HAFIZ LIAQAT Vs. DELHI ADMINISTRATION

JUDGEMENT

(1.) This petition has been brought under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure' seeking quashment of the detention order dated January 30, 1990, passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to preventing the petitioner from smuggling goods and also from engaging in transporting, concealing and keeping smuggled goods.

(2.) The learned counsel for the petitioner has urged only two points in support of the petition. It has been urged that there has occurred an undue and unexplained delay in passing the order of detention when as a matter of fact the occurrence took place on May 14, 1989, whereas the detention order was actually passed on January 30, 1990 and thus, nexus between the object of passing the detention order and the prejudicial activity of the petitioner stood snapped. He has urged that it was a case of solitary incident and thus, the detaining authority was not right in reaching the subjective satisfaction that it was a fit case for passing the detention order. In support of his contention the learned counsel for the petitioner has placed reliance on a judgment of a Division Bench of this Court in Criminal Writ No. 100/84, Suresh Chand Srivastava v. Union of India and Others, passed on November 15, 1984 and a Judgment of a Single Bench of this Court in Criminal Writ No. 384/89, Ranjit Singh Gabba v. Union of India & Others, passed on February -2, 1990. In order to appreciate this contention of the learned counsel for the petitioner it is necessary to refer to the facts of the case. The grounds of detention show that the petitioner had arrived from Dubai by air at the IGI Airport on May 14, 1989 and as he was going out of the Customs Arrival Hall he was intrecepted by the Customs Officer near the Exit Gate and was asked whether he was carrying any contraband like gold, wrist watches etc. in his baggage or on his person to which the petitioner replied in negative and on suspicion he was detained and in presence of two independent witnesses his baggage and his person were searched and his baggage was also screened through the screening machine which showed that there had been concealment of some high density metal in knuckles of the handles of the suit-cases and thus, the knuckles of the handles of the said suit-cases of the petitioner were opened with the help of screw driver which resulted in the recovery of 30 cut pieces of gold of different sizes and on weighment the same was found to be 603 grams of 24 carats purity having the market value of Rs. 1,91.754.00 . The said gold was seized under Section 110 of the Customs Act and on interrogation the petitioner made a voluntary statement in which he admitted this recovery of gold froto his suit-cases and stated that the said gold was concealed in the knuckles of the handles of the suitcases by his brother and he was to utilise all this gold in connection with the marriage of his daughter and a part of the gold was to be given to brother's wife and that he had been to Dubai three or four times earlier also to meet his brother and it was only for the first time that he has brought gold knowing very well that law in India does not permit import of gold in this manner. The scrutiny of the passport of the petitioner indicated that in 1987, he visited Dubai twice for very short period of five days on first occasion and for two days on the second occasion and in 1988 he visited Dubai five times for two to three days each time and in 1989 he had visited Dubai only once for two days.

(3.) On the basis of the aforesaid facts, the detaining authority reached the conclusion that the petitioner has the inclination in the matter of smuggling goods and also engaging in transporting, concealing and keeping smuggled goods and unless he is detained he is likely to indulge in similar prejudicial activites in future. It is pertinent to mention that the petitioner was released on bail and thereafter the detention order was passed. The bail was granted on June 12, 1989. the detention order was passed on January 30, 1990 and the same was executed on February 8, 1990. In the counteraffidavit filed by Shri A.S. Dagar, Deputy Secretary, Delhi Administration, it has been mentioned that necessary proposal for passing the detention order against the petitioner was received from the Customs Department on 21/24th November 1989 and thereafter it was examined by the Screening Committee on December 20, 1989, alongwith 18 other proposals sponsored by the Customs Department and thereafter the Screening Committee recommended the detention of the petitioner and also some other persons and thereafter the steps were taken to formulate the draft grounds of detention against all those persons which took some time as translation of some documents were to be carried out. It was also mentioned that some fresh meterial was also received from the Customs Department vide their letters dated December 21, 1989 and also January 2, 1990, which was also in corporated in the grounds of detention after getting the same translated. It is true that no explanation had been given as to why the Customs Department took about five months in sponsoring the proposal for detention of the petitioner. So, the question which arises for consideration is whether the unexplained delay caused in passing the detention order in the present case vitiates the detention order or not. It is not necessary to refer to earlier judgments of the Supreme Court on this question inasmuch as the law has been now well settled as pronounced in the case of Rajender Kumar Natwarlal Shah v. State of Gujarat and Others, AIR 1988 SC 1255 and reiterated in Abdu Salam v. Union of India, JT 1990 (3) SC 74, that mere delay in passing the detention order is not fatal unless the court finds that the grounds have become stale or illusory and there is no real nexus between the grounds and the detention. In the case of Suresh Cnand (supra) the detenu had visited the foreign countries only twice and it was a case of solitary incident. The Division Bench came to the conclusion that from the facts no inference is possible that the detenu had been indulging in prejudicial activities on previous visits also and thus, the detention order was quashed. Facts of that case are distinguishable from the facts of this case.