Jasbir Singh vs Union Of India And Ors.
1995 Latest Caselaw 93 Del

JUDGMENT

Anil Dev Singh, J.

(1) This is a writ petition challenging the detention of the petitioner under the provisions of conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA ACT"). The detention order came to be passed and the challenge thereto has been made in the following circumstances:

(2) On the night intervening 9th and 10th of December,1993, the petitioner Along with his brother Bhupinderjit Singh Ghuman,arrived at I.G.I. Airport,. New Delhi for boarding Malaysian Airlines flight No.MH-191. After immigration clearance, the petitioner reported at the customs counter of the Igi Airport. He was asked by the Customs Officers whether he was carrying any unauthorised foreign currency or any other contraband goods in his baggage or on his person. But, the petitioner denied carrying any of them. The baggage of the petitioner was then subjected to search as a result whereof travellers cheques amounting to Us dollars 9500 were recovered. Out of these travellers cheques 5000 Us dollars issued in his name were returned to him and travellers cheques worth 4500 Us dollars issued in the name .of one Sunder Lal bearing the signatures for full encashment were seized under Section 110 of the Customs Act as the petitioner was not able to offer any evidence for their lawful exportation. Consequent to the seizure, a Panchanama was prepared on the spot on December 10,1993. The air ticket of the petitioner for Delhi Kualalampur Singapore - Calcutta -Delhi Sector and boarding card were also taken into possession by the customs officer Along with his passport. The brother of the petitioner who was to travel Along with him was also intercepted. He voluntarily ejected two bundles of foreign currencies from his rectum in the departure hall toilet, in the presence of two witnesses. These bundles contained foreign currencies equivalent to Rs.5,34,290.00 . The statements of the petitioner and his brother were re corded under Section 108 of the Customs Act in which the recovery and seizure was admitted in the manner stated above. Bhupinder Jit Singh also confessed that the currency recovered from him was given to him by the petitioner. The petitioner endorsed the statement of his brother that the recovered currency was given to the latter by him. Besides, the petitioner stated that the currency was handed over to him by one Jagtar .Singh of Patiala and was to be delivered to one Niranjan Singh. The petitioner also admitted having an account with Ocb bank, Singapore, in which he had a credit balance of 65,026.87 Singapore dollars. He even confessed having two other accounts in Hongkong Bank jointly with his mother for which no permission of the Reserve Bank of India was taken. In connection with these offences, the petitioner and his brother were arrested under Section 104(2) of the Customs Act, 1962 on the same day and produced before the duty Magistrate, who remanded them to judicial custody which was subsequently extended till January 7,1994. The petitioner in order to secure his release, filed a bail application on December 14, 1993 in which it was stated that he was falsely implicated, that nothing incriminating was recovered from him and that he had made the statement under Section 108 of the Customs Act under coercion, threat and duress. The bail application, however, was rejected by the Acmm on December 24, 1993. Thereafter the petitioner moved another bail application on January 5, 1994 before the Acmm Delhi which also came to be rejected on January 7,1994. The petitioner filed yet another application for bail on January 19,1994 which resulted in grant of an interim bail for a period of one month by the Acmm vide his order dated January 22, 1994. The petitioner then moved a fourth bail application on February 11, 1994 which was granted by the Accm on March 11, 1994 subject to the petitioner furnishing a personal bond in the sum of Rupees one lac with one surety in the like amount.

(3) On March 25, 1994, the Deputy Secretary to the Government of National Capital Territory of Delhi (Home Department) acting on behalf of the Lt. Governor of National Capital Territory of Delhi passed an order of detention against the petitioner which was served on him on the same day while he was still in custody as by that time he had not fulfillled the conditions of bail. Thereafter on March 30,1994 the grounds of detention were also served on the petitioner. On April 11, 1994 the petitioner made a representation (Annexure D to the petition) to the first respondent, the Lt.Governor of Delhi,seeking revocation of detention order passed against him on the ground that the grounds of detention were served on him on the 6th day of the service of the detention order i.e. beyond the statutory period of five days as provided by Section 3(3) of the Cofeposa Act rendering the detention illegal and violative of Article 22(5) of the Constitution and Section 3(3) of the Cofeposa Act This representation was rejected by the detaining authority on April 22, 1994. Thereafter the petitioner submitted an independent and separate representation to the Advisory Board dated May 6,1994 which was followed by another representation dated May 10,1994. Both the representations again raised a question of interpretation of Section 3(3) of the Cofeposa Act. These representations were ultimately rejected by the Delhi Administration and the detention was confirmed on June 1, 1994 by the order of the Lt. Governor. National Capital, Territory of Delhi

