Abhay Tuli Vs. Lt. Governor and ors. - Court Judgment

Excerpt:
constitution of india - article 22(5)--whether non-consideration of representation affected the rights of petitioner guaranteed in constitution and thereforee the order of detention, is liable to be quashed ?--whether delay of 37 days in disposing of the representation is fatal ;preventive detention--cofeposa act, 1974 - section 3(1)--whether non-consideration of certain documents vitiated the subjective satisfaction of the detaining authority thereby deserving quashment of the detention order ?;by way of the present petition the petitioner prayed for quashing of detention order passed against him under section 3(1) of conservation of foreign exchange and prevention of smuggling activities act, 1974 on various grounds.;allowing the petition, the court;1. through the representation dated march 4, 1997 an effort was made by the petitioner to show contradictions and inconsistencies in the prosecution case. the petitioner bhagwant singh has alleged through the said representation a conspiracy on the part of the customs officers to involve the petitioner with a view to claiming an award. the petitioner through the present representation wants to point out that the complaint against him is without any substance and is false and frivolous. it has been made with a view to falsely implicating him in the case. he has got absolutely no connection whatsoever with the alleged smuggling activities. thus the two representations can by no stretch of imagination be said to be identical and one and the same so that it can be said that by the consideration of the one it was necessary to consider the other.;2. admittedly the learned acmm on receipt of the said representation ordered the same to be placed on the file of the court. thus the said representation was very much on the judicial file. a large number of documents were picked up from the said file for the consideration of the detaining authority at the time of the passing of the impugned detention order. the same should have been placed before the detaining authority for its consideration. the above excuse that since no notice was given by the learned acmm, hence it could not have been considered, is nothing but a lame excuse.;3. it is manifest from above that the authorities in the instant case dealt with the representation which related to the liberty of a citizen in a perfunctory manner. no importance was shown to it and it was dealt with like an ordinary letter. sponsoring authority took as many as 9 days initially to submit the comments on the representation which was sent to them on june 25, 1997 inasmuch as they submitted the comments on july 3/4, 1997. the said comments were not found satisfactory. hence again the comments were called for on july 10, 1997. six precious days were lost in between. this time the sponsoring authority submitted the comments after 15 days i.e. on july 25, 1997. the said comments again were not satisfactory. consequently, a fax message was sent for comments on july 30, 1997. thus five days were wasted.;4. the underlying idea under article 22(5) of the constitution of india, referred to above, is to give an opportunity to the detained person to make a representation at the earliest possible opportunity. the said representation would be rendered nugatory in case the authorities after having received the same did not consider and dispose of the same with promptitude and a sense of urgency, keeping in view the fact that the liberty of a citizen is involved therein. liberty which is the cloth of our eyes and breath of our being. no meaningful existance is possible in the absence of liberty. it is the birth right of a citizen. god who gave us life, gave liberty also. thus no person can be deprived of it except in accordance with law.;5. in the instant case the petitioners themselves are responsible for causing the delay. thereforee, thay now cannot turn around and take the advantage of the same by stating that the non-submission of the replies before the detaining authority be construed for their benefit and the detention orders and the declaration orders be quashed on the said ground. - labour & services disability pension: [vikramajit sen, sanjiv khanna & s.l.bhayana,jj] army act (46 of 1950), section 192 & pension regulations for the army (1961), regulation. 173 claimant was on casual leave sustained injury which contributed to invalidation for military service claim for disability pension held, to claim disability pension by military personnel it requires to be established that the injury or fatality suffered by the concerned claimant bears a causal connection with military service. secondly, if this obligation exists so far as discharge from the armed force on the opinion of a medical board the obligation and responsibility a fortiori exists so far as injuries and fatalities suffered during casual leave are concerned. thirdly, as a natural corollary it is irrelevant whether the concerned personnel was on causal or annual leave at the time or at the place when and where the incident transpired. this is so because it is the causal connection which alone is relevant. fourthly, since travel to and fro the place of posting may not appear to everyone as an incident of military service, a specific provision has been incorporated in the pension regulations to bring such travel within the entitlement for disability pension if an injury is sustained in this duration. fifthly, it cannot be said that each and every injury sustained while availing of casual