Amarjit Singh vs Union of India, Ministry of Finance and ors.

Jai Singh Sekhon, J.

Though this writ petition for habeas corpus, the detenu challenges the order of detention dated 16.5.1989 (Annexure P1) passed by Shri A. K. Batabyal, Joint Secretary to Government of India under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), hereinafter called the Act. with a view of preventing him from smuggling goods and engaging in transporting and concealing smuggled good. The order of detention along with the grounds of detention Annexure P1/A were served upon the detenu on 2261989.

A brief resume of facts figuring in the grounds of detention is that the Customs Preventive Staff of Amritsar on the basis of secret information started keeping surveillance on the movements of the petitioner. On 3011989 the petitioner landed at the Rajasansi Airport from Afghan Airlines flight. Before the Customs official, the petitioner declared that he was not carrying any gold etc. Thereafter, on suspicion, personal search of the detenu was conducted by the Assistant Collector, Customs, Amritsar, but nothing was recovered. The Metal Detector, however, gave positive response when applied on the rectum region. The Customs authorities accordingly took the detenu outside the airport and on exhaustive interrogation, the detenu got recovered nine concealed gold biscuits bearing foreign markings from his rectum. The gold biscuits were got examined from two gold dealers of Amritsar, who found the same to be 24 carats with purity of 999.0. The detenu was apprehended and the gold was seized as the detenu possessed no legal documents regarding its importation/acquisition/possession/transportation. On further interrogation by the Superintendent Customs, Amritsar, the detenu admitted about the recovery of nine gold biscuits of foreign origin from his rectum. The detenu further disclosed that five gold biscuits belonged to Gurbax Singh of Amritsar while the four biscuits belonged to him. The detenu also admitted having brought gold biscuits on three occasion earlier in the year 1988, after concealing the same in the rectum and that Gurbax Singh used to pay Rs. 3000/ per trip for bringing gold biscuits. The detenu also admitted that Tejinder Singh arranged the foreign exchange in U. S. Dollars from his relation settled in Afghanistan. The detenu was released on bail by the learned Additional Session Judge, Amritsar on 431989.

The abovereferred Tejinder Singh and Gurbax Singh contradicted this version of the detenu. In view of the above referred prejudicial activities, the detaining authority has passed the impugned order with a view to prevent the petitioner from smuggling goods and engaging in transporting and concealing smuggled goods. The petitioner challenges the order of detention, inter alia on the ground of lack of nexus between the last prejudicial activity of the detenu and the passing of the detention order besides the delay of 44 days in disposing of his representation.

On notice, Shri Kuldip Singh, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue has filed the return on behalf of the respondent Union of India, contending that there was no delay in passing the detention order as the petitioner was released on bail on 4.3.1989 and the detention order passed on 1651989. The delay in serving the detention order upon the detenu was explained on the ground of his absconding. It was also maintained that the representation dated 22.7.1989 filed by the petitioner was promptly disposed of under the circumstances of the case after obtaining the comments of the sponsoring authority and thereafter rejected on 491989, i.e., within a period of less than two months.

Shri Akattar Singh, Superintendent, Central Jail, Bhatinda has also filed return maintaining that the representation was received by him from the petitioner on 2271989 and it was forwarded to the concerned authority on the next day. Shri S. K. Bhalla, Under Secretary to Government, Punjab, Department of Home Affairs and Justice also filed return on behalf of the Punjab Government to the effect that the representation was received by the Answering Respondent on 2671989 and was forwarded to the Government of India on 2871989. He also averred that the comments of the Deputy Collector Customs, Amritsar were received in the office of the Answering Respondent on 381989 and the same were further forwarded to the Government of India with due promptitude and that there was no delay or default, on the part of the State Government in dispatching the representation.

I have heard the learned counsel for the parties besides perusing the record. In view of the factum that the detenu imported gold of foreign origin after concealing it in his rectum and alighted from a flight from Afghanistan at Amritsar, it transpires that he is a seasoned sailor in the trade of smuggling gold from foreign countries. He was released on bail on 4. 3.1989 and the detention order was passed on 1651989 after verifying facts. Thus, it cannot be said under the circumstances of this case that this delay of little over two months had resulted in snapping the nexus between the last prejudicial activity of the detenu and the order of detention. Thus, there is no force in this contention of the learned counsel for the petitioner.

6A. Regarding 44 days delay in disposing of the representation filed by the detenu, Shri Kudlip Singh, Under Secretary to the Government of India in para 9 of the return had explained this delay as under :

"With reference to averments made in this para, it is submitted that his representation dated nil which was attested by the Deputy Supdt. Jail on 22.2. 1989 and forwarded vide, their letter dated 28.7. 19 89 and was received in the Department on 1889. The said representation was forwarded to the concerned sponsoring authority at Chandigarh for their comments on 281989. The parawise comments were received through the Home Department, Punjab on 18.8.1989 (20th and 21st were holidays being Saturday and Sunday). The file was placed before the concerned officer for processing on 22.8.1989. The parawise comments along with the representation was processed and put up to the Central Government i.e. MOS(R) and F.M. through A. D.G. (A) an 4 the detaining authority on 2581989 (24th was closed holiday). ADG (A) and the Detaining Authority forwarded the file along with the comments to MOS (R) and F.M. on 2881989 (26 & 27 were holidays being Saturday and Sunday). MOS (R) considered and rejected the representation subject to approval of F.M. on 3181989. F. M. finally rejected the same on 4.9.1989 (2 and 3 were holidays being Saturday and Sunday and memo to that effect was communicated to the petitioner on (sic). Hence the allegation that his representation was not considered promptly is denied. As already stated that the writ was filed some time earlier part in September 1939 hence all these allegations made by the petitioner."

