ANIL KUMAR AGARWAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The present petition is directed against the order dated 22/08/1990 detaining the petitioner and for quashing the same. The petitioner has further sought for a direction for releasing him forthwith from the detention.

(2.) The incident is said to have taken place on 15-3-1990 when according to the respondents the petitioner was intercepted by the G.R.P. Mughal Sarai and from his possession six gold biscuits were recovered. Since this case relates to the Customs Department, it was transferred along with the recovered articles to the officials of the Customs Department on the same day. On 16-3-1990 the petitioner was produced before the Chief Judicial Magistrate, Varanasi and after obtaining proper remand order, he was sent to Jail. Petitioner's statement was also recorded both on 15-3-1990 and 16-3-1990 and as per his statement it is revealed that the recovered gold belonged to Ratan Kumar Agarwal of Allahabad. On 18-4-1990 the statement of Ratan Kumar Agarwal was recorded by the Customs Officials who denied the ownership of gold and stated that Anil Kumar himself is responsible for the recovered foreign gold. From the statement of the petitioner it is further revealed that the said gold was supplied by Sri Ram Gopal Sonwaliya of Calcutta. Thereafter on 30-4-1990 the report of the Collector, Customs Calcutta regarding the said supply was received at Gorakhpur, and the Special Chief Judicial Magistrate, Economic Offences was requested to grant remand for interrogation of petitioner Anil Kumar Agarwal as the address of Sri Ram Gopal Sonawallia was found fake. Since the petitioner was already bailed out on 16-5-1990, the summon was issued and served on the petitioner on 5-6-1990 for giving his statement before the Customs Authority under Section 108 of the Customs Act on 15-6-1990. Thereafter proposal of detaining the petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as the COFEPOSA) was sent to Collector, Customs, Patna on 25-5-1990 and he after considering various aspects of the matter submitted the said proposal to State of U. P. on 26-6-1990. Thereafter the said proposal was received in the State of U. P. Confidential Section 5 Lucknow on 17-7-1990 and after preliminary examination of the proposal steps were initiated to call for a meeting of the Screening Committee fixing 27-7-1990. The Screening Committee was of the opinion that there was sufficient reason for preventively detaining the petitioner under the COFEPOSA. Thereafter the matter was placed before the Officer concerned who recorded his opinion of concurrence on 4-8-1990. On the same day the file was sent to the Judicial Section which was received thereon on 7-8-1990. Along with the office note the file was put up on 8-8-1990 before the Home Secretary/Chief Minister and on 8-8-1990 and 10-8-1990 the orders were received respectively. After completing all the necessary formalities the formal order was drawn on 20-8-1990 and was issued on 22-8-1990. Subsequently, it was learnt that on 4-9-1990 the petitioner was arrested in pursuance of the present detaining order and the copies of order of detention and grounds along with all the materials on which the reliance was placed was served on the petitioner.

(3.) Learned counsel for the petitioner made attack with regard to the delay in passing the detention order namely the proximity of the actual incident and passing of the detention order. The incident is said to have taken place on 15-6-1990 while the detention order was passed on 22-8-1990. During this period the main attack was with regard to delay of about one month between 25/05/1990 which was the date on which the proposal for detaining the petitioner under COFEPOSA was sent to the Collector. Customs, at Patna and final submission of the said proposal to the State of U.P. by the State Authority on 26-6-1990. The second ground of attack was on the delay in deciding the representation of the petitioner which is in two portions; firstly, the delay being caused between the period actually when the representation is made and various notings were prepared and formalities for sending it to the State Government for formation of its opinion and secondly, the delay caused after the proposal was received by the State Government and with all the formalities and passing of the order by the State Government itself. The main contention for the latter portion of delay was that the respondents during those two periods kept the matter pending which clearly reveals that there was inaction, carelessness and casualness in disposing of the said representation and hence, the detention order is illegal. Finally, when making the reply in the rejoinder affidavit it is stated that the order of release of the detenu on bail finally was not being placed before the detaining authority and secondly, if placed, the documents constituting the said fact were never supplied to the detenu, hence the order is illegal.