JUDGMENT
Dalveer Bhandari, J.
(1) This petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been filed with the prayer that detention order dated 23rd September, 1991 passed against the petitioner by the Lt. Governor, Government, National Capital Territory of Delhi under Section 3(1) read with 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, be set aside. It is alleged that on 27.4.91, the petitioner arrived at Indira Gandhi International Airport, New Delhi from Bangkok by flight no.TG-914. After immigration clearance, the petitioner was made to pass through a metal detector door frame which gave positive signal of presence of metal on his person. He was allowed to proceed for his normal custom clearance under a strict vigil. The petitioner passed through green channel and at exit gate of the Customs arrival room, he was intercepted by the Custom Officer. He did not have any check-in-baggage and only had a hand baggage. On enquiry, he denied having any contraband item. At that stage, two independent witnesses vere called and in their presence, he was again made to pass through metal detector door frame and his person was also frisked with hand metal detector. A positive signal of presence of metal was detected. After persistent enquiry, the petitioner admitted having concealed gold in his rectum and volunteered to take it out. He was taken to a toilet where he eased out two packets, and matter washing 9 cut-pieces of gold biscuits weighing 270 grams were recovered. A certified goldsmith was called on the spot who certified the gold to be of 24 carat purity collectively weighing 270 grams and valued at Rs.94,500.00
(2) On demand, the petitioner failed to produce any evidence for the lawful possession of the recovered gold. The gold recovered was seized u/s 110 of the Customs Act, 1962 on the reasonable belief that the same is liable to confiscation for violation of the provisions of the Customs Act, 1962.
(3) On 27.4.1991, in’ voluntary statement recorded under Section 108 of the Customs Act, 1962, the petitioner admitted the recovery and seizure of gold. The petitioner had mentioned that he had borrowed money from his uncle who was staying in Bangkok to buy gold and that he had brought gold to sell in India to earn profit.
(4) On 27.4.1991, the petitioner was produced before the A.C.M.M., New Delhi, and was remanded to judicial custody.
(5) Scrutiny of the passport of the petitioner revealed that he had visited abroad on the following dates : _____________Departure__________Arrival_____________Place visited_______ 1. 18.06.89 21.06.89 Singapore 2. 01.07.90 03.07.90 Singapore 3. 24.01.91 26.01.91 Singapore 4. 15.02.91 18.02.91 Bangkok 5. 01.03.91 04.03.91 Bangkok 6. 07.03.91 11.03.91 Bangkok 7. 23.03.91 27.03.91 Bangkok 8. 23.04.91 27.04.91 Bangkok
(6) A Complaint for offence punishable under Section 132 and 135(1)(a) of the Customs Act, 1962 was filed in the court of A.C.M.M., New Delhi, on 14.5.91 against the petitioner. A show cause notice was issued to the petitioner on 2.7.1991 in adjudication proceedings.
(7) On the basis of the aforesaid facts, the Administrator, Union Territory of Delhi arrived at the conclusion that the petitioner has the inclination and propensity in the matter of indulging in smuggling activities in an organized and clandestine manner and unless prevented, he is likely to indulge in the smuggling activities in future. Prosecution and adjudication proceedings under the Customs Act, 1962 have already been initiated against the petitioner, still the Administrator of Union Territory of Delhi considered it imperative to detain the petitioner under. the provisions of Conservation of Foreign Exchange and Prevention Activities Act, 1974 with a view to prevent the petitioner from engaging in transporting, concealing and keeping smuggled goods, in future. At the threshold, the petitioner submitted that there is long, undue and unreasonable delay in considering his represention which makes the detention illegal and bad in law being violative of Article 22(5) of the Constitution of India.
(8) The petitioner has also challenged the detention order dated 23rd September, 1991 on the ground that there is unreasonable and unexplained delay in issuing the impugned order of detention against him. The incident had taken place on 27.4.1991 and the order of detention has been passed on 23.9.91. There is delay of approximately 5 months in issuance of the impugned order of detention.
(9) The petitioner further submitted that order of detention has been executed upon him after a period of approximately 2 years. The petitioner was not evading his arrest nor was he absconding. No proceedings under Section 7 of the Cofeposa Act has been initiated against the petitioner, shows the negligence and slip-shod manner in which the liberty of the petitioner has been curtailed by the detaining authority.
(10) The petitioner has also challenged the detention on the ground that till today, the petitioner has not been supplied with the documents and information as mentioned in his representation dated 6.1.1994. which has caused prejudice on him, in making an effective and purposeful representation, consequently making his detention illegal and bad in law and violative of Article 22(5) of the Constitution.
(11) The petitioner has also challenged the detention order on the ground that irrelevant documents have been taken into consideration by the appropriate Government. The document no.7 of the list of documents. Document Nos.10, 14, 18 and 19 as mentioned in the list of documents relied upon are absolutely irrelevant and have no bearing or concern with the prejudicial activities shows that the detaining authority has not even applied his mind and has passed the detention order. The non application of mind in passing the detention order makes the detention illegal and bad in law.
