Rajasthan High Court - Jaipur
Mohammad Ismail vs Union Of India (Uoi) And Ors. on 9 December, 1991
Equivalent citations: 1993CRILJ1228, 1992(1)WLC754
JUDGMENT Navin Chandra Sharma, J.
1. Section 9(1)(b) and (d) of the Foreign Exchange Regulation Act, 1973, relevant for the purpose of this habeas corpus petition, is extracted below :
9. Restrictions on payments --
(1) Save as may be provided in and in accordance with any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in India, shall --
(b) receive, otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India.
Explanation: For the purposes of this clause, where any person in or resident in India receives any payment by order or on behalf of any person resident outside India through any other person (including an authorised dealer) without a corresponding in ward remittance from any place outside India, then, such person shall be deemed to have received such payment otherwise through an authorised dealer;
(d) make any payment to, or for the credit of, any person by order or on behalf of any person resident outside India;
2. The residential house of Bashir Khan detenu son of Hazi Noor Khan of Fatehpur (Dist. Sikar), was, on an information received, searched 25th Jan., '91, by the officials of the Central Excise & Customs, Bikaner, and certain documents relating to 'Hawala' payments were recovered and seized from his house. The officers of the Customs, Bikaner, also recorded his statements on 25th Jan., '91, 26th Jan., '91, 30th Jan., '91 and on 31st Jan., '91, wherein, Bashir Khan, inter alia, stated that the documents seized from his residence contained details of 'Hawala' payments of Rs. 33 lakhs (approx.), which were made by him to various persons in India, as per the instructions of his brother Mohd. Ishaq, who was in service at Doha (Qatar). On reference from the Customs Department, Bikaner, the Officers of the Enforcement Directorate, Jaipur, went to Bikaner, and took over the seized documents from the Customs Officers. They recorded the statement of Bashir Khan under section 40 of FERA, from which, it appeared that after the passing of his Secondary School Examination in 1976, Bashir Khan had worked as a mason for five or six years in Sharjah and another five or six years in Qatar, and he returned to India in the year 1988, and since then he was residing in India and serving M/s. Madani Travels on a monthly salary of Rs. 400/-. Thereafter Bashir Khan had opened his own Video Parlour at Fatehpur. Ishaq Noor Khan, brother of Bashir Khan, was in service at Doha (Qatar) for the last five years, and since 1989-90, Ishaq Noor Khan started to send money from Doha (Qatar), to 'Bashir Khan, through some persons, and the documents seized froth his residence showed payments made by him to various persons in India (whose relatives resided abroad) as per instructions of Ishaq Noor Khah, and that he had, in this manner, made payments totalling Rs. 33 lakhs, to various persons in Rajasthan.
3. Statement of Bashir Khan was also recorded by the officials of the Enforcement Directorate, on 1st Feb., '91. From that statement, it appeared that Ishaq Noor Khan had collected foreign exchange in Qatar, which Ishaq used to send to Liyakat at Saudi Arabia, and in lieu thereof, Liyakat's brother Gulam Murtaza made payments in Indian currency to Abdul Rashid at Fatehpur, and in his town, Abdul Rashid made payments to various persons. Further statement of Bashir Khan was recorded on 2nd Feb., '91, and that revealed that Ishaq had visited India only once in March/April, 1990, and since then, Abdul Rashid and his brother started indulging in the 'Hawala' transactions by making compensatory payments. Various documents (Annexs. A to G) seized by the Customs Officials were explained by Abdul Rashid in his statement.
4. Consequently, Abdul Rashid was arrested on 3rd Feb., '91 under Section 35 of the FERA and was produced before the Chief Judicial Magistrate (Economic Offences), Jaipur, on 4th Feb., '91, and was remanded to judicial custody. However on a bail--application filed by Bashir Khan, he was ordered to be released on bail by the Sessions Judge, Jaipur, on 6th Feb., '91.
