POONAM LACHWANI Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution challenging the order of detention of the detenu passed in exercise of the power conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) (COFEPOSA, for short). The applicant who is the wife of the detenu has filed this application on behalf of the detenu. The order of detention was passed by the Joint Secretary to the Government of India, Ministry of Finance, Revenue Department on the 15th June, 1998. The said order of detention was executed against the detenu on 19-6-98 and since then he is in detention in the Dum Dum Central Jail, Calcutta. The detention, as the order purportingly announced, was considered necessary with a view to preventing the detenu in future from smuggling goods. From the background narrated and reflected in the said detention order it appears that on 27-7-97 the detenu, posing himself as a uniformed officer of Bhutan Customs booked with Jet Airways four packages containing wrist watches and stereo system, all of foreign origin, at Bagdogra Airport, West Bengal as cargo from Royal Bhutan Customs for onward despatch to Mumbai under a false declaration that the packages contained 'Dry Cell'. It also appears that the detenu used fake certificate,rubber stamp, signature etc. which were not genuine. It further appears that he used false name, telephone number, etc. The grounds of detention also show that on 8-10-97 the residence of the detenu was searched, and seizure was also made and the detenu was arrested on that very day. However he was released on bail on 27-11-97. His signatures were also verified by getting the same examined by hand writing expert. The hand writing expert submitted his report on 1-1-98. Show-cause notice was issued to the petitioner under Section 124 of the Customs Act, 1962 on 22-1-98. The detention order was passed on 15-6-98 as we have noted and the same was executed on 19-6-98. Documents relied upon in the grounds of detention were served on the detenu on 22-6-98.

(2.) The detenu made a representation against his detention to the Joint Secretary, Ministry of Finance, Deptt. of Revenue, Govt. of India on the 4th July, 1998 through the Superintendent of Dum Dum Central Jail. The said representation dated 4-7-98 was rejected by the Joint Secretary on 3-8-98 and it appears that the said representation was also rejected by the Secretary to the Government of India, Department of Revenue on 6-8-98. The detenu also made another representation, referable to Section 11, to the Secretary, Govt. of India, Ministry of Finance, Department of Revenu on 11th July, 1998 through the Superintendent, Dum Dum Central Jail. The said representation was however not yet disposed of at least till the filing of the affidavit-in-reply on 21-8-98.

(3.) In challenging the detention of the petitioner it is submitted by the learned Advocate for the petitioner that there was inordinate and unexplained delay in passing the order of the detention inasmuch as the seizure at Bagdogra Airport was made on 27-7-97 and the detention order was passed on 15-6-98. The question is whether this time-gap by itself is sufficient to warrant a finding that the order of detention is bad due to lapse of time. In this connection we may however refer to the decision of the Supreme Court in Rajendra Kr. v. State of Gujarat, AIR 1988 Sc 1255 : (1988 Cri LJ 1775). There it has been held inter alia that the rule as to unexplained delay in taking action is not inflexible and that in cases of mere delay in making of an order of detention under a law like the COFEPOSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. In the present case, as we have seen, after the seizure of the offending articles at Bagdogra Airport a lot of investigation had to be made at different places to locate the identity of the culprit and to trace out necessary evidence connecting the involvement of the culprit with the offending acts of smuggling. Obviously, this necessarily took some time and as we have seen, after collection of necessary materials show-cause notice was issued to the detenu towards the end of January 1998. In paragraph 12 of the affidavit-in-opposition it is stated, and we must say rightly, that the processing time in this case has to be reckoned from end of January 1998 and considering the fact that some of the documents considered relevant for proper appreciation of the case by the detaining authority were called for and placed before the detaining authority (which consumed some time) and also considering the usual process involved in preparing the grounds of detention and scrutiny of the large amount of materials relied upon, the time-gap that has elapsed cannot be said to be unduly long in this case. It is also further stated therein that considering the nature of the prejudical activity indulged in by this detenu, the role and involvement therein, the modus operandi applied by him, the detaining authority was satisfied that the nexus between the date of incident and passing of this detention order as well as the object of the detention had been maintained. Having regard to the facts and circumstances of the case and the explanation offered regarding the time-gap before passing of the order of detention we are of the opinion that it cannot be said that the detention order is vitiated or bad for any delay in passing the same.