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PETITIONER: JASBIR SINGH

       Vs.

RESPONDENT: LT. GOVERNOR, DELHI & ANR.

DATE OF JUDGMENT:       16/04/1999

BENCH: G.B.Pattanaik, M.B.Shah

JUDGMENT:

PATTANAIK, J.

     The  appellant challenges the legality of his order of detention  passed under Section 3(1) of the Conservation  of Foreign Exchange and Prevention of Smuggling Activities Act, 1974  (  for  short COFEPOSA) as well as the  order  of  the Division   Bench   of  Delhi   High  Court  dismissing   the appellant’s  Writ  Petition filed for issuance of a Writ  of Habeas  Corpus.   The  order  of  detention  was  passed  on 25.3.1994  and  the period of detention was for a period  of one year which is long over but the detenu pursues his right of  challenging the order of detention as a proceeding under Smugglers and Foreign Exchange Manipulators Act (SAFEMA) has been  initiated by the Appropriate Authority.  The appellant was  apprehended at Indira Gandhi International Airport, New Delhi  while he was leaving for Kualalumpur/Singapore and on search,  US  dollars  amounting  to  1.39  lakhs  in  Indian currency  were recovered.  Further his brother who was  also going with him, from his person, foreign currency equivalent to  5.34  lakhs  of  rupees was  recovered.   The  detaining authority  being  of the opinion that the detention  of  the appellant  is  necessary with a view to preventing him  from acting  in  any  manner prejudicial to the  conservation  of foreign  exchange, issued the order of detention on  25.3.94 and  was  served  on the detenu on the same  day.   But  the grounds  of  detention was served on the appellant  on  30th March,  1994.  In accordance with the provisions of the  Act his  case  was  forwarded  to the  Advisory  Board  and  the Advisory  Board  on  consideration of the  materials  placed before  it, gave its opinion that there is sufficient  cause for the detention of the detenu.  The appropriate government thereafter  confirmed  the  detention and  after  expiry  of period  of  one  year the detenu has been released  but  the detenu/appellant  filed a Habeas Corpus Petition in the High Court  challenging  the legality of the order of  detention. By  way  of an additional application the detenu also  urged additional  grounds  and  the High Court ultimately  by  the impugned  judgment  dated  15.2.1995   dismissed  the   Writ Petition filed by the appellant.  The appellant was released on  24.3.95  after  expiry  of the period  of  one  year  of detention.   Though the Special Leave Petition was filed  in this  Court after the expiry of the period of limitation but the  Court  condoned the delay and granted leave, and  thus,

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the  present Appeal.  From the impugned judgment of the High Court   it  transpires  that   the  appellant  raised  three contentions   all  of  which   were  answered  against   the appellant.   It was contended that the grounds of  detention having  been  served on the appellant on 30.3.94 though  the order  of detention was served on 25.3.94, there has been an infraction  of sub-section (3) of Section 3 of the Act  and, therefore,  the  detention got vitiated.  Secondly,  it  was urged  that  though  the  representation  was  made  to  the Advisory  Board  and  it  had not been  indicated  that  the Central  Government  should also consider the same, yet  the Central  Government  was  duty bound to  consider  the  said Representation  of  the appellant addressed to the  Advisory Board  and such non-consideration infringes the right of the appellant  under  Article 22(5) of the Constitution and  the order  of detention is vitiated on that score.  Thirdly,  it was  urged that the Representation that was addressed to the Central  Government  on  20th June, 94 was  disposed  of  on 6.5.95  and  thus  there  has  been  considerable  delay  in disposing  of the Representation and such delay in  disposal vitiates  the  order  of  detention.   In  addition  to  the aforesaid  three  grounds urged before the High Court  which were  reiterated by the learned counsel for the appellant in this  Court, two other grounds were also urged, namely,  the grounds  of  detention even though had been prepared on  the very  date the order of detention was made yet the same  not having  been served for a period of 5 days there has been an infraction  of sub-section (3) of Section 3 of the Act.   In as  much as the Act postulates that the order shall be  made as  soon  as  may be, after the detention and there  was  no explanation  for  the detaining authority not to  serve  the grounds  of  detention till 30th March, 1994.  It  was  also urged that the order of the Detaining Authority disposing of the  Representation on the face of it, indicates that  there has  been  no  application  of  mind,  and  therefore,  that vitiates  the  order  of detention.  We  would  examine  the correctness of each of the aforesaid contentions, but at the outset  we  may indicate that the President had  promulgated Maintenance of Internal Security (Amendment) Ordinance, 1974 on  17th September, 1974 which was later on replaced by  the Conservation of Foreign Exchange and Prevention of Smuggling Activities  Act, 1974 (Act 52 of 1974).  The very object  of enacting  the legislation was to check diversion of  foreign exchange  from  official  channels and it was  thought  that unless  the  links  which facilitate violations  of  foreign exchange  regulations and smuggling activities are disrupted by immobilising by detention of the persons engaged in these operations  then there would not be any substantial  impact. The Act has been amended from time to time to meet the needs of  the  country and the Act has been enacted at a point  of time  when  the  country was facing acute  foreign  exchange problem.

