1. The matter relating to the instant writ of habeas corpus resorted to be Smt. Gita Mahensaria the wife of the detenu Sri Anil Kumar Mahensaria has been assigned to me by the Hon'ble Chief Justice on difference of opinion of the Hon'ble Mr. Justice Nure Alam Chowdhury and the Hon'ble Mr. Justice Arunabha Barua. The order of detention bearing No. 673/56/2002 CUS VIII dated 20th November, 2002 passed by Shri P. C. Jha, Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue (COFEPOSA UNIT), New Delhi under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) is under challenge. By the application under Article 226 of the Constitution of India, registered as W.P. No. 8487(W) of 2003 Smt. Gita Mahensaria has prayed for issuance of writ of habeas corpus for setting her husband the detenu Anil Kumar Mahensaria at liberty by quashing the order of detention.
2. Pursuant to the said order of detention dated 20th November, 2002 the detenu Anil Kumar Mahensaria nicknamed Laddu Babu was detained in the Presidency Correctional Home on and from 6th May, 2003.
3. The facts leading to filing of the present writ petition may be summarised thus :
On 8.1.2002 a specific information was received in the Special Investigation Branch, Kolkata Customs, that several EDI and Manual Shipping Bills filed through the Customs House Agent. M/s, S.K. Kanjilal in the last week of December, 2001 and first week of January, 2002, indicated that on 05.01.2002 a few Kolkata-based exporters exported Ready-made garments, Ball-pens and Side-wheels grossly misdeclaring the quantity, description and value with an ulterior motive to avail undue draw-back worth crores of rupees.
It is alleged that on the basis of the said information seven containers (7 x 20') and one container (1 x 40') were off-loaded from the vessel M.V. Kota Bintang at Visakhapatnam Port for detailed examination. Out of the said seven 20' containers, three containers contained export consignments of M/s. Secure International and four containers contained export consignments of one M/s. Shyam Sunder Enterprises and the remaining one 40' container contained consignments of the said M/s. Shyam Sunder Enterprises and one M/s. Vidur Impex, which is the partnership firm of the detenu Anil Kumar Mahensaria.
4. It is also alleged that on examination of the said goods, the information was found corroborated, as not only substantial shortages in quantify were detected in each of the said containers but also the goods prima facie appeared to be highly over-invoiced and misdeclaration of description was also detected in respect of certain items. It has been specifically alleged that in fact there was gross difference in the actual quantity and quality of the garments, ball pens and side rubber wheels that were to be exported with that of those articles which were actually found in the containers at Vishakapattnam Port, establishing the sole intention of acquiring huge amount of foreign currency.
5. Pursuant to the seizure of the aforesaid export consignments, investigation was started by the Kolkata Customs Authorities and during investigation, as per statement of one Sri Binoy Majumdar, a partner of Customs House Agent Company of M/s. S.K. Kanjilal on 19.4.2002 and 15.2.2002 and the job-register of Customs House Agent, showed the name of Laddu Babu, nick name of Anil Mahensaria (the detenu) in the column of party name against consignment of M/s. Shyam Sunder Enterprises and it suggested prima facie, the active involvement of the detenu Anil Mahensaria in the aforesaid export effected in the name of M/s. Shyam Sunder Enterprises. It has also been alleged that the statement dated 24.7.2002 of another accused Rajen Ghosal in respect of the same matter recorded in jail custody also shows active involvement of the detenu Anil Mahensaria in the aforesaid exports effected under the name of M/s. Shyam Sundar Enterprises.
6. It has been also alleged that it appears from record that the detenu Anil Mahensaria is a habitual revenue offender and has at least 6 cases of evasion of customs duty at various stages of proceeding involving loss of revenue to the tune of more than Rs. 10 crores.
7. The main grounds for challenging the said order of detention as submitted by Mr. Farook Razack the learned Advocate for the petitioner are as follows:
(a) Firstly it is submitted that the impugned order of detention is liable to be quashed for violation of the provision under Article 22(5) of the Constitution of India read with Section 3(3) of the COFEPOSA Act, 1974.
Article 22(5) of the Constitution of India reads as follows:
'When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.'
Section 3(3) of the COFEPOSA Act, 1974, reads as follows:
'For the purposes of Clause (5) of Article 22 of the Constitution, then communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.'
It is contended on behalf of the petitioner with reference to paragraph Nos. 8,9,10 and 11 of the writ petition that the order of detention in English was dated 20th November, 2002 and it was served with the grounds of detention in English and the documents relied on were also written in English and those were served on the detenu on 6th May, 2003 but nobody explained the contents thereof in Hindi, a language known to him. The detenu made endorsement on the order and grounds of detention to supply him those translated in Hindi as he did not know and understand English and thereafter copies of the order of detention and the grounds of detention in Hindi were supplied to the detenu on 8th May, 2003 but even then the copies of the documents relied upon by the respondents were not supplied to the detenu in Hindi and as such the order of detention is liable to be quashed for violation of the aforesaid provisions of law.
Learned Advocate on behalf of the petitioner cited six reported decisions in support of his submissions viz. (i) 1962 Suppl. (2) SCR 918, Harikishan v. State of Maharashtra, (ii) : [1983]1SCR540 , Ibrahim Ahmed Batti v. State of Gujarat and Ors., (iii) : 1981CriLJ288 , Lallubhai Jagibhai Patel v. Union of India and Ors., (iv) : 1980CriLJ1479 , Nainmal Pratapmal Shah v. Union of India and Ors., (v) : [1981]1SCR640 , Icchu Devi Churaria v. Union of India and Ors. and (vi) AIR 1981 SC 762, S. Gurdip Singh v. Union of India and Ors.
