ORDER
S.K. Agarwal, J.
1. This is a petition seeking quashing of detention order dated 9th April, 1999 No. F. 5/42/98 passed by respondent No. 2 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the Act) with a view to preventing petitioner from smuggling goods.
2. Brief facts giving rise to this petition are : that the petitioner was intercepted at the IGI Airport by the Customs Preventive Officers when he arrived from Singapore on 20th July, 1998 while he was just going through the Green Channel after collecting his luggage. At the Green Channel petitioner was asked whether he had any dutiable goods to which he replied in negative. Search of his baggage resulted in recovery of 30 pieces of Hard Disc made in China, valued at Rs. 2,10,000/-. Subsequently, two more checked in baggages belonging to the petitioner having foreign made goods were recovered from the conveyor belt having different tags. The goods recovered from the petitioner were valued at Rs. 4,92,500/-. He was arrested and was sent to judicial custody on 21st July, 1998 and subsequently on 5th November, 1998 he was granted bail by the Learned Single Judge on his furnishing two local sureties in the sum of Rs.1 lac each with other conditions. On 9th April, 1999, the impugned order of detention was passed against the petitioner, in pursuance of the which the petitioner was detained on 10th April, 1999.
3. We have heard Mr. Harjinder Singh, learned counsel for the petitioner, Mr. K.C. Mittal, learned counsel for Govt. of NCT of Delhi and Mr. H.S. Phoolka, learned counsel for the Union of India and have been taken through the record.
4. Learned counsel for the petitioner argued that there is an inordinate delay of eight months and twenty days in passing the order of detention, the petitioner was arrested on 20th July, 1998 and the impugned order of detention was passed on 9th April, 1999. Thus, the live nexus between the alleged criminal activities and the purpose of detention was broken. Because of this inordinate and unexplained delay the detention order is liable to be quashed. Mr. K.C. Mittal, learned counsel for the detaining authority, on the other hand, argued that the seizure was effected on 20th July, 1998, proposal to detain the petitioner was received by the Government of National Capital Territory of Delhi only on 14th October, 1998, the case was processed thereafter and documents were also collected. Thus, the delay is not unexplained. The explanation offered in the counter affidavit runs as under :-
In reply of ground C, it is submitted that the proposal from the sponsoring authority was received on 14.10.98 alongwith the relied upon documents made with sponsoing authority to supply the generated documents. The details of the correspondence with the sponsoring authority are as under:-
Date Action/Incident 20.07.98 Date of Seizure. 14.10.98 Proposal received by the Government of NCT’ of Delhi with documents.
27.10.98 Letter sent to Customs regarding documents/ information of subsequent development made in the case of translation of documents, if any. 28.10.98 Additional documents generated in the branch from seizing officer.
29.10.98 Letter sent to Govt. of NCT of Delhi by Customs regarding additional documents: (i) Case proceedings dated 18.9.98, 8.9.98, 07.10.98, 3.10.98,13.10.98, 16.10.98, 22.10.98 and 26.10.98 in the court of ACMM and ACMM had fixed 29.10.98 as the date of
arguments on 2nd bail application of Umesh Menon. (ii) Case proceedings dated 14.9.98, 18.9.98 and 24.9.98 in the court of
ASJ, New Delhi. (iii) Copy of bail application dated 3.10.98 filed in the court of ACMM in respect of Shri Umesh Menon and reply filed by SPP on 13.10.98 in the court’s notice dated 5.10.98 in the court of ACMM. (iv) Copy of High Court notice dated 15.10.98 alongwith bail Petition No.2895 filed by the Advocate of Shri Lal Khemani. The case was fixed for 2.11.98. 02.11.98 Letter sent to translator by the Customs alongwith a documents for translation from Hindi Arabi into English. 09.11.98 Additional documents generated in the case received in the branch of Customs from seizing officer. 09.11.98 Letter sent to Government of NCT of Delhi by the Customs regarding additional documents: (i) Hon’ble High Court of Delhi’s Order dated 05.11.98 granting bail to Shri Lal Khemani. (ii) Notes of proceedings dated 29.10.98, 31.10.98 and 6.11.98 in the court of ACMM in respect of Shri Umesh Menon and (iii)) Notes of proceedings dated 3.11.98 in the court of ACMM in respect of Shri Lal Khemani. 13.11.98 Screening Committee Meeting held at NCT Delhi. 20.11.98 Additional documents generated in the case received in the branch of customs from seizing officer. 20.11.98 Letter sent to Govt. of NCT of Delhi by Customs Deptt. regarding additional documents generated: (i) reply of bail application of Lal Khemani in High Court on 02.11.98, (ii) Order of ACMM dated 11.11.98 rejecting bail of Umesh Menon. 1999, 2nd bail applications of Umesh Menon filed in the court of ASJ, New Delhi dated 12.11.98 and reply to 2nd bail application of Umesh Menon in the court of ASJ dated 17.11.98 granting bail to Umesh Menon and (v) photocopy of bank transaction of Umesh Menon. 02.12.98 Translated documents sent to NCT Delhi by Customs Department. 21.12.98 Letter sent to Govt. of NCT Delhi by Customs Deptt. regarding additional documents generated: (i) court order dated 13.11.98 of ASJ, New Delhi and Court Order dated 02.12.98 of ACMM, New Delhi, (ii) certificate from A.C.O. (P). 05.01.99 Additional documents generated i.e., copy of show cause notice dated 30.12.98 forwarded to Govt. of NCT Delhi by the Customs Deptt. 14.01.99 A letter sent to Customs Deptt. by the Government of NCT of Delhi regarding parawise comments on representation dated 27.11.98 of Shri Umesh Menon. 18.01.99 Reply sent to Govt. of NCT Delhi by the Customs Deptt. regarding representation dated 27.11.98 of Shri Umesh Menon. 01.03.99 Letter to Govt. of NCT Delhi by the Customs Deptt. regarding additional documents i.e., copy of case proceedings dated 09.02.99 in the court of ACMM, New Delhi. 04.03.99 Letter sent to Customs Deptt. regarding additional documents i.e. reply to show cause notice by Shri Lal Khemani. 10.03.99 Letter sent to Customs Deptt. by the Govt. of NCT Delhi seeking documents/ clarifications of ten points. 16.03.99 Reply from seizing officer received by the Customs Deptt. regarding letter of Govt. of NCT Delhi dated 10.3.99. 24.03.99 Reply received from the Customs in response to letter dated 10.3.99. 04.04.99 Letter to Govt. of NCT of Delhi by the Customs Deptt. forwarding there under English translation of D.R. No. 37996 dated 08.04.99 (in Hindi). 09.04.99 Detention Order issued. 10.04.99 Detention order served on Shri Lal Khemani.”
