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1992 Supreme(Del) 532
High Court Of Delhi
DINESH BHARDWAJ - Appellant
Versus
UNION OF INDIA - Respondent
CRI.W. 179 of 1992
Decided On : 11/05/1992
Manoj D.Taneja, PRADIP JAIN, Tirlok Kumar
Delay in disposal of representations and consideration of irrelevant documents by the detaining authority vitiate a detention order under Section 3 (1) of the COFEPOSA Act.
Headnote:
COFEPOSA ACT - SECTION 3 (1) - DETENTION ORDER - DELAY IN DISPOSAL OF REPRESENTATION - IRRELEVANT DOCUMENTS CONSIDERED - DETENTION ORDER VITIATED.
Fact of the Case:
The petitioner was detained under Section 3 (1) of the COFEPOSA Act for attempting to smuggle foreign currency out of India. He challenged the detention order on the grounds of delay in disposal of his representations and consideration of irrelevant documents by the detaining authority.
Finding of the Court:
The court found that there was an unexplained delay in the disposal of the petitioner's representations, which violated his right to a prompt and expeditious disposal of his representations. The court also found that the detaining authority had considered irrelevant documents, which showed a non-application of mind.
Issues: 1. Whether the delay in disposal of the petitioner's representations violated his right to a prompt and expeditious disposal of his representations? 2. Whether the consideration of irrelevant documents by the detaining authority vitiated the detention order?
Ratio Decidendi: The court held that the unexplained delay in the disposal of the petitioner's representations violated his right to a prompt and expeditious disposal of his representations. The court also held that the consideration of irrelevant documents by the detaining authority vitiated the detention order.
Final Decision: The court allowed the petition, quashed the detention order, and ordered the release of the petitioner.
( 2 ) IN brief the facts of the case are that on the basis of a specific information received on 14/11/1991, the petitioner was intercepted by the Custom Officers in the Custom Departure Hall of Indira Gandhi International Air port Terminal II, while the petitioner was leaving by Air France Flight. The petitioner had already checked baggage consisting of one maroon coloured play boy suitcase. This baggage was examined in the presence of two independent witnesses and was found to contain 110,000 US$ and pound 60,670. Besides this other used clothes and food stuff etc. were also found. On personal search a recovery of 50 US$ and 40 Hong Kong Dollars was made. Besides this visiting cards were also recovered. The petitioner failed to produce any documentary or other evidence for the lawful export of the said recovered foreign currency equivalent to Indian Rs. 54,97,685/ -. The said foreign currency was seized under Section 108 of the Customs Act on the belief that the same was attempted to be smuggled out of India in violation of the restrictions imposed on the export thereof.
( 3 ) THE statement of the petitioner under Section 108 of the Customs Act was recorded on 14/11/1991 wherein he admitted the aforesaid recovery from his possession. The petitioner stated in his statement that one Rakesh Kumar Sharma of Mahalaxmi Guest House often used to send foreign currency out of India through carriers. It is he who paid the money besides return ticket and money for expenses for staying abroad. The petitioner was lured by free ticket and money to cary the foreign currency at the instance of Rakesh Sharma. It was in this background that the respondent came to the conclusion that the petitioner knowingly engaged himself in smuggling goods out of India.
( 4 ) THE petitioner was still in Jail when the order of detention was passed and this fact the detaining authority knew when passing the impugned order. The impugned order was passed under Section 3 (1) of the COFEPOSA Act and was served on him in jail. The order was passed apprehending that in the event of petitioner being enlarged on bail, he will continue to act in such prejudicial manner in the near future. In the grounds of detention, the petitioner was also made aware that if he so like he could make representation to the Central Government and the Advisory Board, (COFEPOSA), High Court of Delhi, Sher Shah Road New Delhi through the Superintendent of Jail wherein the petitioner was detained. He was also made aware that he could be heard by the Advisory Board in due course, if the board consider it essential to do so. The relied upon documents were also supplied to the petitioner.
( 5 ) THE petitioner has assailed the impugned detention order on various grounds but during the course of arguments counsel for the petitioner has restricted his argument on two grounds namely, the delay in disposal of his representations and secondly irrelevant documents have been considered by the detaining authority which show s non application of the mind of the detaining authority.
( 6 ) I have heard Mr. Tirlok Kumar counsel for the petitioner and Mr. Pradeep Jain counsel for the UOI and considered the arguments addressed at the bar. In the rejoinder filed by the petitioner on 1/09/1992 an additional ground was taken up that his representation dated 1/05/1992 addressed to the Advisory Board till date has nut been disposed. Opportunity was given to the Union of India to file the counter to this allegation, but in spite of that opportunity having been afforded no reply has be
