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PETITIONER: ASLAM AHMED ZAHIRE AHMED SHAIK

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT04/04/1989

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) RAY, B.C. (J)

CITATION:  1989 AIR 1403            1989 SCR  (2) 415  1989 SCC  (3) 277        JT 1989 (2)    34  1989 SCALE  (1)840  CITATOR INFO :  R          1990 SC 231  (18)  RF         1991 SC 574  (12)  R          1992 SC2161  (5,8)

ACT:     Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling  Activities  Act,  1974:  Section  3(1)  Detention order--Representation  of detenu--Necessity for  being  dis- posed  of  with  reasonable  expedition--Superintendent   of Jail--Unreasonable  delay  of  11 days  in  transmission  of representation as intermediary--Detention order quashed.

HEADNOTE:     The  appellant  was  detained pursuant to  an  order  of detention  passed  against  him under Section  3(1)  of  the Conservation of Foreign Exchange and Prevention of Smuggling Activities  Act, 1974, with a view to prevent him  from  in- dulging  in  activities prejudicial to the  augmentation  of country’s foreign exchange resources. The detaining authori- ty  on consideration of the material placed before him  came to  the conclusion that the appellant was indulging  in  re- ceiving  and making payments in India  unauthorisedly  under instructions  from a person residing abroad in violation  of the provisions of the Foreign Exchange Regulations Act, 1973 and  that  the said unauthorised  and  illegal  transactions carried  on  by him and affected adversely the  foreign  ex- change  resources Of the country and as such  his  detention was necessary.     The  appellant  assailed his detention before  the  High Court and being unsuccessful filed this appeal.     Before this Court Counsel for the appellant confined his arguments  only to the ground of undue delay caused  by  the Central  Government in disposing of the representation  made by  the  detenu which was calculated to be of 40  days.  The Respondents  explained  the delay in the  counter  affidavit filed  by it but still according to the appellant’s  counsel there  has been undue and unexplained delay of 11  days  be- tween  the date of submission of the representation  by  the detenu  to the Superintendent of the Central Prison,  Bombay for  transmission to the Central Government and the date  of receipt  of  the representation by the Ministry  of  Finance

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and, he argued, that this unexplained delay has vitiated the order of detention. 416 Allowing the appeal, this Court,     HELD:  It is neither possible nor advisable to lay  down any  rigid period of time uniformly applicable to all  cases within which period the representation of the detenu has  to be  disposed  of within reasonable expedition  but  it  must necessarily  depend on the facts and circumstances  of  each case. [419F]     Rashid  S.K.v. State of West Bengal, [1973] 3  SCC  476: Sabir Ahmed v. Union of India, [1980] 3 SCC 295; Vijay Kumar v.  State of Jammu and Kashmir and Others, [1982] 2  SCC  43 and  Raisuddin alias Babu Tamchi v. State of U.P. and  Anr., [1983] 4 SCC 537;     When  it is emphasised and re-emphasised by a series  of decisions  of  this Court that a  representation  should  be considered  with reasonable expedition, it is imperative  on the part of every authority, whether in merely  transmitting or  dealing with it, to discharge that obligation  with  all reasonable promptness and diligence without giving room  for any  complaint  of  remissness,  indifference  or  avoidable delay, because the delay caused by slackness on the part  of any  authority  will ultimately result in the delay  of  the disposal of the representation which in turn may  invalidate the  order of detention as having infringed the  mandate  of Article 22(5) of the Constitution. [420A-B]     In the instant case, the supine indifference,  slackness and callous attitude on the part of the jail  Superintendent who had unreasonably delayed in transmitting the representa- tion  as an intermediary, had ultimately caused undue  delay in  the  disposal of the appellant’s representation  by  the Government  which received the representation 11 days  after it was handed over to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in render- ing  the  continued detention of the appellant  illegal  and constitutionally impermissible. [421D-E]     Abdul Karim and Others v. State of West Bengal, [1969] 1 SCC 433 referred to.

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION: Criminal  Appeal  573  of 1988.     From the Judgment and Order dated 9.8.1988 of the Bombay High Court in W.P. No. 627 of 1988. 417 Sirish Gupta and V.B. Joshi for the Appellant.     V.C. Mahajan, A. Subba Rao, P. Parmeswaran, A.S.  Bhasme and A.M. Khanwilkar for the Respondents. The Judgment of the Court was delivered by     S.  RATNAVEL  PANDIAN, J. This appeal by  special  leave under Article 136 of the Constitution of India is  preferred against  the  Judgment made in Criminal  Writ  Petition  No. 627/88 on the file of the High Court of Judicature at Bombay dismissing the writ petition filed by the appellant  assail- ing  the  validity and legality of the  order  of  detention dated 28th April 1988 passed against him by the Joint Secre- tary,  Ministry of Finance (Department of Revenue),  Govern- ment of India, New Delhi under Section 3(1) of the Conserva- tion of Foreign Exchange and Prevention of Smuggling Activi- ties  Act, 1974 (hereinafter referred as the ’Act’)  with  a view  to preventing the appellant from indulging in  activi- ties  prejudicial to the augmentation of  country’s  foreign

