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Judgment
Mishra, J.—Whether the grounds merited the petitioner''s detention u/s 3(1) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974, hereafter referred to as ''the Act'' and whether the petitioner was rightly detained, are questions that we think are
not required to be considered at all. Facts pertinent for the contentions raised on behalf of the petitioner do not touch the grounds at all. For an
alleged incident involving violation of the provisions of the Foreign Exchange Regulation Act, 1973, the petitioner was arrested and remanded to
custody on 17-1-1990. For the reasons and grounds emanating from the facts that were noticed in the incident dt. 15-1-1990, the Central
Government ordered for petitioner''s detention on 23-3-1990. Pursuant to the said order, the petitioner was taken in custody on 4-6-1990. On
receipt of the grounds of detention and the documents supporting the order of detention, the petitioner made a representation on 5-7-1990. The
representation was however rejected on 6-8-1990. According to the petitioner, it was not possible for the Detaining Authority to pass the order of
detention on 23-3-1990, as no grounds of detention could have been prepared until then. He has in support of this referred to certain facts in his
affidavit which read as under :
It is pertinent to note that the dates were typed subsequently in the grounds of detention at two places, whereas the dates were typed and
Xeroxed in the order of detention. It is very significant to note that documents dt. 19-3-1990 were found in the annexures. Therefore the proposal
and the enclosures could have been sent at the best on 20-3-1990 by post and it could have reached Delhi on 22-3-1990 and that it was highly
impossible to peruse all these documents running to several hundred of pages and subjectively satisfy by applying his mind and to prepare the
grounds of detention on the basis of documents supplied to him. Therefore all these facts will only prove that the grounds were not in existence
when the order was made.
This has been replied to in the counter affidavit in these words,
With regard to averments contained in para 6 of the affidavit, it is denied that the grounds of detention were not in existence on the date of issue of
the order of detention. All the relevant documents were placed before the detaining authority and the grounds of detention were formulated. The
detention order was issued after the detaining authority was subjectively satisfied on the basis of the documents and material placed before it that
there was need to detain the detenu.
The petitioner has alleged that there has been inordinate delay in passing the detention order, in putting the detention order into execution and in
disposing of the representation of the petitioner, and in any case the petitioner has been prejudiced because some of the vital documents for which
the petitioner had made a request to be supplied were not supplied to him and thus he was sub-stantially prejudiced in his defence.
Life and liberty which are guaranteed under Art. 21 of the Constitution of India and which rights can be denied only according to procedure
established by law, have been made subject to certain laws which almost establish beyond any doubt the right to claim a trial and examination of
the validity or otherwise of the allegations as a part of the right of life guaranteed under Art. 21 of the Constitution. There has however been laws
needed in the greater interests of the society at large but operating harshly into the field of right of life and liberty and one such law is the Act under
which the petitioner has been detained. Art. 22 of the Constitution has guaranteed that no person who is arrested shall be detained in custody
without being informed as soon as may be of the grounds of such arrest, nor shall he be denied, the right to consult and to be defended by a legal
practitioner of his choice. It also provides that every person who is arrested and detained in custody shall be produced before the nearest
Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the
Magistrate, and no such person shall be detained in custody without the authority of a Magistrate. An exception has been made to this in the case
of a person who for the time being is an enemy alien or in the case of any person who is arrested or detained under any law providing for
preventive detention. The laws as to preventive detention however have been made subject to certain constraints as no law providing for
preventive detention can authorise the detention of a person for a longer period than three months, unless an Advisory Board consisting of persons
who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three
months that there is, in its opinion, sufficient cause for such detention. Further, when any person is detained in pursuance of an order made under
any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on
which the order has been made and shall afford him the earliest opportunity of making a representation against the order. This provision under
Clause (5) of Art. 22 of the Constitution ensures that any person detained in pursuance of an order made under any preventive law shall be
informed of the grounds on which the order of detention has been made and that he shall be afforded an opportunity of making representation
against the order. That the Authority making the order may not act lethargically or taking advantage of the detention delay beyond a reasonable
period is overcome by the command that the Authority making the order shall as soon as may be communicate to such person the grounds on
which the order has been made. That effective opportunity to make representation against the order should be provided to the detenu and that in
this matter no delay should be caused is guaranteed by the use of the words,
........ the authority making the order shall afford him the earliest opportunity of making a representation against the order.