5. Law with regard to the delay in passing the order of detention is well-settled. There can be no mechanical test for counting the period of delay. It will depend upon the nature of allegations relied on by the detaining authority and the length of the gap and also on the reason for
the delay in taking the preventive action.
6. In Ahamed Mohadeen Vs. State of Tamil Nadu & Ors. 1999 Vol. 2 AD (Crl.) SC 315, Supreme Court, while quashing the detention order passed after 11 months and 15 days of the criminal activity of the detenu, observed that the delay in passing the order of detention was unreasonable. It was held:-
“No other explanation has been given by the State Government for not passing the detention order earlier. The State Government has not explained why it thought it necessary to wait till the adjudication proceedings before the Customs Authorities were over since that was not necessary for exercising the power under the COFEPOSA Act. In absence of any satisfactory explanation as to why the State Government did not exercise the power earlier, it has to be held that delay in passing the order of detention was unreasonable. It will also have to be held that the explanation of the detaining authority as regards immediate need of detaining the detenu was not genuine.”
In Anand Prakash Vs. State of U.P. & Ors. 1990 SCC (Crl.) 96, Supreme Court, while taking into consideration that recovery was effected on 3rd March, 1989, and no action was taken till May 3,1989, held that delay was not specifically explained in the counter affidavit and detention order was quashed. It was held:-
“Though bail was granted, in view of the detention order he could not be released from jail. In spite of the fact that the recovery statement itself was made as early as on March 3, 1989 no action was taken till May 3, 1989. Nothing more is stated in the
detention order. The delay has also not been satisfactorily explained in the counter-statement of the respondents. The ground instance, therefore, could not be a proximate cause for a sudden decision to take action under the National Security Act and this also vitiates the order.”
7. In Pradeep Nilkanth Patarkar Vs. Shri. S. Ramamurthi & Ors. Supreme Court, while considering the delay of 5 months 8 days from the date of registration of the last case and delay of 4 months from the submission of the proposal, quashed the detention order observing “A perusal of the various decision of this court, on this legal aspect shows that each case is to be decided on the facts and circumstances appearing in that particular case”.
8. In the above decision itself reference was also made to Hemlata Kantinal Shah Vs. State of Maharashtra , in which Supreme Court observed:-
“Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily examined by the detaining authority”.
9. A perusal of the explanation offered by the Department shows that the proposal itself was received by the Government of NCT of Delhi on 14th October, 1998, with documents, and thereafter, from 27th October, 1998 to 10th March, 1999 six letters were written by the Government of NCT of Delhi to the Customs Department on different dates calling upon them to sent additional documents/information regarding subsequent developments, if any. On seven occasions documents were sent by the Customs Department to the Government of NCT of Delhi. On 5th January, 1999, after some additional documents were received, from the Customs Department, a letter was sent by
the Government of NCT of Delhi regarding parawise comments on the representations one Umesh Menon. We fail to understand that how the parawise comments on the representation of ‘Umesh Menon’ could be relevant for the purposes of deciding whether the detention order has to be passed against the petitioner or not. Thereafter, from 18th January, 1999 to 1st March, 1999 there was no action on the part of the Government of NCT of Delhi with regard to the said proposal. All this only suggests the leisurely manner in which the proposal was dealt with, processed and considered. It is true that the test of expeditious disposal, which is applicable while considering the representation of a detenu under the preventive detention may not be applicable while considering the delay in passing of the detention order but the explanation for delay should be reasonable and satisfactory. The delay of about eight months and a half in passing the detention order has not been satisfactorily explained. Due to the inordinate delay the order of detention is vitiated.
10. In view of the above, the petition is allowed. The order of detention of the petitioner is hereby quashed. He be released if not required to be detained in any other case.