U.P. Aboobacker vs Union Of India And Ors.
1987 Latest Caselaw 208 Del

JUDGMENT

S. Ranganathan, J.

(1) By this writ petition, the petitioner challenges the validity of his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). Originally, the petitioner was taken into custody on 15-1-85 while attempting to board a flight from Cochin to Delhi, as he was found to be in possession of 9,760 U.S. Dollars, 1000 Saudi Riyals and Rs. 2,80,000 in Indian currency and, according to the customs authorities the petitioner had not been able to prove his assertion that the foreign currency had been brought into India by the petitioner after due declaration and the Indian currency was also intended for making payments to a party of Saudi Arabia. A prosecution under the Customs Act was initiated against him and. in these proceedings, the petitioner obtained the permission of the court to proceed to Saudi Arabia subject to certain conditions. After some time, when he appeared before the Magistrate on 9-5-86, he was detained in pursuance of an order of detention passed by Sri K. K. Dwivedi, Joint Secretary to the Government of India, Ministry of Finance specially empowered to act under S. 3(1) of the Cofeposa Act and is since then in custody at the Central Prison, Trivandrum.

(2) It is unnecessary to set out in detail the grounds of detention for, though several contentions have been raised in the writ petition, we are Of opinion that it is sufficient for disposing of this petition, to consider the principal contention urged before us by Sri Harjinder Singh. The point made by him is a short one. He points out that, on 28-5-86, the detenu made a representation to the authorities against his detention and also seeking the supply of certain documents, but that this representation was rejected by an order dated 11-7-1986 communicated to the petitioner only on 16-7-1986. His submission is that this a long and unreasonable delay, violative of Art. 22(5) of the Constitution of India, which renders his detention illegal.

(3) This allegation of the petitioner is dealt with in para 15 of the counter affidavit filed by the respondents. It explains at length the various stages of the proceedings on the petitioner's representation during the period of 51 days between 28-5-86 and 16-7-86 thus: "15. Para 15 is wrong and denied. There is no undue delay in deciding his representation. A representation dated 28-5-86 was received in the Ministry on the evening of 30-5-86 in Malyalam language. 31-5-86 and 1-6-86 were holidays on account of Saturday and Sunday. The said representation running into 14 pages was in Malyalam language. After translation and scrutiny, it was revealed that the same pertain to the detention of detenu in which there were allegations pertaining to the enforcement Directorate. As such the same was sent by the Ministry to the Enforcement Directorate on 4-6-86. On 5-6-86 it was received in the Head-quarters of the Enforcement Directorate. On 6-6-86 since the same pertained to the Madras Zonal Office of the Enforcement Directorate, it was sent to the Madras Zonal Office which was received in the Madras Office on 13-6-86. 14-6-86 and 15-6-86 were holidays on account of Saturday and Sunday. On 16-6-86 it was sent by the Madras Zonal Office to the Trivandrum Sub Zonal Office as the seizure and the investigations were conducted by the said Office. The Trivandrum Sub Zonal Office after preparing the necessary comments sent the same on 26-6-86 directly to the Headquarters of the Enforcement Directorate at New Delhi. It is pertinent to submit that the concerned official who was dealing with the case at Trivandrum namely Shri K. John, Chief Enforcement Officer was on official tour from 16-6-86 to 20-6-86. Immediately on his resumption of duties he prepared the comments and sent them to New Delhi. It may also be submitted that 21st June, 1986 and 22nd June, 1986 were holidays on account of Saturday and Sunday. The said comments were received in Delhi on 1-7-86. Immediately after their receipt in Delhi, the same were sent to the detaining authority on 2-7-86. After their receipt in the Ministry the same were scrutinised on 4-7-86. 5th and 6th July, were holidays on account of Saturday and Sunday and the case of the detenu was fixed for hearing before the Advisory Board on 718th July, 1986. The file could not be sent to the Detaining Authority. However, when the hearing by the Advisory Board was adjourned to 17-7-86. the file was sent to the detaining authority on 8-7-86. The detaining authority considered the representation after the application of mind and rejected the same on 8-7-86. The same was thereafter placed before the Minister of State for Finance on 9-7-86. The Minister of State for Finance considered the said representation on 9-7-86 and the file was received back by the detaining authority on 10-7-86. The memorandum regarding rejection of the representation by the detaining authority and the Central Government were issued on 11-7-86." The question to be considered is whether this explanation can be considered to be satisfactory and acceptable or whether the detention should be declared illegal for want of due diligence and dispatch on the part of the authorities in disposing of the petitioner's representation. Before doing this, it may be useful to refer to the authorities cited by counsel which enunciate the general principles which have to be kept in view in deciding this issue.

