P.K. Jain, J.
1. This petition has been filed by the detenu Darshan Singh alias Pappu alias Dodhi son of Amrik Singh under Article 226 of the Constitution of India for quashing the detention Order No. 673/34/95-Cus-VIII dated April 17,1995 (Annexure P. 1) and the grounds of detention (Annexure P. 1/A) of the even number and date, passed by respondent No. 1 in exercise of the powers conferred by Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and 'Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the Act') and with a prayer that he be released forthwith from the illegal detention.
2. The allegations on the basis of which the impugned detention order has been passed can be gathered from the grounds of detention-Annexure P. 1/A.
3. On the basis of reliable information that Shri'Rajinder Singh alias Bawa, son of Raghubir Singh, resident of 88, New Pawan Nagar, Amfitsar, and his partner Shri Jagir Singh son of Shri Sajjan Singh, resident of 99, Green Avenue, Amritsar, were indulging in illegal sale-purchase of foreign currencies and that they were operating mainly from their aforesaid residences, the residential premises of Shri Rajinder Singh was searched by the Officers of the Enforcement Directorate, Jalandhar, under Section 37 of the Foreign Exchange Regulation Act, 1973 on 20.12.1994, as a result of which seven loose chits and Indian currency of Rs. 10,000/- were recovered and seized. Likewise, the residential premises of Shri Jagir Singh was searched by the said officers under the said provision of law on the same day, as a result of which Indian currency of Rs. 1,05,000/- and incriminating documents were recovered and seized. Shri Rajinder Singh was not available and Jagir Singh managed to escape from his shop in Landa Bazar, Amritsar.
4. One Shri Sat Pal son of Shri Dharam Pal an employee of the aforesaid two partners was summoned under Section 40 of the FERA, 1973 on 20.12.1994 and his. statement was recorded. In that statement he stated that Jagir Singh and Rajinder Singh, who were partnerst were indulging in illegal sale-purchase of foreign currency. He named the present detenu who used to go to sell foreign exchange to the said two partners. In pursuance of the said statement, residential premises of the detenu were searched under Section 37 of FERA, 1973 on 22.12.1994, as a result of which certain documents were recovered and seized. The detenu was summoned under Section 40 of the FERA, 1973 on 22.12.1994 and his statement was recorded. In that statement the detenu, inter alia admitted his complicity in illegal sale and purchase of foreign exchange and during the last three months of the year 1994 he had sold foreign exchange equivalent to Rs. 10,70,000/- to the aforesaid partners. It was also found that the detenu had sold foreign exchange equivalent to Rs. 10,53,600/- to one Satnam Singh also. The detenu was arrested under Section 35 of the FERA, 1973 on 22.12.1994 and was produced before the Chief Judicial Magistrate, Jalandhar, on 23.12.1994. Rajinder Singh wa examined under Section 40 of the FERA, 1973, on 2.1.1995 and was arrested under Section 35 of that Act on the same day. Shri Jagir Singh obtained anticipatory bail on 12.1.1995 from the Sessions Judge, Amritsar. He appeared in the office of the Enforcement Directorate, Jalandhar, on 23.1.1995, when his statement was recorded under Section 40 of the FERA, 1973.
5. On the above allegations, respondent No. 1, after being satisfied that the petitioner had engaged himself in unauthorised transactions of foreign currency in violation of the provisions of FERA, 1973, passed the impugned detention order Annexure P. 1
6. The petitioner has challenged legality and validity of the said detention order on the grounds: (i) that the prejudicial event is dated 20.12.1994 and the order of detention is dated 17.4.1995 i.e. the detention order was passed about four months after the alleged prejudicial event which delay cannot be either bona fide or preventive in nature as contemplated by the Act; (ii) that the petitioner made representation (Annexure P. 3) whereby he submitted that the documents detailed in para 4 of the present petition were absolutely smudged and not legible at all but the petitioner was not supplied with legible documents in spite of the said representation and as such the petitioner has been deprived of making an effective representation to the Advisory Board as well as to the other authorities; (iii) that the petitioner has not been supplied with the copy of the search authorisation warrants of the premises of the petitioner due to which he has been prejudiced in exercising his fundamental right of making an effective representation; (iv) that the representation (Annexure P. 3) sent by the petitioner through the Superintendent, Central Jail, Patiala, has not been decided by the detaining authority at all and the same was also not promptly decided even by the Central Government; (v) that the unreasonable delay in deciding representation of the petitioner has vitiated his detention; and (vi) that the representation of the petitioner was kept pending and rejected only after the receipt of the report of the Advisory Board which shows that the Central Government had not decided the representation of the petitioner independently without being influenced by the report of the Advisory Board.