(4) In the meantime, however, on May 30,1994, the petitioner made a fresh representation to the Lt.Governor, National Capital, Territory of Delhi. This representation was considered by the Government and the same was rejected on June 7,1994. Then the petitioner submitted his representation to the Central Government on June 20,1994 which was rejected on July 12,1994. Thereafter the petitioner moved the present writ petition challenging his detention.

(5) MR.ARUN Jaitley, learned Senior counsel and Mr.Trilok Kumar, learned counsel appearing for the petitioner submitted that the detention order stood vitiated as the petitioner was served with the grounds of detention on the sixth day i.e. one day after the period of five days prescribed by Section 3(3) of the Cofeposa Act within which grounds of detention are required to be served afterdetention. According to the learned counsel five days have to be computed by including the day when the detention order was served. Learned counsel also submitted that Section 9 of the General Clauses Act will have no application for interpreting Section 3(3) of the Act and for calculating the period of five days from the detention of the detenu. It was contended that resort to section 9 for interpreting Section 3(3) of the Act cannot be had for the reason that the latter provision has to be interpreted in the light of Article 22(5) of the Constitution which requires the grounds of detention to be served on the. detenu as soon as may be after his detention.

(6) Section 3(3) of the Cofeposa Act which requires interpretation may be quoted: "3.Power to make orders detaining certain persons:- (1) ................................ (2) ................................ (3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention."

(7) It is clear from the reading of Section 3(3) of the Cofeposa Act that it subserves the purpose of Article 22(5) of the Constitution from which springs the requirement to serve the grounds of detention on a detenu. According to Article 22(5) when any person is detained under any law providing for preventive detention grounds of detention must be communicated to him by the detaining authority, as soon as may be in order to furnish him an earliest opportunity of making a representation against the detention. Section 3(3) following Article 22(5), reiterates that the grounds of detention shall be conveyed to the detenu as soon as maybe after the detention. While repeating the mandate of Article 22(5), it requires that ordinarily the grounds of detention be conveyed to the detenu not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention. Specific prescription of time has been laid down in Section 3(3) as the expression " as soon as may be" occurring in Article 22(5) does not connote the precise and definite time within which grounds of detention are required to be conveyed to a detenu. The expression "as soon as may be" merely indicates that the act must be done without avoidable or unreasonable delay. On reading Section 3(3) it is clear that the words "not . later than five days from the date of detention are used for laying down a definite time limit within which grounds of detention must be communicated to the detenu. Then word "from" occurring therein is very significant and holds the key to the interpretation of the provision, cannot be lost sight of. It is well settled that where a particular time is given from a certain date within which an act is required to be performed, the day on that date is to be excluded.

(8) This rule has been followed in Ham Das Gupta Vs. The State of West Bengal . This case involved the interpretation of Section 12 of the West Bengal (Prevention of Violent Activities) Act, 1970 under which the State Government was required to confirm the order of detention within a period of three months from the date of detention. The petitioner in that case was detained on February 5, 1971 and the order of confirmation was made on May 5, 1971. The contention raised by the detenu was that confirmation was made one day after the expiration of the period of three months from the date of detention. This calculation was made on the basis that the first day of detention was to be counted for computing the period of three months laid down for confirmation of the order of detention. Negating the contention the Supreme Court held as follows: "4............When a period of time running from a given day or event to another day or event is prescribed by law or fixed by contract and the question arises whether the computation is to be made inclusively or exclusively of the first mentioned or of the last mentioned day, regard must be had to the context and to the purpose for which to be computation has to be made (Halsabury's Laws of England,(3rd Ed.) Vol.37 p.92). There is, however, a volume of authority in England showing that where a certain thing has to be done within a specified period, the day on which the cause of action arose is to be excluded from computation .......... 5. These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for doing of an act. The rule is well established that where a particular time is given from a certain date within which an act is to be done, the date on that. date is to be excluded. (See Goldsmiths' Company V. West Metropolitan Railway Company, (1904) 1 Kb 1). This rule was followed in Cartwright V. Mac Cormack (1963) 1 All Ewr 11 at p.13, where the expression "fifteen days from the date of commencement of the policy" in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren vs. Dawson Bentley & Co.Ltd. (1961)2 Qb 135, a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action was excluded. (See also Stewart v. Chapman (1951) 2 Kb 792 and in re. North Ex parte Lasluck, (1895) 2 Qb 264). Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. (See Halsbury's Laws of England, (3rd Edition) Vol.37 pp.92 and 95). There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here. 6. In computing the period of three months from the date of detention, which was February 5,1971, before the expiration of which the order or decision for confirming the detention order and continuation of the detention thereunder had to be made, the date of the commencement of detention, namely, February 5,1971 has to be excluded. So done, the order of confirmation was made before the expiration of the period of three months from the date of detention."

