riminal Appeal 573 of 1988
From the Judgment and Order dated 981988 of the Bombay High Court in WP No 627 of 1988
417 Sirish Gupta and VB Joshi for the Appellant
VC Mahajan A Subba Rao P Parmeswaran AS Bhasme and AM Khanwilkar for the Respondents
The Judgment of the Court was delivered by section 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 62788 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 31 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 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 225 of the Constitution of India
According to the learned counsel the detenu had forwarded his representation dated 16688 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 ie 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 11788 the file was forwarded to Central Government
Meanwhile the representation forwarded to the detaining authority was rejected on 11788 itself
The said file was received in the office of the Minister of State Revenue on 12788 but the Minister of State was on tour and on his return the representation was forwarded to the Finance Minister on 17788 and the file was received back in COFEPOSA Section on 19788 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 17389 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 16688 is the date of receipt of the detenu s representation and the said representation was forwarded to the Ministry on 22688
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 16688 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 22688
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 vs State of West Bengal  held The right of representation under Article 225 is a valuable constitutional right and is not a mere formality
 This view was reiterated in Rashid SK
vs State of West Bengal while dealing with the constitutional requirement of expeditious consideration of the petitioner s representation by the Government as spelt out from Article 225 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 vs Union of India  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 vs State of Jammu and Kashmir and Other  and Raisuddin Alias Babu Tamchi vs State of Uttar 420 Pradesh and Another  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 225 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 29781 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 12881
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 16688 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 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
YL Appeal allowed


Summary:
The appellant was enrolled as a Constable in the BSF and was serving as such since 1966
He was confirmed in the said post
In 1971 he was granted leave from October 25 1971 to October 30 1971 on account of the death of his father
As the Shrad ceremony could not be performed within the aforesaid time and he was suffering from serious illness he made an application requesting for extension of leave sup ported by a medical certificate
On December 12 1971 the appellant received a communication from the Commandant stating that as he was absent without leave from October 31 1971 that because of such absence without leave for a long period his further retention in service was undesirable and that it was proposed to dismiss him from service
He was asked to submit his explanation against the imposition of this penalty
The appellant sent a telegram on December 21 1971 but without any redress
On January 5 1972 he re ceived an order of the Commandant informing him that he had been dismissed from service
On January 10 1972 the appel lant again sent an application requesting that he may be permitted to join his service but he was not allowed to do so
The appellant preferred an appeal to the Inspector General BSF on February 1 1972 but no relief was granted
The appellant after serving a notice under section 80 of the Code of Civil Procedure filed a civil suit for a decla ration that the order of dismissal from service was illegal and he was still in service
The respondent contested the suit and pleaded that the appellant was absent from duty from October 31 1971 without any leave at a critical time when India was at war with Pakistan and that the Commandant by his notice dated 15 December 1971 intimated that his retention in service was undesirable because of his absence for a long period that he was given an opportunity to urge his defence which he did not avail of by sending 272 any reply and that the Commandant had therefore dismissed him from service by his order dated January 5 1972
The Munsiff held that the appellant had been given a reasonable opportunity before the Commandant dismissed him from serv ice and dismissed the civil suit
The appeal filed by the appellant was allowed by the Additional District Judge and the suit was decreed
It was held that the order of dismissal from service was illegal and bad as the same was not made by the Security Force Court and no such court had been constituted
The Order passed by the Commandant under section 112 of the Border Security Force Act and read with rule 177 of the Rules could not therefore be upheld
It was further held that the order was bad as it was contrary to the constitutional mandate embodied in Article 311 of the Constitution as no opportu nity of hearing was given and the procedural safeguards contained in Chapters VII to XI of the Border Security Rules were not followed
The High Court decreed the second appeal preferred by the respondents reversed the judgment and decree of the lower appellate court and dismissed the suit
It was held that the order of dismissal of the appellant from service had been made in accordance with the powers conferred on the Commandant BSF under the provisions of section 112 and 4 of the read with rule 177 of the Border Security Forces Rules 1969
It was fur ther held that this was an independent power conferred upon the Commandant apart from the power conferred upon the Security Force Court under section 28 for imposition of the punishment for dismissal from service in respect of offences specified in section 19 of the Act
In the appellant s appeal to this Court it was contend ed that unless and until the offence of absence without leave or overstaying leave granted to a member of the serv ice without sufficient cause is tried by the Security Force Court and punishment is awarded therefor as provided in sections 48 and 50 of the Act the order of dismissal from service by the Commandant is illegal and as such it is liable to be quashed and set aside
Dismissing the appeal it was HELD 1
The Prescribed Authority ie the Commandant is competent to exercise the power under section 112 of the BSF Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules
281E F 273 2
The has been enacted with a view to provide for the constitution and regulation of an armed force of the Union for ensuring the security of the borders of India and for matters connected therewith
The services of the enrolled persons under the Act are governed by the provisions of the Act as well as the Rules framed thereunder
276D E 3
All the offences mentioned under sections 14 and 19 of the Act are to be tried by the Security Force Court which will punish the offenders with sentences as provided in the Act
A procedure has been provided by the BSF Rules for trial of the offences by the Security Force Court and for awarding of punishment
279E 280B 4
The power under Section 112 empowering the Comman dant who is the Prescribed Authority to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with rule 177 of the Rules is an independent power which can be validly exercised by the Commandant as a Prescribed Officer and it has noth ing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same
281B D 5
Rule 6 of the Rules has specifically provided that in regard to matters not specifically provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circum stances of the case
281F In the instant case though any procedure has not been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without sufficient cause
The appellant did not avail of this opportunity and he did not file any show cause to the said notice
Thus the principle of natural justice was not violated as has been rightly held by the High Court
281G H