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Judgment
K. Mohan Ram, J.—The petitioner is the wife of the detenu-S. Basheer Ahmed, who has been detained by the State Government in
exercise of the powers conferred u/s 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central
Act 52 of 1974) by the detention order made in G.O.No.SR1/415-13/2010 Public (SC) Department, dated 7.1.2011.
In the grounds of detention it is alleged that on the basis of specific intelligence to the effect that Thriu. S. Basheer Ahmed, a passenger, holder
of passport No.Z-1761205, arriving by Singapore Airlines Flight No.SQ.528/9.6.2010 would be attempting to smuggle electronic goods in trade
quantity in the guise of personal baggage without declaring them to the Customs authorities or without paying appropriate duty, the Officer of
Directorate of Revenue Intelligence, Chennai, intercepted him in the presence of independent witnesses at the arrival hall of Chennai Anna
International Airport, Chennai on 9.6.2010. In the Customs declaration he has declared the number of his checked in baggage as two and hand
baggage as one and the value of the dutiable goods brought by him as Rs. 1,10,000/-. He identified checked in baggage and he informed that he
did not possess the counterfoil of the said baggage tag. But the officers of Directorate of Revenue Intelligence, Chennai examined the two checked
in baggage and found to contain electronic goods of 110 Nos. of 1 GB RAMs, 246 Nos. of 2GB DDR3 RAMs, 50,227 Nos. of Kingston 2 GB
SD Micro Memory cards and 7097 Nos. of PQ1 2 GB SD Micro memory cards in trade quantities, as inventorised in the annexure to the
mahazar.
To the specific query made by the officers whether he was having any document for the purchase of the above mentioned electronic items, he
replied that in the negative. The officers valued the electronic goods found in the said baggage based on the values obtained from the internet
(National import Data Bank) and the same was shown to him and the independent witnesses and he agreed with the values found therein.
Accordingly, the officers of DRI, Chennai arrived at a CIF value at RS.1,40,19,940/- (market value approximately at Rs.2.10 Crores). The
officers of DRI seized the said electronic goods under a mahazar proceedings, dated 9/10.6.2010 along with his flight ticket, boarding card,
baggage tags and the Customs declaration.
In his statement, dated 10.6.2010 given u/s 108 of the Customs Act, 1962, he had stated that he can speak, write, read and understand Tamil
well; that on 9.6.2010 night when he arrived at Chennai Anna International Airport from Hong Kong via Singapore in flight SQ.528, the officers
examined and recovered the electronic goods viz., RAMs and memory cards used in cellphones in his presence to the value of Rs.1,40,19,940/-
and seized them under a mahazar dated 9/10.6.2010 and he has also signed in the mahazar for having present at the time of examination; the above
goods brought by him belongs to Thiru. Jahir Bhai of Seven Wells area, Chennai and on his arrangements he went to Hong Kong, and as
instructed by him, he met Thiru. Westly, a Chinese National, at the premises, 7/A Kawing Building, 27, Gran Ville Road, TST and brought goods
i.e., on earlier two occasions on 31.5.2010 and 6.6.2010; that due to poor economic condition of his family and he was not able to get even a
casual labour job and Thiru. Jahir Bhai promised that he would bear the ticket and other expenses and he would give him Rs.3000/- to Rs.3500/-
per trip, he agreed the said job and concerned himself in smuggling goods for Thiru. Jahir Bhai and requested to excuse his mistake and the
statement was given by him voluntarily in his own hand without any threat or coercion.
The officers of the DRI, Chennai conducted search in his residence at No.28, I Floor, Pasuvayyan Street, Old Washermenpet, Chennai-21 and
no incriminating material was recovered. As he attempted to smuggle electronic goods in trade quantities, he was arrested by the Senior
Intelligence Officer, DRI, Chennai on 10.6.2010 and on the same day, a telegram was sent to his wife intimating his arrest. He was produced
before the Additional Chief Metropolitan Magistrate (E.O.1), Egmore, Chennai at his residence on 10.6.2010, who remanded him to judicial
custody till 24.6.2010.
