JASBIR SINGH Vs. LT GOVERNOR DELHI

JUDGEMENT

(1.) The appellant challenges the legality of his order of detention passed under Section 3 (1 of the Conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974 (for short COFEPOSA) as well as the order of the division bench of Delhi High court dismissing the appellant's Writ Petition filed for issuance of Writ of Habeas Corpus. The order of detention was passed on 25/3/1994 and the period of detention was for a period of one year which is long over but the detenu pursues his right of challenging the order of detention as a proceeding under Smugglers and Foreign Exchange Manipulators Act (SAFEMA) has been initiated by the appropriate Authority. The appellant was apprehended at Indira Gandhi International airport, New Delhi while he was leaving for Kualalumpur/singapore and on search, US dollars amounting to 1.39 lakhs in Indian currency were recovered. Further his brother who was also going with him, from his person, foreign currency equivalent to 5.34 lakhs of rupees was recovered. The detaining authority being of the opinion that the detention of the appellant is necessary with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange, issued the order of detention en 25.3.94 and was served on the detenu on the same day. But the grounds ofdetention was served on the appellant on 30th March, 1994. In accordance with the provisions of the Act his case was forwarded to the Advisory Board and the Advisory board on consideration of the materials placed before it, gave its opinion that there is sufficient cause for the detention of the detenu. The appropriate government thereafter confirmed the detention and after expiry of period of one year the detenu has been released but the detenu/appellant filed a Habeas Corpus Petition in the High court challenging the legality of the order of detention. By way of an additional application the detenu also urged additional grounds and the High court ultimately by the impugned judgment dated 15/2/1995 dismissed the Writ Petition filed by the appellant. The appellant was released on 24.3.95 after expiry of the period of one year of detention. Though the special Leave Petition was filed in this court after the expiry of the period of limitation but the court condoned the delay and granted leave, and thus, the present Appeal

(2.) From the impugned judgment of the High court it transpires that the appellant raised three contentions all of which were answered against the appellant. It was contended that the grounds of detention having been served on the appellant on 30. 3.94 though the order of detention was served on 25.3.94, there has been an infraction of Ss. (3 of Section 3 of the Act and, therefore, the detention got vitiated. Secondly, it was urged that though the representation was made to the Advisory Board and it had not been indicated that the central government should also consider the same, yet the central government was duty bound to consider the said Representation of the appellant addressed to' the Advisory Board and such non-consideration infringes the right of the appellant under Article 22 (5 of the Constitution and the order of detention is vitiated on that score. Thirdly, it was urged that the Representation that was addressed to the central Government on 20th June, 94 was disposed of on 6.5.95 and thus there has been considerable delay in disposing of the representation and such delay in disposal vitiates the order of detention. In addition to the aforesaid three "grounds urged before the High court which were reiterated by the learned counsel for the appellant in this court, two other grounds were also urged, namely, the grounds of detention even though had been prepared on the very date the order of detention was made yet the same not having been served for a period of 5 days there has been an infraction of Ss. (3 of Section 3 of the Act. In as much as the Act postulates that the order shall be made as soon as may be, after the detention and there was no explanation for the detaining authority not to serve the grounds of detention till 30th march, 1994. It was also urged that the order of the Detaining Authority disposing of the representation on the face of it, indicates that there has been no application of mind, and therefore, that vitiates the order of detention. We would examine the correctness of each of the aforesaid contentions, but at the outset we may indicate that the President had promulgated Maintenance of Internal Security (Amendment) Ordinance, 1974 on 17/09/1974 which was later on replaced by the Conservation of Foreign exchange and Prevention of Smuggling Activities Act, 1974 (Act 52 of 1974. The very object of enacting the legislation was to check diversion of foreign exchange from official channels and it was thought that unless the links which facilitate violations of foreign exchange regulations and smuggling activities are disrupted by immobilising by detention of the persons engaged in these operations then there would not be any substantial impact. The Act has been amended from time to time to meet the needs of the country and the Act has been enactedat a point of time when the country was facing acute foreign exchange problem.

(3.) Coming to the first question as to whether by serving the grounds of detention on 30/03/1994 there has been an infraction of Ss. (3 of Section 3, the learned counsel appearing for the appellant urged that the order of detention having been served on 25/03/1994 the grounds were required to be served within 5 days therefrom i. e. on 29/03/1994 and not on 30/03/1994 as has been factually done. According to the learned counsel the day on which the order of detention was served cannot be excluded for computing the period of 5 days within which the grounds of detention is required to be served under Ss. (3 of Section 3 of the Act. This question no longer remains res Integra. This court in the case of Ham Das Gupta vs. The state of West Bengal - 1972 1 Supreme court Cases 639, was considering an identical provision under West Bengal Prevention of Violent Activities Act, 1970 and the court held that the Rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that day is to be excluded. The effect of defining period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. The court in coming to the aforesaid decision relied upon some English decisions and held that in computing the period, the date of commencement of detention that the first day has to be excluded. In the case in hand. therefore, for computing the period of 5 days the date 25/03/1994 has to be excluded and so being done there is no infraction of Ss. (3 of Section 3 of the Act when the grounds were served on 30/03/1994. The High court, therefore rightly rejected the said contention urged before it.