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exchange resources.     The  detaining authority on the material  placed  before him arrived to a conclusion that the detenu (appellant)  was indulging in receiving and making payments in India unautho- risedly under instructions from a person residing abroad  in violation of the provisions of the Foreign Exchange  Regula- tion Act, 1973 and reached his subjective satisfaction  that the said unauthorised and illegal transactions carried on by the  detenu had affected the foreign exchange  resources  of the  country adversely and hence it was necessary to  direct the  detention  of  the detenu by the  impugned  order.  The appellant having become unsuccessful before the High  Court, has now approached this Court assailing the order of  deten- tion  on  several grounds. But the learned counsel  for  the appellant confined his argument only on the ground of  undue delay  caused by the Central Government in disposing of  the representation  of the detenu in violation of Article  22(5) of  the  Constitution  of India. According  to  the  learned counsel,  the detenu had forwarded his representation  dated 16.6.88  through the Superintendent of the  Central  Prison, Bombay to the detaining authority and the Central Government and he received the order of rejection dated 19th July  1988 on  26th July 1988 i.e. after a period of 40 days  from  the date of making his representation. A contention based on the delay  of 40 days in the disposal of the representation  was advanced  before the High Court which for the  reasons  men- tioned in paragraph 3 of its judgment based on the  explana- tion given in the subsequent return 418 dated 5th August 1988 filed by the Under Secretary, Ministry of Finance, Government of India had rejected the same though was  not satisfied with the earlier return of the  detaining authority.  The explanation given in the  subsequent  return recites that the representation forwarded by the detenu  was received  in the COFEPOSA Section of Ministry of Finance  on June 27, 1988 and that after receiving the comments from the sponsoring  authority on 11.7.88 the file was  forwarded  to Central  Government. Meanwhile the representation  forwarded to  the detaining authority was rejected on 11.7.88  itself. The said file was received in the office of the Minister  of State (Revenue) on 12.7.88 but the Minister of State was  on tour  and on his return the representation was forwarded  to the  Finance Minister on 17.7.88 and the file  was  received back in COFEPOSA Section on 19.7.88 and the order of  rejec- tion was communicated to the detenu who received it on  26th July  1988. This explanation has been accepted by  the  High Court. The learned counsel for the appellant has  vehemently argued  before us that there had been undue and  unexplained delay  of  11  days between the date of  submission  of  the representation  by the detenu to the Superintendent of  Cen- tral Prisons, Bombay for transmission to the Central Govern- ment  and the date of receipt of the representation  by  the Ministry of Finance and this unexplained delay has  vitiated the order of detention.     It is seen from the impugned judgment, a similar conten- tion was also raised before the High Court but that  conten- tion has not been properly disposed of. When this contention was urged before us, the learned counsel for the  respondent sought  time for filing an affidavit from the Jail  Superin- tendent showing the date of communication of the representa- tion  to  the Government. Accordingly,  an  affidavit  dated 17.3.89  sworn by the Superintendent of Prisons, Bombay  was filed attempting to explain the delay that had occasioned in transmitting the representation. The explanation reads thus:               "I say that 16.6.88 is the date of receipt  of

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             the  detenu’s  representation  and  the   said               representation  was forwarded to the  Ministry               on  22.6.88. Further I have to submit that  on               19th  June,  1988 there was  a  holiday  being               Sunday."                   From  the above explanation, it  is  clear               that  though  the detenu had handed  over  the               representation  to Superintendent  of  Central               Prison  on 16.6.88, the latter  has  callously               ignored it and left the same unattended for  a               period of 7 days and forwarded the same to the               Government  at his pleasure on  22.6.88.  This               Superintendent of               419               Central Prison has not given any  satisfactory               and Convincing explanation as why he had  kept               the representation with himself except  saying               that  during the period of 7 days there was  a               Sunday.                   This  Court in Abdul Karim and  Others  v.               State of West Bengal, [1969] 1 SCC 433 held:               "The  right  of representation  under  Article               22(5)  is a valuable constitutional right  and               is not a mere formality."                   This view was reiterated in Rashid SK.  v.               State  of West Bengal, [1973] 3 SCC 476  while               dealing with the constitutional requirement of               expeditious consideration of the  petitioner’s               representation by the Government as spelt  out               from Article 22(5) of the Constitution observ-               ing thus:               "The ultimate objective of this provision  can               only  be the most speedy consideration of  his               representation  by the authorities  concerned,               for without its expeditious consideration with               a  sense of urgency the basic purpose  of  af-               fording  earliest  opportunity of  making  the               representation is likely to be defeated.  This               right to represent and to have the representa-               tion considered at the earliest flows from the               constitutional  guarantee  of  the  right   to               personal  liberty-the  right which  is  highly               cherished  in our Republic and its  protection               against arbitrary and unlawful invasion."                   It  is neither possible nor  advisable  to               lay  down any rigid period of  time  uniformly               applicable  to all cases within  which  period               the  representation of detenu has to  be  dis-               posed  of  with reasonable expedition  but  it               must  necessarily  depend  on  the  facts  and               circumstances  of  each case.  The  expression               ’reasonable expedition’ is explained in  Sabir               Ahmed  v. Union of India, [1980] 3 SCC 295  as               follows:               "What is ’reasonable expedition’ is a question               depending on the circumstances of the particu-               lar  case.  No hard and fast rule  as  to  the               measure  of reasonable time can be laid  down.               But is certainly does not cover the delay  due               to  negligence,  callous  inaction   avoidable               red-tapism and unduly protracted  procrastina-               tion."     See  also Vijay Kumar v. State of Jammu and Kashmir  and Other,  [1982] 2 SCC 43 and Raisuddin Alias Babu  Tamchi  v. State of Uttar

