Calcutta High Court
Ashok Kumar Laha And Anr. vs Mahendra Prasad And Ors. on 4 April, 1994
Equivalent citations: 1995CRILJ1551
JUDGMENT Nitish Kumar Batabyal, J.
1. This case arises out of an application under Article 226 of the Constitution of India against the detention Order No. F. No. 673/39/93-Cast VIII dated 26th April, 1993 by the respondent No. 1, Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue directing the detention of Shri Ashok Kumar Laha under Section 3(1) of the COFEPOSA Act, 1974.
2. The detenu who is a citizen of India is a Civil Engineer employed in Calcutta Metropolitan Development Authority as an Assistant Engineer. On 21st January, 1993, a raid was conducted by the Customs Officers at the shop of Messrs. Srish Chandra Dey and Messrs. Binayendra Nath Sil at No. 3, Nalini Seth Road, Calcutta of which the detenu's brother, Uday Shankar Laha is a partner. The detenu happened to the present at the said shop at the time of search. During the course of the search an iron box was recovered from inside the garbage piled in the room beside the bathroom on the ground floor. The said box was opened in presence of witnesses and 8 pcs. of gold biscuits of 10 tola each with foreign markings and 14 small cut pcs. of gold were recovered from inside the said box. Out of the said 8 pcs. marked gold biscuits, 7 pcs. bore the marking "Union Bank of Switzerland - 10 tolas - 999.0" and the remaining one pc. biscuit bore the markings "Suisse - 10 tolas - 999.0". The 8 pcs. of gold biscuits collectively weighed 933. 2 grams and the 14 cut pcs. of gold collectively weighed 26 grams. Thus gold collectively weighing about 959.2 grams valued at Rs. 3,82,000/- was recovered from the aforesaid iron box. The same was seized as no valid documents in support of legal acquisition or possession or importation of the gold of foreign origin could be produced at that time. Other articles including the iron box and Indian Currency amounting to Rs. 2,79,915/- were also seized by the Customs Officers. Thereafter, the Customs Officers asked all the persons who were present at the shop at the relevant time to accompany them to the customs House. On reaching the Customs House, the detenu and others were confined in a room where others were mercilessly beaten and told that unless they wrote down statements as per the dictation of the Officers they would not be allowed to go home. The detenu was practically coerced to write a statement as per dictation of the Enforcement Officer. The detenu has nothing to do with the said business and his presence at the relevant time at the shop was only by chance. On the next day, the detenu along with others were arrested and produced before the learned Metropolitan Magistrate, Calcutta. A joint retraction statement was filed by the detenu along with others arrested. A copy of the said statement is annexed to the writ petition and marked with the letter 'B'. The detenu had nothing to do with the seized gold biscuits and was not aware of anything pertaining to the said business. A prayer for bail was made on behalf of the accused persons and the learned CMM, Calcutta was pleased to relase the accused persons on bail. A copy of the bail order dated 22nd January, 1993 has been annexed with the writ petition and marked with the letter 'C', On 11th May, 1993 the detenu went to the Customs House on his regular monthly visit, when he was served with an order of detention passed under COFEPOSA dated 26th April, 1993 and thereafter he was taken to the presidency Jail, Alipore. In jail the detenu was served with the grounds of detention dated 26th April, 1993 in which it was recited that the detaining authority was satisfied that the detenu knowingly engaged himself in dealing with smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. A copy of the said ground of detention has been annexed with the writ petition and marked with the letter "D". Along with grounds of detention the detenu was also served with 52 documents which were apparently considered by the detaining authority. Copies of the said documents are annexed with the writ petition and marked with the letter "E".
