Delhi High Court
Rajinder Pd. Khanna vs Union Of India on 18 August, 1988
Equivalent citations: 1989(19)ECC242, 1988RLR675
JUDGMENT Charanjit Talwar, J.
(1) By this Wp, Rajinder Pd. Khanna challenges the detention order passed u/s 3(1) read with S. 2(f) of the Cofeposa Act, 1974 (the Act) against him by the Administrator of Delhi on 3.9.87. The order was passed with a view to preventing the petitioner from engaging in transporting, concealing and keeping smuggled goods. The grounds of detention also dt. 3.9.87 were served on the petitioner while he was lodged in Central Jail, Tihar.
(2) The petitioner made a representation to to the detaining authority on 26.9.87 which was rejected on 16.10.87. Thereafter the petitioner represented to the Central Govt. through his counsel for revoking the Impugned detention order. This representation dated the 15.10.87 (Annexure 'F' to the writ petition) was admittedly received in the Cofeposa Section of the Ministry of Finance on 23.10.87. It was rejected vide memorandum dated the 9.11.87. These are the admitted facts.
(3) In the petition, a number of grounds challenging the legality of the detention order have been taken. Before us the first plea is that the inordinate and un-explained delay of the respondents in dealing with the representation dated the 15.10.87 invalidates the detention order. The affidavit in opposition on behalf of the Central Govt. has been filed by Shri C. Rajan, Under Secy. to the Govt. of India, Ministry of Finance, Department of Revenue, New Delhi. About the plea that the representation was not decided in time, the averment in rebuttal contained in that affidavit is as follows "PARA10, 15 and Ground Ix relate to the answering respondents Union of India and in reply thereto I say that no representation from the petitioner was ever received by the Central Govt. However, a representation dt. 15.10.87 forwarded by Shri Herjinder Singh and Rohit Kochhar, advocates was received in the Copeposa Section of the Ministry of Finance on 23.10.87. As there were some submissions for which the information was not readily available with the Ministry, the same was forwarded to D.D , DR1, New Delhi calling for comments on the same on the very same day. The comments from the D.R.I, were received back in the Ministry on 9.11.87. The representation Along with the comments was put up to Shri K. Visawanathan, Joint Secretary who is empowered u/s 11 of the Cofeposa Act, 1974 on the very same day. However, Shri K. Visawanathan, Joint Secy. considered and rejected the representation on the same day and a memorandum rejecting the representation received on behalf of the petitioner from the Advocates was considered expeditiously and it was considered by the proper authority."
(4) Mr. Herjinder Singh, learned counsel for the petitioner submits that on the respondents OWN showing there has been a delay of 17 days in disposing of the representation. This delay, it is urged, not having been explained at all, invalidates the continued detention of the detenu and consequently the detention order is liable to be quashed. In support of his contention, Mr. Herjinder Singh has cited a number of authorities. In Ichhu Devi Choraria vs. U.O.I. , 7 days un-explained delay was considered un-reasonable delay in considering the representation of the detenu. It was held that delay had the effect of invalidating the detention. Mr. Rajinder Dutt, learned counsel for the respondents (U.O.I.), however, cites L.M.S. Ummu Saleema vs. B.B. Gujral ) in support of his plea that each day's delay in dealing with the representation is not to be explained and that at any rate "the time imperative can never be absolute or obsessive." In this case the Supreme Court observed that "The occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life there are no invariable absolutes. Neither life nor law can be reduced to mere despotic formulae."
(5) In the above case (Ummu Saleema), the representation was dispatched on 5.2.81 and was received in the office of the detaining authority on 13.2.81. It was held that apparently the representation was in postal transit from 5th to 13th. It was put up before the detaining authority on 19.2.81 and disposed of on that very day. From the records which were produced before the Supreme Court to explain the delay of five days, it was found that the detaining authority was not available from 13th Feb., 1981 to 16th Feb., 1981. After the 16th the delay was for a period of three days only. The Court observed that delay could hardly be described as delay "though one wishes there was no room even for that little complaint." In the result it was observed that "We are of the view that there has not been any unaccountable or un-reasonable delay in the disposal of the representation by the detaining authority."
(6) In the present case the averments contained in the affidavit of Shri C. Rajan, Under Secretary to the Government of India have been extracted above. Mr. Dutt Submits that there was no delay on the part of the detaining authority at all. He has shown us the calendar for the year 1987. He is right to the extent that 24th to 26th Oct., 87 were not working days. He is also right in his submission that 7th & 8th Nov. 87 were also not working days, being Saturday and Sunday. We repeatedly asked him whether there was any explanation from 26.10.87 to 6.11.87 for not dealing with the representation. His submission is that the delay, if any, is on the part of the D.R.I, and not on the part of the detaining authority. Such a plea was raised before the Supreme Court in Saleh Mohammed vs. U.O.I. . While dealing with the question to deal with the representation expeditiously, it was held :
"TIMES out of number, this Court has emphasised that where the liberty of an individual is curtailed under a law of preventive detention, the representation, if any, made by him must be attended, to dealt with and considered with watchful care and reasonable promptitude lest the safeguards provided in Article 22(5) of the Constitution and the statute concerned should be stultified and rendered meaningless. Here in the instant case we find that the functionaries of the State in attending to the representation of the detenu have been guilty of gross negligence and chill indifference. For more than three weeks, the representation of the detenu remained lying unattended in the office of the Superintendent of Jail, or the Inspector-General of Prisons. This inordinate, unreasonable and unwarranted delay of about 22 days amounted to a violation of Article 22(5), which guarantees to the detenu a right to have his representation considered with reasonable expedition. It was on this short ground that we had, as per our order dt. 20.8.80 allowed this writ petition, quashed the order of Saleh Mohammed's detention and directed his release forthwith."
(7) We hold that the delay in the present case has neither been explained nor accounted for. This ground by itself is sufficient to invalidate the continued detention of the detenu.