leave would entitle the victim to claim disability pension. sixthly, provisions treating casual leave as on duty would be relevant for deciding questions pertaining to pay or to the right of the authorities to curtail or cancel the leave. lastly, injury or death resulting from an activity not connected with military service would not justify and sustain a claim for disability pension. this is so regardless f whether the injury or death has occurred at the place of posting or during working hours. this is because attributability to military service is a factor which is required to be established. - they said telegrams were very relevant and material documents and could have swayed the subjective satisfaction of the detaining authority but for the best reasons known to the sponsoring authority, the same were not placed before the detaining authority as the same do not find a mention in the grounds of detention. according to them, all the relevant documents were considered by the detaining authority at the time of passing of the detention order as well as at the time of passing of the impugned declaration orders. further, the authorities, according to the learned counsel, failed to place reliance on the reply dated may 15, 1997 received by the respondents on may 19, 1997 to the show cause notice sent by petitioners deepak kaushal and parvesh kumar gujral addressed to the deputy commissioner (customs), igi airport, and the letters dated may 19, 1997 written by bhagwant singh and harmohinder singh to the commissioner (customs), new customs house, igi airport, and the representation dated april 20, 1997 by the petitioner harmohinder singh addressed to the deputy commissioner (customs). 17. it has been urged for and on behalf of petitioners harmohinder singh and bhagwant singh that in their representation dated june 23, 1997 made by harmohinder singh there was a request therein that the documents mentioned therein should have been taken into consideration at the time of the passing of the detention order as they were likely to affect the subjective satisfaction of the detaining authority. this court is thus in perfect agreement with the submissions made by the learned counsel for the petitioner that in view of the alleged conspiracy by the petitioners the documents which are relevant and material in case of one petitioner would be held to be relevant and material in case of other petitioners. i am, thereforee, of the view that the failure of the sponsoring authority to place this document before the detaining authority does vitiate the subjective satisfaction and the non-supply of this document to the detenu on asking further vitiates the order of detention'.23. the grievance of the petitioners is that quite a good number of documents which were quite relevant and material were not placed by the sponsoring authority before the detaining authority. it is like an unsigned/anonymous communication. i find myself in perfect agreement with the learned counsel. (7), air 1979 sc 447 'it is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order .39. this brings, us to another representation dated june 23, 1997 made by petitioner harmohinder singh. negi, under secretary, ministry of finance). it is a well settled principle of law that the authorities are under an obligation to dispose of a particular representation as soon as it is received, as expeditiously as possible, with a sense of urgency and promptitude. no importance was shown to it and it was dealt with like an ordinary letter. it is a well settled principle of law that a person who is responsible for bringing about a particular situation cannot be permitted to take advantage of the same in the instant case the petitioners themselves are responsible for causing the delay.mohd. shamim, j.1. these are six writ petitions bearing crl. w. nos. 458/97 (abhay tuli v. lt. governor & ors.), crl. w. 453/97 (deepak kaushal v. lt. governor & ors.), crl. w. 455/97 parvesh kumar gujral v. lt. governor, and ors.), crl. w. 457/ 97 (subhash chand wadhwa v. lt. governor, and ors.), crl. w. 647/97 (harmohinder singh v. union of india and ors.), crl. w. 648/97 (bhagwant singh v. union of india and ors.), whereby the petitioners have sought quashment of the detention orders dated may 26, 1997 (annexure a) passed against them under section 3(1) of the conservation of foreign exchange & prevention of smuggling activities act, 1974 (hereinafter referred to as the act in order to facilitate the reference). two of the petitioners also namely, abhay tuli and bhagwant singh also want quashment of the declarations made against them on june 24, 1997. it is proposed to dispose of all the six writ petitions by a common judgment and order as the common questions of law and fact are likely to arise while disposing them of.2. relevant and material facts which are necessary for the disposal of the above-said writ petitions are being reproduced below as gathered from the main petition i.e. crl. w.no. 458/97 (abhay tuli v. lt. governor and ors.). the detenu while in jugducial custody was served with a detention order dated may 26, 1997 (annexure a) on may 27, 1997. he was served with the grounds of detention on june 1, 1997 along with the copies of the list of documents relied upon (annexures b, & b1 respectively). the detenu later on was also served with a declaration order dated june 24, 1997 on june 28, 1997 made under section 9(1) of the act.3. the facts leading to the passing of the said detention order are enumerated below in order to facilitate the disposal of the