YUDHVIR CHANDER ARORA Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a habeas corpus petition filed under Articles226 and 227 of the Constitution of India. The petition has been filed throughthe wife of the detenu. There are three respondents. First respondent isUnion of India through the Secretary, Ministry of Finance, Deptt. of Revenu;the second respondent is the Administrator Union Territory of Delhi and thethird respondent is the Superintendent, Central Jail, Tihar. The petitionerwas detained on the authority of the order dated 19.1.90 issued by the Administrator, Union Territory of Delhi in the exercise of powers conferred upon himunder Section 3(1) read with Section 2(f) of the Conservation of ForeignExchange and Prevention of Smuggling Activities Act, 1974 (to cut short 'theAct') on his satisfaction that it was necessary to detain the petitioner with aview of preventing him from smuggling goods and preventing him from engaging any transporting, keeping smuggled goods and also from preventing fromdealing in smuggled goods otherwise than by engaging in concealing smuggledgoods. In pursuance of this order the petitioner was detained on 9/12/1991 and presently confined in Central Jail, Tihar, New Delhi.

(2.) It is not necessary to set out the facts in detail except that thepetitioner on 20.10.89 arrived from Dubai by air and landed at Indira GandhiInternational Airport Terminal-11, New Delhi. He was caught with foreignmark gold, valued over Rs. 20 lakhs. The following day he was producedbefore the Magistrate who remanded him to judicial .custody. The petitionerwas then released on interim bail on 6.1.90 due to demise of his mother. Hesurrendered on 23.3.90. Meanwhile, however, he obtained a stay order fromthe Calcutta High Court restraining the respondents from executing the orderof detention dated 19/01/1990. The petitioner was abmitted to regularbail on 23/05/1990. The Calcutta High Court on 12/04/1990 vacated the stay granted earlier. This fact of vacation of the stay was communicated by the sponsoring authority to the second respondent the Administrator,Union Territory of Delhi, by letter dated 29/04/1991. The Administratorinformed the Deputy Commissioner of Police, Headquarter (II) and requestedhim to execute the detention order by letter dated 15/05/1991. In thecounter affidavit filed by the second respondent it is stated that the DeputyCommissioner by his letter dated 9.7.91 informed the Department that thepetitioner was not found available at his residence though several attemptswere made to execute the order of detention. We may note that in the petitionthe petitioner had stated that all this period he was available and in fact on onedate of hearing on 29.5.91 he appeared before the Additional Chief Metropolitan Magistrate in a complaint filed by the Custom Department in reject offoreign mark gold recovered from him. It is stated that he has regularlyattended the Court between 12.4.91 and 9.12.91, that was the only date ofhearing before the Court. The petitioner also mentioned that he was appearing before the authority during the adjudication proceedings as well. To thisthe reply of the second respondent is as under :

(3.) Till this date no reply has been filed by Custom Authorities andper force we have to accept the averments made by the petitioner in para 9 ofthe petition. Mr. Sharma, learned Additional Standing Counsel for DelhiAdministration, state that 2 or 3 days earlier Custom officials contacted himand he prepared a draft affidavit to be sworn by Assistant Collector of Customand that affidavit might be filed in a day or so. We are unable to grant anyadjournment on this score, in as much as we find that a Counsel did appear onbehalf of the first respondent and no attempt was made to file any counteraffidavit. The petition of habeas corpus has to be taken with all seriousnessand adjournments cannot be granted just as a matter of course. We, therefore,find that no explanation whatsoever is forth coming as to why the order ofdetention could not be executed all this eight months period from 12.4.91 to9.12.91. Purpose of the detention has been wholly lost. The petition, therefore, has to be allowed though we feel that it is being allowed more by defaultthan anything else. Accordingly, the petition is allowed. The petitioner isdirected to be released forthwith. Rule is made absolute.