(9) Thus the Supreme Court excluded the first day of detention from the computation of three months within which the decision for confirming the detention had to be made by the State Government and held that the order of confirmation passed on May 5; 1971 was not beyond" time. The upshot of the decision is that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. The reasoning of this case squarely applies to the case in hand. In the present case the petitioner was detained on March 25, 1994 and the grounds of detention were furnished to him on March 30, 1994. According to Section 3(3) of the Cofeposa Act grounds of detention are required to be communicated to the detenu as soon as may be. after the detention but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention. Therefore, if the first day, that is the day of detention is excluded, the grounds of detention served on the petitioner are within the period of five days prescribed by Section 3(3) of the Cofeposa Act.

(10) The principle which has stood the test of time is that where there is a terminus ad quem as well as a terminus a quo, the first day is to be excluded in computing the time within which an act has to be performed. (See: In re Court Fees Air 1924 Madras 257 (F.B). Similarly Section 9 of the General Clauses Act also affords valuable guidance in determining when the time commences to run and when it terminates, where statutory period is fixed for the performance of an act. It provides that in any Central Act or regulation made after the commencement of this Act, it shall be sufficient for the purpose of excluding the first day in a series of days or any other period of time, to use the word "from" and for the purpose of including the last day in a series of day or any other period of time to use the word "to. Therefore,according to Section 9 if for defining a period of time the word "from" is used in the statute the first day is to be excluded. Section 3(3) of the Cofeposa Act uses the word "from" for the purpose of indicating termmus ad quem for computing the period of five days within which the grounds of detention are required to be served on the detenu. As noted above, it was argued by the learned counsel for the petitioner that as Section 3(3) of the Cofeposa Act is a part of a preventive detention law. Section 9 of the General Clauses Act should not be used for interpreting . the same. This argument losses sight of the decision in Ham Das Gupta's case (Supra), which was also a case under the preventive detention. The Supreme Court while interpreting Section 12 of the West Bengal (Prevention of Violent Activities) Act,1970, invoked the principle which is mirrored in Section 9 of the General Clauses Act, namely, where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. As already pointed out in Section 3(3) of the Cofeposa Act the word "from" has been used for the purpose of signifying the day when the time given for the purpose of serving the grounds of detention would start running. There is ample authority for the proposition that the word "from" is similar to the word "after". In Srinivasa Silk Mills, Seshadripuram and others Vs State of Mysore and others Air 1962 Mysore 117 it was held that the word "from" is akin to "after" and if the word "from" is used for the purpose of and in reference to the computation of time, as for example, from a certain date, that date is prima facie excluded from computation.

