Chittranjan Mitra Vs. Union of India and ors. - Court Judgment

Excerpt:
- - his grievance further is that it was communicated to him only on 5th of november 1987.i am not sure whether the failure to communicate in time would be fetal or not but the fact of the matter is that the detaining authority under the law andthe constitution is bound to attend to the consideration of the representation with utmost promptitude because the liberty of a subject is at stake. 273 of 1987 decided on 12/10/1987(1). i have ruled that the defaming authority it he so feels well within ill's jurisdiction to call for comments or send for further information if he is of the view that such comments and information would be necessary to enable him to deal effectively with the representation but it must appear from the record that the representation was put up before the detaining authority without waste of any time and the decision to send for further information or comments must be that of the detaining authority.malik, j.(1) the petitioner has challenged the detention order passed against him on 26th of june 1987 by shri s. k. kohli, joint secretary to the government of india,under section 3(1) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (as amended).this order was passed with a view to preventing the petitioner from engaging in smuggling and transporting smuggled goods.this followed an incident dated 11/05/1987 when the petitioner who is a citizen of bangia desh was apprehended in the process of smuggling 8 gold biscuits of foreign made into this country.(2) the main ground of challenge to the order of detention is delay in the consideration of representations made by the petitioner-detent to the detaining authority as also to the centralgovernment. mr. arora submits that on 25th of september1987 he made these representations which were supposed to have been decided on 21/10/1987 but the order of rejection was recorded on 26th of october 1987 and it was communicated to him on 5/11/1987.(3) the affidavit submitted by shri s. k. chowdhry, under secretary in the ministry of finance states that the-representation was received on 26th of september 1987 and the comments from the sponsoring authority were sought on the same day.it further says that these comments were forwarded by she sponsoring authority on 15th of october 1987 and were received in the ministry concerned on 20/10/1987 and the representations were considered on 21/10/1987. though the memorandum was drawn on 26/10/1987 as 24th and25th october were holidays. in short, after tendering this explanationn the court is told that there has been no undue delay in consideration of the representation. another affidavit has been filed by mr. c.d. bhattacharjee. a superintendent in the collectorate of customs (preventive). west bengal,calcutta giving details as to how after the representation was received for comment it was dealt with at their ends. he admits that it was sent back to the ministry on 15/10/1987.(4) mr. arora submits that the detaining authority is bound to explain everyday of delay and that it must appear that therepresentation of the detenu was dealt with utmost dispatch andpromptness. according to him. the detaining authority in the present case has been very indifferent to the consideration of the representation as is evident from the reply filed.mr. arora further stresses the fact that even though the representation was decided on 21/10/1987 the memo thereof was drawn only on 26th of october 1987 which also shows the amount of deference shown by the detaining authority to the representation of the detenu. his grievance further is that it was communicated to him only on 5th of november 1987.i am not sure whether the failure to communicate in time would be fetal or not but the fact of the matter is that the detaining authority under the law andthe constitution is bound to attend to the consideration of the representation with utmost promptitude because the liberty of a subject is at stake. in the case of mahinder kumar vs. union of india and others. criminal writ no. 273 of 1987 decided on 12/10/1987(1). i have ruled that the defaming authority it he so feels well within ill's jurisdiction to call for comments or send for further information if he is of the view that such comments and information would be necessary to enable him to deal effectively with the representation but it must appear from the record that the representation was put up before the detaining authority without waste of any time and the decision to send for further information or comments must be that of the detaining authority.the jurisdiction to consider and take decision on the representation is entirely that of the detaining authority or the appropriate government and it is for the detaining authority or the appropriate government to apply its mind to the representation. this discretion cannot be surrendered by thedetaining: authority or the appropriate government to any oneelse. the affidavit submitted in the present case on behalf of the detaining authority merely states that the representation was sent to the sponsoring authority for comments after it was received in the ministry on 28/09/1987. in terms it does not take the stand that the representation was put up before the detaining authority and the detaining authority directed that the comments of the sponsoring authority be sent for. from the affidavit it is clear that this representation appears to have been put up before the detaining authority for the first time on 21/10/1987 when the final orders en it were passed.that would show that from the date of making the representation till the date it was rejected the detaining authority had not applied his mind to the representation of the petitioner. itcannot, thereforee, be asserted that the representation of the detent was dealt with as required by law and the constitution.this goes to show that there has been delay in the consideration of the representation which vitiates the order of detention.the petition for this reason is allowed and the detention order is quashed. the detenu-petitioner shall be released forthwith from the detention unless required in some other case.