P.C. Misra, J.
1. 'This is a petition under Article 226 of the Constitution of India challenging the validity of the order of detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, 'the Act'). The petitioner is a resident of Bargarh in the district of Samabalpur who was served with the order of detention dated 10-6-1985 (Annexure-1) along with the grounds of detention and some documents in support thereof to the effect that with a view to preventing him from smuggling primary gold of foreign origin and foreign make wrist watches, engaging and transporting, concealing and keeping these smuggled goods and dealing in these smuggled goods, his detention under Section 3(1) of the Act is necessary. The petitioner was arrested and detained with effect from 12-6-1985. On receipt of the order of detention as aforesaid, the petitioner submitted his representation on 28-6-1985.
2. According to the petitioner, there has been a violation of Article 22(5) in not disposing of the representation of the petitioner expeditiously and as such his detention was contrary to law. One of the grounds of the detention has been challenged by the petitioner as stale having no proximate connection with the alleged prejudicial activities attributed to him. According to the petitioner, the other grounds of detention are either non-existent or irrelevant and at any rate no opportunity having been given to him for effective representation, the order of detention on those grounds 'cannot be sustained.
3. The State of Orissa represented through the Secretary, Home Department, and the Additional Secretary, Home Department who are the opposite parties filed a counter affidavit stating that on the basis of the materials which had been furnished to the petitioner, the State Government were satisfied that with a view to prevent the petitioner from smuggling goods, engaging and transporting, concealing and keeping those smuggled goods, and in dealing in them, it was necessary to detain him under Sub-section (1) of Section 3 of the Act and accordingly, the Order No. 2937 dated 10-6-1985 (Annexure-1) was passed. It was further stated that the representation of the petitioner dated 28-6-1985 has been rejected by the Government after careful consideration and the fact of rejection has been communicated to the petitioner in Home Department latter No. 3502/C/ dated 23-7-1985. Their stand is that the conviction of the petitioner in respect of the incident dated 1-1-1970 and his conviction under Section 135(1) of the Customs Act, 1962 has got rational connection with the object of the detention as it has a reasonable nexus to ascertain the tendency of the petitioner in getting involved in the act of smuggling. To the allegations of the petitioner in paragraph 7 of the Writ petition that he does not own any shop premises known as 'Time and Steel' and has got no connection whatsoever in such shop from where 76 pieces of foreign wrist watches were seized on 11-11-1984, the opposite parties in their counter affidavit stated that the shop premises 'Time and Steel' belongs to Shri Govinda Prasad Chapodia who is the son of the petitioner and that the petitioner is the main person behind dealing in such contraband goods as per the intelligence. So far as the primary gold and golden ornaments are concerned which were recovered and seized from the possession of the petitioner from his residential premises under the occupation of the petitioner, it was stated that the petitioner was present at the time of search and seizure and had signed the panchanama as the owner of the seized goods. The primary gold seized from the petitioner on 11-11-1984 includes a gold biscuit and the facsmile inscribed over which indicates that the same is of foreign origin. It was thus contended that the order of detention was passed taking all these facts into consideration and the subjective satisfaction of the detaining authority cannot be called in question in this writ application.
4. In order to appreciate the point urged on behalf of the petitioner in this writ application, it is necessary to refer to the grounds of the detention which are quoted below:
(1) That on 1-1-1970 the Central Excise and Customs officers chased your Ambassador car bearing No. WBJ 3722 and intercepted it at Ainthapali Check post near Sambalpur Town. You and your driver were the o ccupants in the car. On a thorough search the above officers seized 250 tolas, i.e., 2195.950 grams of foreign gold along with the car. You in your statement dated 1-1-1970 stated that 25 biscuits of 10 tolas each of foreign gold were discovered from a cavity in the rear portion of the transistor fixed lo the car, that the gold belongs to you and that you purchased the gold at Calcutta to sell it at Bargarh. The above gold and the car under seizure were confiscated to Central Government and in an adjudication made by Central Excise and Customs department, a penalty of Rs. 1,50,000 was imposed on you and you were prosecuted for the above offence.
