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1993 Supreme(Cal) 193
High Court Of Calcutta
A. M. BHATTACHARJEE, N. K. BATABYAL
N.K.BAPNA - Appellant
Versus
UNION OF INDIA - Respondent
C. O. 3720 Of 1993
Decided On : 04/21/1993
ANJAN MUKHERJI, ASHIM ROY, ASHOKE BOSE, BALAI CHANDRA ROY, BHASKAR SEN, BIMALENDU PAL, CHANDRA NATH MUKHERJI, HARJINDER SINGH, SIDHUSESVAR CHANDRA, SUSANTA BOSE
Any unexplained delay in making the order of detention, executing the order, or considering the representations of the detenu makes the order of detention vulnerable.
Headnote:
COFEPOSA ACT - S. 3(1) - PREVENTIVE DETENTION - ORDER - GROUNDS - DELAY IN MAKING ORDER - DELAY IN EXECUTION OF ORDER - DELAY IN CONSIDERING REPRESENTATIONS - EFFECT - VIOLATION OF ART. 22(5) OF THE CONSTITUTION - ORDER OF DETENTION QUASHED.
Fact of the Case:
The petitioner, Shri N. K. Bapna, was detained under S. 3(1) of the COFEPOSA Act, 1974, on the ground that he was engaged in smuggling goods. The petitioner challenged the detention order on the grounds of delay in making the order, delay in execution of the order, delay in considering the representations made by the petitioner, and non-supply of certain documents.
Finding of the Court:
The court held that the delay in making the order, delay in execution of the order, and delay in considering the representations of the petitioner were not satisfactorily explained. The court also held that the non-supply of certain documents violated the petitioner's rights under Art. 22(5) of the Constitution. Accordingly, the court quashed the detention order and directed the petitioner's release.
Issues: 1. Whether the delay in making the order of detention, delay in execution of the order, and delay in considering the representations of the petitioner were justified? 2. Whether the non-supply of certain documents violated the petitioner's rights under Art. 22(5) of the Constitution?
Ratio Decidendi: 1. The court held that the delay in making the order of detention, delay in execution of the order, and delay in considering the representations of the petitioner were not satisfactorily explained. The court relied on several Supreme Court judgments which held that any unexplained delay in making the order of detention, executing the order, or considering the representations of the detenu makes the order of detention vulnerable. 2. The court held that the non-supply of certain documents violated the petitioner's rights under Art. 22(5) of the Constitution. The court relied on a Delhi High Court judgment which held that the detenu is entitled to be supplied with copies of all documents which are referred to in the grounds of detention, even if they are not relied upon by the Detaining Authority.
Final Decision: The court allowed the writ petition, quashed the order of detention, and directed the petitioner's release.
( 1 ) I agree with the order proposed by Batabyal, J. in his judgment appearing hereinafter. In Criminal Jurisprudence we used to say that the accused shall not go free simply because the police has bungled. In matters relating to preventive detention, however, any unexplained delay made by the detaining authorities in passing the order of detention, in executing the same and in considering the representations made by the detenu, makes the order of detention vulnerable. One may resent the position in law that even though the order of detention is otherwise fully justified and even direly necessary, the order shall fall through because of such delay, whether made motivatedly or through callous indifference or inadvertence. But the position has got to be accepted in view of the ratio of the several decisions of the Supreme Court referred to by my learned brother in the judgment hereinafter appearing. In the case at hand the delay in making the order, in executing the order and in considering the representations of the detenu-petitioner, has not been satisfactorily explained, as pointed out in appreciable details by my learned brother. The order of detention is, therefore, no longer sustainable and must be struck down.
( 2 ) WE accordingly allow the writ petition, quash the order of detention and direct that the detenu-petitioner be released from detention forthwith.
( 3 ) N. K. BATABYAL, J. :- The petitioner, Shri N. K. Bapna has filed this petition under Art. 226/227 of the Constitution of India for the issue of a writ of Habeas Corpus for his release from detention by virtue of an order dated 1/01/1992 issued by Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue under S. 3 (1) of the COFEPOSA Act, 1974 as amended and other reliefs.
( 4 ) MESSRS. EAP Industries Ltd. is a Company incorporated under the Indian Companies Act, 1956 engaged in the business of Plastic compounds, Plastic film and sheets etc. At the material time the petitioner was the Managing Director of the said Company. The Company imported about 204 mts. of P. V. C. Resin from France and the said consignment landed at Calcutta Port and was cleared for warehousing at the office factory premises at Jessore Road, Calcutta by the Customs Authorities under Bill of Entry No. WR-2939 dated 2-5-90. The said consignment was transported through Trucks to the Company's factory on 4-5-90, 5-5-90 and 7-5-90. After the consignment was kept in the bonded warehouse in the factory premises, the same was backed by Bank Guarantee given by the Company that they would be cleared on payment of necessary duty. 75 mts. of P. V. C. Resin were cleared by the Company after payment of duty on 7-9-90. Subsequently, on 17-9-90 and 18-11-90 clearance of part of the stock of materials took place on payment of duties.
( 5 ) THE consignment of 2 K. H. A. Ethyle Hexanol weighing about 267. 782 mts. was imported at Kandla Port. The said consignment after unloading and clearance by the Customs Officers was transported to the premises of the Company in 25 tank lorries. One tanker met with an accident at Nagpur and the remaining tankers arrived at the factory premises between 28-10-89 and 10-11-89. The quantity of 257. 967 mts. of Ethyle Hexanol reached the factory premises. The entire quantity was unloaded in the presence of the Customs Officers and kept in bonded tanks Nos. 10 and 11. The said bonded tanks were locked by the Customs Officers and keys were kept in their custody. The Company cleared around 175 M. T. of Ethyle Hexanol on payment of appropriate customs duty and the same was cleared on 19-12-89, 21-12-89, 8-2-90, 18-2-90, 20-2-90, 13-5-90 and 26-10-90 in presence of Customs Officers. On the information that EAP Industries Ltd. was going to be closed very soon under the direction of the BIFR, New Delhi and that the Management had sold 82 MTs. of Ethyle Hexanol and 100 MTs. of P. V. C. Resin (Imported)
