M.K Chawla, J.:— The petitioner was detained pursuant to an order dated 20-6-89 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short, COFEPOSA Act) by Shri A.K Batabyal, Joint Secretary to the Government of India. The detention order was passed with a view to preventing him from engaging in transporting and concealing smuggled goods. This followed an incident dated 31-5-89 when at the pointing out of the petitioner 204 gold biscuits of IO tolas each bearing foreign markings were recovered from a secret cavity especially designed above the window in the wall facing entrance of a bath room-cum-toilet on the first floor of house No. 504, Green Avenue, Amritsar.
2. The petitioner has challenged his detention by means of this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, seeking the issuance of a writ of habeas corpus for quashing the aforesaid order of detention and directing his release. The detention order is being challenged on number of grounds but it is not necessary for us to go into the merits or otherwise of all the grounds as the petition, in my view, can be allowed on any of the following three points. These are:
(a) Though the impugned order of detention was issued on 20-6-89, but it was served on the detenu on or about 24-l-90 i.e after a lapse of about 7 months. The detaining authority has not dis closed the efforts made or the steps taken to serve the impugned order of detention on the detenu during this interregnum period. The belated service of the impugned order of detention on the detenu is fatal.
(b) Assuming that the impugned order of detention was justified and warranted to be issued when it was so issued, the detenu having been arrested on or about 19-1-90 by the Police authorities of Dharinda Police Station on an FIR lodged for the offences under the Indian Penal Code, the Arms Act, the TADA Act and the Official Secrets Act and was in judicial custody, yet at the time of the service of the impugned order of detention, there was no proper consideration of the fact that the detenu was already in custody or that there was so real danger of his release from such custody. In fact, there was nor even a remote possibility or any prospects whatsoever of the detenu being released from judicial custody in view of the serious charges levelled against him. The detention of the detenu under these circumstances is unjustified in-law and must be held to be mala fide, null and void; and
(c) That neither in the impugned declaration under Section 9(1) of the COFEPOSA Act dated 15-2-90, nor de hors the said declaration by any other contemporaneous documents, the detenu was appraised of his right to make a representation against the declaration to the declaring authority, the Central Government and the Advisory Board. The failure on the part of the declaring authority in appraising the detenu, who is not an enlightened person, of his constitutional right is violative of Article 22(5) of the Constitution of India and as such the impugned declaration is rendered mala fide and ab initio null and void.
3. The case of the respondents as disclosed in the affidavit of the detaining authority on these aspects is that though the detention order was passed on 20-6-89 but the same could not be served upon the detenu after his release on bail by the orders of the Chief Judicial Magistrate, Amritsar dated 15-6-89. The detenu did not even attend the court of the District & Sessions Judge, Amritsar in a petition for cancellation of his bail, though the warrants of his arrest were issued It was only when the Directorate of Revenue Intelligence came to know that the detenu has been arrested in the abovesaid case, the order and the grounds of detention were served on him on 2-4-89. For that reason no action under section 7 of the cofeposa act was initiated against the detenu, as the application for cancellation of his bail was pending.
4. On the second aspect, their reply is that issuance of detention order under Section 3(1) of the COFEPOSA Act, does not debar the State authorities to take action against the detenu for violation of the provisions of other statutory laws. In spite of the registration of the FIR under various penal provisions, there was an apprehension in the mind of the detaining authority that in all probability, the petitioner would secure bail for the offences mentioned therein and this has weighed with the detaining authority to pass the impugned order.
5. Lastly, their defence is that the declaration under Section 9(1) of the Act forms part and parcel of the detention order. The declaration merely increases the period of detention from one year to two years without effecting any material change in the detention order or in the grounds of detention. It is further submitted that in the grounds of detention, it has been clearly indicated that the detenu has got a right to make a representation against the said order of his detention to the detaining authority, Central Government as well as to the Central Advisory Board. The declaration being a part and parcel of the said detention order, the same right is available to him in respect of the declaration also. The detenu was being represented by a counsel and as subh cannot be said to have been prejudiced in any manner. He cannot be allowed to take advantage of a mere technicality, as he is presently tending to do.
