(1) By this petition under Article 226 of Constitution of India the petitioner Laxman T.Sajnani has challenged the legality and virus of his detention dated 10th June 1983 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). Shri Kapil Sibbal, learned counsel for the petitioner has contended that against the order of detention on 7th July 1983 the petitioner made a representation to the Government of Maharashtra and the said representation was considered and rejected after a long allay of 82 days on 26th September 1983 and this circumstance alone vitiates the order of detention.
(2) We find force in this contention.
(3) The petitioner in Paragraph 20 of the petition alleged that he made a representation against the order of detention to respondent 2 No. the Maharashtra Government on 7th July 1983 and the respondent vide order dated 27th September 1983 rejected the representation; that the rejection of the representation after a long delay of 82 days violates the constitutional safeguards provided in Article 22(5) of the Constitution of India. The petitioner also alleged in the same paragraph that the representation dated 7th July 1983 was considered by the Government after the Advisory loard had given its opinion and that the detaining authority had failed to apply its own mind to the representation. -
(4) Mr. D.R. Chitre, Desk Officer, Home Department in his affidavit dated 30th December 1983 in reply to Paragraph 20 of the petition stated as under:-
'WITH reference to grounds 16 and 20 of the petition I say that Zero copy of the representation dated 7th July 1983 addressed to the Assistant Secretary to the Government of Maharashtra, Home Department(Special)Bombayisnotreceivedia the Home Department through the Suprintendent of the Bombay Central Prison, Bombay. However, the same was sent by the detenu privately to the Minister of State for Home & General Administration Department, Government of Maharashtra, Bombay with his letter dated Nil and it was received in the Home Department from the office of the Minister of States for Home on 3rd September 1983. The said representation was forwarded to the Assistant Collector of Customs, Cofeposa Cell on 6th September 1983, with a request to send remarks. As Along with the said representation the detenu had forwarded the copies of the valuation report dated 15th April 1983 and dUtenu's letter dated 18th May 1983 the Customs Authorities were required to make necessary inquiries with the concerned officers and then the Customs forwarded their remarks on 20th September 1983. The said representation was scrutinized by Under Secretary and then by Deputy Secretary on 22nd September 1983 and then forwarded to the Minister of State for Home who considered the said reprcsentation and rejected the same on 24th September 1983 and the said decision was communicated to the detenu by letter dated 27th September 1983. I say Government considered the representation of the detenu independently of and uninfluenced by the report of the Advisory Board. I say the representation was not forwarded to the proper officer. I say in the grounds of detention it was specifically mentioned that the representation should be forwarded to me so that the concerned officers can take steps immediately. If all these facts are taken into consideration then it is seen that the said representation was considered by the Government expeditiously without any undue and unreasonable delay. In view of the facts mentioned above the contentions raised in these grounds are baseless.
(5) Shri B.R. Handa, learned counsel for the respondents has shewn to us the file relating to the detention of the petitioner and we find that the representation dated 7th July 1983 made by the petitioner to the. Government against his detention was considered and rejected .by the Minister of State (Home) on 24th September 1983. The respondents have given no adequate Explanationn for the delay in the consideration and disposal of the representations dated 7th July 1983 made by the detenu. There is a catena of authorities that a representation must, when made, be considered and disposed of as expeditiously as possible and that unexplained and unaccounted for delay by the Government in considering the representation amounts to a violation of Article 22(5) resulting in the detention being held illegal. (See Prof. Khaidem Ibocha Singh etc. v. The State of Manipur, : 1SCR1022 , Jayanarayan Sukul v. The State of West Bengal, : 1970CriLJ743 , Ranjit Dum v. The State of West Bengal, : AIR1972SC1753 : Abdus Sukkur v. State of West Bengal, : 1SCR680 and Surendra Jivanbhai Jhaveri v. B.B, Gujral and others Criminal Writ No. 19 of 1978 decided by a Bench of Delhi High Court on July Ii, 1978).
(6) Mr. Handa, learned counsel for the respondents fairly stated that there has been unexplained and unaccounted for delay in the consideration of representation of the detenu. We express our disappointment and surprise that in spite of the fact that the law regarding the consideration of representation made by a detenu against his detention has been settled by the Supreme Court for the last many years but still the detaining authorities are not following the law and in the result in some cases where the detention may be justified, the detenus shave to be freed,
(7) For the reasons stated we allow the petition and quash the order of detention dated 10th June 1983.