A bail petition, dated 14.6.2010 was filed by him before the Additional C.M.M. (E.O.1), Egmore, Chennai and the same was contested by the
DRI, Chennai and by order, dated 6.7.2010, the bail petition was dismissed. His remand was extended by the Additional, C.M.M.(E.O.1),
Egmore, Chennai, by orders, dated 24.6.2010, 8.7.2010 and 22.7.2010 and the remand was lastly extended upto 5.8.2010. Another bail
petition, dated 15.7.2010 was filed by him before the Additional C.M.M.(E.O.1) Egmore, Chennai contending inter alia that he did not give any
voluntary statement and he retract the same as involuntary statement and prayed the Court to enlarge him on bail. The same was contested by the
DRI, Chennai and by order, dated 4.8.2010, he was enlarged on bail with a direction to appear before the respondent office on all working days
at 10.30 a.m. until further orders. By order, dated 7.9.2010, the condition imposed was relaxed and he was directed to appear before the DRI,
Chennai once in a week or on every Monday until further orders. By yet another order, dated 2.11.2010, he was directed to appear before the
DRI, Chennai, once in 15 days, i.e. on every alternative Monday. Accordingly, he was appearing before the officers of the DRI, Chennai.
A representation, dated 30.8.2010 addressed to the Minister for Law, Courts and Prisons was received from his wife stating that the statement
from him was obtained by force and he was innocent and requested not to initiate any action under the COFEPOSA Act and to release him from
the case. After duly considering the representation, the detaining authority rejected the same.
A show cause notice, dated 22.11.2010 was issued by the DRI, Chennai, under the provisions of the Customs Act, 1962 calling upon him and
any other person claiming ownership of the seized goods to show cause to the Commissioner of Customs, Airport, Chennai, within 30 days from
the date of receipt of the notice as to why the seized goods should not be confiscated and penalty should not be imposed on him and any other
person claiming ownership of the seized goods. A reply, dated 4.12.2010 was received from Thriu. S.Palani Kumar, Advocate on his behalf
requesting permission to re-export the goods and order to revalue the goods and impose lesser redemption fine, personal penalty and show
leniency and mercy while passing the order. On the date of seizure, the value of the seized electronic goods as per the internet download was
Rs.1,40,19,940/-(CIF value).
It is further alleged in the grounds of detention that Thiru. Basheer Ahmed, has attempted to smuggle electronic goods valued at
Rs.1,40,19,940/- by mis-declaring the value of goods and rendered the above said goods liable for confiscation under Customs Act, 1962 and
thereby committed an offence punishable u/s 132 and 135 of the Customs Act, 1962. He had knowingly and consciously attempted to smuggle the
electronic goods into India by way of concealment and gross mis-declaration to Customs Department for evasion of customs duty. The
Government has satisfied that the nexus between the date of the incident and passing of the detention order as well as the object of his detention
has been maintained. From the above materials, the State Government is satisfied that he had indulged in smuggling of goods. While arriving at the
subjective satisfaction to detain him under the COFEPOSA Act, 1974, the State Government has taken into consideration all the facts and
materials referred to and relied upon in the grounds mentioned above and also the statements, mahazars, bail petitions, representations and show
cause notice etc.
The State Government is satisfied that on the facts and material mentioned above, if he remains at large, he will indulge in such prejudicial
activities in future, and even though his passport is produced before the court there is every possibility of continuing his business by illegal way. The
State Government is also satisfied that the further recourse to normal criminal law would not have the desired effect of effectively preventing him
from indulging in such activities. The State Government, therefore, considers that it is necessary to detain him u/s 3(1)(i) of the COFEPOSA Act,
with a view to prevent him from indulging in the smuggling of goods in future.
Questioning the aforesaid detention order, the above H.C.P. has been filed.
Heard both.
