JUDGMENT [ENTITY], J.
(1) By this petition the petitioner seeks to have a writ issued calling upon the respondents to set him at liberty and to quash the order of detention dated 16-12-1987 issued by respondent No. 2 Mr. [ENTITY], Joint Secretary to the Government of India. The petitioner was detained on 21-3-1987 and is presently confined in the District Jail. Bharatpur (Rajasthan). He was detained in pursuance of the order dated 16-2-1987 of respondent No. 2 made under [SECTION] of the [ACT] (for short 'the Act') with a view to preventing the petitioner from acting in any manner prejudicial to the augmentation of foreign exchange and with a view to prevent him from engaging in keeping smuggled gold. The petitioner was communicated the grounds on the basis of which the detention order was made against him.
(2) The grounds of detention are in the narrative frrm. It is stated that on the basis of secret information residential premises of the petitioner at [ENTITY], Bharatpur (Rajasthan), and certain other premises were searched on 10-12-1986 by the officers of the Enforcement Directorate under the [ACT], in the presence of the officers of the Customs Department (under the [ACT]). The petitioner was found present at his residential premises at [ENTITY]. One Mr. [ENTITY], stated to be the brother-in-law of the petitioner, was also found present at that time. The search was conducted in the presence of Panch witnesses, namely, Mr. [ENTITY] and Mr. [ENTITY]. Both the petitioner and [ENTITY] put their signatures on the search warrant in token of their having seen the same. The search led to the recovery of Us $ 21,900 and primary gold weighing 6633.5 gms. It is stated that while the Panchnama was being prepared and the primary gold weighed, the petitioner quietly gave a slip to the authorities' and ran away. Certain documents were also found in the premises and seized. [ENTITY] in his statement made on 10-12-1986 stated that the premises .searched were the residential premises of the petitioner and admitted recovery of the foreign exchange, primary gold and the documents and also the fact that the petitioner went out on the pretext of uniting and ran away after jumping the roof-top. [ENTITY] also stated that he had come the previous day and stayed overnight at the afore- said residence of the petitioner. It was also admitted that the primary gold bore foreign markings. Statements of Panch witnesses were also recorded. Subsequently, [ENTITY] retracted his statement. Summons were sent to the petitioner to appear before the Enforcement Officer but he could not be served. Summons were issued to him on 10-12-1986, 12-12-1986, 19-12-1986, 29-12-1986 & 19-1-1987. Service, however, could not be effected both by the notice server as well as by the postal authorities. Out of the documents seized from the residence of the petitioner there was one slip which appeared to contain certain account of transaction relating to sale/purchase of gold and foreign currency by the petitioner. The petitioner in spite of various opportunities did not appear before the authorities and his statement could not be recorded. Respondent No. 2 came to the conclusion that the petitioner had been indulging in unauthorised activities in violation of the provisions of the [ACT] and engaging in keeping smuggled gold. Satisfaction of the detaining authority was recorded and detention order dated 16-2-1987 made against the petitioner (3) The petitioner made representation against his detention. He addressed one such representation to the detaining authority and the other to the Central Govt. through Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. Both the representation are dated 6-4-1987. The petitioner also sent a representation to the Advisory Board constituted under the Act which representation is dated 24-4-1987. The representations to the detaining authority as well as to the Secretary to the Government of India were rejected by two separate orders dated 4-5-1937. The Advisory Board held its sitting on 29-4-1987. The petitioner appeared before the Advisory Board with his counsel. The detention of the petitioner was confirmed by order dated 7-5-1987. It was mentioned therein that the case of the petitioner was placed before the Board who were of the opinion that there was sufficient cause for the. detention of the petitioner and that the Central Government having fully considered the report of the Advisory Board and the material on record, confirmed the detention of the petitioner under [SECTION] of the Act and the Central Government further directed that under [SECTION] of the said Act, the petitioner be detained for a period of one year from the date of detention. I may note that in pursuance to representation dated 6-4-1987 to the detaining authority the petitioner was supplied copies of various documents seized on 10-12-1986 from his residence at Parana [ENTITY], Bharatpur, and also from the residence of one [ENTITY].
