Skip to content


Harish Khera Vs. Administrator, Union Territory of Delhi, Delhi Administration, Delhi and Others - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtDelhi High Court
Decided On
Case NumberCriminal Writ No. 2/85
Judge
Reported in1987(28)ELT212(Del)
Acts Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 2, 3, 3(1), 3(2), 11 and 12A
AppellantHarish Khera
RespondentAdministrator, Union Territory of Delhi, Delhi Administration, Delhi and Others
Cases ReferredSher Mohammad v. The State of West Bengal
Excerpt:
- - if an order is to be reported within 10 days of the drawing up of the formal order, we do not see why like in some other enactments, the word 'forthwith' was not used......act which enables the central government to order revocation of the detention order made by the state government on receipt of the report from the state government regarding making of an order under section 3(1) by the state government. 4. mr. bagai, learned counsel for the respondent contests this proposition. his first contention is that the making of the order contemplated by section 3(2) of the act, is really with regard to the order which formally comes into existence after the administrator accepts the proposal for detention and agrees to the detention of a person. we cannot accept this contention. the drawing up a formal order is something quite different from making of an order. the making of the order and drawing up a formal order cannot be regarded as one and the same thing......
Judgment:

Prakash Narain, C.J.

1. The petitioner has been detained by virtue of an order made by the Administrator of the Union Territory of Delhi under Section 3(1) read with Section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a view to prevent him from abetting smuggling of goods namely wrist watches and integrated circuits. He challenges his detention and continued detention on diverse grounds. In the view we are going to take that it is sufficient to mention only one of those grounds. This ground is that the detention becomes void and vitiated, inter alia, on account of non-compliance with the mandator provisions of sub-section (2) of Section 3 of the aforesaid Act.

2. The relevant facts, for the above contention are these. The Administrator of the Union Territory of Delhi, agreeing with the proposal to preventively detail the petitioner under the aforesaid Act passed an order to the effect that he be so detained, on November 23, 1984. The formal order duly authenticated in the name of the Administrator of the Union Territory of Delhi by the Joint Secretary was drawn up and issued on December 1, 1984. The grounds of detention also of the same dated were served on the Petitioner on December 5, 1984. A report was sent to the Central Government as required by section 3(2) of the Act on December 5, 1984. A report was sent to the Central Government as required by section 3(2) of the Act on December 5, 1984. The point in issue is whether the report sent to the Central Government had to be sent within 10 days of December 1, 1984 or November 23, 1984.

3. Learned counsel for the petitioner, Mr. Mehta, has urged that as the order was made by the Administrator on November 23, 1984, the report had to be sent to the Central Government under Section 3(2) of the Act by December 2, 1984. Admittedly it was sent on December 5, 1984. So, the mandatory provision has been violated which makes the detention illegal by vitiating the order of detention. He places reliance on a judgment of the Supreme Court in Sher Mohammad v. The State of West Bengal - : [1975]3SCR154 . There is force in Mr. Mehta's contention. The provisions of Section 3(2) of the Act are mandatory. This procedural right is available to the detenu, particularly, in the context of Section 11 of the Act which enables the Central Government to order revocation of the detention order made by the State Government on receipt of the report from the State Government regarding making of an order under Section 3(1) by the State Government.

4. Mr. Bagai, learned counsel for the respondent contests this proposition. His first contention is that the making of the order contemplated by section 3(2) of the Act, is really with regard to the order which formally comes into existence after the Administrator accepts the proposal for detention and agrees to the detention of a person. We cannot accept this contention. The drawing up a formal order is something quite different from making of an order. The making of the order and drawing up a formal order cannot be regarded as one and the same thing. A reading of Section 3(1) and Section 12A of the Act would be of some advantage. Section 3(1) lays down the purposes for which and the circumstances in which alone the Central Government or the State Government of an Officer may make an order. Section 12A laid down what factors have to be kept in mind by the Central Government or the State Government or the authorised officer of the Central or the State Government while making an order. Obviously, this has reference to the order that is passed actually ordering the detention. In detention cases the requirement of Section 3(1) and Section 12A have to be kept in mind by the Administrator or the appropriate authority and not by the Joint Secretary who draws up the order formally and authenticated it in the name of the Administrator. If this is the Correct understanding of the law, it is obvious that the mandatory provisions of section 3(2) of the Act have not been complied with as admittedly the report was sent to the Central Government by the Delhi Administration after the expiry of 10 days. Mr. Bagai next urges that the Administrator of the State Government passes an order only on the file and the formal order which is drawn up is really the making of the order. Drawing up of an order necessarily takes time and so the date on which the Administrator made the order would not be relevant. The relevant date would be that on which the order is prepared or drawn up. The Legislature, in this case the Parliament, must be assumed to be conscious of the time that it may normally take in an office to take all steps to implement the order passed on the file. It is for that purpose that in Section 3(2) the Legislature has provided 10 days to the State Government, in the present case, the Administrator, to communicate it or report to the Central Government about the making of the order. If an order is to be reported within 10 days of the drawing up of the formal order, we do not see why like in some other enactments, the word 'forthwith' was not used. Necessarily drawing up an order takes time and that is why time allowed by the Legislature. On a perusal of the record, we find that though the formal order was drawn up on December 1, in this case, the grounds of detention etc. for service are made ready with translations by 5th December and on that date the report was also made to the Central Government. thereforee, the officers of the Administration are aware of the provisions of Section 3(2) of the Act and are conscious of the fact that expeditious steps must be taken to report to the Central Government which must receive not only the copy of the detention. Where the Delhi Admn. appears to have faulted is that they took Dec. 1, 1984 as the date of the making of the order. It confused it with the actual date of the making of the order.

5. On the ratio of the judgment of the Supreme Court in Sher Mohammad's case, the detention of the petitioner is quashed and we order accordingly. We direct that the petitioner be set a liberty forthwith unless required to be detained under any other valid order of an authority or a court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //