Gasam Pour Karami Ligvan vs Union Of India And Ors.
1989 Latest Caselaw 353 Del

JUDGMENT

M.K. Chawla, J.

(1) By this Judgment, I propose to dispose of two connected criminal writ petitions No. 82 of 1989- Shri Gasam Pour Karami Ligwan vs. Union of India and others, arid Criminal Writ petition no. 86 of 1989--Rahim Muradi vs. Union of India and others, as both these petitioners (Iran nationals) Along with one other were detained for having been found in possession of gold with foreign markings on the same day. At this stage, it may be noticed that the detention against their other colleagues namely Shri torkzaban has already been quashed.

(2) Both these petitioners are seeking the setting aside of the detention orders passed on 12th September, 1988 by Shri K. L. Verma, an especially empowered officer u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), hereinafter called as Cofeposa Act. The order was passed aginst the petitioners with a view to preventing them from abetting the smuggling of goods. There is no need to go into the circumstances under which the petitioners were arrested and detained and the numerous grounds urged by them in these petitions, as for the view that I intend to take, it is not necessary to elaborate all the grounds.

(3) It is contended by the learned counsel for the petitioner that in exercise of their constitutional right, the petitioners on or about 5th November, 1988 made representations against their detention to the detaining authority through the Superintendent. Dum Dum Central Jail. Calcutta. In the said representations the petitioners not only requested the detaining authority to revoke the detention order but also to supply them the copies of the material documents relied upon by the detaining authority, in Persian language-the only language known to them. so as to enable them to make a complete and effective representation. The copies of the representations are "Annexure'-C" to the respective petitions. The plea is that their representations have not been disposed of till date thus rendering their continued detention illegal.

(4) The defense of the respondents as disclosed in the affidavit of Shri C. Ranjan, Under Secretary to the Ministry of Finance in short, is that no representation dated 5-11-88 from the petitioners was received either in the Customs House or in the Ministry of Finance.

(5) To substantiate this argument learned counsel for the petitioner produced before me the original letter from Welfare Officer and countersigned by the Superintendent Dum Dum Central Jail. Calcutta, showing that the representations of both these detenus were handed over to the Jail authorities bearing dispatch no. 7639/WO dated 5-11-88 and that the detenus have not recived any reply to their representations. This communication was received by the Counsel for the petitioners on 15th June, 1989 in reply to his enquiry about the fate of the representations of the petitioners. The authenticity of this letter as such cannot be doubted.

(6) This aspect finds corroboration from the fact that in their representations before the Chairman and Members of the Central Advisory Board, the petitioners repeated this very grievance that their, representations dated 5-11-88 sent to the deting authority through Superintendent Dum Dum Central Jail Calcutta had not yet been disposed of. It comes to that the petitioners did make the representations as mentioned in their respective petitions, the fate of which has not been decided till date.

(7) It is a settled law that a representations by a detenu in whatever language it may be seeking setting aside of the detention order is to be considered with reasonable expedition. It is imperative on the part of every authority to discharge the obligation of dealing with the representation and transmitting the result of the same to the detenu with all reasonable promptness and diligence. In this case, the respondents have not cared to take this precaution which was required of them while disposing of the representative.

(8) Learned counsel for the petitioner of support of his contention relied upon a Judgment of this Court reported as Criminal Writ No. 52/85-Rajan Bakshi vs. Shri K. K. Dvivedi decided by N. N. Goswamy, and Charanjit Talwar, JJ., on 23rd May, 1985.(1) In this case, even though the respondents (Central Government) denied having received the representation through the Superintendent Central Jail, Tihar, but the petitioner placed on record the copy of the representation which bear the signature of the Deputy Superintendent of the Central Jail Along with its seal. "The Deputy Superintendent who appeared in Court admitted having received the representation and its transmission to the Joint Secretary by ordinary post. On these facts, the Bench concluded that the representation of the detenu having not been considered and disposed of within a reasonable time, the detenu is entitled to be released. To arrive at this conclusion, the Bench relied upon the judgment reported as Rattan Singh and another vs. State of Punjab and others, Air 1982 S.C.I. (2) In the said Judgment their Lordships of the Supreme Court observed that :

"The failure on the part of either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government, deprives the detenu of the valuable right to have his detention revoked by that Government. As a result, the continued detention of the detenu is rendered illegal."

(9) It is not disputed that the right of representation is guaranteed under Article 22(5) of the Constitution of India which cannot be allowed to be taken away under any circumstances. In the present case, the representations having not been considered and disposed of till date, the detention order is liable to be set aside

(10) For the reasons recorded above, the Rule is made absolute. The petitioners be released forthwith unless required to be detained in any other case.