(b) Secondly, it is submitted on behalf of the petitioner, with reference to paragraph 12 of the writ petition that the detaining authority failed to supply the Hindi translation of the documents relied upon by the detaining authority with due dispatch although specifically and categorically asked for by the detenu in his representation dated 26tb/27th May which vitiates the continued detention of the detenu. The respective decisions reported in (i) : 1981CriLJ353 , Kamala Kanhaiyalal Khusalani v. State of Maharashtra and Ors., (ii) : [1980]2SCR1072 , Ramchandar A. Kamat v. Union of India and Ors., (iii) : (1982)1SCC422 , Nafisa Khalifa Ghanem v. Union of India and Ors., (iv) 2002 Cr. LJ 1414, Kamala Sarkar vs. State of Bihar and Ors., had been cited by the Id. Advocate for the petitioner in support of his submissions.
It has been stated in paragraph 12 of the writ petition that due to non-supply of Hindi translation of the list of documents and the documents relied upon by the detaining authority although specifically asked for by the detenu for supply of the same serious prejudice was caused to the detenu in the matter of making effective representation against the order of detention and accordingly the order of detention is liable to be quashed by this Hon'ble Court and the detenu is entitled to be released from his continued detention in jail.
(c) Thirdly, it is submitted on behalf of the petitioner with reference to paragraph 13 of the writ petition that there is lot of discrepancy between the grounds of detention in English served on the detenu and the grounds of detention translated in Hindi and served on the detenu later on. Besides submitting that the translated version in Hindi of the grounds in English are not the correct translations, it is further submitted that the second page of the grounds in Hindi is an addition to the order and grounds of detention in English and in page 3 of the grounds of detention in Hindi, there are two paragraphs serially numbered-I and while the first paragraph is the translation of paragraph-I of the English grounds of detention which is incomplete and the next paragraph also numbered-I on the same page is entirely foreign to the grounds of detention served on the detenu in English and a completely new paragraph has been added which was not there in the original grounds of detention in English and the contents of various paragraphs in Hindi such as of paragraphs 21,24,31 are incomplete and thus the detenu has been deprived of his procedural safeguards under Article 22(5) of the Constitution of India and accordingly the order of detention is liable to be quashed.
Learned Advocate on behalf of the petitioner cited the decisions reported in (i) 1996 CCr.LR. (Cal) 162, In Re: Pushpa Soni and (ii) 1996 CCr.LR (Cal) 136, In Re: Manick Saha in support of his submissions.
(d) Fourthly, it is submitted on behalf of the petitioner with reference to the statements made in paragraph 16 of the writ petition that the long, inordinate and unexplained delay of about ten months between the date of registration of the case involving the alleged offending acts on the part of the detenu on 24th January, 2002 and the date of passing the order of detention on 20th November, 2002 raises a reasonable doubt about the genuineness of the subjective satisfaction regarding the necessity of detaining the detenu with a view to preventing him from smuggling goods in future and accordingly the impugned order of detention is liable to be quashed.
Learned Advocate on behalf of the petitioner cited the decisions reported in (i) : AIR1975SC1517 , (Sk. Sirajul v. State of West Bengal), (ii) 1993 Suppl (2) SCC 61, Pradip Nilkanth Paturkar v. S. Ramamurthy and Ors., (iii) JT 1989 (4) SC 557, Anand Prakash v. State of U.P., (iv) : 1990CriLJ578 , T.A. Abdul Rahman v. State of Kerala, (v) : 1999CriLJ3488 , Ahmed Mohaiuddin Jabbar v. State of Tamil Nadu and (vi) 2003 C Cr. LR 1042, Chaya Ghoshal v. Union of India and Ors., in support of his submission.
(e) Fifthly, it is submitted on behalf of the petitioner with reference to the statements made in paragraph No. 15 of the writ petition that the detaining authority at the time of passing the order of detention considered non-existent materials like alleged retraction made by the detenu of his statements before the detaining authority although the detenu never made any retraction of any of his statements recorded under Section 108 of the Customs Act, 1962 by the officers concerned on 21st January, 2002, 30th January, 2002 and 7th March, 2002 and such alleged non-existent retraction being considered in paragraph 55 of the grounds of detention clearly establishes non-application of mind of the' detaining authority to the materials on record vitiating the order of detention.
Learned Advocate on behalf of the petitioner replied on the decisions reported in (i) 1985 Cr.LJ 1378, Jainuddin Kabir Baghdadi v. Union of India and Ors., (ii) 1992(1) Crimes 332, Sakina Abbasbhai Vast v. Union of India and Ors., (iii) 1983 Cr.LJ 33, Mukesh Sundarlal Ghah v. State of Maharashtra, (iv) 1989 Cr.LJ 539, Ashok Kumar Jaggi v. Union of India and Ors. and (v) : 1990CriLJ2232 , Ayub alias Pappu Khan Nawab Khan Pathan v. S. N. Sinha and Anr., in support of his submission.