6. In order to appreciate the rival contentions, it is relevant to keep in mind a few important duties of events. The date of the incident is 31-3-89. On that very day, the petitioner was arrested as a consequence of the recovery of gold of foreign marking He was produced before the Chief Judicial Magistrate, Amritsar on 1-6-89 who remanded him to judicial custody till 17-6-89. However, before that, the petitioner moved an application for his release on bail and in fact was granted bail on 15-6-89. As stated earlier, the order of detention against the petitioner was passed on 20-6-89. The petitioner was arrested on 19-1-90 by Dharinda Police Station in a case of serious offences under the Indian Penal Code, Arms Act, TADA Act and the Official Secrets Act During the judicial custody, in the said case the order of detention alongwith the grounds of detention was served on the petitioner on 24-1-90. A declaration under Section 9(1) of the COFEPOSA Act was passed on 15-1-90. The Advisory Board in its meeting held on 30-4-90 opined that there were sufficient grounds for the - continued detention of the petitioner Finally, the order of detention was confirmed by the detaining authority on 11-5-90.
7. On the first aspect, the delay of service of order of detention on the petitioner is sought to be explained by the respondent is not convincing. It is well settled proposition as laid down in the numerous Judgments of the Supreme Court as well as other High Courts that if there is unreasonable delay between the date of the order of detention and the date of arrest of the detenu, such delay unless satisfactorily explained would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority, leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from smuggling activities.
8. It is not shown as to how many attempts, were made by the officers of the detaining authority to locate the petitioner at his residence and what reports were received by the persons deputed for this purpose. No affidavit of the serving officer has been filed giving the details of the action taken in this behalf. To my mind, this long delay remains unexplained. Under similar circumstances in the case reported as Ranjit Singh and another v. Union of India, 1989, Cr.L.J 152, decided by this Court, the order of detention was quashed holding.—
“Even if it be assumed for the sake of arguments that the detenus were absconding, then the only course open to the respondents was to follow the statutory provisions of sections 4 and 7 of the cofeposa act. there provisions contain the procedure for execution of detention orders and the powers of the appropriate Government in relation to absconding persons. Under the Act, the detention orders are to be executed 1n the manner provided for the execution of warrants of arrest under the Cr.P.C However, if the appropriate government has reason to believe that the person in respect of whom a detention order has been made, has absconded or is concealing himself so that the order cannot be executed, then in that case the government is required to make a report in writing of the fact to Metropolitan Magistrate having jurisdiction in the place where the said, person ordinarily resides. The Metropolitan Magistrate in that situation shall have recourse to the provisions of Sections 82, 83, 84 and 85 of the Cr.P.C Secondly, the Government may also, by order notify in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order. Its non-compliance may land him to imprisonment. The COFEPOSA Act is a complete code in itself as far as the service of the detention order on the absconding persons is concerned. The respondents have not taken any steps to follow this procedure. In fact, there is no averment in the counter-affidavit. The mere assertion, without proof, that the detenus intentionally avoided service of the order of detention is neither here nor there. The delay, thus has not been satisfactorily explained.
9. In order to overcome the findings in the above referred case, learned counsel for the respondent submits that where the delay is not only adequately explained but is found to be the result of recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the ‘link’ is not snapped but strengthened. He places reliance on the Judgment in Bhanwar Lal Ganeshmal Ji v. State of Tamil Nadu and another, AIR 1979 S.C 541 where the delay of about 4 years was condoned as the detenu was found absconding during that period. I am afraid the said Judgment of the Supreme Court is not applicable to the facts of this case inasmuch as when the detenu was found to be absconding in action under section 7 of the cofeposa act was initiated and the detenue was proclaimed as a person absconding under Section 82 of the Code of Criminal Procedure. The proclamation was published in several English and local language daily newspapers. His photograph was exhibited in cinema halls. A reward of Rs. 5000/- was also announced for his apprehension. Despite all these efforts, he could not be arrested until he surrendered’ before the Court. Under these circumstances, the court came to the conclusion, “that they have no hesitation in over-ruling the submission of the counsel for the petitioner based on the delay in execution of the order of detention.”
10. Similarly, the other two Judgments relied upon and referred to by counsel for the respondents, in Syed Farooq Mohd. v. Union of India and another, 1990 (3) Judgments Today, (Supreme Court) 102, and Shafig Mohd. v. District Magistrate, Meerut, AIR 1990 S.C 220 have no application as numerous attempts appear to have been made in these cases to serve the order of detention on the detenu who was evading service.
