Peer Mohammed Siddique Vs. Union of India (Uoi) - Court Judgment

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cofeposa - detention--detenu making representation on 16-12-1992--rejection by central government on 6-1-1992--rejection by state government on 28-1-1992--delay unexplained --detention and subsequent declaration vitiated and liable to be quashed. - section 8: [p.d.dinakaran, c.j. & v.g. sabhahit, j] handling hazardous substances without complying with procedural safeguards consequences notice issued to petitioners for removing iron ore stocked on premises concerned, failing which confiscation and auction sale of said stock threatened records showed that petitioner stocked iron ore even though their application seeking permission to stock was rejected environment pollution control order also not complied with held, iron ore stocked by petitioner is hazardous to life of public and likely to cause pollution. no interference with impugned notice. - this constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal since such a breach would defeat the very concept of liberty the highly cherished right -which is enshrined in article 21 of the constitution. ' 8. in relation to the aforesaid propositions regarding constitutional mandate of expeditious consideration of the representation of the detenu neither the learned advocate for the petitioner nor the learned advocate general pleaded that these propositions are not good law in view of any later decision of the supreme court or that the said propositions ought not to be followed in the instant case. it has to be seen whether the file could not have been placed before the home secretary earlier than 24-1-1992 and whether the under secretary and his staff were so much preoccupied with other urgent matters, which deserved better attention than this representation and whether they had no time to attend to this representation and put it up before the home secretary. if there was any sense of promptitude or diligence or a sense of urgency on the part of the under secretary and her assistants in attending to this representation, before home secretary and home minster the file could have been placed on the 1st or 2nd of january, 1992 and the lethargic way in which the file has been dealt with is clearly indicative of the fact that there was no promptness or diligence on the part of the under secretary and the staff below her and there was also no sense of urgency to attend to the representation by processing it and placing before the home secretary at the earliest.orderkrishnan, j.1. this writ petition has been filed by the petitioner to quash the order of detention bearing no. hd. 110 scf 91 (a) dated 22-11-1991 and issue a writ of habeas corpus directing his release for detention. the circumstances under which the petition has been filed, in brief may be stated as follows:on 4-11-1991 coast guard authorities based at mangalore informed the d.r.i. authorities of mangalore that they had intercepted a trawler by name al jasser on 3-11-1991 and the petitioner and eight other members were present in that trawler and that the same contained contraband silver, whereupon the d.r.i, authorities arrested the petitioner and others and the trawler was found to contain silver ingots weighing 6,185.510 kgs. valued at rs. 4,70,06,000/- and that they were seized under mahazar and on 6-11-1991 they were arrested and produced before the judicial magistrate, first class and they were remanded to judicial custody. on 22-11-1991 the government of karnataka issued the impugned order of detention under section 3(1)(i) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (for short 'the act'). on 16-12-1991 the petitioner submitted a representation as per annexure-d to the writ petition and the same was rejected by the central government on 6-1-1992 and the state government rejected the same on 28-1-1992. there was inordinate delay on the part of both the central and state governments in considering the representations made by the petitioner and there was no proper explanation forthcoming to explain the said delay and therefore the detention of the petitioner is vitiated. in the course of the petition the petitioner has taken many other grounds to attack the impugned order of detention and during the course of arguments the only point that was pressed was the inordinate delay in consideration of the representation made by the petitioner and thereby the impugned order being vitiated and so it is quite unnecessary to refer to the other grounds taken up by the petitioner in the course of his petition.2. the person who was working as the secretary to government, home department at the relevant time has filed his counter affidavit. he has admitted that the petitioner has been detained pursuant to the impugned order and it has been asserted that, that is with a view to prevent him from smuggling goods. the various averments made during the course of the petition in relation to the main grounds taken up by the petitioner have been denied by him. that the petitioner made a representation dated 16-12-1991 against the order of detention has been admitted by him. but there has been any delay in considering the said representation has been denied by him. it has been stated that the representation of the detenu dated 16-12-1991 was forwarded by the superintendent of central prison to the state government on that day itself and it was received in the home department on 17-12-1991 and the representation of the petitioner and the representation of eight other detenues was processed and a note was put up on 19-12-1991 for forwarding the same to the d.r.i. authorities for the purpose for translation and obtaining their comments and the under secretary examined the file on 20-12-1991 and on 21-12-1991 the file came back to the section and the letter to the d.r.i. authorities was got typed on 21/23-12-1991 as 22nd december was a general holiday and on 24-12-1991 the said letter was despatched along with the representation of the detenu and the d.r.i. office received the said letter on the same day and on 26-12-1991 the said representation was entrusted to the translator for translation and the translated copies were received on 27-12-1991 and on 30-12-1991 the d.r.i. authorities prepared their comments and forwarded the same to the state government on 31-12-1991 by ordinary post and it was received in the home department on 10-1-1992 and the d.r.i. office was unable to explain about the postal delay that had crept in, due to reasons beyond its control. as 11/12-1-1992 were general holidays on 13-1-1992 and 14-1-1992 each of the comments of all the nine detenues was processed and on 16-1-1992 a detailed note was got typed and the fife was submitted to the under secretary to government, home department on 17-1-1992 who in turn examined the file and ordered that the report of the petitioner be forwarded to the advisory board where the matter was pending consideration and on 18-1-1992 the representation of the petitioner was forwarded to the advisory board. on 21-1-1992 the copies of the representation were also forwarded to the central government and the chairman of the central advisory board and thereafter the file was resubmitted to the under secretary on 22-1-1992 and the under secretary after perusing the file forwarded the same to him and he perused the entire file and submitted the same to the home minister on 22-1-1992 and on 25-1-1992 the home minister after considering the representation rejected the same. therefore it has been asserted that there was no delay in considering the representation of the petitioner at any stage and that the order of detention is not in any way vitiated.3. the short point that arises for consideration is, whether there has been unexplained delay on the part of the state government in considering the representation of the petitioner and whether therefore the order of detention is vitiated.4. the learned advocate for the petitioner as also the learned advocate general who appeared for the state relied upon a number of authorities of the supreme court and also of this court to support their respective contentions. though in some of the cases relied upon by the learned advocate for the petitioner the finding has been that the order impugned in the said case had been vitiated on account of the delay in considering the report and though in some of the cases relied upon by the learned advocate general it has been held that there was no delay in considering the representation, one basic aspect common to all the decisions relied upon by both the sides is that the representation of the detenue shall be considered at the earliest.5. in rama dhondu borade v. v.k. saraf, commisioner of police and ors., : 1990(25)ecc50 after referring to a number of earlier decisions, this is what has been observed with reference to the constitutional mandate on the authority to whom representation is made, to consider the same within reasonable time and dispose of the same as expeditiously as possible:'the propositions deducible from the various reported decisions of this court can be stated thus: the detenu has an independent constitutional right to make his representation under article 22(5) of the constitution. correspondingly, there is constitutional mandate commanding the concerned authority to whom the detune forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release