(4) The right of a detenu to make a representation and have it disposed of expeditiously is a fundamental right flowing out of the provisions of Article 22(5) of the Constitution. As early as in Jayanarayan Sukul v. State of West Bengal the Supreme Court, after reviewing earlier decisions, enunciated four principles to be followed in regard to such representations. These are : "20. Broadly stated, lour principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governances of the citizens. A citizen's tight raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation iu the Advisory Board. If thereafter the Advisory Board will express an opinion in favor of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu." In that case, the detenu had made a representation on 23rd June, 1969 and the State Government rejected the representation on 19th August, 1969 after the Advisory Board had given its opinion on the. 13th August, 19,69. The Supreme Court quashed the detention both on the ground of inordinate delay in considering the representation (for which no explanation was given) and also on the ground that such consideration was put off till after the receipt of the opinion of the Advisory Board. The Court observed "It is estab.lished beyond, any pleasure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at state. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines, the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril unmediated action should be taken by the relevant authorities. 19. No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise. . . . . . 'it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning"

(5) The above principle has been reiterated in subsequent decisions. In Francis Coralie Mullin v. W. C. Khambra and others there was a delay because the representation required a thorough examination in consultation with .investigation of facts and advisers on law. Refusing to quash the detention, the Court observed, after referring to four principles laid down in Jayanarayan Sukul's case (supra) : "We, however, hasten to add that the time-imperative can never be absolute or obsessive. The Court's observations are not to be so understood. There has to be lee-way, depending on the necessities. (We refrain from using the word 'circumstances') of the case. One may '.veil imagine a case where a detenu does not make a representation before the Board makes its report, making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before them but may merely forward it to the Board without himself considering it. Several such situations may arise compelling departure from the time-imperative. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramifications arc involved. The burden of explaining the necessity for the slightest departure from the time-imperative is on the detaining authority." In Raisuddin alias Babu Tamchi v. State of Uttar Pardesh and another the representation was addressed by the detenu on 24-11-1982 to the District Magistrate of Moradabad who, after obtaining the comments of the Senior Superintendent of Police, forwarded it on 3-12-1982 to the State Government which rejected it on 6-12-1982. Pointing out that the delay in the onward transmission of the representation was unavoidable in the disturbed conditions then prevalent in Moradabad, the Court observed : ".....the question whether the representation submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, 145 but by a careful scrutiny of the facts and circumstances of each case; if on such examination, it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority/ State Govt. in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of a detenu; on the other hand, if the Court is satisfied that the delay was occasioned not by any lack of diligence or promptness of attention on the part of one party concerned, but due to unavoidable circumstances or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention.....".

(6) There are a large number of cases in which various period of delay have been' considered as sufficient or insufficient ground for invalidating a detention. No useful purpose can be served by referring to all these cases for, as pointed out in Durga Pada Ghosh v. State of West Bengal "the binding force of a past precedent for a later case would largely depend on the degree of close similarity of the circumstances dealt with therein." Realizing this, counsel before us have attempted to bring the present case within the range of certain specific decisions of the Supreme Court which may now be referred to.