The Magistrate 1st Class, Sambalpur in his judgment dated 4-12-1971 in 11(c) C.C. Case No. 419 of 1970/T-110/71 held you guilty of the charges and convicted you Under Section 135(1) of the Customs Act, 1962 to suffer R.I. for one year and to pay a fine of Rs. 2,000, and in default, to suffer R.I. for six months. You preferred a revision in the Orissa High Court and the High Court in its judgment dated 23-11-1973 in criminal revision No. 390 of 1972 upheld the judgment of the lower court and dismissed the revision application.
xxx xxx xxx(2) That your activities were under surveillance and it is seen that conviction Under Section 135 of the Customs Act, 1962 had no effect on you as you continued your habit of dealing in smuggled goods as would be evident from the following:
That on search of your residential premises on 11-11-1984 by the officers of Central Excise and Customs of Bhubaneswar and Sambalpur, primary gold of foreign origin in the form of biscuits having marking on one side JAHNSON METFIERY LONDON weighing 105.000 grams valued at Rs. 20,842.50 paise, primary gold weighing 96.5 grams valued at Rs. 18,405.45 and other gold ornaments weighing 2960.300 grams valued at Rs. 3,70,424.00 were seized. This was in violation of Section 8(1) of the Gold (Control) Act, 1968. Further 76 pieces of foreign wrist watches were also seized by the said officers on the said date from your shop premises titled as Time and Steel, for violation of 11 of the Customs Act, 1962. xxx xxx xxx
5. Before dealing with the merits of the order of detention, we will first of all take up the point relating to delay in disposing of the representation dated 28-6-1985 of the petitioner. There can be no controversy as to the constitutional mandate under Article 22(5) that any person detained in pursuance of an order made under any law providing for preventive detention, the detaining authority 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. It has been held in a large number of cases that the language of Article 22(5) necessarily implies that the authority to whom the representation is to be made should properly consider the representation as expeditiously as possible. It has been further held that where the authority concerned has failed to consider and to dispose of the representation made by the detenu expeditiously, the order of detention was held to be illegal being violative of Article 22(5) of the Constitution. Section 3(3) of the Act provides that for the purpose of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. This section read with Article 22(5) of the Constitution makes it mandatory that not only the grounds of detention shall be communicated to the detenu as soon as possible affording him the earliest opportunity of making the representation against the order of detention but also the competent authority should dispose of the representation expeditiously. The unexplained and unaccounted for delay in communication of the grounds of detention as well as in the consideration of the representation by the appropriate authority results in violation of Article 22(5) as a consequence of which the detenu is to be set at liberty.
6. As already pointed out, the petitioner was served with the grounds of detention along with the order of detention on 12-6-1985. Thus, the requirement that the grounds of detention shall be communicated to the detenu affording him the earliest opportunity of making a representation against the order stands satisfied. The petitioner has, however, urged that his representation dated 28-6-1985 having not been disposed of expeditiously, there has been a violation of the letters and spirit of Article 22(5) of the Constitution of India.
7. According to the petitioner, the representation which was submitted by him on 28-6-1985 had not been disposed of to his knowledge by the date of his filing of the writ application, i.e., till 15-7-1985, which fact he has categorically stated in the writ petition. In reply to the said allegation, the counter affidavit filed on behalf of the opposite parties in paragraph 3 states that the representation of the petitioner has been rejected by the Government after careful consideration and the fact of rejection has been communicated to him in Home Department letter No. 3502/C dated 23-7-85. No particular date was, however, given on which the representation was disposed of, except saying that the order rejecting the representation was communicated to the petitioner on 23-7-85. There has been evidently delay in disposal of the representation. No reasons whatsoever were furnished in the counter affidavit explaining the delay so caused. After this writ application was heard for one full day, an additional affidavit was filed on behalf of the opposite parties giving details as to how the representation was dealt with from the date of its submission up to the date of its disposal. Though there has been some objection on the part of the petitioner for acceptance of the additional affidavit which was filed late after the commencement of hearing and without the leave of the Court, we think it proper in the ends of justice to accept the said additional affidavit and deal with the materials disclosed therein on merits.