5. On the basis of the statements of Bashir Khan, recorded on various dates and the documents seized from his residential house by the Customs officials (Annexs. A to G) and also on the basis of the statements of Mohd. Umar and Gulam Murtaza, recorded during the inquiry and the said material being furnished to it, the Government of India arrived at the conclusion that Bashir Khan had been engaged in receiving and making payments in India, unauthorisedly under the instructions of persons, residing outside India, in violation of the provisions of the Foreign Exchange Regulation Act, 1973. The Government was satisfied that the aforesaid transactions indulged in by Bashir Khan had affected the foreign exchange resources of the country adversely. Even though adjudication and prosecution under the FERA were likely to be initiated against him, the Government was satisfied that in view of the facts mentioned in the grounds of detention (Annex. 4), it was necessary to detain him under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, hereinafter, "COFEPOSA"), with a view to preventing him from indulging in activities prejudicial to the augmentation of the country's foreign exchange resources. The preventive detention order dated 1st May, 1991 (Annex. I) was accordingly issued in relation to Bashir Khan, Rashid Khan was actually detained on 8th Aug., '91, and was sent to Central Jail, Jaipur.
6. This has led his uncle Mohammad Ismail petitioner to file this habeas corpus petition, alleging the detention of Bashir Khan as illegal and for his release. Mohammad Ismail states in his petition that after the release of the detenu on bail by the Sessions Judge, Jaipur, on 8th Feb., '91, the Chief Enforcement Officer, Jaipur, again summoned the detenu and interrogated him, and again recorded his statement on 26th Feb., '91, and in his statement, he clearly stated that after his release on bail, he was continuously residing at his house, where his old parents were ill and that he was not doing any such job of 'Hawala' payments. After his arrest under the FERA, he had no connection with Gulam Murtaza, Mohd. Umar, Liyakat or Abdul Khan Chauhan. Since 4th Mar., '91, as and when the detenu was called, he was attending the office of the Enforcement Directorate, Jaipur. On 6th Aug., '91, at about 4.30 p.m., when the detenu was at his house, he was informed by the officers to attend the Enforcement Directorate, Jaipur, on 7th Aug., '91. The detenu reached of office on 7th Aug., '91, at about 10.30 a.m., when he was told by the Officers of the Directorate that they were detaining him under the COFEPOSA. The detenu then and there surrendered. He was taken into custody and sent to PS --Vidhayakpuri, Jaipur City, and therefrom, he was sent to Central Jail, Jaipur., At Central Jail, Jaipur, the detenu was supplied with the preventive detention order dated 1st May, '91 (Annex. I), along with grounds of detention and other relevant papers. The detenu submitted his representations to the Central Government, and to the Chairman, Central Advisory Board, on 26th Aug., '91 (Annex. 5).
7. Mohammad Ismail pleads that Bashir Khan is under illegal detention, as the grounds of detention, supplied to the detenue, did not disclose that the detenu, after his release on bail on 8th Feb., '91, ever remained engaged in 'Hawala' transactions or even tried to contact persons engaged in such business. The detaining authority has passed the order of detention without his subective satisfaction that Bashir Khan, if not detained, would again commit the offence under the FERA. His detention was, therefore, void ab initio. The detention-order does not disclose that the detaining authority was serious above the future propensity of the detenu to indulge in similar activities, as the detention-order passed on 1st May, '91, had not been served upon the detenu up to 7th Aug., '91. There was no indication available in the grounds of detention, supplied to the detenu that the authorities had resorted to any coercive measures for ensuring the detention of the detenu, as envisaged in Section 7 of the COFEPOSA. The material supplied to the detenu, along with the detention-order also did not disclose any reason as to why the detention-order was executed after a delay of three months & eight days. The delay itself made the detention proceedings, including the detention of Bashir Khan, illegal.
8. Respondent No. 3 filed a reply to the writ petition. Respondent No. 3 filed a reply to the writ petition. Respondent No. 3 has pleaded that the detenu appeared in the office of the Enforcement Directorate, Jaipur, on 26th Feb., '91, in response to summons issued to him, on 19th Feb., '91, when his statement was recorded. In that statement, the detenu nowhere stated that after he was arrested under the FERA, he had no connection with Gulam Murtaza, Mohd. Umar, Liyakat or Abdul Khan Chauhan, and he also did not state that after his release on bail, he was not doing any job of 'Hawala' payments. The detenu did not turn up in the Directorate on 4th Mar., '91, or thereafter, as he had promised on 26th Feb., '91. He was, therefore, summoned for 15th Mar., '91, but, the summonses were returned to the Directorate by postal remarks, "Left without address". Again summonses were issued on 15th July, '91 for the appearance of the detenu on 22nd July, '91. The summonses sent through the Post-Office were returned with the endorsement, "The addressee was out of station, without his address, and his family members had refused to give his address". The summonses sent through the Deputy Superintendent of Police, Fatehpur, were received back under the remarks, "The detenu was not available at his residence and that his wife had shown her ignorance about his whereabouts". The detenu of his own appeared in the office of the Enforcement Directorate on 7th Aug., '91, because, his wife had intimated him at Poona, over telephone that there was a letter addressed to him by the Enforcement Directorate, Jaipur, which the Postman did not give to her. The detenu was detained on 8th Aug., '91. It is stated that as the detenu's whereabouts were not known, the detention-order could not be served, in spite of all the efforts. It is further pleaded that the conduct of the detenu in not co-operating with the authorities after his release on bail and his continued absence from his house created doubts that the detenu might have been indulging in 'Hawala' transactions during this period. Further, considering his deep involvement in 'Hawala' payment business, there was every reason to believe that if he would not have been detained he would certainly continue with his activities of making 'Hawala' payments for easy money-making.