3. On 19th May, 1993, a representation was filed before the detaining authority by the detenu through his Advocate. In the said representation it was pointed out that the detenu was not a partner of Messers. S. C. Dey and B. N. Sil from where gold biscuits were allegedly seized. A copy of the said representation is annexed With the writ petition and marked with the letter "F". The said representation was duly received by the detaining authority but the said representation was not considered by the said authority within a reasonable time. On 9th July, 1993, the detenu filed a representation before the Central Advisory Board through his Advocate. A copy of the said representation together with its Annexures has been annexed with the writ petition and marked with the letter "G". There was a purported personal hearing before the Advisory Board on 3rd of August, 1993, they gave their opinion that there was sufficient cause for detention of the detenu under COFEPOSA. According to the detenu, the detention order was the product of total non-application of mind and there was no material or evidence in the entire grounds of detention of any "dealing in smuggled goods." There was no reasonable or proximate connection between the incident and the order of detention of the detenu. The time gap between the order of detention dated 26th April, 1993 and the actual detention on 11th May, 1993 clearly shows that there was no necessity for passing the impugned order of detention. The detaining authority acted without application of mind. Item No. 19 of the list of documents described the retraction statement as a bail petition and this shows that there was total non-application of mind. Moreover, the grounds of detention clearly revealed that the detaining authority was proceeding on the basis that the detenu, was a partner of Messers. S. C. Dey and B. N. Sil which had nothing to do with the detenu. The mode and manner of the acquistion of gold biscuits of the foreign origin by the business of Messers. S. C. Dey and B. N. Sil was the concern of its partners who were running the said business and an explanation was sought to be given about the lawful acquisition of the said gold of foreign origin by the partners concerned. The detenu had no knowledge about the same and he merely repeated the said explanation. The detaining authority did not supply a copy of the bail application dated 22nd January, 1993 of which the detaining authority made a mention at page 10 of the grounds of detention. Moreover the grounds of detention have not been supplied in full because page 11 of the grounds of detention is incomplete. The detenu states that in the grounds of detention the detaining authority has relied on the so called voluntary statements of Shri Gurudas Seal, Shri Monoj Kumar Seal, Shri Charidan Sana and Shri Pradip Das, apart from the one procured from the detenu but each of the said statements were obtained under duress and each of the persons mentioned above had already retracted the same at the first available opportunity. The detaining authority was aware that such statements were retracted but it dismissed those retractions by merely ascertaining that those retractions were afterthoughts. No reason has been given by the detaining authority why it came to the conclusion that those retractions were afterthoughts. According to the detenu the detention order is illegal and the grounds of detention have no reasonable nexus with the object of detention. The impugned order of detention and his detention in jail pursuant thereto is illegal, wrongful, arbitrary and in excess of jurisdiction and violative of the petitioner's fundamental rights guaranteed under the Constitution of India.
4. In the affidavit-in-opposition sworn by the respondent No. 1 it has been stated that the detaining authority considered all the materials placed before it at the time of issuance of detention order dated 26th April. 1993 marked Annexure "A" to the writ petition. It has been denied that the detenu reached the shop premises when he found that the Customs Officers were making certain enquiries. He was already present inside the shop premises when the Customs Officers entered the shop. In his voluntary statement made on 21-1-1993, the detenu himself has disclosed that he was present in the shop when the Customs Officers went there. The said statement was an absoultely voluntary one. He was not subjected to any sort of coercion or duress or threat. The retracted petition jointly submitted by the detenu and others was properly considered by the detaining authority. It is not at all a fact that the detenu had no connection with Messrs. S. C. Dey and B. N. Sil of 3, Nalini Seth Road, Calcutta-700 007. The detenu himself disclosed that the members of his family had 44% shares in the firm styled as Messers. S. C. Dey and B. N. Sil and that he along with others were looking after the daily business of the aforesaid firm. In his voluntary statement the detenu had slated that he was personally looking after the mortgage transaction of the business,
