Harvimder Singh vs Union Of India And Ors.
1989 Latest Caselaw 350 Del

JUDGMENT

M.K. Chawla, J.

(1) In exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) hereinafter referred to as Cofeposa, Shri K. L. Verma, Joint Secretary to the Government of India passed an order of detention of the petitioner dated 13-10-1988, with a view to preventing him from smuggling goods. As a consequence of this order, the petitioner was arrested and detained on 7th Novernber, 1988. On the same day, the grounds of detention were duly served.

(2) On 25th November, 1988, the petitioner exercised his right in making the representation against the order of his detention, to the detaining authority and the Centra Government. His representations were carefully considered and the same were rejected by order dated 23rd December, 1988, but communicated to the detenu on 17th January, 1989. For the determination of the questions in controversy, the other facts need not be stated.

(3) The contention of the learned counsel for the petitioner is two-fold; that there has been an inordinate and unexplained delay, not only in dealing with the representation but also in communication of its result to the petitioner.

(4) The case set up by the respondents in their counter is that the representations of the petitioner have been dealt with expeditiously, continuously and no indifferences has been shown by the appropriate authorities towards it. The delay, if any, has been fully explained. To substantiate this submission, learned counsel places reliance on the following averment. :-

"The petitioners representation dated 25-11-88 was received in the Cofeposa Unit on 28-11-88. The representation was placed before the Joint Secretary on 29-11-88 who desired the parawise comments of the Sponsoring Authority i.e. the Collector of Customs on the representation. On the very next day, i.e. 30-11-88, the representation was forwarded to the Sponsoring authority i.e. Collector of Customs. The representation was received in the Customs Headquarters on 1-12-1988. On 2-12-88, the same was assigned to a dealing officer. On 6-12-S8, the dealing officer sent the representation to the Airport Customs. It may be mentioned that 3-12-88 and 4-12-88 were holidays being Saturday and Sunday. The representation was received at the Airport Customs on 7-12-88. The representation was then processed and since the petitioner had asked for the Hindi translation of the order dated 12-7-88 by the learned A.C.M.M. the same was .given for translation on 8-12-88. The comments were finalised and the Hindi translation of the order dated 12-7-88 were sent to the Customs Headquarters on 12-12-88. It may be mentioned that 10-12-88 and 11-12-88 were holidays being Saturday and Sunday. The same was received by the Customs Headquarters on 13-12-88 and on the next day, the comments or' the representation and Hindi transition of the order were sent to the Ministry. The comments on the representation Along with the representation and Hindi translation dated 12-7-88 Along with covering letter dated 14-12-88 were received in the Cofeposa unit on the some day i.e. 14-12-88. The detaining authority, who was on official tour, returned on 19-12-88. The very same dav. i.e. on 19-12-88, the detaining authority considered and rejected the representation of the petitioner. Since the same representation was also addressed to the Central Government, the detaining authority forwarded the file containing the representation to the Finance Minister through the Minister of State for Revenue on 21-12-83. The Minister of State for Revenue considered and rejected the representation on 21-12-88 subject to the approval of the Finance Minister. The file was then forwarded to the Finance Minister, Who considered and rejected the representation on 22-12-88. The file was received back in the Cofeposa Section en 23-12-88 and two memos. were issued to the petitioner on 23-12-88 intimating the rejection of his representations by the Central Government and the detaining authority. It is thus submitted that the representations of the petitioners have been dealt with without any unreasonable delay."

(5) Learned counsel for the petitioner even though contended that the respondents have not explained the undue delay which has occurred from 14-12-88, when the comments Along with the Hindi tranlation of the older dated 12-7-88 were received in the Cofeposa Unit, till its rejection by the Finance Minister on 23-12-88, but the bare perusal of the reply reproduced above, in my opinion, satisfactorily explains the delay at this end also. The important aspect to be kept in mind is as to whether the representation has been dealt with continuously and expeditiously and the appropriate authorities have not shown any indifference in dealing with the same. In my opinion, this essential ingredient has been complied with and the delay, if any, has been fully explained. On the facts of this case, I do not find that there has been any fatal delay at any point of time during the consideration and rejection cf the representation.