9. The learned counsel for the petitioner first contended that the prejudicial acts specified in the order of detention, related to transactions carried on by Rashid Khan in the past and the grounds did not disclose any apprehension of the detaining authority that the detenu shall remain involved in future in 'Hawala' transactions, and in the absence of this essential ingredient, the detention-order is void and illegal. In this regard it may be mentioned that various documents (Annexs. A to G) seized by the officers of the Central Excise & Customs, from the residence of Rashid Khan showed that Ishaq Noor Khan had sent dirhams to Liyakat Ali abroad at the rate of 183 dirhems per one thousand Indian rupees and in lieu of dirhems Rashid Khan was to receive amount to the extent of Rs. 38,19,000/- from Gulam Murtaza in India, and he made payments to various persons in India, as per the instructions of Gulib of Oman. Rashid Khan had started the 'Hawala' transactions in the year 1989, and they continued up to January, 1991. Rashid Khan was arrested on 3rd Feb., '91, and was produced before the Chief Judicial Magistrate (Economic Offences), Jaipur, on 4th Feb., '91. By order of the Sessions Judge, Jaipur, dated 6th Feb., '91, he was ordered to be released on bail. After his release from bail also, statement of Rashid Khan was further recorded on 26th Feb., '91, wherein, he accepted the correctness of his earlier statements recorded by the Enforcement Officers, on 31st Jan., '91; 1st Feb., '91; 2nd Feb., '91; and 3rd Mar., '91. Even though adjudication and prosecution proceedings under the FERA were likely to be initiated against Rashid Khan, the appropriate authority was satisfied in view of the facts stated in Annexure-4, that it was necessary to detain him under the COFEPOSA with a view to preventing him from indulging in activities prejudicial to the augmentation of the country's foreign exchange resources. Consequently, on 1st May, 1991, the detention order was passed. It may be mentioned in this regard that the prejudicial acts of the detenu in a given case can be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities, and in such a case the detaining authority may reasonably feel satisfied that the prejudicial acts of the detenu which have come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu, and it was, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future. In the instant case, the documents seized from the house of Rashid Khan showed that he made 'Hawala' payments of Rs. 33 lakhs (approx.) to various persons in India. His brother Ishaq Noor Khan was in service in Doha, Qatar, for the last more than five years. Not only Ishaq Noor Khan, but other persons residing in Saudi Arabia like Liyakat and Umar were also involved in the matter. Ishaq collected foreign exchange in Qatar which he sent to Liyakat in Saudi Arabia, and in lieu thereof, Liyakat's brother Gulam Murtaza made payments in Indian currency to Rashid Khan at Fatehpur. The 'Hawala' transactions had started in the year 1989, and during the year 1990, Rashid Khan received payments totalling Rs. 33 lakhs, from Murtaza, son of Rashid Khan's brother-in-law Abdul Khan Chauhan. One more person, Ghalib, on coming to know that the detenu was engaged in 'Hawala' payments, contacted the former and the detenu started working for Ghalib also from the year 1990. Till the time the detenu was arrested, he had earned a profit of about 40 to 50 thousand rupees, by way of making 'Hawala' payments. Thus, the acts of the detenu were of such character as to suggest that it was a part of an organised operation of a complex of agencies, collaborating to clandestinely or secretly carry on such activities, and therefore, the detaining authority subjectively felt satisfied on the basis of the various documents seized that it was not a solitary or isolated act but was a part of a course of conduct of such activities carried on by the detenu for a reasonably long time and that it was necessary to detain him with a view to preventing him from indulging in such activities in future. The detaining authority acted rationally in arriving at the subjective satisfaction and the detention order cannot be said to be illegal on this ground.
