Rajkumar Lekhrajmal Punjabi vs Central government

S.A Kader and Bellie, JJ.—These two writ petitions are filed for the issuance of writs of habeas corpus quashing the orders of detention passed against the detenue under S. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as the Act, with a view to preventing the detenu from smuggling goods.

The points urged before us are--(i) Inordinate delay in passing the orders of detention, (ii) Some of the documents have not been placed before the detaining authority.

Point 1:-- The incident which has given rise to these orders of detention has taken place on 25th June, 1986, while orders of detention have been passed on 23rd March, 1987 after a delay of 9 months. In the counter affidavit filed by the respondent a time schedule of various steps taken are given as follows:-- The seizure was on 25th June, 1986. A wireless message was given to the Assistant Collector, Customs, Preventive Wing, Bombay, on 26th June, 1986. Retraction letters were received on 6th July, 1986 and 10th July, 1986. Reply thereto was sent on 16th July, 1986. On 23rd July, 1986, a letter was received from the Superintendent of Customs regarding the search of the premises of Shri. Bharath Lekhraj Punjabi and Manoj Hemandas Punjabi. The Superintendent Customs (Preventive), has sent a further letter on 5th September, 1986 clarifying some points. ''Brief'' of the case was prepared on 6th October, 1986. A telex message was sent on 22nd October, 1986 to the Assistant Collector of Customs (Preventive) to cause search of the premises of Shri. Harish on 8th November, 1986 and the proposal was sent to the State Government sought for clarification and the reply was sent on 23rd January, 1987. The State Government sought further clarification on 30th January, 1987 and a reply was sent on 17th February, 1987. Then the proposals were sent to the Central Government. Orders were passed by the Central Government on 25th March, 1987. A perusal of this explanation would show how lethargic has been going on with the department as well as with the State Government. The incident has occurred on 25th June, 1986, but the proposal has been sent only on 25th November, 1986, after a delay of 5 months. Searches were being made in the premises of Bharath Lekhraj Punjabi and Harish and is not satisfactory. Even if we condone this delay, there is the fact that the State Government has taken nearly 40 days before seeking for clarification. Finally the Central Government has been approached for passing the orders of detention. We do not know at what stage the Union Government came into the picture, when was the proposal sent to the Union Government, when was it considered by the Union Government and whether there was any delay in considering the matter by the Central Government. In these circumstances, we find that the delay is unexplained and the orders of detention must fail.

Point 2. It is then urged that the Documents 6 and 7 mentioned in the counter affidavit of the respondent with respect to the ground (d), viz., the letter of the Superintendent of Customs (P), Thane Circle, dated 23.7.1986 and that of the Superintendent of Customs (P), Thane dated 5.9.1986 have not at all been placed before the detaining authority. This fact has come to the knowledge of the petitioner only after the filing of the counter and is raised before us. The learned Central Government Standing Counsel is unable to show that these letters were placed before the detaining authority or were taken into consideration by the detaining authority. These are material documents which would throw light and the result of the searches made of the premises of the detenu and would influence the detaining authority one way or the other. The failure to place these documents before the detaining authority vitiates the orders of detention.

In the result, the writ petitions are allowed, the orders of detention are quashed and the detenus are directed to be set at liberty forthwith.