DARSHAN KUMAR RAJKUMAR NARULLA Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER in this case is the friend of the detenu by name Rajinder Kumar. PETITIONER has challenged the impugned order of detention dated 22.9.1994 (Exhibit 'A' to the petition) issued by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended).

(2.) MR. M.G. Karmali, learned counsel appearing on behalf of the petitioner, contended that the continued operation of the impugned order of detention is liable to be set aside, because of inordinate delaying in considering the representation of the detenue by the Central Government. MR. Karmali, learned counsel appearing on behalf of the petitioner has confined his arguments only on the aforesaid legal point. The aforesaid legal point is dealt with in the amended paragraphs 5(ix) and 5(x) of the petition. As against the aforesaid contention raised by the petitioner, Respondent No.2 filed his affidavit in reply. It is contended in paragraph 2 of the affidavit in reply as under : "As regards Para 5(x), (xi) of the petition, it is submitted that the detenu's representation addressed to the Central Government was considered after the receipt of the report of the Advisory Board and before the case of the detenu was placed for consideration as to whether there is sufficient cause for the detention or not. The file containing the report of the Central Government was received in COFEPOSA Unit on 9.9.1995. In its report, the Central Advisory Board had opined that there was sufficient cause for the detention of the detenu. The file was again put up to Joint Secretary (COFEPOSA) for confirmation of the detention order. Simultaneously, the representation of the detenu was also considered and placed before the Joint Secretary (COFEPOSA) on 9.5.1995, who, after his recommendation marked the file to Additional Secretary (Admn.) on 10.5.1995. Additional Secretary (Admn.) cleared the file on 12.5.1995 and put up the Secretary (Revenue), who also cleared the file on 12.5.1995 and further submitted to Minister of State ( Revenue & Expenditure), who signed and cleared the file for further submission to Finance Minister. Finance Minister finally rejected the representation of the detenu on 17.5.1995. File was received back in the Section on 18.5.1995. A memo intimating the detenu about rejection of his representation was sent on 19.5.1995. Thus, the representation addressed to the Central Government was considered independently and uninfluenced by the opinion of the Advisory Board, In no way, the decision of the Central Government was influenced by the opinion of the Advisory Board. Thus the representation was considered independently by the Central Government and there was no infringement of Article 22(5) of the Constitution".

(3.) THE only question we have to decide is as to whether the confirmation of the order of detention upon accepting the report of the Advisory Board renders it invalid on the ground that the representation of the detenu was not considered immediately after the receipt of the representation of the detenu and it was considered subsequently after receipt of the representation of the Advisory Board. Mr. Agarwal, learned counsel appearing on behalf of the respondents contended that the continued operation of the order of detention is valid and in the facts and circumstances of this case, the order of detention did not become invalid only because the Central Government passed the said order of confirmation after receipt of the representation of the Advisory Board.