10. It was next urged by the learned counsel for the petitioner that the grounds of detention supplied to the detenu did not disclose that after his release on bail, the detenu had further ever remained engaged in 'Hawala' transactions. The detention of detenu, it was urged, was preventive in nature and before making an order of detention, subjective satisfaction was a condition precedent to the effect that the detenu, if not detained, would again engage himself in prejudicial activities. However, there was no material before the detaining authority that after his release on bail, the detenu had indulged in a single 'Hawala' payment transaction. The detenu had in his statement dated 26th Feb., '91, categorically stated that after his release on bail, he had not met any person involved in the transactions. On this basis, it was argued that the detaining authority had passed the order of detention without his subjective satisfaction, and hence, the same was void. It was further argued that the 'Hawala' payment transactions were of the year 1989-90. The order of detention was passed on 1st May, 1991. There was delay of four months in passing the order of detention from the date of receipt of materials by the detaining authority.
11. It is well settled that there is no hard and fast rule that merely because there was a time-lag of about few months between the offending acts and the date of the order of detention, the casual link must be taken to be broken and the satisfaction claimed to have been arrived at by the detaining authority must be regarded as sham or unreal. No mechanical test by counting the months of the interval is sound. It all depends on the notice of the acts relied on, grave or determined or less serious and corrigible, on the length of the gap, short or long, on the reasons for delay in taking preventive action, like information of participation available in the course of investigation. It has to be investigated whether the casual connection has been broken in the circumstances of the case. There is, therefore, no hard and fast rule that merely because there is a time-lag of about four months or so between the "offending acts" and the date of the order of detention, the casual link must be taken to be broken, and the satisfaction claimed to have been arrived at by the detaining authority must be regarded as sham or unreal. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the "offending acts" and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it.
12. It is, as was held in Ujagar Singh v. State of Punjab AIR 1952 SC 350 : (1953 Cri LJ 146), largely from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely in future to act in a prejudicial manner. But, such conduct should be reasonably proximate and should have a rational connection with the conclusion that the detention of the person is necessary. In Haradhan Saha v. State of West Bengal AIR 1974 SC 2154 : (1974 Cri LJ 1479), it was observed that the anticipated behaviour of a person based on his past conduct in the light of surrounding circumstances may provide sufficient ground for detention. See also Gora v. State of West Bengal AIR 1975 SC 473 : (1975 Cri LJ 429); Golam Hussain v. Commissioner of Police, Calcutta, AIR 1974 SC 1336 : (1974 Cri LJ 938); S.K. Serajul v. State of West Bengal (AIR 1975 SC 1517) : (1975 Cri LJ 1328); Rekhaben Virendra Kapadia v. State of Gujarat AIR 1979 SC 456: (1979 Cri LJ 212); Hemlata Kantilal Shah v. State of Maharashtra, AIR 1979 SC 8 at page 13 : (1982 Cri LJ 150 at page 155); Harnek Singh v. State of Punjab AIR 1982 SC 682 : (1982 Cri LJ 420); Shivratan Makim v. Union of India, AIR 1986 SC 610 : (1986 Cri LJ 813); Smt. Aruna Kumari v. Govt. of Andhra Pradesh AIR 1988 SC 227 : (1988 Cri LJ 411); Rajendra Kumar Natwarlal Shah v. State of Gujarat AIR 1988 SC 1255 : (1988 Cri LJ 1775); Yogendra Murari v. State of U.P. AIR 1988 SC 1835 : (1988 Cri LJ 1825), para 6; and T.A. Abdul Rahaman v. State of Kerala AIR 1990 SC 225 : (1990 Cri LJ 578).