Learned Advocate on behalf of the petitioner also made allegations of non-application of mind of the detaining authority in the other paragraphs of the writ petition.
f) Lastly it is submitted that the affidavit-in-opposition on behalf of the respondents not being affirmed by the detaining authority or any person of his office, the contention of the petitioner shall be treated as uncontroverted and the Id. Advocate cited the decisions reported in (i) 2000 (1) CHN 42, Durgadevi Rampuria v. Union of India and Ors. and (ii) 2003 C.Cr.LR 1042, Chaya Ghoshal v. Union of India and Ors., in support of his submission.
8. The allegations of the petitioner made in the writ petition have been denied and the submissions made therein have been disputed by respondent Nos. 1 and 2 by filing the affidavit-in-opposition affirmed by one Theeda Rama Rao, an Assistant Commissioner of Customs, Special Investigation Branch, Customs House, in the office of the Commissioner of Customs, Kolkata. In the said affidavit it has been specifically denied that there was total non-application of mind in passing the order of detention by the detaining authority as alleged in-the writ petition. It has also been denied that there was delay in passing the order of detention and/or executing the order of detention against the detenu. It has been denied as well that the representation submitted by the detenu was not considered properly in accordance with law.
9. The Hon'ble Mr. Justice Nure Alam Chowdhury has mainly dealt with the submissions made on behalf of the petitioner with regard to inordinate and unexplained delay of about ten months between the date of registration of the case involving the alleged offending acts on the part of the detenu on 24th January, 2002 and the date of passing of the order of detention on 20th November, 2002 and found that such long, inordinate and unexplained delay of about ten months raises a reasonable doubt about the genuineness of the subjective satisfaction of the detaining authority regarding the necessity of detaining the detenu with a view to preventing him from smuggling goods in future, making the order of detention liable to be quashed on that ground. His Lordship has specifically pointed out that although the relevant case was registered on 24th January, 2002, the proposal for detention of this detenu was sent to the Ministry on 4.7.2002 that is after more than five months and 10 days and the Central Screening Committee considered the proposal on 18.9.2002 about two months and 14 days thereafter and the Member Secretary, Screening Committee referred the proposal to the detaining authority on 25.9.2002 and about two months thereafter the detaining authority passed the order of detention on 20.11.2002. His Lordship has held as follows:
'In view of the reported decisions referred to above in connection with the fourth submissions on behalf of the petitioner and the ratio of the decisions including the decisions reported in 2003 C.Cr. LR 1042, Chhaya Ghoshal v. Union of India and Ors., decided by this Court in which I was also a party to the judgment cited on behalf of the petitioner, I am satisfied that in view of the long and inordinate delay of passing the order of detention and there being practically no proper and satisfactory explanation on behalf of the respondents submitted before this Court by the Id. Senior Counsel Mr. S.D. Banerjee appearing for the respondents for the aforesaid delay the impugned order of detention, in my view is liable to be quashed on this ground alone.'
10. His Lordship is also of the view that the affidavit-in-opposition on behalf of the respondents should have been affirmed by the detaining authority or by his authorised representative well-acquainted with the facts and circumstances of the case and the allegations made on behalf of the petitioner cannot be denied by an officer who is admittedly working in the office of the sponsoring authority as in view of such affidavit the allegations made by the petitioner practically remain unrebutted.
11. According to Hon'ble Mr. Justice Nure Alam Chowdhury the submission on behalf of the petitioner with regard to the long, inordinate and unexplained delay as pointed out above is sufficient to quash the impugned order of detention and for that reason His Lordship has not considered it necessary to discuss the other submissions made on behalf of the petitioner and on behalf of the respondents.
12. The Hon'ble Mr. Justice Arunabha Barua has disagreed with the aforementioned view of the Hon'ble Mr. Justice Nure Alam Chowdhury. As pointed out by the Hon'ble Mr. Justice Arunabha Barua in His Lordship's judgment, the exporter, the detenu, being the master-mind grossly misdeclared the description, price, quantity and quality of the goods with the ulterior motive to grab draw-back running to several crores of rupees and on market survey and enquiry, the draw-back fraud in fact did turn out to be several crores which was to dent the economic stability of the country and jeopardise public safety. So far as the alleged undue delay from the date of registration of the case till the order of detention by the Joint Secretary dated 20.11.2002 is concerned the Hon'ble Mr. Justice Arunabha Barua is of the view that the explanation for the time taken in making the detention order appears to be fairly satisfactory. The observation made by His Lordship on this score is as under:
'As for the alleged undue delay from the date of registration till the order of detention by the Joint Secretary dt. 20.11.2002, explanation is afforded. It is contended that the detaining authority after expansive scrutiny of records/documents issued the detention order on 20.11.2002. The proposal for detention was sent to the Ministry on 4.7.2002, the Central Screening Committee considered the proposal on 18.9.2002, the Member-Secretary, Central Screening Committee referred the proposal to the detaining authority on 25.9.2002. The detaining authority asked for the sponsoring authority to depute conversant officers from Customs with all related original documents to explain the case. Accordingly the conversant officers was deputed with original records before the detaining authority and then after being fully satisfied with the documents, the detaining authority asked the detention order on 20.11.2002. The explanation for the time taken in making the detention order appears to be fairly satisfactory.'