(11) Learned counsel for the petitioner then submitted that sub section 3 of Section 3 of the Cofeposa Act should be interpreted in the light of clause 5 of Article 22 of the Constitution which requires the detaining authority to serve the grounds of detention on the detenu as soon as may be after the detention and the expression "as soon as may be" should be the guiding factor in computing the period of five days prescribed for serving the grounds of detention on the detenu and that period would be inclusive of the day of detention. This interpretation of the learned counsel runs counter to the decision of the Supreme Court in Jitender Tyagi Vs.Delhi Administration and another 1989 (3) Crimes 727. That case involved the interpretation of Section 3(4) of the National Security Act, 1980. According to the said provision when any order of detention is made by an officer mentioned in Sub section 3, he is required to forthwith report the fact to the State Government to which he is subordinate together with grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government. The question that arose before the Supreme Court for consideration related to the computation of the aforesaid period of 12 days. The Supreme Court while noticing that under sub-section (4) the officer making the detention order shall forthwith report the factum of detention of the detenu to the State Government, held that the word "forthwith" was not to be taken into consideration for the purpose of computing 12 days as there was a clear indication that the said period shall be computed after the order is made, which itself excludes the date on which the order is made. The Supreme Court in this regard observed as follows: "8.In our opinion,sub-section (4) has given a clear indication as to the computation of twelve days. The period of twelve days has to be calculated 'after' the making of the order of detention. Thus, it is apparent that the period of twelve days comes after the making of the order of detention. It is true that in sub section (4), the officer making the order of detention shall forthwith report the fact to the State Government, but the word forthwith' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is a clear indication that the said period shall be computed after the order is made. In other words, sub section (4) itself excludes the day on which the order is made. Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order. It is, however, submitted that when two interpretations are possible, that which enures to the benefit of the detenu should be accepted. In our opinion, sub- section (4) admits of only one interpretation regarding the computation of twelve days and accordingly, the question as to the adoption of the interpretation which enures to the benefit of the detenu does not arise".

(12) Therefore, on the same reasoning, the words "as soon as may be" cannot control the computation of 5 days as in Section 3(3) of the Cofeposa Act there is a clear indication that the period has to be computed from and after the date of detention. The legislature has given clear five days having regard to the fact that many formalities may have to be complied with by the detaining authority before serving the grounds of detention on the detenu. For example there may be several documents which would be required to be translated in the language which the detenu understands and the knowledge of the fact that detenu only understands a particular language may be available to the detaining authority only on his detention. Therefore grant of a short time of five days for serving the order from the date of detention has been thought to be just and reasonable by the legislature. This period cannot be curtailed by an interpretative device when the provisions are explicit and clearly point out that the period of five days for serving the grounds of detention is to be computed from and after the date of detention. In any event as earlier pointed out the expression "as soon as may be" is not indicative of any precise time within which an act is to be performed. These words are for cutting down avoidable delay.

(13) Learned counsel for the petitioner however relied upon the Division Bench decisions of Andhra Pradesh and Patna High Courts in C.Krishna Reddy and another Vs. Commissioner of Police, Hyderabad and others 1982 Crl.L.J.592and Gulam Sarwar Vs. The State of Bihar and others 1974.Crl.L.J. 109 wherein it was held that for computation of five days for serving the grounds of detention, the day on the date of arrest or detention will have to be included or reckoned. These were cases under the National Security Act,1980 and Maintenance of Internal Security Act,1971 respectively. For the reasons mentioned above, we have to strike a discordant note and express our inability to follow the views of their Lordships. The Supreme Court in Haru Das Gupta (Supra) has in a detention matter interpreted the word "from" as akin to the word "after" and this being the position we have to make a respectful departure from the views expressed by the Andhra Pradesh and Patna High Courts.

(14) Learned counsel for the petitioner then contended that the representations dated May 6, 1994 and May 10, 1994 both addressed to the Advisory Board should also have been sent to the Central Government and since these representations were not sent to the Central Government there has been an infringement of Article 22(5) of the Constitution read with Section 11 of the Act in as much as the petitioner had been denied the benefit of Section 11 of the Cofeposa Act which inter alia, confers supervisory power on the Central Government. In support of this proposition learned counsel for the petitioner heavily relied on the decisions of the Supreme Court in Smt.Gracy Vs. State of Kerala and another 1991(1) Crimes 552, Amir Shad Khan Vs. L.Hmingliana and others and Jai Parkash vs. District Magistrate. Bulandshahr, U.P. and others 1993 Scc (Cr.) 121.

(15) It is not denied by the learned counsel for the respondent that the representations Annexure G and G-1 to the petition (pages 41 to 44 of the petition) were not sent to the Central Government. As already seen these representations were addressed to the Chairman Advisory Board and' members thereof. The point taken in the representations is regarding the interpretation of Section 3(3) of the Act, i.e. how the time prescribed for communicating the grounds of detention is to be counted. It is not the case of the petitioner that Advisory Board failed to consider the representation or the State Government while confirming the detention order, did not consider the representations made by him. The only grievance appears to be that these representations which were addressed to the Advisory Board were not transmitted to the Central Government.

