Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1101__ of 2012
[Arising out of S.L.P.(CRL) NO. 620 OF 2012]
Rashid Kapadia ….Appellant
Versus
Medha Gadgil & Ors ….Respondents
J U D G M E N T
Chelameswar, J.
Leave granted.
2. Aggrieved by the Judgment in Criminal Writ Petition No.3253 of 2011
of the Bombay High Court, the unsuccessful petitioner therein carried the
matter to this Court.
3. The said writ petition was filed challenging the order of detention
dated 20-07-2011 passed under Section 3(1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (henceforth
referred to as 'the Act'), by the 1st respondent. By the said order it was
directed that the son of the appellant named Khalil Ahmed Rashid Ahmed
Kapadia (hereinafter referred to as 'the detenu') be detained under the
provisions of the Act.
4. Aggrieved by the said detention order, the appellant herein made a
representation to the 1st respondent praying that the detention order be
revoked, for various reasons mentioned in the representation. The said
representation came to be rejected by the 1st respondent by an order dated
07-09-2011. Subsequently, the appellant filed the abovementioned writ
petition on 18-10-2011 challenging the order of detention. By the Judgment
under challenge the said writ petition was dismissed.
5. The facts, which lead to the passing of the detention order, are as
follows:
6. A consignment of goods covered by eight shipping bills, all dated 26-
10-2010, being exported by a firm called M/s.Noble Impex, was detained by
the Customs authorities. On examination of the consignment and the
relevant documents, the authorities opined that there was a mis-declaration
with respect to the quality, quantity and valuation of the goods sought to
be exported. It appears that the said goods were being exported under a
scheme known as “Drawback Scheme”. According to the Customs Department,
the goods were over-valued in order to claim the benefit of higher export
“drawback”. It is the case of the Customs Department that one Syed
Naimuddin is the proprietor of the abovementioned M/s. Noble Impex. Syed
Naimuddin and the detenu are said to be cousins. It is the further case of
the Customs Department that the abovementioned cousins, with the aid and
abetment of one Ashok Dhakane and Bala Jadhav, who are the partner and
employee respectively of M/s. Khakane & Co., a firm carrying on business as
a clearing house agent, attempted to make the abovementioned export.
Therefore, the Customs authorities moved the 1st respondent for the
issuance of the detention order against the abovementioned four persons.
7. The 1st respondent, on a consideration of the material placed before
her, issued the detention order.
8. The detention order is challenged on various grounds before the High
Court; principally, that all the material relevant for enabling the
Detaining Authority (1st respondent) to record the satisfaction that it is
necessary to preventively detain the detenu is not placed before the
authority; secondly, that the detaining authority mechanically passed the
order of detention without carefully scrutinising the material placed
before her; and lastly, the detention is vitiated by the fact that the
representation of the petitioner dated 06-08-2011 invoking Article 22(5) of
the Constitution of India was rejected only on 07-09-2011 after an
inordinate delay of one month.
9. Elaborate submissions were made before the High Court on the first
two grounds mentioned above, which did not find favour with the High
Court.
19. Coming to the last ground, i.e., delay in disposing of the
representation made by the appellant, however, the High Court did not
examine the same in the right perspective. The relevant portion of the
Judgment of the High Court in that regard reads as follows:
“He further submitted that the representation of the detenu was
received on 06-08-2011 and the Detaining Authority considered the
representation after taking into account the comments of the
Sponsoring Authority and the representation was rejected on
07-09-2011.”
20. The learned counsel for the appellant Sri Nikhil Jain once again made
elaborate submission on all the three grounds mentioned above. But, we are
of the opinion that it is enough for us to consider the legality of the
delayed disposal of the representation made by the appellant.
21. The fact that the representation was made on 06-08-2011 and it was
disposed of on 07-09-2011 by the 1st respondent is not in dispute. In the
counter affidavit filed by the 1st respondent in the writ petition it is
stated at para 19 as follows:
“19. With reference to paras 8(DD) of the petition, I say that the
representation dated 6.8.2011 made by Shri Rashid Kapadia, was
received in my office on 6.8.2011 late in the evening. The
parawise comments from the Sponsoring Authority were called for by
letter dated 09.08.2011. I say that during this period 7.8.2011
was holiday. The Sponsoring Authority forwarded the parawise
comments on 26.8.2011 which were received in the Department on
26.8.2011 late in the evening. There were holidays on 27.08.2011,
28.08.2011, 31.08.2011 and 01.09.2011 and on 29.08.2011 due to
heavy rain fall the office work was paralysed. I further state
that the concerned Assistant submitted a detailed note and
forwarded it to the Under Secretary on 30.8.2011. The Under
Secretary endorsed it on 2.9.2011 and forwarded it to the
Dy.Secretary. The Dy. Secretary endorsed it on 5.9.2011 and
forwarded the papers to me. I say that during this period
4.9.2011 was holiday. I had independently considered the
representation and rejected it on 7.9.2011. Accordingly rejection
reply was issued on 7.9.2011 through Speed Post to the applicant.”
22. It can be seen from the above extracted portion that the 1st
respondent called for the parawise remarks of the Sponsoring Authority
(Customs Department) on 09-08-2011. However, the Sponsoring Authority
responded to the inquiry of the 1st respondent on 26-08-2011 with a delay
of fifteen days. The reasons for such delay have not been explained by the
Sponsoring Authority, represented by the 3rd respondent herein. There is
nothing on the record placed before us, which explains the abovementioned
delay on the part of the 3rd respondent's Department.
23. It is well settled that the right of a person, who is preventively
detained, to make a representation and have it considered by the Authority
concerned as expeditiously as possible, is a Constitutional right under
Article 22(5). Any unreasonable and unexplainable delay in considering the
representation is held to be fatal to the continued detention of the
detenu. The proposition is too well settled in a long line of decisions of
this Court. We do not think it necessary to examine the authorities on
this aspect, except to take note of a couple of Judgments where the
principle is discussed in detail. They are; Mohinuddin alias Moin Master
v. District Magistrate, Beed and Ors.[1] and Harshala Santosh Patil v.
State of Maharashtra[2].
24. Therefore, we have no option, but to come to the conclusion that the
detention order cannot be sustained on the abovementioned ground alone and
it is required to be, accordingly, set aside.
25. In view of such conclusion, we do not think it necessary to go into
other contentions raised on behalf of the appellant. The Appeal is,
therefore, allowed.
………………………………….J.
( ALTAMAS KABIR )
………………………………….J.
( J. CHELAMESWAR )
New Delhi;
July 25, 2012.
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[1] (1987) 4 SCC 58
[2] (2006) 12 SCC 211
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