Joginder Singh vs Central Government through the Secretary to Government of India, Ministry of Finance, Department of Revenue

K.K. Srivastava, J.

Joginder Singh son of Shri Wadhawa Singh, resident of village Bareke, Tehsil and District Ferozepur has filed this criminal writ under Article 226 of the Constitution of India praying for quashing of the detention order dated 28.5.1997, copy Annexure P1, and the grounds of detention of the same date, copy Annexure P1/A passed against him by respondent No. 2, the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue (COFEPOSA Unit) New Delhi. It has been contended by the learned counsel for the petitioner that the petitioner came to Jalandhar on 10.1.1997 for puchashing potato seeds from M/s S.K. Rana, Agricultural Farm, Lambran. One Karnail Singh son of Shri Bur Singh, resident of village Maddre, Tehsil and District Ferozepur was accompanying the petitioner. Near T.V. Tower, Jalandhar, they saw one person, running after throwing the scooter and chased by some persons. The petitioner stopped there and later on came to know that the persons who were chasing, belonged to the Customs Department. The petitioner was apprehended by the Officers of the Customs Department who had failed to capture the real culprits. The petitioner was brought to sky Lark Hotel, Jalandhar where he was allegedly tortured and his thumb impressions were obtained on blank papers. The custom authorities planted recovery of foreign currency worth Rs. 51,48,927.75 along with Bajaj Chetak Scooter from the petitioner. The petitioner was sent to judicial custody on 11.1.1997 and was released on bail by the trial court on 12.3.1997. The petitioner learnt that on the basis of the said false case, detention order under Section 3 of the COFEPOSA Act was passed against him. The said detention order was, however, not executed by the authorities of the Customs Department on the petitioner who filed a Criminal Writ Petition 1316 of 1997 at the preexecution stage which was, however, dismissed in limine on 9.9.1997. The petitioner filed Special Leave Petition against the said order in the Hob''ble Supreme Court which was also got dismissed as withdrawn on 14.1.1998. The detention order is dated 28.5.1997 which was served on the petitioner only on 27.3.1998 after a lapse of a period of above ten months. During this period, the petitioner had been appearing before the learned trial Court on all the dates and there was no stay order against the execution of the detention order. It has been contended that the delay in execution of the detention order is inordinate, unexplained and it renders the preventive detention as invalid. It also creates considerable doubt on the genuineness of the subjective satisfaction of the detaining authority.

After the service of the detention order, the petitioner made a representation to the Joint Secretary to Government of India, Ministry of Finance, Department of Revenue, respondent No. 2 and it was requested that a copy of the representation against the detention order be forwarded to the Central Government through Secretary, Finance, Government of India. The grievance of the petitioner is that the representation was also not decided promptly. It was forwarded by the Superintendent, Central Jail, Patiala where the petitioner was detained under the detention order to respondent No. 2 who is the detaining authority in this case. The said representation was decided by respondent No. 2 on 1.5.1998 though it had been sent on 3.4.1998. The delay of about one month was caused in deciding the representation and the same has the effect of vitiating the detention of the petitioner. Apart from it, it has been contended that the petitioner had a reasonable belief that the detaining authority had not applied its mind while framing the grounds of detention and had simply copied them from the grounds of detention which were got prepared from the Customs Authority. The detention order is challenged on the grounds inter alia as under :

The order of detention was passed about five months after the alleged incident mentioned in the grounds of detention. The same is illegal because there is no proximity between the alleged activity and detention.

The order of detention is void inasmuch as the satisfaction expressed therein is not real and genuine, but only casual and mechanical and not in accordance with the provision of Section 3 of the COFEPOSA Act.

There is delay in executing the detention order which shows the lack of genuineness and subjective satisfaction of the Detaining Authority in passing the detention order.

The delay in consideration of the representation by the Detaining Authority makes the detention illegal.

The delay in consideration of the representation by the Central Government i.e. respondent No. 1 makes the detention illegal.

