SANT LAL RAHI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application has been filed for issuance of a writ of habeas corpus after quashing the order of detention passed on 7th of July, 1988 by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue (hereinafter referred to as the Joint Secretary) under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Ordinance, 1988 (7 of 1988) published in the extraordinary issue of the Gazette of India on 4th of July, 1988 (hereinafter referred to as the Ordinance) , contained in Annexu re-I to the writ application.

(2.) The short facts for disposal of this writ application are that on 9-5-1988 the petitioners were arrested in connection with Custom Case No. 13 of 1988 under Section 135 of the Customs Act, 1962 (Act No. 52 of 1962) (hereinafter referred to as the Act) and the said case was pending in the court of the Presiding Officer, Special Court for trial Economic Offence, Muzaffarpur (hereinafter referred to as the Special Court). When the petitioners were in jail in connection with aforesaid substantive case an order of detention was passed on 7th of July, 1988 by that Joint Secretary under Section 3 (1) of the ordinance stating therein that it was necessary to detain the petitioners in order to prevent them from engaging in transportation and purchase of narcotic drugs which are some of acts within the meaning of illicit traffic as defined under Section 2 (e) of the Ordinance. The order of detention along with the grounds was served upon the petitioners on 9-7-1988 in jail. Thereafter, it appears that on 10-8-1988 the petitioners were granted bail by this Court in the substantive case, referred to above. On 27-7-1988 the petitioners rued a representation which was received by the Government on 1-8-1988 and the representation was rejected on 2nd of September, 1988. After observing the formality of referring the matter to the Advisory Board, the detention of the petitioners was confirmed by the Central Government on 13-9-1988 and meanwhile, the present writ application was rued challenging detention of the petitioners.

(3.) Leaned Counsel appearing on behalf of the petitioners has raised several points in support of this writ application, but in my view, it is not necessary to refer to all of them, because this writ application is bound to succeed on a very short question, that is, that the representation of the petitioners was not disposed of with utmost expedition. On thus question, it may be stated that even from that counter-affidavit filed on behalf of the respondent Union of India, it would appear the undue delay was caused in disposal of the representation rued on behalf of the petitioners. In this connection, I may usefully quote paragraph 17 of the counter-affidavit filed on behalf of the respondent-Union of India, which runs thus:with regard to para 2 of the writ petition, it is stated that the petitioners sent a joint representation dated 27-7-88 which was received on 1-8-88. The authorities acted promptly and on the same day, comments from the Collector of Customs, Preventive, Patna were called. for and the Collector, in turn, obtained the comments from the Assistant Collector of Customs, Preventive, Muzaffarpur. The comments dated 16-8-88 of the Asstt. Collector were received under the cover of Collector of Customs (Preventive) , Patnas letter dated 26-8-1988, on 29-8-88. The papers were processed immediately thereafter and put upto the Detaining Authority on 2-9-1988. The Detaining Authority considered the said representation on 2-9-1988 itself. On the same day the fact or rejection was communicated to the petitioners vide memo dated 2-9-1988. These memos were sent to Bhagalpur Jail for service. The Superintendent returned the same intimating that they are not lodged in that jail. The memos were re despatched to Muzaffarpur Jail for service. A copy of the memo was also sent to the petitioners Advocate. It is further stated that no copy of the said representation was received through the jail authorities, but only through the petitioners Advocate. From the aforesaid statements in the counter affidavit it becomes clear that the representation filed by the petitioners was received by the respondent-Union of India on 1-8-1988 and on the same day comments were called for from the Collector, Customs (Preventive) , Patna, who, in his turn, referred the matter to the Assistant Collector of Customs (Preventive) , Muzaffarpur and he submitted his comments on 16-8-1988. It is not known when the letter from the Central Government was received by the Collector, Customs (Preventive) , Patna, and on which date he called for the comments from the Assistant Collector, Customs (Preventive) , Muzaffarpur. Why the Assistant Collector, Customs (Preventive) , Muzaffarpur has taken 16 days time in preparing the comments is not known. The matter does not rest here. The comments of the Assistant Collector of Customs (Preventive) , Muzaffarpur, are dated 16-8-1988 and according to the counter-affidavit, the said comments were forwarded by the Collector; Customs (Preventive) , Patna under his letter dated 26-8-1988 to the respondent-Union of India. It does not stand to reason as to how ten days would be taken in merely preparing a forwarding letter by the Collector, Customs (Preventive) , Patna to the Union of India by which comments of the Assistant Collector, Customs (Preventive) , Muzaffarpur were forwarded. No reason whatsoever has been assigned as to what the Collector, Customs (Preventive) , Patna was doing for these full ten days. It was for the respondent-Union of India to justify the action of its officer in dealing with representation of the petitioners, but they have miserably failed therein either by making statement in the counter affidavit or producing original file relating to detention of the petitioners.