(7) Sri Harjinder Singh at the outset referred to Jayanarayan Sukul's case (supra). He then placed considerable reliance on the following observations in Smt. Khatoon Begum v. Union of India and others . The right of a detenu to have his representation considered "at the earliest opportunity" and the obligation of the detaining authority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, or The National Security Act or, for that matter any other Parliamentary or Stale law providing for preventive detention. They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law. Article 22(5) enjoins a duty on the authority making the order of detention to afford the detenu "the earliest opportunity of leaking a representation against the order". The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative which cannot be curtailed or abridged. If the Parliament or the State Legislature making the law providing for preventive detention devises a circum locator procedure for considering the representation or if the inter-departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable. The learned counsel for the State of Uttar Pradesh pointed out certain differences between the Conservation of Foreign Exchange and prevention of Smuggling Activities Act and the National Security Act which according to him make delay inevitable in the consideration of representations in cases of detention under the National Security Act. We think that the differences pointed out are irrelevant. The constitutional mandate brooks no unreasonable delay in the consideration of a, representation, In the cases before us, in Criminal Writ Petition Nos. 293. of 1981 and 392 of 1981 no explanation was offered by the detaining authority for the delay in the consideration of representations and in Criminal Writ petition No. 391 of 1981, administrative red tape was the only explanation offered. We are satisfied that in all the three cases there was unreasonable delay in the consideration of the representations and the detenus are, therefore, entitled to be released. They will be released forthwith. The writ petition? are allowed." He also draw attention to the peremptory requirements enunciated in Harish Pahwa v. State of U. P. and others . In that case, a representation dated 3-6-1980 was rejected on 24-6-1980 and intimated to the detenu on 26-6-1980 . The learned Judges said : "In our opinion, the manner in which the representation made by the appellant has been dealt with reveals a sorry state of affairs in the matter of consideration of representation made by persons detained without trial. There is no explanation at all as to why no action was taken in reference to 1119 representation on 4th, 5th and 25th June, 1980. It is also not clear what consideration was given by the Government to the representation from 13th June, 1980 to 16th June, 1980 when we find that it culminated only in a reference to the Law Department, nor it is apparent; why the Law Departing had to be consulted at all. Again, we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to, proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait turn some assistance in connection with it) until a final decision is taken and communicated to the detenu." Counsel also relied on Rattan Singh and another v. State of Punjab and others (AIR 1982 Sc 1) (7) and on Salah Mohammed v. Union of India and others .

(8) On the other hand, Sri Bagai, counsel for the respondent, submitted that the delay in disposing of the representation in this case arose because the Central Government had to get the representation (which was in Malayalam) translated. to secure comments (trough the proper channel) from the Customs authorities and others against whom allegations had been made in the representation and to obtain translations of various statements which were in regional language. Also, some further delay was inevitable 'because the two weekly holidays (Saturday and Sunday) intervened from time to time and during these days nothing could be done. He referred to Sat Pal v. State of Punjab and others . (9) In that case, two representations were made on behalf of the detenu one of the State Govt. and the other to the Central Government on 4-7-1981. The State Government rejected the representation made to it on 24-7-1981 but the other representation was not forwarded by the State Government to the Central Government till 23-9-1981. Considering the effect of this delay on the part of the State Government, the Court observed: "11. The making of an application for revocation to the Central Govt. under Section 11 of the Act, is therefore, part of the constitutional right a citizen has against his detention under a law relating to preventive detention. While Art. 22(5) contemplates the making of a representation against the order of detention to the detaining authority, which has to be referred by the appropriate Government to the Advisory Board constituted under Section 8(a) of the Act. Parliament has. in its wisdom, enacted Section 11 and conferred an additional safeguard against arbitrary executive action. It is. therefore, idle to contend that the State Government had no duty to forward the representation made by the detenu to the Central Government for revocation of his order of detention under S. 11 of the Act. The State Government had, therefore, no business in withholding the representation endorsed to the Central Government for revocation of the order of detention under Section 11 of the Act for a period of 2 months and '15 days." The Court then distinguished an earlier decision in Rattan Singh's case (AIR 1982 Sc 1) where the court had struck down the detention order because the representation to the Central Government had not at all been forwarded to the Central Government observing: "12. In the present case, there was. therefore, no denial of the right to making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act. unlike in Rattan Singh's case (supra). There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority, as well as of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act. The representations that lie made were duly considered by the State Government is sufficient to invalidate the order of detention can hardly be accepted. The court must look at the substance of the matter and not act on mere technicality."