A bare perusal of the abovereferred, explanation reveals that the representation was received by the Deputy Superintendent Jail on 22.7.1989 and was received by the detaining authority on 1.8. 1989 with the forwarding letter dated 2971989 of the Deputy Superintendent Jail. There is some factual confusion between the return filed by the Under Secretary to Government of India and the Deputy Superintendent Jail, Bhatinda. According to the Deputy Superintendent Jail he had despatched the representation vide letter dated 23.7.1989 to the concerned authorities. According to the return filed by the detaining authority the representation was received through a forwarding letter dated, 28.7.1989. It appears from the affidavit filed on behalf of the State Government by Shri S. K. Bhalla, Under Secretary that the Superintendent Jail had sent the representation to the State Government where it was received on 2671989 and forwarded to the Government of India with a covering letter dated 28.7.1989. On the other hand, the Deputy Superintendent Jail was expected to know that the order of detention was passed by the Joint Secretary to the Government of India and thus was expected to despatch the representation directly of that office. Thus, this delay of five days in dispatching the representation to the detaining authority is due to the fault of the Deputy Superintendent Jail. The matter does not rest here, as the representation was sent to the sponsoring authority on 281989 for comments and the comments were received on 1891989 through the State Government although the sponsoring authority was required to send the comments straightaway to the Joint Secretary to the Government of India who had passed the detention order. So sending of parawise comments to the State Government had resulted in further inordinate delay in receiving these comments. Thereafter, this representation was processed by the Finance Department, Revenue Wing of the Central Government from 2281989 till 491989 and ultimately rejected by the Finance Minister on the latter date. There is no plausible explanation on the file as to why the Deputy Superintendent Jail had forwarded the representation through the State Government and as to why the sponsoring authority had sent the parawise comments to the representation through the State Government although both these authorities were aware that the detention order was passed by Joint Secretary of Central Government and the representation was pending before the Central Government. The Deputy Superintendent Jail as well as the sponsoring authority are necessary links in disposing of the representation by the concerned authorities and thus laches on their part would certainly amount to violating the mandate enshrined in. Article 22(5) of the Constitution.

The Apex Court in Piara Singh v. State of Punjab, 1987(2) RCR(Crl.) 473 (SC) : AIR 1987 SC 2377 , had observed that unexplained delay of about a month and ten days in disposing of the representation of the detenu had resulted in vitiating the order of detention having negated the safeguards enshrined in Article 22(5) of the Constitution.

In Harish Pahwa v. State of U.P., AIR 1981 SC 116, again, the apex Court had held the nonexplanation of delay in disposing of the representation for 4 days at one stage as inordinate delay and quashed the order of detention.

In Rai Kishore Prasad v. State of Bihar & ors., AIR 1983 SC 320, the delay of 28 days in considering the representation of the detenu was held to have contravened the safeguards enshrined in Article 22(5) of the Constitution.

Again, the apex Court in Rama Dhondu Borade v. Shri V.K. Saraf, Commissioner of Police and others, 1989(2) Recent Criminal Reports 101 , had held 14 days delay on the part or the State Government in sending report to the Central Government and 10 (days taken by the Central Government in considering and disposing of the representation to have vitiated the detention order.

As already held, 5 days delay had taken place due to the fault of the Deputy Superintendent jail. The matter does not rest here as the detention order was passed on 1651989 and served upon the detenu on 22.6.1989, i.e. after a lapse of ore month and 7 days. In para 13 of the return filed by the Answering Respondent, it is explained that the detention order was sent to the concerned police and thereafter it was for the police authorities to execute the same on the petitioner. In the return filed by the State Government, no explanation has been given to the averment of the petitioner in paragraph 3 of the petition in this regard. Thus, it can be well said that the answering respondent had failed to give any explanation for this delay of more than one month in serving the detention order upon the detenu which would certainly adversely reflect upon the subjective satisfaction of the detaining authority in order to conclude that the order of detention was not genuine and colourable as held by the apex Court in Shafiq Ahmad v. District Magistrate, Meerut and others, 1989(2) Recent Criminal Reports 662 : AIR 1440 SC 220 . In that case, the explanation for the delay in serving the detention order that the entire police force was extremely busy in controlling the law and order situation was not held to be a plausible explanation in this regard. In the case in hand, there is absolutely no explanation, what to say of the explanation being plausible. This conduct on the part of the detaining authority thus clearly reveals that there is no normal and genuine apprehension that petitioner was likely to indulge in prejudicial activities in future. Thus, the order of detention is vitiated on this score also.

For the foregoing reasons, the impugned order of detention is quashed by accepting this petition. The petitioner be set at liberty forthwith if not required in any other case.