Courts in India, often faced with the conflict of interests of the Society on the one hand and the endangered liberty of a certain person on the
other hand, have steered however through the narrow passage that has been carved out by the judicial Pronouncements, only on the basis that the
satisfaction of the detaining authority being subjective, there may not be any adjudication by the Courts as to the sufficiency or otherwise of the
grounds of detention. But the Courts shall always see whether there has been reasonable nexus of the grounds of detention with the order of
detention or not. The Courts have taken notice of the command of the Constitution that the grounds must be communicated to the detenu as soon
as possible and that the detenu must get the earliest opportunity to make a representation against the order of detention. It is in their attempt to
assess the fall-outs of administrative acts of the detaining authorities in satisfying the tests laid down by the constitution that the Courts have said
that there should be no inordinate or unexplained delay between the incident which prompted making of the order of detention and the actual
making of the order of detention, or between the making of the order of detention and the execution thereof, or after detention, delay in service of
the grounds of detention or delay in considering the representation of the detenu.
There has been a series of judgments of the Supreme Court on the subject and in one of the latest Judgments in Rama Dhondu Borade Vs.
V.K. Saraf, Commissioner of Police and Others, , it has been stated that there is an independent constitutional right in the detenu to make his
representation under Art. 22(5) of the Constitution and a corresponding command upon the authorities to dispose of the representation
expeditiously. On the question of delay in disposal of the representation made by the detenu, the Supreme Court has said in Rashid Sk. Vs. State
of West Bengal,
The use of the words ''as soon as may be'' (occurring in Art. 22(5) of the Constitution) is important. It reflects the anxiety on the part of the
framers of the constitution to enable the detenu to know the grounds on which the order of his detention has been made so that he can make an
effective representation against it at the earliest. 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 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 liberty - the right which is highly cherished in our Republic and its protection
against arbitrary and unlawful invasion.
In Borade''s case, the gap between the receipt and disposal of the representation was 28 days, and the Supreme Court said (at p. 2123 of 1989
Cri LJ),
The only explanation offered by the third respondent is that further information required from the State Government was received by the third
respondent on 17-10-88 after a delay of nearly 14 days and then the representation of the detenu was disposed of on 27-10-88 within which
period there were certain holidays. Barring that, there is no other explanation. This delay when scrutinised in the light of the proposition of law
adumbrated above, we are of the view, that there is an inordinate and unreasonable delay and the present explanation given by the third
respondent is not satisfactory and acceptable.
In the instant case, there is an attempt by the first respondent in the counter affidavit to deny that there was any deliberate delay by stating as
follows :
There has been no delay in considering the representation of the petitioner and communicating the result of the same. The representation dt. 5-7-
90 of the petitioner in Tamil was received by the First respondent on 11-7-90. The said representation was sent to the Enforcement Directorate on
12-7-90 for translating the same into English and for their Comments on the said representation. The English translation of the representation and
the comments dt. 16-7-90 thereon was received from the Enforcement Directorate, Madras on 18-7-90. The representation and comments were
proceeded and put up by the concerned officer on 19-7-90 through detaining authority who recorded his remarks and forwarded the file to
Finance Minister on 20-7-90. (28-7-90, 29-7-90 and 2-8-90 were three holidays and FM was on tour on 31-7-90 and 1-8-90). Finance
Minister considered the representation and rejected it on 3-8-90. (4-8-90 and 5-8-90 were holidays). The memo rejecting the representation was
issued on 6-8-90. It is therefore submitted that there has been no delay in considering the representation and communicating the result and the
detention order is not vitiated.
Mr. Sundaram, learned Standing Counsel for the respondents, endeavoured to persuade us to accept this explanation for delay as sufficient to
reject the contention of the petitioner that he has been denied adequate opportunity to represent against his detention or the right to get the
representation considered by the detaining authority promptly without any unreasonable delay. He has pointed out that it was not realised in time
that, while the power to detain and/or to make the order of detention was delegated under the prescription of the law itself to the secretariat level
functionaries of the Central Government, the power to consider the representation and dispose of the same however remained with the
Government, meaning the Government constituted in the council of Ministers to act in accordance with the rules of the Executive business. Since
under the rules of business of the Central Government, the Finance Minister was required to attend to the representation of the detenu, the
petitioner herein, nothing could be done until he finally applied himself to the representation of the petitioner. With his busy schedule, the
representation of the petitioner was rather considered promptly and in any case there has been no undue delay.
We are afraid however that acceptance of any such contention will sanction some amount of delay if any or the period of delay in the name of
the Minister in finding time to attend to the representation of a person who has been making a complaint that he had been wrongly detained. We
have earlier touched in our order, the limitations under which the detaining authorities are required to act. Exceptions are allowed under the
constitution itself to the guarantees under Arts. 21 and 22(1) and (2) thereof, by the provisions under Art. 22(3) and (4); the only guarantee still
retained is one under Art. 22(5) of the Constitution. If that also is made illusory and allowed to be diluted, depending upon the convenience of the
Minister in charge of the concerned Department, nothing will remain to guard against the invasion of the cherished right to life and liberty. The
salutary law stated by the Supreme Court as above has clearly fixed the limits of the constitutional obligations of the detaining authority, State
Government and the Central Government.