Notice of motion was issued to the respondents. Respondents 1 and 2 filed their reply in the shape of an affidavit of the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi reiterating the genuineness of the grounds mentioned in the detention order. It has also been deposed that the fact is that on the basis of specific information, the officers of D.R.I. on 10.1.1997 intercepted one Bajaj Scooter which was unregistered and being driven by Sardar Joginder Singh, the petitioner. From the scooter recovery of foreign currency equivalent to the Indian currency of the value of Rs. 51,48,92.75 was made in the presence of two independent witnesses. The petitioner admitted about the sum in his statement on 10.1.1997 recorded and tendered under Section 108 of the Customs Act, 1962. It was also mentioned in the statement by the petitioner that the foreign currency which was recovered was the sale proceeds of 100 Gold biscuits smuggled from Pakistan and the said foreign currency was also to be smuggled out of India to Pakistan. The petitioner was thereafter arrested and sent to judicial custody on 11.1.1997 and released on bail on 12.3.1997. It was categorically denied that the detention order against the petitioner was passed on the basis of false case. It was not disputed that the detention order was passed on 28.5.1997 and efforts were made to get the detention order served on the petitioner. Ultimately when the petitioner Joginder Singh surrendered before the Chief Judicial Magistrate, Jalandhar under the directions from the Hon''ble Supreme Court of India the detention order could not be immediately served upon him in view of the instructions issued by the Ministry of Finance, New Delhi issued on 27.10.1997 to the effect that "As soon as a person against whom a detention order has been issued and lying unexecuted, surrenders himself before any Court of law and remanded to judicial custody, that effect (fact ?) should immediately be reported to the Detaining Authority concerned with the latest factual background of the case for consideration by the Detaining Authority for recording his satisfaction or otherwise about the need to detain accused person even after he is in judicial custody and only thereafter further action for serving the detention order on such a person should be taken by the sponsoring authority/executing authorities, if so decided by the Detaining Authority." Elaborating the reasons for nonexecution of the detention order earlier it was deposed in para 5 of the reply as under :

"That in reply of para No. 5 of the petition, it is reiterated that the subject detention order could not be executed earlier as the petitioner was absconding and thereby evading execution of the same. The Detention JUDGMENT was passed on 28.5.1997 and efforts were made by S.S.P., Ferozepur to apprehend Shri Joginder Singh but he was found absconding.

P.S. Sadar, Ferozepur conducted raids on 22797, 24797, 18897, 22897, 24897, 5997, 11997, 22997, 31097, 91097 and Shri Joginder Kumar, P.P.S., Deputy Superintendent of Police also conducted raids on 8997, 199 97 and 41097 but each time the petitioner was not found available at his residence."

It was categorically denied that the detention order was passed without application of mind to the facts of the case and further that the petitioner had been made a scapegoat in place of the real culprit and slapped with the detention order. Regarding the disposal of the representation dated 341998 of the petitionerdetenu, addressed to the Detaining Authority i.e. respondent No. 2, it was averred in para 9, inter alia, as under :

"......The representation dated 3498 of the detenu addressed to the Detaining Authority (respondent No. 2) was duly considered by him and rejected vide his order dated 1598 which is clearly within reasonable time. Details of the processing of the representation are as under :

The representation dated 3498, addressed to the JS (COFEPOSA) was received in the office of the Ministry on 17498. Immediately comments of the Sponsoring Authority namely Dy. Director, DRI were called vide Ministry''s office letter dated 20498 (in between 18th and 19th were closed holidays being Saturday and Sunday). Comments of the Sponsoring Aurhority were received on 2941998 which were put up to the Under Secretary on 30498. Under Secretary submitted the same to JS(C) on 30498 itself and the representation of the detenu was rejected by the JS(C) on 1598. A memo intimating the detenu about rejection of his representation was issued on 1598.

Simultaneously the same represenatation of the detenu was also considered by the Secretary (Revenue) (Respondent No. 1), on behalf of the Central Government and rejected vide his order dated 451998.

Details of the processing of the representation and consideration by Secretary (Revenue) are as given below.

The representation dated 3498, addressed to JS (C) was received in the office of the Ministry on 17498. Immediately comments of the Sponsoring Authority were called on 20498 (in between 18th and 19th were closed holiday being Saturday and Sunday). Comments of the Sponsoring Authority were received on 29498 which were put up to the Under Secretary on 30498. Under Secreatary submitted the same to ADG on 30498 who in turn forwarded the same of Secretary (R) on 30498 itself. Secretary (R) after considering the representation rejected the same on 1598 and a memo intimating the detenu about rejection of his representation was issued on 4598 (2598 and 3598 were closed holidays being Saturday and Sunday).

Thus it will be seen that the said represenatation of the detenu was considered both by the Detaining Authority as well as Central Govt., most expeditously. The allegations in para 8 of the Writ Petition are baseless and devoid of any merit."

