin v. District Magistrate Beed, 1987(2) RecentCR 338 : AIR 1987 SC 1977 .
Aslam Ahmed Zehire Ahmed Shaik v. Union of India, 1989(1) Recent CR 486 : AIR 1989 SC 1403 .
Faqir Singh v. Central Govt. through the Secretary to Government of India Ministry of Finance, 1995(2) Recent CR 727 : 1995 Cr.Law Journal 3309 .
Learned counsel further submitted that the order of detention was also vitiated inasmuch as the same was passed when the petitioner was in judicial custody and there was no material before the detaining authority indicating that the petitioner was likely to be released or that such release was imminent. In support of this submission, he placed reliance on the following judgments :
Ramesh Yadav v. District Magistrate, Etah and others, AIR 1986 SC 315;
Smt. Shashi Aggarwal v. State of UP., 1988(1) RecentCR 579 : AIR 1988 SC 596 .
Rivadeneyta Ricardo Agustin v. Govt. of the National Capital Territory of Delhi and others, 1994 SCC (Crl.) 354.
Mr. Sharma, learned Standing Counsel appearing on behalf of the Union of India, however, submitted that the alleged delay in the disposal of the representation submitted by the petitioner has been fully explained in Paras 4, 5 and 6 of the counter affidavit filed on behalf of the Union of India. The relevant portion of the reply to Paras 4, 5 and 6 of the petition stated in the counter affidavit reads as under :
"4, 5 & 6 That in reply to these paras of the petition, it is submitted that the detenu''s representation dated nil and the same was attested by the Supdt. Central Jail, Amritsar on 25.5.95 addressed to Chairman, Advisory Board, New Delhi and advance copy of the representation forwarded by the Superintendent of Central Jail, Amritsar vide his letter dated 25.5.95 was received in COFEPOSA Unit of the Ministry on 1.6.95 and was put up before the Joint Secretary (COFEPOSA)/Detaining Authority who directed to call for parawise comments of the Sponsoring Authority, thereon. The comments of the Sponsoring Authority were called for by the Ministry''s letter dated 2.6.95. The Sponsoring Authority furnished their reply to Ministry by their letter dated 9.6.95 which was received in the COFEPOSA Unit of the Ministry on 12.6.95. The case file was submitted before the Joint Secretary (Cofeposa) on 13.6.95 who considered and rejected it on 13.6.95 on behalf of the detaining authority. The detenu was informed accordingly vide memorandum dated 14.6.95. After issuing the memo, the file was resubmitted to Joint Secretary (Cofeposa) on 15.6.95 who considered and submitted the case file to Addl. Secretary (Admn.) on 16.6.95. Addl. Secretary (Admn.) considered and submitted the case file to Secretary (Rev.) on 16.6.95. Secretary (Rev.) considered and submitted the case file to Minister of State (R&E) on 16.6.95. Minister of State (R&E) was on tour (17.6.95, 18.6.95, 24.6.95) and 25.6.95 were closed holidays being Saturdays and Sundays). Finance Minister considered and rejected the representation on 26.6.95 and the file was received back in the Cofeposa Unit of the Ministry on 28.6.95.
A memorandum intimating the petitioner about rejection of his representation was issued on 29.6.95. Thus, the representation of the detenu was considered expeditiously by the detaining authority as well as by the Central Government and there was no undue or unexplained delay in considering the representation of the detenu. The allegations made in these paras are filmsy and baseless and therefore denied."
In support of his submission, the learned counsel placed reliance on the following judgments :
Birinder Kumar Rai v. Union of India, 1993 SCC (Cr.) 324 ;
Nur Salman Makani v. Union of India, 1994(1) RecentCR 197 : 1994 Cr.Law Journal 602 .
Panna v. A.S. Samra, 1995 SCC (Cr.) 137.
Madan Lal Anand v. Union of India, 1990(2) RecentCR 58 (SC) .
As regards the second contention, learned counsel for the Union of India drew my attention to Para 3 of the counteraffidavit and submitted that the impugned detention order was passed after subjective satisfaction of the detaining authority. He submitted that in Para 11 of the grounds of detention, it is clearly stated that the petitioner had filed bail application in the court of Chief Judicial Magistrate Amritsar on 28th April, 1995, which was to be heard on 5th May, 1995 and the possibility of the release of the petitioner on bail could not be ruled out. He, therefore, contended that there was no merit in this contention also. In support of his submissions the learned counsel placed reliance on the following judgments :
Hemlata Kantilal Shah v. State of Maharashtra and another, AIR 1982 SC 8 ;
Abdul Sathar Ibrahim Manik v. Union of India, 1992 SCC (Cr.) 1.
Hawabi Sayed Arif Sayed Hanif v. L. (Hamingllana) 1993 Cr.Law journal 172 (SC).
Nur Salman Makani''s case (supra)
I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the record.