(4) Mr. [ENTITY], learned counsel for the petitioner, raised three contentions in support of the petition (1) The Central Government while confirming the detention of the petitioner under [SECTION] of the Act directed that under [SECTION] of the said Act the petitioner the detained for a period of one year from the date of his detention. Counsel said that the confirmation order was a nullity inasmuch as no reasons were given for directing detention of the petitioner for a maximum period of one year. He said there was non-application of the mind and this contravened the provisions of [SECTION] of the [ACT] and [SECTION] of the Act. (2) The petitioner was not supplied with all the documents which influenced the detaining authority in passing the order of detention. These documents were supplied only on 24-4-1987 and as these were not supplied within the period of 5 days or even 15 days from the date of detention as required by [SECTION] of the [ACT] the detention was invalid and it was also invalid as the petitioner could not make effective arid purposeful representation against his detention. (3) There was inordinate delay in considering the representations made by the petitioner both to the detaining authority as well as to the Central Government. Moreover, the petitioner was also not supplied with the information as asked for by him in his representations and further that the representations were rejected after the Advisory Board held its sitting on 29-4-1987.
(5) Under [SECTION] of the Act in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned "for such period as it thinks fit". Under [SECTION] of the Act the maximum period for which any person may be detained, in the circumstances as in the present case, "shall be a period of one year from the date of detention or the specified period, whichever period expires later". Under the proviso to [SECTION] of the Act, the appropriate Government has power to revoke or modify the detention order at any earlier time. Somewhat similar are the provisions in the [ACT], these being [SECTION] and [SECTION] of that Act. Under [SECTION] where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government "may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit". Then, under [SECTION] the maximum period for which any person may be detained "shall be twelve months from the date of detention". Again, under the proviso to this section, the appropriate Government has power to revoke or modify the detention order at any earlier time.
(6) In support of his 1st contention, Mr. [ENTITY] referred to two-Bench decisions of the [ENTITY] High Court and the Madhya Pradesh High Court both of which 'have been rendered under the [ACT]. In Laishram Naobi [ENTITY] v. District Magistrate, Imphal, and Ors [1987 (2) Crimes 202] (1), the [ENTITY] High Court, relying on the decisions of the Supreme Court in [PRECEDENT] and [PRECEDENT] : , held that detention of the petitioner in that case for a maximum period of twelve months without giving reasons for such detention was bad. The. court held that the order to detain the petitioner for a period of twelve months from the date of detention without anything more showed non-application of the mind and, therefore, the "continued detention" of the petitioner was illegal. ln [PRECEDENT] Magistrate, [ENTITY], (1986 Cr. L.J. 1976)(4) , Madhya Pradesh High Court was also considering the question of confirmation of a detention order passed under the [ACT] for a period of twelve months, without any indication at all in the record as to why the maximum period visualised by that Act was considered necessary, and must that be regarded as emanating from non-application of mind to relevant facts and further that the exercise of the power under [SECTION] in that manner would be illegal and unconstitutional. The court did observe-that it was true that there was high authority only for the proportion that non-specification of the period of detention in the confirmation order would not vitiate the order and in that connection referred to two decisions of the Supreme Court in [PRECEDENT] and [PRECEDENT] . It, however, observed that the moot question was whether non-application of mind to relevant facts and mechanical exercise of power of confirmation would vitiate continued detention of the detenu. It again referred to the. decisions of the Supreme Court, in [PRECEDENT] , [PRECEDENT] and [PRECEDENT] and came to the following conclusion (para 19 of the judgment) : "FROM the extracted observations of the apex court, it clearly follows that the power of confirmation inheres the necessity of considering relevant circumstances obtaining on the date when the confirmation is made. Indeed, the Section contemplates "acting upon report of the Advisory Board" while the expressions "may confirm", "continue and "as it thinks fit" used therein postulate that the detention can be continued there under only upon consideration of facts and circumstances germane to the question. Indeed, the word "continue" itself is manifestly pregnant, in our opinion, in. so far as the ramification of the power is concerned although the apex court has not dilated upon this aspect. Indeed, the power of preventively detaining any person under the Act germinated earlier in point of time under [SECTION] and its further growth or operation being interrupted by the interposition of the Advisory Board, "necessity" to further "'continue" the detention must have justification on a priori consideration reappraisal of facts obtaining on the date of exercise of the power to "confirm" the order of detention because an obvious requirement."