(16) Under Article 22(5) of the Constitution, a duty has been cast on the detaining authority to consider the representation of a detenu. Article 22(5) of the Constitution, however, neither expressly nor by implication casts a duty on the Central Government to consider the representation of a detenu when it does not happen to be the detaining authority and the same is not addressed to it. However, learned counsel for the petitioner submitted that the duty is cast on the Central Government to consider the representation of the petitioner under Section 11 of the Act. This submission of the learned counsel for the petitioner requires an examination of Section 11 of the Act. Section 11 of the Act deals with revocation of detention orders. It reads as follows: "11.Revocation of detention orders 1) Without prejudice to the provisions of Section 21 of the General Clauses Act,1897 (10 of 1897) a detention order may, at any time, be revoked or modified - a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government; b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government by the Central Government. . 2) The revocation of a detention order shall not bar the making of another detention order under Section 3 against the same person."

(17) Under the above provisions, even when a detention order is made by an officer of the State Government or by the State Government itself or by the officer of the Central Government the detention can be revoked or modified by the Central Government at any time.

(18) The power under Section Ii is supervisory in nature and can be exercised on information received by the Central Government from its own sources including the report by the State Government under Section 3(2) of the Cofeposa Act or on the representation made by the detenu, if any. It may be pointed out that the representations dated May 6,1994 and May 10,1994 were made by the petitioner after the time prescribed for sending the report about the detention of the petitioner under Section 3(2) of the Act by the State Government to the Central Government had expired. Therefore these representations could not have accompanied the report sent by the State Government to the Central Government. In any event Section 3(2) requires a report to be sent to the Central Government about the detenu's detention but it does not talk of the representation of a detenu being sent Along with the same. In none of the cases cited by the learned counsel for the petitioner nor have we come across any decision, in which it has been held that Article 22(5) of the Constitution imposes a duty on the State Government to transmit the representation of a detenu to the Central Government when the same has been addressed to an authority other than the Central Government and when the Central Government does not happen to be the detaining authority. In case the petitioner wanted. revocation of the detention order by the Central Government, he could have made a representation to the Central Government or he could have requested the State Government to transmit the representations, Annexures G and G-1, to the Central Government. At this juncture it may be relevant to point out that subsequently on June 26,1994 the petitioner made a representation to the Central Government (Annexure O, page 62 of the writ petition) which was duly considered and rejected by it on July 12, 1994 (Annexure P page 65 of the writ petition). Therefore, in any event, no prejudice has been caused to the petitioner by failure of the State Government to transmit the aforesaid representations to the Central Government, which were only addressed to the Advisory Board, as subsequently an independent representation of the petitioner addressed to the Central Government was rejected.

(19) Reliance by the learned counsel for the petitioner on the decision in Smt. Gracy (Supra) does not advance his case. In that case the detenu was detained under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,1988 and his detention was. confirmed by the Central Government which also directed his detention for a period of two years w.e.f. January 30, 1990. In the grounds of detention the petitioner was specifically informed that he had a right to represent to the detaining authority,Central Government and the Central Advisory Board against the detention order. It was admitted that the representation was addressed to the Advisory Board and no representation addressed to the Central Government was made by the detenu.

(20) The precise question before the Supreme Court in Smt. Gracy case (supra) was whether there had been any infraction of the guarantee under Article 22(5) of the Constitution as a result of the Central Government's failure to consider detenu's representation independent of its consideration by the Advisory Board, when the representation was only addressed to the Advisory Board. Besides that was a case of detention by the Central Government and not by the State Government and hence no question arose whether the representation addressed to the Advisory Board was to be forwarded by the State Government to the Central Government.

(21) "FROM the decision of the Supreme Court in Smt.Gracy's case the following principles noticed and laid down therein can be culled out: 1.It is beyond the pale of controversy that the right to make a representation under clause 5 of Article 22 by necessary implication guarantees the constitutional right of a proper consideration of the representation. 2. The obligation of the Government to afford to the detenu an opportunity to make representation is distinct from the Government's obligation to 'refer the case of the detenu Along with representation to the Advisory Board to enable it to form its opinion. 3. It is implicit in Article 22(4) and (5) that the Government while discharging its duty to consider the representation cannot depend upon the views of the Advisory Board on such representation. It has to consider the representation on its own without being influenced by any such view of the board. The right of the detenu to have his representation considered by the Government is safeguarded by Article 22(5) and is independent of consideration by the Advisory Board under Article 22(4). 4. The Government considers the representation to see whether the order is inconformity with power under the law and the board considers it to ascertain whether there is sufficient case for detention. 5. If there be only one representation by the detenu addressed to the detaining authority the obligation arises under Article 22(5) of the Constitution of its consideration by the detaining authority independent of the opinion of Advisory Board in addition to its consideration by the Advisory Board. In other words one representation of the detenu to the Government does not dispense with the requirement of its consideration also by the Advisory Board. There is dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority, the Government, irrespective of the fact whether the representation is addressed to the detaining authority/Government or the Advisory Board, mode of address being only a matter of form.

