9911796707
TMI Blog2015 (5) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or The Petitioner : Mr.Pradeep Jain, Mr.A.Samand, Mr.Shubhankar Jha, Kumar Vikram and Ms.Aakriti Mathur, Advocates For The Respondent : Mr.Sanjay Jain, Additional Solicitor General with Mr.Kirtiman Singh, Central Government Standing Counsel, Mr.Waize Ali Noor and Ms.Shreya Sinha, Advocate for the Union of India. JUDGMENT : G.S.SISTANI (ORAL) 1. Pleadings are complete. With the consent of counsel for the parties, the present petition is taken up for final hearing and disposal. 2. Petitioner, wife of the detenue, has filed the present petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, for issuance of a writ or direction in the nature of certiorari for quashing the impugned detention order dated 18.2.2014 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA‟) and the order dated 11.9.2014 confirming the detention order for a period of one year. For the sake of convenience, the detenue is hereafter referred to as the petitioner‟. 3. The facts of the case, as per the writ petition inter a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1962 who declined to have worked in the transaction since their licence was suspended w.e.f. 11.2.2012. That on 5.4.2013 M/s Gaurav Pharma made a deposit of ₹ 1 Crore by demand draft allegedly admitting their role towards the said alleged contravention of provisions of Customs Act in export / import. That on 7.4.2013 summons to detenue was given in the hands of Vitayash Koser who assured that detenue shall be present on 10.4.2013 before DRI Delhi. 7. That on 12.4.2013 Detenue‟s house was searched by DRI - Kolkata and retrieved one hand written paper and one computer print-out showing invoice no. and date etc. which appeared to be particulars of Bills of Exports/ Shipping Bills. On 16.04.2013 summon was issued to Detenue by DRI -Kolkata. Detenue attended on that day. Statement of detenue was recorded U/S 108 of Customs Act‟1962 by DRI - Kolkata. Statement was recorded in Bengali language. 8. It has been alleged that on 3.5.2013 Detenue sent an affidavit admitting doing export jobs of the alleged firms and an assistant of Late Dilip Chakrabarty and retracted his earlier statement dated 16.04.2013 recorded before DRI -Kolkata. That summon was issued by D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r se, illegal, unconstitutional, passed without application of mind and are without any jurisdiction. 5. The following four grounds have been urged by counsel for the petitioner: (i) Non-supply of documents within the stipulated time in the language known to the detenue; (ii) Delay in execution of the detention order (iii) Delay in disposal of the representation dated 8.8.2014; and (iv) Delay in passing the detention order; I- NON-SUPPLY OF DOCUMENTS WITHIN THE STIPULATED TIME IN THE LANGUAGE KNOWN TO THE DETENUE; 6. The first submission of counsel for the petitioner is that the petitioner was not supplied with the documents within the stipulated time in the language known to him. Elaborating his arguments further, Mr.Jain, counsel for the petitioner contends that the petitioner was served with the detention order dated 18.2.2014 in English language on 19.6.2014, the petitioner at that stage orally requested for the order in Bengali language, as he was not conversant with English language. 7. It is submitted that on 23.6.2014 grounds of detention along with relied upon documents in English language were served upon the petitioner. The petitioner again requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter than 15 days from the date of his detention and (b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22 (5) of the Constitution .. 10. It is also the case of the petitioner that relying on the aforesaid judgment, the Delhi high Court in the case of Poly Saha Vs. Union of India ors. reported at 2013 (1) JCC 384 had quashed the detention order. It is also submitted that in the case of Nandoli Mohamed Rafeeq Vs. Union of India and Ors. reported at (2004) 12 SCC 218 the Supreme Court of India had quashed the detention order on the grounds that non supply of documents in the language known to the detenue renders the continued detention illegal. 