13. It was clear before the detaining authority that Bashir Khan had worked for five or six years in Sharjah, as a mason. His brother Ishaq Noor Khan was in service at Doha in Qatar for the last five years. The 'Hawala' payments continued for two years. Ishaq collected foreign exchange from the Indians working in Qatar, and the detenu made the payments in India, to the relatives of the said Indians, working in Qatar, as per the instructions from his brother Ishaq. Liyakat was working in a bank in Saudi Arabia. The foreign exchange collected by Ishaq used to be sent to Liyakat in Saudi Arabia, and in lieu thereof, Liyakat, brother of Gulam Murtaza made payments in Indian currency, to Rashid Khan, at Fatehpur. Total payments of Rs. 33 lakhs were received by the detenu, and the detenu made payments to various persons in India, as per the instructions of his brother Ishaq. One person, Ghalib, working in Jalala (Oman) also utilised the detenu for the same purpose. The 'Hawala' payment transactions continued up to January 14, 1991. The detenu was arrested on 3rd Feb. '91, and was released on bail on 6th Feb. 1991. Statements of Gulam Murtaza was recorded up to 12th Mar. 1991. The detenu was further examined on 26th Feb. 1991. In the background of these facts, the detaining authority has relied upon the relevant material to be subjectively satisfied that the detenu after his release on bail would, in all probability, indulge in the same activities, and it was essential to detain him to prevent him from doing so. The link had not broken and the satisfaction claimed to have been arrived at by the detaining authority was rational and not sham or unreal. The activities pertaining to 'Hawala' payments were organised activities in clandestine collaboration of many others. In view of the further investigation going on with others, it cannot be held that there was unreasonable delay in the passing of the order of detention, or that the live-link between the activities of 'Hawala' payments and the purpose of detention was snapped. As already stated, the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention.
14. The third submission of the learned counsel for the petitioner was that the detention-order was passed on 1st May, 1991, but it was served upon the detenu as late as on 7th Aug. 1991, i.e., after 3 months and 7 days. This delay in executing the order of detention, it was urged, reflects adversely upon the satisfaction of the detaining authority, and it vitiates the order of detention. It is true that the detention order was made on 1st May, 1991. Respondent No. 3 has not explained this delay by producing any document in support of its reply. In para 11 of his reply, respondent No. 3 has referred to some summonses issued to the detenu earlier to the detention order. Reference to them is meaningless. Reference to summonses for 4th March 1991 and for 15th March 1991 is not even mentioned in the ground of detention. Summoning of the detenu is one thing, and executing the order of detention is quite a different thing. Section 4 of the COFEPOSA provides that a detention order may be executed at any place in India, in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973, and Section 7 of the COFEPOSA specifies the powers of the appropriate Government in relation to absconding persons. Reference in the reply is made to only some summonses. For what purpose the summonses were is not clear. The procedure provided in Sections 4 & 7 of the COFEPOSA was not at all adopted. There was no seriousness worth the name on the part of the detaining authority to execute the detention-order. It was the detenu who suo motu appeared on 7th Aug. 1991 and was detained on 8th Aug. 1991. Such a callousness and delay on the part of the detaining authority in securing the arrest of the detenu for 3 months & 7 days after the date of the order of detention throws considerable, rather enormous, doubt on the genuineness of the subjective satisfaction of the detaining authority as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. It is clear that the detaining authority has failed to explain the long delay in securing the arrest of the detenu for 3 months & 7 days from the date of the passing of the detention-order, and this non-explanation, in our view, throws considerable doubt on the genuineness of the subjective satisfaction of the detaining authority, vitiating the order of detention. Reference in this connection may be made to the decision in TA Abdul Rahaman v. State of Kerala, AIR 1990 SC 225 at pp. 229 & 230 : (1990 Cri LJ 578 at pp. 582 and 583), paras 12 & 13.
15. The fourth submission made before us by the learned counsel for the petitioner was that the detenu had submitted his representation to respondent No. 1, and to the Chairman, Central Advisory Board, through the Superintendent, Central Jail, Jaipur, on 26th Aug. 1991, but the Central Advisory Board has not yet considered the representations itself, which makes grounds for the release of the detenu. The case of respondent No. 3 is that the representation addressed to the Ministry of Finance, Union of India, was received on 30th Aug. 1991, and the representation was rejected by the Finance Minister on 17th Sept. 1991, and a memo of rejection was issued on the same date. The detaining authority had called for the comments of the Sponsoring Authority, on 30th Aug. 1991. The comments were received in the Ministry on 5th Sept. 1991. The case was processed and submitted to the Special Secretary & Director General (EIB) on 6th Sept. 1991, who submitted the same to the Minister for State Revenue, on 7th Sept. 1991. The State Minister submitted the case to the Finance Minister on 14th Sept. 1991, and the Finance Minister rejected the representation on 17th Sept. 1991, and the memo conveying rejection was communicated on 17th Sept. 1991. There were holidays on 31st Aug. 1991, and on 1st, 2nd, 7th, 8th, 14th & on Sept. 1991.
