ORDER
1. The detention order was passed against the petitioner, Dinesh Bhardwaj dated 19th February, 1992 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called as the “COFEPOSA ACT”). The impugned order was passed with a view to preventing him from smuggling goods in future. Along with the order of detention, the grounds of detention were also supplied to the petitioner.
2. In brief the facts of the case are that on the basis of a specific information received on 14th November, 1991, the petitioner was intercepted by the Custom Officers in the Custom Departure Hall of Indira Gandhi International Air Port Terminal II, while the petitioner was leaving by Air France Flight. The petitioner had already checked baggage consisting of one maroon coloured play boy suitcase. This baggage was examined in the presence of two independent witnesses and was found to contain 110,000 US $ and pound 60,670. Besides this other used clothes and food stuff etc. were also found. On personal search a recovery of 50 US$ and 40 Hong Kong Dollars was made. Besides this visiting cards were also recovered. The petitioner failed to produce any documentary or other evidence for the lawful export of the said recovered foreign currency equivalent to Indian Rs. 54,97,685/-. The said foreign currency was seized under section 108 of the Customs Act on the belief that the same was attempted to be smuggled out of India in violation of the restrictions imposed on the export thereof.
3. The statement of the petitioner under section 108 of the Customs Act was recorded on 14th November, 1991 wherein he admitted the afore-said recovery from his possession. The petitioner stated in his statement that one Rakesh Kumar Sharma of Mahalaxmi Guest House often used to send foreign currency out of India through carriers. It is he who paid the money besides return ticket and money for expenses for staying abroad. The petitioner was lured by free ticket and money to carry the foreign currency at the instance of Rakesh Sharma. It was in this background that the respondent came to the conclusion that the petitioner knowingly engaged himself in smuggling goods out of India.
4. The petitioner was still in Jail when the order of detention was passed and this fact the detaining authority knew when passing the impugned order. The impugned order was passed under section 3(1) of the COFEPOSA Act and was served on him jail. The order was passed apprehending that in the event of petitioner being enlarged on bail, he will continue to act in such prejudicial manner in the near future. In the grounds of detention, the petitioner was also made aware that if he so like he could make representation to the Central Government and the Advisory Board, (COFEPOSA), High Court of Delhi, Sher Shah Road New Delhi through the Superintendent of Jail wherein the petitioner was detained. He was also made aware that the could be heard by the Advisory Board in due course, if the board consider it essential to do so. The relied upon documents were also supplied to the petitioner.
5. The petitioner has assailed the impugned detention order on various grounds but during the course of arguments counsel for the petitioner has restricted his argument on two grounds namely, the delay in disposal of his representations and secondly irrelevant documents have been considered by the detaining authority which shows non-application of the mind of the detaining authority.
6. I have heard Mr. Trilok Kumar counsel for the petitioner and Mr. Pradeep Jain, counsel for the Union of India and considered the arguments addressed at the bar. In the rejoinder filed by the petitioner on 1st September, 1992 an additional ground was taken up that his representation dated 1st May, 1992 addressed to the Advisory Board till date has not been disposed. Opportunity was given to the Union of India to file the counter to this allegation, but in spite of that opportunity having been afforded no reply has been filed by Union of India nor any record was produced in the Court to rebut this averment of the petitioner that his representation dated 1st May, 1992 has not been disposed till date. Without adverting to the other ground urged by the petitioner that irrelevant documents have been considered, suffice it to say that this ground itself is sufficient to dispose of the petition.
7. In the grounds of detention, it was specifically mentioned that the detenu has the right to make the representation to the Central Government and the Advisory Board. It is not disputed by the respondent that the petitioner made a representation on 1st May, 1992 to the Advisory Board. Nothing has been placed on record to show that this representation made by the petitioner was considered by the Advisory Board and rejected at any time.
8. In the main petition also the petitioner had taken the plea that through his brother he had made a representation against the detention order and in the said representation he had requested for certain information, clarification and documents. That representation was delivered in the office of the detaining authority on 16th March, 1992. But according to him till the date of the filing of the petition i.e. 2nd April, 1992 his representation had not been disposed of by the respondent. In reply to para 13 the respondent has submitted as under :
“Regarding para 13 of the petition, it is submitted that detenu’s representation dated 16-3-1992 was received in the Ministry on the same date and from the Ministry of COFEPOSA unit on 18th March, 1992. The representation was placed before the detaining authority on the same date who directed to call for the comments of the Sponsoring Authority. Comments were called on 20-3-1992 which the Sponsoring authority submitted vide their letter dated 10-4-92 received in the Ministry on 13-4-1992. The case was processed and submitted to the Joint Secretary (COFEPOSA) on the same date who also considered and submitted to Member Customs on the same date. Member customs considered the case on 16-4-1992 and submitted to Director General (EIB) who considered the case on 20-4-92 and submitted to Minister of State (Revenue). Minister of State (Revenue) considered the case on the same date and submitted the to Director General (EIB) who considered the case on 20-4-92 and submitted to Minister of State (Revenue) considered the case on the same date and submitted file to Finance Minister who considered and rejected the representation of the detenu on 21-4-92. The case file was received back from Finance Minister’s office on 22-4-92, and a memo intimating the detenu about rejection of his representation was issued on the same date. Thus, there is no undue and unexplained delay in consideration of the representation.”
9. A perusal of the reply to para 13 shows that there is a delay which has remained unexplained on the record. Admittedly the first representation was made on 16th March, 1992 which was received in the office on the same date. The sponsoring authority called for the comments on 20th March, 1992. The same were received on 13th April, 1992 i.e. almost about 23 days. No explanation has been given for these 23 days as to why sponsoring authority took so many days in submitting the comments. From 13th April, 1992 to 20th April, 1992 again there is no explanation why this seven days were taken by the Member Customs and the Director General (EIB). There is no explanation to the same. This one month’s delay in disposal of his representation dated 16th March, 1992 to my mind, has affected the right of the detenu. In umpteen number of judgments delivered by the Supreme Court as well as by the High Court it has been repeatedly laid down that the representation of the detenu should be disposed of expeditiously and with promptitude. If it is not disposed of then explanation should be rendered. But in this case no satisfactory explanation has been rendered for his delay of 23 days i.e. from 20th March, 1992 to 13th April, 1992 and from 13th April, 1992 to 20th April, 1992. In the absence of any explanation having been rendered for this delay, to my mind, the detention becomes bad in law and is vitiated. I have already discussed above that besides this representation petitioner had also made a representation to the advisory Board on 1st May, 1992 which has remained unanswered. So taking either of the representation the fact remains that there is an unexplained delay in the disposal of the representations made by the petitioner and therefore, the order of detention gets vitiated and thus bad in law.
10. I accordingly hold that the impugned order of detention is vitiated on account of delay is disposal of the representation made by the petitioner dated 16th March, 1992 and for non consideration of his second representation dated 1st May, 1992. In the result the petition is allowed. The rule is made absolute. The detention and the continuous detention is declared illegal and bad in law. The detenu should be released forthwith unless required in any other case.
11. Petition allowed.