to consider the said representation within the reasonable dispatch and to dispose the same as expeditiously as possible. this constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal since such a breach would defeat the very concept of liberty the highly cherished right - which is enshrined in article 21 of the constitution.true, there is no prescribed period, either under the provisions of the constitution or under the concerned detention law within which the representation should be dealt with. the use of the words 'as soon as may be' occurring in article 22(5) of the constitution reflect that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense, of urgency and without avoidable delay. what is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. however, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.' these propositions in borade's case have been followed in the latest decision of the supreme court in julia jose mavely v. union of india and ors., : 1992crilj109 .6. even in the decision of the constitution bench of the five learned judges of the supreme court relied upon by the learned advocate general in k.m. abdulia kunhi and b.l abdul khader v. union of india and ors., : 1991crilj790 it has been observed as hereunder;'it seems to us therefore, that so long as the representation is independently considered by the government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of the detention makes little difference on the validity of the detention or confirmation of the detention,'therefore the constitutional mandate on the concerned authority to expeditiously consider the report made by the detenu as laid down in rama dhondu borade's case and the series of earlier and later decisions of the supreme court has been dissented from, even in this decision of the constitution bench.7. even in kamarunnisa v. union of india, : 1991crilj2058 relied upon by the learned advocate general, this principle adumbrated in the various earlier decisions regarding consideration of the representation expeditiously by the concerned authority has been reiterated. it has been observed in paragraph 7 that delay has to be answered in the facts and circumstances of each case and whether or not delay if any is not properly explained would depend on the facts of each case. even in the division bench decision of this court in bhawarlal jain v. mahendra prasad, : ilr1991kar454 relied upon by the learned advocate general, it has been pointed out whether in a given case the representation was disposed of as expeditiously as possible is a question for determination depending upon the facts and circumstances of each case. yet in another division bench decision of this court in tejmal mehta v. state of karnataka, , : ilr1991kar3891 , relied upon by the learned advocate general this is what has been stated in the course of paragraphs 13 and 16;'no doubt, the proposition thus advanced is very attractive, and theoretically, unexceptional. but the court cannot ignore the realities connected with the functioning of the state. the problems of the state are manifold and diverse and it is impossible to classify them in any particular order of priorities, for being attended to in these matters, court has to examine the question of delay bearing in mind the entire circumstances and the fact situation. the time taken for considering the detenu's representation cannot be analysed with a microscopic precision.there is no particular test applicable to consider the question of delay, it may be generally said that the purpose of probing the delay is to find out as to whether the authorities acted with full awareness of the detenu's rights and respected the freedom guaranteed under article 22 of the constitution. an attitude of callousness and in difference by the state to the representation of the detenu would vitiate the detention. whether such an attitude was exhibited in a given case is purely a question of fact in each case; no yardstick is available to measure the delay.' it has been pointed out by another division bench decision of this court in mohammed kunhi v. state of karnataka, : ilr1991kar3875 :'that the time imperative for consideration of the representation can never be absolute or obsessive.'8. in relation to the aforesaid propositions regarding constitutional mandate of expeditious consideration of the representation of the detenu neither the learned advocate for the petitioner nor the learned advocate general pleaded that these propositions are not good law in view of any later decision of the supreme court or that the said propositions ought not to be followed in the instant case. it may be that in a particular case which came up for consideration before the supreme court or this court, even the time lag of lesser number of days in between the date of representation and the rejection of the same were held to have vitiated the order of detention whereas in some cases even more number of days may have been held to have not vitiated the order of detention. to give a few examples in, in the matter of durga show and ors. , : (1970)3scc696 delay of 16 days between the date of receipt of representation and its rejection by government was held to have vitiated the order of detention. in harish pahwa v. state of u.p. and ors. , : 1981crilj750 the representation was dated 3-6-1980 and it was rejected on 24-6-1980 and the finding of the supreme court was that this time lag of 21 days had gone against the constitutional mandate of expeditious consideration, in narinder singh suri v. union of india & ors., : 1980crilj683 the time lag of 20 days in between the receipt of representation and its rejection was held to be unreasonable delay so as to vitiate the order of detention. in rattan singh and anr. v. state of punjab and ors. , air 1982 sc 1the delay of about 25 days was held to be vital. in : 1990(25)ecc50 (rama d. borade's case) gap of 28 days was held to have contravened the constitutional mandate of expeditious disposal of the representation. whereas in some of the decisions to which reference shall be made now, the delay of even a month was held to have not vitiated the order of detention. in madan lal anand v. union of india and ors., : 1990crilj659 the representation was dated 17-1-1991, whereas it was rejected on 17-2-1991. in abdul salam alias thiyaan v. union of india and ors., : 1990crilj1502 representation was dated 27-9-1989, whereas it was rejected on 1-11-1988. in m. mohammed sulthan v. the joint secretary to govt. of india, air 1990 sc 2222 the representation was dated 18-1-1990, whereas it was rejected on 20-2-1990. in k.m. abdulla kunhi v. b.l. abdul khader the representation was dated 17-4-1989, whereas it was rejected on 6/7-5-1989. in : 1991crilj2058 (kamarunnisa's case) the representation was dated 18-12-1991 and it was rejected on 30-1-1992. the learned advocate tried to derive support from the fact that in some of the decisions referred to above the time lag between its representation and it being considered being less that a month, to canvass that the time lag in the instant case between the representation and its rejection should be held to be unreasonable, going against the constitutional mandate, whereas the learned advocate general tried to derive some support from the other set of decisions where the time lag being even more than a month was held to have not vitiated the order of detention to counter the contention advanced on behalf of the petitioner. it appears to us that the fact in a give case decided by the supreme court the time lag being less than a month having been held to have vitiated the order of detention or in some cases the time lag of even above a month having been held to have not vitiated the order of detention cannot be pressed into service by either side as it has been repeatedly pointed out by the supreme court and also this court that the time imperative for consideration can never be absolute and where the time lag between the date of representation and its rejection could be construed as delay and whether same has been explained by the concerned authorities by proper explanation depends upon the facts and circumstances of each case and there could be no uniform yardstick to measure the same and as has been pointed out by the division bench of this court it has to be seen whether the time lag between the two makes out an attitude of callousness and indifference on the part of the state in considering the representation. in this background, the facts of the present case are to be scrutinised to find out whether the time lag demonstrates any lethargic attitude or callousness and indifference on the part of the state in considering representation of the detenu. before we refer to the averments and counter averments made with reference to this delay in considering the representation of the petitioner a few salient dates may be noticed.9. the order of detention passed by the government of karnataka is dated 22-11-1991. the representation of the detenu is dated 16-12-1991. the same was received in the home department of the state of karnataka on 17-12-1991. on 24-12-1991 the letter was despatched by the home department to the d.r.i. authorities seeking for their comments and also for translation of the representation of the detenu. on 31-12-1991 the d.r.i. authorities despatched their comments with the translation by ordinary post to the state