SUBHASH CHANDER Vs. UNION OF INDIA

JUDGEMENT

(1.) This judgment will dispose of Letters Paten'.. Appeals No. 131 of 1989, 132 of 1989 and Cri. W.P. No. 395 of 1989. These cases arc being taken up together since they involve common question of law and the material facts are also almost identical. So far as the L.P.As. are concerned, the detention orders under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act), were passed on 9th June, 1988, while in Cri. W. 395189, the detention order is dated 14th October. 1988. In all the three cases the detention orders have not been served on the petitioners and the common point urged on their behalf is that the delay in execution!serviceof the detention order vitiates the same. The counsel urges that the delay in service of the detention order shows lack of seriousness/anxiety on the pan of the detaining authority to detain and this according to counsel throws doubts about the genuineness of the subjective satisfaction of the detaining authority.

(2.) The two appeals arise from the judgment of a learned Single Judge of this Court dated 21st November, 1989 whereby the writ petition?, hied by the appellants under Articles 226 and 227 of the Constitution of India, for quashing the older of detention, were dismissed. The bare facts necessary for the purpose of disposing of tire present appeal are that on 9th June, 1988, Shri K. L. Verma, Joint Secretary, Ministry of Finance Department of Revenue, New Delhi, passed the detention orders qua Subhash Chander and Parvesh Kumar, appellants. It is submitted by counsel for the appellants that after passing of the impugned detention order both the appellants had appealed in the court of Metropolitan Magistrate concerned on 13th June, 1988 and 26th September, 1988 and their personal presence is recorded in the proceedings of the court. The appearance of the appellants in the court was in connection with the cases initiated by the authorities which sponsored their detention under the COFEPOSA Act. Represeatatioiis were. made against the detention order by the appellants on 14th October, 1988 which were rejected on 30th November, 1988. Writ petitions were filed by the appellants in this court on 26th December, 1988 which came up before the Vacation Judge on 28th December, 1988. On the said date while issuing notices on the petition", this court was pleased to stay execution of the detention order. This ex parte order was confirmed on 17th February, 1989. Counsel for the appellants has confined his submissions in this appeal only to the question of delay in execution of the detention order. It is submitted by the counsel that the learned Single Ji]da-.i has based the impugned judgment on certain assumptions of fact which were not born out by the record and sscondly, it is submitted that instead of considering the explanation of the respondents regarding their failure to execute the detention order and their failure to 2.ive details of the steps they took in this behalf the learned single Judge has based her judgment on the conduct of the appellants which according to the learned counsel. was not a correct approach.

(3.) Counsel for the respondents has mainly raised the question of maintainability of the writ pstitions. it is submitted that in view of the failure of the petitioners to surrender before the Court, the writ petitions ought to have been dismissed on this ground alone and ought not to have been entertained at all. This question has been considered by the learned Single Judge and for reasons recorded in the judgment, the writ petitions were entertained. However, on merits, the learned Single Judge was not convinced about the submissions of the petitioners and, therefore, the writ petitions were dismissed.