11. In reply to this ground, learned Additional Solicitor General submits that the petitioner is well conversant with the English language, which is evident from the fact that various letters were addressed by him to the sponsoring authority during the investigation in English language. Reliance is also placed on Annexure -III filed along with the counter affidavit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of interrogation he answered the questions in English including the questions as to how he happened to learn English. The gist of his answers in this regard was also given in the grounds of detention. We have perused the statements and find that those contained number of informations peculiar to the detenu himself which could not have been communicated by him to the interrogators unless he knew the English language. We also find that in several places he corrected the statements putting appropri- ate English words and signing the corrections. While the detention order was passed on 16-5-1989 his representation was admittedly dated only 13-6-1989. In the meantime bail petitions were moved on his behalf before the Chief Judicial Magistrate and the High Court. There is nothing to show that he did not give instructions to his counsel. After all, the detenu is not required to write an essay or pass any language test. A working knowledge of English enabling him to understand the grounds would be enough for making a representation. He could very well send his representation in the language known by him. 11. In Parkash Chandra Mehta v. Commissioner and Secretary, Government of Kerala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be put in cold storage while considering Constitutional provisions safeguards against misuse of powers by authorities though these Constitutional provisions should be strictly con- strued. Bearing in mind this salutary principle and having regard to the conduct of the detenu Venilal Mehta especially in the mercy petition and other communications, the version of the detenu Venilal in feigning lack of any knowledge of English must be judged in the proper perspective. He was, however, in any event given by 30th June, 1984 the Hindi translation of the grounds of which he claimed ignorance. The gist of the annexures which were given in Malayalam language had been stated in the grounds. That he does not know anything except Gujarati is merely the ipse dixit of Venilal Mehta and is not the last word and the Court is not denuded of its powers to examine the truth. He goes to the extent that he signed the mercy petition not knowing the contents, not understanding the same merely because his wife sent it though he was sixty years old and he was in business and he was writing at a time when he was under arrest, his room had been searched, gold biscuits had been recovered from him. Court is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chairman COFEPOSA Board. This representation was also made in English language. 17. The present case is fully covered by the case in the Kubic Darusz (supra). While dismissing the plea of the detenue, the Supreme Court of India took into consideration that the detenue was served with a detention order and he acknowledged the receipt thereof putting his signatures in English language. 18. The present case is on a better footing where not only the petitioner put his signatures in English language but he also made an endorsement, which is reproduced above, in English language in his handwriting. 19. The Court cannot lose track of the fact that the 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. 20. The Supreme Court of India has also observed that what is required is a workable knowledge of language and not that the detenue is required to write an essay or pass any English test. In view of the settled position of law, this submission of learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keep in mind the fact that their role and objective is not to have a detention order issued but also have the person detained because only then the object and purpose of issuing the detention order is really achieved. It is also contended that there is no satisfactory explanation on behalf of the respondent in this regard. We find no force in the submission of learned counsel for the petitioner. 26. As per the reply which has been filed, the detention order passed on 18.2.2014 was sent to the executing authority. Thereafter the Joint Commissioner of Police (Crime), Kolkata, forwarded the detention order to the Deputy Inspector General of Police, CID, West Bengal, Alipore, Kolkota on 28.2.2014. On 8.3.2014 the detention order was forwarded from the Special Superintendent of Police, CID, Alipore, to the Superintendent of Police, CID, District-North 24 Paragans. Thereafter a look out circular was issued against the petitioner on 28.3.2014. As the petitioner was not apprehended respondent no.2 passed an order on 31.3.2014 under Section 7(1) b of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) ACT. A copy of the order dated 31.3.2014 was publis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a detention order has been passed every effort is to be made by the Department to ensure service of the detention order on the detenue and in case of unexplained delay, the order is liable to be quashed. The guidelines of the Department are also to the same effect. 