S LAKHWINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has been taken into detention in pursuance of an order dated 11th February 1987 passed by Shri Tarun Roy, Joint Secretary to the Government of India, under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. This detention order was passed with a view to preventing the detenu from smuggling goods, engaging in transporting and concealing smuggled goods, and dealing in smuggled goods otherwise than by engaging in keeping smuggled goods. This detention order is an outcome of an incident dated 27th of January 1987 when a truck No. PAT 1155, which was driven by Sikander Singh was intercepted at the Haryana-Delhi border. The truck was carrying four persons namely, Nirmal Singh, Harcharan Singh, the petitioner and the driver Sikander Singh. On search of the truck 150 foreign marked gold biscuits were recovered from it. On further enquiry it was found that this consignment of foreign marked gold was to be delivered to Surinder Kumar and Satpal who were also arrested. All of them were taken into custody on 27th January 1987. There is no need for me to detail further facts:

(2.) Mr. Herjinder Singh, while arguing the case for the petitioner, has urged a number of points but in view of the fact that this petition will have to be allowed on the point of delay in consideration of the representation of the detenu there is no need for me to go into the merits or otherwise of all other points, The detenu made a representation dated 3rd March 1987, though drafted on 25th February 1987, from Jail to the detaining authority against the detention. He was intimated on 19th March 1987 that his representation has been rejected. In this representation the petitioner had also asked for a copy of the statement of one Raghbir Singh, which was supplied to him on 28th March 1987. The detenu has raised a specific plea that there has been delay in the consideration of his representation and as such in view of the violation of his right under Article 22 (5) of the Constitution the detention order stands vitiated this plea has been specifically raised by the detenu. In reply to ground No.7 the respondents in their counter affidavit have stated that the representation of the petitioner dated 3rd March 1987 was received by the detaining authority on 4th March 1987 and on 5th March 1987 it was sent for the comments of the Directorate of Revenue Intelligence which was received on 13th March 1987 and thereafter the papers after processing were put up before the detaining authority on 18th March 1987 when it was considered and rejected. It is admitted that the fact of rejection was communicated to the detenu on 18th March 1987. The affidavit of the detaining authority does not indicate as to who actually asked for the comments nor does it indicate the details of the processing. The detaining authority is bound to disclose as to what happened between 5th March 1981 and 13th March 1987 and thereafter between 13th March 1987 and 18th March 1987. The law on this aspect of the matter is very clear inasmuch as the detaining authority is required to deal with the representation of the detenu with utmost vigilance and promptitude. This is so laid down as the liberty of a citizen is in peril. The law further is thai delay by itself is not fatal if it is properly explained. What construes a delay will of course be judged by reference to the facts of each case.

(3.) In this case, however, together with delay I am faced with a further point as to who on receipt of the representation is to deal with the representation. It was in such a situation that I requested Mr. Sat Pal, learned counsel for the respondents, to let me know from the record of the detaining authority as to who sent for the comments in the present case and what was the nature of processing that took about 5 days before the representation came for consideration before the detaining authority. Mr. Sat Pal on the basis of the record has submitted that the representation on receipt was not put up before the detaining authority and the comments were called for by the office. He has further stated from the record that the representation was placed before the detaining authority for the first time on 18th March 1987 along with comments when it was considered and rejected. This clearly shows that the representation of the detenu was dealt with in routine and mechanical manner. I have consistently held the view that in consideration of the representation there cannot be an intervening factor between the detenu and the detaining authority. If the detaining authority orders detention it is also bound to attend to the representation of the detenu. Every representation made to the detaining authority necessarily has to be placed before the detaining authority and if the detaining authority for proper consideration of the representation thinks it proper to call for further comments it may do so. But it is Important that it must appear that at all stages the representation was dealt with by the detaining authority and It applied its mind at every stage without surrendering its power to its office. In the present case, the representation when it was received was not shown to the detaining authority. The detaining authority did not send for the comments of the Directorate of Revenue Intelligence. It did not apply its mind. On the other hand, all this seems to have been done in routine by the office of the detaining authority. This clearly goes to show that there was Jack of vigilance on the part of the detaining authority in consideration- of the representation. Even after 13th of March 1987 it is stated that the papers were being processed. No details in this regard are given and the least that can be said is, the court is not taken into confidence as to what Twas that process which the representation had to undergo for 5 long days. This also shows that there has been almost a total indifference towards the consideration of the representation of the detenu. This, in my view, sufficiently vitiates the detention order. On this ground alone the detention order is vitiated.