Judgment:
ORDER
S.K. Agarwal J.
1.The petitioner by this petition has challenged the detention order dated 21st January, 1999 passed against him by respondent No. 2 under Section 3(1) of Conservation of Foreign Exchange and Privation of Smuggling Activities Act, 1974 (for short the Act) with a view to preventing him from engaging in transporting smuggled goods in future.
2. It is alleged that officers of Directorate of Revenue Intelligence (for short DRI), Delhi Zonal Unit intercepted three Trucks and one Tata Sumo near Majnu-ka-Tila Gurudwara, Delhi on 9.9.98 and 3470 rolls of taffet cloth valued at Rs. 76,82,200/- along with 44 gunny bags containing loose broom sticks were recovered. As the goods were of foreign origin and no document for legitimate or legal import/acquisition of the said goods was produced, the same were seized. These goods were found to have been transported from Calcutta to Delhi. The petitioner in his statement admitted his involvement and stated that he had accompanied the said trucks from Calcutta and that the owner of the goods Gopal had also came in Tata Sumo. Investigations revealed that the petitioner had knowingly undertaken and engaged himself in the prejudicial activity of transportation of smuggled goods. He was arrested and on 13.9.98 produced before the court of the Additional Chief Metropolitan Magistrate, Patiala House, New Delhi. He was remanded to judicial custody which was extended from time to time. Learned Single Judge of this court, vide orders dated 15.12.98 granted him bail on furnishing a personal bond in the sum of Rs. 2,00,000/- with one surety in the like amount. After taking into consideration the antecedents and activities of the petitioner, the detaining authority was led to the conclusion that the petitioner has an inclination and propensity to indulge in smuggling activities in an organized manner and unless prevented, he was likely to indulge in such prejudicial activities in future and the impugned detention order under section 3(1) of the Act was passed.
3. The order of detention along with the grounds were served on the petitioner on 3.2.99 and he was kept in Presidency Jail, Calcutta on 14.4.99 he was produced before the Advisory Board where he submitted a representation and on 17.4.99 a copy of the same was sent through the Superintendent Jail, Calcutta (First representation). Petitioner sent another representation to the detaining authority through his lawyer on 24.4.99 (Second representation). The petitioner filed the above petition on 17.5.99 challenging the said order of detention, inter alia, on the ground that his representations were not considered by the concerned authorities independently and expeditiously. After service of notice, respondents 1 and 2 filed a reply submitting therein that both representations of the petitioner, one sent to the detaining authority and other to the Chairman, Central Advisory Board, were considered independently and expeditiously by the respective authorities, and were rejected vide two memos dated 7.5.99.
4. After pleadings were completed and the matter was posted for arguments, the petitioner on 4.8.99 filed an application to urge additional grounds. Along with this application a copy of representation dated 1.6.99 sent by his advocate to the detaining authority was also filed (Third Representation), which was rejected by detaining authority on 10.6.99. The petitioner also filed a copy of a representation in 'Gurumukhi script' dated 3.7.99, purported to have been sent by his brother Kamaljit Singh residing in Delhi, to the President of India, Rashtrapati Bhawan, New Delhi through post (Fourth Representation). It was further stated that as the file number was wrongly mentioned on the fourth representation, a copy of the same was sent again to the President on 19.7.99, after correcting the file number. Respondents in reply affidavit submitted a date-chart showing how the third representation dated 1.6.99 was dealt with by the detaining authority and the Central Government simultaneously but independently and was rejected on 10.6.99. It was also stated that the fourth representation, purported to be in 'Gurmukhi script' and alleged to have been addressed to the President of India through post, was not received in the COFEPOSA Unit of the Ministry and thereforee, the question of its disposal by the Central Government did not arise.
5. We have heard learned counsel for the parties and have also perused synopsis of submissions filed on behalf of the petitioner.
