Sangeetha Kirti Patel Vs. R.A. Rajeev Principal Secretary (Appeals and Security) And detaining authority Home Department Govt. of Maharashtra and Others - Court Judgment

Judgment

Oral Judgment: (A.S. Gadkari, J.)

1. The present Petition for a writ of Habeas Corpus under Article 226 of the Constitution of India has been filed by the wife of the detenu – Kirti Vanabhai Patel for quashing and setting aside the detention order bearing No.PSA-1214/CR-36(1)SPL-3(A) dated 29^th September, 2014 in exercise of the powers conferred by Section 3(1) of the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974 ('COFEPOSA' for short). By the said order the Respondent No.1 has directed that the said Kirti Vanabhai Patel be detained under the COFEPOSA Act, 1974 with a view to prevent him in future from abating the smuggling of goods as well as from engaging in transporting or concealing or keeping smuggled goods. The record discloses that the detention order dated 29th September, 2014 along with the grounds of detention was served on the detenu on 13^th November, 2014 and subsequent thereto the detenu has been lodged in Central Prison at Nashik Road.

2. Shorn of unnecessary details the brief facts leading to the passing of the impugned detention order dated 29th September, 2014 by the Respondent No.1 can briefly be stated thus:-

On 15th July, 2013 the officers of the Directorate of Revenue Intelligence ('DRI' for short) seized about 132.882 MTs of Red Sanders from Nhava Sheva and another quantity of 18.350 MTs Red Sanders valued at Rs.53.15 Crores and Rs.7.34 Crores respectively. During the course of investigation by the officers of the DRI, it is revealed that the detenu was an active member of the cartel that indulged in smuggling of Red Sanders in an organised manner over a period of time. It was further revealed that the detenu was instrumental in the attempted smuggling of 151 MTs of Red Sanders valued at about Rs.60 Crores in export containers that were seized on 15th July, 2013 and 18th July, 2013 at J.N.P.T., Nhava Sheva and Panvel. That Red Sanders is a natural resource covered under CITES (Convention on International Trade of Endangered Species of Wild Flora and Fauna), export of which is prohibited under the EXIM Policy. It was further revealed in the investigation that the detenu indulged into handling the task of storage of Red Sanders at discrete locations around Navi Mumbai and stuffing thereof in export containers at such locations for shipment through Nhava Sheva port in the guise of onions under third party IECs. That the detenu had also taken on rent a warehouse at village Pendhar, Taluka Panvel which was used for storage of Red Sanders and for filling the same in the export containers. The investigation also revealed that the detenu was closely associated with persons viz. Santosh Pandurang Patil, Ajay Kumar Sharma @ Manish Verma and others and was instrumental in storage of all consignments of Red Sanders that were dispatched from Delhi and received by Ajay Kumar Sharma at Bhiwandi and Kalamboli. It was further revealed that the detenu himself was instrumental in shipment of four container loads of Red Sanders in the past to U.A.E. under the guise of onions.

That after taking into consideration the evidence and all the documents, the investigating agency/ sponsoring agency placed the same before the then detaining authority and the detaining authority after being subjectively satisfied, issued the present detention order dated 29th September, 2014, as contemplated under Section 3(1) of the COFEPOSA Act. The said detention order is impugned herein.

3. We have heard Mr. T. Chezhiyan, learned counsel appearing for the Petitioner, Mr. J.P.Yagnik, learned counsel appearing for the Respondent Nos.1 and 2 and Mrs. Aruna Pai, learned APP for the Respondent No.3 at length and have also perused the record produced by the learned counsel appearing for the respective parties.

4. The learned counsel appearing for the Petitioner has confined his challenge to the impugned order to ground No.6(f) of the Petition which deals with the breach of Article 22 (5) of the Constitution of India, without prejudice to various other grounds which he has raised while assailing the order of detention. He submitted that the Respondent Nos.1 and 2 have failed to consider the representation of the Petitioner promptly and expeditiously and there is delay in deciding the said representation. The learned counsel appearing for the Petitioner further contended that the Division Bench of this Court in the case of a co-detenu in Criminal Writ Petition No.4618 of 2014 on similar ground has quashed and set aside the impugned detention order therein on the ground that the continuous detention of the detenu was held to be illegal and vitiated for breach of the mandate of Article 22(5) of the Constitution of India. He placed on record a copy of the said judgment and order dated 20th January, 2015 passed in Criminal Writ Petition No.4618 of 2014 in support of his contention.

5. After notice, in response to the Petition, Sanjay Dagadu Khedekar, Deputy Secretary, Home Department, Government of Maharashtra, Mantralaya, Mumbai has filed a detailed affidavit dated 16th March, 2015 on behalf of the Respondent Nos.1 and 2 thereby opposing the Petition. Mr. M.P. Madhavan, Assistant Director, D.R.I. has also filed a detailed affidavit dated 20th March, 2015 opposing the Petition.