government. they were received in the home department of the state of karnataka on 10-1-1992. on 24-1-1992 the home secretary perused the file and submitted the same to the home minister. on 25-1-1992, the home minister rejected the representation. the various proceedings in relation to the consideration of the representation after receipt of the same could be particularly classified into the following stages:1. seeking of translation of the representation and also the comments of the d.r.i.2. despatch of the translation and comments by d.r.i.3. receipt of the same by home department.4. putting up of the same with the representation before the home minister.10. undisputedly the representation had been received by the home department on 17-12-1991 and the letter seeking comments and also the translation of the representation was despatched by the home department to d.r.i on 24-12-1991. thus it has taken one week for the simple work of seeking the comments and translation. the d.r.i authorities have taken another one week for despatching their comments with the translation. then the home secretary in his affidavit has stated that the comments with the translation were received in the home department on 10-1-1992. it may be noticed at this stage that the office of the d.r.i. is situated in indiranagar, hardly about 5 or 6 kms. from vidhana soudha the seat of the office of the state of karnataka. the letter despatched by the d.r.i. on 31-12-1991 should in the ordinary course have been received by the addressee either on the same date or on the next day could not also be disputed by the learned advocate general. as it has been stated in the affidavit filed by the home secretary that the d.r.i. authorities were unable to explain the postal delay that had crept in, the learned advocate general was required by this court to produce the relevant file as also the register for perusal of the court. the relevant file shows that the letter addressed by the d.r.i. was received in the home department on 10-1-1992. the letter addressed by the d.r.i. to the under secretary bears the seal of the home department with the date 10-1-1992 and the seal of the cofeposa cell also with the said date is found on the same. the relevant register produced shows that it was also registered in the home department on 10-1-1992. in order to find out whether this letter was received for the first time in the secretariat on 10-1-1992 itself or to know whether the same was received prior to that day and the delay in taking note of the same is attributable to the staff of the secretariat the learned advocate general was required by this court to state about the system of delivery of the tappal addressed to the various departments in the secretariat and received by post. in other words he was asked to state whether there was a centralised pool in the secretariat to collect the several letters received by post and from there whether the letters are distributed to the various departments subsequently and whether the delay of ten days could be attributed to the system of receipt and distribution of the tappal received by post. though more than one adjournment was given the learned advocate general was not in a position to enlighten the court on the system of receipt of tappal by the secretariat. sir somayaji, learned high court government pleader who represented the learned advocate general at a later stage pleaded his inability to state anything in reply to this query made by the court. it is rather surprising that to this simple query made by this court no reply could be given on behalf of the state despite a number of opportunities having been afforded to the learned advocate general.11. it may be also noticed that the letter of the d.r.i. dated 30-12-1991 is addressed to the under secretary (cofeposa) by name smt. v. sharada. but it is rather curious to note that even she has not stated anything in relation to this particular aspect viz., whether the letters sent by post and addressed to her personal name would not be delivered to her by the postman or whether it is also delivered in some centralised tappal pool. it is curious to note that in the course of her affidavit she has not mentioned anything in relation to this aspect of the matter. we also find the signature of some person on this letter and the date noted beneath it has been altered. a mere look at it gives us an indication that it must have been mentioned in the first instance as 11-01-92 and '1' has been altered as '10'. the figure '0' is overwritten on the figure'1'. nobody has given any kind of explanation with reference to this over-writing of the date. these circumstances make one doubt whether the statement made by the home secretary that this letter from the d.r.i. sent by post was received on 10-1-1992 could be accepted at all or whether the inference that it must have been received on 1 -1 -1992 and it has seen the light of the day only on 10-1-1992 by catching the attention of the concerned could be drawn under the circumstances.12. thus it could be seen that in respect of a representation received as far back as 16-12-1991 the process of securing the remarks and the translation from the d.r.i. itself took a fortnight upto the stage of despatch of the said remarks and the translation by the d.r.i. and there is no reason whatsoever to accept the case put forward on behalf of the respondents that the same were received in the home department for the first time on 10-1-1992 and on the other hand the inference that it must have been received on 1-1-1992 itself but it has caught the attention of the concerned persons only on 10-1-1992 is irresistable.13. it may be noticed that before the file could be placed before the home minister it had to be processed by the under secretary and then the home secretary, at the level of the under secretary the matter was lying for a period of two weeks before it could be placed before the home secretary. it has to be seen whether the file could not have been placed before the home secretary earlier than 24-1-1992 and whether the under secretary and his staff were so much preoccupied with other urgent matters, which deserved better attention than this representation and whether they had no time to attend to this representation and put it up before the home secretary. it has been stated in the affidavit of the home secretary that 11th and 12th january were general holidays and on 13th and 14th of january each of the comments of all the nine detenus were processed and on 16-1-1992 a detailed note was got typed, as 15-1-1992 was a general holiday and the file was submitted to the under secretary on 17-1-1992. therefore the assistants of the under secretary have taken one week for preparing the note on the basis of the representation and also the comments received from the d.r.i. in the affidavit filed by the under secretary there is absolutely no whisper whatsoever as to why she could look to the file only on 17-1-1992 though the letter came to her notice on 10-1-1992 itself. on 17-1-1992 according to the very version of the under secretary she ordered that the copy of the report be sent to the chairman of the advisory board with a covering letter and only after attending to the said work she could examine the file on 23-1-1992 for forwarding the same to the home secretary and that she thought representation should first be forwarded to the advisory board. the under secretary has also stated that the advisory board meeting was held continuously from 16-1-1992 to 25-1-1992 and therefore she and her section were busy in making arrangements for production of detenu before the board also. as to what kind of arrangement had to be made by her in the said interval and whether she could not find any time at all to look into the file which contained a very innocuous representation of the detenu which hardly runs to less than a page has not been explained by her. this statement of the under secretary that she thought that the representation should first be forwarded to the advisory board has come for the first time after the writ petition was argued by the learned advocate for the petitioner during which he had pointed out that there was no scope to the concerned under secretary to have attended to only one item of work at one point of time and postpone the other items of work.14. the under secretary, home department, in charge of the cofeposa cell had not filed her affidavit in the first instance and after the case was argued at length, it was pointed out that the person who could have offered some explanation in respect of the several delays in putting up the file at various stages had not filed her affidavit and at that stage, with the permission of the court, the learned advocate general filed the affidavit of one smt. v. sharada who is working as under secretary, home department, she has given certain reasons for the delay in the file being put up before her and she in turn putting up the same before the home secretary. before adverting to the averments made in her affidavit, as already pointed out at an earlier stage, there is no explanation forthcoming for the delay in taking note of the comments and the translation sent by the d.r.i. authorities from 1st to 10th of january. even accepting the averments made in the affidavit of both the home secretary and the under secretary, there is absolutely no scope to accept their explanation