     Coming  to the first question as to whether by serving the  grounds of detention on 30th March, 1994 there has been an  infraction of sub-section (3) of Section 3, the  learned counsel  appearing for the appellant urged that the order of detention having been served on 25th March, 1994 the grounds were  required to be served within 5 days therefrom i.e.  on 29th  March,  1994 and not on 30th March, 1994 as  has  been factually done.  According to the learned counsel the day on which  the order of detention was served cannot be  excluded for  computing the period of 5 days within which the grounds of  detention is required to be served under sub-section (3) of  Section  3 of the Act.  This question no longer  remains

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res  integra.  This Court in the case of Haru Das Gupta  vs. The State of West Bengal - (1972) 1 Supreme Court Cases 639, was  considering  an identical provision under  West  Bengal Prevention  of  Violent Activities Act, 1970 and  the  Court held  that  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 day on that day is to be  excluded. The  effect of defining 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.  The Court in coming to the aforesaid decision relied upon some English decisions and  held  that  in  computing   the  period,  the  date  of commencement  of  detention  that the first day  has  to  be excluded.  In the case in hand, therefore, for computing the period  of  5  days  the date 25th March,  1994  has  to  be excluded  and  so  being  done there  is  no  infraction  of sub-section  (3)  of Section 3 of the Act when  the  grounds were  served on 30th March, 1994.  The High Court, therefore rightly rejected the said contention urged before it.

     Coming to the second submission of the learned counsel appearing   for   the   appellant,    namely,   though   the Representation  was addressed to the Advisory Board yet  the same was also to be considered by the Central Government and non-consideration  of  the  same by the  Central  Government infringes  the  Constitutional right under Article 22(5)  of the Constitution, the learned counsel relies upon Section 11 of the Act and the decision of this Court in Smt.  Gracy vs. State  of Kerala and another - (1991) 2 Supreme Court  Cases 1.   According to the learned counsel the Central Government under Section 11 has the power of revocation and, therefore, when a detenu made a Representation to the Advisory Board it ought  to  have to be considered by the  Central  Government notwithstanding the fact that the Central Government had not been  addressed  in the Representation itself.  There is  no dispute  that  under  Section  11  of the  Act  a  power  of revocation  lies with the Central Government.  This power is a  supervisory  power  and is intended to be  an  additional check  or  safeguard  against the improper exercise  of  the power  of detention by the Detaining Authority or the  State Government, and therefore, to retain the statutory safeguard the  Central Government has to discharge its  responsibility with  constant vigilance and watchful care.  This power also is independent of power of confirmation or setting aside the order  of detention.  But the question for consideration  is when  the  Representation  has  not been  addressed  to  the Central  Government  but is addressed to the Advisory  Board can  it  be  said  that the  Central  Government  also  owes obligation  to  consider the same and decide one way or  the other.   It  may be stated at this stage that while  serving the  grounds  of  detention  on the detenu  it  was  clearly indicated   that   if  the  detenu   wishes  to   make   any Representation  against the order of detention he may do  so to  the  Lt.  Governor of the National Capital Territory  of Delhi  and to the Central Government and for that purpose he may  address it to the Lt.  Governor or to the Secretary  to the  Government of India, Ministry of Finance, Department of Revenue.   It was further stated that if he desires to  make any Representation to the Advisory Board then he may address to  the Chairman, Advisory Board, COFEPOSA State, High Court of  Delhi,  Sher Shah Road, New Delhi.  In the  decision  of this  Court in Smt.  Gracy (supra) on which learned  counsel for  the  appellant relied upon what has been stated by  the Court  is that if there is one Representation by the  detenu addressed  to  the detaining authority then  the  obligation

