D.K. Jain, J.
1. Rule D.B.
2. The petitioner, Satwinder Singh, challenges in this habeas corpus writ petition under Article 226 of the Constitution, the order made by and in the name of the Lt. Governor of the National Capital Territory of Delhi, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the COFEPOSA). The order of detention, dated 22 March 2002, was served on the same day along with the grounds of detention of even date, formulated by the Detaining Authority, based on the subjective satisfaction of the Detaining Authority that it was necessary to detain him with a view to preventing him from smuggling goods in future.
3. The brief facts, as can be culled out from the grounds of detention, are as follows:
On 29 December 2001, when the petitioner arrived from Dubai by an Emirates Flight, he was intercepted while walking through the green channel, after collecting the checked-in baggage, which included one microwave grill convection in a cardboard carton and a hand bag. On being asked if he was carrying any gold or silver or dutiable goods, the petitioner replied in the negative. His baggage was, however, diverted for x-ray check, which showed an image of concealment of high density metal. Upon service of notice under Section 102 of the Customs Act, 1962 (for short the Act), the baggage of the petitioner was examined. On suspicion, the cover of the microwave oven was opened. A white coloured metal case was found riveted in the left side of the microwave oven, which raised more suspicion, as the same was ordinarily not a part of a microwave oven. With the help of hammer and screwdriver, the metal case was removed, which resulted in the recovery of 46 pieces of black coated yellow metal packed in thermool. These metal pieces were found to be gold of 24 carat having 999.0 purity, valued at Rs. 19,30,695/- (IV) and Rs. 24,67,256/- (MV). The same was seized along with the microwave oven.
On questioning, it was disclosed by the petitioner that the microwave oven was handed over to him by one Rakesh Kumar in Dubai and the same was to be handed over to two persons in the arrival lounge of IGI Airport. He had brought the said items for a consideration of Rs. 10,000/- with free air ticket.
Statement of the petitioner was recorded under Section 108 of the Act wherein while admitting the recovery of the said gold in the afore-noted manner, he deposed that he was engaged in the business of buying and selling of cloth and pappad wadian in Amritsar; the said Rakesh Kumar had paid him Rs. 10,000/- when he had visited and met him in Amritsar about three months back; that he had been to Dubai earlier on two occasions in August 1999 and April 2001 and on both the occasions the entire expenses were borne by the said Rakesh Kumar.
4. The petitioner was arrested on the same day and was remanded to judicial custody from time to time. He retracted his statement on 8 January 2002. A complaint under Sections 132 and 135(1)(a) of the Act has also been filed against the petitioner.
5. It was on these facts that the Detaining Authority came to the conclusion that the petitioner had the inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented, he was likely to indulge in similar activities in future. Hence the detention order.
6. The petition is resisted by the respondents. Affidavits in opposition have been filed on behalf of the Detaining Authority and the Central Government. We have heard Ms. Sangita Bhayana, learned counsel for the petitioner and Ms. Mukta Gupta, learned counsel for the Detaining Authority.
7. Although, in the writ petition, various grounds assailing the legality of the order of detention have been raised but before us learned counsel for the petitioner has pressed only two points.
8. Firstly, it is contended that there has been inordinate and unexplained delay on the part of the Detaining Authority in considering the representation dated 14 August 2002, made by the mother of the petitioner and as such, the continued detention of the petitioner is unconstitutional and illegal, being vocative of the mandatory provisions of Article 22(5) of the Constitution. It is pointed out that the said representation was rejected only on 11 September 2002. It is, thus, asserted that the conduct of the authorities is one of total lack of sense of urgency in this behalf and, thereforee, the order of detention cannot be sustained. To substantiate the plea that under these circumstances further detention of the petitioner is illegal and void ab initio, learned counsel has placed reliance on the decisions of the Apex Court in Kundanbhai Dulabhai Shaikh vs. District Magistrate Ahmedabad & Ors. JT 1996 (2) SC 532 and in Rajammal vs . State of Tamil Nadu & Anr. : 1999CriLJ826 and two decisions of this Court in Lakhbir Singh vs. Union of India & Ors. 1996 JCC 88 and in Ms. Saeeda M.A. Saeed vs. Union of India & Ors. (Criminal Writ No. 877/98), dated 5 March 1999, to which one of us (D.K. Jain, J.) was a party.
