Khan, J.@mdashPetitioner, a readymade garment exporter, was detained u/s 3 of COFEPOSA Act by order dated 26.4.2001. He was supplied grounds of detention and relied upon documents. He, however, made a representation on 22.10.2001 and asked for supply of some more documents which was rejected vide order dated 25.10.2001. He then again made a representation dated 5.11.2001 for revocation of his detention which was also turned down by order dated 13.11.2001. His case was thereafter referred to the Advisory Board where he was heard and his detention was subsequently confirmed.
2. Petitioner challenges his detention on several grounds. He alleges delay of 8 months and 16 days in passing the detention order which vitiated his detention. According to him, authorities had received information regarding his alleged fraudulent duty draw back claim on 29.7.2000 leading to investigation in which his last statement was recorded on 27.1.2001 but despite this they had failed to pass the detention order till as late as on 26.4.2001. Reliance in this regard is placed on the Supreme Court judgments in
3. Petitioner''s second ground of attack is that respondent had also caused delay of 4 months in the execution of the detention order which had gone unexplained vitiating the detention in the process. Support for this is drawn from the Supreme Court judgment in several cases including
4. Petitioner''s third contention is that respondent had failed to supply him several important material/documents like account opening statements of the alleged three fictitious firms obtained from Punjab National Bank and Oriental Bank of Commerce which had come in his way of making an effective representation against his detention. He had made a representation in this regard on 19.10.2001 which was arbitrarily and summarily rejected. He has cited Supreme Court judgments in
5. Petitioner''s last submission is that Sponsoring Authority had withheld from Detaining Authority some important information/material like account opening documents and statement of account of three alleged fictitious firms and telegrams sent by his wife and also the fact of his having appeared before Custom Authorities on 20.9.2000. The Detaining Authority had also arbitrarily rejected his demand for supply of legible copies of some documents and their Hindi translation.
6. respondent in his counter, has denied that there was any inordinate or unexplained delay in passing the detention order. It is explained that petitioner did not join investigation at initial stage even though summons were served on him on various dates u/s 108 of Customs Act. A complaint was also lodged against him under Sections 172 and 174 of IPC and 108 of Customs Act on 9.10.2000. Subsequently, non-bailable warrants were issued against him on 20.10.200 which had gone abegging. It is admitted that he recorded his first statement. It is admitted that he recorded his first statement on 30.11.2000 under the orders of this court but he again stayed away and failed to appear before the custom authorities on 7.3.2001, 24.3.2001 and 10.4.2001 and it was in these circumstances that the detention order could not be passed till 26.4.2001.
7. Explaining the alleged delay in execution of detention order, it is submitted that petitioner was deliberately avoiding service of the order on him despite action taken against him u/s 7 of the COFEPOSA Act on 28.5.2001 and 19.7.2001 respectively. He had also failed to respond to summons dated 7.6.2001, 23.7.2001 and 10.9.2001 issued by the custom authorities. Raids were conducted at his Ashok Vihar residence on 9.5.2001, 30.6.2001, 30.7.2001, 16.8.2001 and 5.10.2001 but he could not be located till he was apprehended by Delhi Police on 11.10.2001. It is denied that he had surrendered before the custom authorities ever.
8. It is claimed that all relevant documents were supplied to him and those mentioned by him at Serial Nos. 2, 3 & 4 of his representation figured already at pages 21, 22 and 23 of the list of relied documents served on him on 12.10.2001. It is further explained that some documents like opening bank account documents were not required to be supplied as these were only referred in the grounds of detention by way of narration. But statement of Bank Account of three firms as well as copies of shipping bills taken on random basis from EDI System were supplied to him in the list of relied upon documents. It is denied that bank documents referred to by petitioner were not placed before Detaining Authority including the telegrams of his wife. It is also denied that he had appeared before customs Authorities on 20.9.2000 and so the question of informing the Detaining Authority on this did not arise. The documents were also not required to be supplied in Hindi as he had admitted to have qualified 12th standard and was conversant with English.
9. It is well settled by now that mere delay in passing the detention order or in its execution does not vitiate the detention in all events and circumstances. Nor does the period of such delay, be that long or short entail such a consequence. The delay in this regard must be shown to be unreasonable and inordinate and must go unexplained by the Detaining Authority to vitiate the detention. There is no hard and fast rule to adjudge whether the alleged delay was unreasonable or inordinate and whether there was any satisfactory Explanation for this. It all depended upon the facts and circumstances of the case.
10. Cases are conceivable where authorities may take time to conduct investigations so as to feel satisfied whether the detention order was liable to be passed or not. They may call for particulars or undertake some other exercise which may take some time to make the detention order full-proof before it was passed. It could not be said or held in such case that time taken was unreasonable or that it had snapped the nexus with the detention to vitiate it. The test was whether the alleged delay had snapped the nexus with the detention and where it was found so, it would surely invalidate the detention.
11. Dealing with this aspect of the matter, Supreme Court observed in M.Ahmed Kutty''s case as under:-
"Where the seemingly long time taken for passing the detention order after the prejudicial act is the result of full and detailed investigation and consideration of the facts of the case, the ground cannot be held to be remote and the detention cannot be held to be had on that ground. In the present case it was submitted for the State that as a thorough investigation of the case was required on the part of the customs authorities both the proceedings under the Customs Act and for prosecution in the criminal court, the proposal could not have been hurried through. These facts have not been shown to be untrue. Considering the given Explanation of the period in between the interception on January 30, 1988 and the order of detention on June 25, 1988 the nexus was not snapped and the ground was not rendered stale and the order of detention was not rendered invalid thereby."