5. In the affidavit-in-opposition it has been stated that a thorough enquiry was conducted by the Department into the matter which consumed some reasonable time. The detenu was provided with copies of the documents relied upon comprising of 19 pages, the last of which was dated 20-4-93. The detention order was issued on 26-4-93 by the detaining authority after going through the case of seizure and also of the results arising out of follow up action initiated by the Department in the matter. A representation dated 19-5-93 through the Advocate of the detenu was duly considered by the proper authority and the decision was communicated to the detenu. The Central Advisory Board considered the whole aspect of the case. The detention order was received at Calcutta not before 30-4-93. Surveillance was maintained by the proper officers to locate the detenu which materialised on 11-5-93. It was not at all a fact that the detenu attended the Customs House during the period between 30-4-93 and 10-5-93. Hence, there was no delay in serving the detention order. It is denied that no nexus existed between the ground of detention and the object of the detention as alleged or that the detention order was a product of total non-application of mind as alleged. The document marked as serial No. 19 of the list of documents accompanying the grounds of detention was a joint petition on the part of all the accused persons containing their retraction which was gone through by the detaining authority. Instead of using the word "combined", the word "bail" was erroneously written. In the grounds of detention it was mentioned at page 10 that "a bail petition was moved", by it was meant that an application was moved before the learned Magistrate for bail. In the instant case, such ah application was moved by the learned Advocate of the petitioner through the oral submissions of the learned Advocate for the detenu along with the petition for retraction. The grounds of detentions were prepared on the basis of the facts of the case, voluntary statement of a number of persons, results of follow up action initiated by up Department and the conclusion arrived at by the detaining authority. In the instant case, no question was raised about the veracity of the acquisition of gold biscuits of foreign origin which were smuggled because of the fact that the gold biscuits alleged to be acquired from the NRI, as claimed, were different from the gold biscuits recovered by Customs Officers on the material day of seizure. This was evident from the written objection submitted by the Customs, Calcutta on 2-2-93 before the learned Magistrate against the accused's petition wherein it was disclosed by the Customs, Calcutta that the gold biscuits of foreign origin, as per the copy of the customs baggage receipt produced by the petitioner bore the markings "999.0 Jonson Swisse" where as 7 pcs. of gold biscuits out of 8 pcs. recovered from inside the shop premises of the petitioner bore the markings "UBS Union Bank of Switzerland Melted 999.0". The above disclosure established the fact that the seized gold biscuits of foreign origin were smuggled goods and could not in any way be covered by the copy of the customs baggage receipt of Shri A. M. Sally. The grounds of detentions were supplied in full to the detenu. The word "which" was printed inadvertently at page 14 in the 7th line from bottom. The documents placed before and considered by the detaining authority were all loose documents in respect of mortgage matters from the personal possession of the detenu on 21 -1 -93 inside the shop premises and the detenue's voluntary statements disclosing the part played by him in the aforesaid matter, amply proved that the detenu had active connection in the affairs of the shop premises from where the smuggled gold biscuits were recovered.
6. In the affidavit-in-reply sworn by the wife of the detenu the averments made in the writ petition have been reiterated and the contentions raised in the affidavit-in-opposition have been fully denied. It has been emphasized that the detenu had no connection with the business of Messers. S. C. Dey and B. N. Sil. It has been stated that there has been abnormal delay between the alleged incident on 21st January, 1993 and the issuance of the order of detention on 26th April, 1993 rendering the detention order invalid. There was also abnormal delay between the order of detention passed on 26th April, 1993 and the service of the same on 11th May, 1993. rendering the detention order invalid. The representation of the detenu on 19th May, 1993 sent through Jail Authorities is stated to have been received by the Joint Secretary, COFEPOSA, New Delhi on 24th May, 1993 and the same was rejected on 21st June, 1993. Thus there was abnormal delay of 32 days from the date of representation till the date of rejection. This is in violation of Article 22(5) of the Constitution of India. The representation of the detenu before the Advisory Board dated 9th July, 1993 is stated to have been rejected by the Board on 2nd August, 1993, thus it took 23 days to consider the representation. This abnormal delay also renders the detention invalid. It has been denied that the detention order dated 26th April, 1993 was received at Calcutta on 30th April, 1993 or that surveillance was maintained to locate the detenu which materialised on 11th May, 1993. It has been asserted that the detenu attended the Customs House during the period from 30th April, 1993 to 10th May, 1993 in obedience to the condition imposed on him in the bail order granted to the detenu on 22nd January, 1993. This will be evident from the attendance register maintained by the Customs House. The allegation that the detenu could not be served with the grounds of detention before 11th May, 1993 is absolutely false. It has been further stated that the words which were printed inadvertently in the grounds of detention rendered the grounds vague for the detenu to make an effective representation.
