ZIKUR REHMAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS Criminal Writ under Article 226 of the Constitution of India has been filed by the petitioner seeking quashing of the detention order dated July 11, 1988 passed by Respondent No.2 under section 30) of the COFEPOSA. Act and the declaration dated 2nd August 1988 passed under section 9(1) of the Act. The learned counsel for the petitioner bas given up all other grounds mentioned in the writ petition except the grounds (c) and (d) of Para 16 and also facts contained in Para 8 of the writ petition. The main grievance of the petitioner is that his representation made to the Central Government on August 1, 1988 has not been dealt with promptly. In the counter filed by Shri C. Rajan, Under Secretary in the Ministry of Finance it has been averred that the representation dated August 2, 1988 of the petitioner was received in the Ministry on August 3, 1988 and on the same day the Joint Secretary directed that the comments of the sponsoring authority be obtained. The sponsoring authority had sent the comments dated August 22, 1988 which were received in the Ministry on August 31, 1988 and thereafter the detaining authority put up the representation before the Central Government on the same day and the Central Government considered and rejected the representation on September 4, 1988 and the file was received back on September 7, 1988 and on that very day memorandum of rejection. was issued with directions to the sponsoring authority to supply to the petitioner the Urdu translation of the documents requested by the petitioner in the said representation. The counsel for the petitioner argued that no explanation has been given for the delay caused by the sponsoring authority in giving the comments on the very brief representation made by the petitioner. He has pointed out that sponsoring authority has taken 19 days in furnishing comments on the said representation and no reason has been given as to why the sponsoring authority has taken so much time in giving the said comments. The representation of which copy bas been filed and which appears at Page 27 shows that the petitioner only pointed out that he is not familiar with Hindi or English language and he only knows Urdu language and he wanted that documents which have been furnished to him in English or Hindi could not be understood by him as he knows only Urdu language and thus for enabling him to make purposeful representation, he be supplied the documents in Urdu language. He has also mentioned in the said representation that he was innocent. The detaining authority thought it fit to have the comments on the said representation. It is true that in order to decide whether the petitioner is actually familiar with Hindi or English language or not, the detaining authority needed some comments from the sponsoring authority but such a representation should not have taken about 19 days by the sponsoring authority in furnishing the necessary information on the said representation. No reason whatsoever has been given in the affidavit as to why the sponsoring authority took so much time in furnishing comments on such a brief representation of the detenu.

(2.) THE counsel for the respondent has however, argued that the detaining authority only has to show that it had acted with undue delay in considering the representation and if some delay had occurred at the level of the sponsoring authority, the detention order should not be quashed. He has placed reliance on Frances Coralie Mullin v. W C. Khombra and others. I have gone through this judgment and found that the representation in the said case was dated December 22, 1979 received on December 26, 1979 and immediately it was sent to the customs authorities for their remarks and the comments from the customs authorities were received on January 4, 1980. THE Supreme Court has mentioned that the facts of the case were undoubtedly complex and thus it was necessary to obtain the comments of the customs authorities. So in the cited case the time consumed by the customs authorities in furnishing the comments was not such which could vitiate the detention order in view of the peculiar circumstances. In the present case the sponsoring authority bas taken 19 days for furnishing comments (In a representation of the nature indicated by me above which only needed some remarks with regard to the fact whether petitioner is actually familiar with Hindi or English language or not and the material already collected could be construed to depict the innocence of the petitioner. At any rate it was for the respondents to explain as to why and how the delay of 19 days took place at the level of sponsoring authority in furnishing the comments on this representation. I have dealt with the similar question in my judgment in Basudev Banik v. Union o India and others and I held in that case that if unexplained delay occurs at the level of the sponsoring authority in furnishing the comments, the same would also vitiate the detention order. For parity of reasons I hold that in the present case the detention order and the declaration have to be set aside because there has been given no explanation whatsoever as to why the sponsoring authority bas caused delay in submitting the comments. I allow the writ petition and make the rule absolute and quash the impugned order and direct that the petitioner be released immediately unless he is required to be detained in any other case. Parties are left to bear their own costs.