ISMAIL IBRAHIM MANDRA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner who is detained from March 29, 1986 has filed the present Special Criminal Application challenging the order of his detention dated January 17, 1986 passed by respondent No. 1 exercising powers under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The main challenge is that the said order is violative of Articles 14, 19, 21 and 22 of the Constitution of India. The said order is challenged on various grounds as detailed in the memorandum of petition. However, at the time of hearing of this petition, Mr. A.R Thakkar, the learned Advocate for the petitioner has confined the challenge to ground No. 7 which is on the point of delay in considering the representation made by the petitioner-detenu to respondent No. 1. He has pointed out that the petitioner had made the representation to respondent No. 1 on April 12, 1986 through the jail authorities; and the said representation has not been considered by the respondent State in time; and, therefore, the continued detention of the petitioner has become bad. On behalf of the State Government, an affidavit-in-reply has been filed; and ground No. (7) has been dealt with in paragraph 13 thereof. It is specifically stated, after making a general submission that the contortions raised therein by the petitioner are not tenable, that the representation made by the petitioner was received through jail authorities by the Government on April 13, 1986. It is further pointed out that 13th and 14th April, 1986 were holidays. By a special messenger, the Collector, Customs was asked on 15.4.1986 to offer remarks on the representation; and the office of the Collector, Customs offered remarks vide letter dated May 21, 1986 which was received in the concerned branch of the Home Department on 27.5.1986. On the receipt of these remarks from the office of the Collector, Customs, the file was submitted to the under Secretary on May 27, 1986; and the Deputy Secretary cleared the file on the same day for placing the same before the Additional Chief Secretary. The Additional Chief Secretary also cleared the file on the same day and placed it before the Chief Minister on the same day; and the Chief Minister, after considering the representation and the remarks offered by the office of the petitioner on May 29, 1986 which decision was communicated to the detenu on May 30, 1986.

(2.) It may be stated that no affidavit is filed on behalf of the Collector, Customs explaining why there was delay of 36 days in offering remarks though the remarks were called for by a special messenger on April 15, 1986.

(3.) Thus, it is clear from the reply that is filed by the State Government on the point of delay in considering the representation, that there was no explanation given by the Collector, Customs for the delay in offering remarks on the representation of the detenu.