(7) Mr. [ENTITY], learned counsel for the respondents, however, tried to distinguish .these two judgments of the [ENTITY] and Madhya Pradesh High Courts on the ground that these were rendered under the [ACT] and not under the [ACT]. He said the object of detention under both these enactments was diff.erent and though the conditions for detaining a person under the [ACT] might be temporary at times the malady of smuggling was perpetual. He said these decisions would have no relevance to interpret the provisions, though similar, under the Act. I do not thinks such an argument can at all be raised. The constitutional safeguards embodied in [SECTION] apply both to the provisions of the [ACT] and the [ACT], and particularly in view of the decision of the Supreme Court in [PRECEDENT] . This argument may perhaps be relevant in certain circumstances on the question of delay in passing the order of detention under the [ACT] and [ACT]. Mr. [ENTITY] then contended that no reasons were required to be given by the Central Government while prescribing the period of detention under [SECTION] of the Act. He referred tea decision of the Supreme Court in [PRECEDENT] . In this case, foreign goods such as ladies wrist watches, mini stereo cassette players, watch pens, Casio calculators, recorded tapes and ladies wearing apparels of C.I.F. value of Rs. 43,390 corresponding to market ' value of Rs. 1,13,920 were seized. There were two persons who were detained under [SECTION] of the Act and their detention was subsequently confirmed. The order of confirmation passed by the Government did not mention any period of detention and it was urged that as such the order of confirmation of detention had been vitiated. It was a case where [SECTION] of the Act did not apply and therefore under [SECTION] the maximum period of detention was one year. The court observed as under:- "IT has nowhere been mentioned that the period of one, year or the period lesser than one year shall have to be mentioned in the order of confirmation. The submission of the petitioner on this point has no substance. The maximum period (in this case) is one year. When no period is mentioned in an order, the implication is that the detention is for the maximum period of one year (or two years as the case may be). Detention beyond the maximum period will be illegal."
The argument of Mr. [ENTITY] was that the Supreme Court upheld the detention in the aforementioned case for a period of one year the maximum period prescribed although in the order of con- confirmation no period of detention had been mentioned at all. How could a detention be held bad when the order of confirmation prescribed the period of one year ? he queried. Mr. [ENTITY] also referred to a decision of the Supreme Court in [ENTITY] v. State of West Bengal to contend that the order of the State Government rejecting the representation of the detenu need not be a speaking order and that there was no failure of justice by the order not being a speaking order. He said all that was necessary was that there should be a real and proper consideration by the Government and it was not necessary that the order of the State Government, must be a reasoned order. He submitted that consideration of the representation was a constitutional requirement, and when the Supreme Court says that there need not be a speaking order while rejecting a representation, it could certainly not be held that the order of confirmation, which did not give reasons for prescribing a period of detention under [SECTION] of the Act, was bad. Mr. [ENTITY] also referred to a [ACT] Bench decision of the Supreme Court in [PRECEDENT] wherein the court held as under:- "THE opinion of the Board as well as the order of the Government rejecting, the representation of the detenu must be after proper consideration. There need not be a speaking order. There is also no failure of justice by the order not being a Speaking order. All that is necessary is that there should be a real and proper consideration, by the Government and the Advisory Board."
In fact this decision was relied on in the later decision of the Supreme Court in [ENTITY]'s case (supra).
(8) Reference may also be made to two more decisions of the Supreme Court. In [PRECEDENT] the court was considering the provisions of the [ACT]. Under [SECTION] of this Act, the State Government was required to refer the case to the Advisory Board within 30 days from the date of detention and under [SECTION] the Advisory Board was required to submit its report within ten weeks from such date. Under [SECTION] the State Government was then to decide, in the event of the Board reporting that there was sufficient cause for detention, to confirm the detention order and to continue the detention there under "for such period as it thinks fit". The court observed that the significant words in [SECTION] were the words "confirm" the detention order and "continue" the detention there under "for such period as" the State Government thought fit. It was held that the order passed or decision made under [SECTION] by the State Government fell into two parts : (a) confirming the detention order upon the report of the Board as to the sufficiency of the cause for detention and (b) deciding to continue the detention under that order. It was further held that if no receipt of the Advisory Board's report the Government wanted to continue the detention for a further period, it had got to make an order or decision to confirm that order and continue the detention, for, without such an order or decision the detention would not validly subsist beyond the period of three months. The argument of Mr.[ENTITY] on the basis of this judgment was that when the State Government had to decide whether to continue the detention it had to apply its mind and could not act arbitrarily.
