Full Judgment
Malik Sharief-ud-Din, J.
(1) The petitioner has been detained in pursuance of a detention order dated 8th April 1987 passed by the Administrator Union Territory of Delhi under section 3(1) read with section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detention order has been passed with a view to preventing the petitioner from engaging in transporting, concealing and keeping smuggled gold and also for dealing in smuggled gold. The detention order was preceded by an incident dated 3rd January 1987 when foreign made gold was recovered from the detenu. The detenu in this case is one Harish Verma and the petitioner is his son.
(2) The detention order was passed on 8th April 1987 and it was served on the detenu on the same date in jail where he was lodged as an under-trial. The primary contention of Mr. Karam Ali on behalf of the detenu is that there has been an undue and unexplained delay in the consideration of the representation of the detenu vitiating the detention order. Coupled with this contention Mr. Karam Ali also urges that the detaining authority has considered and rejected the representation of the detenu after receiving the report of the Advisory Board and after confirming the detention order. Mr. Karim Ali relying on S.K. Sekawat v. The State of West Bengal, : 1975 CriLJ33 and also on Vimal Chand Jawantraj Jain v. Pradhan and others, : 1979 CriLJ1131 contends that this also has vitiated the detention order.
(3) Now the admitted facts are that the detenu made a representation to the detaining authority on 22nd May 1987 and this was rejected, accord- ing to the counter affidavit, on 19th of June 1987 though the intimation about the rejection was sent to the detenu on 23rd June 1987. The detenu was intimated on 4th June 1987 that on the recommendation of the Advisory Board the detention order passed against him had been confirmed. In the counter affidavit the respondents have taken the stand that they have not considered the representation of the detenu on the basis of the report of the Advisory Board. Be that what it is, the law laid down by the Supreme Court in the cases supra is that it will amount to an infringement of the fundamental right guaranteed to the detenu under Article 22(5) of the Constitution if the representation of the detenu is not considered by the detaining authority independently before confirming the order of detention. In the present case, the detention order has been confirmed on 4th June 1986 after receiving the opinion of the advisory Board while the representation was considered and rejected on 19th of June 1987. On this short ground the detention stand vitiated and the, petition has to be allowed. The petition as such is allowed, the detention of the detenu is quashed. He shall be released forthwith from detention unless required in some other case.
(4) Closely connected with this is Criminal Writ No. 231 of 1987 Manohar Lal vs. Union of India and others. This has been filed in respect of the co-detenu Munna Lal Khandelwal. The detention in this case is of even date and is based on the same incident and the same facts. The only deference in this case is that the representation was made by the detenu on 15th May 1987. It was received by the detaining authority on 18th May 1987, comments were called for from the Revenue Intelligence on 12th June 1987, the representation was rejected on the same day as in the case of the co detenu while the order of detention was confirmed also on the 4th of June 1987. for the same reasons given in Criminal Writ No 230 of 1987 the detention order in respect of Munna Lal Khandelwal is also being quashed. The petition is allowed. The detention order is quashed. The detenu shall be released forthwith unless required in some other case.