above writ petitions. it is alleged that during the intervening night of 1st/2nd november, 1996 customs officers intercepted the petitioner bhagwant singh at i.g.i. airport while he was intending to leave for new york. his person was searched which resulted in the recovery of foreign currency valued at rs. 2.71 crores from his suit case which contained readymade garments. on interrogation the petitioner revealed that the aforesaid suit case was delivered to him by one bhagwant singh, petitioner in crl. writ petition no. 648/97, for taking it away to bangkok. bhagwant singh had come to the airport along with his father harmohinder singh, petitioner in crl. writ petition no. 647/97, to see him off. harmohinder singh on enquiry disclosed that the suit case referred to above was delivered to them (harmohinder singh and bhagwant singh) by one suresh, a representative of one mrs. jha of bangkok, to be transmitted to her, and his son i.e. the petitioner bhagwant singh had made arrangement for transmission of the same through the present petitioner i.e. abhay tuli. no statement of bhagwant singh could be recorded as he was not available for the purpose of interrogation.4. a criminal complaint for offences under sections 132 and 135 of the customs act was presented against the four persons known as harmohinder singh, bhagwant singh, abhay tuli and one ramesh bhardwaj, an employee of the airport. during the course of enquiry the customs officers summoned one deepak kaushal, petitioner in crl. writ petition no. 453/97 and parvesh kumar gujral, petitioner in crl. writ petition no. 455/97. their statements were recorded on 27th and 28th january, 1997. they stated in their statements that they had been procuring foreign currency for bhagwant singh petitioner on commission basis. bhagwant singh on his turn had been providing to them indian currency for the said purpose. they further went on to state that on october 31, 1996 they had procured and given foreign currency equivalent to rs. 50 lacs and rs. 40 lacs respectively to bhagwant singh petitioner. they further stated that they were told by bhagwant singh that the above-said foreign currency which was arranged by him (bhagwant singh) was a part of the currency he had sought to export through the petitioner abhay tuli, had been seized. later on statement of subhash chand wadhwa, petitioner in crl. writ petition no. 457/97, was recorded on february 4, 1997. he stated therein that he had been procuring foreign currency for deepak kaushal and parvesh kumar, petitioners, who in turn were exporting it unauthorisedly.5. in view of the above disclosure a criminal complaint was filed against three persons i.e. deepak kaushal, parvesh kumar and subhash chand wadhwa on march 27, 1997. it was in the above stated circumstances that the detention orders, alluded to above, were passed against all the petitioners on may 26, 1997 and the declarations were made against the two petitioners namely, abhay tuli and bhagwant singh, on june 24, 1997.6. petitioners deepak kaushal and parvesh kumar gaujral as per the directions of the authorities appeared before them at 9.30 a.m. on january 27, 1997. they were detained illegally till they were produced before the magistrate on january 29, 1997. since the above named petitioners did not return home their wives sent telegrams to the commissioner of customs on january 29, 1997 since they were apprehending false involvement in criminal cases of their husbands. they said telegrams were very relevant and material documents and could have swayed the subjective satisfaction of the detaining authority but for the best reasons known to the sponsoring authority, the same were not placed before the detaining authority as the same do not find a mention in the grounds of detention.7. bhagwant singh petitioner who as per the version of the customs authorities played the major role made a detailed representation dated april 9, 1997 on his surrender to the court of mrs. sunita gupta, acmm, new delhi, through the jail authorities where through he asserted that he had been falsely involved in the present case on the basis of retracted statement of others. the said representation was a very vital and relevant document particularly in view of the fact that bhagwant singh had not made any statement and he had no chance to rebut the case against him and the allegations were made by others against him in their retracted, involuntary and untrue statement. thus the above representation was relevant to the cases of the petitioners and was thus capable of swaying the mind of the detaining authority either way. non submission of the said representation to the detaining authority has vitiated the subjective satisfaction of the detaining authority and the declaring authority.8. the detaining authority has placed reliance on the show cause notice dated april 28, 1997 issued by the customs department to the petitioners initiating adjudication proceedings under section 120(4) of the customs act. a detailed reply to the said show cause notice dated may 15, 1997 by the petitioners deepak kaushal and parvesh kumar gujral do not find a mention in the grounds of detention. it has thus vitiated the subjective satisfaction of the detaining authority. the said reply was received by the department on may 19, 1997, yet the same was not placed before and considered by the detaining authority.9. furthermore, petitioners bhagwant singh and harmohinder singh also sent their replies to show cause notice dated april 28, 1997 on may 15, 1997 and the same were received