- (1.) PETITIONER Pradip Kumar Varma alias Munna has been detained under section 3 (1) (iii) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA Act) by the State Government under its order dated 3-8-89 in order to prevent him from engaging him in transporting concealing and keeping smuggled goods.
(2.) THE ground of detention is that in the evening of 13-4-1989 there were found smuggled gold in the form of 9 Biscuits from the possession of the petitioner on his personal search made by the officers of Rajaswa Asuchana Nideshalaya, Lucknow. Value of the smuggled gold was assessed at Rs. 2,69, 280/-. THE petitioner on being arrested was sent to jail on 14-4-89. THE petitioner asserts that on 15-4-89 he sent a representation against his arrest to Custom Collector but the same according to the opposite parties was not received by the authorities. THE petitioner was released on bail by the court on 24-4-89. On 3-8-89 the impugned order contained in Annexure 1 was passed against the petitioner for his detention under COFEPOSA. In pursuance of the order he was arrested on 13-1-90 and sent to jail on 15-1-90. THE petitioner made a request for supply of certain documents for the purposes of filing effective representation against his detention on 23/25-1-1990. It was received by the Government on 29-1-90 and some of the papers, supply of which was requested, were supplied to the petitioner on 7-2-90. Certain other documents including copy of proposal of the sponsoring authority for taking preventive action against the petitioner under COFEPOSA Act, supply of which was also requested, were not supplied to the petitioner. Representation dated 30-1-90/ 1-2-90 was received from the petitioner by the Superintendent of Central Jail, Varanasi and the same was forwarded to the State Government which was received on 5-2-90. Another representation dated 12-2-90 made on behalf of the petitioner against his detention to the State Government was received by the Government on 16-2-90. Similar representation dated 12-2-90 was also sent to the Union Government. In fact, the representation to the Union Government was made to two authorities, i.e. the President as well as to the Finance Department of the Central Government. THE representation sent to the President was received in the COFEPOSA section of the Union Government on 19-2-90 on being forwarded by the Secretariat of the President and the copy of the same representation sent to the Finance Ministry, New Delhi was received in the COFEPOSA Section of the Finance Ministry, on 21-2-90. On 19-2-90 Joint Secretary (COFEPOSA) of the Central Government asked for comments from the Conservation Officer, who sent his comments with his letter dated 20-3-90. THE letter with comments was received in COFEPOSA Section on 31-3-90 and on examination of the matter by the Central Government the representation of the petitioner dated 12-2-90 was rejected on 23-3-90 and on the same date intimation was sent to the petitioner. At the level of the State Government the representation of the petitioner dated 12-2-90 was received on 16-2-90 in the confidential department and on receipt of the report of the Custom department it was dismissed by the State Government on 13-3-90. THE petitioner's representation was considered and he was given hearing by the advisory Board Detention on 16-2-90 which gave its report in favour of the detention of the petitioner. Firstly, it is contended from the side of the petitioner that on account of undue delay which remains unexplained from the side of the opposite authorities in dispensing of the repre- sentation dated 12-2-90 of the petitioner by the Central Government, the detention order stands vitiated. It has already been mentioned that the representation of the petitioner was made to the Central Government for the first time on 12-2-90 which was received in COFEPOSA Unit of the Finance Ministry of the Central Government on 19-2-90. THE same was disposed of on 23-3-90 that is to say after a period of one month and four days from the date of its receipt in the concerned Section of the Central Government. THEre can be no doubt that this period is unduly long showing that the disposal of the representation was unduly delayed. THErefore, it remained for the opposite party to explain this undue delay satisfactorily. From the side of the opposite parties counter affidavit/supplementary counter affidavits of only three officers, namely, Sri J. L. Sahni, Junior Secretary Government of India, Finance Department, Sri Har Govind Bishnoi, Joint Secretary of the Confidential Department of the State Government and Sri Gopal Trivedi, Upper Division Assistant in the same Section of the Government have been filed. THEre is absolutely no explanation