I have heard learned counsel for the petitioner and the learned counsel for the respondent and have carefully gone through the record of the case.

The learned counsel for the petitioner has mainly urged the following submissions in support of his contention that the detention order and the grounds of detention were not in accordance with the provision of law and that they were illegal and liable to be set aside :

There is no reasonable nexus between the alleged activity of the petitioner and the passing of the detention order because of the inordinate delay of more than five months intervening between the two events.

The Detaining Authority took unduly long unexplained and unreasonable time despite availability of the petitioner to execute and serve the detention order on the petitioner and this delay has rendered the detention order as invalid and illegal and the same is liable to be quashed on that ground.

There was inordinate, unexplained and unreasonable delay in deciding the representation of the petitioner by respondent No. 2, the Detaining Authority.

Mr. A.S. Sandhu, learned counsel for the petitioner submitted that the alleged activity of the petitioner took place on 1011997. The detention order was passed on 2851997. The detention order was, thus, passed after a gap of about 137 days from the date of the alleged activity. Mr. Sandhu argued that such an unduly long interval of the period between the alleged activity of the petitioner and the detention order clearly showed that there was no reasonable nexus between the two events. A learned Single Judge of this Court in Anil Kumar v. State of Punjab, 1998(3) RCR (Criminal) 454, while dealing with a matter of COFEPOSA noticed that the seizure of foreign currency and gold made on 29.3.1995 and the detention order was passed six months after the said event, the Sponsoring Authority had not cared to move for four months and held that the order was rather punitive in nature. The relevant decision is to be found in para 10 which reads as under :

"In the present case in hand the alleged search was effected on 2931995. The statement under Section 108 of the Customs Act is purported to have been made shortly thereafter on 2931995. The order of detention is of 2991995 i.e. to say after the expiry of six months. The reasons for delay had been given by the State of Punjab in the following words :

That the contents of subpara `B'' of para No. 11 of the petition are denied being incorrect. Detention proposal was received from the sponsoring authority on 381995 and after going through the facts and circumstances of case and after proper application of mind and subjective satisfaction, the order of detention was passed against the petitioner on 2991995 and order of detention was served upon the petitioner on 1981996. It is further submitted that the order of detention could not be served upon the detenu earlier as he was not available at his home. Efforts were made by the local police for serving the order of detention alongwith the grounds of detention upon the detenu many times and his house was found locked every time and as such the detention order could not be served upon him. It is further submitted that on 1981996 the detenu was apprehended outside the Court room of Hon''ble Chief Judicial Magistrate, Ludhiana when he was present to attend court for hearing. It is further submitted that the detenu was not available for about ten months and as such the order of detention could not be served upon him. There is no intentional delay in passing the order of detention serving upon the petitioner. Rest of the para is denied being incorrect."

This delay that the order of detention was passed after such a long time is totally unsatisfactorily. The sponsoring authority did not care to move for almost 4 months. There has been total inaction and lethargy. If they genuinely wanted the petitioner to detain, there was no reason as to why the order should not have been passed on an earlier occasion. It can, therefore, easily be described to be punitive rather than preventive."

In the instant case also there is no reasonable explanation for the period intervening between the alleged activity on 1011997 and the date of the detention order which was passed on 2851997. The petitioner has alleged and averred on oath that he was available and had been appearing in the Court of proceedings. There appears to be no valid and good reasons for nonpassing of the detention order within a reasonable period. Under these circumstances, the contention of the learned counsel, in this regard, has considerable merit.

The detention order, as noted above, was passed on 2851997. It was served on the petitioner on 2731998 i.e. after a lapse of ten months from the date of the detention order. The delay in execution of the detention order has been attempted to be explained in para 5 where it was, inter alia, mentioned that the raids were conducted for approaching (apprehending) the petitioner, Joginder Singh on 2271997, 2471997, 18897, 22897, 24897, 5997, 11997, 22997, 31097, 91097. However, there is no explanation of the period that intervening between 28597 to 21797 and thereafter from 101097 upto 26398. It has not been shown by the respondents that as to what efforts were made for serving the detention order on the petitioner during the said period from 28597 to 21797 and 101097 to 26398. In the case of Anil Kumar (supra) the learned Single Judge held that where there was one year delay in execution of the detention order who appeared in the Court five times during the period but no arrest was made, State was held to be not keen to implement the order and thereby frustrating the purpose for which it was passed. The learned Single Judge relied on the judgment of the Hon''ble Supreme Court in the case of T.A. Abdul Rahman v. State of Kerala and Ors., 1989(2) RCR 459 wherein there was a delay of three months in implementation and execution of the detention order. Dealing with the same the Hon''ble Apex Court held in para 12 as under :

"Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner."