13. It has been further observed by His Lordship that we must not be unduly over-anxious about the right to personal liberty of a citizen, who is hauled up for huge sums of money under shady deals and transactions of dangerous dimension and this is based on materials on record and no figment of imagination. As held by His Lordship, if the detenu wants the detaining authority to consider and dispose of his case with utmost expedition lest his personal liberty is infringed upon, it was for the detaining authority to see that such serious and sensitive cases are closely and elaborately examined and investigated for larger interest of society and a right decision arrived at leading to the final order of detention. His Lordship has further pointed out that it goes without saying that a fair amount of time may be legitimately required to make this expansive exercise that demands caution and circumspection so that mistakes and errors in the process of decision making at different levels of consideration as a result of any undue haste do not frustrate the very purpose of the Act. His Lordship is of the view that in this case there is no ground for believing that it was a culpable delay or that the delay is deliberately made, mala fide, that is with any ill-motive and therefore, it cannot be said that the order of detention is in any way vitiated. His Lordship is satisfied that there has been a proper application of mind by the detaining authority and beyond it the Court cannot go into its correctness. On perusal of the record His Lordship is of the view that there are enough materials to show the active involvement of the detenu in the smuggling activities and the detaining authority has considered all the relevant aspects borne out from the aforesaid records before issuing the detention order after arriving at the subjective satisfaction as to the COFEPOSA Act and therefore in the opinion of His Lordship the detenu is not entitled to challenge the subjective satisfaction arrived at by the detaining authority in this proceeding.
14. As mentioned hereinbefore, the Hon'ble Mr. Justice Nure Alam Chowdhury has placed reliance on the reported decisions cited on behalf of the petitioner and applied the ratio of the said decisions including the decision reported in Chhaya Ghoshal v. Union of India and Ors., reported in 2003 Cal. Cr.LR 1042 and arrived at the finding that the impugned order of detention is liable to be quashed on the ground of long and inordinate delay of passing the order of detention and there is no proper and satisfactory explanation on behalf of the respondents for the aforesaid delay. The contrary view of the Hon'ble Mr. Justice Arunabha Barua as reflected in the judgment of His Lordship is that the Rajen Ghoshal who is the detenu in Chhaya Ghoshal (supra) and the present detenu Anil Kr. Mahensaria do not stand in the same footing so far as the material allegations are concerned. His Lordship has noted that it was on the statement of Rajen Ghoshal that prima facie, the active involvement of Anil Kr. Mahensaria in the export effected in the name of M/s. Shyam Sunder Enterprises was disclosed and the present detenu was the mastermind or the kingpin in the activities violative of the COFEPOSA Act. As held by His Lordship, the aforementioned decisions cited by Mr. Farook Razack the learned Advocate for the petitioner do not apply since this case is different on facts and circumstances from those cited above and hence they do not apply in coming to the decision on the basis of particular facts and circumstances of this case. His Lordship has found that the impugned order of detention suffers from no illegality and infirmity.
15. The crux of the controversy centres upon the question of delay in the matter of passing of the order of detention of the detenu by the detaining authority. From the factual matrix it emerges that there was delay of about 10 months between the date of registering the specific case i.e. 24th January, 2002 and the date of passing of the order of detention which was 20th November, 2002. Prima facie such delay is quite long. It is settled law that if such long or inordinate delay remains unexplained or is not satisfactorily explained, it vitiates the entire order of detention. This proposition is well-fortified with a catena of reported decisions.
16. Mr. Sibdas Banerjee, learned Senior Advocate for the Union of India has contended that the delay caused in the matter of passing the order of detention by the detaining authority has sufficiently been explained in the affidavit-in-opposition and the supplementary affidavit filed on behalf of respondent Nos. 1 and 2. He has further argued that detention under the COFEPOSA Act which is an exception to the established principle of criminal justice in India has been resorted to by the authority concerned by observing the required procedural formalities leading to the order of detention with a view to safeguard the economic stability and ensure public safety in our country. He has also urged that there was no undue delay or non-application of mind in the matter of passing the order of detention and no reasonable doubt could arise about the genuineness of the subjective satisfaction of the authorities concerned with regard to necessity for detention of the said detenu, Anil Kumar Mahensaria who was the principal offender and engaged in smuggling activities. As contended by Mr. Banerjee the learned Senior Advocate for respondent Nos. 1 and 2, the detenu is a habitual offender smuggling goods and the said detenu being a potential threat to the smuggling of goods in future, no question of quashing the detention order which was legal and valid can at all arise. He has further urged that after expansive scrutiny of the records/documents the detaining authority had to issue the order of detention on 20.11.02 and the explanation offered by respondent Nos. 1 and 2 in the affidavit-in-opposition and in the supplementary affidavit as well is quite sufficient to explain this position.
17. Mr. Farook Razack the learned Advocate for the petitioner, on the other hand, has seriously disputed the above noted contentions raised by Mr. Banerjee the learned Senior Advocate for respondent Nos. 1 and 2. Mr. Razack has drawn my attention to the vital aspect of undue delay from the date of registration of the case till the order of detention dated 20.11.02 passed by the Joint Secretary. He has pointed out paragraph 20 in the affidavit-in-opposition filed on behalf of respondent Nos. 1 and 2 which is quoted as under:
' With regard to the statement made in paragraph 16 of the said application I deny and dispute the same. In this regard I state that the detenu is a habitual revenue evasion. The detaining authority, after extensive scrutiny of records/documents, issued the detention order dated 20.11.2002. The proposal for detention was sent to Ministry on 4.7.2002, the Central Screening Committee considered the proposal on 18.9.2002, and the Member-Secretary, Central Screening Committee referred the proposal to the detaining authority on 25.9.2002. The detaining authority by letter dated......................... asked the sponsoring authority to depute conversant officers from Customs with all related original documents to explain the case. Accordingly the conversant officer deputed with original records before the detaining authority on.................. After being satisfied with documents the detaining authority passed the detention order on 20.11.2002'.