12. The same holds true about the delay in execution of detention order. There may be cases where the delay is caused because the detenu is not available to be arrested in execution of the order. He may be absconding or resorting to some other tactics or strategy to frustrate the execution of the order. In such a situation, it can''t be said that any such delay, when explained, would hit the detention order. Even in this case also it had to be established the delay caused was unreasonable and inordinate and had gone unexplained so as to vitiate the detention order.
13. The Supreme Court had this to say in
"Where at the time of the passing of detention order, the person sought to be detained was absconding and he was arrested ten months thereafter, mere omission to take steps under Sections 87, 88, Cr.P.C. in issuing proclamation etc. about the person absconding will not per se render the detention order either illegal or mala fide."
14. The Supreme Court again said in M. Ahmed Kutty''s case:-
"Where after passing of the detention order the passage of time is caused by the detenu himself by absconding, the satisfaction of the detaining authority cannot be doubted and the detention cannot be held to be bad on ground of delay in execution of the Order.
15. Even this court in an elaborate and well considered judgment in Dalbir Singh v. Union of India (1995) 1 AD 170 had this to hold on the point:-
"Delay in executing a detention order, if satisfactorily explained, cannot vitiate the detention. The detenu has been absconding or trying to evade arrest till he surrendered after initiation of procedure under Sections 82 and 83 Cr.P.C., the delay cannot be fatal. Mere fact that powers u/s 7 of COFEPOSA have not been invoked may not lead to inference of neglect. Delay due to lack of co-ordination between the detaining authorities and the officers executing the warrant may not also be fatal. If detenu was, in spite of frequent search, not found at his known residential address, that could be a valid Explanation. Delay in translation of documents etc. is relevant. Delay for which the detenu is attributable, such as his moving Courts, is not fatal. Delay to be fatal must be of such length and remain unexplained so as to snap the nexus between the incident and the detention."
16. Tested on these parameters, it does not appear to us that there was any unreasonable delay in passing the detention order. The sequence of events given in the counter explains how petitioner had failed to join the investigation leading to the filing of complaint against him under Sections 172 and 174 of IPC and how even non-bailable warrants issued against him had gone unexpected. He had also failed to appear before custom authorities on various dates and if all this time was taken to make sure whether the detention order was liable to be passed against him or not, it could not be said that any undue or unreasonable delay was caused in passing such order. Nor it could be held that it had snapped the nexus between the alleged activities of petitioner and that of his detention.
17. Petitioner''s second allegation of delay in execution of detention order also appears to be without any substance. Respondent''s counter shows that he had deliberately evaded service despite action taken against him u/s 7 of COFEPOSA Act and had also failed to respond to the summons of the custom authorities. The raids conducted at his residence several times had also borne no fruit till he was eventually apprehended by Delhi Police on 11.10.2001. It is not that respondent was negligent or casual in taking steps to execute the order. On the contrary, requisite steps are shown to have been taken leading to the execution of the detention order. It is not, Therefore, possible to hold that respondent had committed any unreasonable delay in execution of the order also to vitiate the detention.
18. Coming to petitioner''s grievance about non-supply of some material documents, it requires to be made clear that there is an obligation on the detaining authority to supply the relied upon documents only to the detenu to enable him to make an effective representation. Non-supply of such material documents vitiates the detention in the facts and circumstances of the case and no prejudice is required to be shown for this. The authority, however, is also required to supply other documents referred to in the ground of detention on demand but non-supply of these would not invalidate the detention unless the detenu shows the prejudice caused to him in making the representation. This position is repeatedly affirmed by the Supreme Court and lately in Powanammal v. State of Tamil Nadu (1999) 1 SLT 191 holding thus:-
"Whereas non-supply of a copy the document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenu need not shown that any prejudice is caused to him. This is because non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenue''s complaint of non-supply of document has to be supported by prejudice caused to him in making an effective representation."
19. We are also not impressed by petitioner''s plea that some important information/documents were not placed before detaining Authority or non-supply of some documents or their Hindi translation and vitiated his detention. His grievance stands adequately answered by respondent and we have no reason to disbelieve the official version on the issue.
20. We find that petitioner had complained about non-furnishing of documents at Serial Nos. 2, 3 and 4 of the relied upon documents but these are said to have been supplied to him under the acknowledgement on 12.10.2001. Apart from this, petitioner claims that he was not supplied copies of account opening form of M/s. Future, Sanjeev Garments and Mandra Exports opened at Oriental Bank of Commerce and Punjab National Bank and copies of documents, cheques and any other correspondence regarding the money drawn from bank or any other document which were seized during investigation. But a perusal of his representation dated 19.10.2001 shows that he had asked for the Hindi translation of these documents which suggests that these documents were supplied to him, though not in Hindi translation. It is not, Therefore, possible to hold in the facts and circumstances that he was not supplied the relied upon documents which had infringed his right to make an effective representation.
21. This petition accordingly fails and is dismissed.
