TMI Blog2013 (4) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... for convenience) arrived from Dubai by Air India flight No.AI-984. He was carrying one trolley hand bag. After he was cleared through green channel, he was stopped by the Assistant Commissioner of Customs on duty. When his personal search was conducted, it was noticed that he had concealed two packets in his undergarments near his groin area and two packets under the knee caps worn on calves. On removal of his pants, four plastic packets wrapped with cello tape, which were kept inside his cycling shorts and knee caps worn by him on his calves were recovered. Detailed examination of these four packets resulted in recovery of 3086 gms. of 22 kt. and 1004 gms. of 18 kt. gold chains. The total seized gold was valued at ₹ 95,35,932/-. The detenu s statements under Section 108 of the Customs Act, 1962 were recorded. On perusal of the proposal and accompanying documents sent by the sponsoring authority, the detaining authority passed the aforementioned detention order. 4. We have heard, at some length, Mr. K.K. Mani, learned counsel appearing for the detenu. He assailed the detention order on two counts. Firstly, he contended that the detenu through his lawyer submitted his rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cchu Devi Choraria v. Union of India and others[1980) 4 SCC 531], Kamleshkumar Ishwardas Patel etc. etc. v. Union of India and others[(1995) 4 SCC 51], Kundanbhai Dulabhai Shaikh (supra) and Rekha v. State of Tamil Nadu[(2011) 5 SCC 244]. 5. So far as the second point urged by the counsel viz. that there is no independent consideration of the representation by the detaining authority is concerned, we must mention that this point was not raised in the petition nor urged before the High Court. It is not even raised in the present appeal. Ordinarily, we would not have allowed the counsel to raise any point in this court, which was not urged before the High Court. However, we are mindful of the decision of this Court in Mohinuddin @ Moin Master v. District Magistrate, Beed Ors.[(1987) 4 SCC 58], where this Court has held that the habeas corpus petition cannot be dismissed on the ground of imperfect pleadings. We have, therefore, allowed learned counsel to canvass this point. In support of his submission that the detention order is liable to be set aside if the detaining authority does not consider the detenu s representation independently, counsel relied on the judgments of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the High Court nor was it taken in the petition and, therefore, the detenu should not be allowed to raise it at this stage. Counsel submitted that in any case, the affidavit of the detaining authority clearly establishes that there is independent consideration of the representation by the detaining authority. The appeal, therefore, deserves to be dismissed. 8. At the outset, we must note that on a query made by this Court as to whether the detenu wants to press this appeal in case the detenu is already released from detention, counsel for the detenu submitted that he has instructions to press the appeal because if the detention order is set aside by this Court, the proceedings initiated against the detenu under the provisions of the Smugglers and Foreign Exchange Manipulators Act, 1976 will automatically lapse. We, therefore, proceed to deal with his submissions. 9. Learned counsel urged that the gravity of the offence is irrelevant in a preventive detention matter. We entirely agree with this submission and, hence, it is not necessary to refer to the judgments cited by him on this point. 10. We shall first deal with the submission that the detaining authority has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court has stated that if a person is in custody and, there is no imminent possibility of his being released, the rule is that power of preventive detention should not be exercised. In this case, the detenu was released on bail on 20/8/2011 and the detention order was passed on 16/4/2012. Thus, when the detention order was passed the detenu was not in custody. Therefore, this judgment has no application to the present case. The fourth judgment, which is stated to contain a new point, is Saeed Zakir Hussain Malik v. State of Maharashtra[(2012) 8 SCC 233]. In that case, the detention order was set aside on the ground of delay in passing of the detention order and delay in execution of the detention order. We have carefully perused the affidavit of the detaining authority. The detaining authority has stated what steps were taken and how the proposal submitted by the sponsoring authority was processed till the detention order was passed. The sponsoring authority has also filed affidavit explaining steps taken by it till the proposal was submitted. The High Court has rightly held that the said explanation is satisfactory. In this connection, reliance placed by the High Court on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, it appears from the affidavit of the detaining authority that the detenu is a resident of Mangalore in the State of Karnataka. The affidavit of Ravindra Kumar Das, Deputy Commissioner of Customs, COFEPOSA Cell, CSI Airport, Mumbai, indicates that because the detenu was a resident of Mangalore in the State of Karnataka, the order of detention, grounds of detention and the accompanying documents were forwarded to the State of Karnataka and the order of detention, therefore, could be served on the detenu only on 10/5/2012. In the peculiar facts of this case, in our opinion, the High Court has rightly rejected this submission. We endorse the High Court s view on this point. 12. We shall now turn to the submission that there is delay in disposal of the detenu s representation by the State Government. Several judgments have been cited by learned counsel for the appellant. It is not necessary to refer to all of them because they reiterate the same principles. We may begin with the observations of this Court in Francis Coralie Mullin v. W.C. Khambra[AIR 1980 SC 849]. The relevant portion of the said judgment reads thus: The time imperative can never be absolute or obsessiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be a breach of constitutional imperative and it would render the continued detention of the detenu illegal. That does not, however, mean that every day s delay in dealing with the representation of the detenu has to be explained. The explanation offered must be reasonable indicating that there was no slackness or indifference. Though the delay itself is not fatal, the delay which remains unexplained becomes unreasonable. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or the range of delay, but how it is explained by the authority concerned. If the inter departmental consultative procedures are such that the delay becomes inevitable, such procedures will contravene the constitutional mandate. Any authority obliged to make order of detention should adopt procedure calculated towards expeditious consideration of the representation. The representation must be taken up for consideration as soon as such representation is received and dealt with continuously (unless it is absolutely necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 23/6/2012 was not sent to the detaining authority immediately. In Pebam Ningol Mikoi Devi, seven days unexplained delay in forwarding the representation to the Central Government was held to be fatal. In Aslam Ahmed Zahire Ahmed Shaik, the detenu had handed over his representation to the Superintendent of Jail on 16/6/1998 for onward transmission to the Central Government. It was kept unattended for a period of seven days and, as a result, it reached the Government 11 days after it was handed over to the Superintendent of Jail. The Superintendent of Jail had not explained the delay. Relying on Vijay Kumar v. State of J. K.[(1982) 2 SCC 43], the continued detention of the detenu was set aside. At the cost of repetition, we must note that in this case, the Superintendent of Jail has not filed any affidavit explaining delay. Therefore, this delay, in our opinion renders continued detention of the detenu, illegal. 17. We would like to make it clear that the delay in disposal of the representation of the detenu has vitiated only the continued detention of the detenu and not the detention order. In Meena Jayendra Thakur v. Union of India[(1999) 8 SCC 177], this Court was consid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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