31. The only question, which arises in the present case, is whether the Department had taken every possible step to serve the detenue in the shortest period of time or not. The reply explains the steps taken by the Department to serve the petitioner. 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. 32. In our view, the Department has been able to satisfactorily explain the steps taken by them to serve the petitioner and, thus, the submission of learned counsel for the petitioner is rejected. III- DELAY IN DISPOSAL OF THE REPRESENTATION DATED 8.8.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he made a representation to the Secretary, Government of India as suggested in the detention order on 13.06.2008 which was received by the Suptd. of Jail on 16.06.2008, and on the very same day it was forwarded to COFEPOSA Department. It is the contention of the counsel for the appellant that though the representation was sent to the COFEPOSA Department on 16.06.2008 itself and the fact that the Jail and COFEPOSA Department both located in Delhi yet it took time for more than ten days to respond in obtaining the comments from the sponsoring authority and get the same disposed of which is fatal and accordingly the detention order deserves to be quashed. 13. As against the said detention, in the counter affidavit, it is clarified that the representation was received by them on 20.06.2008. The specific assertion made in the counter affidavit has not been refuted by the detenu in his rejoinder. On the same day, i.e., 20.06.2008 itself, it was sent to the sponsoring authority, i.e. Customs Authority, who sent their comments on 27.6.2008. The comments on the said representation were sent to the COFEPOSA department on 27.06.2008, 28/29.06.2008 were holidays being Saturday and Sunday ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the four or five days available to it. It cannot, therefore, be said that the sponsoring authority was guilty of inordinate delay. 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 to us because consulting the authority which initiated the proposal can never be said to be an unwarranted exercise. After the COFEPOSA Unit received the comments of the sponsoring authority it dealt with the representations and rejected them on January 16, 1990. The comments were dispatched on January 9, 1990 and were received by the COFEPOSA Unit on January 11, 1990. The file was promptly submitted to the Finance Minister on the 12th; 13th and 14th being non-working days, he took the decision to reject the representation on January 16, 1990 and the memo of rejection was dispatched by post on January 18, 1990. It appears that there was postal delay in the receipt of the communication by the detenus but for that the detaining authority cannot be blamed. It is, therefore, obvious from the explanation given in the counter that there was no delay on the part of the detaining authority in dealing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. We see no reason why very period prescribed for compliance of both the actions envisaged in Article 22 of the Constitution should similarly hold with full force for all other attendant actions. In the present case the Detenu was served with the impugned Order on 19.2.2008 from which date his detention on a preventive platform had commenced. It is not extraordinary or unreasonable to expect the Respondents to anticipate the filing of a Representation by the Detenu, which, in the present case, was served on the Respondents on 11.3.2008. Its disposal cannot be left to the whims and convenience of the Respondents, especially since it is a preventive and not a punitive detention that is being dealt with. We find no reason why the requisite decision was not taken on the representation as soon as may be .... but ordinarily not later th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt up to 14.6.2013 when the proposal for issuance of the detention order under the provisions of COFEPOSA Act was sent to the Joint Secretary (COFEPOSA) New Delhi by DRI (HQ.), New Delhi. 44. Counsel for the petitioner submits that once a proposal is made for issuance of a detention order, it is presumed that the entire investigation in the matter would stand concluded and it is only after the department is fully satisfied would such a proposal have been made. 45. Mr.Jain, counsel for the petitioner further contends that on 28.6.2013 the Central Screening Committee held its meeting at New Delhi for considering proposal of preventive detention of the petitioner and the proposal was approved. It is thus contended that from this date the department was to pass the detention order, which was passed as late as on 18.2.2014. It is thus contended that on account of the delay the live line between the alleged occurrence and the object of detention stood snapped. 