RANJAN RAGHUNATH BELEKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Petitioner prays for the quashing of the impugned Detention Order dated 14. 2. 1997 whereby, with a view to prevent him in future from acting in any manner prejudicial to the augmentation of foreign exchange, it was found necessary to direct him to be detained and kept in custody. The prayer to produce the Petitioner and set him at liberty has been rendered infructuous as the Detention Order has expired. The challenge is founded on the grounds of delay in passing the Detention Order; non-supply of copies of baggage tags and search Warrants, thereby undermining the effective representation against the detention Order; and that since the Passport of the Petitioner had been impounded, no further illegal activity was possible.

(2.) ARGUMENTS were heard in great detail on 9. 1. 2008 for over one hour. Regretfully, all that time only a proxy counsel for the Respondents was available, who was unable to assist us in the matter. We have deliberately delayed the pronouncement of this Judgment, but that notwithstanding, no appearance, request or representation has been made by the counsel on record. We have, therefore, carefully perused the Counter Affidavit in an effort to gather and understand the case of the Respondents. The facts of the case can be drawn from the grounds on which the impugned Detention Order has been issued, dated 14. 2. 1997. It recites that the Petitioner was arrested under Section 35 of the foreign Exchange Regulation Act, 1973 (FERA for short) on 25. 9. 1996 by the officers of the Enforcement Directorate, Mumbai. One day earlier, on 24. 9. 1996, the Petitioner had been apprehended, his statement had been recorded, and his residence had been searched. On being produced before the Chief Metropolitan magistrate, Mumbai, he was remanded to judicial custody till 30. 9. 1996 on which date he was enlarged on bail. As is evident, the Detention Order was passed almost after the passage of five months. There is no material on record, and certainly none has been brought to our notice, because of the non-representation of the Respondents, showing investigation of any sort was undertaken between september/october, 1996 and February, 1997. There is no gainsaying that preventive Detention can be justified only if there is a clear and present possibility or danger of illegal activity (smuggling in this instance) being continued; wherever unexplained delay occurs this presumption no longer endures or exists.

(3.) ALMOST four decades ago it had been observed in Moti Lal Jain -vs-State of Bihar, AIR 1968 SC 1509 that the interest of society are no less important than that of an individual and that when these two rights collide with each other, the Court must bring in being a balance between them. A score years later, in Moti Lal Jain -vs-State of Bihar, AIR 1968 SC 1509 t. A. Abdul Rahman -vs- State of Kerala, (1989) 4 SCC 741 = AIR 1990 SC 225 the Supreme Court opined that "when there is unsatisfactory and unexplained delay between the date of detention and the date of securing arrest of the detenu such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner". These observations have been extracted and reiterated in Rajinder Arora -vs- Union of India, AIR 2006 SC 1719: 2006 (4)SCC 796. This kind of delay has been found to be fatal in P. M. Hari Kumar -vs-Union of India, (1995) 5 SCC 691 and SMF Sultan Abdul Kader -vs- Jt. Secy. to govt. of India, (1998) 8 SCC 343. A complete analysis of the law is available in the decision of the Division Bench of this Court in Dalbir Singh-vs- Union of india, 1995 I AD (Delhi) 1169 which deals with the circumstances that can be considered as constituting delay both in the passing of the Detention Order as well as its execution. Dalbir Singh also discusses the facet of non-supply of documents. Therefore, it would apply on all fours to the case in hand unless, in the decade that has elapsed since its pronouncement, the Supreme Court has varied the law. It appears to us that the law has not been changed. This is evident from a reading of Rajinder Arora, Vinod K. Chawla -vs- Union of India, (2006) 7 SCC 337 and Sheetal Manoj Gore -vs- State of Maharashtra, (2006) 7 SCC 560.