18. On perusal of paragraph 20 of the affidavit-in-opposition as quoted above I find that two important dates have been kept blank therein. One supplementary affidavit on behalf of respondent Nos. 1 and 2 was affirmed by Mr. R.K. Gupta on 26.2.04 i.e. about seven months after the original affidavit-in-opposition was affirmed by Theeda Rama Rao on 23.7.03. It has been stated in paragraph 3 of the said supplementary affidavit that the Under Secretary to the Govt. of India by the letter dated 27th September, 2002 asked the Commissioner of Customs to depute a well-conversant officer for discussion of the proposal with all original records. In paragraph 4 of the supplementary affidavit it has been stated that the Under Secretary to the Govt. of India by the letter dated 18th October, 2002 informed the Commissioner of Customs that the proposal for detention of Anil Kumar Mahensaria had been discussed with Sri M.R. Kumar Appraiser and Sri. S.P. Balmiki Examiner from 7.10.2002 to 18.10.2002. Mr. Farook Razack the learned Advocate for the petitioner has rightly pointed out that even in the supplementary affidavit there is no clear indication about the aforesaid two dates which were kept blank in paragraph 20 of the affidavit-in-opposition filed on behalf of respondent Nos. 1 and 2.
19. From the facts and circumstances emerging from the materials on record there can hardly be any room for scepticism that the relevant case was registered on 24th January, 2002 and the proposal for detention of the detenu was sent to the Ministry after more than five months. Such proposal, as it appears, was sent to the Ministry on 4.7.2002 and the Central Screening Committee considered the proposal on 18.9.2002 i.e. about two months and 14 days after the date of sending of the proposal. It further appears that the Member-Secretary, Screening Committee referred the proposal to the detaining authority on 25.9.02 and after about two months from that date the detaining authority ultimately passed the order of detention on 20. 11.02. Mr. Razack the learned Advocate for the petitioner has contended that no explanation has been offered by respondent Nos. 1 and 2 to explain the delay for the period from 4.7.02 which was the date of sending of the proposal for detention to the Ministry to 18.9.02 on which date the Central Screening Committee considered the proposal. It has been further urged by him that no explanation has been offered to explain the delay from 25.9.02 which was the date on which the Member-Secretary, Screening Committee referred the proposal to the detaining authority till 20.11.02 when the order of detention was passed by the detaining authority. Mr. Sibdas Banerjee, the learned Senior Advocate on behalf of respondent Nos. 1 and 2, on the other hand, has contended that considerable time is essentially required by the detaining authority to examine closely such serious and sensitive cases in order to arrive at a right decision leading to final order of detention and for that a fair amount of time is needed to make this expansive exercise so that mistakes and errors in the process of decision-making must not occur.
20. Mr. Farook Razack the learned Advocate for the petitioner has contended that on the identical facts one Rajen Ghoshal alleged to be proprietor of M/s. Shyam Sunder Enterprises and alleged to have been involved in smuggling activities together with the present detenu Anil Kumar Mahensaria was ordered to be released after the order of detention of Rajen Ghoshal passed by the detaining authority was set aside by the Division Bench of this Court. In the case of Chhaya Ghoshal (supra) on pages 1051-1052 at para 13 the Division Bench held as follows:
'But it appears that on 4.7.2002 the proposal for detention of the detenu under COFEPOSA Act was sent to the Ministry and the concerned authority took time up to 20.11.2002 for passing the detention order. There was practically no proper explanation on behalf of the respondent for this delay. The learned Advocate for the respondent drew our attention to the fact that some time was consumed in observing the official formalities. But that cannot be a good ground of defence for the respondent, particularly when a person's liberty is at stake. We find no reason for the authority concerned in taking such a long time in discussing the matter with the Government officer and also for collecting the copy of the orders, as passed by the learned Chief Metropolitan Magistrate. In the affidavit-in-opposition there is practically no proper denial in respect of the allegation of the petitioner that there was undue delay in considering the proposal for detention under the Act. As such, under the circumstances, we are of opinion that there was unreasonable delay in passing the detention order, against the detenu and that delay has not been properly explained and as such we are of opinion that on that ground the detention order, as passed under COFEPOSA Act, is liable to be quashed.'
21. Mr. Sibdas Banerjee the learned Senior Advocate for respondent Nos. 1 and 2 has argued that Rajen Ghoshal who was the detenu of the said case and the present detenu Anil Kumar Mahensaria do not stand in the same position so far as the basic allegations are concerned. He has further pointed out that it was on the statement of the said Rajen Ghoshal involvement of the present detenu Anil Kumar Mahensaria in the export effected in the name of M/s. Shyam Sunder Enterprises was disclosed and the present detenu was the mastermind or the kingpin in the nefarious activities prejudicial to the interest of the economy and public safety. It has been contended by him that public interest must prevail over private interest and while dealing with the question of delay in such case of serious nature totality of the incident and nature of investigation conducted are to be looked into and detailed explanation is not required to be given.