Even though several grounds have been raised by Mr. S. Palani Kumar, the learned counsel for the petitioner, questioning the order of
detention, in our opinion, it is not necessary to advert to all such grounds inasmuch as there is unexplained delay of 7 days in considering the
representation, dated 20.1.2011.
The learned counsel submitted that a representation dated 20.1.2011 was sent by the petitioner and the same was received in the
COFEPOSA Unit of the Ministry of Finance, Department of Revenue, New Delhi on 28.1.2011 from the State Government of Tamil Nadu; as
seen from the counter filed on behalf of the second respondent, parawise comments on the representation along with the English translation thereof
were called for from the Sponsoring Authority, viz., the Additional Director General, Directorate of Revenue Intelligence, Chennai as well as the
detaining authority, viz., Public (Law & Order) Department, Government of Tamil Nadu, Chennai on 28.1.2011 itself. The comments of the
Sponsoring Authority on the representation along with English translation of the same sent vide letter dated 28.1.2011 were received in
COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi on 2.2.2011. The comments of the Detaining Authority on the
representation sent vide letter, dated 3.2.2011 were received in the COFEPOSA Unit of Ministry of Finance, Department of Revenue, New Delhi
on 7.2.2011. COFEPOSA Section submitted the file alongwith all the relevant files and documents to the Deputy Secretary (COFEPOSA) on
7.2.2011 for examination. After considering the entire materials, the Deputy Secretary (COFEPOSA) submitted the file with a comprehensive note
to the Joint Secretary (COFEPOSA) on 14.2.2011. The Joint Secretary (COFEPOSA), in turn, submitted the file with her considered views, to
the Special Secretary and Director General, Central Economic Intelligence Bureau, New Delhi on 14.2.2011. After considering the same, the
Special Secretary rejected it on 15.2.2011. The file was received in the COFEPOSA Unit on 15.2.2011. The petitioner and the detenu were
intimated about the rejection of the representation, dated 20.1.2011 vide memorandum, dated 15.2.2011 and the same was received by the
detenu on 18.2.2011.
On the basis of the aforesaid details furnished in the counter filed on behalf of the second respondent, the learned counsel for the petitioner
submitted that though the file along with all the relevant files and documents were received by the Deputy Secretary (COFEPOSA) on 7.2.2011,
he had submitted the file with his comprehensive note to the Joint Secretary (COFEPOSA) on 14.2.2011 only. Thus, there is a delay of 7 days in
considering the representation.
The learned counsel submitted that the second respondent in the counter filed has not explained the said delay of 7 days, i.e. from 7.2.2011 to
14.2.2011. According to the learned counsel, this unexplained delay of 7 days vitiates the detention order and therefore, the H.C.P. has to be
allowed.
In support of his contention, the learned counsel based reliance on the following decisions:
a. Rajammal v. State of Tamil Nadu AIR 1999 SCW 139
In the said decision, in paragraphs 8 and 9, the Hon''ble Apex Court, has laid down as follows:
It is a constitutional mandate of the Government to consider the representation forwarded by the detenu without any delay. Though no period is
prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words ""as soon as may be"" in clause (5) of
Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the
authority is pre-empted from explaining the delay which would have occasioned in the disposal of the representation. The Court can certainly
consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a
Constitution Bench of this Court in K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka
and Others, . The following observations of the Bench can profitably be extracted here (Para 12 of AIR):
It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation
and dispose of the same as expeditiously as possible. The words ""as soon as may be"" occurring in clause (5) of Article 22 reflects the concern of
the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay.
However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period
prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The
requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any
unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention
impermissible and illegal.
The position, therefore, now is that if delay was caused on account of any indifferent or lapse in considering the representation such delay will
adversely affect further detention of the petitioner. In other words, it is for the authority concerned to explain the delay, if any, in disposing the
representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or
range of delay, but how it is explained by the authority concerned.
Relying on the law laid down as above, in paragraph 12, the Hon''ble Apex Court has held as follows:
We are, therefore, of the opinion that the delay from 9.2.1998 to 14.2.1998 remains unexplained and such unexplained delay has vitiated
further detention of the detenu.