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arises  under  Article  22(5) of its  consideration  by  the detaining  authority  independent  of  the  opinion  of  the Advisory  Board  in  addition to its  consideration  by  the Advisory  Board  and, therefore, when the Representation  of the  detenu was addressed to the detaining authority and  in that  case it was Central Government and not to the Advisory Board  yet the Advisory Board was duty bound to consider the same,  as  such  a Representation is the only right  of  the detenu  under  Article  22(5) of the Constitution.   It  was further stated that any Representation of the detenu against the  order of detention has to be considered and decided  by the  Detaining  Authority  and   the  consideration  by  the Advisory  Board  was  an additional requirement  implied  by reading together clauses 4 and 5 of Article 22.  In the said case the Central Government was the detaining authority and, therefore,   in   that  case  the   Court  held   that   the Representation  though  may not have been addressed  to  the Advisory  Board  but  the  same  was  also  required  to  be considered by the Central Government.  We fail to understand how  the aforesaid ratio can be held to be applicable in the present  case  where  the Detaining Authority  was  the  Lt. Governor of Delhi.  In such a case if the Representation had not  been  addressed to the Central Government  even  though indicated in the grounds of detention then it cannot be said that  any Representation made by the detenu to the  Advisory Board  ought  to  have  been   considered  by  the   Central Government.   That  apart  the  detenu   also  did  file   a Representation  to the Central Government on 22.6.94 and the same  was  disposed of by the Central Government on  12.7.95 and,  therefore,  in  the  said premises,  the  question  of infraction  of constitutional right of the detenu because of the  Representation addressed to the Advisory Board had  not been  considered  by the Central Government does not  arise. This contention, therefore, was rightly rejected by the High Court.

     So  far as the third ground of attack is concerned,  a Representation  that  was made to the Central Government  on 22.6.94 and was disposed of on 12th July, 1995, it cannot be said  that there has been inordinate delay which can be said to  vitiate  the  detention  of the  detenu.   There  is  no inflexible Rule that delay in considering the Representation in  all  cases ipso facto would be sufficient to render  the detention  void.   Further  what  can  be  held  to  be   an unexplained  delay in disposing of the Representation  would depend  upon the facts and circumstances of each case.   The right   to   make   a   Representation  is   undoubtedly   a constitutional right of the detenu and such a Representation should be considered as expeditiously as possible.  But what is  reasonable expedition will depend upon the facts of each case.   Judged from the aforesaid stand point and  examining the time taken by the Central Government in disposing of the Representation of the detenu and the grounds advanced by the Central  Government  in its counter- affidavit filed in  the High  Court  we  are unable to hold that there has  been  an unusual   delay   in  disposing   of   the   Representation. Therefore,  the High Court was fully justified in  rejecting the said contention urged on behalf of the appellant.

     Coming  to  the two other grounds which had  not  been raised  in the High Court but urged in this Court, it is  to be  stated that since these grounds involve certain  enquiry on  facts this Court would not be justified in embarking  an enquiry  and  deciding the same.  Even otherwise we  do  not find  any  substance in either of the grounds in as much  as

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under  Section  3(3) of the Act the  legislators  themselves have  fixed  the  time  limit within which  the  grounds  of soon  as may be" cannot be read in isolation from the phrase "but  ordinarily not later than 5 days".  Reading conjointly the aforesaid expressions it cannot be said that non-service of  grounds of detention on the very same day when the order of  detention  was  served  on the detenu  even  though  the grounds  might have been prepared constitutes infraction  of sub-section  (3)  of Section 3 of the Act.  There may  be  a variety  of  reasons why a Detaining Authority would not  be able  to serve the grounds of detention on the same day even though the same may be ready and if such a ground would have been  taken  in the High Court explanation could  have  been offered.   In the aforesaid premises, we have no  hesitation to  hold that the said submission of the learned counsel  is devoid of any force.

     The  only other contention remains to be considered is whether  in  the  case  in  hand it can  be  said  that  the Detaining  Authority did not apply its mind while  rejecting the  application of the detenu.  Such a contention had  also not  been raised before the High Court, but according to the learned  counsel for the appellant the order that was served on  the detenu would demonstrate the same.  We are unable to appreciate  this contention in as much as the  communication is  made only of the operative part of the order.  If such a contention  would  have  been raised in the High  Court  the Court would have called for the entire file.  In the absence of  the contention being raised in the High Court we do  not think  it is appropriate for us to hold from mere perusal of the  order  that the Detaining Authority did not  apply  its mind  while  rejecting the Representation.   We,  therefore, reject the said submission.

     All  the contentions having failed, this appeal  fails and is dismissed.