TMI Blog1992 (7) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... r the petitioner was arrested on 17th April, 1990 by the Custom Officers from outside the Indira Gandhi International Airport, New Delhi, Along with Shahzad Ali, on the allegation that he was engaged in smuggling or carrying smuggled goods Along with Co-accused Shamsuddin Ismail. The gold was concealed in the washing machine and it weighted 4 kg. and 450 gms. A complaint under Sections 135 and 132 of the Customs Act against the petitioner was filed on 26.5.90 on which show cause notice was also issued. Petitioner was produced before the Magistrate. He was remanded to the judicial custody and was released on bail on 29th November, 1990. When he was under arrest his statement was recorded but after being released on bail he extracted the said statement on the ground that the same was obtained under coercion. The detention order dated 5.6.91 was served on the petitioner on 10th July, 1991. (3) On 30th July, 1991, petitioner made a representation under Article 22 of the Constitution of India asking for documents and legible copies of the documents. On 13.8.91 petitioner send a representation to the Advisory Board. On 16.8.91 he made another representation to the Advisory Board when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Dubai: that his brother has been visiting Indian on various occasions for various purposes and that his brother received a telephone call from Dubai that Guffar Ali Khan had see a washing machine through one person who would be wearing white shirt and blue trouser and petitioner in to receive him at the Airport. It was also stated the Shahzad Ali was to receive the same passenger. (7) Petitioner knew Shahzad Ali for the last two to three months. Gaffar Ali was a good friend of Kamaljit Singh, petitioner's brother. Petitioner and Shahzad Ali reached the Airport and waited for the passenger from Dubai who was to bring the washing machine with the concealed gold. It was further stated that the petitioner knew about the concealing of the gold. Previously also whoever had been bringing the concealed gold used to be paid ₹ 2,000.00 . Further voluntary statement was recorded on 18.4.90 in which petitioner indicated that a person named Patel was also involved who happened to be a friend of Gaffar Ali. He further disclosed that every time the machine was used to bring concealed gold weighing from 2 to 5 Kg.; that in the compressor of the air conditioner 30 to 35 gold biscuit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaining the delay the respondent has attributed the delay to the procedural formalities, because of which it book time in issuance of the detention order. Instead of explaining its action and justifying the delay the respondent simply took the plea that live link did not snap. The facts which have come on record shows that the incident took place on 17.4.90. Complaint was filed on 26.5.90. Show cause notice was issued by the customs Department in adjudication proceedings on 9th October, 1990. This shows the investigation was complete. But the detention order for the same incident was passed on 5.6.91 i.e. approximately after a period of 14 months. Thus, to my mind, the link stood snapped. There could not have been any proximity between the incident and the avowed purpose of the detention namely the preventing and smuggling activities. As per the respondent's own affidavit the proposal for detaining the petitioner was initiated in June, 1990 i.e. almost after two months from the incident. There is infact no Explanation worth the name why the detaining authority kept sitting for the so-called information from the sponsoring authority for a period of one year. This delay, as alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in (1190) 4 SCC 134. In that case also delay was not satisfactorily explained in passing the order of detention, Therefore, the order was quashed. In the present case also from the reply to ground (c) as already observed above, 14 months delay has not been explained. Supreme Court has gone to the extent of saying that delay in passing detention order is sufficient to vitiate the proceedings. (12) Beside the delay in passing the detention order and the snapping of link between the ground of detention and passing of the order, the other ground token by the petitioner is that his representation seeking copy of the documents relied by the respondents was not disposed of expeditiously. It is a well settled principle of law that the representation made by the petitioner under Article 22 of the Constitution has to be disposed of expeditiously and if there is a delay it has to be explained. But there is no Explanation for the delay of 17 days i.e. from 2.8.91 to 19.8.91, in disposal of the representation. In reply to grounds (1) (2) the respondent has taken the plea that the representation of the petitioner was on 1.8.91 and not of 30.7.91 and the same was received by the Cof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n impleaded as a party, to my mind, has no force. It is not necessary for the petitioner to implead the sponsoring authority as the respondent. He has come in this writ petition against the detention order passed against him by the Central Government. Therefore, even if the sponsoring authority is not impleaded as a party this will not affect the right of the petitioner. It was for the Union of India to have filed comprehensive affidavit and also explained the stand of the sponsoring authority. Having not done so it cannot blame the petitioner. (15) Mr. Jagdev Singh, counsel for the respondent further contended that it is not in all the cases that the link is snapped because of delay and for this purpose he has placed reliance on the decision of the Supreme Court in the case of TA. Abul Rahman V. State of Kerala and Ors. reported in Judgments Today 1989 (3) S.C.444. There is no quarrel with the proposition of law laid down by Supreme Court, that the live link does not snap automatically because of the delay. But the circumstances of each case has to be viewed and weighed in each case. As pointed out above the facts of this case clearly shows that the live link between the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