In the instant case the delay in service and execution of the detention order on the petitionerdetenu has not at all been explained. The petitioner has averred and also placed on record the copy of the order sheets of the Court of Chief Judicial Magistrate, Jalandhar showing that he appeared before the said court during the period which intervened between the passing of the detention order i.e. 28597 till 26398. It will appear from the perusal of the copy of the order sheet that the accused presented himself in the Court of Chief Judicial Magistrate on 29597, 30797 and on 18298. The explanation furnished by the respondents in the reply is thus, not at all reasonable and satisfactory. The delay in the execution of detention order renders the detention of the petitioner invalid and shows that the subjective satisfaction of the detaining authority was not real and genuine. Coming to the last submission made by the respondent, it will be seen that more than a month''s time was taken in dealing with the representation of the petitioner. The representation of the petitioner was sent on 3497 (341998 ?). It was submitted to the Superintendent, Central Jail, Patiala. It was received in the Ministry of Finance, Department of Revenue on 17498 i.e. after a lapse of 14 days. Thereafter comments were called on 20498 which were received on 29498 and the representation was rejected on 1598. It was urged that the 14 days delay in transferring the detention (representation ?) of the petitionerdetenu to the Ministry was unreasonable and fatal. In support of his contention learned counsel for the petitioner cited the judgment of Hon''ble Apex Court in Aslam Ahmed Zahire Ahmed Shaik v. Union of India and others, 1989(1) RCR (Crl) 486 : 1989 AIR SC 1403. In this case the representation of the detenu was handed over to the Superintendent of Central Prisons on 1661988 and the same was left unattended for a period of seven days and forwarded the same to the Government on 2261988. The Superintendent, Central Prisons had not given any satisfactory, cogent and convincing explanation as to why he had kept the representation with himself except saying that during the period of seven days there was a Sunday. This delay of seven days was held to be sufficient to render the detention illegal and unconstitutional. While dealing with the delay in transmission of the representation in preventive detention cases, the Hon''ble Supreme Court held in paras 7 and 9 as under :

"It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of detenu has to be disposed of with reasonable expedition but it must necessarily depend on the facts and circumstances of each case. The expression `reasonable expedition'' is explained in Sabir Ahmed v. Union of India, 1980(3) SCC 295 as follows :

What is `reasonable expedition'' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable redtapism and unduly protracted procrastination."

Para 9 reads as under :

Thus, when it is emphasised and reemphasized by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Art. 22(5) of the Constitution.

In para 5, earlier in the case of Abdul Karim v. State of West Bengal, 1969(1) SCC 433 : (AIR 1969 SC 1028 at page 1033) it was held that "The right of representation under Art. 22(5) is a valuable constitutional right and is not a mere formality."

In the instant case respondent No. 3, the Superintendent, Central Jail, Patiala did not file any reply to the petition. Respondents 1 and 2 while dealing with the disposal of the representation dated 341998 of the petitionerdetenu mentioned simply that the representation aforesaid was received in the office of the Ministry on 1741998. It has not been mentioned therein as to why a delay of 14 days was taken in sending the representation of the petitioner. Under these circumstances, there is no explanation at all for the delay of 14 days in sending the representation of the petitioner to respondent No. 2 for disposal. This has caused a serious prejudice to the right of the petitioner to have his representation decided expeditiously and has resulted in delayed disposal of the representation which renders the detention of the petitioner as illegal. Dealing with the callous (attitude) on the part of the Superintendent Jail in the case of Aslam Ahmed Zahire Ahmed Shaik (supra) the Hon''ble Supreme Court held in para 12 as under :

"In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant''s representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu. This avoidable and enexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible."

In view of the foregoing discussions, this petition has considerable merit and the detention of the petitioner is illegal and constitutionally impermissible. Resultantly, the petition is allowed. The detention order and grounds of detention, Annexures P1 and P1/A and the detention of the petitioner thereunder are hereby quashed. The petitioner be set at liberty forthwith unless wanted in connection with any other case.