SHARMA, J. - (1.) THIS habeas corpus petition is by Shri Gafoor Khan who is the father of the detenue Yusuf Khan Naru. The said detenue has been detained under an order dated July 12, 1991 passed by respondent No. 1 Joint Secretary to the Govt, of India, the Detaining Authority.
(2.) THE aforesaid detention order is challenged by the petitioner on the grounds : (1) that the detenue has been denied an opportunity to make an effective representation because copies of the important papers whereupon the detaining authorities placed reliance which were supplied to the petitioner are not legible. Most of the documents are not in a position which may be read even by any common person; (2) there is delay in disposal of the representation made by the detenue and the representation was not even disposed of till the petition was filed and the delay in disposal of representation has not been reasonably explained. As we are inclined to allow this petition on the aforesaid two grounds it is not necessary for us to refer to the other grounds on which also the detention order has been challenged. Before we take the aforesaid grounds it is necessary to give relevant facts. The house of the detenue Shri Yusuf Khan was searched by the Officers of the Customs and Central Excise on 27- 3-1991 and during search documents relating to Hawala Payments were recovered and seized from the premises of Yusuf Khan. The statement of Yusuf Khan was recorded on 27. 3. 1991 and 28. 3. 91 under section 108 of the Customs Act and in the said statement Yusuf Khan admitted the Hawala Payments and gave details of Hawala Payments which were arranged by him for making payment to various persons in India through one Altaf Hussain of Riyadh, Saudi Arabia. Shri Yusuf Khan was therefore, summoned to the office of the Enforcement Directorate at Jaipur on 29. 3. 91 under Sec. 40 of the Foreign Exchange, Regulation Act 1973 (for short FERA ). In the statements detenue explained the language of documents seized from the premises and also stated the story of Hawala Payments. He admitted that he was aware of making the aforesaid Hawala Payments and he was earning a profit of 3%. He was arrested u/s. 35 of FERA and produced before the Special Magistrate, Economic Offences and thereafter he was ultimately released on bail by the Sessions Judge. After the release of detenue on bail respondent No. 1 issued an order dt. July 12, 1991 exercising powers under Sec. 3 (1) of the COFEPOSA Act for the preventive detention of detenue Yusuf Khan Naru. He was detained on July 12,1991 and thereafter he made a representation against the order of his detention addressing it to the detaining authority and the Chairman, Advisory Board on 31. 7. 91. It may be stated that in fact the detenue's representation is dated 1. 8. 1991 and not 31. 7. 91 as alleged in the petition and we will take the representation being made on 1. 8. 1991. The detenue filed the copy as Annx. 3, to this present petition. There is no dispute that the representation was not disposed of upto the date the petition was filed, not even upto the date the reply was filed and was only disposed under Order 16. 09. 1991 by the detaining authority when this Court asked the learned counsel representing the Union of India about the fate of the representation made by the detenue. So far as the representation is concerned it will appear from the additional affidavit filed by one Roop Chand on behalf of detaining authority that the representation dated 1. 8. 91 was received in the COFEPOSA UNIT of the Ministry on 8. 8. 91 and on the same date, the representation was placed before the detaining authority who directed to call for the comments of the Sponsoring authority. The comments were called on 9. 8. 91 from the Sponsoring authority i. e. Head quarter office of the Enforcement Directorate New Delhi. The Enforcement Directorate examined the representation and found that some points can only be clarified by the Jaipur Office. Vide letter dt. 20. 8. 91 Jaipur Office was requested to submit the clarification of the same and the same was received by the Jaipur Office on 21. 8. 91 at 4. 00 p. m. 15,17,18. 8. 91 were closed holidays. Although 16. 8. 91 was not a holiday. It is further staled in the affidavit that as all the documents pertaining to this case were taken to Delhi for finalisation of the writ petition as such the point could only be clarified upto 26. 8. 91 and on the same date the clarification was submitted to Delhi Head Quarter and Delhi Head Quarter could only receive the same on 29. 8. 91 (24, 25-8-91 were closed holidays being Saturday and Sunday) and on the same date Delhi Head Quarter submitted the comments on representation to Ministry and Ministry received the same on 3. 9. 91 (31. 8. 91, 1,2. 9. 91 were closed holidays ). The case was processed and submitted to the concerned officer on 6. 9. 91. The concerned officer returned the case file for want of some clarification. The case was re-submitted to concerned officer aiongwith the requisite information on 9. 9. 91. As the concerned officer was busy in connection with some urgent case, the representation could not be dealt with on the same date. The concerned officer processed and submitted the case on 11. 9. 91 to Joint Secretary (COFEPOS A) who also submitted the case to Special Secretary & Director General (EIB) on the same date. Special Secretary considered the case on 12. 9. 91 and forwarded the case to Minister of State (Revenue) who considered and submitted to Finance Minister on 13. 9. 91. The Finance Minister considered and rejected the representation of the detenu on 16. 9. 91 and a memorandum intimating the detenu about rejection of his representation was also issued on the same date i. e. 16. 9. 91. First we will deal with the ground as to whether the documents supplied to the detenue along with the detention order were legible or not. A perusal of the documents will show that many of these documents are not legible i. e. No. 3,4,5,14,15,19,113 and 114 and two other documents. Due to this reason the detenue could not make effective representation. Now a look at the representation filed by the detenue which is Annx. 3 to the writ petition will show that in Para 2 of the aforesaid representation it has been clearly stated that ****hidni**** We have to read the entire Para 2 of the said representation and if so read there will be no dispute that the said grievance was raised that many of the documents which were the basis of detention order were illegible. Therefore, on this ground alone the order of detention is liable to be quashed. Apart from this we are of the opinion that there has been abnormal unexplained delay in disposal of representation which the detenue has made against the detention order. We have already given the facts and there is no dispute that the detenue has made the representation on 1. 8. 91 and it could only be disposed of on 16. 9. 91. It will be pertinent to mention here that the petition was filed in this Court on 1. 8. 91. A reply had been filed on behalf of the detaining authority and Union of India on 26. 8. 91 and by that time the representation has not been disposed of. The case came up for hearing before us on 9th Sep. , 91 and we directed Shri Balwada learned counsel for Union of India to let this Court know about the fate of the representation which was filed by the detenue and the case was kept as 'part heard'. The matter again came before us on 16. 9. 91 and on that day also Mr. Balwada could not give us the information because by that date he could not have received the information about disposal of the representation and the case was again adjourned to let this court know the fate of the representation and the case was put up for orders on 20. 9. 91. On that day the Bench could not be constituted for various reasons and has been constituted now and Mr. Balwada informed that the representation was rejected on 16. 9. 91. There is no dispute that there is delay of one and half month in disposal of this representation. Now a fresh look at the additional affidavit filed by one Roop Chand will show that the delay has not been reasonably explained. We are not satisfied that the delay stands reasonably explained. We are therefore, of the opinion that on both the aforesaid two grounds the detention order Annx. 1 dt. 12. 07. 1991 deserves to be quashed.
(3.) CONSEQUENTLY, we allow the Habeas Corpus petition and quash the detention order and direct that the delenue Shri Yusuf Khan S/o Shri Gafoor Khan Naru shall be released forthwith, if not required in any other case. .;