U P ABOOBACKER Vs. UNION OF INDIA

JUDGEMENT

(1.) By this writ petition, the petitioner challenges the validity of his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). Originally, the petitioner was taken into custody on 15-1-85 while attempting to board a flight from Cochin to Delhi, as he was found to be in possession of 9,760 U.S. Dollars, 1000 Saudi Riyals and Rs. 2,80,000 in Indian currency and, according to the customs authorities the petitioner had not been able to prove his assertion that the foreign currency had been brought into India by the petitioner after due declaration and the Indian currency was also intended for making payments to a party of Saudi Arabia. A prosecution under the Customs Act was initiated against him and. in these proceedings, the petitioner obtained the permission of the court to proceed to Saudi Arabia subject to certain conditions. After some time, when he appeared before the Magistrate on 9-5-86, he was detained in pursuance of an order of detention passed by Sri K. K. Dwivedi, Joint Secretary to the Government of India, Ministry of Finance specially empowered to act under S. 3(1) of the COFEPOSA Act and is since then in custody at the Central Prison, Trivandrum.

(2.) It is unnecessary to set out in detail the grounds of detention for, though several contentions have been raised in the writ petition, we are Of opinion that it is sufficient for disposing of this petition, to consider the principal contention urged before us by Sri Harjinder Singh. The point made by him is a short one. He points out that, on 28-5-86, the detenu made a representation to the authorities against his detention and also seeking the supply of certain documents, but that this representation was rejected by an order dated 11-7-1986 communicated to the petitioner only on 16-7-1986. His submission is that this a long and unreasonable delay, violative of Art. 22(5) of the Constitution of India, which renders his detention illegal.

(3.) This allegation of the petitioner is dealt with in para 15 of the counter affidavit filed by the respondents. It explains at length the various stages of the proceedings on the petitioner's representation during the period of 51 days between 28-5-86 and 16-7-86 thus: "15. Para 15 is wrong and denied. There is no undue delay in deciding his representation. A representation dated 28-5-86 was received in the Ministry on the evening of 30-5-86 in Malyalam language. 31-5-86 and 1-6-86 were holidays on account of Saturday and Sunday. The said representation running into 14 pages was in Malyalam language. After translation and scrutiny, it was revealed that the same pertain to the detention of detenu in which there were allegations pertaining to the enforcement Directorate. As such the same was sent by the Ministry to the Enforcement Directorate on 4-6-86. On 5-6-86 it was received in the Head-quarters of the Enforcement Directorate. On 6-6-86 since the same pertained to the Madras Zonal Office of the Enforcement Directorate, it was sent to the Madras Zonal Office which was received in the Madras Office on 13-6-86. 14-6-86 and 15-6-86 were holidays on account of Saturday and Sunday. On 16-6-86 it was sent by the Madras Zonal Office to the Trivandrum Sub Zonal Office as the seizure and the investigations were conducted by the said Office. The Trivandrum Sub Zonal Office after preparing the necessary comments sent the same on 26-6-86 directly to the Headquarters of the Enforcement Directorate at New Delhi. It is pertinent to submit that the concerned official who was dealing with the case at Trivandrum namely Shri K. John, Chief Enforcement Officer was on official tour from 16-6-86 to 20-6-86. Immediately on his resumption of duties he prepared the comments and sent them to New Delhi. It may also be submitted that 21st June, 1986 and 22nd June, 1986 were holidays on account of Saturday and Sunday. The said comments were received in Delhi on 1-7-86. Immediately after their receipt in Delhi, the same were sent to the detaining authority on 2-7-86. After their receipt in the Ministry the same were scrutinised on 4-7-86. 5th and 6th July, were holidays on account of Saturday and Sunday and the case of the detenu was fixed for hearing before the Advisory Board on 718th July, 1986. The file could not be sent to the Detaining Authority. However, when the hearing by the Advisory Board was adjourned to 17-7-86. the file was sent to the detaining authority on 8-7-86. The detaining authority considered the representation after the application of mind and rejected the same on 8-7-86. The same was thereafter placed before the Minister of State for Finance on 9-7-86. The Minister of State for Finance considered the said representation on 9-7-86 and the file was received back by the detaining authority on 10-7-86. The memorandum regarding rejection of the representation by the detaining authority and the Central Government were issued on 11-7-86." The question to be considered is whether this explanation can be considered to be satisfactory and acceptable or whether the detention should be declared illegal for want of due diligence and despatch on the part of the authorities in disposing of the petitioner's representation. Betore doing this, it may be useful to refer to the authorities cited by counsel which enunciate the general principles which have to be kept in view in deciding this issue.