22. Having given my anxious consideration to the rival contentions raised by Mr. F. Razack the learned Advocate for the petitioner and Mr. Sibdas Banerjee the learned Senior Advocate for respondent Nos. 1 and 2 and having gone through the materials on record I fail to subscribe to the contentions raised by Mr. Banerjee that Rajen Ghoshal and the present detenu do not stand in the same position so far as the basic allegations are concerned. There can hardly be any room for doubt that on identical facts both of them are alleged to have been involved in smuggling activities and the same set of documents were considered by the detaining authority prior to passing of the order of detention in both the cases. So in my view, the ratio of the decision of the Division Bench in Chhaya Ghoshal (supra) applies with full force to the case at hand so far as the aspect of delay is concerned.
23. As already referred to, the proposal for detention of the detenu under the COFEPOSA Act was sent to the Ministry on 4.7.02 and time was taken by the authority concerned up to 20.11.02 for passing the order of detention. It has been pleaded on behalf of respondent Nos. 1 and 2 that to observe the procedural formalities some time was consumed. But that cannot be a good ground of defence on the basis of which a person's liberty can be curtailed. In the instant case undue delay is quite discernible in the face of the materials on record and such delay in my view has, not been properly explained, As already pointed out, the proposal for detention was sent to the Ministry on 4.7.02 and the Central Screening Committee, considered the proposal on 18.9.02. There is no explanation whatsoever given in the affidavit-in-opposition or in the supplementary affidavit to explain the delay for the period from 4.7.02 to 18.9.02. That apart, on perusal of the contents of the supplementary affidavit filed on behalf of respondent Nos. 1 and 2 I find that by the letter dated 27th September, 2002 the Under Secretary asked the Commissioner of Customs to depute a well-conversant officer for discussion of the said proposal with all original records and by the letter dated 18th October, 2002 the Under Secretary informed the Commissioner of Customs that the proposal for detention of the detenu Anil Kumar Mahensaria was discussed with Sri M.R. Kumar Appraiser and Sri S. P. Balmiki Examiner from 7.10.02 to 18.10.02. No explanation has been offered for the delay from 18.10.02 to 20.11.02 on which date the detaining authority passed the impugned order of detention.
24. True, for preservation of the values of freedom of democratic society and of social order there are compulsions which may compel a curtailment for individual liberty. But it is of utmost importance that the law of preventive detention has to be justified by striking light balance between individual liberty on one hand and needs of an orderly society on the other hand. Preventive detention involves a serious encroachment on the right to personal liberty and that is why certain minimum safeguards as contemplated in Clauses 4 and 5 of Article 22 of the Constitution of India are afforded to the persons detained under the laws of preventive detention. As held by the Supreme Court in Kamlesh Kumar Ishwar Das Patel v. Union of India and Ors., reported in : 1996(53)ECC123 , these safeguards are required to be jealously watched and enforced by the Court and their rigour cannot be modulated on the basis of the nature of activities of a particular person.
25. It is settled law that whenever there is delay in making the order of detention such delay must be satisfactorily explained by the detaining authority and unless that is done, it would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority recited in the order of detention. Reference can be made in this context to Sk. Sirajul v. State of West Bengal, : AIR1975SC1517 wherein at page 80(para 2) the Supreme Court made the following observation:
' Mr. Chatterjee, learned Counsel appearing on behalf of the State of West Bengal, contended that the State was not expected to render any explanation in regard to the delay in making the order of detention and arresting the petitioner because no such complaint was made in the petition. But this is hardly an argument which can avail the State when it is called upon to answer a rule issued on a petition for a writ of habeas corpus. It is the obligation of the State or the detaining authority in making its return to the rule in such a case to place all the relevant facts before the Court and if there is any delay in making the order of detention or in arresting the detenu, which is prima facie unreasonable, the State must give reasons explaining the delay. Here there is no explanation for the delay which has occurred at both stages and in the absence of such explanation, we are not at all satisfied that the District Magistrate, Burdwan applied his mind and arrived at a real and genuine subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner. The condition precedent for the making of the order of detention was, therefore, not satisfied, and consequently, the order of detention must be quashed and set aside.'
26. In T. A. Abdul Rahman (supra) on page 748 at para 10 the Supreme Court has held that when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the casual connection has been broken in the circumstances of each case. The Supreme Court has further held on page 749 (para 11):
'When there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner,'
27. Relying on the decision of the Supreme Court in the case of T. A. Abdul Rahman (supra) and other decisions of the Supreme Court as referred to therein, the Division Bench of this Court has made the following observation in N. K. Bapna v. Union of India and Ors., reported in 1994(1) CHN 81:
'In matters relating to preventive detention any unexplained delay made by the detaining authorities in passing the order of detention, in executing the same and in considering the representation made by the detenu, makes the order of detention vulnerable and even though the order of detention is otherwise fully justified and even directly necessary, the order shall fall through because of such delay, whether made motivatedly or through callous indifference or inadvertence.'
28. In the instant case I have already pointed out that undue delay in the matter of passing of the order of detention by the detaining authority from the date when the proposal for detention of the detenu under the COFEPOSA Act was sent to the Ministry has not been properly explained nor there is any explanation for the delay for the period from the date when the said proposal was sent to the Ministry to the date when the Central Screening Committee considered the proposal. The materials on record make it quite evident that in the present case although the relevant case was registered on 24th January, 2002, the proposal for detention of the detenu was sent to the Ministry after more than five months and the Central Screening Committee considered the proposal about two months and 14 days thereafter. It further appears that the detaining authority passed the order of detention after about two months from the date when the Member-Secretary, Screening Committee referred the proposal to the detaining authority. In my view the live-link between the actual, offending act or acts and the passing of the order of detention has been snapped due to long and unexplained delay and the explanation as fought to be given on behalf of respondent Nos. 1 and 2 does not sufficiently convince me that it took the authorities concerned such inordinately long time to verify the details of a bundle of facts comprising the subject-matter of detention.