9. It is then contended that the passport of the petitioner having been seized by the Customs department at the time of his arrest, there was no likelihood of his indulging in smuggling activities in future and, thereforee, the satisfaction of the Detaining Authority that the petitioner is likely to indulge in smuggling activities, in spite of retention of his passport by the Customs authorities, was a speculative conclusion, which shows non-application of mind on his part. On this ground also, it is urged that the impugned detention is liable to be quashed. In support of the proposition that the likelihood of the petitioner in indulging in smuggling activities is effectively foreclosed by the retention of his passport by the Customs authorities and, thereforee, the conclusion that despite the absence of passport he would continue his activities is based on no material, learned counsel has placed strong reliance on the decision of the Apex Court in Rajesh Gulati vs . Government of the National Capital Territory of Delhi and Another : 2002CriLJ4299 .
10. Ms. Mukta Gupta, learned standing counsel for the Government of the National Capital Territory of Delhi, on the other hand, would submit that since the representation of the petitioner was in Punjabi language, with no indication that it pertained to a detention under 'COFEPOSA', office of the Principal Secretary to the Government of the National Capital Territory of Delhi, to whom the representation was forwarded by the office of the Lt. Governor, had wrongly sent the same to an officer who was not dealing with the detention matters and, thereforee, some time was lost in processing the same, which included the time spent in getting it translated into English. It is asserted that there was no willful delay on the part of the Detaining Authority in considering the representation. To substantiate her stand that under these circumstances the detention did not vitiate, learned counsel has placed reliance on the decision of the Supreme Court in Sitthi Zuraina Begum vs . Union of India & Others : 2002(84)ECC712 . Similarly, on the second proposition urged by learned counsel for the petitioner, Ms. Gupta submits that having regard to the potentiality of the petitioner to indulge in such nefarious activities, which is borne out from the fact that the petitioner had visited Dubai on two earlier occasions, the seizure of the passport would not be a handicap to the petitioner to indulge in smuggling. In support, reliance is again placed on the decision in Sitthi Zuraina Begum's case (supra).
11. Thus, the first question which arises for consideration is as to whether there is an inordinate and unexplained delay in the consideration of petitioner's representation so as to render the detention of the petitioner illegal. The question with regard to disposal of a representation made by a detenu has come up for consideration before the Supreme Court and different High Courts umpteen times and while stressing the constitutional requirement of expeditious consideration of detenu's representation by the Government, as spelt out by clause (5) of Article 22 of the Constitution, it has been observed by their Lordships in a line of decisions that 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 with reasonable dispatch and to dispose of the same as expeditiously as possible. It has been held that though 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 words 'as soon as may be' occurring in Article 22(5) of the Constitution convey the message that the representation should be considered expeditiously and disposed of with due promptitude and diligence; 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 Explanationn offered by the authority is so unsatisfactory, such delay could vitiate the order of detention. (See: Rushid SK v. State of West Bengal, : 1973CriLJ656 , Smt. Shalini Soni & Others v. Union of India & Others, : 1980CriLJ1487 , Mohinuddin Alias Moin Master v. District Magistrate, Beed and Others, : [1987]3SCR668 , Rama Dhondu Borade v. Shri V.K.Saraf, Commr. of Police & Others, : 1990(25)ECC50 and Kundanbhai Dulabhai Shaikh v. Distt. Magistrate, Ahmedabad & Others, JT 1996 (2) SC 532.