(9) The other decision is in the case of [PRECEDENT] . In this case also the question raised was about the validity of the order of confirmation of detention not passed within three months of the commencement of detention under the [ACT]. The court observed that the significant words in sub-clause (f) of clause (4) of S. 8 of the Act were "the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit". It was observed that the expression "may confirm" imported a discretion and even where the Advisory Board made a report that in its opinion there was sufficient cause for the detention of the person concerned, the Government might not confirm the detention order. On the basis of this judgment also, the argument of Mr. [ENTITY] was that the order confirming the detention and fixing the period of detention must show that there had been application of mind and that there should be reasons in the order from which the detenu could know why the appropriate Government thought fit to confirm the detention order and why a particular period was prescribed for his detention. Mr. [ENTITY] submitted that it was not in every case of detention that the appropriate Government passed order prescribing maximum period of one year. He said there were instances where lesser period had also been prescribed. He gave such an instance of the case of detention of one [ENTITY] under the Act. Mr. [ENTITY], after getting instructions, did confirm that in that case there were three detenus and while in the case of two, the detention was for one year in the case of the third, i.e. [ENTITY], the detention was for a period of six months considering the old age and weak health of the detenu.
(10) Yet another decision of the Supreme Court in [PRECEDENT] may be noted at this stage. In this case also, the court was concerned with the [ACT]. A submission was made that. the confirmation should not only be in writing but it should be communicated to the detenu within the period of three months from the date of detention. The court observed that the State Government had to confirm the opinion of the Advisory Board that there was cause for the detention of the person concerned which confirmation could not purely be mental act, a subjective one but must result in an objective action, namely, that that should be recorded in writing.
(11) In view of the decisions of the Supreme Court referred to by Mr. [ENTITY] and particularly [PRECEDENT] (supra), it is difficult to comprehend that when no period in the order confirming the detention is prescribed, it would not only be a valid one but would be so for a maximum period of twelve months and when .a maximum period is mentioned, the order would be bad for non-application of mind. If the latter position was correct the Supreme Court. would certainly have held the detend on bad in [PRECEDENT] (supra). Faced with this proposition, Mr. [ENTITY] said that the point now raised by him was not squarely before the Supreme Court in any of the decisions cited by Mr. [ENTITY] and further that Madhya Pradesh High Court in [PRECEDENT] .Magistrate, [ENTITY] (supra) had also said that the Supreme Court had not "dilated" upon this aspect. I do not think I should fall for this type of argument. It cannot be said that if a particular argument was not raised before the Supreme Court or any argument not considered, the decision would have been different. Then it was said that it was the duty of the Central Government to satisfy the court that requirements of law and procedure were followed and that there was meticulous compliance with the same. Mr. [ENTITY] said at least the relevant file should reflect that there had been application of mind 'by the Central Government while fixing a particular period of detention. He said even the court could see the file of the Central Government for the purpose.
(12) The argument advanced by Mr. [ENTITY] in its amplitude was not taken in the grounds in the petition. It was only mentioned that the confirmation order was a nullity in law and that the appropriate Government had given no reason for continuing, the detention for a maximum period of one year and on that account the continuing detention of the petitioner was illegal. In reply the respondent denied these allegations and stated that the confirmation order had been based in accordance with law after receiving report of sufficient cause from the Advisory Board.
(13) It is true that even where the-Advisory Board has reported that there is sufficient cause for the detention of a person, the appropriate Government may not even confirm the detention order or it may confirm the detention order and continue the detention Of the person concerned. [SECTION] of the Act prescribes the maximum period of detention to be one year. When the appropriate Government confirms the detention on the report of the Advisory Board it may or it may not continue the detention for the maximum period of one year. For the purpose of confirming the detention order and continuation of the detention for a particular period the correct approach appears to be that there should be a real and proper consideration By the appropriate Government for the purpose. It is not necessary for the appropriate Government to pass a detailed order or to communicate to the detenu the reasons for accepting the report of the Advisory Board and further. reasons for fixing the period of detention. There are already on record grounds of detention, documents relied upon, representations, if any, of the detenu and the action thereon and the report of the Advisory Board. In fact, after the report of the Advisory Board staling that there is in its opinion sufficient cause for the detention of the detenu the appropriate Government is required only to confirm the detention and fix the period of detention and the only requirement is that that is to be in writing. Can it be said that it makes any difference if the appropriate Government before fixing the period of detention says that (1) "the Central Government/State Government thinks it fit" or (2) "in the facts of, the present case", or even (3) "in the facts and circumstances of the present case", or even (4) "in the opinion of the Central Government I State Government" or the like ? To my mind, it hardly makes any difference. As noted above, the whole of the record is before the appropriate Government which it has dealt at various stages including the report of the Advisory Board. Power vests with as high authority as the Central Government or the State Government and when the older is silent in the sense that no reasons, have been given while fixing the period of detention, it cannot be said that the appropriate Government mechanically fixed the period of detention. In the present case, however, with the consent of the parties, I did examine the relevant file of the respondents. I found that while confirming the detention of the petitioner, there had been due consideration that the period of detention for one year be fixed from the date of detention. The first contention of Mr. [ENTITY], therefore, fails.
