Delhi High Court
Dheer Singh vs Union Of India & Ors. on 13 January, 1999
Equivalent citations: 1999IIAD(DELHI)46, 77(1999)DLT588, 1999(49)DRJ169
Author: Mukul Mudgal
Bench: Mukul Mudgal
ORDER Mukul Mudgal, J.
1. This petition challenges the detention order dated 31st July, 1998 passed against the petitioner under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (hereinafter referred to as 'the Act'). The main ground of challenge to the detention order is the inordinate and unexplained delay in deposing of the representation filed by the petitioner which vitiates the impugned detention order.
2. It is also submitted that there is only a solitary incident involved and such a single incident cannot form the basis of a valid detention order under the Act. The incident relates to the recovery of two tempo loads containing ball bearings of foreign origin when they were about to off load their cargo in front of the godowncumresidence of the father of the petitioner on 1st May, 1998. The petitioner is also stated to be only 16 1/2 years old. It is not necessary to consider the other pleas raised by the petitioner because of the view we are taking in this judgment on the quantum of delay. The main plea of the petitioner was that the representation dated 21st August, 1998 was submitted to the Chairman, Advisory Board and the copy of the said representation was not sent to the detaining authority or the Central Government or the sponsoring authority.
3. The affidavit of the respondents states that the hearing before the Advisory Board was on 16th September, 1998 and the representation was sent by the Board alongwith its report on 23rd September, 1998 and was received by the detaining authority on the same date. On the next day i.e. 24th September, 1998 it was sent to the sponsoring authority for its comments. The sponsoring authority sent its comments on 13th October, 1998. The respondents were given opportunity during the hearing to file an additional affidavit to explain the delay. In their additional affidavit the respondents state as follows: "The third representation dated 10th September, 1998 was ad dressed and submitted to the Chairman, Advisory Board and that a copy of the same was not sent either to the detaining Authority or Central Government or Sponsoring Authority. The hearing before the Advisory Board took place on 16th September, 1998 and the Advisory Board sent the said representation alongwith its report on 23rd September, 1998 which was received by the Detaining Authority at 17.15 hours the same day. The was sent to the Sponsoring Authority for comments the very next day i.e. 24th Septem ber, 1998. The Sponsoring Authority after examine the same sent their comments on 13th October 1998 (26, 27, and 29th September, were closed holidays; 30th September, was restricted holiday; 1, 2, 3 and 4 October, 1998 were closed holidays, 10th and 11th October, were Saturday and Sunday in all 10 holidays). The case file was submitted to Under Secretary on 16th October, 1998, 17th, 18th and 19th October, 1998 were closed holidays. The under Secretary processed the representation and submitted to the Detaining Authority on 20th October, 1998. After considering the representation and comments sent by sponsoring authority as well as the material on record the representation from petitioner was rejected on 20th October, 1998 by Detaining Authority. The repre sentation file was also processed separately for consideration of Central Government. The under Secretary submitted the file to ADG on 20th October, 1998. The ADG submitted the file to Special SecretarycumDirector General, CEIB on 21st October, 1998. The Special SecretarycumDG, CEIB considered the representation on behalf of the Central Government and rejected the same on 22nd October 1998. The file was received back by the concerned under Secretary on 23rd October, 1998 and he intimated the detenu about its rejection vide Memo dated 23rd October, 1998. A copy each of Memos 20th October, 1998 and 23rd October, 1998 duly received and acknowledge by the detenu on 22nd October 1998 and 24th October, 1998 respectively are annexed and marked as Annexure R 2/7 and R 2/8."
4. The affidavit demonstrate unexplained delay in dealing with the representation. It is seen that the representation was considered and rejected on 22nd October, 1998. It is thus seen that even if the date of 23rd September, 1998 is reckoned as the relevant date when the representation was received by the Detaining Authority, yet there is almost a month's delay in its disposal. Even the detaining authority rejected the representation on 20th October 1998. The main ground for explaining the delay appears to be occurrence of about 13 holidays including Saturdays and Sunday. It is clear that the holidays were not unforeseen and are known holidays intimated well in advance and it is expected that the concerned officials would act so as to avoid delay by anticipating the holidays and acting prior to them at least so far as the liberty of a citizen under preventive detention is concerned. It is for the concerned officials to take action before the holidays so as to avoid delay but the mere occurrence of the holidays cannot be used as a ground to prolong the consideration of the representation of the detenu. In this view of the matter it is clear that about a months delay has not been validly explained by the detaining and sponsoring authority in dealing with the representation of the petitioner.
5. In this connection it is relevant to refer to a judgment of this Court in Jitender Kumar Aggarwal Vs. Union of India and Others reported as 1998 (1) JCC (Delhi) 205 wherein this question squarely arose in para 14 as under : "The question with regard to the disposal of a representation came up before different High Courts and the Hon'ble Supreme Court, time and again, and it is a subject matter of different decisions rendered by the Hon'ble Supreme Court and different High Courts. Before proceedings any further in the matter I would like to illustrate my view with the help of certain authorities. It was observed in Rama Dhondu Borade Vs. V.K. Saraf, Commission er of Police and Others "......" True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and expla nation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention."
6. It is also necessary to mention that in Kundanb bhai Dulabhai Shaikh Vs. Distt. Magistrate, Ahmedabad & Ors. Rameshchandra Somchand Shah Vs. Distt. Magistrate, Surat & Ors. reported as JT 1996 (2) SC 532, the Hon'ble Supreme Court had commented adversely upon the delay of 6 days in taking up the representation for consideration.
7. In view of the above mentioned circumstances the petitioner is entitled to succeed on the ground of delay.
8. The petition is allowed. The detention order dated 31st July, 1998 is hereby quashed and set aside. The petitioner be set at liberty forthwith in case he is not required to be detained in any other case and under any other order.