Ram Partap vs Union of India

G.C. Chahal, J. (Oral)

By means of this criminal writ petition under Articles 226 and 227 read with Article 22 of the Constitution of India, Ram Partap petitioner seeks the quashing of the detention order dated 3.6.1991 Annexure P1, passed by the Joint Secretary, Government of India, Ministry of Defence, Department of Revenue, New Delhi, against him whereby he was directed to be detained and kept in custody in the Central Tihar Jail, New Delhi, with a view to preventing him from smuggling of goods.

The facts on the basis of which the detention order Annexure P1 has been passed may be taken from the grounds of detention Annexure P2 and briefly narrated are to the following effect, that the petitioner and another passenger, Baldev Singh travelled by Flight No. SQ 08 (from Singapore). The petitioner got his luggage checked and he declared goods valued at Rs. 5,000 which were charged to customs duty. In the meantime, Baldev Singh was intercepted and 32 gold biscuits of foreign making were recovered from his baggage which were concealed in two Nivia Cream containers. On interrogation Baldev Singh made a disclosure statement that the said gold belonged to the petitioner who had travelled with him on the same flight and the gold had been handed over to him by the petitioner at Singapore. Thereafter Baldev Singh pointed out the petitioner in the arrival hall. The petitioner was then interrogated about smuggling of goods, but he replied in the negative. On his personal search, nothing was recovered. His baggage was then got Xrayed and some dark spot was observed. The opening of the baggage led to the recovery of 4 gold biscuits 13 of 20 grams and one of 50 grams). On demand, both the petitioner and Baldev Singh failed to produce the documents for legal import/possession of the said gold. Both of them were then arrested under Section 104 of the Customs Act, 1962 and produced in the Court of the Addl. Chief Metropolitan Magistrate, New Delhi on 23.4.1990. They were remanded to judicial custody till 7.5.1990. They were allowed bail by the said Court on 11.5.1990. On 8.10.1990 the case was adjudicated and the complaint was filed regarding which cognizance was taken by the Court. It was, however, considered that to prevent the petitioner from indulging in antismuggling activities he should be detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (briefly `the COFEPOSA Act''). Although various pleas were taken, yet one of the grounds is that there was a delay of more than a year in passing of the impugned detention order and the same should be quashed. In reply to the plea about this delay, the following stand was taken by the respondentauthorities :

"4. As regards para 6(i), it is submitted that after completing inquiry, a show cause notice was issued on (sic) and the case was adjudicated on 28.12.1990. After that the case was forwarded to the detaining authority. The case was returned to the sponsoring authority in the month of March, 1991 for want of certain information. The case was resubmitted in April, 1991. It was again returned in May, 1991. The sponsoring authority against submitted the case in May, 1991 and on 3.6.1991, the detention order was passed."

I find force in the contention raised by Sh. Majithia that the delay of about 14 months in passing the impugned detention order from the date of the prejudicial activity should raise a doubt about the bona fides in passing of the detention order which is being used in the form of punitive rather than preventive. The earliest date on which the case for consideration of petitioner''s detention was moved, is some where between 28.12.1990 and March, 1991. No date is, however, specified by the respondentauthorities as to when the proceedings were sponsored and how they were dealt with. For the subsequent period also, only the month in which the case was considered is mentioned, but there is no reference to any of the dates. The respondentauthorities have, thus, not given a satisfactory explanation about the entire delay.

In Lakshman Khatik v. The State of West Bengal, AIR 1974 SC 1264, the order of detention was held to be invalid where it had been passed after a lapse of about 8 months from the dates of incidents. Dealing with the matter of delay, their Lordships made the following observations :

"...............Indeed mere delay in passing a detention order is not conclusive, but we have to see the type of grounds given and consider whether such grounds could really weigh with an officer some 7 months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to the maintenance of essential supplies of foodgrains. It is not explained why there was a long delay in passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offence committed about 7 months earlier. The authorities concerned must have due regard to the object with which the order is passed and if the object was to prevent disruption of supplies of foodgrains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place. In our view, the order of detentions in valid."

In Rabindra Kumar Ghosel v. The State of West Bengal, AIR 1975 SC 1408 the detention order was set aside where there was unexplained delay of about 3 months.

In T.A. Abdul Rahman v. State of Kerala, 1989(1) RCR 459 their Lordships of the Supreme Court held that when there is time lag of 11 months between the prejudicial activities and the order of detention, the test as to whether the detention should be quashed on the ground of delay is not a rigid or mechanical test by merely counting the number of months; the Court should examine, whether the detaining authority has satisfactorily explained the delay. It was further observed that the delay of 3 months in the arrest causes doubt on genuineness of the subjective satisfaction of the detaining authority leading to an inference that detaining authority was not really and genuinely satisfied as regards the necessity of detaining the detenu.

Applying the tests of the above quoted authorities, a conclusion has to be drawn that there was an unsatisfactory explanation of the delay in the passing of the detention order and the same will lead to a genuine doubt about the subjective satisfaction of the detaining authority.

For the foregoing reasons, I accept this criminal writ petition and quash the impugned detention order.