12. Bearing in mind the afore-noted broad principles governing consideration of a representation made by the detenu or on his behalf, we revert to the facts in hand. It is not in dispute that the representation was made on behalf of the petitioner on 14 August 2002; it was rejected on 11 September 2002 and order of rejection was communicated to the petitioner on 13 September 2002. Dealing with the point of delay in consideration of the said representation, what is stated in the reply affidavit on behalf of the Detaining Authority is as follows:
'that the representation dated 14.08.2002, made by Smt. Satnam Kaur, mother of the petitioner was in Punjabi language and was addressed to the Lt. Governor of NCT of Delhi. It was received in the Raj Niwas, Delhi on 19.08.2002 and received in the branch of Pr.Secretary (Home) on 19.08.2002 then it was marked to Joint Secretary (S) who inadvertently marked the same to Deputy Secretary Home (General) Department on 21.08.2002 whereas the COFEPOSA matters are dealt in Home (Police-II) Department. The Home (Genl) Department sent it to Home (Police-II) Branch on 02.09.2002. On 02.09.2002 a copy of the said representation was sent to the Addl. Commissioner of Customs with the request to make the translation of the said representation into English language and also for furnishing the comments vide letter dated 02.09.2002. The comments and English translation of the representation were received from the Customs Department on 06.09.2002 at 6.00 PM through fax. 7th & 8th September 2002 were holidays on account of Saturday and Sunday respectively. On 09.09.2002 the file was put up to the detaining authority for consideration of the representation. The detaining authority considered and rejected it on 11.09.2002. and information to this effect was communicated to the detenu vide memorandum dated 13.09.2002.'
13. Since in the reply affidavit it was not clear as to which officer had dealt with the representation in various Departments and on what date, we had called upon the respondents to file an affidavit giving the precise details in this behalf. In response thereto, an additional affidavit has been filed by the Deputy Secretary (Home), which is almost on similar lines as the earlier affidavit. Relevant portion of the additional affidavit reads thus:
'It was received in the Personal Branch of the Principal Secretary (Home) on 20.08.2002 through the Lt. Governor's Office, Raj Niwas, Delhi. The Private Secretary to the Principal Secretary (Home) marked it inadvertently to Joint Secretary (S) instead of Joint Secretary (K) who deal with the matters relating to COFEPOSA, and the Joint Secretary (S) marked it on 20.08.2002 to Deputy Secretary (Home General) who on 20.08.2002 marked it to the Office Superintendent (Home General) Department where the matters relating to the jail are dealt. Since the representation was in Punjabi language and all the officers to whom the representation was marked, do not know the Punjabi language and since no one knew that the matter was pertaining to COFEPOSA and hence urgent, it was kept lying in the Home General Department and only after when it was ascertained from some person knowing the Punjabi language that it was a COFEPOSA representation, which is dealt in Home (Police-II) Department, same day i.e. on 02.09.2002 it was sent to the Home (Police-II) Department. On the same day a copy of the said representation was sent to the Addl. Commissioner of Customs with the request to make the translation of the said representation into English language and also for furnishing the comments vide letter dated 02.09.2002. The comments and English translation of the representation were received from the Customs Department on 06.09.2002 at 6 PM through fax. 7th and 8th September, 2002 were holidays on account of Saturday and Sunday respectively. On 09.09.2002 the file was put up to the detaining authority for consideration of the representation. The detaining authority considered and rejected it on 11.09.2002 and the information to this effect was communicated to the detenu vide memorandum dated 13.09.2002.'