(9) Counsel for respondents also drew our attention to the recent decision of the Supreme Court in Smt. Madhu Khanna v. The Administrator, Union Territory of Delhi and others . In that case, certain information required by the detenu on 11-2-1986 was supplied to him on 24-2-1986. Sri Bagai places considerable emphasis on the nature of the explanation given for the delay which was found acceptable by a learned Judge of this Court who observed: "A perusal of the files reveals that this application was received by the Administrator on February 13, 1986. On the same day it was sent to the Collector of Customs for comments. The Collector of customs on the same day sent the application to Customs Headquarter, Palam for comments. The Customs Office Palam prepared comments and sent the same to Customs Headquarter on February 17, 1986. It may be mentioned that 15th and 16th February, 1986 were holidays on account of Saturday and Sunday. The Customs Headquarter sent the comments to the Delhi Administration on the same day i.e. February 17, 1986. These were put up before the Deputy Secretary (Home) on February 18, 1986. The file was put up before the Home Secretary on the same day. The file was. then put up before the detaining authority on February 19, 1986, and the detaining authority on February 20, 1986 approved the proposal that the detenu be informed that no statement of exporters had been recorded. The file was received back by the Dy. Secretary (Home) on February 21. 1986 and the detenu was informed vide memo dated February 150 24, 1986. Again 22nd and 23rd February, 1986 were holidays, on account of Saturday and Sunday. These facts disclose that the application of the detenu was dealt with all promptness. I am satisfied that there was no unjustified delay." Before the Supreme Court, if was contended that the letter had been sent from one officer to another as a routine practice for their comments and not because the detaining authority required such comments. The Supreme Court repelled this contention, observing: "We do not see any force in the contention. It has been pointed out by the learned Judge that at the time of making the detention order, the statements of the exporters had not been recorded and consequently, could not and did not form part of the materials placed before the detaining authority. In the circumstances, the learned Judge has rightly observed that the act of the respondent No. 1 is calling for the comments from the Customs Department for the purpose of supplying the authentic information to the detenu was justified. The contention of the appellant is rejected." Counsel also referred to a Full Bench decision of the Bombay High Court in Pratap Jeevanlal Jadhav v. State of Maharashtra and others (1986 Cri. L. J. 1157)(11) of the Delhi High Court in Vijendar Kumar Jain v. Union of India and others (1986 Cri. L.J. 1183)(12) and of the Supreme Court in Smt. Pushpa v. Union of India and others . We have carefully considered the facts of this case in the light of these principles and decisions and we have come to the conclusion that the petitioner's representation was not attended to with the degree of vigilance, dispatch and promptness that is desirable and imperative in a case of detention. A perusal of the details set out in paragraph 15 of the counter affidavit of the respondents and the records which were produced before us Shows that there was inordinate delay at every stage of the dealing with the representation which, in our opinion. was totally unjustified. We shall proceed tb elaborate on each of these. 11. The detenu's representation, it is stated, was received "in the Ministry" on 30-5-1986. After getting the representation translated on 4-6-1986, it was considered necessary to obtain the comment of the enforcement directorate against whom certain allegations bad been made and, eventually, these comments were received in Delhi on 2-7-1986. It will be seen that the respondents have thus taken almost a month to obtain the comments from the concerned authorities. The delay has been caused by sheer red tapism. It is seen that the Ministry sent the representation, on its receipt, to the Enforcement Directorate at Delhi (,4th and 5th June); the Enforcement Directorate discovered that the case pertained to the Madras Zonal Office and sent the papers there (6th to 13th) : the Madras Zonal Office sent it on to the Trivandrum Sub-Zonal Office (16th to 19-th or so). The Trivandrum Office prepared the comments (23rd to 26th June) : and sent the papers directly to their Delhi Headquarters which in turn sent them to the "Ministry" (26th June to 2nd July). We find it difficult to agree with Sri Bagai that all this delay was either unavoidable or justifiable. According to the respondents, they got the representation translated from Malayalam into English on 4-6-1986. They must have become immediately aware that the representation related to a detention in Kerala State and pertained to the Trivandrum Sub-Zone. Even assuming that the Ministry could not directly deal with the Sub-Zonal Office, the head office of the Enforcement Directorate, as soon as the papers were received by it, should have forwarded the papers at once to Trivandrum. In 'the course that the proceedings actually took, the Enforcement Directorate which received the papers on 5-6-1986 was able to have them put on the table of the concerned office which had to give comments only 18th or 19th June, 1986. This, in our opinion, shows that a lot of time was wasted in performing formal routines of correspondence through proper channel, overlooking that the matter under consideration was one which affected the liberty of individual. Had the papers been sent directly to the Trivandrum office by the Enforcement Directorate at Delhi, the comments would have been received back in half the time. It is for the concerned authorities to consider whether in a matter of detention, the detaining authority should be straight away call for and receive reports from the concerned authorities, with copies of the correspondence endorsed to the intermediate authorities to keep them in the know of things and to enable them to offer any comments, or supplement the information furnished, if they so desire. The representation here. we are constrained to observe, merely got shunted from table. to table in its progress from the Enforcement Directorate in Delhi to the concerned investigating authority of the same Directorate in Trivandrum involving, in the process, a delay of substantial period which cannot be considered justifiable even making liberal allowances for the usual constraints in the normal movement of Government machinery. 