ORDER
1. This petition has been directed against the order dated 13th December, 1993 issued under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by the Lt. Governor of National Capital Territory of Delhi.
2. Brief facts necessary to dispose of this petition are recapitulated as under :
On 5th August, 1993, the petitioner arrived at the Indira Gandhi International Airport, New Delhi from Madras as a domestic passenger by a flight No. AI-105. The petitioner was intercepted by the custom officer at the exit gate of the Customs Arrival Hall. Nothing incriminating was found from the baggage of the petitioner.
3. Thereafter, a metal detector was applied on the petitioner’s body in the presence of two independent witnesses which indicated the presence of some metallic substance near the rectum portion. On sustained interrogation, the petitioner admitted having concealed three small packets containing cut-pieces of gold with foreign markings in his rectum. He voluntarily eased out three small packets. On opening the said three packets, nine cut-pieces of gold biscuits having foreign marking were recovered. A certified goldsmith was called on the spot who after testing, certified the gold recovered to be of 24 carat purity, collectively weighing 520 grams valued at Rs. 2,39,200/-. On demand, the petitioner could not produce any documentary evidence to show the lawful importation of the said recovered gold. The same was seized under section 110 of the Customs Act, 1962 on the reasonable belief that the same was liable to confiscation under the provisions of the Customs Act, 1962. The packing material used for concealment of the recovered gold was also seized under the Customs Act, 1962. The petitioner’s air ticket, boarding card and bill of Ramprasad Lodge, Madras dated 4th August, 1993 were taken into possession being relevant to the investigation of the case. A detailed panchnama dated 5th August, 1993 was drawn on the spot.
4. The petitioner in his voluntary statement on 5th August, 1993 recorded under section 108 of the Customs Act, 1962 admitted the recovery and seizure of gold and inter alia stated that one day in Karol Bagh, a person named ‘Gullu’ met him and said that in case you bring gold by concealing in your body according to his (Gullu) suggestion, he would pay you a sum of Rs. 3,000/- for that job.
5. In greed of money, the petitioner agreed to Gullu’s plan and according to the agreed programme he went to Madras on 4th August, 1993 on the ticket provided to Gullu and in the evening he came Delhi from Madras by flight No. AI-405. Gullu met the petitioner, who was coming from Singapore and he had given three capsules to the petitioner which the petitioner kept concealed in his rectum. The petitioner was supposed to give those capsules containing gold to Gullu outside the airport, in lieu of that Gullu had to pay Rs. 3,000/- to the petitioner. After recovery of gold, the petitioner was taken out of the Airport by the Customs Officer but Gullu was not present there. The petitioner had known Gullu only by face and was not aware of his whereabouts.
6. The petitioner was arrested under section 104(1) of the Customs Act, 1962 and was produced before the Court of A.C.M.M., New Delhi. On 5th August, 1993 he was remanded to the judicial custody till 19th August, 1993. The petitioner was granted bail on 13th August, 1993.
7. Complaint for offence punishable under sections 132 & 135(1)(a) of the Customs Act, 1962 was filed in the Court of A.C.M.M., New Delhi on 13th September, 1993.
8. On the basis of the aforesaid facts and circumstances, the Lt. Governor of the National Capital Territory of Delhi arrived at the conclusion that the petitioner had inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented, the petitioner is likely to indulge in the smuggling activities in future.
9. On 21st December, 1993, the detention order was served on the petitioner. On 5th January, 1994, the petitioner sent two representations through the Superintendent, Jail, one addressed to the detaining authority and the other addressed to Respondent No. 1. On 18th January, 1994 the said representation to the detaining authority, i.e., Lt. Governor, was rejected. On 11th February, 1994 the Advisory Board Meeting was held and they confirmed the detention order passed by the Lt. Governor against the petitioner.
10. On 16th February, 1994 the representation addressed to respondent No. 1 was rejected by the Central Government. On 11th March, 1994 the impugned detention order was confirmed by the detaining authority. On 19th March, 1994, the petitioner filed this petition before this Court challenging the detention order.
11. The main submission of Ms. Sangeeta Nanchahal, the learned counsel appearing for the petitioner was that there has been undue, long and unexplained delay in deciding the representation of the petitioner. (The petitioner’s representation of 5th January, 1994 was rejected by the Central Government on 15th February, 1994). The detention order is liable to be quashed on this ground alone.
12. On 8th April, 1994 time was sought from the Court to file reply despite opportunity, the reply was not filed. Then on 21st April, 1994, the Division Bench of this Court observed that “in spite of opportunity having been granted, no answer to show cause notice has been filed. It appears that the respondents are not taking the matter seriously. However, one final opportunity is granted. Answer to show cause shall positively be filed within one week.”
13. On 3rd May, 1994 the Court held “In spite of opportunities granted answers to show cause notice has not been filed. Rule.”
14. Again on 9th May, 1994 the Court granted one more opportunity to file counter affidavit.
15. Again on 13th May, 1994, the Court observed that counter affidavit has not been filed and last opportunity was granted.
16. Again matter was listed on 27-5-1994. Even on this date, answer to show cause notice was not filed by the Union of India.
17. Mr. Shali, learned counsel appearing for the Union of India admitted that despite several opportunities the Union of India has not been able to file answer to show cause notice. He pleaded his helplessness and explained that he did all what he could do as a counsel, but his client did not co-operate. He submitted that he had sent several letters on different dates, viz. 8-4-1994, 13-4-1994, 25-4-1994, 7-5-1994 and 2-8-1994 to his client, but there has been no response from his client, he further submitted that even on telephone he had asked the concerned officials to send instructions and reply, but till this date, he did not receive any reply.