by the customs authorities on may 19, 1997. the said replies were also not considered by the detaining authority. the same were very relevant and material and were capable of affecting the subjective satisfaction of the detaining authority particularly when the same were considered at the time of making the declaration.10. moreover, the representation dated april 20, 1997 made by the petitioner harmohinder singh addressed to the commissioner of customs and received on april 24, 1997 in the customs department was not considered by the detaining authority, though the same was considered as a relevant document for consideration at the time of passing of the declaration order. non consideration of the same vitiated the subjective satisfaction of the detaining authority.11. later on, a representation dated 23-6-97 was made by harmohinder singh petitioner (vide annexure g) to the secretary, government of india, ministry of finance. the said representation was delivered in the cofeposa unit on june 24, 1997. the same was rejected on august 1, 1997 (vide para 3 of the affidavit of shri m.s. negi, under secretary, ministry of finance). thus the authorities took as many as 37 days for the disposal of the said representation. thus there was an inordinate delay in the disposal of the said representation. consequently, the detention order passed against the petitioner harmohinder singh is liable to be quashed on this ground also.12. there was a specific request in the said representation that the documents mentioned therein should have been placed before the detaining authority at the time of passing of detention order as the said documents were relevant and material and would have affected the subjective satisfaction of the detaining authority (vide para 4 of the writ petition). curiously enough the said representation was never sent for consideration to the detaining authority as is manifest from para 8 of the counter affidavit filed by shri c.b. verma, deputy secretary (home), government of national capital territory of delhi. non consideration of the said representation has affected the rights of the petitioner granted to him vide article 22(5) of constitution of india. the detention order is thus liable to be quashed on this ground also.13. the said detention orders and declarations are illegal and invalid as there was non application of mind on the part of the detaining authority and declaring authority vitiating their subjective satisfaction to detain the petitioner. all the relevant documents were neither placed before nor considered by the detaining authority and the declaring authority. furthermore, the sponsoring authority had suppressed certain relevant and vital documents and did not bring them to the notice of the detaining and declaring authority which could have vitiated their subjective satisfaction. there is a patent non application of mind on the part of the detaining authority inasmuch as reliance was placed on the grounds of detention including the show cause notices served on the detenus. however, the replies to the said show cause notices by the detenus were not placed before and considered by the detaining authority.14. the respondents have opposed and controverter the above said averments through the counter affidavits sworn by shri c.b. verma, deputy secretary (home), government of national capital territory of delhi, and shri nishith goyal. assistant commissioner (legal), for and on behalf of the government of india and customs authorities. according to them, all the relevant documents were considered by the detaining authority at the time of passing of the detention order as well as at the time of passing of the impugned declaration orders. however, certain documents which were not considered relevant and material were not taken into consideration at the time of the passing of the detention order. in any case non consideration of the said documents did not cause any prejudice to the petitioners. hence the petitioners cannot be permitted to make grievance on the said score. the representation dated june 23, 1997 was disposed of as expeditiously as possible. in any case, delay, if any, has been satisfactorily explained. it is not each and every delay which can be taken advantage of by a detenu. it is only an inordinate and un-explained delay which is fatal to the detention order. there is no such thing in the present case.15. the petitions are thus false and frivolous with no substance therein and have been presented with ulterior motive and are thus liable to be dismissed.16. it has been urged for and on behalf of the petitioners that the detaining authority did not take into consideration the two telegrams dated january 29, 1997 sent by mrs. asha gujral wife of parvesh kumar gujral, and mrs. meena kaushal wife of deepak kaushal they gave vent to their apprehensions through the said telegrams with regard to the involvement of the petitioners in false cases. similarly, the authorities also did not take into consideration the letter dated april 9, 1997 sent by bhagwant singh to smt. sunita gupta, acmm, new delhi, at the time of passing of the detention order. shri bhagwant singh in his letter dated april 9, 1997 addressed to smt. sunita gupta, acmm, new delhi, from jail stated in unequivocal terms that he had no concern whatsoever with the bag which was found in possession of petitioner abhay tuli wherefrom the foreign currency worth rs. 2.71 crores was recovered and he was falsely involved on the basis of the statement of the petitioner abhay tuli. further, the