11. On this ground alone; the order of detention is liable to be quashed.
12. On the second aspect, it is not disputed that when the impugned order of detention was passed, the petitioner was on bail, but at the time of service of the order of detention, the petitioner was in judicial custody, facing charges for serious offence under the Indian Penal Code, and other Acts whereunder the release of the accused on bail was an impossibility. In such circumstances, the observation of the Supreme Court in case reported as Binod Singh v. District Magistrate, Dhanbad, Bihar, AIR 1986 SC 2090, is the complete, answer to the stand of the respondent. The relevant observations of the Hon'ble Supreme Court are as under:
“It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provision's of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case, when the actual order of detention was served upon the detenu, the detenu was in Jail. There is no indication that this factor of the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance tin the part of the authorities charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens”.
On this ground also, the petition must succeed.
13. On the last ground also, the petitioner has a case. I have carefully perused the declaration under Section 9(1) of the COFEPOSA. Act dated 15-2-90. In this order, the petitioner was not made aware of his right to make a representation to the appropriate authorities. It has also not been pleaded by the respondent that the petitioner was made aware of his right at any time after making a declaration.
14. What is its effect? Learned counsel for the petitioner in support of his submission placed reliance on a decision of the Supreme Court in Jagpreet Singh v. Union of India, Crl. Appeal 23/90 decided on March 23, 1990 which decision was followed by this Court in Vimal Kumar v. Union of India, Crl. W. 799/89 decided on 16-5-90 and Manish Bhai Nageen Bhai Patel v. Union of India, Crl. Writ no 611/89 decided on 17-5-90.
15. In Jagpreet Singh's case the Supreme Court observed as under:—
“From the papers placed on record, it was not until the detenu wrote to the Declaring authority on 10-11-88 seeking clarification as to whether he had a right of representation against the declaration and, if so, to which authority. The clarification on this matter was furnished to the petitioner on 17-11-88. In other words, there has been a delay of about a month and 13 days before the detenu was made aware of his rights under the Constitution to make an effective representation against the declaration. This delay in our opinion, is quite unreasonable and inconsistent with the provisions of Article 22(5) of the Constitution. The detention of the detenu beyond the original period of one year in, the circumstances was unjustified.”
16. This Judgment as observed earlier has been followed by this Court in the two Judgments referred to above. The detenu has thus been deprived of his constitutional right to make a representation ‘'against the declaration, and, therefore, the declaration was violative of the provisions of Article 22(5) of the Constitution of India.
17. The submission of learned counsel for the respondent that the petitioner was an educated person and was assisted by a counsel, need not have been told of his right to make a representation against an order of declaration or that he has still sufficient time at his disposal to make the representation is neither here nor there. It may be noted that it is not the case of the respondent that soon after the order of declaration dated 15-2-90, the petitioner made any representation or thereafter against the said declaration. In fact, he has not made any representation. It cannot be assumed that the petitioner even though under Article 22(5) against the order of declaration. What will happen in cases where the petitioner is an illiterate person or a foreigner who is not being represented by any counsel if faced with such a situation. Can the State make any distinction in between the two sets of petitioners. Learned counsel for the respondent has not been able to give a convicting reply. Similarly, the Judgment relied upon by the respondent in case reported as Wasiuddin Ahmed v. District Magistrate, Aligarh, U.P & Others, (1981) 4 S.C.C 521, is quite distinguishable and has no relevance to the facts of the present case. This Judgment has rightly been distinguished in the Judgment of Manish Bhai Nageen Bhai Patel (supra).
18. Once the declaration goes, the order of detention has also to be set aside. This is for the simple reason that in a case of detention where there is no declaration, the appropriate government’ under Section 8(b) of the COFEPOSA Act is required to make a reference to the Advisory Board within 5 weeks, and the Advisory Board was required to submit their opinion as to whether or hot there is sufficient cause for the detention of the person concerned within 11 weeks from the date of detention, the appropriate government then was bound to pass an order of confirmation of the detention order within 3 months. In this case, admittedly not only the reference but the detention was confirmed much after the requited period. In this view of the matter, the detention order has also become illegal. All the three grounds taken separately or collectively leave no doubt in my mind that there is non-application of mind by the detaining authority in passing the impugned order of detention and the petitioner has been prevented deprived of his valuable right under the Constitution to file representation against the order of declaration.
19. In view of the above, the petition is allowed and the Rule is made absolute. The petitioner be released forthwith if not required to be detained in any other case.