In an unreported decision of the Division Bench of this Court, dated 27.11.2010 rendered in H.C.P.No.1385 of 2000, in paragraphs 2 and 3,
the Division Bench has laid down as follows:
From the aforesaid extract of the counter affidavit, we are satisfied that there is a time lag between 11.9.2000 and 18.9.2000 which remains
unexplained. The legal position is that the representation preferred by the detenu has to be considered on day-to-day basis and each day''s delay
should be explained by the authority concerned. No such fact or explanation is forthcoming.
Admittedly there is no explanation offered for the delay. The file was lying idle, unattended for seven days from 11.9.2000 to 18.9.2000.
Therefore, there is a clear infraction of the constitutional mandate of Article 22(5). Accordingly, we quash the order of detention and allow this
Habeas Corpus petition.
Countering the said submissions, Mr. S. Udaya Kumar, the learned Sr.S.G.S.C., made the following submissions:
a. The learned counsel submitted that on 7.2.2011, which was a Monday, the relevant files and documents were received by the Deputy Secretary
(COFEPOSA). From 7.2.2011 to 11.2.2011, namely, Monday to Friday, were all working days and 12.2.2011 and 13.2.2011, respectively
being Saturday and Sunday, were holidays. On 14.2.2011 the Deputy Secretary has submitted the entire file with his comments to the Joint
Secretary (COFEPOSA) and on the same day, it was dealt with by the Joint Secretary (COFEPOSA) and submitted the file to the Special
Secretary and Director General, Central Economic Intelligence Bureau, New Delhi, who considered and rejected the same on 15.2.2011 itself.
The rejection order has been despatched on 15.2.2011 and the same has been received by the detenu on 18.2.2011. Thus, according to the
learned counsel there was no inordinate delay in considering and disposing the representation submitted by the petitioner and the detenu. Between
7.2.2011 and 11.2.2011, there was only five working days and the five working days taken by the Deputy Secretary for considering and
forwarding the same to the next superior cannot be considered to be an inordinate delay. Though it has not been explained in the counter affidavit,
according to him, it has to be presumed that the file was under continuous consideration of the Government and there was no inordinate delay.
b. The learned counsel relying on the decision of the Apex Court reported in 2011 (2) TLNJ 361 (Criminal) (D.M. Nagaraja v. The Government
of Karnataka and others) submitted that there is no constitutional mandate under Clause (5) of Article 22 much less any statutory requirement to
consider the representation before confirming the order of detention. The learned counsel submitted that the competent authority can consider the
representation only after the order of confirmation and as such the contention raised by the learned counsel as if there was delay in consideration is
baseless and liable to be rejected.
c. In the aforesaid decision, in paragraph 15, the Apex Court has laid down as follows:
Though leaned counsel for the appellant has not raised the objection i.e. Delay in disposal of his representation since that was the only contention
before the High Court, we intend to deal with the same. We have already stated that the detention order was passed on 22.9.2010 by the
Commissioner of Police, Bangalore City. The said order was approved by the Government on 30.9.2010 and the case was sent to Advisory
Board on 8.10.2010 and the Board sat on 4.11.2010. The Government received the report of the Advisory Board on 10.11.2010. Confirmation
detaining the detenu for a period of 12 months was issued on 16.11.2010. Representation of the detenu through Central Prison was sent on
6.10.2010 i.e. before passing of the confirmation order by the Government. This Court in K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union
of India (UOI) and Others and State of Karnataka and Others, has clearly held that the authority has not constitutional duty to consider the
representation made by the detenu before the order of confirmation of the detention order. There is no constitutional mandate under Clause (5) of
Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. In other words, the
competent authority can consider the representation only after the order of confirmation and as such the contentions raised by the appellant as if
there was delay in consideration is baseless and liable to be rejected. As pointed out above, the counsel for the appellant did not raise any
objection as regards to the same.
d. The learned counsel submitted that as per Section 8(f) of the COFEPOSA Act, in every case where the Advisory Board has reported 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.
