ASLAM KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has preferred this writ petition under Article 226 of the Constitution of India and has prayed inter alia that the writ of habeas corpus and declaration be issued quashing the detention order dated 12.8.1996 issued by the Joint Secretary, Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities 1974. The order has been issued with a view to prevent the petitioner from smuggling goods and also preventing from engaging and transporting, concealing and keeping smuggled goods. The learned counsel for the petitioner has challenged the detention order on various grounds. The first ground which has been taken by the learned counsel for the petitioner is delay in disposal of representation.

(2.) In reply to the writ petition, a detailed counter affidavit has been filed by Mr. K.L. Sharma, the Joint Secretary, COFEPOSA in the Ministry of Finance, Department of Revenue, Janpath, New Delhi. In the counter affidavit, it is admitted that the representation dated 16.9.1996 was received on 17.10.1996. It is mentioned that from 17.10.1996 to 27.10.1996, the concerned Under Secretary was on official tour. No explanation whatsoever has been given for subsequent dates, i.e., 28, 29, 30 and 31st October, 1996 though, admittedly these were the working days. The counter affidavit is totally silent about it. It is mentioned in the counter affidavit that on 1.11.1996, para-wise comments were called from the sponsoring authorities. Again, no explanation has been given regarding 4th and 5th November, 1996 which were working days. It is mentioned in the counter affidavit that para-wise comments were prepared and forwarded by the sponsoring authority. It is mentioned that on 7.11.1996, comments were received from the COFEPOSA Unit. On 11.11.1996, the representation of the petitioner was rejected and on 13.11.1996, the detenu was informed about the rejection of his representation.

(3.) Their Lordships of the Supreme Court in catena of cases have clearly laid down that undue and unexplained delay in deciding the petitioner's representation would be in clear violation of the constitutional obligation and provision under Article 22(5) of the Constitution of India.