(14) Coming to the second ground of attack, Mr. [ENTITY] submitted that it was not for the detaining authority to state that it relied upon a particular document and not the other and that it was for the court to find out what influenced the detaining authority from the grounds and the, documents. He said all the documents influencing the detaining authority one way or the other had to be supplied to the detenu pan passu with the grounds of detention and the documents not having been supplied within 5 days or even 15 days of the date of detention as required under [SECTION] of the Act, the detention was illegal. It is not the case of the petitioner that the documents which be asked for were not supplied to him. In fact, he admitted that he was given copies of various documents running into as many as 150 pages with the letter dated 24-4-1987 of the office of the Enforcement Diroctorate, Agra. All these documents were stated to have been seized from the residential, premises of the detenu at Opp. Dr. [ENTITY], [ENTITY], Bharatpur, and of [ENTITY] also son of [ENTITY], Karola Market, [ENTITY], [ENTITY], Bharatpur His complaint is, however, that these documents were also placed before the detaining authority and were taken into consideration by him while passing the impugned order and so these documents ought to have been supplied to the detenu along with the grounds of detention, and failure to do that made the detention illegal. This has been denied in the affidavit-in-reply filed by Mr. [ENTITY], Under Secretary to the Government of India, on behalf of respondents Nos. 1 and 2. Mr. [ENTITY] dealt with the file of the detenu in the Department of Revenue, Government of India, New Delhi. In his subsequent affidavit filed by respondent No. 2 Mr. [ENTITY] himself stated as under : "THAT although all the documents seized from the premises of the petitioner were before me but, I had not relied on all of those documents in forming my subjective satisfaction. I have relied only on those documents which are mentioned to be relied in the list of documents annexed with the grounds of. detention Mr. [ENTITY] strongly refuted these averments and submitted that the petitioner did not reside at the premises at [ENTITY], Bharatpur, where summons were wrongly being addressed and that that house belonged to his sister-in-law. I will note here that though the petitioner had at various places mentioned that the house belonged to his sister-in-law he did not name her nor her exact relationship w:ith him. Mr. [ENTITY] said that the detaining authority wrongly concluded that the premises in question were the resident premises of the petitioner though this conclusion was reached on the basis of documents copies of which were supplied to the detenu only with the letter dated 24-4-1987 mentioned above, and in this connection he referred to para 3 of the affidavit in-reply of Mr. [ENTITY] which is as under: "THAT the para is wrong and denied. Several attempts were made to serve the detenu with the summons issued u/[SECTION] of the [ACT] but the detenu avoided the same on one pretext or the other. It is submitted that summons were issued at the correct address from where the recovery was made and in which the petitioner was found to be present at the time of search. It is also pertinent to submit that at the time of search several personal documents of the petitioner like copy of driving license, his and his wife's bank passbooks including a Huf passbook account books were seized from the said premises."
Thus, Mr. [ENTITY] said that the fact that the petitioner was residing at the premises at [ENTITY] and not at the premises alleged by him did influence the mind of the detaining authority and as the basis for the detaining authority to come to that conclusion could well be the documents mentioned in para 3 of the affidavit of Mr. [ENTITY] above, and since these documents were not supplied with the grounds of detention, the detention was bad.