authorities, according to the learned counsel, failed to place reliance on the reply dated may 15, 1997 received by the respondents on may 19, 1997 to the show cause notice sent by petitioners deepak kaushal and parvesh kumar gujral addressed to the deputy commissioner (customs), igi airport, and the letters dated may 19, 1997 written by bhagwant singh and harmohinder singh to the commissioner (customs), new customs house, igi airport, and the representation dated april 20, 1997 by the petitioner harmohinder singh addressed to the deputy commissioner (customs).17. it has been urged for and on behalf of petitioners harmohinder singh and bhagwant singh that in their representation dated june 23, 1997 made by harmohinder singh there was a request therein that the documents mentioned therein should have been taken into consideration at the time of the passing of the detention order as they were likely to affect the subjective satisfaction of the detaining authority. despite a request therein the said letter was not forwarded to the detaining authority for consideration. the learned counsel, in view of the non consideration of the said documents have vehemently argued, had the said documents been considered, it was just possible that the detaining authority would not have passed the detention order. in any case, the said documents were quite relevant and material to swing the subjective satisfaction of the detaining authority either way. they thus want this court to quash the said detention orders and declaration orders.18. learned standing counsel for the national capital territory of delhi, mr. s.k. aggarwal, learned standing counsel, mr. sarabjit sharma and ms. barkha babbar, for the union of india, have urged to the contrary.19. learned counsel for the petitioners have submitted that in the present case the petitioners are alleged to have conspired to smuggle out of india foreign currency worth crores of rupees. thus the present case is a case of more than one petitioner inasmuch as there are six petitioners involved in the present case. hence the learned counsel contend that any document which is considered as relevant for one petitioner would be deemed to be relevant and material in case of other petitioners also since the smuggling activities of one petitioner are interconnected and inter-linked with the smuggling activities of the other petitioners in pursuance of the common object of the said conspiracy i.e. smuggling. the detaining authority also treated the instant case in the same light and thus the documents relating to one petitioner were supplied to the other petitioners also. learned counsel have thus contended that in case the petitioners succeed in showing that certain documents relating to some petitioners, as is the case in the instant cases were not taken into consideration at the time of the passing of the impugned detention orders which affected the subjective satisfaction of the detaining authority passing the impugned detention orders. in that eventuality, the detention orders in respect of all the petitioners cannot be sustained in the eye of law and would be liable to be quashed.20. learned standing counsel mr. s.k. aggarwal, mr. sarabjit sharma and ms. barkha babbar on the other hand have argued on the basis of the provisions of section 10 of the evidence act that the documents which are alleged to have been not considered by the detaining authority in the present case came into existence after the conspiracy was over and exposed. hence the argument, that the documents which are relevant and material in the case of a particular petitioner would be deemed to be relevant and material for the other petitioners, would not be available to the learned counsel for the petitioners. according to the learned counsel only those discerning few documents which came into being when the conspiracy was a foot would be relevant and material for the purposes of the present case. the documents which saw the light of the day after conspiracy came to an end need not have been considered. the contention of the learned counsel appears to be specious one at the first blush, however on a deeper scrutiny it has got no merit and can be brushed aside within an anon. the provisions of section 10 of the evidence act come into operation in a case when two or more persons have conspired together to commit an offence and the same are prosecuted under the provisions of indian penal code or under any other penal provision.21. however, admittedly this is not the case in the instant case. learned standing counsel while raising the said contention is oblivious of this aspect of the case that the petitioners are not being prosecuted. they have been detained under the provisions of the act 1974 with a view to stopping them from indulging in smuggling activities in future. thus the contention of the learned counsel that those documents/material which came into existence after the conspiracy wasover cannot be looked into is without any merit. if the contention of the learned counsel is taken to be correct in that eventuality the court would be debarred from looking into the statements of the petitioner deepak kaushal and parvesh gujral because the same were recorded after the conspiracy was over. in that eventuality the case of the respondent would have no legs to stand upon. this court is thus in perfect agreement with the submissions made by the learned counsel for the petitioner that in view of the alleged conspiracy by the petitioners the documents which are relevant and material in case of one