8. The additional affidavit makes a disclosure that the representation of the petitioner was disposed of on 19-7-1985 by the Chief Minister. It further shows that after the petitioner's representation was submitted on 28-6-1985 to be sent to the Government by the Superintendent of Sub-Jail, Bargarh, it was sent by registered post to the Secretary, Home Department, of the Govt, of Orissa on 29-6-1985 and the representation reached the Department on 3-7-1985. The additional affidavit states further that after diarising, the representation was placed before the Deputy Secretary on 8-7-1985 for orders to send a copy of the representation with its enclosures to the Collector, Central Excise and Customs, Bhubaneswar, for his para wise comments for necessary and further action at the Government level. On 9-7-1985 copy of the representation with its enclosures was sent to the Collector, Central Excise and Customs, asking for his parawise comments. But there was no response from the said Collector. On 16-7-1985 the Additional Secretary with a view to expedite the matter sent a reminder to the Collector for sending the parawise comments in pursuance to which parawise comments were sent by the .Deputy Collector (Prevention), Central Excise and Customs, Bhubaneswar, as required. On the following day, i.e., on 18-7-1985, the Additional Secretary made his remarks and endorsed the file to the Chief Secretary who, after examining the matter, placed it before the Chief Minister on 19-7-1985. The Chief Minister on that very day passed orders rejecting the representation of the petitioner which was communicated to the petitioner on 23-7-1985. It is no doubt correct to say that some formalities are necessary to be complied with before the representation is placed before the Government for consideration. But what the law requires is that there should not be any lethargic indifference in proceeding to dispose of the representation which should be done with promptitude at every stage. As has been said in a decision : 1980CriLJ548 : Frances Corelie Mullin v. W. C. Khambra & Ors. no freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. In the case of a preventive detention, the detenu has not been found guilty of committing any offence under any law but he has been detained with, a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise thereby engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. Thus, the detention of a person under Section 8(1) of the Act is a situation where the personal freedom of the detenu has been impaired without finding him guilty at a trial and in such circumstances, his representation should receive the attention of the Government with utmost promptitude as distinguished from undue haste.
9. From the dates given in the preceding paragraph, it is apparent that the representation of the petitioner has been dealt with expeditiously except at two stages, namely, (i) when it reached the Department on 3-7-1985 whereas it was placed before the Deputy Secretary on the 5th day, i.e., on 8-7-1985, and (ii) even though the representation with its enclosures was sent t6 the Collector, Central Excise and Customs, on 9-7-1985 the parawise comments were sent from the office of the Collector and received by the Home Department of the Government on 17-7-1985 after about 8 days. No explanation whatsoever has been furnished in the additional affidavit filed on behalf of the opposite parties explaining the delay at the aforesaid two stages. In support of his contention that the representation of the detenu has been dealt with all reasonable promptness, the learned Additional Govt. Advocate placed reliance on a decision : 1976CriLJ353 : State of Orissa and Anr. v. Shri Manilal Singhania and Anr. In the said decision, their Lordships following the earlier decisions of the Court ruled that the representation made by the detenu against the order of detention should be considered by the State Government as soon as possible, i.e., with reasonable despatch. Their Lordships observed that it is neither possible nor advisable to lay down any rigid period of time uniformly applicable in all cases within which the representation of the detenu must be considered by the State Government. In that case there was some delay in dealing with the representation of the detenu under the Maintenance of Internal. Security Act, 1971, on account of the fact that the Secretariat was closed for Puja holidays for about 8 days and there was also delay of about 4 days in disposing of the representation by the Chief Minister on account of his absence from the headquarters. In the facts of that case, their Lordships held that representation of the detenu which could not straightway be placed before the Chief Minister for consideration had to be processed by the Secretariat as well as by the concerned Department and it would necessarily take time for the representation to move from a lower officer to a higher officer before it ultimately reached the Chief Minister for disposal. It would be seen from the dates given in paragraph 4 of the said judgment that there was no undue delay on the part of the State Government in considering the representation of the detenu except the delay on account of closure of the Secretariat and the absence of the Chief Minister from the headquarters which could not be avoided. Each case has to be considered with reference to the facts peculiar to it and in our consideration the aforesaid decision cannot be said to be a parallel case, following which it can be said in the facts of this case that there was no unreasonable delay for that the delay has been sufficiently explained. Reliance has been placed by the learned Additional Government Advocate on a decision : AIR1984SC40 Raisuddin alias Babu Tamchi v. The State of Uttar Pradesh and Anr. which has subsequently been followed in a recent decision by the Supreme Court in a case : 1985CriLJ1348 : State of Rajasthan and Anr. v. Shamsher Singh. In the case of Raisuddin (supra), Their Lordships held that
the question whether the representation submitted by a detenu has been dealt with all reason able promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case; if on such examination, it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu on the other hand, if the Court is satisfied that the delay was occasioned not by any lack of diligence or promptness of attention on the part of the party concerned, but due to unavoidable circumstances or reasons entirely beyond his (the detaining authority's) control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention.
In the facts of that case where the District Magistrate had to emergently leave his headquarters because of the disturbances that had occurred in other localities within his jurisdiction where his presence was urgently needed for tackling the explosive situation, and thereby there was a delay of 6 days in forwarding the detenu's representation to the State Government, it could not be said that there was any lack of diligence in the detaining authority in dealing with the representation. The principle indicated in the aforesaid decision was approved by Their Lordships in the case : 1985CriLJ1348 and was applied to the facts of that case in coming to a conclusion that there had been no negligence and remissness on the part of the State Government in dealing with the representation of the detenu.