that there was postal delay in receiving the comments or their case that the letter dated 31 -12-91 was received by them only on 10-1-1992 sent by the d.r.i. authorities. for the reasons adverted to already, it has to be held that the letter of the d.r.i. dated 31-12-91 must have been received in the secretariat on either that day or the next day and the fact that it was taken note of by the cofeposa cell of the home department only on 10-1-1992 is attributable to the lethargic indifference on the part of the concerned persons to put up the same along with the necessary file. it can by no means show any kind of awareness on the part of the concerned to expeditiously attend to the representation which had been received nearly 3 weeks earlier to that date.15. so far as the time taken by the under secretary and her assistants below her, for the period 17-12-1991 to 24-12-1991 in sending a letter to the d.r.i. authorities seeking their comments and also the translation of the representation and also the further time taken in between 10-1-92 and 24-1-92 when the file was put up before the home secretary, the under secretary has tried to give some explanation in respect of the period occupied between 17-12-1991 and 24-12-1991, which period has been taken by the under secretary and her staff only to despatch a letter seeking the comments of the d.r.i. and also seeking translation of the representation. this is what has been stated by the under secretary in paras 3 and 4 of her affidavit:'in the above background, i respectfully submit that, in the instant case, 9 representations of each of the detenus, was received in the home department on 17-12-1991. on 18-12-91, the concerned assistant had to pick-out the representation files in all these cases and on 19-12-91, he put up the files in all these 9 cases. on 20-12-1991, i examined the file and ordered for forwarding the same to d.r.i. authorities. on 21-12-1991, the file came to cofeposa section. as already stated, i had to attend to this file only in the evening on 20-12-1991, after attending to various other files of proposals, representations etc. in addition to my other work.4. as could be seen from the file, the detenu had been issued with an endorsement dated 20-12-1991 regarding permission to engage an advocate by him. that endorsement was sent to prison authority through a covering letter on 21-12-1991. since the file was being attended to in disposing of that representation dated 10-12-1991, the assistant had to entrust the typist of typing the covering letter to send the instant representation dated 16-12- 1991 to d.r.i. authorities, on the evening of 21-12-1991. 22nd was a general holiday. on 23-12-1991, after the typed letter was received by him, he had taken steps to despatch the said letter to d.r.i. and issued the same on 24-12-1991.' in respect of the subsequent period between 10-1 -1992 and 24-1 -1992, this is what has been stated by the under secretary in para 5 of her affidavit:'i most respectfully submit that after the receipt of comments from the d.r.i. authorities, the files of all the 9 detenus were processed and submitted to me on 17-1 -1992. i examined the file and found that the detenu had requested for forwarding his representation to advisory board and others, i thought that the representation should first be forwarded to advisory board and accordingly, ordered on 17-1-1992 to send a copy of representation to chairman advisory board along with a covering letter. draft of d.o. letter and fair letter to advisory board was put up and signed by me on 18-1-1992, 19-1-1992 was a general holiday, on 20-1-1992, the cofeposa section and myself were busy in attending to similar other detention matter including making arrangements for production of detenus before the advisory board on 21-1-1992, the assistant put up a note for my orders to forward the copies of representation to government of india. on the very day, i ordered for sending the same to the persons to whom it was requested to send in the representations.'15. it may be noticed that if we are to even accept the statement of the under secretary that the translation with the comments of the d.r.i. were received by the cofeposa cell on 10-1-1992, there is no explanation whatsoever forthcoming as to why the file could be submitted to her only on 17-1-1992. if the home secretary could take a decision in respect of the file in one day and the home minister also could take his decision in one day, it is impossible to accept the statement of the under secretary that the processing of the comments of the d.r.i. of all the 9 detenues had to take 7 days even from 10-1-1992. in between 10-1-1992 and 17-1-1992, what exactly was the pre-occupation of the under secretary and her assistants not to attend to this file has not been explained by her. in respect of the period between 17-1-1992 and 23-1-1992 the explanation offered by the under secretary is that as it had been sought that the representation should be sent to the concerned persons, she thought that the representation should first be forwarded to the advisory board and only thereafter, she took a decision to place the matter before the home secretary. she has not given any material whatsoever that even in respect of the earlier cases she used to follow this step of first forwarding the representation to the advisory board and only thereafter sending the representation to the home minister through the home secretary, as to what other items of work had kept her so busy as to not enable her to devote any kind of attention to this file, has not been explained by her except for vaguely stating that she and her staff had to make arrangements for the production of the detenus before the advisory board. what is the type of work that she and her assistants were expected to do in that connection has again not been explained by her.16. if as already pointed out, the file could be attended to by the home secretary and the home minister just in one day after it was placed before them, it is hard to swallow the explanation of the under secretary that she required one week to prepare a letter and send to the d.r.i. authorities seeking for comments and also the translation and again one more week even after the unexplained delay of 10 days, to her assistants to place the file before her and further, one more week for her was necessary to put up the file before the home secretary. if there was any sense of promptitude or diligence or a sense of urgency on the part of the under secretary and her assistants in attending to this representation, before home secretary and home minster the file could have been placed on the 1st or 2nd of january, 1992 and the lethargic way in which the file has been dealt with is clearly indicative of the fact that there was no promptness or diligence on the part of the under secretary and the staff below her and there was also no sense of urgency to attend to the representation by processing it and placing before the home secretary at the earliest.17. as has been observed by his lordship c. chinnappa reddy j. in the decision in frances coralie mullin v. w.c. khambra and ors. , : 1980crilj548 which has been followed in a.i.r. muhesh kumar chauhan alias banti v. union of india and ors. , : 1990crilj1507 no allowance can be made for lethargic indifference and no allowance can be made for needless procrastination. again as pointed out in the decision in (1) smt. khatoon begum v. union of india and ors., : 1981crilj606 ; (2) smt. afsari begum v. union of india and ors., : 1981crilj606 and (3) smt. fathima khatoon v. union of india and ors., : 1981crilj606 it will be no answer to a demand for liberty to say that the administrative red tape makes delay inevitable. if the home secretary and home minister could attend to the file just in one day each, they could have also geared up their staff below them to process such papers and place before them at the earliest with a sense of urgency and the way in which the papers have been processed bears ample testimony to the indifference on the part of the concerned persons in attending to the representation at various stages adverted to already and by no means could it be said that they have attended to the representation with a sense of urgency and promptness and it is proof positive of the lethargic approach made by his staff members including the under secretary and when they have not been geared up to avoid these delays and that in turn has contributed for the delayed consideration of the representation made by the detenue, it is needless for us to state that the same vitiates the order of detention. in that view of the matter, the only contention urged on behalf of the petitioner that the unexplained delay in considering the representation has vitiated the order of detention has to be accepted. once that is so, the subsequent declaration made by the 2nd respondent also cannot be sustained.18. in the result, we hold that the order of detention of the petitioner passed by the 3rd respondent bearing no. hd 110/dcf 91 (a) dated 22-11-1991 and also the declaration no. 125/91 bearing no. f no. 675/552/91-cus viii dated 12-12-1991 issued by the 2nd respondent are vitiated for the reasons adverted to above and hence they are quashed and the detenue (writ petitioner) shall be set at liberty if not required for any other purpose. in these terms, the writ petition is allowed.