e. In this case, according to the learned counsel, after the report of the Advisory Board was received the order of detention passed against the
detenu was confirmed on 15.4.2011 only, whereas the representation of the detenu dated 20.1.2011 had been rejected as early as 15.2.2011 and
rejection order was served on 18.2.2011 and therefore, according to the learned counsel, as per the aforesaid decision of the Apex Court there is
no constitutional mandate under Clause (5) of Article 22 of the Constitution of India to consider the representation before confirming the order of
detention.
f. In this case, the representation had been considered and disposed of long before the date of confirmation of the detention order and therefore,
the contention of the learned counsel for the petitioner that there was delay in consideration is baseless and liable to be rejected.
g. The learned counsel further submitted that in the decision reported in Union of India (UOI) and Others Vs. Laishram Lincola Singh @ Nicolai, ,
it has laid down that the delay in considering the representation has been properly explained or not would depend upon the facts of each case and
cannot be judged in vacuum. The learned counsel submitted that according to the said decision there should be no inaction or lethargy in
consideration of the representation and where there is a proper explanation for the time taken in disposal of representation, even though it may be
long, the continued detention of the detenu would not be rendered illegal in any manner. Therefore, the learned counsel submitted that the so-called
delay cannot be considered as inordinate delay as the same has been explained properly.
The learned Additional Public Prosecutor for the first respondent adopted the contentions put forth by the learned counsel for the second
respondent.
We have considered the aforesaid submissions and perused the materials available on record.
Admittedly, the representation of the petitioner, dated 20.1.2011 came to be rejected by the first respondent on 15.2.2011 and the same was
served on the detenu on 18.2.2011. As seen from the counter affidavit filed on behalf of the second respondent, the comments of the Detaining
authority on the representation sent vide letter dated 3.2.2011 have been received in the COFEPOSA Unit of Ministry of Finance, Department of
Revenue, New Delhi on 7.2.2011. COFEPOSA Section submitted the file along with all the relevant files and documents to the Deputy Secretary
(COFEPOSA) on 7.2.2011 for examination. After conducting the detailed examination of the issues raised in the representation and the comments
of the Sponsoring Authority and Detaining Authority thereon, the Deputy Secretary (COFEPOSA) submitted the file with a comprehensive note to
the Joint Secretary (COFEPOSA) on 14.2.2011.
In the counter affidavit except mentioning the dates on which the respective authorities considered and forwarded the file, the delay between
7.2.2011 when the Deputy Secretary received the files and 14.2.2011 when he forwarded the files to the Joint Secretary has not at all been
explained.
The point for consideration is as to whether this unexplained delay will vitiate the order of detention or not?
While the learned counsel for the petitioner bases reliance on the decision of the Full Bench of the Apex Court reported in 1999 AIR SCW
139 for supporting his contention that the delay of 7 days when the file was lying with the Deputy Secretary has not been properly explained by the
second respondent in his counter affidavit, the order of detention is vitiated.
The learned counsel for the second respondent bases reliance on the decision reported in 2011 (2) TNLJ 369, which is the decision rendered
by a Division Bench. In this decision, their Lordships have relied upon the decision of the Constitution Bench of the Apex Court in K.M. Abdulla
Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, and have held that there is no
constitutional mandate under Clause (5) of Article 22 of the Constitution of India much less any statutory requirement to consider the
representation before confirming the order of detention. It has been further held that the competent authority can consider the representation only
after the order of confirmation. Basing reliance on the aforesaid decision, it is contended by the learned counsel for the second respondent that
there was no delay in consideration of the representation.
In Rajammal''s case (AIR 1999 SCW 139) the Full Bench of the Hon''ble Apex Court has also relied upon the decision of the Constitution
Bench reported in AIR 1991 SCW 362 and the law laid down by the Full Bench is extracted in the preceding paragraphs. After considering the
Constitutional Bench decision, the Apex Court has laid down that if delay was caused on account of any indifference or lapse in considering the
representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the
delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So
the test is not the duration or range of delay, but how it is explained by the authority concerned. In that context, the Hon''ble Full Bench was of the
opinion that the delay from 9.2.1998 to 14.2.1998 remains unexplained and such unexplained delay has vitiated further detention of the detenu.
