JUDGMENT
S.D. Bajaj, J.
1. Detenu-petitioner Abdul Hanan, was arrested at Amritsar while coming from Pakistan on 21-9-1988 and lodged in the Central Jail at Amritsar. Thereafter the detenu-petitioner was transferred to Central Jail, Patiala, from Amritsar. The charges levelled against the petitioner were under Section 110 of Customs Act, Section 3(a) of the Import and Export (Control) Act, Section 8 of the Gold Control Act and Section 13A of FERA 1973. While the petitioner was still in jail, detention order Annexure P-1 based on the solitary incident of 21-9-1988 incorporated in the grounds of detention Annexure P-2 was clamped upon him. In Criminal Writ Petition No. 250 of 1989, the detenu-petitioner has challenged his detention On the grounds that his representation dated 23-10-1988 was not decided by the Detaining Authority with due promptitude as envisaged in Article 22(5) of the Constitution of India and that the accusation against him obtaining in the order of detention Annexure P-1 was obviously without basis because, in the grounds of detention Annexure P-2, only a single transaction had been attributed to him. According to detenu-petitioner, the Detaining Authority had not applied its mind to the peculiar facts and circumstances obtaining in his case and, therefore, the order of detention Annexure P-1 could not be said to have been passed on its subjective satisfaction. The facts adverted to in this behalf are that the petitioner as also his two co-accused in Smt. Mehtab Begum and Smt. Shamim had applied for and were granted bail before the passing of the detention order and that this relevant material was not brought to the notice of the Detaining Authority.
2. In reply filed by Shri Ram Partap, Assistant Collector (Legal) of the Central Excise Collectorate, Chandigarh, it was conceded that the order of detention was based on a single transaction of 21-9-1988 and it was asserted, without disclosing relevant facts of the date of its receipt and rejection, that the representation put in by the detenu-petitioner was expeditiously considered by the Detaining Authority. After ascertaining the information aforesaid from the quarters concerned, learned counsel appearing for the Union of India Mrs. Jaishree Anand stated that the representation received by the Detaining Authority from the detenu-petitioner on 30-11-1988 was rejected on 30-12-1988. It was, therefore, conceded that the representation remained pending for consideration for full one month (30 days). It was also admitted that Shrimati Mehtab Begum and Shrimati Shamim were granted bail but it was asserted that the same does not affect the case of the petitioner at all
3. I have heard Shri H.S. Mattewal, Senior Advocate, with Shri Sukhbir Singh, Advocate, for the petitioner; Mrs. Jaishree Anand, Advocate, for the respondents; and have carefully perused the record.
4. A reference to paragraph 3 of the grounds of detention Annexure P-2 makes it clear that there is an obvious link in the cases registered against the detenu-petitioner as also the two female accused in Mehtab Begum and Shamim. The relevant words which persuaded the Court to reach this conclusion :-
“You also admitted that you came across Shrimati Mehtab Begum and Shrimati Shamim at Lahore Railway Station in the waiting room and you knew both of them very well for a long time. Shrimati Mehtab Begum and Shrimati Shamim also admitted in their written statements dated 21-9-1988 that they knew you very well for a long time. You admitted that you lured Smt. Mehtab Begum and Smt. Shamim to carry gold biscuits having foreign markings to India on a payment of Rs. 1000/- each.”
5. In identical circumstances, it was observed by the Supreme Court in Sita Ram Somani v. State of Rajasthan and Ors., AIR 1986 Supreme Court 1072, and by the Delhi High Court in Kuriniyan Saidalikutty v. Union of India and Ors., 1988 (1) Recent Criminal Reports 466:-
“One of the principal points taken in the High Court and repeated before us was that there was no application of mind by the detaining authority as certain vital facts were not brought to the attention of the detaining authority and were, therefore, not taken into consideration by that authority. The ground raised by the appellant in the High Court in his own words is as follows :
‘That there has been non-application of mind in passing the detention order. The petitioner says that the following relevant facts which would have weighed the satisfaction of the detaining authority one way or the other and influenced the mind of the detaining authority have been purposely withheld and suppressed from the detaining authority thus vitiating the satisfaction :
(a) …
(b) that the petitioner in his bail applications (Annexures A and B) had retracted from the confessional statement and had denied any recovery of gold, foreign currency from his premises.
(c) Shri Om Prakash had also moved bail application in the Court of Addl. Chief Judicial Magistrate, Sessions Court and High Court. He had retracted from his confessional statement and also his association with the petitioner.
(d) The petitioner had retracted from the statement by making an application to the Collector of Customs on 19-1-1985.
(e) Shri Om Prakash had also retracted from his confessional statement by making an application on 18-1-1985.
(f) to(g)…
The petitioner says that the above material being very relevant and material which would have influenced the mind of the detaining authority one way or the other has been suppressed from the detaining authority.”
“The declaring authority before passing the order under Section 9 also has not taken into consideration the bail applications and the orders made thereupon, the show-cause notice and the reply given thereto and thus the order of declaration is also afflicted with the same vice of non-application of mind. It is mentioned in the order of declaration that only the documents of which copies have been served on the detenu, have been taken into consideration by the declaring authority before passing the declaration order. There is no reference in the same to the copies of bail application, the order made by the court granting the bail, the show-cause notice and the reply given by the detenu. So, it is evident that the declaripg authority did not take into consideration all these vital documents. No counter affidavit has been filed by the declaring authority.”
6. For the same reasons, detention order Annexure P-1 also suffers from the vice of non-application of mind by the Detaining Authority and is liable to be quashed on this score.
7. Kamla Kanhaiyalal Kliushlani v. State of Maharashtra and another, AIR 1981 Supreme Court 814, is an authority for the view that unexplained delay of 25 days in the disposal of representation is fatal to continued detention of the detenu-petitioner. In the present case, however, there is admittedly an unexplained delay of 30 days from 30-11-1988 to 30-12-1988 in the disposal of the representation dated 23-10-1988. The relevant observations read :-
“In the instant case, not only were the documents and materials not supplied along with the order of detention, but there has been a delay of about 25 days in disposing of the representation of the detenu and no explanation for the same has been given. These are matters which must be closely examined by the Government. For the reasons given above, we hold that the continued detention of the detenu is void. We allow the petition and direct the detenu to be released forthwith.”
8. Their lordships of the Supreme Court again observed in Dulal Chandra Majumdar v. State of West Bengal, A.I.R. 1974 Supreme Court 2361, that the solitary ground is wholly irrelevant to the subjective satisfaction of the District Magistrate. In this case, the order of detention Annexure P-1 is obviously based on a single transaction of 21-9-1988 and, therefore, gets vitiated on this score as well.
9. In result, Criminal Writ Petition No. 250 of 1989 succeeds and is allowed. Detention order Annexure P-1 based on grounds of detention (Annexure P-2) is quashed and the detenu-petitioner Abdul Hanan, is ordered to be set at liberty forthwith.