Judgment:
ORDER

Krishnan, J.

1. This Writ Petition has been filed by the petitioner to quash the order of detention bearing No. HD. 110 SCF 91 (A) dated 22-11-1991 and issue a Writ of Habeas Corpus directing his release for detention. The circumstances under which the Petition has been filed, in brief may be stated as follows:

On 4-11-1991 Coast Guard Authorities based at Mangalore informed the D.R.I. Authorities of Mangalore that they had intercepted a trawler by name Al Jasser on 3-11-1991 and the petitioner and eight other members were present in that trawler and that the same contained contraband silver, whereupon the D.R.I, authorities arrested the petitioner and others and the trawler was found to contain silver ingots weighing 6,185.510 Kgs. valued at Rs. 4,70,06,000/- and that they were seized under mahazar and on 6-11-1991 they were arrested and produced before the Judicial Magistrate, First Class and they were remanded to judicial custody. On 22-11-1991 the Government of Karnataka issued the impugned order of detention under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the Act'). On 16-12-1991 the petitioner submitted a representation as per Annexure-D to the Writ Petition and the same was rejected by the Central Government on 6-1-1992 and the State Government rejected the same on 28-1-1992. There was inordinate delay on the part of both the Central and State Governments in considering the representations made by the petitioner and there was no proper explanation forthcoming to explain the said delay and therefore the detention of the petitioner is vitiated. In the course of the Petition the petitioner has taken many other grounds to attack the impugned order of detention and during the course of arguments the only point that was pressed was the inordinate delay in consideration of the representation made by the petitioner and thereby the impugned order being vitiated and so it is quite unnecessary to refer to the other grounds taken up by the petitioner in the course of his petition.

2. The person who was working as the Secretary to Government, Home Department at the relevant time has filed his counter affidavit. He has admitted that the petitioner has been detained pursuant to the impugned order and it has been asserted that, that is with a view to prevent him from smuggling goods. The various averments made during the course of the petition in relation to the main grounds taken up by the petitioner have been denied by him. That the petitioner made a representation dated 16-12-1991 against the order of detention has been admitted by him. But there has been any delay in considering the said representation has been denied by him. It has been stated that the representation of the detenu dated 16-12-1991 was forwarded by the Superintendent of Central Prison to the State Government on that day itself and it was received in the Home Department on 17-12-1991 and the representation of the petitioner and the representation of eight other detenues was processed and a note was put up on 19-12-1991 for forwarding the same to the D.R.I. authorities for the purpose for translation and obtaining their comments and the Under Secretary examined the file on 20-12-1991 and on 21-12-1991 the file came back to the section and the letter to the D.R.I. authorities was got typed on 21/23-12-1991 as 22nd December was a general holiday and on 24-12-1991 the said letter was despatched along with the representation of the detenu and the D.R.I. office received the said letter on the same day and on 26-12-1991 the said representation was entrusted to the translator for translation and the translated copies were received on 27-12-1991 and on 30-12-1991 the D.R.I. authorities prepared their comments and forwarded the same to the State Government on 31-12-1991 by ordinary post and it was received in the Home Department on 10-1-1992 and the D.R.I. office was unable to explain about the postal delay that had crept in, due to reasons beyond its control. As 11/12-1-1992 were general holidays on 13-1-1992 and 14-1-1992 each of the comments of all the nine detenues was processed and on 16-1-1992 a detailed note was got typed and the fife was submitted to the Under Secretary to Government, Home Department on 17-1-1992 who in turn examined the file and ordered that the report of the petitioner be forwarded to the Advisory Board where the matter was pending consideration and on 18-1-1992 the representation of the petitioner was forwarded to the Advisory Board. On 21-1-1992 the copies of the representation were also forwarded to the Central Government and the Chairman of the Central Advisory Board and thereafter the file was resubmitted to the Under Secretary on 22-1-1992 and the Under Secretary after perusing the file forwarded the same to him and he perused the entire file and submitted the same to the Home Minister on 22-1-1992 and on 25-1-1992 the Home Minister after considering the representation rejected the same. Therefore it has been asserted that there was no delay in considering the representation of the petitioner at any stage and that the order of detention is not in any way vitiated.

3. The short point that arises for consideration is, whether there has been unexplained delay on the part of the State Government in considering the representation of the petitioner and whether therefore the order of detention is vitiated.

4. The learned Advocate for the petitioner as also the learned Advocate General who appeared for the State relied upon a number of Authorities of the Supreme Court and also of this Court to support their respective contentions. Though in some of the Cases relied upon by the learned Advocate for the petitioner the finding has been that the order impugned in the said Case had been vitiated on account of the delay in considering the report and though in some of the Cases relied upon by the learned Advocate General it has been held that there was no delay in considering the representation, one basic aspect common to all the Decisions relied upon by both the sides is that the representation of the detenue shall be considered at the earliest.

5. In RAMA DHONDU BORADE v. V.K. SARAF, COMMISIONER OF POLICE AND ORS., : 1990(25)ECC50 after referring to a number of earlier Decisions, this is what has been observed with reference to the constitutional mandate on the authority to whom representation is made, to consider the same within reasonable time and dispose of the same as expeditiously as possible:

'The propositions deducible from the various reported decisions of this Court can be stated thus:

The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution. Correspondingly, there is constitutional mandate commanding the concerned authority to whom the detune forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release to consider the said representation within the reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal since such a breach would defeat the very concept of liberty the highly cherished right - which is enshrined in Article 21 of the Constitution.

True, there is no prescribed period, either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the words 'as soon as may be' occurring in Article 22(5) of the Constitution reflect that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense, of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.'

These propositions in Borade's case have been followed in the latest decision of the Supreme Court in JULIA JOSE MAVELY v. UNION OF INDIA AND ORS., : 1992CriLJ109 .

6. Even in the Decision of the Constitution Bench of the five learned Judges of the Supreme Court relied upon by the learned Advocate General in K.M. ABDULIA KUNHI AND B.L ABDUL KHADER v. UNION OF INDIA AND ORS., : 1991CriLJ790 it has been observed as hereunder;

'It seems to us therefore, that so long as the representation is independently considered by the Government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of the detention makes little difference on the validity of the detention or confirmation of the detention,'

Therefore the Constitutional mandate on the concerned authority to expeditiously consider the report made by the detenu as laid down in Rama Dhondu Borade's case and the series of earlier and later Decisions of the Supreme Court has been dissented from, even in this Decision of the Constitution Bench.