petitioner would be held to be relevant and material in case of other petitioners. in fact the detaining authority held also the same view inasmuch as the documents which were relevant and material in case of one petitioner were considered and treated as relevant and material for the other petitioners also and as such the documents relating to one petitioner were supplied to all the petitioners.22. the same view was taken by a learned single judge of this court as reported in aziz ahmed v. union of india and ors. : 1989(16)drj10 '....... in the present case, to say that the detention of the petitioner is not connected with the event of surendra shantilal shah is untenable for the simple reason that this event has been taken into consideration as a part of the conspiracy and in the list of documents supplied to the detenu certain documents pertaining to surendra shantilal shah have been supplied to the detenu. i am, thereforee, of the view that the failure of the sponsoring authority to place this document before the detaining authority does vitiate the subjective satisfaction and the non-supply of this document to the detenu on asking further vitiates the order of detention'.23. the grievance of the petitioners is that quite a good number of documents which were quite relevant and material were not placed by the sponsoring authority before the detaining authority. had the same been placed before the detaining authority they would have gone a long way in influencing the subjective satisfaction. learned counsel for the petitioners, in view of the above, have contended that non-consideration in the present case of the two telegrams dated 29th january, 1997 (annexures 'd' and 'd-i') have vitiated the subjective satisfaction of the detaining authority as according to the learned counsel the said telegrams were very much relevant and material and would have influenced the subjective satisfaction of the detaining authority one way or the other inasmuch as the wives of the petitioners expressed their apprehension and concern for the safety of the petitioners i.e. deepak kaushal and parvesh gujral, through the said telegrams. according to them they apprehended that they would be involved in false cases and would be made to make incriminating statements during their illegal custody. they requested the authorities to make enquiries and to inform them with regard to the whereabouts of their husbands. the said telegrams were sent to the commissioner of customs much prior to the passing of the impugned detention orders dated 26th may, 1997 (annexure 'a'). had the said telegrams been placed before the detaining authority it was just possible that he might have come to a different conclusion and not passed the detention order. addimittedly their apprehensions came true inasmuch as their husbands were detained under the act vide the impugned orders.24. learned standing counsel mr. s.k. aggarwal on the other hand has contended that the said telegrams are of no avail to the petitioners, inasmuch as the said telegrams were neither followed by a written or a signed representation. learned counsel in support of his argument has led me through an authority reported in district magistrate and anr. v. g. jothisankar (2) '....... a telegram by itself is not an authentic document. it is like an unsigned/anonymous communication. unless a telegram is confirmed by a subsequent signed application, representation or an affidavit, the contents of the telegram have no authenticity at all and the same cannot be taken into consideration for assessing the value of the other authentic documents on the record.'25. learned counsel has thus argued that since the said telegrams were not followed by any application or representation the detaining authority was justified in not taking into consideration the same at the time of the passing of the detention order. i find myself in perfect agreement with the learned counsel. the facts of the above cited authority are pari materia the facts of the present case. hence the observation of the hon'ble supreme court in the said case, pari passu would be applicable to the facts of the present case. as per the facts of the said case the telegram was sent after the arrest of the petitioner in the said case at 3 p.m. on 25th november, 1991. the telegram was sent late in the evening (vide affidavit of district magistrate). in the present case petitioners parvesh gujral and deepak kaushal were arrested on 28th january, 1997. admittedly the telegrams were sent on 29th january, 1997 to pre-empt any move on the part of the authorities to take any action against them (vide para 10(a) of the affidavit filed by mr. nishith goyal, assistant commissioner legal).26. learned counsel have then contended that the detaining authority considered the retractions/statements dated january 29, 1997 made before the learned magistrate by the petitioners parvesh gujral and deepak kaushal. thus they were under no obligation to consider the contents of the said two telegrams inasmuch as the contents of the said two telegrams and the two retractions/ statements are identical and the same. hence no prejudice was caused to the petitioners by the non-consideration of the said telegrams.27. petitioners parvesh gujral and deepak kaushal retracted their statements before the learned a.c.m.m. on 29th january, 1997. the petitioners have stated therein that they were subjected to prolonged torture, coercion and were made to subscribe to totally involuntary and untrue statements. they were made to falsely implicate themselves and other petitioners. the theme of the two telegrams is also the same. the wives of the two petitioners have given vent to their apprehension that their husbands would be falsely implicated. admittedly the aforementioned retracted statements and other documents relating to the search of their houses were taken into consideration at the time of passing of the detention order. hence no prejudice was caused to the petitioners. in any case no such thing was shown by the petitioners. the above view was given vent to by the hon'ble supreme court in the case as reported in smt. kusum chandrakant khaushe v. l. hmlingliana and ors.