16. So far as the Advisory Board is concerned, it had considered the representation on 5th Oct. 1991. The Board had not submitted its report till 22nd Oct. 1991 when the reply was filed to the writ petition. Affidavit of Shri Avandhut Krishna Lawande, Chief Endorcement Officer, Enforcement Directorate, Jaipur, has been filed in this regard.
17. Reference would be suffice in this regard to the decision in Kamarunnissa v. Union of India, AIR 1991 SC 1640 : (1991 Cri LJ 2058). In that case, the detenus had made representations on 18th Dec. 1989, which was rejected by communication dated 30th Jan. 1990. After examining the explanation, the Supreme Court observed that it was obvious that the sponsoring authority could not have received the representations before 1st Jan. 1990, as the COFEPOSA Unit had received the representation on 28th Dec. 1989, and had forwarded the same to the sponsoring authority on 29th Dec. 1989. 30th & 31st Dec. 1989 were non-working days. Between 1st Jan. 1990 and 8th Jan. 1990, there were two non-working days, namely, 6th & 7th Jan. 1990, and, therefore, the Sponsoring Authority can be said to have offered the comments within the four or five days available to it. It could not, therefore, be said that the sponsoring authority was guilty of inordinate delay. The comments of the sponsoring authority were forwarded to the COFEPOSA Unit on 9th Jan. 1990. The contention that the views of the sponsoring authority were totally unnecessary and the time taken by that authority could have been saved does not appeal, because, consulting the authority which initiated the proposal can never be said to be unwarranted exercise. After the COFEPOSA Unit received the comments of the sponsoring authority, it dealt with the comments and rejected them on 16th Jan. 1990. The comments were despatched on 9th Jan. 1990, and were received by the COFEPOSA Unit on 11th Jan. 1990. The file was promptly submitted to the Finance Minister. 12th, 13th & 14th Jan. 1990 being non-working days, he took the decision to reject the representation on 16th Jan. 1990. The file was received back in the COFEPOSA Unit on 17th Jan. 1990, and the memo of rejection was despatched by post on 18th Jan. 1990. Consequently, it was held that there was no delay on the part of the detaining authority in dealing with the representation of the detenus in that case.
18. Whether or not the delay, if any, is properly explained would depend on the facts of each case. What is reasonable despatch 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 the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.
19. As in Kamarunnisa's case (1991 Cri LJ 2058) (SC) (supra), so also in the present case, the explanation furnished by respondent No. 3 is quite reasonable and satisfactory. The representation sent by the detenu on 26th Aug. 1991, through the Superintendent, Central Jail, Jaipur, reached the COFEPOSA Unit of the Finance Ministry on 30th Aug. 1991. Comments of the sponsoring authority were invited on 31st Aug. 1991, and 1st & 2nd Sept. 1991 were holidays. The sponsoring authority sent its comments on 4th Sept. 1991, and were received in the Ministry on 5th Sept. 1991. They were submitted before the Special Secretary-cum-Director General (EIB) on 6th Sept. 1991; and before the Minister of State on 7th Sept. 1991. : 7th and 8th Sept. 1991 were non-working days being Saturday and Sunday. The State Minister submitted the case to the Finance Minister on 14th Sept. 1991. 14th & 15th Sept. 1991 were non-working days. The Finance Minister rejected the representation on 17th Sept. 1991, and a communication thereof was sent to the detenu on the same date. It is true that the State Minister for Finance took five days in considering the representation, but taking in view the entire process, comments and consideration and the intervening non-working days and holidays, the time taken cannot be held to be unnecessarily long and the detention-order is not vitiated on account of delay in consideration of the representation.
20. So far as the Advisory Board is concerned, it is required to submit its report and its opinion within eleven weeks from the date of detention. The period of eleven weeks had not expired on the date of the filing of the writ petition and even on the date on which respondent No. 3 filed his reply.
21. No other point was argued before us.
22. In view of our opinion that there was abnormal and considerable delay on the part of the detaining authority in securing the arrest of the detenu for 3 months and 7 days after the date of the order of detention, which has not been explained, and in view of our conclusion that it throws serious doubt on the genuineness of the subjective satisfaction of the detaining authority as regards the necessity for detaining the detenu, with a view to preventing him from acting in a prejudicial or offending manner, we allow this habeas corpus petition and quash the impugned order of detention dated 1st May, 1991 (Annexure-I), of Bashir Khan, son of Haji Noor Khan, A.G. Khan Road, Fatehpur (Distt. Sikar) and direct the Superintendent, Central Jail, Jaipur, to set at liberty the said detenu forthwith.