10. Large number of decisions have been placed by the Learned Counsel appearing for the petitioner in support of the proposition that the delay in disposal of the representation made by the detenu which has not been sufficiently explained is by itself a sufficient ground for holding that the order of detention is illegal, All these decisions need not be noticed as the view on the subject is consistent. In the decision : 1970CriLJ743 : Jayanarayan Sukul v. State of W.B., Their Lordships dealing with the identical provisions under the Preventive Detention Act, 1950 precisely stated the law in regard to the representation of the detenu in the following words:
Broadly stated, four principles are to be followed in regard to representation of detenu. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but. it has to be remembered that the Government his to be vigilant in the governance of the citizens, A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.
The aforesaid conclusion is based on various previous judgments of the said Court referred to therein. The aforesaid principle was followed in a case : 1SCR1022 Prof. K.I. Singh, etc. v. The State of Manipur, in which the detention under Section 3(1)(2) of the Orissa Preventive Detention Act, 1970 was in question and their Lordships released the petitioner having held that there was an unexplained delay of 17 days between the date of submission of the representation and its disposal which by itself is a sufficient ground for holding the orders of the detention of the petitioners as illegal. In the case : AIR1972SC1198 : B.N. Chunakar v. The State of W.B. the question of delay was not raised either in the writ petition or in the affidavit in reply to the petition. Their Lordships after perusal of the relevant records found that there has been undue delay in considering the representation, which could not be explained by reference to any material on the record or by the counsel appearing for the State. Their Lordships held that in the circumstance, the petitioner was to be set at liberty. In another decision : 1972CriLJ1034 : K.L. Bose v. The State of W.B., it was held that the State Government must consider the representation made by the detenu as early as possible and in the absence of any cogent ground, the failure of the Government to consider the representation of the detenu and pass an order thereon for a period of 28 days would invalidate the detention of the detenu. This case was under the West Bengal (Prevention of Violent Activities) Act, 1970, the provisions of which are substantially similar to the provisions with which we are dealing with the present Act. These decisions and some others were relied on in the decision : AIR1972SC1753 : Ranjit Dam v. The State of W.B., where an unexplained delay of 19 days by the Government in disposing of the detenu's representation was held to have rendered his detention illegal. In the case of Abdus Sukkur v. State of W.B. : 1SCR680 , the Supreme Court held that the fact that earliest opportunity has to be afforded to the detenu for making a representation against the order of detention necessarily implies that as and when the representation is made it should be dealt with promptly. The object underlying Article 22(5) of the Constitution would be defeated if the authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity. Dealing with the identical provisions in different Preventive Detention Acts, Their Lordships have expressed similar view (vide : AIR1972SC2529 : Atiar Rahman v. State of W.B.; Singh AIR 1972 SC 2623: Sudhir Dey v. State of W.B. : 1SCR691 : Niranjan v. State of M.P. : 1980CriLJ1496 : Saleh Mohammed v. Union of India and Ors. and : 1983CriLJ629 : Raj Kishore Prasad v. State of Bihar and Ors. and various other decisions of the Supreme Court) specific reference to which is unnecessary. Dealing with similar provisions in the National Security Act, 1980, this Court in the decision reported in 59 (1985) CLT 259: P.K. Mishra v. District Magistrate, Puri and Anr. held that the representation made by the detenu against the order of detention should be considered by the State Government as soon as possible, i.e., with reasonable despatch and if that is not done, it would have the effect of vitiating the order of detention. For the aforesaid conclusion, reliance was placed by Their Lordships on the decisions : 1976CriLJ353 , : 3SCR522 : Vijay Kumar v. State of J. & K. and Ors. and : 1983CriLJ1785 . Applying the principle enunciated in all those decisions to the facts of this case, we find that there has been delay in dealing with the representation of the detenu at two stages hereinbefore mentioned which have-not at all been explained by the opposite parties. It is obligatory on the State Government to explain the reasons for delay in disposing of the representation and it, therefore, follows that failure to comply with the mandatory provisions of the Constitution on the part of the Government is by itself sufficient to direct the detenu to be set at liberty. The delay as indicated in the preceding paragraphs at the aforesaid two stages in dealing with the representation of the petitioner cannot, be said to be unavoidable and thus the conclusion is irresistible that such unexplained delay has rendered the detention of the petitioner illegal.