12. The second stage of delay which we find unjustifiable occurred after the papers were received black. The counter affidavit states that the papers were scrutinised on 4th July. It was put up to the detaining authority only on the 9th July, and further communication took another week. Though the delay between the 4th and 9th July appears to be very small, it assumes great significance for one reason. The respondents say that; though the scrutiny was done on 4th, the file could not be sent to the detaining authority because 5th and 6th were holidays and the case of the detenue before the Advisory Board was fixed for hearing on 718-7-1986. This, far from being a justification, was really a circumstance which necessitated the placing of the papers before the detaining authority with all dispatch, if not on the 4th, at least on the 7th for the second basic principle applicable to representations as enunciated in Jayanarayan Sukul's case (supra) is that the representation should be considered and disposed of where possible before the meeting of the Advisory Board. One could have understood this justification, had the meeting of the Advisory Board been scheduled to be held at some different station, necessitating the dispatch of the records outside immediately. Here the Ministry officials, the detaining authority and the Advisory Board meeting were all at the same place and there was no difficulty whatever in having the detaining authority consider the representation of the detenu immediately and, before the meeting of the Advisory Board as required by law. It was a pure accident that the meeting of the Advisory Board got postponed but. knowing that the meeting was to be on the 8th July. the respondents should have been vigilant, as on 4th July, to place the matter before the detaining authority immediately. In the circumstances this delay, though short, assumes a vital significance that cannot be ignored. 13. We were somewhat intriguer by the absence, in the respondents' counter affidavit, of a clear averment as to when the representation was first brought to the notice of the detaining authority. We called for the records to satisfy ourselves in this respect and came across a rather interesting situation. As already mentioned, the order of detention of the petitioner was made by Sri K K. Dwivedi: The petitioner's representation dated 28-5-1986. was, therefore, addressed to Sri K. K. Dwivedi by name and was in Malayalam. The petitioner, naturally, gave the represent don to the Superintendent of Jail where he was dreamed for onward transmission to the addressee. It appears that there were two other petitioners in the same jail at the time who had also been detained under the Cofeposa Act but in pursuance of an order of detention passed by Sri M. L. Wadhwan, Additional Secretary to the Government of India in the same Ministry to whom they had been made representations on the same date against their detention. In fact Crl. Writ petition Nos. 324 and 325 of 1986 have been filed by them in this Court. The Superintendent of the Jail dispatched all the three representations in a single cover addressed to Sri M. L. Wadhwan, Sri Wadhwan opened the cover, endorsed on the covering letter : "early with comments" and sent it down to the concerned Under Secretary. This was on 30-5-1986. "The Under Secretary, on 4-6-1986. made a note thereon: "Oral translation reveals that some allegations are against Enforcement Directorate. We may send these to them as per fair letter". It is thus that the papers got sent to the Enforcement Directorate. It is now clear that was only on 9th July, 1986 that Sri Dwivedi, the detaining authority in this case, had the representation before him for the first time, considered it in the light of the comments received and rejected the same. We are of opinion that, in the circumstances, the delay in bringing the representation to the notice of the detaining authority invalidates the detention. We have already emphasised the need for the representation being placed before and considered by the detaining authority with all reasonable, dispatch. In this case, the representation, when received was put up before Sri M. L. Wadhwan and not Sri Dwivedi. No doubt this happened because the letter of the Superintendent of Jain was addressed to Sri Wadhwan and we would not also ascribe any want of care on the part of Sri Wadhwan in passing orders thereon. It was a letter containing three representations from the Superintendent of the same Jail and understandably, he assumed that the representalions, all in Malayalam, bad been addressed to him. No doubt the detenus' names were mentioned in the covering letter but one can assume that Sri Wadhwan might not have remembered names and could not have readily recalled that the detention order in this case had been passed by some other competent authority. But we think the respondents cannot escape the charge of negligence and indifference at the next stase. When the representations, with the endorsement of Sri Wadhwan were received in the Ministry, the concerned officials should have settled the mistake. Admittedly, the representation was cot translated at the time and it is clearly addressed to Dwivedi. The least that the Ministry officials should have 154 done was to have put up the representation along with a translation thereof before Sri Dwivedi. The fact that they did not do so seems, unfortunately, to indicate that the forwarding of the representation for comments appears to have been done as a routine exercise. We think: it can hardly be gainsaid that there is a basic duty on the part of the officials dealing with the matter to have put up the representation at once before the detaming authority concerned before any action is taken thereon. This was not done and we do not think this omission can be ignored. 