6. The Respondent Nos.1 and 2 in their affidavit dated 16th March, 2015 in response to ground 6(f) of the Petition have tried to explain the delay which has occurred at the instance of the detaining authority at the first instance and secondly at the instance of the Additional Chief Secretary i.e. the Respondent No.2 herein. With respect to the delay which has occurred at the instance of the detaining authority, it has been stated that as per the record the representation dated 3^rd December, 2014 submitted by Sangeetha Kirti Patel on behalf of the detenu addressed to the Principal Secretary (Appeals and Security), Government of Maharashtra was received by the office of the detaining authority on 8th December, 2014. It is further stated that as paragraph Nos.1, 2, 3, 8, 9, 10 and 11 of the representation were pertaining to the sponsoring authority and as the comments of the sponsoring authority were necessary, parawise comments on those points were called by letter dated 9th December, 2014. That the said letter dated 9th December, 2014 was received by the office of the sponsoring authority on 12th December, 2014. It is further averred that as the name of Sangeetha Kirti Patel stated to be wife of the detenu was not known to the sponsoring authority, the premises mentioned in the representation and claimed to be the residence of the detenu was visited by the officers of the sponsoring authority on 2nd January, 2015 for causing necessary verifications regarding the authenticity of the person and her relation with the detenu. It has further been stated that as the sponsoring authority did not forward the parawise comments till 16th December, 2014, a reminder letter was sent to the sponsoring authority of the even date. That on 2nd January, 2015 the detaining authority received the parawise comments from the sponsoring authority. The assistant submitted parawise comments on 2nd January, 2015. The concerned Deputy Secretary was on leave on 2nd January, 2015 and 3rd January, 2015. The Principal Secretary (Appeals and Security) and the detaining authority after considering the representation and parawise comments of the sponsoring authority rejected the representation on 3rd January, 2015 and forwarded the reply to the Petitioner on 3^rd January, 2015 itself.

7. As far as representation dated 2nd December, 2014 made by the Petitioner who is the wife of the detenu, addressed to the Additional Chief Secretary (Home), Government of Maharashtra is concerned, it is stated in the said affidavit that the representation dated 2^nd December, 2014 was received by the office of the detaining authority on 8th December, 2014. The comments of the sponsoring authority with respect to the paragraphs in the representation were called for by letter dated 9th December, 2014. A reminder letter was sent on 16^th December, 2014 as the comments were not received by then. The sponsoring authority forwarded the parawise comments by its letter dated 2nd January, 2015 which were received by the Additional Chief Secretary on the same day. The assistant submitted the parawise comments on 2nd January, 2015 which were endorsed by the Section Officer on the same day. That Mr. Amitabh Rajan, the then Additional Chief Secretary (Home) retired on 31st December, 2014 and was replaced by Mr. K.P. Bakshi. New Additional Chief Secretary (Home) joined the office on 1st January, 2015. The Additional Chief Secretary directed to discuss the matter in person on 7th January, 2015. That after discussion and after considering the representation and parawise comments from the sponsoring authority, the Additional Chief Secretary rejected the representation on 8th January, 2015 and the said fact was informed to the Petitioner on 8th January, 2015 itself.

8. Mr. M.P. Madhavan, Assistant Director, DRI in his affidavit dated 20th March, 2015 while explaining the delay caused at their instance while forwarding the parawise comments to the detaining authority and the Additional Chief Secretary in response to ground Nos.6(f) and (g) of the Petition has stated that the representation dated 2^nd December, 2014 was made by Sangeetha Kirti Patel, claimed to be the wife of the detenu and a copy thereof was received by the sponsoring authority on 12th December, 2014 calling for the parawise comments. That as the name of Sangeetha Kirti Patel stated to be wife of the detenu was not known to the sponsoring authority, the premises mentioned in the representation and claimed to be the residence of the detenu was visited by the officers of the detaining authority on 2^nd January, 2015 for causing necessary verifications regarding authenticity of the person and her relation with the detenu. That statement of Sangeetha Kirti Patel was recorded under Section 108 of the Customs Act, 1962 wherein she admitted that she was not in possession of any original document in support of her claim to be legally married to the detenu. That the said facts are incorporated in the parawise comments that were forwarded to the detaining authority and the Central Government on the same day i.e. 2nd January, 2015. That as per the communication dated 3rd January, 2015 received from the office of the detaining authority, it was stated that the representation dated 2nd December, 2014 made by Sangeetha Kirti Patel was rejected. It has further been stated in the affidavit that as per the communication dated 13th January, 2015 received from the Central Government, it was informed that the representation dated 2^nd December, 2014 made by Sangeetha Kirti Patel was rejected.

