PEER MOHAMMED SIDDIQUE Vs. UNION OF INDIA

JUDGEMENT

(1.) this writ petition has been filed by the petitioner to quash the order of detention bearing No. Hd 110 scf91(a), dated 22-11-1991 and issue a writ of habeas corpus directing his release from detention. The circumstances under which the petition has been filed, in brief may be stated as follows: on 4-11-1991 coast guard authorities based at Manglore informed in d.r.i, authorities of Manglore that they had intercepted a trawler by name a2 jasseron 3-11-1991 and the petitioner and eight other members were present in that trawler and that the same contained contraband silver, whereupon the d.r.i, authorities arrested the petitioner and others and the trawler was found to contain silver ingots weighing 6,185.510 kgs. Valued at Rs. 4,70,06,000/- and that they were seized under mahazar and on 6-11-1991 they were arrested and produced before the judicial magistrate, first class and they were remanded to judicial custody. On 22-11-1991 the government of Karnataka issued the impugned order of detention under Section 3(l)(i) of the conservation of foreign exchange and prevention of smuggling activities Act, 1974 (for short 'the act'). On 16-12-1991 the petitioner submitted a representation as per Annexure-D to the writ petition and the same was rejected by the central government on 6-1-1992 and the state government rejected the same on 28-1-1992. There was inordinate delay on the part of both the central and state governments in considering the representations made by the petitioner and there was no proper explanation forthcoming to explain the said delay and therefore the detention of the petitioner is vitiated. In the course of the petition the petitioner has taken many other grounds to attack the impugned order of detention and during the course of arguments the only point that was pressed was the inordinate delay in consideration of the representation made by the petitioner and thereby the impugned order being vitiated and so it is quite unnecessary to refer to the other grounds taken up by the petitioner in the course of his petition.

(2.) the person who was working as the secretary to government, home department at the relevant time has filed his counter affidavit. He has admitted that ihc petitioner has been detained pursuant to the impugned order and it has been asserted that, that is with a view to prevent him from smuggling goods. The various averments made during the course of the petition in relation to the main grounds taken up by the petitioner have been denied by him. That the petitioner made a representation dated 16-12-1991 against the order of detention has been admitted by him. But there has been any delay in considering the said representation has been denied by him. It has been stated that the. Representation of the detenu dated 16-12-1992 was forwarded by the superintendent of central prison to the stale government on that day itself and it was received in the home department on 17-12-1991 and the representation of the petitioner and the representation of eight other detenus was processed and a note was put up on 19-12-1991 for forwarding the same to the d.r.i, authorities for the purpose of translation and obtaining their comments and the under secretary examined the file on 20-12-1991 and on 21-12-1991 the file came back to the Section and the letter to the d.r.i. authorities was got typed on 21/23-12-1991 as 22nd December was a general holiday and on 24-12-1991 the said letter was despatched along with the representation of the detenu and the d.r.i, office received the said letter on the same day and on 26-12-1991 the said representation was entrusted to the translator for translation and the translated copies were received on 27-12-1991 and on 30-12-1991 the d.r.i, authorities prepared their comments and forwarded the same to the state government on 31-12-1991 by ordinary post and it was received in the home department on 10-1-1992 and the d.r.i, office was unable to explain about the postal delay that had crept in, due to reasons beyond its control as 11/12-1-1992 were general holidays on 13-1-1992 and 14-1-1992 each of the comments of all the nine detenus was processed and on 16-1-1992 a detailed note was got typed and the file was submitted to the under secretary to government, home department on 17-1-1992 who in turn examined the file and ordered that the report of the petitioner be forwarded to the advisory board where the matter was pending consideration and on 18-1-1992 the representation of the petitioner was forwarded to the advisory board. On 21-1-1992 the copies of the representation were also forwarded to the central government and the chairman of the central advisory board and thereafter the file was resubmitted to the under secretary on 22-1-1992 and the under secretary after perusing the file forwarded the same to him and he perused the entire file and submitted the same to the home minister on 22-1-1992 and on 25-1-1992 the home minister after considering the representation rejected the same. Therefore, it has been asserted that there was no delay in considering the representation of the " petitioner at any stage and that the order of detention is not in any way vitiated.

(3.) the short point that arises for consideration is, whether there has been unexplained delay on the part of the state government in considering the representation of the petitioner and whether therefore the order of detention is vitiated.