7. Even in KAMARUNNISA v. UNION OF INDIA, : 1991CriLJ2058 relied upon by the learned Advocate General, this principle adumbrated in the various earlier Decisions regarding consideration of the representation expeditiously by the concerned authority has been reiterated. It has been observed in paragraph 7 that delay has to be answered in the facts and circumstances of each case and whether or not delay if any is not properly explained would depend on the facts of each case. Even in the Division Bench Decision of this Court in BHAWARLAL JAIN v. MAHENDRA PRASAD, : ILR1991KAR454 relied upon by the learned Advocate General, it has been pointed out whether in a given case the representation was disposed of as expeditiously as possible is a question for determination depending upon the facts and circumstances of each case. Yet in another Division Bench Decision of this Court in TEJMAL MEHTA v. STATE OF KARNATAKA, , : ILR1991KAR3891 , relied upon by the learned Advocate General this is what has been stated in the course of paragraphs 13 and 16;

'No doubt, the proposition thus advanced is very attractive, and theoretically, unexceptional. But the Court cannot ignore the realities connected with the functioning of the State. The problems of the State are manifold and diverse and it is impossible to classify them in any particular order of priorities, for being attended to in these matters, Court has to examine the question of delay bearing in mind the entire circumstances and the fact situation. The time taken for considering the detenu's representation cannot be analysed with a microscopic precision.

There is no particular test applicable to consider the question of delay, It may be generally said that the purpose of probing the delay is to find out as to whether the authorities acted with full awareness of the detenu's rights and respected the freedom guaranteed under Article 22 of the Constitution. An attitude of callousness and in difference by the State to the representation of the detenu would vitiate the detention. Whether such an attitude was exhibited in a given case is purely a question of fact in each case; no yardstick is available to measure the delay.'

It has been pointed out by another Division Bench Decision of this Court in MOHAMMED KUNHI v. STATE OF KARNATAKA, : ILR1991KAR3875 :

'That the time imperative for consideration of the representation can never be absolute or obsessive.'

8. In relation to the aforesaid propositions regarding Constitutional mandate of expeditious consideration of the representation of the detenu neither the learned Advocate for the petitioner nor the learned Advocate General pleaded that these propositions are not good law in view of any later Decision of the Supreme Court or that the said propositions ought not to be followed in the instant case. It may be that in a particular Case which came up for consideration before the Supreme Court or this Court, even the time lag of lesser number of days in between the date of representation and the rejection of the same were held to have vitiated the order of detention whereas in some cases even more number of days may have been held to have not vitiated the order of detention. To give a few examples in, IN THE MATTER OF DURGA SHOW AND ORS. , : (1970)3SCC696 delay of 16 days between the date of receipt of representation and its rejection by Government was held to have vitiated the order of detention. In HARISH PAHWA v. STATE OF U.P. AND ORS. , : 1981CriLJ750 the representation was dated 3-6-1980 and it was rejected on 24-6-1980 and the finding of the Supreme Court was that this time lag of 21 days had gone against the Constitutional mandate of expeditious consideration, in NARINDER SINGH SURI v. UNION OF INDIA & ORS., : 1980CriLJ683 the time lag of 20 days in between the receipt of representation and its rejection was held to be unreasonable delay so as to vitiate the order of detention. In RATTAN SINGH AND ANR. v. STATE OF PUNJAB AND ORS. , AIR 1982 SC 1the delay of about 25 days was held to be vital. In : 1990(25)ECC50 (Rama D. Borade's Case) gap of 28 days was held to have contravened the Constitutional mandate of expeditious disposal of the representation. Whereas in some of the Decisions to which reference shall be made now, the delay of even a month was held to have not vitiated the order of detention. In MADAN LAL ANAND v. UNION OF INDIA AND ORS., : 1990CriLJ659 the representation was dated 17-1-1991, whereas it was rejected on 17-2-1991. In ABDUL SALAM ALIAS THIYAAN v. UNION OF INDIA AND ORS., : 1990CriLJ1502 representation was dated 27-9-1989, whereas it was rejected on 1-11-1988. In M. MOHAMMED SULTHAN v. THE JOINT SECRETARY TO GOVT. OF INDIA, AIR 1990 SC 2222 the representation was dated 18-1-1990, whereas it was rejected on 20-2-1990. In K.M. Abdulla Kunhi v. B.L. Abdul Khader the representation was dated 17-4-1989, whereas it was rejected on 6/7-5-1989. In : 1991CriLJ2058 (Kamarunnisa's case) the representation was dated 18-12-1991 and it was rejected on 30-1-1992. The learned Advocate tried to derive support from the fact that in some of the Decisions referred to above the time lag between its representation and it being considered being less that a month, to canvass that the time lag in the instant Case between the representation and its rejection should be held to be unreasonable, going against the Constitutional mandate, whereas the learned Advocate General tried to derive some support from the other set of Decisions where the time lag being even more than a month was held to have not vitiated the order of detention to counter the contention advanced on behalf of the petitioner. It appears to us that the fact in a give Case decided by the Supreme Court the time lag being less than a month having been held to have vitiated the order of detention or in some cases the time lag of even above a month having been held to have not vitiated the order of detention cannot be pressed into service by either side as it has been repeatedly pointed out by the Supreme Court and also this Court that the time imperative for consideration can never be absolute and where the time lag between the date of representation and its rejection could be construed as delay and whether same has been explained by the concerned authorities by proper explanation depends upon the facts and circumstances of each case and there could be no uniform yardstick to measure the same and as has been pointed out by the Division Bench of this Court it has to be seen whether the time lag between the two makes out an attitude of callousness and indifference on the part of the State in considering the representation. In this background, the facts of the present Case are to be scrutinised to find out whether the time lag demonstrates any lethargic attitude or callousness and indifference on the part of the State in considering representation of the detenu. Before we refer to the averments and counter averments made with reference to this delay in considering the representation of the petitioner a few salient dates may be noticed.

9. The order of detention passed by the Government of Karnataka is dated 22-11-1991. The representation of the detenu is dated 16-12-1991. The same was received in the Home Department of the State of Karnataka on 17-12-1991. On 24-12-1991 the letter was despatched by the Home Department to the D.R.I. authorities seeking for their comments and also for translation of the representation of the detenu. On 31-12-1991 the D.R.I. authorities despatched their comments with the translation by ordinary post to the State Government. They were received in the Home Department of the State of Karnataka on 10-1-1992. On 24-1-1992 the Home Secretary perused the file and submitted the same to the Home Minister. On 25-1-1992, the Home Minister rejected the representation. The various proceedings in relation to the consideration of the representation after receipt of the same could be particularly classified into the following stages:

1. Seeking of translation of the representation and also the comments of the D.R.I.

2. Despatch of the translation and comments by D.R.I.

3. Receipt of the same by Home Department.

4. Putting up of the same with the representation before the Home Minister.

10. Undisputedly the representation had been received by the Home Department on 17-12-1991 and the letter seeking comments and also the translation of the representation was despatched by the Home Department to D.R.I on 24-12-1991. Thus it has taken one week for the simple work of seeking the comments and translation. The D.R.I authorities have taken another one week for despatching their comments with the translation. Then the Home Secretary in his affidavit has stated that the comments with the translation were received in the Home Department on 10-1-1992. It may be noticed at this stage that the office of the D.R.I. is situated in Indiranagar, hardly about 5 or 6 kms. from Vidhana Soudha the seat of the office of the State of Karnataka. The letter despatched by the D.R.I. on 31-12-1991 should in the ordinary course have been received by the addressee either on the same date or on the next day could not also be disputed by the learned Advocate General. As it has been stated in the affidavit filed by the Home Secretary that the D.R.I. authorities were unable to explain the postal delay that had crept in, the learned Advocate General was required by this Court to produce the relevant file as also the register for perusal of the Court. The relevant file shows that the letter addressed by the D.R.I. was received in the Home Department on 10-1-1992. The letter addressed by the D.R.I. to the Under Secretary bears the seal of the Home Department with the date 10-1-1992 and the seal of the COFEPOSA Cell also with the said date is found on the same. The relevant register produced shows that it was also registered in the Home Department on 10-1-1992. In order to find out whether this letter was received for the first time in the Secretariat on 10-1-1992 itself or to know whether the same was received prior to that day and the delay in taking note of the same is attributable to the staff of the Secretariat the learned Advocate General was required by this Court to state about the system of delivery of the tappal addressed to the various departments in the Secretariat and received by post. In other words he was asked to state whether there was a centralised pool in the secretariat to collect the several letters received by post and from there whether the letters are distributed to the various departments subsequently and whether the delay of ten days could be attributed to the system of receipt and distribution of the tappal received by post. Though more than one adjournment was given the learned Advocate General was not in a position to enlighten the Court on the system of receipt of tappal by the secretariat. Sir Somayaji, learned High Court Government Pleader who represented the learned Advocate General at a later stage pleaded his inability to state anything in reply to this query made by the Court. It is rather surprising that to this simple query made by this Court no reply could be given on behalf of the State despite a number of opportunities having been afforded to the learned Advocate General.

11. It may be also noticed that the letter of the D.R.I. dated 30-12-1991 is addressed to the Under Secretary (COFEPOSA) by name Smt. V. Sharada. But it is rather curious to note that even she has not stated anything in relation to this particular aspect viz., whether the letters sent by post and addressed to her personal name would not be delivered to her by the postman or whether it is also delivered in some centralised tappal pool. It is curious to note that in the course of her affidavit she has not mentioned anything in relation to this aspect of the matter. We also find the signature of some person on this letter and the date noted beneath it has been altered. A mere look at it gives us an indication that it must have been mentioned in the first instance as 11-01-92 and '1' has been altered as '10'. The figure '0' is overwritten on the figure'1'. Nobody has given any kind of explanation with reference to this over-writing of the date. These circumstances make one doubt whether the statement made by the Home Secretary that this letter from the D.R.I. sent by post was received on 10-1-1992 could be accepted at all or whether the inference that it must have been received on 1 -1 -1992 and it has seen the light of the day only on 10-1-1992 by catching the attention of the concerned could be drawn under the circumstances.

12. Thus it could be seen that in respect of a representation received as far back as 16-12-1991 the process of securing the remarks and the translation from the D.R.I. itself took a fortnight upto the stage of despatch of the said remarks and the translation by the D.R.I. and there is no reason whatsoever to accept the case put forward on behalf of the respondents that the same were received in the Home Department for the first time on 10-1-1992 and on the other hand the inference that it must have been received on 1-1-1992 itself but it has caught the attention of the concerned persons only on 10-1-1992 is irresistable.

13. It may be noticed that before the file could be placed before the Home Minister it had to be processed by the Under Secretary and then the Home Secretary, At the level of the Under Secretary the matter was lying for a period of two weeks before it could be placed before the Home Secretary. It has to be seen whether the file could not have been placed before the Home Secretary earlier than 24-1-1992 and whether the Under Secretary and his staff were so much preoccupied with other urgent matters, which deserved better attention than this representation and whether they had no time to attend to this representation and put it up before the Home Secretary. It has been stated in the affidavit of the Home Secretary that 11th and 12th January were general holidays and on 13th and 14th of January each of the comments of all the nine detenus were processed and on 16-1-1992 a detailed note was got typed, as 15-1-1992 was a general holiday and the file was submitted to the Under Secretary on 17-1-1992. Therefore the assistants of the Under Secretary have taken one week for preparing the note on the basis of the representation and also the comments received from the D.R.I. In the affidavit filed by the Under Secretary there is absolutely no whisper whatsoever as to why she could look to the file only on 17-1-1992 though the letter came to her notice on 10-1-1992 itself. On 17-1-1992 according to the very version of the Under Secretary she ordered that the copy of the report be sent to the Chairman of the Advisory Board with a covering letter and only after attending to the said work she could examine the file on 23-1-1992 for forwarding the same to the Home Secretary and that she thought representation should first be forwarded to the Advisory Board. The Under Secretary has also stated that the Advisory Board meeting was held continuously from 16-1-1992 to 25-1-1992 and therefore she and her section were busy in making arrangements for production of detenu before the Board also. As to what kind of arrangement had to be made by her in the said interval and whether she could not find any time at all to look into the file which contained a very innocuous representation of the detenu which hardly runs to less than a page has not been explained by her. This statement of the Under Secretary that she thought that the representation should first be forwarded to the Advisory Board has come for the first time after the Writ Petition was argued by the learned Advocate for the petitioner during which he had pointed out that there was no scope to the concerned Under Secretary to have attended to only one item of work at one point of time and postpone the other items of work.

14. The Under Secretary, Home Department, in charge of the COFEPOSA Cell had not filed her affidavit in the first instance and after the case was argued at length, it was pointed out that the person who could have offered some explanation in respect of the several delays in putting up the file at various stages had not filed her affidavit and at that stage, with the permission of the Court, the learned Advocate General filed the affidavit of one Smt. V. Sharada who is working as Under Secretary, Home Department, She has given certain reasons for the delay in the file being put up before her and she in turn putting up the same before the Home Secretary. Before adverting to the averments made in her affidavit, as already pointed out at an earlier stage, there is no explanation forthcoming for the delay in taking note of the comments and the translation sent by the D.R.I. authorities from 1st to 10th of January. Even accepting the averments made in the affidavit of both the Home Secretary and the Under Secretary, there is absolutely no scope to accept their explanation that there was postal delay in receiving the comments or their case that the letter dated 31 -12-91 was received by them only on 10-1-1992 sent by the D.R.I. authorities. For the reasons adverted to already, it has to be held that the letter of the D.R.I. dated 31-12-91 must have been received in the Secretariat on either that day or the next day and the fact that it was taken note of by the COFEPOSA Cell of the Home Department only on 10-1-1992 is attributable to the lethargic indifference on the part of the concerned persons to put up the same along with the necessary file. It can by no means show any kind of awareness on the part of the concerned to expeditiously attend to the representation which had been received nearly 3 weeks earlier to that date.

