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2015 (5) TMI 880 - HC - CustomsValidity of detention order - Non-supply of documents within the stipulated time in the language known to the detenue - Delay in execution of the detention order - Delay in disposal of the representation - Delay in passing the detention order - held that - The petitioner was served with a detention order on 23.6.2014. While receiving the detention order the endorsement was made by the petitioner in his handwriting in English language and the acknowledgement was also signed in English language - after receipt of the detention order the petitioner filed a representation on 7.8.2014 before the Special Secretary-cum-Director General, CEIB, and also to the Chairman COFEPOSA Board. This representation was also made in English language. - petitioner was working in a company. The petitioner has been carrying on a business, which would entail filling up of forms and addressing letters and, thus, it cannot be said that the petitioner does not understand or is not fully conversant with the English language. - Decision in the case of Kubic Darusz v. Union of India 1990 (1) TMI 78 - SUPREME COURT OF INDIA followed. As the petitioner could not be served in the ordinary way a look out circular was issued on 28.3.2014. The Department took steps under Section 7(1)(b) of the COFEPOSA Act. A copy of the order dated 31.3.2014 was published in the official gazette. A publication was carried out in the local newspaper and a report was also sent to the ADG, DRI, for filing the same before the concerned Chief Judicial Magistrate. - Department has been able to satisfactorily explain the steps taken by them to serve the petitioner. Representation is to be decided without any unreasonable delay and the explanation of the delay would depend on the facts and circumstances of each case. The objective of an expeditious disposal of the representation is closely associated with the liberty of a person. In the case of Rajamal (1998 (12) TMI 607 - SUPREME COURT), the detention order was quashed and the explanation rendered that the Minister was on tour for five days was considered to be unjustifiable. In the present case as well the respondent was aware that once the order of detention was passed a representation was likely to be made, hence, the same should have been decided within the shortest period of time. Delay of 8 months has not been explained. We have in the paragraph aforegoing noticed that the house of the petitioner was searched on 12.4.2013; his statement was recorded n 16.4.2013 and thereafter a proposal was sent on 14.6.2013 for issuance of a detention order; the screening committee in its meeting held on 28.6.2013 considered the proposal for preventive detention of the petitioner and approved the same. - The provisions of the COFEPOSA Act vests extra ordinary power in the Government to detain a person, without recourse to ordinary law of the land and without a trial by the Court, and thus, the power is to be exercised with due care and caution There is unexplained delay in passing the detention order of approximately 8 months. The chart showing the chronological sequence of events prepared by the respondents would show that the proposal was approved for preventive detention of the petitioner on 28.6.2013, however, the detention order was passed only on 18.2.2014, we are not satisfied with the explanation which is sought to be relied upon by the respondent in the counter affidavit as also in paragraph 25 of the detention order. Detention order was served upon the petitioner without any delay on the part of the respondent, as all necessary steps were initiated by the department to serve the petitioner. We are also of the view that the petitioner was conversant with the English language and petitioner has workable knowledge of English language and the department cannot be faulted for non-supply of the documents and the order of the detention in Bengali language. But there is unexplainable delay on the part of the department for deciding the representation of the petitioner. After passing of the detention order, the department was well aware that a representation is likely to be made, however, 17 days were taken to dispose of the representation, out of which it is claimed that there were six holidays, still it leaves a period of 11 days, which is considered to be an inordinate delay in the facts of this case. The petition must succeed even on the ground of not passing the detention order for a period of 8 months, after the proposal was accepted on 28.6.2013 - Decided in favour of petitioner.
Issues Involved:
1. Non-supply of documents within the stipulated time in the language known to the detenue. 2. Delay in execution of the detention order. 3. Delay in disposal of the representation dated 8.8.2014. 4. Delay in passing the detention order. Issue-wise Detailed Analysis: I. Non-supply of Documents within the Stipulated Time in the Language Known to the Detenue The petitioner argued that the detention order and related documents were not provided in Bengali, the language known to the detenue, within the stipulated time, violating Article 22(5) of the Constitution. The documents were eventually supplied in Bengali in two parts, on 13.8.2014 and 9.9.2014, after significant delays. The petitioner contended this prevented effective representation against the detention order. The court, however, found that the petitioner had sufficient working knowledge of English, as evidenced by his handwritten acknowledgment in English and previous correspondence in English. The court cited the Supreme Court's ruling in Kubic Darusz v. Union of India, which held that workable knowledge of English suffices for understanding detention grounds. Therefore, this submission was rejected. II. Delay in Execution of the Detention Order The petitioner claimed that the four-month delay from the detention order dated 18.2.2014 to its execution on 19.6.2014 was unjustified. The court reviewed the steps taken by the authorities, including issuing a look-out circular and taking measures under Section 7(1)(b) of COFEPOSA. The court found that the authorities had taken reasonable steps to serve the order and satisfactorily explained the delay. Thus, this submission was also rejected. III. Delay in Disposal of the Representation Dated 8.8.2014 The petitioner argued that the delay in deciding his representation, submitted on 7.8.2014 and rejected on 2.9.2014, was unreasonable. The court noted that the representation was received on 11.8.2014, comments were sought from the sponsoring authority, and the file was processed promptly. Despite six holidays during this period, the court found that the delay was not unreasonable. The court referenced Pooja Batra v. Union of India, which emphasized that delays must be evaluated based on the facts of each case. Therefore, this ground was not upheld. IV. Delay in Passing the Detention Order The petitioner contended that the delay of about one year from the alleged incident on 1.2.2013 to the detention order on 18.2.2014 was unexplained and vitiated the order. The court found that the authorities had not satisfactorily explained the eight-month delay from the proposal's approval on 28.6.2013 to the order's issuance on 18.2.2014. The court cited the Supreme Court's ruling in T.A. Abdul Rahaman v. State of Kerala, which held that unexplained delays could invalidate detention orders. The court concluded that the delay snapped the nexus between the incident and the detention, rendering the order stale. Conclusion: The court allowed the petition based on two primary grounds: the unexplained delay in deciding the representation and the significant delay in passing the detention order. The court emphasized the importance of maintaining a live link between the incident and the detention order to prevent it from becoming stale. The petition was thus allowed, and the detention order quashed.
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