Ram Swaroop Aggarwal vs Union of India and Others

R.L. Gupta, J.

(1) By this petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure the petitioner seeks issuance of a writ of Habeas Corpus or any other appropriate writ for quashing an order of detention dated 27.7.1992.F. No. 5/66/92-Home (P-II) passed u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974(COFEPOSA for short) by the Administrator, Union Territory of Delhi and for the consequent release of the petitioner forthwith.

(2) The brief facts leading to the detention of the petitioner are that the Was intercepted at Igi Airport by the Customs officers on 30.3.1992 on his arrival from Dubai. His personal search and that of his baggage yielded recovery of 400 gms. of gold valued at Rs. 1,72,000.00and Indian currency amounting to Rs. 4,100.00. He was produced before the learned Acmm on 31.3.1992 who remanded him judicial custody from time to time. On 8.4.1992a complaint under Sections 132 and 135 (l)(a) of the Customs Act was filed by the Customs Department in the Court of the learned ACMM. The impugned detention order was passed against him on 27/07/1992 under COFEPOSA and in pursuance thereto he was detained on 21.8.1992.

(3) Although the detention order has been challenged on a number of grounds, learned Counsel for the petitioner during the course of the arguments has restricted her arguments to only one ground taken up by way of additional ground in Cr.M. 57/92. That ground is that the petitioner had sent a representation dated 7.11.1992 in Urdu through a close friend to the President of India whereby besides asking certain information/documents, a prayer was also made for the revocation of the impugned detention order. It is then stated that till the filing of this application i.e. till 25.1.1993 the petitioner had not received any reply and thus the long and undue delay on the part of the Central Government in considering the representation rendered the impugned detention order illegal and void. lt is stated in the reply on behalf of the Union of India that the representation dated 7.11.1992was received in the Secretariat of the President on 23.11.1992 and from therein the Ministry''s office on 25.11.1992. It is then stated that the representation was placed before the Detaining Authority on the same who directed that comments may be called from the Sponsoring Authority. The Sponsoring Authority submitted their comments vide letter dated 9.12.1992 which were received in the Ministry''s office on 15.12.1992. Then the case was processed and submitted to the Joint Secretary (COFEPOSA) on 16.12.1992 who considered it and rejected the representation. It is then alleged that the memo intimating the petitioner about the rejected of his representation was issued on 17.12.1992 and thus there was no undue and un-explained delay.

(4) I have heard arguments advanced by the learned Counsel for the parties. The representation dated 7.11.1992 was received in the Secretariat of the President on 23.11.1992 and Therefore, so far as that period is concerned, it cannot be said that there was any delay because the representation itself was received in the Secretariat on 23.11.1992. However, there is considerable delay in the consideration of the representation between the period 25.11.1992 to 16.12.1192. It is not disputed that the office of the Sponsoring Authority as well as the Detaining Authority are located in the Metropolis of Delhi itself. It is not explained as to why the Sponsoring Authority sent their comments vide letter dated 9.12.1992 when the representation had been forwarded to them on the same date i.e. 25.11.1992. It is also further not explained why the letter dated 9.12.1992 of the Sponsoring Authority Along with their comments was received in the Ministry''s office on I S.I 2.1992. No reason has been assigned to this delay on behalf of the Union of India and Therefore it must be presumed that there is unexplained delay of a period of about twenty days in the consideration of the representation of the petitioner in which he had asked for revocation of the detention order. Learned Counsel for the petitioner has drawn my attention to the case of Mahesh Kumar Chauhan @ Bante v. Union of India &Ors. reported in 1990(2) Cri 472, a decision of the Hon''ble Supreme Court. In that case the counter affidavit of the Joint Secretary, Department, of Revenue, Ministry of Finance stated that the petitioner had made his representation on 21.8.1989 which was received in the office of the Department on 23.8.1989. It was forwarded to the Sponsoring Authority on 25.8.1989 which sent its comments on 11.9.1989. Then the representation Along with comments was processed and put no before the Minister of State for Revenue who considered and rejected the same on 15.9.1989. In para19 of the judgment the Hon''ble Supreme Court held that except merely mentioning that the representation was forward to the concerned Sponsoring Authority on 25.8.1989 and the receipt of comments from the Sponsoring Authority on 11.9.89, there was no Explanation as to why such a long delay has occurred and in view of that fact the Supreme Court held that they had no other option except to allow the appeal on the ground that the undue and unexplained delay was in violation of the Constitutional obligation enshrined in Article 22(5) of the Constitution of India rendering The impugned order invalid. A similar situation arises in the present case because there is practically no Explanation why a delay of about 20 days occurred in the present case before the representation was finally considered and rejected by the Detaining Authority. The impugned detention order is Therefore, vitiated.

(5) The impugned detention order is, Therefore, set aside. The petitioner will be set at liberty if not wanted in any other case or proceeding.