9911796707
TMI Blog2015 (5) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... eized 132.882 MTs of Red Sanders from Nhava Sheva and another quantity of 18.350 MTs of Red Sanders valued at Rs. 53.15 crores and Rs. 7.34 crores respectively. The detenu was arrested on 4.10.2013 under the provisions of the Customs Act and produced before the learned Magistrate, 8th Court, Esplanade, Mumbai , who remanded the detenu to the custody of DRI till 10.10.2013. In the meanwhile on or about 4.10.2013 the detenu filed a retraction of the statement made on 3.10.2013. The DRI custody was extended upto 7.10.2013. Thereafter he was remanded to judicial custody upto 30.10.2013 which was subsequently extended till 29.11.2013. The learned Magistrate then extended judicial custody till 6.1.2014. 3. Meanwhile, the bail application made by the detenu was rejected by the learned Magistrate on 29.11.2013. It appears that DRI applied sections 467, 468, 471, 472 and 484 of IPC in various remand applications and eventually the detenu was granted bail on 3.1.2014 after being in custody for 91 days by virtue of the fact that DRI fai led to file complaint during statutory period of 90 days. On 8.1.2014 a further statement was recorded under 108 of the Customs Acts by the DRI . The show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in between there was holiday on 30.11.2014 being Sunday. It is further stated that there were holidays on 7.12.2014, 12.12.2014 and 13.12.2014 on account of Sunday and Second Saturday and Sunday respectively. The parawise comments were received from the Sponsoring Authority on 17.12.2014 and based on these comments and the record available with the Detaining Authority a reply was prepared and submitted on 17.12.2014 for consideration of and orders of the Detaining Authority. It came to be endorsed by the Deputy Secretary concerned on 18.12.2014. The Principal Secretary (Appeals & Security) and the Detaining Authority after due consideration of the representation and the parawise remarks of the Sponsoring Authority rejected the representation on 18.12.2014. The reject ion was conveyed on 19.12.2014 through Nashik Road Central Prison. 6. Thus, it is seen that the time taken from receipt of representation dated 26.11.2014 to the final rejection is 23 days. Meanwhile the delay in forwarding parawise comments is at least of 20 days. 7. Apropos the representation addressed to the State Government , the same was received by the State Government on 26.11.2014 and parawise comments we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.12.2014 calling for parawise comments. The parawise comments were then forwarded on 16.12.2014 i .e. 19 days after the receipt of representation by the DRI. It further appears that on 19.12.2014 the DRI received communication from the office of the Detaining Authority stating that the representation of the detenu was rejected by the Detaining Authority on 24.12.2014. This date is material and we will shortly advert to the same. It is further stated that vide communication dated 26.12.2014 from the Government of Maharashtra, it was conveyed that the representation was rejected by the Additional Chief Secretary, Home. No doubt, the affidavit states that the detenu was a prime member of the organized syndicate indulging in the smuggling of Red Sanders, a natural resource prohibited for export under the provisions of Foreign Trade Policy and restricted as per Appendix II of CITES. However, it is further stated that Red Sanders are found only in India and safeguarding this endangered species it is obligation of the State. 10. While we can appreciate the importance of protecting the endangered species like Red Sanders and the same needs to be approached with great amount of zeal, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 within reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal , since such a breach would defeat the very concept of liberty-the highly cherished right --which is enshrined in Article 21 of the Constitution. 20. True, 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 word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find surprising is that it is stated case of Respondent no.1 that the decision on the representation was taken on 20.12.2014 and that it was communicated after 21.12.2014 since 21.12.2014 being Sunday. The file is said to have been received from Nagpur in Mumbai on 23.12.2014 after which the rejection intimation was sent to Nashik Road central prison. If that be so, we wonder how in the affidavit on behalf of DRI it is stated in paragraph 11 that it received a communication from the office of Detaining Authority to the effect that the representation made by the detenu was rejected by the Detaining Authority on 19.12.2014. Surely, there is more than meets the eye. Since admittedly, the Additional Chief Secretary had rejected the representation on 20.12.2014 there is no explanation on how communication of the said decision could have been received by the DRI on 19.12.2014. We are, therefore, convinced beyond all reasonable doubt that the delay is not properly explained and continued detention of the detenu is in violation of the constitutional mandate of Article 22(5) of the Constitution of India and order of detention stands vitiated. The petition must , therefore, succeed. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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