7. Let us first take up the issue of delay in passing the order of detention after the placing of the case before the detaining authority. In this case on 26th April, 1993 the order of detention was passed against the detenu by the respondent No. 1 who was specially empowered under Section 3 of the COFEPOSA Act, 1974. The raid was conducted in the shop of the detenu as alleged on 21st January, 1993. In paragraph 11 of the affidavit-in-opposition it has been stated that a thorough enquiry was conducted by the Department in the matter and it took some period of time. The stand which was taken by the detenu and others who were detained along with him was that the gold biscuit of foreign origin were purchased from Shri A. M. Sally and a customs baggage receipt was also produced. From page 56 of the paper book it appears that Customs Madras gave a baggage receipt to Shri A. M. Sally and a through enquiry was made at the native place of Shri A. M. Sally as given in the pass-port. The relevant file of the Department has been placed before the Court to show that there was no endorsement in the relevant travel paper of Shri A. M. Sally that he sold the gold biscuit as alleged in Calcutta. Moreover, the markings on the gold biscuits sold by Shri A. M. Sally do not tally with the markings on the gold biscuits seized by the Customs Officers in connection with the present case. In paragraph 11 of the affidavit-in-opposition, it has been stated that the detenu was provided with copies of the documents relied upon comprising of 119 pages, the last one of which was dated 20-4-1993. The detention order was issued on 26-4-93 by the detaining authority after he had gone through the relevant case of seizure and also of the results arising out of the follow up action initiated by the Department. In this connection reference may be made to pages 101, 112, 139, 140, 141, 142, 143, 144, 145, 160 and 165 of the paper book to show that time consuming enquiries were made both at Calcutta and Madurai, Tamil Nadu by the authorities concerned. In the circumstances, it cannot be said that there was unreasonable delay in passing the order of detention after the proper enquiries were completed.
8. The said order of detention was executed on 11th May, 1993, that means, within 15 days. The contention of the detenu is that he was regularly attending the Customs Office as per bail condition and the Customs Authorities had no justification for the delay of 15 days. But the Attendance Register maintained by the Customs Department at Calcutta was produced before the Court to show that the detenu last attended the Customs Office on 13th April, 1993. Therefore, the explanation given by the respondents may be accepted as sufficient for the intervening delay. In this connection, reference may be made to M. Ahamed Kuttys case reported in (1990) 2 SCC 1 where the delay in execution of the order has happened because of the fact that the detenu was absconding. It was held that the delay (which was of 38 days in that case) was not such as to snap the nexus between the detention order and. its execution or to render the ground stale or to indicate that the detaining authority was not satisfied as to the genuineness of detention of the detenu.
9. In T.A. Abdul Rahaman v. State of Kerala, AIR 1990 SC 225: (1990 Cri LJ 578), it was stated that where there is unsatisfactory and unexplained delay between the date of the 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 but it has been held in Abdul Salam v. Union of India, AIR 1990 SC 1446: (1990 Cri LJ 1502) that if there be satisfactory explanation relating to the delay, the same would not vitiate the subjective satisfaction Of the detaining authority.
10. In paragraph 37 of the writ petition it has been stated that the bail application dated 22nd January, 1993 of which the detaining authority had made a mention at page 10 of the grounds of detention was not supplied to the detenu. It has been further stated in that paragraph that the grounds of detention have not been supplied in full because statements at page 11 (14) (?) are incomplete.
11. The learned Lawyer for the respondents has submitted that no bail petition was actually made before the learned Metropolitan Magistrate and a bail application was made verbally. The record of the said case was called for by this Court and on a persual we are satisfied that actually no bail petition was made in that case. Therefore, the question of supply of copy of bail petition cannot arise. The reference as to bail petition in the list of documents at item No. 19 is, therefore, obviously a mistake. At page 14 of the grounds of detention, 7 lines from bottom, the word "which" has been written after the words "in the inner room". This is a typing mistake as after the words in the "inner room", there should be a full-stop. The word "which" should be deleted. Otherwise the sentence makes no meaning. This is a simple typographical mistake.
12. In this connection, Mr. Mukherjee, learned Counsel for the respondents has referred to Smt. Hawabi Sayed Arif Sayed Hanif v. Hmingliana, (1992) 6 JT (SC) 162 : (1993 Cri LJ 172) where the expression 'Indian Costal Waters' was used instead of 'Indian Customs Waters'. It was held that it was a typographical error and it did not vitiate the order on an ground including that there was no application of mind. So a mere typographical error which is apparent on the face of the record cannot vitiate the detention order on the ground of non-application of mind.
13. It has been argued by the learned Lawyer for the defence that in various documents relied upon by the detaining authority the detenu has been described as a partner of the firm. But there is no material to show that the detenu is actually a partner of the firm of Messrs. S. C. Dey and B. N. Sil. No document has actually been produced before us to show that the detenu was at the material time a partner of the firm.
