KUNIKA RANDHIR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THROUGH this writ petition preferred under Article 226 of The Constitution of India, the petitioner who describes herself as wife of the detenu - Randhir Singh has impugned the order dated16/11/2000 passed by the second respondent Mr. Somnath Pai, Joint Secretary to the Government of India, detaining the detenu under section3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities, Act 1974 (as amended) (hereinafter referred to as the COFEPOSA ACT ). The detention order along with the grounds of detention which are also dated16/11/2000, was served on the detenu on7/3/2001 and their true copies are being annexed as Annexures A and B respectively to this petition.

(2.) THE prejudicial activities of the detenu prompting the second respondent to issue the impugned order are contained in the grounds of detention (Annexure B ). Since in our judgment, a reference to them is not necessary for the adjudication of ground no.4 (x) pleaded in the petition, on which ground alone learned counsel for the petitioner has restricted his challenge, we are not adverting to them.

(3.) WE have perused the averments contained in ground no.4 (x) of the petition, those contained in para 4 (x) of the first return of the detaining authority dated13/9/2001, wherein the said ground has been replied to and heard learned counsel for the parties. WE make no bones in observing that we find merit in ground no.4 (x ). Article 22 (5) of the Constitution of India reads thus : (5)When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. An analysis of the aforesaid provision would show that the fundamental right guaranteed to the detenu is of making a representation against a detention order at the earliest opportunity. It is well-settled that in the said right, is also implicit an obligation on the authority to whom the representation is addressed to dispose off the same at the earliest opportunity. In this connection, it would be useful to advert to para 3 of the decision of the supreme court rendered in the case of Smt. Shalini Soni V/s. Union of India, reported in AIR 1981 SUPREME COURT PAGE 431, which reads thus : - Quite obviously the obligation imposed on the detaining authority by Art. 22 (5) of the Constitution, to afford to the detenu the earliest opportunity of making a representation, carries which it the imperative implication that the representation shall be considered at the earliest opportunity. The extreme urgency with which the detenu's representation should be disposed off has been emphasised by the supreme court through various expressions such as : (i) Utmost expedition para 3, AIR 1981 S. C. page 1126 Harish Pahwa Vs. State of U. P. & ors. (ii) as expeditiously as possible Para 3, AIR S. C. pg. 675 Jaynarayan Shukul vs. State of WEst Bengal (iii) Expeditiously considered and disposed off with. . promptitude and diligence and with a sense of urgency and without avoidable delay, Para 21 AIR 1989 SC 1961 Rama Dhondu Borade vs. V. K. Saraf & ors, and (iv) at the earliest Para 18 (1996) SCC 194 Kundanbhai Dulabhai Shaikh vs. District Magistrate, Ahmedabad and others. It would also be useful to advert to the ratio laid down by the Supreme Court in para 3 of the case of Harish Pahwa V/s State of U. P. , reported in AIR 1981 SUPREME COURT PAGE 1126, wherein emphasing the hallowed urgency with which a detenu's representation should be disposed off, it was observed thus :- WE would emphasise that it is the duty of the state to proceed to determine representations of the character above mentioned with the utmost expedition which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. (Emphasis supplied) In this connection, we also think it pertinent to refer to a comparatively more recent judgment of the Supreme Court, namely that reported in 1996 SCC page 194, supra, wherein the Apex court observed thus : - Turning now to the main question relating to the early disposal of the representation, we may immediately observe that this court in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of detention, and in that situation, continued detention would become bad. This has been the consistent view of this court all along from its decision in Sk. Abdul Karim v. State of W. B. Durga Shown: In re Jayanarayan Sukuk Vs. State of W. B. Sk. Hanif v. State of W. B. Raisuddin Vs. State of U. P. Francis Coralie Mullin v. W. C. Khambra: Mohinuddin v. Distt. Magistrate; Rama Dhondu Borade v. V. K. Saraf, Commr. of Police v. Aslam Ahmed Zahire Ahmed Shaikh v. Union of India; Mahesh Kumar Chauhan v. Union of India, right up to its reiteration in Gazi Khan v. State of Rajasthan. (Emphasis supplied)