B K CHAUDHARY Vs. UNION OF INDIA

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, petitioner seeks the quashing of detention order dated 17.12.1991 under Section 3(1) of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act (COFEPOSA Act for short) by the second respondent Sh. Sikander Khan, Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue, New Delhi against the petitioner. The brief facts are that on the basis of information supplied by one Kamal Aggrawal, premises No.41. Eight Road. Calcutta, flat No. 28. was searched. Four documents and Hongkong dollars 90 were allegedly recovered from that premises. The petitioner resides in that flat. After recovery, statement of the petitioner was recorded under Section 108 of the Customs Act on several dales between 19.7.91 and 14.8.91. After finding sufficient material the impugned detention order was passed.

(2.) The petitioner has challenged the detention order on a number of grounds. During the course of arguments, learned counsel for the petitioner restricted his arguments to only one ground and that is as given in para 29, page 22 of the petition. In this para, it is alleged that there has been a long and in-ordinate delay in dealing with the petitioner's representation which cannot be explained and, therefore, the right of the petitioner under Article 22(5) of the Constitution of India stands violated. The petitioner also annexed a copy of the order dated 21.2.92 addressed by the Under Secretary to the Govt. of India to the petitioner wherein it is stated that the representation of the petitioner dated 25.1.92 for revocation of the detention order had been carefully considered by the Central Govt. but it was regretfully rejected. However, the Director of Enforcement was being directed to supply him with additional documents asked for in para 9. In reply to this allegation of the petitioner, it is stated in para 29 of the counter affidavit that these allegations were baseless and incorrect and rather his representation was considered without any delay and replied at the soonest possible time. It may be noted that on behalf of the respondent, it has not at all been stated as to on which date the aforesaid representation was received by the respondent and how aperiod of almost 26 days was taken by them in rejection of this representation. lt is a matter of common knowledge that if there is a proper explanation for the delay then even a delay of three months may not invalidate the detention order whereas an un-explained delay of even two weeks may be fatal. Similar situation seems to have arisen in this case. There is absolutely no explanation offered by respondent as to why delay of 26 days approximately took place in dealing with the representation. Therefore, I am of the view that there is no explanation offered by the respondent about the delay in dealing with this representation and mere assertion that the representation was considered without delay and replied at the soonest possible time will have no merit. Therefore, I am of the view that there is unexplained delay in dealing with the representation of the petitioner and on that account the petitioner's right under Article 22 (5) of the Constitution has been violated.

(3.) I, thereforee, quash the impugned detention order and direct that the petitioner shall be set at liberty if not wanted in any other case or proceedings.