BALDEV SINGH ARORA Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition bas been brought under Article 226 of the Constitution of India read with Section 482. Cr. P. C. for quashing the detention order dated March 8, 1988 passed by respondent No. 2 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act and the subsequent declaration dated 15th April, 1988 made under Section 9(1) of the COFEPOSA Act. Various grounds have been raised for challenging the detention order as well as the continued detention but it is not necessary to refer all the grounds because this petition is liable to succeed on a very short ground.

(2.) It has been pleaded in Para 12 of the Writ Petition that a representation dated September 22. 1988 was sent through Superintendent of Jail. Patiala to the detaining authority for revocation of the detention order but the same was not dealt with promptly and the respondent be called upon to explain the delay made in considering the said representation.

(3.) The counter has been filed in the shape of affidavit of Shri S. K. Chaudhary, Under Secretary, Govt. of India. Ministry of Finance. Department of Revenue and in Para 12 of the affidavit it is mentioned that the said representation was received in the Department on 5th October, 1988 although it was sent by Superintendent. Central Jail, Patiala vide his letter dated September 27, 1988 and the detaining authority forwarded the same for para-wise comments to the sponsoring authority on October 6. 1988 and the para-wise comments were received on November 2, 1988 and thereafter the detaining authority rejected the representation on November 3, 1988 and Memorandum of rejection was despatched on the same day. It was not clarified in the affidavit as to when the Memorandum of rejection was received by the detenu. However, in the rebuttal affidavit it has been pleaded on behalf of the detenu that the said Memorandum of rejection was received by the detenu on November 11, 1988. However, it is clear from the contents of the affidavit of the Under Secretary that no explanation whatsoever bas been furnished in respect of the period October 6, 1988 to November 2, 1988. The sponsoring authority has taken somewhat unusual time in furnishing the comments. It was incumbent upon the respondents to explain as to why so much time was taken by the sponsoring authority in furnishing the comments. After the counsel for the petitioner had completed his arguments, counsel for the respondents made a request that this court may call for the record in order to find out as to why delay had taken place at the level of the sponsoring authority in furnishing the comments or some more time may be granted for filing some additional affidavit to explain the said delay. The record shows that notice was issued to the respondents in this writ petition for November 15, 1988 and counsel for the respondents had appeared on the 16th November 1988 and the rule was issued. Thereafter an application was moved by the petitioner for getting the case fixed for regular hearing and notice of the same was issued for the 7th December, 1988 and Shri Satpal, counsel for Union of India had appeared on that date and time was sought for filing the counter. The case was adjourned to December 14, 1988 and then it was fixed for regular hearing. So, it is not the case where sufficient time has not been granted to the respondents to file the proper affidavit the counsel for the respondents argued that the comments were to be obtained from the customs authorities as well as from the airport authorities and that is why the delay has occurred. The sponsoring authority as well as the airport authority are located in Delhi itself. So, it is really surprising that they have taken so much time in furnishing the comments on the representation of the petitioner. At any rate it was incumbent upon the respondents to explain satisfactorily the delay caused in considering the representation. If any delay had occurred at the level of sponsoring authority in furnishing the comments, it was incumbent on the respondents to explain the said delay as well. In Rajlnder Prasad Khanna v. Union of India and others, on similar facts delay was not explained on the part of the sponsoring authority, the detention order was said to be vitiated. In Para 5 of the judgment it was clearly mentioned that a contention was raised on behalf of the detaining authority that delay has not occurred at the level of the detaining authority and it had occurred at the level of Directorate of Revenue Intelligence and thus the detention order should not be quashed. This contention was not accepted and it was held that delay has to be explained, may be it has taken place at the level of the sponsoring authority. The counsel for the respondents has urged that the sponsoring authority has not been impleaded as respondent in the writ petition, thus delay which has occurred at the level of sponsoring authority should not be given, any importance because the sponsoring authority had no opportunity to give the explanation. I do not think that the sponsoring authority was required to be joined as a respondent separately when the Union of India has been impleaded as a party, through Secretary, Govt. of India, Ministry of Finance. So, the impugned orders stand vitiated on the ground that the representation of the petitioner was not considered with due promptitude and the delay made in considering the representation remind unexplained. I allow the writ petition, make the rule absolute and quash the detention order. Petitioner be set at liberty, if not required in any other case. Petition allowed