46. Counsel for the petitioner has placed reliance on the guidelines issued by the Department while dealing with the matters related to COFEPOSA Act, 1974, which are reproduced below: A. Time gap between date of detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied. 47. In support of his submission reliance is placed on a judgment of this court in the case of Adarsh Pal Singh Vs. Union of India, [W.P.(CRL) 1208/2013 decided on 21.08.2014]; T.A. Abdul Rehman Vs. State of Kerala Ors. reported at (2006) 5 SCC (Crl.) 418; Issac Babu Vs. Union of India and Anr. reported at (1990) 4 SCC 135; and Rajender Arora Vs. Union of India Ors reported at (2006) 2 SCC (Crl.) 418. 48. Learned Additional Solicitor General submits that the delay in passing the detention order is explainable and has been discussed in paragraph 25 of the grounds of detention. Reliance is placed in the case of M. Ahmed Kutty v. Union of India, reported at (1990) 2 SCC 1, wherein it has been held that as long as time taken in passing the detention order is explainable the same cannot be termed as to make the detention order invalid, and has relied upon the following paragraph: Even in a case of undue or long delay between the prejudicial activity and the passing of detention order, if the same is satisfactorily explained and a tenable and reasonable explanation is offered, the order of detention is not vitiated. We must bear in mind that distinction exists betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SCC pp. 748-49, paras 10-11) 10. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that 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. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 11. Similarly when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itor General has relied upon Rajendrakumar Natvaralal Shah Vs. State of Gujarat and Ors. reported at (1988) 3 SCC 153 and more particularly paragraphs 9 and 10; on Dalbir Singh Vs. Union of India, reported at 1995 (58) DLT 264, and more particularly paragraphs 5, 8 and 9; and on Gayatri Agarwal Vs. Union of India reported at 2006 (7) AD (Delhi) 19 and more particularly paragraphs 11 and 22. 55. Learned ASG has also relied upon the case of M. Ahamedkutty Vs. Union of India reported at (1990) 2 SCC 1, wherein it has been held: 7. Where the seemingly long time taken for passing the detention order after the prejudicial act is the result of full and detailed investigation and consideration of the facts of the case, the ground cannot be held to be remote and the detention cannot be held to be bad on that ground. In Ashok Narain Vs. Union of India, (1982) 2 SCC 437, where the detenue was apprehended for breach of foreign exchange regulation in February 1981 and without launching any prosecution the detenu was detained in October 1981 the passage of time being the result of full and detailed consideration of facts and circumstances of the case after thorough examination at various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld fatally affect the order of detention and in that situation, continued detention would become bad. This has been the consistent view of this Court all along from its decision in Sk. Abdul Karim v. State of West Bengal, (1969) 1 SCC 433 : (AIR 1969 SC 1028); In re: Durga Show, (1970) 3 SCC 696 : Jaynarayan Sukul v. State of West Bengal (1970) 1 SCC 219 : (AIR 1970 SC 675); Shaik Hanif v. State of West Bengal, (1974) 1 SCC 637 : (AIR 1974 SC 679); Raisuddin @ Babu Tamchi v. State of U.P., (1983) 4 SCC 537 : (AIR 1984 SC 46); Frances Coralie Mullin v. W.C. Khambra, (1980) 2 SCC 275 : (AIR 1980 SC 849); Mohinuddin alias Moin Master v. District Magistrate, Beed, (1987) 4 SCC 58 : (AIR 1987 SC 1977); Rama Dhondu Borade v. V.K. Saraf, Commr. of Police, (1989) 3 SCC 173 : (AIR 1989 SC 1861); Aslam Ahmed Zahire Ahmed Shaik v. Union of India, (1989) 3 SCC 277 : (AIR 1989 SC 1403); Mahesh Kumar Chauhan alias Banti v. Union of India, (1990) 3 SCC 148 : (AIR 1990 SC 1455), right upto its reiteration in Gazi Khan alias Chotia v. State of Rajasthan, (1990) 3 SCC 459 : (AIR 1990 SC 1361). 58. There is no quarrel with the propositions laid down in the judgments relied upon by learned Additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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. The sole purpose of passing the detention order is that the live link between the occurrence and the order should not become stale. By the time the proposal is sent it is deemed that the investigation is complete, which is enough to detain a person, and any additional investigation which may have been carried out, cannot be a ground to explain the delay. The department itself in its Circular bearing F.No.671/6/2001-Cus.VIII, Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, has taken note of this. Accordingly, the petition is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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