As regards the first contention of the learned counsel for the petitioner that there was considerable delay in the disposal of the representation by the Central Government, it will be relevant to point out here that as per averments made in the counter affidavit filed on behalf of the Central Government, the representation submitted by the petitioner to the Central Government was received in the COFEPOSA Unit of the Ministry on 1st June, 1995. On 2nd June, 1995, the comments of the sponsoring authority were called for and the said comments were furnished by the sponsoring Authority vide their letter dated 9th June, 1995 and the aforesaid letter along with the comments was received in the Ministry on 12th June, 1995. It may be pointed out that 3rd and 4th June, 1995 (being Saturday and Sunday) and 10th and 11th June, 1995 (being Saturday and Sunday) were holidays. As such the time taken upto 12th June, 1995 has been fully explained in the counter affidavit. In this connection, reference may be made to the judgment of the Supreme Court in the case of Nur Salman Makani (supra). In this case period of 5 days taken by the sponsoring authority after excluding the holidays, in forwarding the comments to the Ministry was held to be reasonable.
It has further been stated in the counter affidavit that after receipt of the comments, the file was submitted before the Joint Secretary (COFEPOSA) on 13th June, 1995 and the said Joint Secretary, who was also the detaining authority rejected the representation on 13th June, 1995. The petitioner was informed accordingly vide Memo dated 14th June, 1995. Thereafter, the file was resubmitted to the Joint Secretary (COFEPOSA) on 15th June, 1995 and he submitted the case file to the Additional Secretary (Administration) on 16th June, 1995. The Additional Secretary (Administration) submitted the case file to the Secretary (Revenue) on 16th June 1995 itself and thereafter the case file was sent to the Minister of State on 16th June, 1995. It has further been stated that the Minister of State (R&E) was on tour (17th June, 18th June, and 24th and 25th June, 1995 were closed holidays being Saturdays and Sundays), the file was sent to the Minister who considered the representation and rejected the same on 26th June, 1995. Thus, the point to be examined is as to whether the time taken by the Minister between 17th June, 1995 and 25th June, 1995 amounts to unreasonable delay on the part of the Central Government in the disposal of the representation. The contention of the learned counsel for the petitioner that each day''s delay in dealing with the representation must be adequately explained does not mean that the slightest breach of this must result in the release of the detenu. In this connection, reference may be made to a judgment of the Supreme Court rendered by a Bench of three Hon''ble Judges in L.M.S. Ummu Saleema v. B.B. Gujaral, AIR 1981 SC 1191. The relevant portion from this judgment is reproduced hereinbelow :
"The time imperative can never be absolute or obsessive. The occasional observations made by this court that each day''s delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu."
From the facts stated hereinabove, it is clear that the time taken by the Minister of State and the Finance Minister comes to 5 days after excluding the holidays. Further it has also been stated that the Minister of State (R&E) was on tour during this period. Keeping these facts in view, the time actually taken by the Central Government cannot, in my opinion, be regarded as unduly long. Accordingly, I do not find any merit in this contention and the same is rejected.
The second contention urged by the learned counsel for the petitioner is that there was no material before the detaining authority indicating that the petitioner was likely to be released or that his release was imminent. In this connection, it will be relevant to refer to Para 11 of the grounds of detention which reads as under :
"I am aware that you have moved a bail application in the Court of the Chief Judicial Magistrate, Amritsar on 28.4.95, which is to be heard on 5.5.95 and the possibility of your getting released on bail cannot be ruled out. In the event of your getting released on bail and keeping in view your role in the present case and your past antecedents, as stated by you, I am satisfied that unless detained., you are likely to continue your prejudicial activities."
From the above mentioned para of the grounds of detention, it is clear that the detaining authority was aware of the fact that the petitioner had moved a bail application in the court of Chief Judicial Magistrate on 28th April, 1995, which was to be heard on 5th May, 1995 and it has been stated in this paragraph that the possibility of the petitioner getting released on bail could not be ruled out. As stated earlier, the order of detention was passed on 4th May, 1995 and the application for bail was listed for hearing on 5th May, 1995. In these circumstances, it cannot be said that there was no material before the detaining authority indicating that the petitioner was likely to be released on bail. Here it will be relevant to refer to the Judgment of the Supreme Court in Smt. Hawabi Sayed Arif Hanif''s case (supra) wherein it was held that "the fact that the detenu was relentlessly attempting to get bail by filing successive bail applications, it cannot be said that there was no material for the detaining authority to draw the inference that the detenu was likely to be released on bail." The judgment of the Supreme Court in the case of Rivadeneyta Ricardo Agustin (supra) relied upon by the learned counsel for the petitioner is of no assistance to the petitioner as in that case, there was no such averment that the petitioner had filed any application for bail which was yet to be disposed of. Accordingly, I do not find any merit in this contention also.
No other point was urged by the learned counsel for the petitioner.
For the reasons recorded hereinabove, I do not find any merit in this petition and the same is dismissed accordingly.