2015 (5) TMI 767 - HC - Customs

Detention of appellant s husband - Habeus corpus - Prevention from abatement of smuggling - Delay in communicating order to appellant - Held that - The manner in which the representation of the detenue was dealt with does not in our view comply with the constitutional mandate and falls foul of the obligation to decide the representation as soon as may be in Article 22(5) of the Constitution. In our view the representation could have been decided much earlier. The duration of time that has lapsed between the receipt of representation and consideration by the Authority and communication of the order of detention. As stated above the delay is of 23 days and 19 days respectively. We have noticed that in many cases, holidays are cited as reason for delay. This has become routine. What has been lost sight of is the fact that the detenu continues to be incarcerated without trial even on holidays. The mere fact that four holidays intervened still does not justify the delay in considering and communicating the decision on the representation. - If indeed the mandate of Supreme Court is to be honestly carried out by the Authority, the Authority should endeavor to prepare themselves to deal with such representation more expeditiously in the interest of upholding the law. The file is said to have been received from Nagpur in Mumbai on 23.12.2014 after which the rejection intimation was sent to Nashik Road central prison. If that be so, we wonder how in the affidavit on behalf of DRI it is stated that it received a communication from the office of Detaining Authority to the effect that the representation made by the detenu was rejected by the Detaining Authority on 19.12.2014. Surely, there is more than meets the eye. Since admittedly, the Additional Chief Secretary had rejected the representation on 20.12.2014 there is no explanation on how communication of the said decision could have been received by the DRI on 19.12.2014. We are, therefore, convinced beyond all reasonable doubt that the delay is not properly explained and continued detention of the detenu is in violation of the constitutional mandate of Article 22(5) of the Constitution of India and order of detention stands vitiated - Decided in favour of appellant.

Summary

Issues Involved:
1. Legality of the detention order under COFEPOSA.
2. Delay in consideration of the detenu's representation and its impact on the detention's validity.

Issue-wise Detailed Analysis:

1. Legality of the Detention Order under COFEPOSA:
The petition sought a writ of Habeas Corpus to quash and set aside the detention order dated 29.9.2014, under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detenu was detained to prevent future activities related to smuggling, including abetting, transporting, concealing, or keeping smuggled goods. The detenu was arrested on 4.10.2013 under the Customs Act for involvement in smuggling 132.882 MTs and 18.350 MTs of Red Sanders, valued at Rs. 53.15 crores and Rs. 7.34 crores, respectively. The detenu's bail application was initially rejected, but he was granted bail on 3.1.2014 due to the DRI's failure to file a complaint within the statutory period of 90 days. The impugned detention order was passed on 29.9.2014 and executed on 25.10.2014.

2. Delay in Consideration of the Detenu's Representation:
The primary challenge focused on the delay in expeditiously considering the detenu's representation, which was argued to be violative of Article 22(5) of the Constitution of India. The representation was received by the Detaining Authority on 26.11.2014, and parawise comments were called for on 27.11.2014. A reminder was sent on 4.12.2014 due to the non-receipt of comments, and the comments were eventually received on 17.12.2014. The representation was rejected on 18.12.2014, and the rejection was conveyed on 19.12.2014. The total time taken from receipt to rejection was 23 days, with a delay of 20 days in forwarding parawise comments.

Similarly, the representation addressed to the State Government was received on 26.11.2014, and parawise comments were called for on 27.11.2014. A reminder was sent on 4.12.2014, and the comments were received on 17.12.2014. The Additional Chief Secretary (Home) rejected the representation on 20.12.2014, and the rejection was communicated on 24.12.2014. The delay in this process was also 23 days.

The court highlighted that such delays in considering the representation of a detenu violate the constitutional mandate of Article 22(5). The Supreme Court's precedents, such as Harish Pahwa Vs. State of U.P. and Rajammal Vs. State of Tamil Nadu, emphasize the need for expeditious consideration of detenu representations. The delay in the present case was found to be unjustifiable and not adequately explained, rendering the continued detention unconstitutional.

Conclusion:
The court concluded that the delay of 23 days and 19 days in considering the detenu's representation was unreasonable and violated the constitutional mandate of Article 22(5). Consequently, the detention order was quashed, and the detenu was ordered to be released forthwith. The judgment emphasized the importance of prompt action in matters of preventive detention to uphold the constitutional rights of individuals. The rule was made absolute in terms of prayer clauses (A) and (B), directing the release of the detenu.