JULIA JOSE MAVELY Vs. UNION OF INDIA

JUDGEMENT

(1.) The detenue, namely, Mrs. Julia Jose Mavely, who is now lodged in the Central Prison, Thiruvananthapuram, has filed this petition under Art. 32 of the Constitution of India challenging the validity of the order of detention passed by the second respondent, the State of Kerala in exercise of powers conferred by Ss. 3(1)(i) and 3(i)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'Act') directing the petitioner/detenue to be detained and kept in custody in the above said prison with a view to preventing the detenue from smuggling goods and engaging in trasporting or concealing or keeping smuggled goods. The period of detention has been fixed for one year as per the order dated 16-1-1991 with effect from 27-10-90. As the facts of the case which necessitated the detaining authority to pass this detention order are well set out in the grounds of detention, we think that it is not necessary for us to reiterate the same. Challenging the validity of the order, the learned counsel appearing on behalf of the petitioner/detenue pressed only one contention that there has been undue and unexplained delay in disposing the representation made by the detenue to the first respondent. The said contention as set out under Ground No. VIII in the writ petition reads as follows:-

(2.) This ground is met by the first respondent in his counter stating as follows:

(3.) From a reading of the above statement made in the counter of the first respondent, it is clear that the Sponsoring Authority from whom the comments were called for had delayed in spending the comments up to l-1-91 despite the fact that the comments were called for from him on 4-12-90. Barring that, no explanation is forthcoming as to why the delay had occasioned at the hands of the Sponsoring Authority to send the parawise remarks or the comments to the first respondent. The learned senior counsel appearing on behalf of the first respondent unsuccessfully tries to explain by stating that since the Sponsoring Authority was at a far away place i.e. Ernakulam, the delay had occasioned due to postal transmission and that if the postal delay is excluded there is actually no delay rendering the detention order invalid. But at the same time, he unhesitatingly states that on 4-12-90 a letter calling for the comments was sent to the Sponsoring Authority by speed post. In our considered opinion, the above explanation now offered cannot be accepted for more than one reason. First, the first respondent has not preffered such explanation in his counter. Secondly, even accepting this present explanation, the delay cannot be said to have been explained, because the postal transmission, according to the learned counsel was by speed post. Thirdly, no supporting affidavit is filed by the Sponsoring Authority who alone could explain the delay at his end. The first respondent, thus, has failed to explain the undue delay of nearly 28 days in obtaining the comments by giving all necessary particulars. The learned counsel of the first respondent relied upon two decisions namely (1) M. Mohamed Sultan v. The Joint Secretary, Government of India, Finance Department, (1990) 4 JT 41 : (AIR 1990 SC 2222) and (2) Pratap Jeevan Lal v. State of Maharashtra, 1986 Cri LJ 1157 (Bom). In our opinion, the decision in Mohamed Sultan case will not be of any assistance to the first respondent because the facts as set out in the counter filed in that case showed that including the postal delay for communication from Delhi to Madras and back in obtaining the comments of the Sponsoring Authority, the time taken was from 30-1-90 to 12-2-90 and the necessary particulars appear to have been set out by specific pleading. The decision in Pratap Jeevan Lal's case (1986 Cri LJ 1157) (Bom) cannot also be availed of by the first respondent since in that case the contention, advanced was that the detaining authority was not justified to take assistance from the sponsoring authority which contention was repelled by the High Court. Leave apart, the facts of that case reveal that there was not much delay in the sponsoring authority in sending his comments to the detaining authority. It appears that the comments called for on 20-2-85 by the detaining authority were forwarded on 1-3-85, to say, within 8 to 9 days. Hence, we hold that these two decisions relied upon by the first respondent are of no help to the case of the first respondent.