YOUSUF Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition has been filed under Article 226of the Constitution of India read with Section 482 of the Code of CriminalProcedure for issue of appropriate writ, order of directions for quashingdetention order No. F.5/22/92-Home(P-ll) dated 15.5.1992 passed by theAdministrator of Delhi under Section 3 (1) of the Conservation of ForeignExchange and Prevention of Smuggling Activities Act, 1974 (for shortCOFEPOSA Act). On 9.3.1992, the petitioner was intercepted outsideRailway Station, Delhi when he was about to board a ricksha by the Customofficers. He was found to be carrying eight gold biscuits in three smallpackets wrapped with adhesive tape and carbon paper in his shoes. Besides "'proceedings against him under the Customs Act, the impugned dententionorder was passed on 15.5.1992 with a view to preventing him from smugglinggoods and from engaging in concealing, keeping smuggled goods and alsopreventing him from dealing in smuggled goods etc. The petitioner made arepresentation dated 28.5.1992 (copy Annexure P-IV in the paper book)to the Administrator of Delhi with the prayer that the detention order berevoked. He was informed vide letter dated 30.6.1992 that the representationhad been rejected and further that all the documents duly considered andrelied upon had already been supplied to him.

(2.) Although the petitioner has taken up a number of grounds toassail the detention order, during the course of arguments Mr. Bagai, learnedCounsel for the petitioner has restricted his arguments to the grounds takenup in Para-A of the grounds at page 4 of the writ petition. That ground isthat there has been undue delay in considering his representation dated28.5.1992 on the part of the second respondent. The Detaining Authoritywas bound under law to consider the representation at the earliest and withutmost haste. This representation was rejected after a month when thepetitioner was served with the memorandum of rejection dated 30.6.1992on 2.7.1992. Thus, there was undde and un-explained delay in consideringthe representation. In reply to this averment on behalf of second respondent, it is stated that there was no delay in considering the representation.It is further stated that the representation dated 1.6.92 (Mr. Sharma onbehalf of the State admits that the reference of this representation is thesame as that moved by the petitioner) was received in the Home Departmentthrough Deputy Superintendent of Jail on 3.6.1992. It was sent to theCustoms Department for comments on the same day. The comments werereceived on 11.6.1992. It was examined in the Branch on the same dayand was put up before the Superintendent of the Branch who examinedthe same and put up before the respondent on 15.6.1992 (12th, 13th and 14thbeing holidays). The file was then placed before the Joint Secretary (Home)on the same date who examined the same and sent it to the link officer ofthe Home Secretary. The Home Secretary was on leave. The link officerconsidered the representation and could put up the same before the Detaining Authority on 24.6.1992 which was considered and rejected on 25.6.1992.

(3.) Now the question is, whether from the aforesaid reply given onbehalf of the second respondent can it be said that there is any undue delayin the consideration of the representation moved by the petitioner ? In thisrespect it has to be noted that there is no explanation as to why theCustoms Department took as many as eight days in forwarding its comments. The aforesaid department received the representation on 3.6.1992 andforwarded the comments only on 11.6.1992. Thus the affidavit is completelysilent as to why about eight days were taken by the department. Thereafterthere is no explanation in the affidavit as to why after examining the same on15.6.1992, it was put up before the second respondent on 24.6.1992. It meansthat there was a delay of about nine days in putting up the representationbefore the second respondent for consideration. This period of delay is alsounexplained. It is stated that Home Secretary was on leave. If the link officercould put up the representation before the second respondent on 24.6.92during the period of leave of the Home Secretary, he could have done iteven earlier without any delay because he must have known the period ofleave of the Home Secretary. In any case the delay of nine days in puttingup the representation for consideration by the second respondent was notcalled for.