(22) On the basis of the above noted fifth principle, learned counsel for the petitioner wants us to hold that when representation is made by the detenu, whether to the Advisory Board or authorised officer of the State, who made the detention order, or to the State Government or to the Government of India, it must be considered by all of them.

(23) It may be noted that the Supreme Court in the above case only referred to the duty and obligation of the Advisory Board and the detaining/confirming authority to consider the detenu's representation, even when the representation is addressed to only one of the authorities. This is as per the mandate of Article 22(4) and (5) of the constitution, implied in Article 22(4) in so far as the Advisory Board is concerned and express in Article 22(5) in regard to the detaining authority. But apart from the dual responsibility of the detaining authority and the Advisory Board to consider the representation of the detenu, which may be addressed to any of the authorities, there is no further obligation on the part of the State to transmit the representation to the Central Government, when the representation is not expressly or impliedly addressed to the latter.

(24) Therefore Smt.Gracy's case (Supra) is no authority for the proposition that the representation of the detenu which is not addressed to the Central Government must be transmitted for consideration of the Central Government. In Sabir Ahmed Vs. Union of India , while considering the scope of Section 11 of the Cofeposa Act, the Supreme Court held that the power under this Section was supervisory and could be exercised on information received from the Central Government from its own source including the report sent by the State Government under Section 3(2) thereof, which however, did not require that the representation if any, made by the detenu should also be sent Along with thee report to the Central Government.

(25) In Phillippa Anne Duke Vs. State of Tamil Nadu and others the Supreme Court was considering whether Bout de Papier handed over to the Prime Minister of India during her visit to Britain and the subsequent reminder addressed to the External Affairs Ministry by the British High Commission could be considered as representations to the Central Government under Section 11 of the Cofeposa Act. The Supreme Court held that it was not possible to treat representations from whatever source addressed to whomsoever officer of one or other department of the Government as representations to the Government of India requiring the appropriate authority under Cofeposa Act to consider the matter under Section 11 of the Cofeposa Act.

(26) In Smt.Pltshpa Vs. Union of India and others 1980 (Supp.)SCC 391 it was held that undoubtedly it would be open to the detenu to make representation under Section 11 of the Cofeposa Act requiring either the State Government or the Central Government's the case may be, to revoke the order of detention. But the initial representation under Article 22(5) of the Constitution would ordinarily lie to the detaining authority as it is that authority which takes the decision to detain the petitioner. It was noted by the Supreme Court that there is nothing in the scheme of Article 22(5) of the Constitution or provision of the Cofeposa Act requiring the representation to be considered by the Central Government or the State Government notwithstanding that the order of detention is made by an officer specially empowered in that behalf.

(27) The power of the Central Government under Section 11 of the Cofeposa Act to revoke the order of detention implies that the detenu has a right to make a representation to it for exercise of that power. If the detenu addresses the representation to the Central Government to exercise its right under Section 11, the same must be transmitted to the Central Government. But in case the detenu does not address a representation to the Central Government expressly or by necessary implication the same need not be sent to it.

(28) The decision in Jai Parkash case (Supra) does not help the petitioner as in that case the detenu had submitted nine copies of the representation addressed to the Home Secretary without indicating whether the representation was to be forwarded to the Home Secretary, Government of India or Home Secretary to the State. In the grounds of detention it was specifically mentioned that the detenu had a right to make a representation against his detention to the Central Government as well as the State Government. In the peculiar facts and circumstances of that case, the Supreme Court held that the representation of the detenu should have been sent to the Home Secretary to the Government of India and failure to do so, vitiated the detention.

