S. Ratnavel Pandian, J. - (1.) This appeal by special leave under Art. 136 of the Constitution of India is preferred against the Judgment made in Criminal Writ Petition No. 627/88 on the file of the High Court of Judicature at Bombay dismissing the writ petition filed by the appellant assailing the validity and legality of the order of detention dated 28th April, 1988 passed against him by the Joint Secretary, Ministry of Finance (Department of Revenue), Government of India, New Delhi under S. 3(l) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred as the 'Act') with a view to preventing the appellant from indulging in activities prejudicial to the augmentation of country's foreign exchange resources.
(2.) The detaining authority on the material placed before him arrived to a conclusion that the detenu (appellant) was indulging in receiving and making payments in India unauthorisedly under instructions from a person residing abroad in violation of the provisions of the Foreign Exchange Regulations Act, 1973 and reached his subjective satisfaction that the said unauthorised and illegal transactions carried on by the detenu had affected the foreign exchange resources of the country adversely and hence it was necessary to direct the detention of the detenu by the impugned order. The appellant having become unsuccessful before the High Court, has now approached this Court assailing the order of detention on several grounds. But the learned counsel for the appellant confined his argument only on the ground of undue delay caused by the Central Government in disposing of the representation of the detenu in violation of Art. 22(5) of the Constitution of India. According to the learned counsel, the detenu had forwarded his representation dated 16-0-88 through the Superintendent of the Central Prison, Bombay to the detaining authority and the Central Government and he received the order of rejection dated 19t h 'July, 1988 on 26th July, 1988 i.e. after a period of 40 days from the date of making his representation. A contention based on the delay of 40 days in the disposal of the representation was advanced before the High Court which for the reasons mentioned in paragraph3 of its judgment based on the explanation given in the subsequent return dated 5th August, 1988 filed by the Under Secretary, Ministry of Finance, Government of India had rejected the same though was not satisfied with the earlier return of the detaining authority. The explanation given in the subsequent return recites that the representation forwarded by the detenu was received in the COFEPOSA Section of Ministry of Finance on June 27,1988 and that after receiving the comments from the sponsoring authority on 11-7-88 the file was forwarded to Central Government. Meanwhile the representation forwarded to the detaining authority was rejected on 11-788 itself. The said file was received in the, office of the Minister of State (Revenue) on 12-7-88 but the Minister of State was on tour and on his return the representation was forwarded to the Finance Minister on 17-7-88 and the file was received back in COFEPOSA Section on 19-7-88 and the order of rejection was communicated to the detenu who received it on 26 th July. 1988. This explanation has been accepted by the High Court. The learned counsel for the appellant has vehemently argued before us that there had been undue and unexplained delay of 11 days between the date of submission of the representation by the detenu to the Superintendent of Central Prisons, Bombay for transmission to the Central Government and the date of receipt of the representation by the Ministry of Finance and this unexplained delay has vitiated the order of detention.
(3.) It is seen from the impugned judgment, a similar contention was also raised before the High Court but that contention has not been properly disposed of. When this contention was urged before us, the learned counsel for the respondent sought time for filing an affidavit from the Jail Superintendent showing the date of communication of the representation to the Government. Accordingly, an affidavit dated 17-3-89 sworn by the Superintendent of Prisons, Bombay was filed attempting to explain the delay that had occasioned in transmitting the representation. The explanation reads thus: I say that 16-6-1988 is the date of receipt of the detenu's representation and the said representation was forwarded to the Ministry on 22-6-88. Further, I have to submit that on 19th June, 1988 there was a holiday being Sunday.";