KANTILAL HIRJI SHAH Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This is an application under Article 32 of the Constitution of India by a detenu under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA) assailing the order of detention dated 17.12.1999. The order of detention is assailed primarily on two grounds, namely, that the representation made to the Central Government as well as to the State Government has not been disposed of within a reasonable dispatch as a result of which the constitutional right of the detenue under Article 22 (5) of the Constitution has been infringed. When the case was listed before a Bench of two learned Judges of this Court, a contention was advanced that the very fact that on receipt of the representation of the detenue on 3.1.2000, the officers of the department called for a para wise comments from the sponsoring authority, and thereafter the matter was dealt with, would indicate that the matter has been dealt with mechanically without proper application of mind inasmuch as the representation having been made to the Secretary of the Department, it is only he who could have himself dealt with immediately or could not have asked for the comment, and in support of this contention a decision of this Court in the case of R. Paulsamy v. Union of India and Anr. [jt 1999 (4) SC = (1999) 4 SCC 415] was pressed into service as the observation made in paragraph 6 of the aforesaid judgment to some extent supported the contention of the Petitioner. The Bench thought it fit to refer the matter to a Bench of 3 learned Judges to examine the correctness of the aforesaid decision in R. Paulsamy's case. That is how the matter has been placed before us.

(2.) The learned Counsel for the Petitioner contends that in view of the aforesaid decision of this Court the conclusion is irresistible that the detenue's representation had not been attended to immediately by the appropriate authority, and on the other hand, some subordinate officer called for report from the sponsoring authority, and as such there has been an infringement of his right under Article 22 (5) of the Constitution. So far as the representation made to the State Government is concerned, the Counsel contends that the manner in which the representation to the State Government has been dealt with, would indicate that there was absolutely no necessity to call for a report from the Public (SC) Department, and therefore there has been no explanation for the period 7.1.2000 to 10. 1.2000, and on account of such an explained delay in disposal of the representation of the detenue, he is entitled to be released and the order of detention is liable to be' quashed.

(3.) The learned Additional Solicitor General appearing for the Union of India contends that the enunciation of law made by this Court in Paulsamy's case does not appear to be correct inasmuch as in the functioning of the governmental system, it would be necessary for the officers, who were subordinate to the detaining authority, to call for some information's from others without which the representation of the detenue possibly cannot be disposed of effectively and so long as these officers cannot take any decision on their own, it cannot be said that there has been an infringement of detenue's right under Article 22 (5) merely because a subordinate officer called for some report from the sponsoring authority or any other appropriate authority. He places reliance on the decision of this Court in Kamarunnissa v. Union of India and Anr. [jt 1990 (4) SC 7 = (1991) 1 SCC 128] wherein this Court rejected the contention raised by the detenue by holding "the contention that the views of the sponsoring authority were totally unnecessary and the time taken by that authority could have been saved does not appeal to us because consulting the authority which initiated the proposal can never be said to be an unwarranted exercise". He also places reliance on the decision of this Court in A. Sanjeevi Naidu Etc. v. State of Madras and Anr. [1970 (1) SCC 443] which deals with the question as to how Government functions and it has been held in that case that "it is always open to a Minister to call for any file in his Ministry and pass orders. He may also issue directions to the officers in his Ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that over all power, the officers designated by the 'rules' or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates. " These observations, of course, have no direct application to the case in hand, as in the present case, the officers concerned had taken no decision in the matter, and on receipt of the representation have merely called for the reports from the sponsoring authority which was absolutely necessary for effective disposal of the representation in question. So far as the State Government is concerned, Mr. lyer appearing for the State contended that there has been no delay in disposal of the representation, and on the other hand, the manner in which the representation had been dealt with, would indicate that the concerned authorities have dealt with reasonable despatch, and in fact, ultimately the representation was disposed of on being considered by the Secretary of concerned department, and the Secretary of the Law Department as well as the Minister concerned on the very same day on 13.1.2000.