given as to how and in which department the representation remained pending and was being dealt with during the period from 19-2-90 upto 20-3-90 on which date it was returned by the Conservation Officer with his letter and comments to the Central Government at New Delhi. THE undue delay at any step right from the receipt of the representation upto its disposal means inordinate delay in its disposal. THE conservation Officer for whose comments it was sent by the COFEPOSA Section of the Central Government, seems to have his office at Gorakhpur. It is obvious that no explanation, muchless satisfactory explanation is forthcoming for this long delay of one month from 20-2-90 to 19-3-90 in connection with the disposal of the representation by the Central Government. Consequently, the detention order becomes invalid and illegal. In a number of Judicial pronouncements of Hon'ble Supreme Court II well as of this Court it has been held that a constitutional right of the detenu under Article 22 (5) of the Constitution of India enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make effective representation which implicitly means that such representation must be considered and disposed of expeditiously as and when it is made, otherwise, it is obvious, on the part of the detaining authority to furnish the earliest opportunity to make representation, loses both its purpose and meaning. In this connection reference may be made to the following cases :- (i) Ram Dhondu Borade v. V. K. Saraf, Commissioner of Police, 1989 (3) SCC 173, (ii) Mahesh Kumar Chauhan alias Banti v. Union of India, JT 1990 (2) SC 592, (iii) Gazi Khan and Chotia v. State of Rajasthan, JT 1990 (3) SC 28, (iv) Aslam Ahmad Zahire Ahmad Shaik v. Union of India, JT 1989 (2) SC 34, (v) Hari Om v. State of U. P. Writ Petition No. 5816, of 1987 decided on 19-10-1987, (vi) Salini v. State of U, P. Writ Petition No. 15521 of 1986 decided on 8-1-1987, (vii) Abdul Kalam v. State of U. P. and another Writ Petition No. 3469 of 1989 decided on 4-9-89 by this Bench of which one of us (Hon'ble V. Kumar, J.) was a member, (viii) W. P. No. 6082 of 1989 Rajiv Khanna v. Superintendent of Central Jail, Varanasi decided on 28- 10-1989 by a Bench of which one of us (Hon'ble V. Kumar, J.) was a member. In these cases delay ranging from seven days to Eight Weeks or so having remained unexplained satisfactorily was held to be undue delay infringing the statutory right of the detenu under Article 22 (5) and corresponding statutory obligation on the part of the detaining authorities rendering the detention order invalid and illegal.
(3.) SECONDLY, the learned counsel for the petitioner contended that the petitioner was denied statutory right of making effective representation enjoined under Article 22 (5) of the Constitution on account of non-supply of the copy of the proposal/report of the sponsoring authority for taking action against the petitioner under the Preventive Detention Law for the incident and recovery in question of the smuggled gold from the possession of the petitioner on 13-4-89 despite the request for its supply which was specifically made by the petitioner in writing on 23/25th January, 1990. This contention carries force and substance. As already mentioned, the petitioner's request for the said paper (beside other papers) was admittedly received by the State Covernment on 29- 1-90 but the copy of the said paper was not supplied to the petitioner. No lawful explanation for its non-supply is forthcoming. It has been held by this Court in the cases cited below that the report/proposal of the sponsoring authority leading to the detention of the detenu under the Preventive Detention Laws is a document relevant and material to the grounds of detention as well as for the detention order and therefore, its non-supply to the detenu tentamounts to deny the detenu the exercise of his constitutional right of making effective representation (Against his detention) enjoined under Article 22 (5) of the Constitution rendering the detention invalid. We have no reason to differ with this view. (1) Jagdish alias Takru v. State of U. P.- W. P. No. 1607 of 1987, decided on 8-7-87 (At Allahabad), (2) Amar Nath v. Union of India W. P. No. 9139 of 1988 (H.C.) decided on 15-3-1989, (3) Harish Gandhi alias Kaku Mulzimal v. State of Uttar Pradesh W. P. No. 16562 of 1988, decided on 25-1-89 (at Allahabad), (4) Ashwani Kumar v. Superintendent, District Jail, Naini W. P. No. 3453 of 1989, decided on 28-7-89, (5) Uma Shanker Verma v. Superintendent, Central Jail, Naini W. P. No. 4607 of 1989, decided on 4-8-1989, (6) Suresh Kumar v. State of U. P. W. P No. 1340 of 1989, decided on 25-8-1989 by this Bench of which one of us (Hon'ble V. Kumar, J.) was a member.;