14. Sri Bagai however, submits .that this hardly makes any difference. He says that even if the representation had been received by Sri Dwivedi, he would have done the same thing as even he would have needed the comments from the investigating authorities before deciding the representation which included a request for copies of various documents and also contained allegations against the enforcement authorities. Plausible a? this argument appears to be, we think it cannot be accepted. Sri Dwivedi was the authority who had passed the order of detention against the petitioner. Unlike Sri Wadhwan, he was familiar with the facts leading to the petitioner's detention and he could have also called for, if need be, the various papers and materials on the basis of which he had ordered the detention. The allegations against the Enforcement Officers had been made by the detenu and repudiated by the Enforcement authorities in correspondence that had already been before, the detaining authority at the time the detention order was passed. The only other allegation in the representation (apart from the supply of certain documents) was that a declaration form, allegedly on the person of the detenu and seized by the customs officer, may not have been placed before the detaining authority. In this situation, it is very difficult to say how Sri Dwivedi would have acted. He may not have considered it at all necessary to call for comments or he may have restricted the information needed by him to the issue regarding the declaration form or to some aspects only of the case. One cannot act on the assumption that Sri Dwivedi would have dealt with the representation in the same manner as Sri Wadhwan did. We think it is of the utmost importance that a representation to the detaining authority should be nut up to him at once. If he considers the representation and is of opinion that more information and investigation is needed or that some legal advice should be obtained, it is of course open to him to call for the same and as the decisions show in a proper case, delay occasioned by such necessity may be 155 justified on the facts. But we are unable to go to the extent of saying that the departmental authorities were entitled to postpone putting up the file to the detaining authority until comments from the concerned authorities had been received. It is difficult to overlook their remissness in putting up the representation before the proper detaining authority at the earliest. The decisions as to whether the representation should be dealt with and disposed of straightaway or needed comments and, if so, from whom, should be taken by the detaining authority to whom the representation is addressed and by no other person-not even one who can also exercise powers of detention under the Cofeposa Act. There is no doubt in the present case that the representation dated 28-5-1986 was seen by Sri Dwivedi, for the first time, only on 9-7-1986 and this, in our opinion, is a gross and vital delay which vitiates the detention. 15. It will be seen that in this case the delay to a considerable extent is attributable to Saturdays and Sundays-as many as 12 days are thus accounted for-and there has also been delay in that, though the representation of the detenu was sent by the Madras to the Trivandrum office of the Enforcement Directorate, on the 16th July, it was apparently seen by the concerned officer only on 23rd July as he was away on tour between 16th to 29th July and the next two days were week-end holidays. Again, at each stage of postal transmission of five to seven days have been consumed (e.g. 6-6-1986- 13-6-1986 and 26-6-1986 to 1-7-1986). These were perhaps unavoidable delays (though the Government should consider to what extent delays on these grounds could in future be eliminated) and we have refrained from taking them into account, though they aggregate to a sizeable period, in deciding the question of reasonableness of the delay. 16. On the facts and circumstances of the case, therefore, we have come to the conclusion that 'the petitioner's representation has not been attended to with reasonable dispatch and that the delay vitiates the detention. The delay here is attributable to "negligence..... avoidable red tapism and unduly protracted procrastination", to quote the words of the Supreme Court in Sabir Ahmed v. Union . No help for this case can be derived from the cases cited by counsel as none of them are on similar facts. In Madhu Khanna's case on a consideration of the representation the Administrator called for comments and, but for intervening holidays, there was speedy transmission 156 at every stage. In Satpal's case the Central Government had dealt with the representation expeditiously and it was held that the delay of the State Government in forwarding the representation was unmaterial. Sri Harjinder Singh wanted to contend that Satpal's case was distinguishable as it was a case of a statutory representation and not a representation which constitutes part of the fundamental right under Article 22(5) that was in issue there and that the position in the case of such a representation would be different. He referred to the decision in State v. Zavad Zama Khan But we do not think it necessary to go into this aspect. We think the facts and the decision in Satpal's case are clearly distinguishable, and that the delay that has occurred here, being that of the Central Government and having occurred in the office of the detaining authority itself, vitiates the detention for reasons discussed already. 18. We, therefore, direct that the petitioner-detenu be set at liberty forthwith, unless his continued detention is justified for some other legal and justifiable cause. 19. The writ petition is allowed. We, however, make no order as to costs.