HUSSAIN ERUMBAN Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India, whereby the petitioner challenges the order of his detention dated September 10,1992 passed under Section 3(1) read with Section 2(f) of the Cons.ervation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for short 'COFEPOSAACT').

(2.) The allegations against the petitioner briefly stated are that on April 13, 1992 he was arrested on his arrival at the Indira Gandhi International Airport from Abu Dhabi by Flight No.GF-018as on search by the custom authorities he was found to be inpossession of 1749 grams of gold of foreign marking valued at Rs.l,78,024.00 . The petitioner on the 378 same day was produced before the Metropolitan Magistrate, who remanded him to judicial custody. On completion of the investigation acomplaint was filed against him on Apri 123, 1992 under Section 132/135 of the Customs Act,1962. Subequently on August 6, 1992 the petitioner was admitted to bail by the High Court in the customs case. Ultimately the impugned order of detention dated September 10,1992 was passed by the detaining authority, respondent No.2 against the petitioner. Along with the detention order the petitioner was also served with grounds of detention. On September 28,1992 the petitioner is alleged to have filed a representation before respondent No. 1 through the Superintendent, Central Jail. Learned counsel for the petitioner submits that there has been delay in disposing of the representation which has not been explained by the respondent.

(3.) It is not disputed by the learned counsel for the respondent No. 1 that the petitioner filed the representation on September 28, 1992, which was forwarded by the Superintendent, Central Jail Tihar to the Ministry of Finance, COFEPOSA Branch on September 30,1992, and the same was rejected by the Government on October 13, 1992. Accoing to the learned counsel for the respondent No. 1 there was no delay in disposing of the representation. I do not see how the submission of the learned counsel for the respondent that there has been no delay on the part of the Government in disposing of the representation, can be accepted. As per claim of the respondent the representation was sent through a special messenger to the sponsoring authority for latter's comments on September 30,1992 i.e. the same day when it was received in the Ministry. However, according to the affidavit of Mr. Somesh Arora, Assistant Collector of Customs, representation reached the department on October 8, 1992. No explanation has been given by respondent No. 1 for the intervening delay. It is surprising that the representation, which was sent through aspecial messenger reached the sponsoring authority after eight days. This shows that the claim of the said respondent that the representation of the petitioner was attended to without delay is completely without force and has no substance whatsoever. In a detention matter the Government is required to deal with the representation of a detenu expeditiously without any avoidable delay. Undue and unexplained delay in disposing of the representation vitiates the detention order. It may be pointed out that the office of the Ministry of Finance (COFEPOSA Branch) and the office of the sponsoring authority are located in Delhi and there seems to be no discernible reason for the representation to reach the sponsoring authority after eight days of its alleged despatch on September 30, 1992 by the Ministry of Finance, (COFEPOSA Branch), especially when it is claimed that the representation was transmitted to the sponsoring authority through a special messenger.