9. As far as the delay at the instance of the sponsoring authority in forwarding the parawise comments to the detaining authority is concerned, while explaining the said delay it has been stated in paragraph No.4.5 at page No.151 as under:

“As regards the delay in forwarding the parawise comments by the Sponsoring Authority, it is submitted that at time of receipt of the above said representation, the concerned officer was preoccupied with the following urgent work relating to representations made by two other Co-detenues, which were received prior to the present representation of the detenu –

(i) furnishing parawise comments on representation dated 24.11.2014 made by Co-detenu Ajay Kumar Sharma @ Manish Verma, (ii) furnishing parawise comments on Cr. W.P. No.4618 of 2014 filed in the Honourable Bombay High Court by Smt. Anita Ajay Sharma on behalf of Co-detenu Ajay Kumar Sharma @ Manish Verma, (iii) filing of affidavit on behalf of the Sponsoring Authority in W.P. No.4618 of 2014 filed in the Honourable Bombay High Court by Smt. Anita Ajay Sharma on behalf of Co-detenu Ajay Kumar Sharma @ Manish Verma, and (iv) attending to the requirements for the proceedings before the Advisory Board in respect of Co-detenues Ajay Kumar Sharma @ Manish Verma and Dattatray Chandrakant Bodake. Besides, the period between 12.12.2014 (date of receipt of the representation) and 02.01.2015 (date of furnishing of parawise comments) there were eleven holidays which have to be excluded from the time taken for furnishing parawise comments on the representation dated 02.12.2014 made by Smt. Sangeetha Kirti Patel. ”

10. The Division Bench of this Court while deciding the detention matter with respect to the co-detenu – Ajay Kumar Sharma in its judgment and order dated 20th January, 2015 has taken a judicial note with respect to the spacious plea which has been taken by the sponsoring authority que the “holidays” which were intervening in forwarding the reply / comments is concerned, has observed in paragraph No.13 as under:-

“We have noticed that in may cases, holidays are cited as reason for delay. This has become routine. What has been lost sight of is the fact that the detenu continues to be incarcerated without trial even on holidays. The mere fact that four holidays intervened still does not justify the delay in considering and communicating the decision on the representation. If indeed the mandate of Supreme Court is to be honestly carried out by the Authority, the Authority should endeavour to prepare themselves to deal with such representation more expeditiously in the interest of upholding the law.”

It is pertinent to note here that though the sponsoring authority was well aware about the view taken by a co-ordinate Division Bench of this Court while deciding Writ Petition No.4618 of 2014, in case of the co-detenu that it has taken a judicial notice of the plea with respect to “holidays” is concerned, the sponsoring authority did not bother to take its note and improve upon itself.

11. At this stage a useful reference can be made to the celebrated judgment of the Apex Court in the case of Rama Dhondu Borade v. V.K. Saraf reported in (1989) 3 SCC 172, wherein the Hon'ble Supreme Court while dealing with the right to make a representation under Article 22(5) of the Constitution of India by a detenu and its legal implications has observed in paragraphs 19 and 20 as under:-

“19. The propositions deducible from the various reported decisions of this Court can be stated thus:

The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty--the highly cherished right--which is enshrined in Article 21 of the Constitution.

20. True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.”

12. Thus, while reverting back to the facts of the present case, it is to be noted here that, the delay in deciding the representation by the detaining authority between 12th December, 2014 and 2nd January, 2015 of about 20 days has not at all been explained, least satisfactorily explained by the detaining authority. It has further not been explained in the said affidavit that why it took 20 days for effecting the verification of the identity and the address of the Petitioner and the detenu. The affidavit is totally silent on this aspect.

13. It is further to be noted here that why it took 25 days i.e. from 8^th December, 2014 till 2nd January, 2015 by the office of Additional Chief Secretary to receive the parawise comments from the sponsoring authority has not at all been mentioned by the affiant. It is also pertinent to note here that the detaining authority by its letter dated 8th December, 2014 had already called for the parawise comments from the sponsoring authority and in that event, what was necessity for the Additional Chief Secretary to again call for the remarks has also not been explained in the said affidavit. It is further pertinent to note here that why it required 6 days by the new Additional Chief Secretary to discuss the matter with the concerned authorities i.e. from 1^st January, 2015 on which he assumed the charge till 7th January, 2015, the date on which he discussed the matter with the concerned authorities. The affidavit is also silent on this aspect and the delay of 6 days is remained unexplained. Thus, there is in all 31 days delay, which has not at all been explained, least satisfactorily explained at the instance of the Additional Chief Secretary i.e. the Respondent No.2.

14. It is also clear from the record that there is unsatisfactory explained delay of about 21 days i.e. from 12th December, 2014 to 2^nd January 2015 at the behest of the sponsoring authority in forwarding the parawise comments to the detaining authority and according to us the said delay has not at all been satisfactorily explained by the sponsoring authority.

15. In view of the ratio laid down by the Supreme Court in the case of Rama Borade (supra), it is thus clear that in the present case also the unsatisfactory explanation offered by the authorities concerned in deciding the representation made by the Petitioner expeditiously and disposed of it with due promptitude and diligence and with a sense of urgency, without avoidable delay, has vitiated the order of detention. We are of the confirmed opinion that the breach of Article 22(5) of the Constitution of India at the behest of the Respondents has rendered the continued detention of the detenu illegal. We are therefore of the view that the delay as stated herein above is not satisfactorily explained and continued detention of the detenu is in violation of the constitutional mandate of Article 22(5) of the Constitution of India and the order of detention stands vitiated. We, therefore, allow the Petition and pass the following order:-

i) The Petition is allowed. Rule is made absolute in terms of the prayer clause (a);

ii) The detenu – Kirti Vanabhai Patel is directed to be set at liberty forthwith, if not required in any other case.