Smt. Rekha Kamlesh Shah vs Union of India (UOI) and Others

Vishnu Sahai, J.—Having regard the learned Counsel for the parties in this writ petition preferred under Article 226 of the Constitution of India, by the petitioner who is the wife of the detenu Kamlesh Nayalchand Shah, we are implicitly satisfied that the continued detention of the detenu in furtherance of the detention order dated 14-10-1997 passed by the second respondent Mr. Somnath Pal, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, detaining him u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, is vitiated in law because, the detenu has received no communication till dale from the respondents about the fate of his representation dated 2-3-1998.

It is not disputed by the counsel for the parties that:

(a) the detenu preferred a representation dated 2-3-1998, before the Central Advisory Board and the same was rejected by the Central Government on 15-4-1998; and

(b) in view of the observations contained in para 9 of the decision of the Apex Court reported in Smt. Gracy Vs. State of Kerala and another, , a representation preferred before the Advisory Board was also required to be considered by the Central Government.

It is admitted in para 2 of the affidavit dated 23-9-1998 sworn by Mr. J. N. Gawande, Jailor Group-I of Yerawada Central Prison, Pune, wherein the detenu is detained, in pursuance of the impugned detention order, that no memo of the Central Government rejecting the representation of the detenu has been received by the Bombay Central Prison, Mumbai or the Yerawada Central Prison, Pune, till date.

It is well-settled that in the right to make a representation at the earliest opportunity, conferred by Article 22(5) of the Constitution of India is implicit:

(a) an obligation to dispose of the same at the earliest opportunity (See para 3 of Smt. Shalini Soni and Others Vs. Union of India (UOI) and Others, , and;

(b) to communicate to the detenu the result of such disposal at the earliest opportunity.

In connection with (b) it would be necessary to advert to the decisions of the Apex Court reported in :-

(i) Harish Pahwa Vs. State of U. P. and Others, .; and

(ii) Rama Dhondu Borade Vs. V.K. Saraf, Commissioner of Police and Others, .

In the former decision, in para 3, the Supreme Court thus observed :-

We would emphasise that it is the duty of the State to proceed to determine representations of the character abovementioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu.

(Emphasis supplied).

In the latter decision, it would be pertinent to refer to the following observations contained in para 23 :--

In the instant case, the gap between the receipt and the disposal of the representation is 28 days but up to the date of service of the order of rejection on the detenu the delay amounts to 32 days.

(Emphasis supplied).

Since it is common ground between the counsel for the parties that the representation made by the detenu before the Central Advisory Board on 2-3-1998 was rejected by the Central Government on 15-4-1998 and the result of the rejection as is evident from para 2 of the affidavit of Mr. J. N. Gawande has not been communicated to the detenu yet, his continued detention would be vitiated, in view of the ratio laid down in Harish Pahwa Vs. State of U. P. and Others, and Rama Dhondu Borade Vs. V.K. Saraf, Commissioner of Police and Others, .

Since the continued detention of the detenu in furtherance of the impugned detention order is vitiated in law, as a logical imperative the impugned detention order would have to be quashed.

In the result, this petition is allowed. The impugned detention order is quashed and the detenu is directed to be released forthwith unless wanted in some other case.

Rule is made absolute in the said terms.