29. It need not be overemphasized that a long gap between the activities which form the ground for the order and the date of the order of detention is one of the glaring instances of undue delay and if such delay remains unexplained or is not satisfactorily explained the same would vitiate the order of detention. It is to be borne in mind in this context that unexplained delay, whether short or long, would vitiate the order of detention. The case of Pradip Nilkanth Paturkar (supra) can well be referred to in this regard.
30. Mr. Banerjee the learned Senior Advocate for respondent Nos. 1 and 2 has contended that even in absence of explanation for delay the inference cannot be drawn that subjective satisfaction arrived at by the detaining authority was not genuine. He has cited Rajendrakumar Natvarlal Shah v. State of Gujarat and Ors., reported in : 1988CriLJ1775 . In the said case as cited by Mr. Banerjee the Supreme Court has pointed out that even though there was no explanation for delay it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the detaining authority was not genuine. Golam Hossain v. Commissioner of Police, Calcutta, reported in : 1974CriLJ938 , has been referred to by the Supreme Court in the case of Rajendrakumar Natvarlal Shah (supra) on page 1261 (para 12). In Golam Hossain (supra) as referred to therein the Supreme Court has held that the credible chain between the grounds of criminal activity alleged by the detaining authority and the purpose of detention is snapped if there is too long and unexplained an interval between the offending Acts and the order of detention. The decision of the Supreme Court in Rajendrakumar (supra) has been referred to in the subsequent decision of the Supreme Court in T. A. Abdul Rahman (supra). On close scrutiny I find that the case of Rajendrakumar (supra) as cited by Mr. Banerjee the learned Senior Advocate for respondent Nos. 1 and 2 has got no manner of application to the facts and circumstance of the present case where the live-link between the actual offending act or acts and the passing of the order of detention has been snapped due to unsatisfactory and unexplained delay.
31. Mr. Banerjee the learned Senior Advocate for respondent Nos. 1 and 2 has cited another decision of the Supreme Court in Ashok Narain v. Union of India and Ors,, reported in : 1982CriLJ1729 , where the detenu was apprehended for breach of foreign exchange regulation in February, 1981 and without launching any prosecution the detaining authority detained the detenu in October, 1981. In the case of Ashok Narain (supra) the Supreme Court has found that the passage of time being the result of full and detailed consideration of facts and circumstances of the case after thorough examination at various levels it could not be said that the detention was in any way illegal when the detaining authority had fully and satisfactorily applied his mind to the question of detention. In the said case on perusal of the relevant file the Supreme Court has found that the very question whether the passage of time had made it unnecessary to order the detention of the detenu was also considered by the detaining authority. Here again I find that the decision of the Supreme Court in Ashok Narain (supra) has no application to the facts and circumstances of the case at hand.
32. It has been argued by Mr. Banerjee the learned Senior Advocate for respondent Nos. 1 and 2 that the detenu is a habitual smuggler and is a potential threat to economic stability of the country and larger national interest and so there is no question of quashing the order of detention which was perfectly legal and valid. It is worth-noting in this context that there are no materials on record to indicate that the detenu was further involved in smuggling activities after initiation of the case warranting his detention under the COFEPOSA Act. That apart, even if it is accepted for the sake of argument that the detenu is a smuggler deserving no sympathy and his activities have paralysed the economy of the country, the laws of preventive detention still afford a modicum of safeguards to the persons so detained and those safeguards must not be denied to the detenues. Rattan Singh v. State of Punjab, : 1982CriLJ146 as mentioned in the case of Kamaleshkumar Ishwardas Patel (supra) on pages 661-662 (para 49) can be referred to in this context. Relying on the decision of Rattan Singh (supra) the Supreme Court has made the following observation in Kamaleshkumar Ishwardas Patel (supra) on page 661 (para 49):
'We are not unmindful of the harmful consequences of the activities in which the detenues are alleged to be involved. But while discharging our Constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards: The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took .care to incorporate, in Clauses (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained.'
33. In Icchu Devi Choraria (supra) at pages 536-537 (para 3) the Supreme Court has held as under:
' We may point out straightaway that we are not at all happy at the thought that our order may have resulted in setting free a possible smuggler. We are not unmindful of the fact that the COFEPOSA Act has been enacted for the purpose of eradicating the evil of smuggling which is eating into the vitals of the nation like a cancerous growth and eroding the economic stability of the country and when an order is made by the Court releasing a person detained under this Act, it is quite possible that the effect of the order may be to let loose on the society, a smuggler who might in all probability, resume his nefarious activities causing incalculable mischief and harm to the economy of the nation. But at the same time we cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The Courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living.'
34. It may so happen that a smuggler may be released from detention if the detaining authority fails to observe one of the safeguards or requirements laid down by the Constitution and the law but for that reason the safeguards provided by the Constitution and the law with a view to protecting the citizen against the arbitrary and unjustified invasion of personal liberty cannot be whittled down or diluted. In the case of Icchu Devi Choraria (supra) on page 537 at para 3 the Supreme Court further observed :
'If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, howsoever wicked or mischievous he may be. The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the Courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This Court would be laying down a dangerous precedent if it allows a hard ease to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention.'