6. Learned counsel for the petitioner argued that the impunged order of detention was liable to be quashed on the ground of non-consideration of his fourth representation dated 3.7.99 by the Central Government. It was urged that under Section 3. General Claused Act, the 'Central Government' means President, thereforee, must be considered to be a representation addressed to the Central Government and that in any case this representation ought to have been considered by Central Government after receipt of the same along with application for urging additional grounds; it was also argued that the fourth representation was different from his earlier three representations as it contained two additional grounds for revocation (a) that his third representation dated 1.6.99 was not considered independently by the Central Government (b) that he was a poor person and sole bread earner of the family. Reliance in support of this argument was placed on the two decisions of Supreme Court in Raghavendra Singh v. Superintendent, District Jail, Kanpur and Ors., 1986 Criminal Law Journal 493, Rajammal v. State of Tamil Nadu & Anr. 1998 9 AD (SC) 353 and on a decision of this court in Kishore Kumar Mundhra v. Union of India & Ors., 1989 (2) Delhi Lawyer 337. It was submitted that delay in consideration of the said representation is fatal to continued detention by virtue of Article 22(5) of the Constitution of India.
7. Learned counsel for the respondents argued that as per the petitioner's own showing his first representation dated 23rd April,99 was rejected by the Central Government on 3rd May, 99 and by the detaining authority on 29th April, 99 was considered and rejected by the Central Government as well as detaining authority independently on 7th May, 99 and his third representation dated 1.6.99 was rejected by the Central Government on 11th June, 99 and by the detaining authority on 10th June, 99. Regarding his fourth representation addressed to the President of India in 'Gurmukhi' script, it was submitted that the same was not received in the COPEPOSA Unit of the Ministry, so the question of its consideration by the Central Government did not arise and that this representation did not contain any fresh ground and non-consideration of the same did not prejudice the petitionery. Decision of Supreme Court in Phillippa Anne Duek Vs . State of Tamil Nadu & Ors., : 1982CriLJ1389 and State of Uttar Pradesh Vs . Zaved Zame Khan. : 1984CriLJ922 were relied upon in support of this contention.
8. At the outset it may be noticed that Supreme Court in Raghavendra Singh (supra) relied upon by the counsel for the petitioner made the following observations:
'We must also add that this is not a case of repeated representations to the Central Government as was the case in State of UP Vs . Zavad Zama Khan, : 1984CriLJ922 . In that case, it was held that where an earlier representation to the Central Government had been properly disposed of, the fact that the second representation to the Central Government was not so disposed of would not entitle the detenu to be release.'
9. Similar observations were also made by learned single Judge of this court in Kishore Kumar Mundhra (supra) while referring to another decision of Supreme Court in Smt. Asha Keshavrao Bhosale Vs . Union of India & Anr., : 1986CriLJ177 . It was observed that if the second representation is not similar to the representation already made, then the position may be different.
10. This leads us to the question as to whether the fourth representation of the petitioner is really different from the earlier three representations addressed to the Central Government and to the detaining authority, which were admittedly considered and rejected by the concerned authorities. It was argued that the fourth representation was different because in this representation it was stated that his third representation dated 1st June, 99 was not considered by the Central Government and the detaining authority independently and that the petitioner was the sole bread earner of his family. It may be noticed that the petitioner filed this writ petition on 17th May, 99 challenging his detention, after his first and second representations sent through his lawyer were already rejected. Thus the issue of delay in consideration of his earlier representation was already before the court. No grievance with regard to the disposal of these two representation was made by the petitioner during the course of arguments. A meaningful reading of the fourth representation shows that it is similar to his earlier representations. There is no substantial difference. Thus the non-consideratin of fourth representation did not cause any prejudice to the detenu. Rejecting a similar contention, Division Bench of this court in P. Moidu Haji & Anr., Vs . State of Orissa observed as under:-
'Another plea of Mr. Harjinder Singh was that the detenu's representation through his brother to the President of India on February 10, 1985 was mandatorily to be dealt with by the Government of India. Instead it was considered by the State Government and dismissed. It is, however, admitted that his earlier representa corporation dated February 5, 1985 made to the Government of India had been rejected by that Government vide Memorandum dated February 15, 1985 (copy Annexure 'F' ). In our opinion this argument has no force. In view of the fact that the Central Government has already considered and took a decision on the earlier representation, it was not obliged to consider the second representation, made to President of India.'