(15) It is now well settled that if any document sought for by the detenu is not a basic fact or a material taken into account by the detaining authority, failure to supply a copy of the same will not vitiate the detention. Grievance of the petitioner in the present case is quite misplaced. In paras of the petition, it was contended that the petitioner did not receive any summons as his correct address was [ENTITY], [ENTITY], Bharatpur, and not the one at which the summons was addressed to him. The reply on behalf of respondents Nos. 1 and 2 in the affidavit of Mr. [ENTITY] has been quoted above. But it was subsequently mentioned elsewhere in the affidavit that except for one slip, all these documents were nut relied upon by the detaining authority while passing the detention order. If reference is made to the grounds and the documents served upon the detenu under [SECTION] of the Act, it cannot be said that the detaining authority had no evidence to come to the conclusion that the detenu was residing at the premises at [ENTITY], Bharatpur. I need nor however, refer to this evidence in any detail. Moreover, para 3 of the petition was not & ground of attack and merely gave a narration of events as per the deteru. It was not necessary for Mr. [ENTITY] to say all that what he said in reply and at best it could be a mere surplusage. Respondent No. 2, the detaining authority, specifically stated in his affidavit that he relied only on those documents copies of which were supplied to the detenu with the grounds of detention. The detaining authority was under no obligation to supply along with the grounds copies of all the documents to which a passing or casual reference was made in the grounds irrespective of whether, such documents were or were not relied upon in making the order of detention. The Supreme Court in [PRECEDENT] stated as under :- It is, therefore, clear that every failure to furnish copy of a document to which reference is made in, the grounds of detention is not an infringement of [SECTION], fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the Fundamental Rights guaranteed by [SECTION]. In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course or narration of facts and which are not relied upon by the detaining authority in making the order of detention. A somewhat similar argument as in the present case was also raised in [PRECEDENT] where it was contended that the detenu had retracted his statements and this fact was not taken into consideration by the detaining authority. The . Supreme Court observed as under : "THE same argument was presented in a little different shade namely the fact of retraction should have been considered by the detaining authority and the Court does not know that had that been taken into .consideration, what conclusion the detaining authority would have arrived at. This contention cannot be accepted. We are not concerned with the sufficiency of the grounds. We are concerned whether there are relevant materials on which a reasonable belief or conviction could have .been entertained by the detaining authority on the grounds mentioned in [SECTION] of the said Act, Whether other grounds should have been taken into consideration or not is not relevant at the stage of passing of the detention order. This contention, therefore, cannot be accepted. If that is the position then in view of [SECTION] of the Act there was sufficient material to sustain this ground of detention."
The following observations by the Supreme Court in this very judgment are quite apt: "THERE is no rule of law that commonsense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by 'authorities though these constitutional provisions should be strictly construed".
(16) Thus, there is no contravention of the provisions of [SECTION] of the Act or of [SECTION] of the [ACT]. The second contention urged by Mr. [ENTITY] also fails.
(17) Last and the third contention related to the delay in considering the representations of the detenu both by the detaining authority and the Central Government. Both the representations are dated 6-4-1987. As mentioned in para 15 of the grounds of detention, the detenu was to address a representation to the detaining authority and the other, meant for the Central Government, to the Secretary to the Govt of India, Ministry ' of Finance, Deptt of Revenue, New Delhi, and were to be sent through the Superintendent, District Jail, Bharatpur. The Superintendent on the same day sent these representations. These were sent to the Deputy Secretary (Home) Govt. of Rajasthan, Jaipur, who, in turn, sent them to Mr. [ENTITY], respondent No. 2, being the detaining authority, under his covering letter dated 8th April, 1987. These were sent through registered post. 11th and 12th April 1987 happened to be public holdiays. In the additional affidavit dated 24-7-1987 filed by Mr. [ENTITY], this .is how the representation was dealt : "THE same was received in the Deptt. of Revenue (COFEPOSA Section) on 15-4-1987. The same was sent to the Directorate of Enforcement on the same day for their comments. It was received in the office of the Dte. of Enforcement (Hqrs.) on the very next day i.e., on 16-4-87. 17th to 19th April, 1987 were public holidays. The same was forwarded to the Cofeposa Section, being the concerned section for taking further action in the matter, who sent the same to the concerning office i.e., Assistant Director, Enforcement Directorate, Agra on the very next day, i.e. 21-4-87. The representation Along with comments were sent to the office of the Detaining Authority on 24th April, 1987. 25th and 26th April, 1987 were public holdiays. The detaining authority after considering the representation was pleased to reject the same on 28th April, 1987."