(29) Again decision in Amir Shad Khan (Supra) is of no avail. to the petitioner.. In that case the detenus was apprised of their right to make representation to the State Government, Central Government and Advisory Board. However, the representation was addressed only to the detaining authority and request was made to it for transmitting a copy thereof to the Central Government for considering the revocation of the detention orders. The State Government which was the detaining authority rejected the representation of the detenus and did not forward the same to the Central Government. The Supreme Court having regard to the fact that the detenus had made a specific request for transmission of a copy of the representation to the Central Governmment and the State Government having failed to comply with the request held that the orders of detention stood vitiated. The facts of the present case are different from the facts of Amir Shad Khan's case (Supra). In the present case there was no request of the detenu for forwarding the representations dated May 6, 1994 and May 10, 1994 to the Central Government. Accordingly, the submission of the learned counsel for the petitioner that the non-consideration of the petitioner's representation dated May 6, 1994 and May 10,1994 by the Central Government has resulted in violation of Article 22(5) of the Constitution and Section 11 of the Cofeposa Act, is not tenable.

(30) Since in the present case there was no communication whatsoever from the detenu requiring the State Government to send the representations dated May 6,1994 and May 10, 1994 to the Central Government, we are of the opinion that the State Government was under no obligation to have the representations of the petitioner dated May 6, and May 10 of 1994 transmitted to the Central Government.

(31) Learned counsel for the petitioner also submitted that the petitioner received a set of grounds of detention with documents in Punjabi language but he was not furnished with a proper index with correct page numbers', thereby making it impossible for him to verify whether or not he had received all the documents. He explained that the detenu was supplied with an index of documents accompanying the grounds of detention in Punjabi script which was a translation of the index in English. It was also pointed out that the index in English shows that there were 210 pages of documents accompanying the grounds of detention, while the documents in Punjabi script consisted of 250 pages. It is the contention of the learned counsel for the petitioner that since the petitioner did not know English language he could not cross check the documents with the list which was supplied to him in Punjabi.

(32) This submission of the learned counsel is a submission of despair and does not carry conviction. Learned counsel for the petitioner Mr.Trilok Kumar even at this stage, when he had the facility of both set of documents, Punjabi and English as well, has not been able to point out any discrepancy between the two sets. If any document was missing from the Punjabi set of documents, the petitioner would have certainly pointed out the discrepancy in the representations which were filed by him on behalf of the detenu. Even during the course of arguments no such discrepancy was brought to our notice. The plea is merely an after thought. Moreover the petitioner had to be supplied with translation of the documents including index which was in English. Therefore the translation of the index from English to Punjabi had to reflect what was contained in the former as it had to be a true and correct translation of it. Therefore, this plea of the petitioner also fails.

(33) Learned counsel for the petitioner submitted that the detaining authority considered two irrelevant and extraneous documents which fact is evident from the list/index of documents. These documents figure at S.Nos.205 and 206 thereof. Document mentioned at S.No-205 is a copy of the application filed by the petitioner before Shri R-K.Sharma, Acmm, New Delhi wherein it is stated that the petitioner was arrested under Sections 453, 324 and 506 Indian Penal Code on February 17,1993 and detained in Tihar Jail. It is further averred that he was released on parole in the customs case in which he was required to be present in the court on February 21, 1994. In the end the petitioner prayed that production warrants should be sent to the Jail for his presence in the court. The other document is also a copy of the application filed in the court of Acmm, New Delhi seeking return of the unused air tickets of the petitioner and his brother which had been seized by the Customs Officer. In this application the petitioner stated that he was arrested by the Customs Officer at the Igi Airport, New Delhi and at that time the unused air tickets, were seized Along with boarding card by him. The petitioner prayed that the air tickets and boarding card be returned to him. From a perusal of the documents it appears some portions thereof pertaining to his arrest and release on parole in connection with the customs case are relevant. As long as the documents contain some material, which is relevant it cannot be said that the detaining authority considered extraneous and irrelevant material.Thus the submission of the learned counsel for the petitioner is without force and the same is rejected.

(34) Lastly it was contended by the learned counsel for the petitioner that there was inordinate delay on the part of the Central Government in disposing of the representation of the petitioner. He pointed out that the representation to the Central Government was made on June 20,1994 but was disposed of only on July 12,1994 i.e.after a gap of 21 days.

