BAHADUR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution which calls in question the order of detention dated 17th October, 1996 passed by the Joint Secretary, Government of India, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Thepetitioner has challenged his detention, inter alia, on the gound of delay in disposal on his representation by the Central Government.

(2.) Learned Counsel appearing for the petitioner points out that the petitioner had filed a representation before the Central Government on 12th November, 1996, after a period of twenty eight days. Learned Counsel submits that the delay in disposal of the representation of the petitioner has not been explained by the respondents. On the other hand, learned Counsel for the respondents submits that there is no delay in disposing of the representation of the petitioner. She has invited my attention to para 8 of the counter-affidavit. She points out that the representation of the petitioner reached the COFEPOSA Unit on 13th November, 1996 and parawise comments were called from the Sponsoring Authority on the next date i.e. 14th November, 1996. Relying upon the averments made in the said para, learned Counsel submits that the parawise comments were furnished by the Sponsoring Authority on 2nd December, 1996 and the same were received in the COFEPOSA Unit on the same day. With regard to the gap of about eighteen days from the date of the receipt of the communication till the date of furnishing of parawise comments by the Sponsoring Authority, she explains that during this period there were about seven holidays and the Sponsoring Authority took only eleven days to give its comments. Similarly, in regard to the period taken by the Central Government to dispose of the representation after its receipt from the Sponsoring Authority, she submits that the representation was dealt with and disposed of by the Central Government within a span of few days between 2nd December, 1996 and 10th December, 1996. Learned Counsel has also explained that between 2nd December, 1996 to 10th December, 1996 there were two holidays. So out of twenty-eight days there were nine holidays and the representation was disposed of in sixteen days. The learned Counsel vehemently contends that the period of sixteen days taken by the Central Government to dispose of the representation of the petitioner does not render the continued detention of the petitioner constitutionally impermissible and illegal. The contention of Ms. Barkha Babbar is that the representation of the petitioner was considered and disposed of with reasonable and expedition.

(3.) I have considered the submissions of learned Counsel for the parties. While it is true that during the time the representation of the petitioner remained pending there were nine holidays from 14th November, 1996 to 12th December, 1996, but the counter-affidavit, at the same time, is petitioner was being dealt with during the working days, viz. 15.11.1996, 18.11.1996, 19.11.1996, 20.11.1996, 21.11.1996, 22.11.1996,26.11.1996,27.11.1996,28.11.1996,29.11.1996,5.12.1996,6.12.1996 and 9.12.1996. These dates do not include the dates when the representation was received from one lever to another. These dates are 12.11.1996, when the representation was received by the Superintendent, Central Jail; 13.11.1996, when the representation was received in the COFEPOSA Unit; 14.11.1996, when the representation was sent to Sponsoring Authority for comments; 2.12.1996, when the representation was again received in the COFEPOSA Unit with the comments of the Sponsoring Authority; 4.12.1996, when the representation was received by the Director (Admn. IV); and 10.12.1996, when the representation was disposed of by the Secretary (Revenue). In its bid to explain the time consumed in disposing of the representation Ms. Babbar takes shelter behind the specious plea that during the above period the representation was being processed. This plea is of no avail to the learned Counsel as the Central Government has failed to show that during the above said days, which fall before and after the holidays, the representation was being dealt with continuously before it was disposed of. In case the plea of the learned Counsel for the respondent is allowed to prevail, it would amount to condoning lethargic indifference of the officials dealing with the representation of detenus. The representation of a person whose personal liberty has been curtailed by clamping an order of preventive detention must be considered without needless procrastination otherwise the constitutional obligation to furnish earliest opportunity to make a representation and to have the same considered and disposed of expeditiously would lose its purpose and meaning. In Kundanbhai Dulabhai Shaikh v. District Magistrate, Ahmedabad and Others, 1996 SCC (Cri.) 470, the Supreme Court did not tolerate a delay or inactivity of six days in taking up the representation of a detenu. In that case the Supreme Court observed as follows: