Anil Kumar Mahajan vs Union of India

S.D. Bajaj, J.

Detenupetitioner Anil Kumar Mahajan has filed Crl. Writ Petition No. 427 of 1989 in this Court for quashing the order of detention Annexure P.1 dated 20th May, 1988 based on grounds of detention Annexure P2 on the grounds that the impugned order of detention was passed by the detaining authority mechanically without any application of mind to the peculiar facts and circumstances of the present case in as much as the petitioner was released on bail on 22.4.1981 and the factum of his having been so released did not find mention in the detention order; that the prejudicial activity attributed to the petitioner is of 22.3.1988 while the order of detention was made against him on 20.5.1988 and served on the petitioner through his detention on 8.2.1989 and as such there is no nexus between the date of prejudicial activities and the date of passing of the detention order and thereafter to the date of service of the detention order and as such the detention is punitive and not preventive; that the detention order is based on one solitary transaction of 22/23rd March, 1988 and that the representation filed by the petitioner on 4.2.1989 was not considered by the concerned authorities with due promptitude and, therefore, his detention is rendered illegal on this score as well.

In reply it was asserted that the detention order Annexure P1 was made by the detaining authority on due application of mind and the factum of detenupetitioner being already on bail with effect from 22.4.1988 was duly considered therein; that there was close nexus between the prejudicial activity and the order of detention; that the order of detention, however, could not be served upon the petitioner till 8.2.1989 because detenupetitioner was absconding earlier; that the representation dated Nil was received by the Union of India in the concerned department on 3.3.1989 and was disposed of by the Minister in the department concerned on 11.3.1989 nearly eight days after its receipt with due promptitude and that the order of detention was not based on solitary transaction of 22.3.1988 as alleged. Hence the writ merits dismissal.

I have heard Shri H.S. Mattewal, Senior Advocate, with Mr. Sukhbir Singh, Advocate, for the petitioner, Mrs. Jaishree Anand, Advocate, for respondent No. 1 and have carefully perused the record.

A reference to para No. 7 at page 8 of the grounds of detention is sufficient to reach the conclusion that the factum of detenupetitioner being already on bail with effect from 22.4.1988 was present to the mind of the detaining authority while making order of detention on 20.5.1988. Impugned order of detention cannot, therefore, be said to have been passed by the detaining authority without any application of its mind.

Representation dated 22.2.1989 was received by the Central Government through proper channel on 3.3.1989 and was disposed of with due promptitude on 11.3.1989 within eight days of its receipt. Respondent No. 2 has sworn in an affidavit that the representation was filed before him on 22.3.1989 and he despatched it to the State Government of Punjab on the same day. Superintendent Jail cannot therefore, be accused of withholding the representation at this level. Observations made by the Supreme Court in Aslam Ahmad Zahire Ahmad Shaik v. Union of India and others, Judgments Today 1989(2) Supreme Court 34 are, thus, of no avail to the petitioner for attributing unexplained delay to the Jail Superintendent and its effect on his detention. The argument raised on these premises is, therefore, rendered nugatory.

Adverting to the allegation of inordinate delay in service of detention order on the petitioner from 20.5.1988 to 8.2.1989 it was stated in subpara (iv) of para No. 7 of the reply. "It is admitted that the detenu was detained on 8th February, 1989 in pursuance of order dated 20th May, 1988. The detention order was endorsed by the detaining authority to Punjab Police for execution. As the detenu was absconding the detention order could not be executed and could ultimately be executed on 8th February, 1989." Learned Counsel for respondent No. 1 placed before the Court original correspondence exchanged between Enforcement Directorate at the Centre and Enforcement Directorate of the State of Punjab in regard to service of detention order on the detenupetitioner and urged that having failed in their attempt to have detention order served on the petitioner on any of his three available addresses on his expired passport, bail application and in the Delhi High Court, the concerned authorities ultimately resorted to the procedure set out in Section 7 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and could, thereafter, serve it on the detenu petitioner on 8.2.1989. Entire period of nine months having been duly explained, ratio of the judgments in S.K. Nizamuddin v. State of West Bengal, AIR 1975 SC 2353; Sk. Serajul v. State of West Bengal, AIR 1975 SC 517; Sukhbir Singh v. State of Punjab, 1988(1) Recent Criminal Reports 463; 1988(1) All India Criminal Law Reporter 823 and Yogesh Chopra v. Administrator of Delhi, 1988(2) Recent Criminal Reports 156 , is not attracted for application on the peculiar facts of this case. Inordinate delay aforesaid duly explained in reply verified by documentary evidence has no effect on detention of the petitioner and the same does not get vitiated on this score as well.

Similarly, adverting to the plea of single transaction it was observed by the Supreme Court in Shri Shiv Ratan Makim v. Union of India, 1986(1) RCR(Crl.) 470 (SC) : AIR 1986 SC 610 and Mrs. Saraswathi Seshagiri v. State of Kerala and another, AIR 1982 SC 1165, that on fact similar to the ones disclosed in the grounds of detention Annexure P2 it would have to be accepted as business of smuggling by repetition of activity and not as one solitary transaction and as such with a view to prevent the detenupetitioner from smuggling gold it was necessary for the detaining authority to make the order of preventive detention against him. Detention order Annexure P1, therefore, does not get vitiated on this score as well.

For the reasons given above Criminal Writ Petition No. 427 of 1989 gets wholly bereft of any merit therein and, is, consequently dismissed.

Revisions dismissed.