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PETITIONER: S.M. JAHUBAR SATHIK

       Vs.

RESPONDENT: STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT:       13/04/1999

BENCH: S.Saghir Ahmad, D.P.Wadhwa

JUDGMENT:

                         J  U  D  G  M  E  N  T          S.SAGHIR AHMAD, J.

              Leave granted.

     The  appellant  has been detained in pursuance  of  an order  dated  4.11.1997 passed under Section 3(1)(i) of  the Conservation of Foreign Exchange and Prevention of Smuggling Activities  Act,  1974  (for short, ‘the  Act’).   This  was followed  by  a  declaration under Section 9(1) of  the  Act which  was made on 27.11.1997.  These orders were challenged by  the  appellant  before the Madras High Court by  a  writ petition  under  Article  226 of the Constitution  of  India which  was  dismissed  on 15.12.1998.  It  is  against  this judgment  that  the  present appeal has been filed.   It  is contended  by  the  learned counsel for the  appellant  that against the order dated 27.11.1997 passed under Section 9(1) of  the Act, the appellant had made a representation to  the Central  Government on 8/10.12.1997.  But the representation was  rejected  after  an  inordinate   delay  for  which  no reasonable explanation has been provided by the respondents. In the counter affidavit filed before the High Court in this case,  the  respondents had sought to explain the  delay  as under:-

     "9.  With regard to averments made in Para 8 (xxxviii) it  is  humbly  submitted   that  the  representation  dated 08.12.1997  (actually dated 10.12.1997) was received in  the office  of the Department of Revenue on 15.12.1997 from  the State  Government  of Tamil Nadu.  The same was received  in the Cofeposa Unit of the Ministry on 16.12.97.

     16.12.1997  The  representation dated  10.12.1997  was forwarded  to  the  Commissioner  of  Customs,  Chennai  for furnishing of parawise comments.

     19.12.1997  The  letter calling for proforma  comments was  received  by  the  Assistant  Commissioner  of  Customs (Cofeposa), Chennai.

     20.12.1997  21.12.1997  Were   closed  holidays  being Saturday and Sunday.

     22.12.1997   Proforma  comments   were  prepared   and

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submitted  to  the  Additional Commissioner of  Customs  for approval.

     23.12.1997   Additional  Commissioner   approved   the comments  and  the  same were forwarded to  Under  Secretary (Cofeposa).

     25.12.1997  27.12.1997  28.12.1997  Parawise  comments were  received  from the Sponsoring Authority.  On the  same day  clarifications were called for from the Section Officer (Cofeposa) by the Under Secretary (Cofeposa).

     30.12.1997  Clarifications  were   provided  and  file resubmitted to Under Secretary (Cofeposa).

     01.01.1998  The  representation from the detenu  dated 10.12.1997  and  proforma  comments  dated  23.12.1997  from Customs  Department,  Chennai  were placed in  two  separate files   for  consideration  by   the  Additional   Secretary (Administration) and Secretary (Revenue).

     01.01.1998  Clarifications were again sought from  the Customs Department, Chennai on certain points.

     03.01.1998  04.01.1998  Were   closed  holidays  being Saturday and Sunday.

     06.01.1998  The  Cofeposa Unit in Customs  Department, Chennai, received the letter calling for clarifications.

     07.01.1998  Clarifications  prepared and submitted  to Assistant  Commissioner (Cofeposa) who submitted the same to Additional Commissioner of Customs, Chennai for approval.

     09.01.1998   Additional  Commissioner   approved   the clarifications and the same were despatched to New Delhi.

     10.01.1998  11.01.1998  Were   closed  holidays  being Saturday and Sunday.

     12.01.1998  Letter  from  Additional  Commissioner  of Customs,  Chennai with clarifications received in the office of Joint Secretary (Cofeposa).

     13.01.1998  Clarifications  received in  the  Cofeposa Unit.

     13.01.1998  The  Section Officer (Cofeposa)  submitted the file to Under Secretary (Cofeposa).

     14.01.1998  The  Under Secretary (Cofeposa)  submitted the file to Joint Secretary (Cofeposa).

     14.01.1998  Clarifications were again sought from  the Customs Department on certain points.

     17.01.1998  18.01.1998  Were   closed  holidays  being Saturday and Sunday.