In Jayanarayan Sukul Vs. State of West Bengal, , which is another Full Bench decision of the Apex Court, it has been laid down as follows:
First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the
detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of
any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not
by any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate
authority for consideration but it has to be remembered that the government has to be vigilant raises a correlative duty of the State. Fourthly, the
appropriate government is to exercise its opinion and judgment on the representation before sending the case along with the detenu''s
representation to the Advisory Board. If the appropriate Government will release the detenu the government will not send the matter to the
Advisory Board. If, however, the government will not release the detenu the government will send the case along with the detenu''s representation
to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the government will release the
detenu. If the Advisory Board will express any opinion against the release of the detenu the government may still exercise the power to release the
detenu.
(Underlining supplied)
A reading of the aforesaid passage makes it clear that the appropriate government is to exercise its opinion and judgment on the representation
before sending the case along with the detenu''s representation to the Advisory Board. If the appropriate government will release the detenu the
government will not send the matter to the Advisory Board.
It is appropriate to refer to paragraphs 16 and 20 of the decision of the Constitutional Bench of the Apex Court reported in K.M. Abdulla
Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, , which read as follows:
16....The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the
representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board
along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation
the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there
is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the government
has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the government in such situations to
await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the government is bound to
revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the government after
considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The
Advisory Board may hear the detenu at his request. The constitution of the Board shows that it consists of eminent persons who are Judges or
persons qualified to be Judges of the High Court. It is therefore, proper that the government considers the representation in the aforesaid two
situations only after the receipt of the report of the Board. If the representation is received by the government after the Advisory Board has made
its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed
of by the government as early as possible.
(Underlining supplied)
20..... The words ""shall afford him the earliest opportunity of making a representation against the order"" in clause (5) of Article 22 suggest that the
obligation of the government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to
the procedure laid down u/s 8 of the Act. But if the detenu does not exercise his right to make representation at that stage, but presents it to the
government after the government has confirmed the order of detention, the government still has to consider such representation and release the
detenu if the detention is not within the power conferred under the statute. The confirmation of the order of detention is not conclusive as against
the detenu. It can be revoked suo motu u/s 11 or upon a representation of the detenu. It seems to us therefore, that so long as the representation is
independently considered by the government and if there is no delay in considering the representation, the fact that it is considered after the
confirmation of detention makes little difference on the validity of the detention or confirmation of the detention. The confirmation cannot be
invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention. Nor it could be presumed that
such consideration is not an independent consideration. With all respect, we are not inclined to subscribe to the views expressed in Vimalchand
Jawantraj Jain Vs. Shri Pradhan and Others, 4, Om Prakash Bahl v. Union of India, W.P. No. 845 of 1979, decided on October 15, 1979
(unreported) and Khudiram Das Vs. The State of West Bengal and Others, . They cannot be considered to be good law and hence stand
overruled.
(Underlining supplied)
As per Section 8(f) of the COFEPOSA 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. Therefore, the order of detention may or may not be confirmed only after the receipt of the report of the Advisory
Board. Therefore, as per the decision of the Constitution Bench of the Apex Court in Jayanarayan Sukul Vs. State of West Bengal, the
appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu''s
representation to the Advisory Board. In other words, the appropriate government is to exercise its opinion and judgment on the representation
before the confirmation of the detention order. This decision of the Constitution Bench and another decision of the Full Bench of the Apex Court
reported in AIR 1999 SCW 139 have not been brought to the notice of the Division Bench of the Apex Court while deciding the D.M. Nagarja''s
case reported in 2011 (2) TLNJ 361 (Criminal) (D.M. Nagaraja v. The Government of Karnataka and others). Therefore, though the decision
reported in 2011(2) TLNJ 361 (Criminal) is the latest decision of the Apex Court, we are bound by the decision of the larger Bench of the Apex
Court reported in K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, and
AIR 1999 SCW 139, Rajammal''s case. In that case since the delay of 6 days had not been explained, the Full Bench of the Apex Court quashed
the order of detention.