(12) This court issued notice to the respondents and in pursuance of the notice, affidavit of Mr. M.U. Siddiqui, Deputy Secretary (Home) has been filed on behalf of the Government of National Capital Territory of Delhi. An affidavit has also been filed by Mr. Jamna Das, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, on behalf of Union of India.
(13) I have heard learned counsel for the parties. I would like to deal with first submission of the learned counsel for the petitioner that there is unexplained and unreasonable delay in consideration of the petitioner’s representation. In this regard, para 2 of the affidavit of Mr. Jamna Das is reproduced hereinunder:- “2.As regards Para 5 and Ground (O) to (R) of the petition, it is submitted that the detenu’s representation dieted 7-1-1994 forwarded by Supdt. Central Jail No.1, Tihar New Delhi vide his letter dated 7-1-1994 was received in the Cofeposa Unit of the Ministry on 7-1-1994. On receipt of the representation, the same was placed before the considering authority who directed to call for the comments of the sponsoring authority. The comments were called on 7-1-1994. The sponsoring authority instead of sending the comments to the Ministry, sent the same to the detaming authority i.e. Delhi Administration who in turn furnished the para wise comments to the Ministry vide their letter dated 4-2-1994 and received in the Cofeposa Unit on 8-2-1994. The case was processed and submitted to the Joint Secretary on 14-2-1994 who is an officer empowered by Finance Minister vide Order F. No.685/14/84-Cus.VIII dated 26.4.1991 to consider representation made by the detenus against the detention orders passed by the State Government. Joint Secretary (COFEPOSA) considered and rejected the representation on 16.2.1994. A memo dated 16.2.1994 intimating the detenu about rejection of his representation by the Central Government was also issued on 17.2.1994. Thus, the representation was dealt with expeditiously and there was no undue or unexplained delay in consid- ering the representation by the Central Government.”
(14) From the aforesaid para, it is clear that the detenu’s representation was received in the Cofeposa Unit on 7.1.1994 and parawise comments to the Ministry were furnished on 4.2.1994 and received in Cofeposa Unit on 8.2.1994. Thereafter, the case was processed and submitted to the Joint Secretary on 14.2.1994. After consideration, the representation was rejected on 16.2.1994. Undoubtedly, there is unexplained delay in consideration of the petitioner’s representation from 7.1.1994 to 4.2.1994.
(15) Learned counsel for the petitioner in support of his contention placed reliance on large number of judgments. In Julia Jose Mavely Vs. Union of India and others, 7992 Cri. L.J., the Supreme Court quashed the detention order on the ground that there were inordinate delay of nearly 28 days in forwarding comments by the sponsoring authority.
(16) Learned counsel also placed reliance on Mahesh Kumar Chauhan Vs. Union of India and others, . In this case, the Supreme Court has held that the sponsoring authority has taken 19 days for furnishing comments on a representation and there is no explanation whatsoever as to how the sponsoring authority has caused delay in submitting the comments. Only on this ground, the detention order was quashed.
(17) In Rama Dhondu Borade Vs. V.K. Saraf, Commissioner of Police and ors., Writ Petition (Crl) No.86 of 1989 and (Criminal Appeal No.)376 of 1989, the Supreme Court quashed the detention order because there was a delay of 32 days in disposal of the representation made by the detenu. The Supreme Court has laid down in this case that the detention order was quashed because there was a breach of constitutional obligation as enshrined in Article 22(5) of the Constitution of India.
(18) Learned counsel has also relied on Gazi Khan Vs. State of Rajasthan and another, . Here also, detention order has been quashed on the ground of unexplained delay. Similarly, learned counsel has placed reliance on the judgment of this court reported as Bhurpa Tsewang Lama Vs. Union of India, 46 (1992) Dlt 370. In this case, by following various judgments of the Supreme Court, because of long unexplained delay, the detention order was quashed. In another case of this court, Hamza Nozoglu Vs. Union of India and others. 1992 (1) Crimes, 1028, the detention order was quashed on the ground of unreasonable and unexplained delay. In view of the aforesaid judgments in large number of cases of Hon’ble Supreme Court, the legal position is crystal clear that if there is unreasonable and unexplained delay in consideration of the representation of the detenu, the court will be left with no option but to quash the detention order.
(19) Since the petitioner’s detention order is liable to be quashed only on this ground, therefore, , do not think it necessary to deal with other grounds on which the detention order has been challenged. Undoubtedly, there is unreasonable and unexplained delay in consideration of petitioner’s representation. Consequently, the impugned detention order dated 23rd September, 1991, is hereby quashed.
(20) The petitioner shall be set at liberty forthwith unless required to be detained in some other case. Petition is accordingly disposed of.