(emphasis by us)
14. From the afore-extracted replies on behalf of the Detaining Authority it appears that the entire delay in consideration of the representation is sought to be attributed to a solitary fact that since the representation was in Punjabi language and none of the officials, who had dealt with it, knew the said language, it was forwarded to a Branch which was not dealing with the matters relating to detention under COFEPOSA. However, at the same time, there is not even a whisper in the two affidavits as to how after a lapse of eleven days, ultimately, on 2 September 2002, it was detected that the representation is against a detention under the COFEPOSA, and was sent to the Customs authorities for translation into English. To verify as to how and why the representation was shuttling for eleven days between two wings in the same Department namely, Home, we have summoned the original file of the case maintained in the said Department. The said file depicts a sorry state of affairs in the matter of consideration of the representation. We find that the representation was received in the Office of the Lt. Governor on 19 August 2002; on the same day it was forwarded to the Principal Secretary (Home); on 20 August 2002 itself (wrongly given as 21 August 2002 in the first affidavit) it crosses five tables but is then laid to rest up to 2 September 2002, apparently in the office of Joint Secretary (Home).
15. We are constrained to observe that the afore-noted movement of the representation reflects the lackadaisical approach of the senior officers concerned who, evidently, did not bother to have the contents of the representation examined from a Punjabi knowing person. We are of the view that the representation made on behalf of the petitioner has not been given prompt and expeditious consideration it deserved as per the Constitutional mandate. We are unable to agree with learned counsel for the Detaining Authority that the delay in disposal of the representation occasioned only because the officers concerned did not know Punjabi language. We have no hesitation in observing that the delay occurred because of the indifferent attitude of the officials in the Home Department, an important wing of the government. Even if we assume for the sake of argument that none of the officials, who had the occasion to deal with the same, knew Punjabi language, it was imperative for them to immediately find out as to what was the subject-matter of the letter/representation received from the office of the Lt. Governor. May be, it contained some information with regard to the security of the State. They could not simply pass on the buck to the next officer in routine. The entire exercise of forwarding the representation from one desk to another on 20 August 2002 and then the same remaining with one officer till 2 September 2002, for no rhyme or reason, reflects the casual and cavalier attitude of the Department concerned even on a document forwarded to them by the office of the Lt. Governor. This, to say the least, is disconcerting. We leave it at that.
16. The ratio of the decision of the Supreme Court in the case of Sitthi Zuraina Begum case (supra), relied upon by learned counsel for the respondents, is not applicable to the facts of the present case. In that case, it has been noticed that instead of making the representation to the Detaining Authority or the State Government or the Central Government, the detenu made representation to the President of India, who had nothing to do with the order of detention. Since that representation was also in the regional language, it had to be sent for translation. Under these circumstances, the Court observed that considering the volume of petitions received by the President's Secretariat and the fact that the petition received in regional languages have to be translated and then forwarded to the concerned Ministry, it took about 20 days to complete the process and, thereforee, the time taken in processing the representation in the President's Secretariat could not be said to be excessive so as to term the delay as inordinate in considering the representation. As noted above, it is not the case here. As per the second additional affidavit, dated 13 February 2003, filed by the Deputy Secretary (Home), four letters were received in the office of the Principal Secretary (Home) from the office of the Lt. Governor and only one letter was in regional language i.e. Punjabi. In the instant case, the representation was made to the Detaining Authority as was required to be done in terms of the grounds of detention and had to be considered with due promptitude.
17. We are, thereforee, of the considered view that in the present case there has been inordinate delay on the part of the Detaining Authority in the disposal of the representation. The delay in consideration of the representation between the period 20 August 2002 to 2 September 2002 has not been satisfactorily explained. This, in our view, is sufficient to hold that the rights of the petitioner under Article 22(5) of the Constitution have been violated. On this short ground alone, the order of detention stands vitiated and the petitioner deserves to be released forthwith.
18. Since we have come to the conclusion that the detention of the petitioner is rendered illegal on the afore-noted ground, we deem it unnecessary to deal with the second point, raised by learned counsel for the petitioner.
19. For the foregoing reasons, we allow the writ petition; make the rule absolute; quash further detention of the petitioner under the order of detention, dated 22 March 2002, and direct that the petitioner shall be released forthwith unless required to be detained in any other case. Operative portion of this order shall be communicated to the Jail authorities forthwith for compliance.