Earlier in the counter-affidavit filed by Mr. [ENTITY], in reply to ground No. 7 of the petition, Mr. [ENTITY] stated as under : "VII.It is wrong and denied. There is no undue delay in considering his representation dated 6-4-87. The time taken to dispose of the representation is the result of examination of representation and obtaining relevant information from the sponsoring authority situated at Agra. It is submitted that two representations both dated 6-4-87 of the detenu addressed to the Detaining Authority and the Secretary to the Govt. of India, Ministry of Finance, Department of Revenue, 'were sent by the detenu through the Superintendent, District Jail, Bharatpur, and the same were received in Department of Revenue, Cofeposa action on 15-4-87. These representations were sent by the Department of Revenue vide their letter dared 15-4-87 to the Director of Enforcement for their comments in the matter, 17th to 19th April, 1987 were public holidays. The Headquarters office of the Directorate of Enforcement sent the same 04 21-4-87 to the Assistant Director, Enforcement Directorate, Agra, as the matter was initiated' by him. After preparing the comments, the same were sent to Hqrs. of Enforcement Directorate on 23-4-87, who sent the same to the Department of Revenue. The detenu was supplied with photocopies of seized documents on 24-4-87. The said representations. along with comments received from Director of Enforcement were put up before the detaining authority on 27-4-87 after being processed by the Under Secretary, 25th and 26th April, were public holidays. The detaining authority after considering the same. was pleased to reject the representation on 28-4-87. The other representation addressed to the Central Government was considered by the Hon'ble Minister of State for Finance on 29-4-87, who was pleased to reject the same. The file was received from the office or Minister of State for Finance on 1-5-87, 2-5-87 and 3-5-87 were holidays and the detenu was communicated the decisions regarding the consideration of representations by two Memorandums each dated 4-5-87. In these circumstances, there is absolutely no delay in considering the representations received from the detenu.
(18) I did not understand the reason for Mr. [ENTITY] to file an additional affidavit explaining bow the representation were dealt with. Interestingly, the detaining authority himself did not say anything on the question of delay though he filed an affidavit as well. In the circumstances, therefore, Mr. [ENTITY] did raise .a point that the affidavit of Mr. [ENTITY] on the question of delay was of no relevance. This was contested by Mr. [ENTITY] who stated that the affidavit of Mr. [ENTITY] was based on record. He referred to a decision of the Supreme Court in [PRECEDENT] wherein the affidavit in the Supreme Court was also filed by an Under Sectary on behalf of the detaining authority and was duly considered Mr. [ENTITY] strongly relied on a Bench decision of this court in [PRECEDENT], decided on 27-3-1987 (20), to contend that delay was vital in the present case. He submitted that the representation made to the Central Government was seen by the Minister of State for the first time only on 6-5-1987 and the Minister himself did not take any decision to call for any comments on the representation of the detenu. This was also the point raised in [ENTITY] case (supra) and it was held that were a basic duty Or the part of the officials dealing with the matter to have put up the representation at once before the detaining authority before any action was taken and that it was for the detaining authority to call for comments or not. In that case, representations though dated 28-5-1986 were seen by the detaining -authority for the first time only on 9-7-1986 who rejected the same on 11-7-1986" and it was held that there was a gross and vital delay which vitiated the detention. It may be noted, that during the period when he representation was received in the office of the detaining authority comments were called from various authorities. This court also strongly commented on such a procedure, Observations in the aforementioned judgment no doubt support the arguments of Mr. [ENTITY]. But, then the question whether comments were necessary to-be called on the representation of the detenu and further Question as to whether any delay has been caused in dealing with the representation would depend upon the facts of each case. It is no doubt true that where the question of personal liberty of any individual is involved representations have to be dealt with utmost expedition. I may at this stage refer to a decision of the Supreme Court in [PRECEDENT]. In this case also on a representation addressed by the detenu to the State Government, comments were called not by the Chief Minister himself but by an officer in the Home Department (Special), Mantralaya. Bombay, and the question was of delay in dealing with the representation by the Chief Minister. In answer to the notice issued by the Supreme Court under [SECTION] of the [ACT], the affidavit in reply was filed by the District Magistrate concerned who had passed the order of detention. On the Question of unreasonable delay in the disposal of the representation made by the detenu, he relied on the affidavit of Desk Officer, Home Department (Special), Mantralaya, Bombay, filed in reply to the writ petition. In the relevant paragraph of the reply affidavit, it was stated as under : "I say that the representation dated 22nd September, 1986 addressed to the Chief Minister by the Detenu was forwarded by the Superintendent, Aurangabad Central Prison, Aurangabad on 24th September, 1986. I further say that the said representation was received in the Department-on 26th September, 1986. I further say that the Parawise remarks on the said representation were called for from the Detaining Authority, i.e. District Magistrate, Deed on 26th September, 1986 and remarks of the District Magistrate dated 3rd October, 1986 were received by the Government on 6th October, 1986. I further say that thereafter, the said representation was processed together with report of the Advisory Board and as stated in the earlier Paragraph, the said representation was rejected and the detention of the Detenu was confirmed by the Chief Minister on 17th November, 1986."