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420 Pradesh and Another, [1983] 4 SCC 537.     Thus when it is emphasised and re-emphasised by a series of  decisions of this Court that a representation should  be considered  with reasonable expedition, it is imperative  on the part of every authority, whether in merely  transmitting or  dealing with it, to discharge that obligation  with  all reasonable promptness and diligence without giving room  for any complaint of remissness, indifference or avoidable delay because  the delay, caused by slackness on the part  of  any authority,  will ultimately result in the delay of the  dis- posal of the representation which in turn may invalidate the order of detention as having infringed the mandate of  Arti- cle 22(5) of the Constitution.     A contention similar to one pressed before us was  exam- ined by this Court in Vijay Kumar’s case (supra) wherein the facts  were  that the representation of the  detenu  therein dated  29.7.81 was forwarded to Government by  the  Superin- tendent of Jail on the same day by post followed by a  wire- less message, but according to the Government, the represen- tation  was  not received by them. Thereafter,  a  duplicate copy was sent by the Jail Superintendent on being  requested and  the  same was received by the  Government  on  12.8.81. Considering  the  time lag of 14 days in the  given  circum- stances of that case, this Court though over-looked the same and  allowed the Writ Petition on the subsequent  time  lag, made the following observation:               "The Jail authority is merely a  communicating               channel  because  the-representation  has   to               reach the Government which enjoys the power of               revoking the detention order. The intermediary               authorities who are communicating  authorities               have also to move, with an amount of  prompti-               tude  so that the statutory guarantee  of  af-               fording  earliest  opportunity of  making  the               representation  and  the  same  reaching   the               Government  is  translated  into  action.  The               corresponding  obligation  of  the  State   to               consider the representation cannot be whittled               down by merely saying that much time was  lost               in the transit. If the Government enacts a law               like  the present Act empowering  certain  au-               thorities to make the detention order and also               simultaneously makes a statutory provision  of               affording  the  earliest  opportunity  to  the               detenu to make his representation against  his               detention,  to  the  Government  and  not  the               detaining  authority, of necessity  the  State               Government  must gear up its own machinery  to               see that in these cases the representation               421               reaches  the Government as quick  as  possible               and  it is considered by the authorities  with               equal  promptitude.  Any  slackness  in   this               behalf not properly explained would be  denial               of the protection conferred by the statute and               would result in invalidation of the order."     Reverting  to the instant case, we hold that  the  above observation m Vijay Kumar’s case will squarely be applicable to  the  facts herein. Indisputably  the  Superintendent  of Central  Prison  of Bombay to whom  the  representation  was handed over by the detenu on 16.6.88 for mere on-ward trans- mission to the Central Government has callously ignored  and kept  it in cold storage unattended for a period of 7  days, and  as  a result of that, the  representation  reached  the

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Government  11  days after it was handed over  to  the  Jail Superintendent.  Why the representation was retained by  the Jail  Superintendent has not at all been explained in  spite of the fact that this Court has permitted the respondent  to explain  the  delay in this appeal, if not before  the  High Court.     In  our  view, the supine  indifference,  slackness  and callous attitude on the part of the Jail Superintendent  who had unreasonably delayed in transmitting the  representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant’s representation by the Government which  received  the  representation 11 days  after  it  was handed  over to the Jail Superintendent by the detenu.  This avoidable  and unexplained delay has resulted  in  rendering the continued detention of the appellant illegal and consti- tutionally impermissible.     We,  therefore,  allow this Criminal Appeal  by  setting aside  the  judgment of the High Court, quash  the  impugned detention  order and direct the detenu to be set at  liberty forthwith. Y.L.                                        Appeal allowed. 422