- (1.) The principal submission on the basis of which the detention order in this case has been assailed by the learned counsel for the petitioner is that there was undue delay in the disposal of the representation made by the detenu to the Central Government. A counter affidavit has been filed by the Central Government which inter alia states as under : "6(Iii) and (iv) That in reply to paras 9 (iii) and (iv) of the grounds it is stated that a copy of the representation dated 29-12-1999 (wrongly mentioned as 27-12-1999 in the writ petition) forwarded by the Superintendent, Central Prison, Chennai vide letter dated 29-12-99 was received in the Central Registry of the Ministry of Finance, Department of Revenue on 3-1-2000 vide Deputy No. SP13 and the same was received in the coffeepot unit of the Central Government on 4-1-2000. On the same day i. e. 4-1-2000, para wise comments were called for from the sponsoring Authority. Since a copy of the representation was also forwarded to the sponsoring Authority, i. e. Commissioner of Customs, Chennai, Airport, the sponsoring Authority furnished its comments both to the State Government as we as to the Central Government vide letter dated 6-1-2000 which was received in the COFEPOSA unit of the Central Government on 11-1-2000. The 8th and 9th January, 2000 being Saturday and Sunday was holidays. The case file along with para wise comments were submitted to the Deputy Secretary (COFEPOSA) on 11-1-2000 itself. The Deputy Secretary (COFEPOSA) , processed examined and submitted the file to Joint Secretary (COFEPOSA) on 12-1-2000 who in turn then submitted the file to the Secretary, Ministry of Finance. Department of Revenue on 12-1-2000 itself. The Secretary, Ministry of Finance, Department of Revenue considered the representation vis-a-vis the grounds of detention and other materials on record, but did not find any event in the representation and rejected the same on behalf of the Government of India. The file was received back on 13-1 -2000. A memo intimating the detenu about rejection of representation was issued on 14-1-2000. The total time taken in disposing of the representation was 10 days including two holidays. "
(2.) It is contended by the learned counsel for the petitioner that the powers under Section 11 of the COFEPOSA were delegated to the Secretary, Ministry of Finance, Department of Revenue and, therefore, the representation which was made by the detenu to the Central Government ought to have been placed to the Secretary who alone should have called for the comments from the sponsoring authority. It is contended that from the averments set out in the counter affidavit it appears that the representation was placed before some officer who called for the comments and that thereafter through a circuitous route it reached the Secretary on 12-1-2000 and on that day it was disposed of. It is contended that since the representation was not immediately placed before the Secretary, it cannot be treated to have been disposed of at the earliest and thus there was violation of Article 22 (5) of the Constitution of India. Reliance for this purpose is placed on the decision of this Court in R. Paulsamy v. Union of India, (1999) 4 SCC 415 : (1999 AIR SCW 1707 : AIR 1999 SC 2004 : 1999 Cri LJ 2897) (para 8) in which it is stated inter alia as under : "Examining the present case in hand, in the light of the ratio laid down above, we find that though the representation was received on 28-10-1998, comments of the sponsoring authority were called for on 29-10-98 which were received on 10-11-1998. From the records we find that the order for calling for comments of the sponsoring authority was not passed by any of the officers empowered by the above orders of the Ministry dated 7 7-1998. Therefore, we hold that the representation was dealt with in a routine manner (Underlining by us) and there was no application of mind by the competent officer as to whether it was necessary to call for comments of the sponsoring authority. In other words, this delay from 28-10-1998 to 10-11-1998 being uncalled for has to be regarded as unreasonable and, therefore, fatal in view of the ratio laid down by this Court in Venmathi Selvam, (1998) 5 SCC 510. We, therefore, make the rule absolute, quash and set aside the impugned order of detention and direct that the detenu be released forthwith unless he is required to be kept in jail in connection with some other case. "
(3.) Mr. Altafahmed, learned ASG appearing for the Central Government has contended that this Court as early as in A. Sanjeevi Naidu v. State of Madras, (1970) 1 SCC 443 : (AIR 7970 SC 1102) and Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : (AIR 1974 SC 2192 : 1974 Lab 1c 1380) had laid down that the officers of the Government are limbs of the Government and under the Rules of Business file has to be routed through those officers which would not be of any consequence particularly as the comments in any case had to be called for in order to enable the Secretary of the Department to whom the powers were delegated under Section 11 to take an informed decision as to the detention of the detenu.;