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High Court Of Delhi
DALBIR SINGH - Appellant
Versus
UNION OF INDIA - Respondent
CRIMINAL APPEAL 605 of 1994
Decided On : 02/14/1995
Section11 — Representation thereunder — The order of detention passed by the State Government — The representation addressed to the State Government can be entertained only under Section 21 of General Clauses Act and not under Section 11 of the Act — Rejection of the representation under section 11 — Proper.
Preventive Detention - Delay — Of 15 months in passing the order of detention — No hard and fast rule regarding the length of time which can be regarded as sufficient to snap the nexus between the alleged prejudicial activities and the order of detention — Delay does not lead to inference of absence of sufficient material or that the subjective satisfaction is not genuine.
Delay — Of 15 months in passing the order of detention — The delay duly explained — Time taken for collecting up to date material which was necessary to arrive at the subjective satisfaction of the detaining authority — Order of detention not vitiated.
Delay in execution — Delay of about 2 months — Detenue absconding — Non exercise of power under Section 7 of COFEPOSA does not lead to inference of neglect — Delay must by explained so as to show that the nexus between the incident and detention is not snapped.
Held:
Delay in executing a detention order, if satisfactorily explained, cannot vitiate the detention. If the detenu has been absconding or trying to evade arrest till he surrendered after imitation of procedure under Sections 82 and 83 Cr. P.C, the delay cannot be fatal Mere fact that powers under Section 7 of COFEPOSA have not been invoked may not lead to inference of neglect. Delay due to lack of co-ordination between the detaining authorities and the officers executing the warrant may not also be fatal. If detenu was, in spite of frequent search, not found at his known residential address, that could be a valid Explanationn. Delay in translation of documents etc. is relevant. Delay for which the detenu is attributable, such as his moving Courts, is not fatal. Delay to be fatal must be of such length and remain unexplained so as to snap the nexus between the incident and the detention.
Subjective Satisfaction of detaining authority — Consideration of irrelevant documents — Documents which are innocuous or neutral cannot vitiate the subjective satisfaction of the detaining authority.
Sometimes a document may be such that there is every chance of the detenu contending that it is a relevant document which ought to have been placed before the detaining authority and also communicated to him so that he could send an effective representation. In order to obviate such a contention, it is possible that the sponsoring authority may like to place those documents which fall on the boundary line or about which he is not sure before the detaining authority and the latter may also read them, refer to them and send copies thereof to the detenu. We cannot understand how in such a situation a question of non- application of mind by the detaining authority can be raised.
The same reasoning must, in our opinion, be applied where the documents are of a totally neutral or innocuous content or relate to historical facts or other innocuous events which have taken place up to the date of detention. Referring to them in the detention order or sending copies thereof to the detenu cannot, in our opinion, be said to make the subjective satisfaction invalid. Nor can it be said to be a case of non-application of mind.
( 1 ) THE petitioner has been detained under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the COFEPOSA) by the State Government by an order dated 28. 4. 1993 of the Deputy Secretary (Home) of the National Capital Territory of Delhi, (2nd respondent ).
( 2 ) THE incident occurred on 21. 12. 1992 when the petitioner reported at the Customs departure hall, after clearing from immigration to travel to Hongkong on flight dated 21. 12. 92. After customs clearance pursuant to his declaration, he was stopped and on personal search, it came to light that he had concealed foreign currency equivalent to Rs. 1,49,462. 00 in his rectum. Petitioner could not produce evidence of lawful possession. It is said that he made a statement on 21. 12. 92 under Section 108 of the Customs Act, 1962 admitting that he was illegally carrying the currency and that he was doing so for Rs. 5,000. 00 which he was to receive from one Mohan Singh at Hongkong to whom he was to handover the foreign currency. It is not necessary to refer in detail to other part of his statement except that he was doing this on various visits to Hongkong, Bangkok or Singapore.
( 3 ) SECRUTINY of the passport revealed that he had gone abroad 11 times w. e. f. 11. 2. 92 upto 27. 11. 92 (On 17. 2. 92, 4. 3. 92, 4. 4. 92, 19. 5. 92, 8. 6. 92, 12. 6. 92, 13. 8. 92, 23. 8. 92, 2. 9. 92, 2. 11. 92 and 27. 11. 92 ). Petitioner was arrested under the Customs Act and produced before the ACMM, New Delhi on 22. 12. 92 and remanded to judicial custody upto 5. 1. 93. The petitioner gave his address as JG II, 50, Vikas Puri, Delhi and H. No. 1304/19 Jhanda Bange Bazar, Ma Sewa, Amritsar and these addresses were found to be false. During inquiry, the place of residence was discovered as JG II 138 Vikaspuri,delhi and it was found that the house was sold away in September,1992. Bail application was filed on 23. 12. 92 and rejected on 5. 1. 93. Judicial custody was extended upto 19. 1. 93. On another bail application, petitioner was released on 15. 1. 93 subject to conditions. On 28. 1. 93, petitioner applied for withdrawal of conditions imposed with reference to his reporting to customs and the conditions were partly relaxed by the Court on 29. 1. 93. Complaint under Sections 132 and 135 of Customs Act, was filed on 22. 2. 93.
( 4 ) ON these facts, order of detention was passed on 28. 4. 93 and the same was executed on 22. 2. 94 on the petitioner in the Court of ACMM, New Delhi. Petitioner made a representation from the jail on 19. 4. 94 to the detaining authority but the same was rejected by the Deputy Secretary (Home), National Capital Territory on 3. 5. 94. On 21. 4. 94, petitioner was produced before the Advisory Board and he moved a representation before the Advisory Board again. The representation was rejected on 13. 5. 94 and on the same day, an order of confirmation of detention was made for one year. The petitioner made a further representation dated 8. 8. 94 under Section 11 of the COFEPOSA to the Central Government with a request to forward the same to the appropriate authority for revocation of detention order. The said representation was rejected by the Central Government on 22. 8. 94 and on 7. 9. 94 by the Government of the National Capital Territory, Delhi.
( 5 ) SEVERAL points have been raised by the learned counsel for the petitioner. They can be summarised as follows:
(1) There is unreasonable delay of about 5 months in passing the order of detention and this has vitiated the detention.
(2) There is unreasonable delay in execution of the order of detention.
(3) The detaining authority has taken into account "irrelevant" facts as appears from some of the documents supplied to the petitioner and this amounts to non-application of mind by the detaining authority.
(4) The representation dated 8. 8. 94 has not been considered by the proper authority in the Central Government but has be
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