35. In view of the authorities cited above it can well be held that if there is long unexplained delay in making the order of detention, the order of detention of the detenu is liable to be quashed on that ground albeit the effect of such order of quashing may be to let loose on the society a smuggler who may resume his nefarious activities causing harm to the economy of the country.
36. For the aforementioned reasons I am of the view that since there is long, inordinate and undue delay in passing of the order of detention and no proper and satisfactory explanation has been offered on behalf of respondent Nos. 1 and 2 for such delay, the impugned order of detention is liable to be quashed on that ground alone. Since the Hon'ble Mr. Justice Nure Alam Chowdhury and the Hon'ble Mr. Justice Arunabha Barua differed in the points of view only on the question of delay in the matter of passing of the order of detention, the learned Advocates for the parties have made their respective submissions solely on that aspect and on no other points. The impugned order of detention is liable to be quashed on the ground of long, inordinate and undue delay in passing the order of detention and as such there is no necessity on my part as well to deal with any other aspect.
37. One startling feature as pointed out by Mr. Farook Razack the learned Advocate for the petitioner deserves to be mentioned. Mr. Razack has drawn my attention to the fact that the affidavit-in-opposition on behalf of respondent Nos. 1 and 2 was not affirmed by the detaining authority or any person of his office. Admittedly one Theeda Rama Rao, an Assistant Commissioner of Customs, Special Investigation Branch, Customs House employed in the office of the Commissioner of Customs, Kolkata, affirmed the affidavit-in-opposition on behalf of respondent Nos. 1 and 2 on- 23.7.03. The said Theeda Rama Rao is an officer working in the office of the sponsoring authority. Mr. Razack has rightly pointed out that there is nothing on record to show that Theeda Rama Rao had any role to play in the matter relating to detention of the present detenu. He has referred to the copy of the letter dated 18th October, 2002 addressed by the Under Secretary to the Govt. of India to the Commissioner of Customs (Port), Customs House, Kolkata which is marked as R-2 to the supplementary affidavit wherefrom it appears that two officers of the sponsoring authority Sri M. R. Kumar Appraiser and Sri S. P. Balmiki Examiner discussed the proposal for detention of the present detenu and two others with the authorities concerned. None of the said two officers of the sponsoring authority had sworn any affidavit on behalf of respondent Nos. 1 and 2. The supplementary affidavit on behalf of the said respondents was sworn by Sri R.K. Gupta who was working as Joint Secretary as well as competent authority under Section 3(1) of the COFEPOSA Act and the said supplementary affidavit was sworn by him on 26.2.04. The impugned order of detention dated 20th November, 2002 was passed by Sri P. C. Jha, Joint Secretary to the Govt. of India, Ministry of Finance, Department of Revenue. In ground XII of the writ petition, the petitioner has alleged inter alia that the detaining authority on his own showing has relied on a non-existent material/document and this betrays total non-application of mind on the part of the detaining authority vitiating his subjective satisfaction. It has been further alleged inter alia by the petitioner in ground XIV of the writ petition that the detaining authority has acted in a wholly illegal, arbitrary and mala fide manner and the resultant order of detention is based on total non-application of mind. When such allegation of non-application of mind in the making of the preventive detention was raised in the writ petition, the affidavit-in-opposition ought to have come from the detaining authority or a person who was directly connected with the making of the order. In this context reference can be made to the decision of the Supreme Court in Tsering Dolkar v. Administrator, Union Territory of Delhi and Ors., reported in : 1987CriLJ988 .
38. The sponsoring authority cannot espouse the cause of the detaining authority. In the writ petition the petitioner made allegation of withholding of the documents referred to in para 22 thereof by the sponsoring authority and as alleged, those documents were not placed before the detaining authority. When such specific allegations have been made in the writ petition, it was the duty of the detaining authority himself to affirm the counter affidavit as he alone could dispute those allegations. It is needless to point out that such allegations cannot be dealt with by the succeeding officer who derived his alleged knowledge from the record of the case. Reference can be made in this context to the decision of the Division Bench of this Court in Durga Devi Rampuria (supra) on page 51 at para 16.
39. It thus appears from the materials on record that the allegations made by the petitioner in the writ petition were denied by an officer who is admittedly working in the office of the sponsoring authority and had no role to play in the matter of taking decision relating to detention of the detenu. The allegations made by the petitioner are not controverted by the proper authority who is competent to swear affidavit-in-opposition on behalf of respondent Nos. 1 and 2 and in such even the allegations of the petitioner cannot be said to be rebutted.
40. For the foregoing reasons I respectfully disagree with the view of Arunabha Barua, J. and agree with the view of Nure Alam Chowdhury, J. and hold that the impugned order of detention of the detenu suffers from legal infirmities as pointed out hereinbefore and the same is liable to be quashed. The writ petition is accordingly allowed. The impugned, order of detention is set aside. The respondents are directed to release the detenu Sri Anil Kumar Mahensaria from custody forthwith if he is not required to be detained in connection with any other case. No further order is required to be passed on the writ petition being W. P. No. 16304(W) of 2003 which thus stands disposed of. No order as to costs.
41. Xerox certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.
Asit Kumar Bisi, J.