14. Mr. Anjan Mukherjee, learned Counsel for the respondents has referred to the principles laid down in, AIR 1981 SC 2005 : (1981 Cri LJ 1636) (State of Gujrat v. Adam Kasam Baiya), where it has been held that the High Court in its writ jurisdiction under Article 226 of the Constitution of India is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further, and examine whether the material was adequate or not which is the function of an appellate authority or Court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in Section 3 of the COFEPOSA Act is the satisfaction of the detaining authority and not of the Court. Mr. Mukherjee has drawn the attention of this Court to the statement of Shri Manoj Kumar Sil recorded on 21-1-1993. This statement was subsequently retracted but it contains a statement as follows:-
"The Customs Officers searched the premises in presence of Shri Gurupada Sil and Shri Ashok Kumar Laha who are partners of the firm of Messers. S. C. Dey and B. N. Sil and two other independent witnesses".
It has been further submitted by Mr. Mukherjee that the detenu in his statement recorded on 21-1-1993 stated as follows:-
"We, the members of our family having 45 1/2 percent share in the firm styled Messrs. S. C. Dey and Messers. B. N. Sil at No. 3, Nalini Seth Road, Calcutta-700 006, and we are also looking after the. daily business of the aforesaid firm and earning collectively Rs. 4,0007- (Rupees four thousand only) per month as our share of profit from the said firm. The aforesaid firm is a partnership Firm and we purchased the said firm from S. C, Dey with his goodwill and as such we are enjoying the privilege to use the old name as Messrs. S.C. Dey and Messrs, B. N. Sil. We are dealing in both and now we are also doing ornaments arid mortgage business of gold ornaments under licence."
15. On the basis of these materials, Mr. Mukherjee has submitted that it cannot be said there was no material before the detaining authority for describing the detenu as a partner of the firm. He has further submitted that it was not the business of the detaining authority to sift the materials to show whether these were sufficient for coming such a view. He has further submitted that the view taken in Adam Kasam's case, (1981 Cri LJ 1686) (SC) has been affirmed in AIR 1985 SC 364 at paragraph 10. Mr. Mukherjee in this connection has also drawn our attention to the following observations of the Apex Court at paragraph 12 of the Alka Gadia's case, 1992 Suppl (1) SCC 496, "where the satisfaction of the authority is subjective, the Court intervenes when the authority has acted under the dictates of anybody or when the conclusion is arrived at by the application of a wrong test of mis-construction of a statute or it is not based on material which is of a rational probative value and relevant to the subject matter in respect of which the authority is to satisfy itself."
16. From page 187 of the paper book it appears that on 21st May, 1993 a letter was written by the learned Advocate of the detenu to the Joint Secretary, COFEPOSA, Ministry of Finance calling upon the detaining authority to release the detenu as he was innocent and also requesting the detaining authority to supply copies of the documents which were sezied under seizure memo dated 21-1-93. Particular reference was made at all the documents which were listed in Annexure 'A' to the said seizure memo to enable the detenu to make a proper representation to the Central Government and to the Central Advisory Board. From page 54 of the paper book. We get the description of the documents seized as per Annexure 'A' to the seizure list dated 21-1-93. These are Cash Book (pages 1-82), Stoch Register (pages 1-39), Voucher Book 6 pcs. (pages 1 to 62, 1-101, 1-84, 1-10, 1-101 and 1-41). loose sheets 6 bundles (pages 1-81) and Indian Currency Notes amounting to Rs. 2,79,915/-.
17. Mr. Mukherjee, learned Counsel for the respondents has submitted that there was no obligation to supply the copies of documents not relied upon by the detaining authority. In this connection, the learned Counsel has referred to certain decisions of our Apex Court which are discussed below.
18. Mr. Pradip Ghosh, learned Counsel for the detenu has in this connection referred to some decision of the Apex Court in support of his contention that the non-supply of the wanted documents denied opportunity to make a proper representation by the detenu and as such the detention order is vitiated. Mr. Ghosh has first referred to a Single Bench decision of the Delhi High Court reported in (1991) 44 DLT 82 at 88. It has been held in paragraph 25 at page 88 as follows:-
"25. Next, to deal with the petitioner's request for supply of documents at item No. (i) and the reason for it stated at item No. (ii) of the second demand dated 7th May, 1990, these two items have to be read. The same are set out below:-
"(i) Photostat copy of original seizure memo of goods to be medicinal powder.
(ii) Father's name and addresses of the witnesses which have been cited in the above said seizure memo. The reason for petitioner's request is that he wishes to challenge the veracity of the purported attestation by these witnesses and that the detaining authority has acted with non-application of mind in believing the attestation of persons who do not have father's name and addresses given on the paper relied upon by him."