7. Notice was given to the respondents. In a separate reply filed on behalf of respondents Nos. 1 and 2 it has been stated that the detention order has been passed by the detaining authority by the due application of judicious mind and subjective satisfaction. It has been explained that this was a joint case and investigation was to be made not only against the petitioner but also against Rajinder Singh Bawa and his partner Jagir Singh; that lot of documents had to be considered at different level and time was also consumed on translating voluminous record in the language known to the detenu and as such it cannot be said that the detention order (Annexure P. 1) was passed after any delay of the prejudicial activity. It has been further stated that in his representation the petitioner had requested for the revocation of the detention order or in the alternative supply of documents alleged to be illegible; that the representation was submitted by the petitioner before the Advisory Board and the same was received along with the report of the Advisory Board; that an identical representation dated nil forwarded by the Superintendent Central Jail, Patiala, vide his letter dated 22.5.1995 was also received in the COFEPOSA Unit of the Ministry on 7.7.1995. It has been explained that the said representation along with the Advisory Board's report was processed and was submitted to the Joint Secretary, COFEPOSA who in turn submitted the file to the Additional Secretary (Administration) on 14.7.1995; the Additional Secretary (Administration) after consideration of the representation submitted the same to the Secretary (Revenue) on 17.7.1995 (15.7.1995 and 16.7.1995 being holidays) and that the Secretary (Revenue) considered the representation and submitted the same to the Minister of State (R&S;) on 21.7.1995. It is further explained that the Minister of State (R&S;) was on tour and as such the representation was submitted to the Finance Minister who considered and rejected the same on 24.7.1995 (22nd and 23rd July being holidays). The file came back through proper channel on 24.7.1995 in COFEPOSA Unit and a Memorandum was issued to the petitioner accordingly on the same day. It is stated that no unreasonable delay was caused in considering and deciding the representation of the petitioner. It has been further stated that copy of the panchnama prepared in respect of the search of the house of the petitioner and the residential premises of Rajinder Singh and Jagir Singh were supplied to the petitioner and the search warrant is only a part of panchnama. In the additional affidavit, it is stated that last action on the prejudicial activity was taken on March 6, 1995, proposal for detention was initiated on 10.3.1995, and the order of detention was passed on 17.4.1995. It is also clarified that the petitioner had submitted his representation to the Advisory Board at the time of hearing and the other representation which the petitioner sent through the Superintendent, Central Jail, Patiala, vide his letter dated 22.5.1995 was received in the Ministry on July 7,1995 and that the time in between '22.5.1995 and 7.7.1995 was taken by the Postal Authorities which cannot be attributed as a delay on the part of the Authorities in deciding the representation of the petitioner. It is thus stated that the detention of the petitioner is in accordance with law and the petition is liable to be dismissed.
8. In a separate reply filed by respondent No. 3, it is stated that the petitioner was detained in Central Jail, Jalandhar, on 25.4.1995 vide detention order dated 17.4.1995 which was served upon him along with the grounds of detention and other documents on 25.4.1995 through the Superintendent, Central Jail, Jalandhar and that thereafter the petitioner was admitted in Central Jail, Patiala, on 25.4.1995 on being transferred from Central Jail, Jalandhar. It has been admitted that the petitioner had submitted a representation to the Superintendent, Central Jail, Patiala, on 22.5.1995 and the same was forwarded by him to respondent No. 1 vide letter No. 3292 dated 22.5.1995 for favour of further necessary action. It has been further stated that the representation of the petitioner was rejected and his detention by the Central Government was confirmed for a period of one year vide order dated 24.7.1995, which was served upon him on 26.7.1995.
9. Having heard the ld. Counsel for the parties, I am of the considered view that the detention of the petitioner is liable to be quashed for the simple reason that the representation made by the petitioner was kept pending for an unreasonable period and was rejected only after the receipt of the report of the Advisory Board.
10. The Constitutional mandate in Article 22(5) of the Constitution was considered by the Apex Court in Jayanarayan Sukul v. State of West Bengal : 1970CriLJ743 , and the following principles were laid down:
Broadly stated, tour principles are to be followed in regard to representation of detenus. 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 the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has 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.
