LINDER FRANK WOLFGANG Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner-detenu Mr. Linder Frank Wolfgang is a Foreign National holding passport of Federal Republic of Germany. He was arrested by the officers of the Customs Department on 18-12-1996 when he arrived at Ahmedabad International Airport from Muscat by Indian Airlines Flight No. 1C 886. It is alleged that he passed through green channel along with his baggage consisting of two hand bags. At the exist gate, the petitioner was intercepted on account of his suspicious movement. On personal search in presence of panchas. the pair of sandals worn by him appeared unusually heavy. He admitted before the panchas that the said pair of sandals contained gold. The said sandals were passed through screening machines installed at the Arrival Hall of the airport which showed dark patches on the monitor of the screening machine indicating pieces of heavy metals. On detailed examination of the said pair of sandals, in all 88 gold bars of 10 tolas each totally weighing 10.264 kgs. and valued at Rs. 51,32,000.00 were found concealed in the specially made cavities in the said pair of sandals. The gold was seized and the proceedings were initiated under the provisions of the Customs Act, 1962. The petitioner was produced before the Metropolitan Magistrate on 19-12-1996 and he was remanded to judicial custody. The bail application filed by the petitioner was rejected by order of the Addl. Chief Metropolitan Magistrate dated 11-2-1997. The petitioner filed bail application before the City Civil and Sessions Judge on 13-2-1997. Mr. K. V. Bhanujan. Addl. Chief Secretary to Government of Gujarat. with a view to prevent him from smuggling goods proclaimed the order of detention dated 3-3-1997 under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA'). the grounds of detention made under Sec. 3( 1) of the COFEPOSA have been well set out in the grounds of detention, and therefore, I do not consider it necessary to restate the same.

(2.) The principal contention of Mr. Harjinder Singh. learned Advocate appearing for the petitioner challenging the order of detention is that there is an inordinate and unexplained delay in considering and disposing of the representation of the petitioner dated 25-3-1997 as such the continued detention of the petitioner is illegal and unconstitutional, being violative of Art. 22(5) of the Constitution of India.

(3.) It is now well settled by series of decisions of the Apex Court that all the procedural safeguards prescribed under Art. 22(5) of the Constitution of India should be scrupulously and strictly observed, one of which enshrined in our system of judicial interpretation, being that the detenu shall be afforded an earlier opportunity of making representation against the validity of the order of detention clamped upon him and the representation should be considered and disposed of as expeditiously as possible. In the case of Mahesh Kumur Chauhan v. Union of India, reported in AIR 1990 SC 1455, the representation of the detenu dated 21-8-1989 was forwarded to the concerned sponsoring authority on 25-8-1989 and the comments from the sponsoring authority was received by the department on 11-9-1989. In spite of the fact that the office of the detaining authority and the sponsoring authority were within the Metropolis of Delhi, there was absolutely no explanation for the delay occasioned on the part of the sponsoring authority in sending his comments till 11-9-1989. The Apex Court, considering that there was undue and unexplained delay in violation of constitutional obligation enshrined in Art. 22(5) of the Constitution of India rendered the order of detention invalid.