19. In this case a photostat copy of the seizure memo was supplied to the detenu. The detaining authority did not have the original paper and acted upon a typed copy of the inventory. It was contended that the detenu was entitled to get only a copy of what the detaining authority had considered. Held that if the original seizure memo was really not before the detaining authority, the order of detention must be vitiated on the ground of non-application of mind by the detaining authority as he would have acted upon a typed copy without caring to verify the existence and genuineness of the so-called original seizure memo. It was held that the detention order was vitiated in this case.
20. Mr. Ghosh has next relied upon the decision of the Apex Court reported in Kirit Kumar Chanian Lal Kundaliya v. Union of India, (1981) 2 SCC 436: (1981 Cri LJ 1267). In that case it has been held in paragraph 12 that once the documents are referred to in the grounds of detention it becomes the bounden duty of the detaining authority to supply the same to the detenu as part of the grounds of pari passu the grounds of detention. There is no particular charm in the expressions 'relied on', 'referred to' or 'based on' because ultimately all these expressions signify one thing, namely, that the subjective satisfaction of the detaining authority has been arrived at on the documents mentioned in the grounds of detention. The question whether the grounds referred to, relied on or based on is merely a matter of describing (he nature of the grounds. These not having been done in the present case the continued detention of the petitioner must be held to be void.
21. Mr. Mukherjee, learned Counsel for the respondents has in this connection referred to the reported decision in Haridas Amarchand Shah v. K.L. Verma, (1989) 1 SCC 250 : (1989 Cri LJ 983). In that case it has been held that it is not necessary to furnish to the detenu copies of all the documents seized from him which are not material and relevant for reaching subjective satisfaction of the detaining authority merely because they were mentioned in panchnarria. But it has got to be noted that in this case no application had been made before the detaining authority for giving the detenu the copies of the documents not supplied for making an effective representation.
22. There is no controversy that if the detenu asks for copies of statement and documents referred to in the grounds of detention, the same must be supplied to him expeditiously as stated in Ram Chandra v. Union of India, AIR 1980 SC 765 by relying upon the Constitution Bench decision in Jay Narayan Sukul v. State of West Bengal, AIR 1970 SC 675 : (1970 Cri LJ 743). If the documents formed the basis of the grounds, the fact that the detenu was aware of the contents will not enure to the benefit of the detaining authority (Mehrunissa v. State of Maharashtra, AIR 1981 SC 1861: (1981 Cri LJ 1283(1)). It has also been held in Ahmed Kutty v. Union of India, (1990) 2 SCC 1, that the detenu has the right to be furnished with the grounds of detention along with the documents relied on. If there is a failure or even delay in furnishing those documents, it would amount to denial of the right to make an effective representation guaranteed under Article 22(5) of the Constitution of India. For this purpose, it is immaterial whether the detenu already knew about their contents or not.
23. Mr. Mukherjee, learned Counsel for the respondents has argued that corpus delicti need not be supplied to the detenu. He has obviously relied upon the principle laid down in Dhurus Kanu v. state of West Bengal, AIR 1975 SC 571 : (1975 Cri LJ 459), which related to removal of fish plates from running tracks and it could not be reasonably insisted that the fish plates must have been produced. But here in our case the books of accounts and papers referred to in schedule "A" of the seizure memo dated 21-1 93 do not constitute corpus delicti but the currency notes seized can be described as such. The detenu in this case did not ask for production of the currency notes. Therefore, the contention of Mr. Mukherjee cannot hold any water. Here in our case the subjective satisfaction of the detaining authority was arrived at on the documents mentioned in the grounds of detention. The seizure memo refers to the documents as referred to in schedule "A" thereto. Therefore, it cannot be said that the subjective satisfaction of the detaining authority was not arrived at on such documents. So when the copies of the said documents were not supplied even on demand then the detenu was prevented from making a proper representation before the detaining authority and the order of detention was vitiated.