11. Before we part with this contention, we would like observe that in the grounds of detention served on the petitioner, he was specifically informed of the authorities and their addresses to whom he could as of right make representations. Relevant paras of the grounds read as under:-
'28. You have a right to make a representation to the Central Government, the detaining authority and the Advisory Board against the detention order in the manner indicated below:-
(i) Representation meant for detaining authority should be addressed to the Joint Secretary (COFEPOSA), Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, Bowing, Janapath Bhawan, New Delhi.
(ii) Representation meant for the Central Government should be addressed to the Secretary, Ministry of Finance, Department of Revenue, 8th Floor, B-Wing, Janapath Bhawan, New Delhi.
(iii) Representation meant for Advisory Board should be addressed to The Chairman, Advisory Board (COFEPOSA), Delhi High Court, Sher Shah Road, New Delhi.
29. The above grounds are communicated to you for the purpose of clause (5) of Article 22 of the Constitution of India and as required under Section 3 of the COFEPOSA Act. 1974'.
12. All the three representations dated 23rd April, 99, 29th April, 99 and 1st June, 99 were detailed representations sent by the petitioner through his lawyer. We fail to understand as to why the petitioner's brother Kamaljit Singh staying at Delhi would chose to send another representation and that also in 'Gurumukhi' script for revocation of the detention order to an authority not specified. These circumstances clearly reflect that sending of the fourth representation to an authority not specified in the order of detention to whom representation could be made as of right was nothing but an effort to create a fresh ground for attacking the detention order. Such a tendency ought to be discouraged. Under the circumstances, we are of the considered view that non-consideration of the fourth representation cannot be of any help to the petitioner as it did not prejudice his case. Supreme Court in Parkash Chander Mehta v. Commissioner and Secretary, Government of Kerala & Ors., 1986 Crl. L.J. 786 observed:-
'The society must be protected from that social menace by immobilizing the persons by detention of the persons engaged in those operations and to disrupt the machinery established for furthering smuggling and foreign exchange manipulations (Statement of Objects and Reasons of 1975 Act.) Preventive detention unlike punitive detention which is to punish for the wrong done, is to protect the society by preventing wrong being done. Though such powers must be very cautiously exercised not to undermine the fundamental freedoms guaranteed to our people, the procedural safeguards are to ensure that, yet these must be looked at from a pragmatic and commonsense point of view.'
13. It was next argued that on 9.9.98 the petitioner was arrested. He was granted bail on 15.12.98 and the detention order was passed on 21.1.99, thereforee, there was a delay of four months and twelve days in passing of the detention order. In support of this argument, reliance was placed on Rabindra Kumar Ghosel @ Buli v. The State of West Bengal 1975(4) SC 111, and Pradeep Nilkanth Paturkar Vs . Shri S. Ramamurthi & Ors. : 1994CriLJ620 . The Explanationn offered by the detaining authority is that the impugned order was passed after satisfying itself about the proximity between the date of incident and the date of passing the detention order. Admittedly, the petitioner is based at Calcutta. The goods had originated from Calcutta. The seizure was effected in Delhi. There can be no mechanical test for counting the delay in taking preventive action. In Ashok Narain v. Union of India AIR 1982 AC 1222 wherein the detention order was passed eight months after the arrest the Supreme Court declined to quash the detention order on the ground of delay since it was not occasioned by any laxity but was the result of full and detailed consideration of facts and circumstances. In this case, we feel that there was no delay in passing the order of detention as the investigations had to be carried out in different States. Decisions relied on by learned counsel for the petitioner are not applicable to the facts of this case.
14. Lastly, relying on the decisions in Sk. Nizamuddin Vs . State of West Bengal, : 1975CriLJ12 , Surinder Pal Singh v. M.L.Wadhawan & Ors. 1987 (2) Crime 449 and K.P. M. Basheer Vs . State of Karnataka & Anr. : 1992CriLJ1927 where unexplained delay in execution of the detention order for two to five months was considered to be fatal. It was argued that there was delay of 13 days in the execution of the detention order. In reply it was submitted that the detention order was passed on 21.1.99. It was sent to the executing authority at Calcutta, after due observance of procedure regarding service of the detention order. The Explanationn offered is plausible and in view of this Explanationn we are of the view that there is hardly any delay in the execution of the order.
15. We find no merit in the petition, which is hereby dismissed. No order as to costs.