11. Coming to the merits, ground No. 1 in support of the order of detention relates to an incident of 1-1-1970 when the Central Excise and Customs Officers chased the car of the petitioner and intercepted it near Sambalpur town in which the petitioner and his driver were the occupants. Large quantity of foreign gold was recovered and seized from the cavity of the rear portion Of the transistor fixed to the car for which the petitioner was prosecuted and convicted under Section 135(1) of the Customs Act, 1962 and the seized gold and the car under seizure were confiscated to the Central Government. In an adjudication made by the Central Excise and Customs Department, a penalty was also imposed on the petitioner. The said incident of the year 1970 may be relevant to establish a reasonable apprehension as regards the conduct of the petitioner read with subsequent allegations made out in the ground No. 2. But the same by itself is too remote and stale to establish any proximate connection between prejudicial activities attributed to the petitioner in the year 1984.
12. The grounds stated in paragraph 2 of the grounds of detention really comprise of two incidents, both of 11-11-1984 when the residential premises of the petitioner was searched and a shop premises titled as 'Time and Steel' was also searched. From the residential premises a foreign biscuit having marking on one side 'Jahnson Methery London' weighing 105.000 gms. and primary gold weighing 96.5 gms. and some other golden ornaments weighing 2,960.300 gms. were seized. This is said to be in violation of Section 8(1) of the Gold (Control) Act, 1968. From the shop premises titled as 'Time and Steel', 76 pieces of foreign wrist watches were seized, the possession of which is in violation of Section 11 of the Customs Act, 1962.
So far as the seizure of 76 pieces of foreign wrist watches is concerned, the petitioner asserts that the shop premises from where the same was seized does not belong to him nor he has any connection whatsoever with the said premises. Besides, the seizure list, if any, in respect of the seizure of wrist watches has not been supplied to the petitioner at all. In the counter affidavit of the opposite parties, it has been admitted that the shop premises 'Time and Steel' from where the aforesaid foreign wrist watches were seized does not belong to the petitioner, but to his son Sri Govinda Prasad Chhopadia. But at the same time, it has been stated that the petitioner is the main person behind dealing in such contraband goods as per the intilligence. The grounds of detention make out a different story that the said shop premises belongs to the petitioner. It has not been stated therein that the shop premises from where the foreign wrist watches were seized belongs to the son of the petitioner and that the petitioner is the main person behind the transaction in the said shop. Thus, the seizure of the wrist watches from the shop of the petitioner titled as 'Time and Steel' as stated in the grounds of detention is according to us a non-existing ground unconnected with the petitioner which cannot justify the detention of the petitioner under Section 3(1) of the Act. Besides, the seizure list which is a relevant and material document for enabling the petitioner to make effective representation having not been supplied to him the requirements of Article 22(5) of the Constitution and Section 3(3) of the Act have not been complied with.
13. So far as the seizure of gold biscuit, primary gold and golden ornaments are concerned, the seizure list had been supplied to the petitioner. Possession of golden ornaments and primary gold by itself without any indication that the same are of foreign origin cannot by itself lead to an inference that the petitioner was engaged in smuggling or dealing with smuggled goods. But the gold biscuit recovered under the same seizure list having an inscription 'Jahnson Methery London' is a clear indication that, it is of foreign origin. The recovery of the said gold biscuit from the possession of the petitioner is not disputed. But the Learned Counsel for the petitioner has argued that the recovery of gold and the wrist watches having been narrated in one ground in Annexure-2 and the seizure list in respect of the writ watches having not been supplied to the petitioner, there has been a violation of Article 22(5) of the Constitution read with Section 3(3) of the Act in respect of all the incidents under that ground and, therefore, it must be taken that the petitioner had not been given adequate opportunity for representation against the said ground. This argument of the Learned Counsel for the petitioner ignores Section 5A of the Act which was introduced by Act 35 of 1975 with effect from 1-7-1975. The said Section provides that where a person has been detained in pursuance of the order of detention under sub-section (1) of Section 3, which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds. According to the said provision, the order of detention shall not be deemed to be invalid or inoperative because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever. Thus, even if the other grounds for detention were invalid, the detention of the petitioner on the ground relating to possession of foreign gold could be sustained as each of the grounds according to Section 5A of the Act is independent of each other. According to the aforesaid analysis, the seizure of gold and the seizure of wrist watches being independent grounds, non-supply of seizure list with respect to the wrist watches would not render the detention on the other ground invalid.
14. Having held that the representation of the petitioner has not been disposed of with reasonable despatch and no explanation having been furnished for the delay caused in dealing with the representation, the petitioner is entitled to be released. We, therefore, direct that the petitioner be set at liberty forthwith.
K.P. Mohapatra, J.
15. I agree.