GOPIKISHAN PARIHAR Vs. JOINT SECRETARY COFEPOSA

JUDGEMENT

(1.) MR . J.P. Joshi has emphatically argued that in this case, the contraband silver slabs and the truck were seized form the possession of Umeda Ram on 1.8.92 but the detention order Annex.l was passed on 23.12.93 i.e. after a lapse of four months and twenty three days; that this delay has not been explained by the respondents and in such circumstances, the nexus between the alleged prejudicial activity and the necessity for detention of the petitioner had clearly been snapped and, therefore, the impugned order for detention is liable to be quashed on this ground alone, especially when the petitioner was neither concerned with the contraband silver nor was the owner of the seized truck.

(2.) ON the other hand, Mr. P.P. Chaudhary, learned Counsel for the respondents has submitted that it is true that smuggled silver was seized on 1.8.92 but thereafter the matter was thoroughly investigated and proper documentary evidence was collected and after detailed investigation, the Sponsoring Authority sent the proposal for the detention of the petitioner to the detaining authority, who after processing the case and after due application of mind, issued detention order Annex.l. A perusal of the pleadings and the relevant record shows that immediately after the seizure of the contraband silver on 1.8.92, the Custom Authorities conducted search of the shop of M/s Anil Traders and house of Harish Chandra. On 2.8.92, the house of the petitioner was also searched and incriminating documents regarding the ownership and possession of the truck RNJ 159 namely the agreement to sale dated 27.8.88. Registration Certificate and Insurance policy of the said truck and the photographs of the petitioner were seized. From the statement of Umeda Ram dated 2.8.92 recorded Under Section 108. Customs Act, complicity of the petitioner with the smuggled slabs was prima facie made out. On 4.8.92, the Superintendent (RDF), Customs, Jodhpur issued summons against the petitioner directing him to appear before him on 10.8.92 but the petitioner did not turn up. Again summons dt. 24.8.92 was issued against him for appearing before the Custom Authorities on 1.9.92, but he avoided to appear before the Customs Authorities for his statement Under Section 108 of the Act of 1962. It appears that the petitioner had filed an application under Section 438 Cr.P.C. before the learned Sessions Judge, Jaipur seeking his anticipatory bail. The learned Sessions Judge vide his order dt. 3.9.92 passed an ad interim order to the effect that if the petitioner appeared before the Custom Authorities on 18.9.92 for his statement Under Section 108 of the Act of 1962, then he should not be arrested till 21.9.92. Thereafter, the petitioner appeared before the Custom Authorities on 18.9.92 and his statements were recorded on that day and also on 19.9.92 wherein he stated that he had no connection with the seized contraband silver and the truck. However, keeping in view the statements of Harish Chandra, Madanlal and Umeda Ram and the documents pertaining to the truck, a detailed investigation was conducted by the Custom Authorities and it was found that the alleged agreement to sale dt. 25.5.91 in favour of Madanlal was a fabricated and manipulated document because the said document was not even registered by Shri Roop Dan Ratnu, Notary, in his register. As per affidavit of Shri Mahendra Prasad, Joint Secretary, Cofeposa, further investigation in the matter was carried upto 12.11.92. Thereafter the proposal for detention of the petitioner was sent by the Addl. Collector, Customs, Jodhpur to the Sponsoring Authority i.e. the Collector, Customs, Jaipur, who in turn after processing the case, sent the relevant case record alongwith the proposal to respondent No. l. Thereafter the matter was put up before the Screening Committee, consisting of four independent senior Bureaucrats of Govt. of India. On 25.11.92, the Screening Committee approved the detention after due application of mind. Respondent No.1 after calling for translation of all the documents in Hindi issued the impugned detention order dt. 23.12.93 Annex.l.

(3.) IN Yogendra Murari v. State of U.P. and Ors. : 1988CriLJ1825 , the detention order was passed four months' after the incident and the detenu was in custody during that lime. It was held that there was no undue delay by the Detaining Authority in passing the detention order. The Hon'ble Apex Court observed that it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay and that it is necessary to consider the circumstances in each individual case to find out whether the delay had been satisfactorily explained or not.