18. There seems to be no justification whatsoever for not filing reply despite several opportunities and directions given by the court. Particularly when all concerned offices of Union of India are located in Delhi itself.
19. Learned counsel for the petitioner has placed reliance on a number of judgments of the Supreme Court and of this Court in support of her proposition.
20. She placed reliance on 1987 (Supp) SCC 32, Mohd. Ibrahim Mohd. Sasin v. State of Maharashtra. In this case the Court observed that even though two adjournments were given to the State Government and no counter affidavit has been filed in this case by the State Government. The Court while allowing the writ petition has observed that even though an opportunity was given to the State Government to defend its actions, but it was not done. In the circumstances, we feel that any further detention of the petitioner is unconstitutional.
21. The learned counsel placed reliance on another judgment A. Ramesh Kumar v. Union of India, (1991) 44 DLT (SN) 10. In this case the Central Government took 22 days in disposing of the petitioner’s representation. Why it took so much time is not explained. No return has been filed by the Central Government in these circumstances, the continuous detention of the detention orders were set aside.
22. Ms. Nanachahal invited attention of the Court to a decided case of this Court Hussain Erumban v. Union of India, (Civil Writ Petition No. 538/92). This Court in this case vitiated the detention order on the ground of unexplained delay for about eight days in deciding the petitioner’s representation.
23. Learned counsel for the petitioner also placed reliance on the judgment of this Court Sarabjit Singh v. Union of India and others, decided on 18th July, 1994 in Cr WP 37/1994. In this case also because of unexplained delay in consideration of the petitioner’s representation, the detention order was quashed.
24. Similarly in Yogesh Kumar Sharma v. Union of India, (Cr Writ 377/89) decided by this Court on 23rd October, 1989. The Court quashed the detention order in absence of any explanation by the authorities with regard to the delay caused in deciding the representation for the period May 22, 1989 to May 29, 1989.
25. Learned counsel for the petitioner also placed reliance on Gurjeet Singh v. Union of India and others. Cr. WP 35/94 decided on 12th April, 1994 by this Court. In this case, the representation was decided by the Lt. Governor, National Capital Territory of Delhi promptly but there was delay in deciding the representation by Central Government. There has been no explanation for the delay in deciding the representation of the petitioner by the Central Government. The Court observed that the authorities concerned ensconced in their cozy chambers had gone in deep slumber, and the Court said that this is an unpardonable delay, and quashed the order of detention.
26. Learned counsel for the petitioner has also invited my attention to Amir Shad Khan v. L. Hmingliana, . His Lordship Ahamadi, J. spoke for the three judges Bench observed as under (Para. 6) :
“But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenus. Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu’s representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must, therefore, be held illegal and the detenu set free.”
27. Learned counsel for the petitioner submitted that in view of the settled position of law, the detention order passed by the respondent is liable to be quashed. Learned counsel appearing for the Union of India had no explanation for not filing the counter affidavit till this date.
28. Mr. Shali placed reliance on , State of Uttar Pradesh v. Zaved Z. Khan. In this case, the Court has observed that the Central Government duly considered and rejected the petitioner’s representation. After some time he gave another representation through his counsel to the Prime Minister for revocation of the detention order. The detention order cannot be declared invalid merely because Central Government did not apply its mind to the subsequent representation. The facts of this case are entirely different and has no application to the controversy involved in this case. There has been unexplained delay in consideration of the petitioner’s only representation by the Central Government.
29. Mr. Shali, learned counsel further submitted that in the instant case, petitioner’s representation was considered and rejected expeditiously by the detaining authority, i.e., State Government and thereafter, it has been confirmed by the Advisory Board. Therefore, even if there is delay in consideration of his representation by the Central Government, no prejudice has been caused to the petitioner. In the matters regarding personal liberty, where the person has been detained without any trial, the constitutional safeguard which has been provided have to be observed meticulously.
30. Mr. P. S. Sharma, learned counsel appearing for the National Capital Territory of Delhi placed reliance on a judgment of Abdul Sattar v. Union of India, (1992) Cur Cri R 12 : 1991 Cri LJ 3292 (SC). On close scrutiny, the facts of this case has no relevance to the facts of the instant case.
31. I have heard learned counsel for the parties at length and scrutinised cases cited during the course of hearing. The conclusion is irresistible, when there is undue, long and unexplained delay in consideration of the representation of the detenu by the Central Government then detention order is liable to be quashed. Accordingly the impugned detention order is quashed, the petitioner shall be set on liberty, if not required to be detained in any other case.
32. Before I part with this petition, I cannot help observing that in this case despite several opportunities and directions given by this court, answer to show cause notice has not been filed by the Union of India. The petition had to be adjourned for several months on that account. Till this date, no answer to show cause notice has been filed and ultimately the petition was finally heard and decided without any reply to the petition by the Union of India. The attitude and conduct of the Central Government in conducting this matter is absolutely indefensible. One can legitimately question whether the Government which is so indifferent and callous about the matters pertaining to the life and liberty of citizens has any right to curtail its citizen’s freedom and liberty by issuing detention orders ?
33. This is not the only case where the detention matter has been dragged on for so long on account of total indifference and callous attitude of the Union of India. This Court has a faint hope that perhaps, in future, concerned officials of the Government of India would take matters pertaining to the life and liberty of citizen seriously.
34. The petition is accordingly disposed of.