AVINASH CHANDER MEHRA Vs. ADMINISTRATOR UNION TERRITORY OF DELHI

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India the petitioner seeks the quashing of the order of his detention and his continued detention as passed by the Administrator, Union Territory of Delhi, respondent No. I, on June 26, 1987 under Section 3(1) read with Section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA') with a view to preventing the petitioner from engaging in transporting smuggled goods namely, gold. The facts and circumstances leading to the passing of the order of detention as stated in the grounds of detention are that on Aoril 21, 1987 one Harpal Singh of Arnritsar delivered 100 gold biscuits to the <PG>2</PG> detenu at the residence of one Sukhvinder Siagh alias Sukha of Amritsar for delivery to one Saleem in Delhi, which the detenu carried to Delhi on the night between April 21/22, 1987 by train. The detenu on arrival at Delhi met Saleem. Saleem stayed near a petrol pump near Ajmeri Gate, New Delhi. The petitioner went to his house in Paharganj, New Delhi and was bringing gold to be delivered to Saleem. He was intercepted by the DRI Officers when he was aboot to sit in a scooter to take the gold to Ajmeri Gate Petrol Pump for delivery to Saleem. This happened on April 22, 1987, 100 gold biscuits of 10 tolas each bearing foreign marking are then alleged to have been recovered from the possession of the petitioner, it is stated that the detenu was to get Rs. 5,000.00 as commission for delivery of the said gold to him. The detenu is thus stated to have acted as a carrier for bringing the contraband gold and for delivering the same to said Saleem.

(2.) The petitioner had filed a similar petition earlier under Article 226 of the Constitution for annulling his detention on September 15, 1987. That petition was dismissed as withdrawn by a learned Single Judge of this Court at the show cause stage on December 1, 1987 on an application having been moved by the petitioner in that behalf. No permission for filing a second petition in the matter was given by the Court while dismissing that petition. The present petition was thereafter filed by the petitioner on December 23, 1987. In this petition the petitioner besides taking the grounds that were earlier taken by him in his said earlier petition, has raised challenge to his detention on some new grounds. A preliminary objection was raised by the learned counsel for respondents No. I and 2 that the earlier petition of the petitioner having been dismissed as withdrawn by this Court, his subsequent petition i.e. the present petition is barred, including on any fresh ground. This very question arose before me recently in the case of Bhupinder Arnritlal Mehta v. Union of India and others, Cr. W. 1 13/86, decided on July 29, 1988. In that case I relying on some decisions of the Supreme Court as also of a Division Bench of this court in the case of Y. Kumar v. Union of India, 1984 Cr. L.J. 1530, held that under such circumstances a second habeas corpus petition is maintainable at least insofar as challenge to the detention of the petitioner is made on any additional ground which was not taken by the detenu in his first petition and which ground itself arose during the pendency of the earlier petition. For the detailed reasons as given by me in my said judgment I hold that this petition is maintainable insofar as challenge to the detention of the petitioner is made in it on an additional ground which arose during the pendency of the earlier petition.

(3.) Now, coming to the merits of the case I may straightway say that the petition is liable to be accepted on the very first ground that was urged by Mr. N.C. Chawla, learned counsel for the petitioner, as contained in para 16 of the writ petition. The admitted facts are that the petitioner made a representation dated September 16, 1987 (copy of which is annexed as Annexure E to the petition) to the detaining authority, as also to the Central Government. The representation made to the detaining authority, respondent No. 1, was rejected by him on October 13, 1987 and the order of rejection of the representation was conveyed to the petitioner on October 14, 1987. It has been contended by Mr. Chawla that there has been an inordinate delay in dealing with and disposing of the representation by the detaining authority and that the detention of the petitioner stands vitiated on that ground. Mr. A.S. Dagar, Deputy Secretary (Home), Delhi Administration filed his affidavit as a -counter on behalf of the detaining authority, respondent No. 1. The facts and circumstances as to how the representation was dealt with by the detaining authority and ultimately <PG>3</PG> disposed of by him are stated in the corresponding para 16 of the affidavit of Mr. Dagar which is reproduced below :-