In that case, order of detention was passed on 5.6.1969. The petitioner was arrested on 7.6.1969 and on the same day grounds of detention was served upon him. On 23.6.1969 the petitioner made a representation to the State Government. On 1.7.1969 the State Government placed the case of the petitioner before the Advisory Board together with the said representation. On 13.8.1969 the Advisory Board, after consideration of the materials placed before it was of the opinion that there was sufficient cause for the detention of the petitioner. On 19.8.1969 the State Government rejected the petitioner's representation. On these facts their Lordships held as under:
In the present case, the State of West Bengal is guilty of infraction of the constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have' already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment.
With the above observations, the petitioner in that case was set at liberty.
11. The question regarding the detaining authority's obligation to consider the detenu's representation independently of the Advisory Board's duty was again examined by a Constitution Bench of the Apex Court in K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and Ors. : 1991CriLJ790 . Constitution Bench held as follows:
It is now beyond the pale of controversy that, the constitutional right to make representation under Clause (5) of Article 22 by necessary implication guarantees the constitutional right to a ^proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in Clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the, views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at' the time of hearing the references. The Government considers representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other land, considers the representation and the case of the detenu to examine whether there is sufficient cause for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. The right to have the representation considered by the Government, is safeguarded by Clause (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under Clause (4) of Article 22 read with Section 8(2) of the Act.
In the aforesaid case, the representation was received by the Government on April 17, 1989. The Advisory Board was constituted thereafter and held, its meeting on April 20, 1989. After its submitting the report, the Government on April 27,1989 affirmed the order of detention and considered the representation on May 7, 1989 and rejected the same. It was held by the Apex Court that there was a breach of constitutional mandate of Article 22(5). Consequently, order of detention as well as order of its confirmation passed by the Central Government were quashed.
12. In Naval Shankar Ishwarlal Dave and Anr. v. State of Gujarat and Ors. 1994 Crl.L.J. 2170, the representation was received by the State Government on February 20, 1993. The State Government decided to keep it pending awaiting rite opinion of the Board and on receipt of the report on March 23, 1994, considered the case, and the representation was rejected on the even date, namely, March 23, 1993. The Apex Court held that in view of the consistent settled law the action of the State Government in keeping the representation without being considered and disposed of expeditiously, awaiting the decision of the Advisory Board till March 23, 1993 and consideration of the representation thereafter and rejection are illegal.
13. In the case in hand, admittedly the petitioner had handed over his representation Annexure P. 3 addressed to the Secretary, Government of India, Ministry of Finance, Department of Revenue, Janapath Bhavan, 6th Floor, New Delhi, on 22.5.1995, to the Superintendent, Central Jail, Patiala, who in turn forwarded the same to respondent No. 1 vide letter of the same date i.e. 22.5.1995. The case of the respondents in turn is that the petitioner had handed over one copy of the representation to the Advisory Board which was received in the Ministry along with the report of the Advisory Board. It has also been admitted that another copy of the representation sent through the Superintendent, Central Jail, Patiala, was received in the COFEPOSA Unit of the Ministry on 7.7.1995. It is also conceded that the representation of the petitioner along with the report of the Advisory Board was processed together and the report of the petitioner was rejected on 24.7.1995.
14. The explanation of the respondents is that the representation of the petitioner was received in the COFEPOSA Unit in the Ministry on 7.7.1995 on account of postal delay and the same cannot be attributed to the Central Government or the concerned authority. The explanation sought to be given by the respondents does not sound reasonable and is highly incredible in nature. No record has been produced by the respondents to show as to when the representation was received in the Ministry of Finance and how the same was dealt with thereafter before it reached in the COFEPOSA Unit of the Ministry. It is, thus, clear that the representation of the petitioner forwarded by he Superintendent, Central Jail, Patiala, and received in the Ministry of Finance, Government of India, was kept pending awaiting the report of the Advisory Board. It was only after the receipt of the report of the Advisory Board that the representation along with the report was processed and was ultimately rejected on 24.7.1995. Thus, it becomes evident that the Central Government did not apply its mind independently to the representation of the petitioner, awaited the report of the Advisory Board, and then rejected the same. This action on the part of the respondents is illegal and in violation of the mandate contained in Article 22(5) of the Constitution.
15. As a result of the above discussion, this petition is allowed. The detention order (Annexure P. 1), the grounds of detention (Annexure P. 1/A) and the confirmation order dated 24.7.1995 are hereby quashed. The petitioner shall be set at liberty forthwith, if not wanted in any other case.