RASHID KAPADIA Vs MEDHA GADGIL .
Bench: ALTAMAS KABIR,J. CHELAMESWAR
Case number: Crl.A. No.-001101-001101 / 2012
Diary number: 2082 / 2012
Advocates: NIKHIL JAIN Vs
ASHA GOPALAN NAIR
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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.
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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
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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.
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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
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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
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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
Maharashtra2.
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.
1(1987) 4 SCC 58 2(2006) 12 SCC 211
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