(35) It is a settled principle of law that the representation of the detenu must be dealt with expeditiously at every level and each stage through which it passes during the process of its disposal by the authority to whom it is addressed. It is the right of the detenu to have his representation considered and disposed of promptly and without unreasonable delay. This right of the detenu has the sanction of Article 22(5) of the Constitution and must be zealously guarded because if the right is to have real meaning it cannot be allowed to be breached or infringed. The safeguards under Article 22(5) are the 'soul of liberty. At the same time, it must be pointed out that the question whether the representation submitted by a detenu has been dealt with promptly and diligently is to be decided not by the application of invariable absolutes or any rigid or inflexible rule or set formula but on a careful scrutiny of the facts of each case. The observations of the courts that each day's delay in dealing with the representation must be explained are only meant to emphasise the expedition with which the representation must be considered.

(36) Reverting back to the present case, learned counsel for the respondent invited our attention in regard to the aforesaid question to the explanation given in the counter affidavit filed on behalf of the second respondent. The explanation is set out in para Vii of the affidavit which reads as follows: "VII.With regard to Ground Vii, it is denied that there was inordinate delay on the part of the answering respondent in considering the representation made by the petitioner. It is submitted that the petitioner made a representation to the Answering Respondent only on 20.6.94, which was forwarded by Superintendent, Tihar Jail, New Delhi vide his letter dated 20.6.94 and the same was received in the Cofeposa Unit of the Ministry on 22.6.94. The same was placed before the considering authority who directed to call for the comments of the sponsoring authority. On 22.6.94 itself, the answering respondents requested the sponsoring authority to send all relevant facts and parawise comments on the representation made. The sponsoring authority furnished their comments vide their letter dated 5.7.94 and the same were received in the Cofeposa Unit on 6.7.94. (25th, 26th June, 1994 were Saturday and Sund and 2nd and 3rd July,1994 were also Saturday and Sunday respectively). The case was processed and submitted to the Joint Secretary (Cofeposa ) on 7.7.94, who after due application of mind, rejected the representation on 12.7.94.(9th and 10th July,94 were Saturday and Sunday). A memo.intimating the detenu about rejection of his representation by the Central Government was also issued on 12.7.94"

(37) Reading of the aforesaid para of the counter affidavit reveals that the Superintendent, Tihar Jail, Delhi forwarded the representation of the petitioner to the second respondent on June 20,1994 itself. The representation was received in the Cofeposa unit of the Ministry of Finance on June 22,1994. The same was placed before the concerned authority on the same date. On June 22, 1994 itself, the authority called for the parawise comments of the sponsoring authority on the representation of the petitioner. The sponsoring authority dispatched its comments on the 13th day by its letter dated July 5, 1994 which was received in the Cofeposa unit on July 6, 1994. Thereafter, on July 7,1994 the case was placed before the Joint Secretary, Cofeposa who disposed of the representation of the petitioner on July 12, 1994. Thus it is clear that the Joint Secretary took just five days in disposing of the representation. Therefore at the level of the Joint Secretary there was no delay in dealing with the representation of. the petitioner.

(38) The only other grievance of the petitioner is with regard to the time taken by the sponsoring authority from June 23,1994 to July 5, 1994 for sending its comments to the second respondent (See para Vii of the rejoinder to the counter-affidavit of the second respondent). However, we find that the sponsoring authority is not a party to the writ petition and no affidavit seems to have been filed by it. Therefore an opportunity is required to be given to the sponsoring authority to furnish its explanation with regard to the time taken by it in sending its comments to the second respondent. .Accordingly, we direct the sponsoring authority. Collector of Customs/Additional Collector of Customs, New Customs House, Igi Airport, New Delhi to submit its explanation with regard to the time taken by it in sending its comments on the representation of the detenu. An affidavit in this regard will be filed by the sponsoring authority within five days. The sponsoring authority will be informed of this order by the second respondent, who will ensure the filing of the affidavit within the stipulated time. It is clarified that no further opportunity will be given in this regard.

(39) All points except the last submission of the learned counsel for the petitioner fail. The matter will be listed on February 10,1995 for considering the explanation of the sponsoring authority and for disposal of the writ petition.

(40) Office will send the extract of the penultimate paragraph of this order to the sponsoring authority.Collector of Customs/Additional Collector of Customs, New Delhi Customs House, Igi Airport, New Delhi and also give a copy of the same to the second respondent today itself for doing the needful.