(6) That may be so, but the respondents have yet to cross another hurdle. The contention is that even if the delay till the rejection of the petitioner's representation is considered to be cogent even then the respondents have not at all explained the delay for not communicating this decision to the detenu till 17-1-1989. According to the learned counsel it is enjoined upon the respondents to show from the record that an earnest attempt was made by the office to inform the result of his representations to the detenu 'or' the delay was on account of reasons beyond their control. In the absence of a valid explanation, the order of detention is liable to be set aside In support of this contention, learned counsel places reliance on the judgment reported as Harish Pahwa vs. State of U.P. & Ors. .

(7) Mr. Misra, learned counsel for the respondent concedes that in the counter-affidavit of the Under Secretary no explaination whatsoever has been furnished, as to how and under what circumstances and at whose fault, the order of rejection of the representation of the petitioner was not communicated expeditiously to the petitioner. He has also not been able to give a valid explanation for this delay from the record file. The fact remains .that the department remained inactive, for reasons best known to the concerned officers, and no action was taken on the file after it was received back from the Finance Minister on 23rd December, 1988. What is its effect.

(8) The submission of the learned counsel for the respondents is that no prejudice has been caused to the detenu in not communicating the rejection of his representation. His concern was only to the extent of the making of the representation and an order passed thereon. If the orders have been for his release, then the immediate communication was essential, as he could not be detained any longer, but the delayed information of rejection will have no adverse consequence.

(9) This argument on the face of it is devoid of any substance. As observed earlier, the Supreme Court in Harish Pahwa's case (supra) declared the detention of the petitioner unconstitutional on the short ground that there was two days' delay in the rejection of the representation on 24th June, 1980 and its communication to the jail authorities on 26th June, 1980 While expressing their concern for the inaction of the authorities in disposing of such like representations of the detenus, the Court observed as under :-

"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 opinion of Secretary after Secretary and allowing the representations 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 emphasize 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 for some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having b.'en done in the present case, we have no option but to declare the detention unconstitutional."

(10) Delay in communication of the memorandum rejecting the representation of the detenu has been held to be fatal in a case reported as Sachindra Nath Audya vs. Union of India and others, 1988(2) Delhi Lawyer, 82,(2) wherein the order dated 26th March, 1988, of the Finance Minister rejecting the representation was sent on 29th March, 1988 but the same was actually received by the petitioner on 9th August, 1988. Relying on the law laid down in Harish Pahwa's case (supra), the Court observed that it was obligatory on the part of the respondents to immediately communicate the result of the representation to the detenu. This duty having not been performed with due diligence, the detention of the petitioner was quashed. On almost similar facts, wherein the order of rejection was not communicated to the petitioner, Malik Sharief-ud-Din, J. in Shakir Ahmed vs. Union of India and others, 1988(2), Delhi Lawyer, 312(3), observed as under :

"....THESupreme Court in the case of Harish Pahwa vs. State of U.P" has laid emphasis on the fact that not only that the representation of the detenu must be considered and dealt with continuously but that final decision be taken and that the decision be communicated to the detenu. In this case, it seems to me that the Supreme Court has viewed the communication part of this rejection as a necessary facet to the consideration of the representation. Normally, and ordinarily also, if a representation is made or it there is an appeal for the redressal of a grievance and a decision is taken it must be pronounced to the person who is interested therein. Having found that the representation has been dealt with expeditiously but not communicated to the detenu as required by Harish Pahwa's case, supra. I find that there has been non-compliance with the requirements of Article 22(5) of the Constitution."

(11) The Judgments referred to and relied upon by the learned counsel for the petitioner fairly and squarely apply to the facts of the present case. Here also admittedly there is absolutely no explanation whatsoever, of the 24 days' delay in communicating the result of the representation of the detenu.

(12) It was imperative on the part of the concerned authorities to discharge the obligatory of dealing with and transmitting the decision with all reasonable promptness and diligence. The respondents have miserably failed to come up to the expectations of the law laid down by the Supreme Court. On that account alone, the detention order deserves to be quashed.

(13) The petition is allowed and the Rule is made absolute. The continued detention of the petitioner is quashed. He shall be released forthwith unless required to be detained in some other case.