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     20.01.1998   Letter  asking   for  clarifications  was received  in  the  office  of  the  Assistant   Commissioner (Cofeposa), Chennai.

     20.01.1998   Clarifications   to   the  letter   dated 20.01.1998 were prepared.

     21.01.1998  Clarifications were forwarded to the Under Secretary (Cofeposa), New Delhi.

     23.01.1998  Clarification from Additional Commissioner of Customs, Chennai was received in the Cofeposa Unit of the Ministry.

     24.01.1998  25.01.1998 26.01.1998 Were closed holidays being Saturday, Sunday and Republic Day.

     27.01.1998  The  Under Secretary (Cofeposa)  submitted the file to Joint Secretary (Cofeposa).

     28.01.1998  The  Joint Secretary (Cofeposa)  submitted the file to Secretary (Revenue).

     29.01.1998 The Secretary (Revenue) received the file.

     30.01.1998  The  Secretary  (Revenue)  considered  the representation  dated  10.12.1997 on behalf of  the  Central Government and rejected the same.

     31.01.1998  01.02.1998  Were   closed  holidays  being Saturday and Sunday.

     02.02.1998  A  Memo rejecting the  representation  was issued.

     The representation dated 10.12.1997 was considered and rejected  by the Secretary (Revenue) in 49 days of which  17 days were holidays and actual time taken for considering and disposing  off the representation is only 32 days.  The time taken  for  communication with the Sponsoring  Authority  at various  stages  of  consideration is also included  in  the total  time  taken.   It  is   humbly  submitted  that   the representation   dated  10.12.1997   was  expeditiously  and independently  considered  by  the Secretary  (Revenue)  and disposed it off without any delay.

     27.01.1998 The copy of representation dated 10.12.1997 along  with  parawise comments of the  Sponsoring  Authority dated  23.12.1997  and clarifications dated  09.01.1998  and 20.01.1998 furnished by the Customs Department, Chennai were placed  in a separate file and submitted by Under  Secretary (Cofeposa) to Joint Secretary (Cofeposa)

     28.01.1998  Joint  Secretary (Cofeposa) submitted  the file to Additional Secretary (Administration).

     29.01.1998   Additional   Secretary   (Administration) considered  the representation dated 10.12.1997 and rejected the same.

     31.01.1998  01.02.1998  Were   closed  holidays  being Saturday and Sunday.

     02.02.1998  File  was  received back  from  Additional

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Secretary (Administration).  02.02.1998 A Memo rejecting the representation dated 10.12.1997 was issued.

     The representation dated 10.12.1997 was considered and rejected  by the Additional Secretary (Administration) in 49 days,  of  which 17 days were holidays and the  actual  time taken   for   considering   and   disposing   off   of   the representation is 32 days.  The time taken for communication with   the  Sponsoring  Authority  at  various   stages   of consideration  is also included in the total time taken.  It is humbly submitted that the representation dated 10.12.1997 was  expeditiously  and  independently   considered  by  the Additional  Secretary  (Administration)   and  disposed  off without any delay."

     We  have  considered  the explanation  and  have  also examined  the  original  files.    The  respondents   before disposing  of  the representation had sought  clarifications thrice.   A  perusal of the original file placed  before  us reveals  that  the  clarifictions were sought in  the  usual bureaucratic  style  only  for  the  sake  of  clarification without   there   being  any  need   for   it.    In   these circumstances, it cannot be said that the representation was disposed  of  with promptitude.  On the contrary,  even  the explanation  offered  by  the respondents in  their  counter affidavit   filed  before  the   High  Court  indicates  the lethargic  attitude with which the representation was  taken up,  dealt  with  and ultimately disposed of  after  seeking clarifications  thrice on issues which did really not  arise nor  were  there any necessity for  seeking  clarifications. The  representation  could  have been  disposed  of  without seeking clarification which obviously was sought to cover up the delay in prompt disposal of the representation.

     Since  the matter was not considered by the High Court in  the  right perspective, the impugned judgment cannot  be sustained.   The appeal is allowed.  The judgment and  order dated  15.12.1998 passed by the High Court is set aside  and the  detention  order dated 4.11.1997 passed  under  Section 3(1)(i)  of  the  Act  as   also  the  declaration  made  on 27.11.1997  under  Section 9(1) of the Act are quahsed  with the  direction  that the appellant shall be set  at  liberty forthwith  unless  his detention is required  in  connection with some other case.