P.C.

Heard learned counsel for the petitioner and learned Assistant Public Prosecutor. The petitioner is the wife of the detenu under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the said Act"). An order of detention has been passed by the detaining authority on 15th October 2005 which has been executed on 20th March 2008 and from 20th March 2008 the detenu is detained in terms of the order of detention.

2.The order of detention has been challenged by the petitioner on various grounds including the ground of delay in issuing the detention order. It is also contended by the counsel for the petitioner that there was delay in execution. Learned counsel for the petitioner submitted that the order of detention also cannot sustain as it was a case of non application of mind since the detaining authority did not give any opinion about retraction of the alleged confession made by the detenu under the provisions of Customs Act.

3.We have heard learned Assistant Public Prosecutor and also gone through the record. The record reveals that a report was given by the sponsoring authority for detaining the detenu on 15th April 2005 along with connected material. When it reached the detaining authority on 30th April 2005, she (the detaining authority) wanted certain documents to be called from the sponsoring authority. Thus, the documents were submitted to her and finally after considering these documents, she called for the remarks of the sponsoring authority on further generated documents. This order was passed by her on 15th June 2005.

4.After getting requisite information she also received a representation of the detenu which was in the nature of pre-detention representation. She rejected it on 11th July 2005 with remark "Representation may be rejected. But the amount is small, please scrutinize orders and submit for final orders." It appears that the detaining authority was not convinced with the proposal for detention as, according to her, the amount involved was small. But her office reverted back on 20th July 2005 with the remark that the detaining authority had already given orders on 18th July 2005 with respect to detention of one Mr.Shambhai Aamlani who was a co-accused with the present detenu.

5.It appears that because she had passed an order about the co-accused on 18th July 2005, therefore, she passed an order on 18th July 2005 on the same date in respect of present detenu showing that on 18th July 2005 the detention order was issued in respect of all the three detenus. We do not know whether the order dated on 18th July 2005 was actually passed on 18th July 2005 or after 20th July 2005, when it was pointed out to her that she had passed an order on 18th July 2005 with respect to other detenus. Had the order of all the three was passed on the same day, as is manifest in order dated 18th July 2005, then note of 20th July 2005 was misconceived.

6.Now, even if this aspect of the matter is forgotten, there is no explanation whatsoever as to why the order was not issued till 15th October 2005 when the material was before the detaining authority and the order relating to issuance of detention order was already passed by the detaining authority on 18th July 2005. No further material was generated after 18th July 2005. Only representations were received from the petitioner which were rejected on 30th August 2005 and later on 27th September 2005. Both these representations were pre-detention representations.

7.There is no remedy to a detenu to invoke Article 22 of the Constitution to make a representation and even if any such representation is made, the detaining authority is not bound to decide the same before issuance of detention order. Even the Supreme Court has gone to the extent of laying down law that even the High Court should not interfere even after the detention order is passed, unless the order of detention is executed. Therefore, we feel that there has been unexplained delay atleast from 18th July 2005 till 15th October 2005. For these three months, obviously, there was no danger from the detenu and no fresh material came to the light about the activities of the detenu which would make it necessary for the detaining authority to pass an order of detention.

8.Besides the delay, as pointed out by us, there is also a case of non application of mind as pointed out earlier, that the detaining authority passed the order only on the basis that some other detenu had already been detained.

9.Since we find that the order of detention cannot be sustained on the basis that has been stated by us hereinabove, we do not propose to decide other grounds of detention or other grounds taken by the petitioner to challenge the order of detention.

10.For these reasons, the petition is allowed. The order of detention No.PSA-1205/6/(1) SPL-3(A) dated 15th October 2005 passed against Shri Ajit Bapu Satam is hereby quashed. The detenu Shri Ajit Bapu Satam shall be released forthwith, if not required in any other case.