MOHINDER KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was taken into detention on 15th of March 1987 in pursuance of a detention order dt. 30th March 1987 passed by Shri Tarun Roy, Joint Secretary to the Government of India under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. This order was passed with a view to prevent the detenu from smuggling the goods. The detention order followed an incident dated 28th February 1987 when the petitioner together with one Surinder Kumar was intercepted at Indira Gandhi International Airport, Delhi on his landing at Delhi airport from Singapore. The Customs officials on search recovered 33 foreign made gold biscuits from the petitioner. On the same day the statements of both these persons were recorded under section 108 of the Customs Act and they were taken before the Magistrate wherefrom they procured remand against them.

(2.) TThe primary contention of Mr. Navin Malhotra learned counsel for the petitioner is that there has been inordinate and unexplained delay in the consideration of his representation made to the detaining authority which vitiates the detention order. The case of the petitioner is that he made a representation to the detaining authority against the detention on 25-4-1987, which was dispatched to the detaining authority by the Superintendent of Jail on 27-4-1987. On 28-4-1987 the petitioner had made another representation to the Advisory Board through Jail and be along- with one Surindar Kumar was produced before the Advisory Board on 30-4-1987. The Advisory Board forwarded its recommendations to the detaining authority on 13-5-1987 and the detention order was confirmed on 23-6-1987. According to the petitioner he was informed only on 15.6-1987 that his representation has been considered and rejected. In counter affidavit this specific averment of the petitioner has been met by the detaining authority by submitting that the representation of the petitioner was received in the COFEPOSA unit on 27-4-1987 and it was sent to the Collector of Customs. Delhi on 28-4-1987, It is further stated that the comments on the said representation from the Collector of Customs were received on 9-4-1987 and a note containing the averment made by the detenu and the departments reply thereto was put up by the Senior Technical Officer on 10-6-1987 to the detaining authority who considered the Same on 11-6-1987, 13th and 14th of June 1987 being holidays the intimation to the detenu was given on 15-6-1987 that his representation has been considered and rejected.

(3.) On a careful consideration of the reply submitted in this regard I find it anything but satisfactory. It has been the consistent view of this Court as well as of the other High Courts that the detaining authority- must consider the representation of the detenu without showing any lethargy and must without delay apply its mind to the representation of the detenu as the personal liberty of citizen is at stake. It is further the consistent view of the court that delay by itself fatal if it is properly and sufficiently explained and the delay will have to be adjudged in the light of the facts of each and every case. What is, however, stressed by all the case laws is that the detaining authority should not show any indifference or lack of concern to the representation of the detenu and must show that it has without unnecessary delay applied its mind to it and considered the same. What is important is that if the representation against the detention is made to the detaining authority no intervening factor can be allowed to operate in between the two as it is essential for the detaining authority to apply its mind to the representation and decide it to the best of its ability. What is important from that point of view is that the moment the representation is made it must go to the detaining authority and it is for the detaining authority alone to decide the manner in which it should deal with the same. If the detaining authority finds it necessary to send for some comments or call for some further Information to enable Its to deal with the representation there can be no serious objection to the same but it must appear that the detaining authority on receipt of the representation started applying its mind to the same. In the present case it appears that the representation was never put up before the detaining authority till 11-6-1987. Strangely it is not the detaining authority in the present case, which has wanted the comments of the Collector of Customs. On the other hand it is actually the COFEPOSA unit, which has without the knowledge of the detaining authority mechanically dealt with the representation and asked for the comments of the Collector of Customs. There has been so much of indifference towards this representation that despite the comments being sought from the Collector of Customs on 28-4-1987 the comments have only been received 9-6-1987 and in between nobody has bothered to enquire as to why this delay In the submission of the comments. Mr. Sat Pal, however, states that reminders were issued. I am, however, not concerned because everybody at every stage has shown utter lack of concern for this representation which ought to have been considered at the earliest possible moment by the detaining authority. Even thereafter it is not shown as to why the detaining authority was not shown this representation and the comments till 11-6-1987. In any, Case it is apparent from the facts of the present case that the representation of the detenu was not considered with the promptitude and vigilence as required by law. This has surely violated the constitutional safeguards guaranteed. In view of these observations there is no need for me to go into the merits or otherwise of the other contentions of Mr. Malhotra. The petition is allowed and the detention order passed against him is quashed.