24. Next, let us come to the question of delay in the disposal of the representation made on behalf of the detenu for his release. One representation dated 19-5-93 from the Advocate of the detenu was addressed to the Secretary, COFEPOSA. New Delhi for his release. The said representation was received by the Ministry on 24-5-93. Another representation dated 21-5-93 for the self-same purpose was sent to the Ministry' s office on 24-5-93 by the learned Advocate of the detenu. It was received on 28-5-93. Copy of the representation received by the sponsoring Authority on 28-5-93. Parawise comments were forwarded by the sponsoring Authority on 1-6-93 (29-5-93 and 30-5-93 being Saturday and Sunday). Parawise comments received by Ministry on 4-6-93. Two representations were put up and signed by the Joint Secretary on 16-6-93. All the representations were put up and signed by the MOS on 18-6-93. Memo intimating the rejection of the memorandum was issued on 21-6-93. Hence there was a delay of 29 days in all.
25. The representation dated 9-7-93 by the detenu's Advocate was received by the Advisory Board on 26-7-93. The representation was put up before the Joint Secretary for consideration on 26-7-93. It was signed by the Joint Secretary on 27-7-93. The representation was put up and signed by the Members (Anti Smuggling) and DGEIB, on 28-7-93. It was put up and signed by the MOS on 29-7-93. It was put up and signed by the Finance Minister on 30-7-93. The memorandum conveying the rejection of the representation was issued by the Ministry on 2-8-93. There was a delay of 2.1 clays from 9-7-93.
26. Though Article 22(5) of the Constitution has not expressly stated as to whom representation is to be made and how the detaining authority is to deal with the representation, it is implicit in the language of that Article as stated in Abdul Karim v. State of West Bengal, AIR 1969 SC 1028 : (1969 Cri LJ 1446) that the authority to whom the representation is made should properly consider the same as expeditiously as possible. As to whom the, delay would be regarded as unreasonable and fatal is largely a question of fact. In Pabitra v. Union of India, AIR 1980 SC 798 : (1980 Cri LJ 562) and Khaidem Ibocha Singh v. State of Manipur, AIR 1972 SC 438, delay of 17 days; in Amulya Chandra v. State of West Bengal, AIR 1972 SC 1179:(1973 Cri LJ 930) delay of 19 days; in Bidyanath v. State of West Bengal, AIR 1972 SC 1198: (1973 Cri LJ 444) delay of 28 days and in Youssuf v. Union of India, AIR 1982 SC 1170 : (1982 Cri LJ 1396) delay of 29 days were regarded as violative of Article 22(5) of the Constitution. In lachhu Deb v. Union of India, AIR 1980 SC 1983, there was delay of about one month in consideration of one representation and of 14 days in another. Both were held to be bad in the eye of law. In Francies Coralie v. W. B. Khentia, AIR 1980 SC 849 delay of 20 days was not viewed as suspicious as the representation had required a thorough examination in consultation with Investigators of facts and Advisors of law. In Abdul Salam v. Union of India, AIR 1990 SC 1446 (1990 Cri LJ 1502), the time taken by the Central Government in disposing of the representation was one month and 5 days. In view of the explanation given for the delay, it was held that the representation was considered expeditiously and there was no negligence or callous inaction or avoidable redtapism.
27. It is clear, therefore, that there is no cut and dry rule that after so many days delay, it can be said that the delay is bad in law. It will always depend upon the facts and circumstances of the case. In our case, there was a delay of 29 days in respect of the representation made to the Secretary, COFEPOSA and the Ministry of Finance. There was a delay of about 12 days between 4th June, 1993 and 16th June, 1993 in the disposal of the representation at the level of the Joint Secretary after the receipt of the parawise statements on 4-6-93, no explanation has been given for this delay. In respect of the delay of 21 days relating to the representation to the Central Advisory Board, it appears that there is practically no delay as the representation dated 9th July, 1993, was received on 26th June, 1993 by the Advisory Board.
28. In Harish Pahwa v. State of U.P., AIR 1981 SC 1126 : (1981 Cri LJ 750) the order of detention was passed on 16-5-80. The representation dated 3-6-80 by the detenu from jail was received by State Government on 4-6-80. Comments were called for on 6-6-80 from the Customs Officers and the comments were received on 13-6-80. The State Government referred to its Law Department on 17-6-80 for opinion which was furnished on 19-6-80. Rejection of representation was ordered on 24-6-80 and it was communicated to the Jail Authorities two days later.
Held, the representation made by a detenu has to be considered without any delay. The Supreme Court does not look with equanimity upon delays when the liberty of a person is concerned. It is the duty of the State to proceed to determine representations with the utmost expedition which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. Where this is not done the detention has to be declared unconstitutional.