And, in the same paragraph there was the following averment made with regard to the delay in disposal of the representation in the Chief Minister's Secretariat : "I further say that the Chief Minister was pre-occupied in connection with very important matters of the State which involved tours as well as meetings cut side Bombay, I further say that during the period from 23-10-1986 to 17-11-1986 two Cabinet meetings were held at Pune and Aurangabad,cach meeting lasting for two days i.e. 28th and 29th October, 1986 at Pune and 11th and 12th November, 1986 at Aurangabad. I further say that such meetings in Pune and Aurangabad are generally held once a year to focus the attention on regional problems. I further say that the preparations for these meetings as well as other meetings held with the concerned Ministers and officials demanded a lot of time of the Chief Minister and this naturally resulted in some delay in disposing of several cases submitted to the Chief Minister including this case. I further say that the cases where such representations are made in the detention matters, they required a close scrutiny of all the relevant records and careful application of mind. I therefore, respectively submit that the time taken for passing the Government order in this case should be viewed in the light of the averments made in this affidavit and therefore, if properly considered, it cannot be said that the delay in disposing of the representation is unreasonable and unexplained."
This is how the Supreme Court observed :
"IT is accepted that the representation made by the appellant to the Chief Minister on September 22, 1986, forwarded by the Superintendent, Aurangabad Central Prison on the 24th was received in the home Department on the 26th which in its turn forwarded the same to the detaining authority, i:e. the district Magistrate on the sami day i.e. 25th for his comments. The District Magistrate returned the representation Along with his comments dated October 3, 1986 which was received by the Government on the 6th. It is said that thereafter the representation was processed together with the report of the Advisory Board and was forwarded to the Chief Minister's Secretariat where the same was received on October 23, 1986. It is enough to say that the explanation that the Chief Minister was re-occupied with very important matter of the State which involved tours as well as two Cabinet meetings at Pune on October 23 and 29, 1986 and at Aurangabad on November Ii and 12, 1986" was no explanation at all why the Chief Minister did not attend to the representation made by the appellant till November 17, 1986 i.e. for a perio of 25 days. There was no reason why the representation submitted by the appellant could net be dealt with by the Chief Minister with all reasonable promptitude and diligence and the explanation that he remained away from Bombay is certainly not a reasonable explanation In view of the wholly unexplained and unduly long delay in the disposal of the representation by the State Government, the further detention of the appellant must be held illegal and he must be set at liberty forth- . with (19) It would be thus seen that the Supreme Court did not disapprove the calling of comments on the representation of the detenu and on facts held that there was no explanation for. the delay of 25 days when the representation was received in the Chief Minister's Secretariat and dealt with by the Chief Master. This judgment of the Supreme Court was rendered on 28-7-1987. In the present case if reference is made to the representation made to the Central Government, it would be seen that the detenu had mentioned among other things that the antecedents of both the panch-witnesses were highly suspicious since they had been habitually engaged in giving panch evidence and that neither of these two witnesses belonged to the locality in which the alleged recovery was made. The Central Government could not decide the representation without calling for the comments from the appropriate agency. The report of the. Advisory Board is dated 30-4-1987 and was forwarded to the Department by a covering letter dated 1-5-1987. The representations dated 6-4-1987 to the detaining authority and the Central Government were rejected respectively on 28-4-1987 and 29-4-1987. The Central Government confirmed the detention on 6-5-1987. The petitioner was communicated of the order on 7-5-1987 confirming his detention under [SECTION] of the Act and he was also informed that he would be detained for a period of one year from the date of his detention under [SECTION] of the Act. I do not find, therefore, that there has been unreasonable delay in disposing of the representations of the petitioner. After all it is not just a question of counting the days and. as noted above, whether there has been any delay will depend on the facts and circumstances of each case and no mathematical formula can be set for the purpose. There is, therefore, no merit in the contention that there has been inordinate delay in considering the representations either by the detaining authority or by the Central Government. The rule is, therefore, discharged, and the petition is dismissed.