ASLAM AHMED ZAHIRE AHMED SHAIK v.

UNION OF INDIA AND ORS.

APRIL 4, 1989

[B.C. RAY AND S. RATNAVEL PANDIAN, JJ.]

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

The appellant was detained pursuant to an order of deten"on passed against him under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with a D view to prevent him from indulging in activities prejudicial to the augmentation of country's foreign exchange resources. The detaining authority on consideration of the material placed before him came to the conclusion that the appellant was indulging in receiving 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 trans- E actions carried on by him and affected adversely the foreign exchange resources of the cuntry and as such his detention was necessary.

The appellant assailed his detention before the High Court ancl 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 G there has been undue and unexplained delay of 11 days between 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 and,. he argued, that this unexplained delay has vitiated the . order of detention.

P< 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

B expedition but it must necessarily depend on the facts and circumstances of each case. [419Ff • ~·

Rashid S.K. v. State of West Bengal, [1973] 3 SCC 476: Sabir. •· Ahmed v. Union of India, 11980 I 3 sec 295; Vi jay Kumar v. State of Jammu and Kashmir and Others, [1982] 2 SCC 43 and Raisuddin alias c

Babu Tamchiv. State of U.P. andAnr., [1983] 4 SCC 537;

When it is emphasised and re-emphasised by a series of decisions 'f of this Court that a representation should be considered with reason- ·~ able expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation

D 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 wiU 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. l420A-BJ 'y E 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 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 F 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 constitutionally impermissible. [421D-E] ....._.

Abdul Karim dnd Others v. State of West Bengal, [1969] 1 SCC

0 433 referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal ''f.-

No. 573 of 1988.

From the Judgment and Order dated 9 .8.1988 of the Bombay

H High Court in W.P. No. 627of1988.

' -

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. RA TN A VEL PANDIAN, J. This appeal by special leave un-

-~ der 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 assailing the validity and legality of the order of detention dated 28th April 1988 passed against him by the Joint

~ Secretary, Ministry of Finance (Department of Revenue), Government of India, New Delhi under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred as the 'Act') with a view to preventing the appellant from indulging in activities 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 unauthorisedly under instructions from a person residing abroad in violation of the provisions of the Foreign Exchange Regulation 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 Couurt, has now approached this Court assailing the order of detention on several grounds. But the learned counsel for the appellant confined his argument only on the ground of undue delay caused by the Centraf Government in disposing of the representation of the detenu in violation of Article 22(5) of the Constitution of India. According to the learrted 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 Gentral .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 mentioned in paragraph 3 of its judgment based on the ex{'lanation given in the subsequent return

~- ~· A 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 exp lanation given in the subsequent return recites that the representation forwarded by the detenu was received in the COFEPOSA Section of Ministry of Finllnce on June 27, 1988 and that after receiving the

\- B 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 rejection was communicated to the detenu .'fwho 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 D by the detenu to the Superintendent of Central Prisons, Bombay for transmission to the Central Government and the date of receipt of the representation by the Ministry of Finance and this unexplained delay has vitiated the order of detention. y It is seen from the impugned judgment, a similar contention was E also raised before the High Court but that contention 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 Superintendent showing the date of communication of the representation to the Government. Accordingly, an affidavit dated 17 .3.89 sworn by the Superintendent of Prisons, Bombay was filed j..

F 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 the detenu's ,..,.

representation and the said representation was forwarded to the Ministry on 22.6.88. Further I have to submit that on G 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 H Government at his pleasure on 22.6.88. This Superintendent of

Central Prison has not given any satisfactory auu 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] 1sec433 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 J 3 sec 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 observing thus:

"The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, fm, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal libertythe 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 disposed of with reasonable expedition but it must necessarily depend on the fac\s and circumstances of each case. The yxpression 'reasonable expedition' is explained in Sabir Ahmedv. Union of India, [1980] 3 SCC 295 as follows:

"What is 'reasonable expedition' is a question depending on the circumstances of the particular case. No hard and

fast rule as to the measure of reasonable time can be laid G down. But is certainly does not cover the delay due to negligence, callous inaction avoidable red-tapism and unduly protracted procrastination."

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 H

-lo .

A 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

\-· a 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 tum may invalidate the order of detention as having infringed the mandate of Article 22(5) of the Constitution. c A contention similar to one pressed before us was examined by f 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 Superintendent of Jail on the same day by post followed by , a wireless message, but according to the Government, the D representation 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 circumstances of that case, this Court though over-looked the same and allowed the Writ Petition on the subsequent y time lag, made the following observatioin: Ii

"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 promp- .;.

F titude so that the statutory guarantee of affording earliest opportunity of making the representation and the sarn.e reaching the Government is translated into action. The cor- _., responding obligation of the State to consider the representalion cannot be whittled down by merely saying that much time was lost in the transit. If the Government enacts a law G like the present Act empowering certain authorities to

)I... 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 detentiqn, to the Government and not the detaining authority, of necessity the State Government must gear up its own H machinery to see that in these cases the representation

reaches the Government as quickly as possible and it is A 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 . ·:, suit in invalidation of the order."

Reverting to the instant case, we hold that the above observation in Vijay Kumar's case will squarely be applicable to the facts herein. """f 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 transmission 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 1 the representation was retained by the Jail Superintendent has not at j. all been explained in spite of the fact tbat 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 constitutionally 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.