In yet another judgment in T.A. Abdul Rahaman Vs. State of Kerala and others, , the Supreme Court considered the effect of delay in securing
arrest of the detenu after an order was passed and summarised the law thus (at p. 582 of Cri LJ) :
The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is
made or the live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each
case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid
down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the
offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of
detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and
reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the
casual connection has been broken in the circumstances of each case.
Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the
detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a
legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to
preventing him from acting in a prejudicial manner.
We have already noticed the allegation of the petitioner and the gap between the time when the order of detention was made and the time of the
alleged prejudicial activities as well as the delay between the date of order of detention and the date of securing the arrest of the detenu. The first
respondent has stated with regard to these allegations, in the counter affidavit as follows :
There is no inordinate delay in issuing the order of detention. The investigations in the instant case was completed only on 19th March 1990. The
detention order was thereafter issued on 23rd March 1990. Since there has been no inordinate delay, it is submitted that the detention order is not
vitiated. Further no time limit has been prescribed under the COFEPOSA Act for issuing the order of detention.
..... The allegation that the order of detention was executed after a delay of 2 months and 12 days is misleading. There has been no delay in
executing the order of detention, attempts were made to apprehend the petitioner but the petitioner was not found at the address on record. This
fact was brought to the notice of the Additional Chief Metropolitan Magistrate, Madras on 18th May, 1990 and a petition for the cancellation of
bail was also filed. It was only thereafter, the petitioner was apprehended and detained under the COFEPOSA Act on 4th June, 1990. Hence,
there has been no delay in executing the order of detention. The allegation that the inordinate delay in executing the order of detention will vitiate
the order of detention is denied as wholly baseless.
We are inclined in the instant case to give to the detaining authority benefit of the fact that although there has been some apparent distance between
the prejudicial activities and the making of the order of detention as well as between the detention order and its execution, for the reasons stated in
the counter affidavit, the live link between the prejudicial activities and the purpose of detention was not snapped and/or that there has been some
reasonable explanation of the delay in securing the arrest of the detenu, that is to say the petitioner. We are however not so inclined to ignore the
delay in the disposal of the representation of the petitioner for the obvious reason that there is absolutely no explanation in the counter-affidavit for
a period of more than one week between 20-7-1990 and 3-8-1990, excepting the mention of holidays on 28-7-90, 29-7-90 and 2-8-90 and
about commitment of Finance Minister on 31-7-90 and 1-8-1990. The representation of the petitioner had not been entertained and disposed of in
the spirit of the mandate in Art. 22(5) of the constitution.
A Bench of this court in Ramesh Babu v. Joint Secretary to the Government of India, Ministry of Finance, (W.P. No. 15481 of 1989 dt. 20-
4-1989) has held that seven days unexplained delay in disposing of the representation is in itself a ground to hold that the detention is invalid. The
same view has been reiterated by another Bench of this Court in Mohamed (illegible) v. Joint Secretary to Government of India, Ministry of
Finance, (W.P. No. 11887 of 1990 dt 9-11-1990).
In this case however we are also inclined to take the view that it was not possible for the detaining authority to make a study of the documents,
form opinion whether to detain the petitioner or not and draw the grounds of detention between 20-3-1990 and 22-3-1990. Why the respondents
have chosen to be vague and have not specifically stated when they received the documents and the proposal to detain the petitioner is for them to
explain. In any event when the proposal and the documents were not available with the detaining authority on any date prior to 22-3-1990, the
order could not have been made on 23-3-1990.
A Bench of this court in W.P. No. 11887 of 1990 dt. 9-11-1990, referred to above, considered a case in which the copies of the documents
furnished to the detenu, were running to 623 pages, and the grounds of detention were said to have been based upon those documents, and the
Bench held that the detaining authority could not have read the entire papers, that he could not have applied his mind to the voluminous documents
which were placed before him by the sponsoring authority and that it was certainly not possible for the detaining authority to pass the order of
detention in one day''s time. No doubt, in the instant case, by guess, time may vary between 2 days and 1 day, but the respondents have chosen to
be vague in reply to the specific allegation of the petitioner that the proposal could not have been received before 22-3-1990 and the documents
bulk, in the instant case, is 464 pages. Learned counsel for the respondents has rightly pointed out that this bulk is on account of one-half of the
pages being consumed by the Tamil translation of the English documents. Be that as it may. Assuming that the pages consumed were 200 plus, the
documents were at least not less than 42, because 42 documents have been referred to in the impugned detention order.
Having applied ourselves to the facts of this case, we are inclined to hold that the petitioner''s detention is not valid. We accordingly allow the
petition and quash the order of detention dt. 23-3-1990. Respondents are directed to set the petitioner free, unless wanted in connection with any
other case.
Petition allowed.