AKBAR HAIDER BALECH Vs. GOVT OF INDIA

JUDGEMENT

(1.) Is making of a representation against detention as provided under Article 22(5) of the Constitution of India an idle or empty formality so that consideration thereof can brook undue delay ? This is one of the several questions raised before us in support of this Writ Petition preferred by the detenu under Article 226 of the Constitution of India challenging his detention by an order passed on 31st January, 1990 by respondent No. 2 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the COFEPOSA for brief). Its copy is annexed as Annexure 'B' to this petition.

(2.) The petitioner was served with the order of detention at Annexure 'B' on 6th February, 1990. He was also supplied with the grounds of detention on that very day. A copy thereof is as Annexure 'B-1'. A declaration was also issued under Section 9(1) of the COFEPOSA on 12th March 1990. Its copy is as Annexure 'C'. The detenu made his representation on 29th March, 1990 to respondent No. 2. Its copy is as Annexure 'G' to this petition. It was considered and rejected by the Competent Authority some time on 22nd May, 1990. A copy of the memorandum in that regard is at Annexure 'H' to this petition.

(3.) It clearly transpires from the date of the representation at Annexure 'G' and the date of the Memorandum at Annexure 'H' that there was delay of about 1 month and 24 days in consideration and disposal of the representation made by the petitioner detenu against his detention. According to him, his continued detention is vitiated on account of such inordinate and undue delay in consideration of his representation by the Competent Authority. That ground of challenge to his such detention is found contained in para 8(k) of the petition. In the affidavit-in-reply of respondents Nos. 1 and 2 for resisting this petition, the delay in consideration of the representation made by the petitioner detenu on 29th March, 1990 is sought to be explained in para 19 thereof. It has inter alia been stated that the petitioner's representation dated 29th March, 1990 was received by the Ministry of Finance, Department of Revenue on 4th April, 1990. The concerned Authority found it necessary to call for comments from the Sponsoring Authority and therefore he ordered to call for his comments. It is further stated that the copy of the representation was therefore sent to the Sponsoring Authority for his comments on 6th April, 1990. Since comments were not supplied by the Sponsoring Authority till 25th April, 1990, a reminder was issued to him by Talex on 25th April, 1990. It has further been stated that the Sponsoring Authority found that the comments were also required from the Investigating Authority and such comments were called from the Investigating Authority. Then, it has further been stated that, on receipt of the said comments, the same were sent to the Ministry of Finance on 11th May, 1990. The rest of the explanation would not be material for the present purpose.