15. So far as the time taken by the Under Secretary and her assistants below her, for the period 17-12-1991 to 24-12-1991 in sending a letter to the D.R.I. Authorities seeking their comments and also the translation of the representation and also the further time taken in between 10-1-92 and 24-1-92 when the file was put up before the Home Secretary, the Under Secretary has tried to give some explanation in respect of the period occupied between 17-12-1991 and 24-12-1991, which period has been taken by the Under Secretary and her staff only to despatch a letter seeking the comments of the D.R.I. and also seeking translation of the representation. This is what has been stated by the Under Secretary in paras 3 and 4 of her affidavit:

'In the above background, I respectfully submit that, in the instant case, 9 representations of each of the detenus, was received in the Home Department on 17-12-1991. On 18-12-91, the concerned Assistant had to pick-out the Representation files in all these cases and on 19-12-91, he put up the files in all these 9 cases. On 20-12-1991, I examined the file and ordered for forwarding the same to D.R.I. authorities. On 21-12-1991, the file came to Cofeposa Section. As already stated, I had to attend to this file only in the evening on 20-12-1991, after attending to various other files of proposals, representations etc. in addition to my other work.

4. As could be seen from the file, the detenu had been issued with an Endorsement dated 20-12-1991 regarding permission to engage an Advocate by him. That endorsement was sent to Prison Authority through a covering letter on 21-12-1991. Since the file was being attended to in disposing of that representation dated 10-12-1991, the Assistant had to entrust the typist of typing the covering letter to send the instant representation dated 16-12- 1991 to D.R.I. Authorities, on the evening of 21-12-1991. 22nd was a General Holiday. On 23-12-1991, after the typed letter was received by him, he had taken steps to despatch the said letter to D.R.I. and issued the same on 24-12-1991.'

In respect of the subsequent period between 10-1 -1992 and 24-1 -1992, this is what has been stated by the Under Secretary in para 5 of her affidavit:

'I most respectfully submit that after the receipt of comments from the D.R.I. authorities, the files of all the 9 detenus were processed and submitted to me on 17-1 -1992. I examined the file and found that the detenu had requested for forwarding his representation to Advisory Board and others, I thought that the representation should first be forwarded to Advisory Board and accordingly, ordered on 17-1-1992 to send a copy of representation to Chairman Advisory Board along with a covering letter. Draft of D.O. letter and fair letter to Advisory Board was put up and signed by me on 18-1-1992, 19-1-1992 was a General Holiday, On 20-1-1992, the COFEPOSA Section and myself were busy in attending to similar other detention matter including making arrangements for production of detenus before the Advisory Board On 21-1-1992, the Assistant put up a note for my orders to forward the copies of representation to Government of India. On the very day, I ordered for sending the same to the persons to whom it was requested to send in the representations.'

15. It may be noticed that if we are to even accept the statement of the Under Secretary that the translation with the comments of the D.R.I. were received by the COFEPOSA Cell on 10-1-1992, there is no explanation whatsoever forthcoming as to why the file could be submitted to her only on 17-1-1992. If the Home Secretary could take a decision in respect of the file in one day and the Home Minister also could take his decision in one day, it is impossible to accept the statement of the Under Secretary that the processing of the comments of the D.R.I. of all the 9 detenues had to take 7 days even from 10-1-1992. In between 10-1-1992 and 17-1-1992, what exactly was the pre-occupation of the Under Secretary and her assistants not to attend to this file has not been explained by her. In respect of the period between 17-1-1992 and 23-1-1992 the explanation offered by the Under Secretary is that as it had been sought that the representation should be sent to the concerned persons, she thought that the representation should first be forwarded to the Advisory Board and only thereafter, she took a decision to place the matter before the Home Secretary. She has not given any material whatsoever that even in respect of the earlier cases she used to follow this step of first forwarding the representation to the Advisory Board and only thereafter sending the representation to the Home Minister through the Home Secretary, As to what other items of work had kept her so busy as to not enable her to devote any kind of attention to this file, has not been explained by her except for vaguely stating that she and her staff had to make arrangements for the production of the detenus before the Advisory Board. What is the type of work that she and her assistants were expected to do in that connection has again not been explained by her.

16. If as already pointed out, the file could be attended to by the Home Secretary and the Home Minister just in one day after it was placed before them, it is hard to swallow the explanation of the Under Secretary that she required one week to prepare a letter and send to the D.R.I. authorities seeking for comments and also the translation and again one more week even after the unexplained delay of 10 days, to her assistants to place the file before her and further, one more week for her was necessary to put up the file before the Home Secretary. If there was any sense of promptitude or diligence or a sense of urgency on the part of the Under Secretary and her assistants in attending to this representation, before Home Secretary and Home Minster the file could have been placed on the 1st or 2nd of January, 1992 and the lethargic way in which the file has been dealt with is clearly indicative of the fact that there was no promptness or diligence on the part of the Under Secretary and the staff below her and there was also no sense of urgency to attend to the representation by processing it and placing before the Home Secretary at the earliest.

17. As has been observed by His Lordship C. Chinnappa Reddy J. in the Decision in FRANCES CORALIE MULLIN v. W.C. KHAMBRA AND ORS. , : 1980CriLJ548 which has been followed in A.I.R. MUHESH KUMAR CHAUHAN ALIAS BANTI v. UNION OF INDIA AND ORS. , : 1990CriLJ1507 no allowance can be made for lethargic indifference and no allowance can be made for needless procrastination. Again as pointed out in the Decision in (1) SMT. KHATOON BEGUM v. UNION OF INDIA AND ORS., : 1981CriLJ606 ; (2) SMT. AFSARI BEGUM v. UNION OF INDIA AND ORS., : 1981CriLJ606 and (3) SMT. FATHIMA KHATOON v. UNION OF INDIA AND ORS., : 1981CriLJ606 it will be no answer to a demand for liberty to say that the administrative red tape makes delay inevitable. If the Home Secretary and Home Minister could attend to the file just in one day each, they could have also geared up their staff below them to process such papers and place before them at the earliest with a sense of urgency and the way in which the papers have been processed bears ample testimony to the indifference on the part of the concerned persons in attending to the representation at various stages adverted to already and by no means could it be said that they have attended to the representation with a sense of urgency and promptness and it is proof positive of the lethargic approach made by his staff members including the Under Secretary and when they have not been geared up to avoid these delays and that in turn has contributed for the delayed consideration of the representation made by the detenue, it is needless for us to state that the same vitiates the order of detention. In that view of the matter, the only contention urged on behalf of the petitioner that the unexplained delay in considering the representation has vitiated the order of detention has to be accepted. Once that is so, the subsequent declaration made by the 2nd respondent also cannot be sustained.

18. In the result, we hold that the order of detention of the petitioner passed by the 3rd respondent bearing No. HD 110/DCF 91 (A) dated 22-11-1991 and also the declaration No. 125/91 bearing No. F No. 675/552/91-CUS VIII dated 12-12-1991 issued by the 2nd respondent are vitiated for the reasons adverted to above and hence they are quashed and the detenue (Writ petitioner) shall be set at liberty if not required for any other purpose. In these terms, the Writ Petition is allowed.