29. In Mahesh Kumar Chauhan alias Banti v. Union of India, AIR 1990 SC 1455 :(1990 Cri LJ 1507), the detenu made a representation on 21 -8-89 which was received by the appellant on 23-8-89, and it was forwarded to the sponsoring Authority on 25-8-89. The Sponsoring Authority sent comments on 11-9-89. The representation was processed and put up before MOS, Revenue on 15-9-89 on which date it was rejected subject to the approval of the Finance Minister. On 18-9-89, the matter was received back from FM's and memo was received on 19-9-89 rejecting the explanation. It was held that there was no explanation for the delay on the part of the sponsoring Authority in sending its comments on 11-9-89, This was violative of the obligation under Article 22(5) of the Constitution.
30. In our case, the delay of 12 days referred to above has not been satisfactorily explained and in view of the principles laid down in the cases cited above by the Apex Court of our country it can well be stated that the unexplained delay of 12 days is violative of the obligation under Article 22(5) of our Constitution.
31. It was argued on behalf of the detenu that the markings on the seized gold biscuits read as follows:-
"Union Bank Switzerland 10 Tolas Melted Assey 999.0" "Swisee 10 Tolas 999.0 oppsayfur fondeup" vide page 53 of the paper book. On the basis of the words "10 Tolas" it has been submitted that the Indian word "Tola" could not have found its way into the seized articles had this been smuggled into India from outside. The learned Counsel has overlooked the fact that the case of his client is that these articles were acquired lawfully from A. N. Sally, an NRI who had paid proper customs duty for taking these items into India. Therefore, whether the articles seized are foreign gold biscuits or not is not in the grey area of dispute. The markings and the writings on the seized articles prima facie show that these are not of Indian origin.
32. The next point which has been argued by Mr. Ghosh is that the words "with a view to preventing him from dealing in smuggled goods, otherwise than by engaging in transporting or concealing or keeping smuggled goods in future, it is necessary to make the following order" make it clear that his client was branded for "dealing" in smuggled goods. Mr. Ghosh has argued whether a solitary act is sufficient to warrant an inference that the detenu will repeat his activities in future also will depend upon the nature of the act and the attendant circumstances. In Anand Prakash v. State of U.P., AIR 1980 SC 516, the solitary instance of the alleged crime which related to the receiving of the stolen electric wires was not accepted as a good ground for detention because there was no credible information or cogent reason apparent on record to warrant an inference that the detenu would indulge in further criminal activities. In T. Debaki v. Government of Tamil Nadu, AIR 1990 SC 1086 : (1990 Cri LJ 1140), the solitary assault on one person was not held to be such which would bring the case within the purview of the detention law.
33. It cannot be said that one instance can never be sufficient for finding of satisfaction of the detaining authority. There are cases where one instance has been regarded as sufficient, if the activity alleged is of such a nature that the detaining authority could reasonably infer that the detenu must be habitually engaged in such activity. In Shivrattam v. Union of India, AIR 1986 SC 610: (1986 Cri LJ 813), the detention was based on an act of smuggling coming to light. On the facts of the case it was stated that the same did not mean that was the first and only occasion on which the detenu has tried to smuggle gold. Having regard to the nature of activity and the circumstances in which the detenu was caught smuggling gold, it was held that the detaining authority was satisfied in reaching the conclusion that the detenu was engaged in smuggling gold and that with a view to prevent him from doing so, it was necessary to detain him.
34. In our case there is no dispute that on a singular occasion the detenu was allegedly found involved in purchase and stocking of smuggled gold biscuit. But from the nature of the organized activity in secreting the gold biscuits, the planned manner in which the entire thing was conducted and the technical skills and experience required for carrying on such an undertaking clearly shows that the single act was the "tip of the ice-berg". Therefore, simply because there was a solitary isolated act in which the detenu was caught red-handed, it cannot be said that one incident, in the facts and circumstances of the case, can't be sufficient for founding the satisfaction of the detaining authority. Therefore, it cannot be held that the detaining authority had no good reasons for reaching the satisfaction that the prevention order was necessary for preventing smuggling of gold in future.
35. In view of the earlier findings made above it is held that the detention of the detenu is illegal as it is violative of the obligation under Article 22(5) of the Constitution of India and he should at once be released, A.M. Bhattacharjee, C.J.
36. I agree.