In this case, as pointed out above, the delay between 7.2.2011 and 14.2.2011 admittedly has not been explained in the counter affidavit filed
by the second respondent. Though as submitted by the learned counsel for the second respondent 12.2.2011 and 13.2.2011 happened to be
Saturday and Sunday, which are holidays, still there was a delay of five days and this five days delay has also not been explained.
In the decision reported in Smt. Pebam Ningol Mikoi Devi Vs. State of Manipur and Others, , in paragraph 36, the Apex Court has observed
as follows:
In the matter before us, a delay of 7 days has occurred in the forwarding of the representation. This may not be inordinate; however, at no
stage has there been an explanation given for this delay. The State Government or the Central Government has not clarified the same and thus the
delay remains unexplained.
In view of the unexplained delay of 7 days the detention order was quashed in that case.
In an unreported decision, dated 4.12.2007 rendered in H.C.P. No. 1302 of 2007 (Kannadasan v. State of Tamil Nadu and two others) by a
Division Bench of this Court, it has been held that the unexplained delay of 4 days in the consideration of the representation was considered to be
fatal to the order of detention and on that ground the detention order was quashed. In yet another unreported decision of the Apex Court, dated
3.10.2002 rendered in Criminal Appeal No.990 of 2002 (D. Arulmurugan v. The State of Tamil Nadu and another), the Division Bench of the
Apex Court basing reliance on Rajammal''s case reported in AIR 1999 SCW 139 has held as follows:
In the contextual facts, there is delay of about five days between dealing with the file by the Secretary and the Chief Minister of the State.
Thereafter, there is also a delay of six days between the rejection of the representation and the service of the rejection letter on the detenu.
Incidentally, be it noted that the respondents herein have filed a counter and apart from the details noticed above, no other detail or particular is
available in the file itself.
Learned advocate appearing for the State Government, however, wanted to place reliance on the factum of there being holidays. We are at a loss
to appreciate as to why such a plea was not raised in the counter. A perusal of the file would also show similar state of affairs.
On the wake of the aforesaid, we do feel it inclined to record our concurrence with the submissions of Mr. Mani that Rajammal''s decision (supra)
covers the facts and circumstances of the instant matter. As such, following the earlier decision in Rajammal''s (supra), this appeal is allowed and
the impugned order of the High Court stands set aside. We direct the detenue to be set at large forthwith unless she is wanted in any other case.
It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period
is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words ""as soon as may be"" in clause (5) of
Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the
authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The court can certainly
consider whether the delay was occasioned due to permissible reasons or unavoidable causes. If delay was caused on account of any indifference
or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority
concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay
can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.
In this case, admittedly, the delay of 7 days from 7.2.2011 to 14.2.2011 has not at all been explained in the counter filed by the second
respondent. Though it is now sought to be contended by the learned counsel for the second respondent that 12.2.2011 and 13.2.2011 happened
to be Saturday and Sunday, which are holidays, and if at all there is any delay, the delay will be only five days, it has to be pointed out the said fact
has not been stated in the counter affidavit. Therefore, the fact remains that the aforesaid delay in dealing with the representation of the petitioner
and the detenu remains unexplained and when the liberty of a citizen guaranteed under Article 21 of the Constitution of India is involved the
representation should have been dealt with utmost promptitude but in this case, as the representation had not been disposed of with utmost
promptitude and since there is unexplained delay of seven days in disposing of the representation, we are of the considered view that the order of
detention is vitiated.
The delay which stands unexplained is fatal to the detention order attracting Article 226 of the Constitution of India and therefore, the above
petition is allowed. The detention order dated 7.1.2011 is set aside. The detenu is directed to be set at liberty forthwith unless his custody is
required in connection with any other case.