(3). : 1993crilj185 . according to the facts of the said case neither the suspension order nor the retracted statements made by the detenu were placed before the detaining authority. the hon'ble court opined that non consideration of the same would not affect the detention order passed by the detaining authority as no prejudice was shown to have been caused to the detenu.28. to the same effect are the observations of the hon'ble supreme court as reported in union of india and ors. v. mohammed ahmed ibrahim and ors.(4) : 1992crilj859 .29. learned counsel for the petitioners have then contended that the representation dated april 9, 1997 which was made by one of the petitioners namely shri bhagwant singh from jail, addressed to the additional chief metropolitan magistrate, new delhi, (vide annexure 'c'), where through he gave vent to his grievances in regard to his involvement in a false case, was not placed before the detaining authority as a corollary whereof it was not considered at the time of the passing of the detention order. had the same been taken into consideration, it was bound to influence the subjective satisfaction of the detaining authority one way or the other.30. learned standing counsel for the government of india and for national capital territory of delhi, on the other hand, have contended that the same could not be considered as the learned acmm never informed the authorities with regard to the same. no notice was ever served on the special public prosecutor for customs. hence the same was not taken into consideration [vide para 10(b) of the affidavit sworn by mr. nishith goyal, assistant commissioner (legal), igi airport]. it has been further contended that a perusal of the said letter addressed to the learned acmm reveals that it has not been properly captioned inasmuch as neither the case number nor any other particulars have been mentioned therein so as to link the same with any case. learned acmm also did not pass any order on the same.31. furthermore, according to the learned counsel no prejudice was caused to the petitioner on account of the non consideration of the same as his representation dated march 4, 1997 to the commissioner of customs was taken into consideration at the time of passing of the order of detention.32. i am sorry i am unable to agree with the learned standing counsel. through the representation dated march 4, 1997 an effort was made by the petitioner to show contradictions and inconsistencies in the prosecution case. the petitioner bhagwant singh has alleged through the said representation a conspiracy on the part of the customs officers to involve the petitioner with a view to claiming an award. the petitioner through the present representation wants to point out that the complaint against him is without any substance and is false and frivolous. it has been made with a view to falsely implicating him in the case. he has got absolutely no connection whatsoever with the alleged smuggling activities. thus the two representations can by no stretch of imagination be said to be identical and one and the same so that it can be said that by the consideration of the one it was not necessary to consider the other.33. admittedly the learned acmm on receipt of the said representation ordered the same to be placed on the file of the court. thus the said representation was very much on the judicial file. a large number of documents were picked up from the said file for the consideration of the detaining authority at the time of the passing of the impugned detention order. j thus feel that the same should have been placed before the detaining authority for its consideration. the above excuse that since no notice was given by the learned acmm, hence it could not have been considered, is nothing but a lame excuse.34. a matter very much akin to the matter in hand came up before a division bench of this court as reported in andrew simon king v. union of india and ors.,(5) 1988(1) d l 50 (db), wherein the division bench while relying upon the observations of the hon'ble supreme court in union of india v. manohar lal narang(6), : 1987(30)elt37(sc) observed as under: 'while negativing the arguments, the supreme court has observed that it is the duty of the authority concerned to collect the relevant material and place it before the detaining authority. in that case, inter alia, the plea of the respondents was that the government had no knowledge about an order passed by the court. however, the law enunciated is applicable in the present case to the extent that in a case where the petitioner has retracted the statement made before a customs officer and that retraction has been duly forwarded by the jail superintendent to the court concerned where the remand proceedings are going on and bail applications are being heard, it is not open to the sponsoring authority to take the plea that it was unaware of the retraction statement, which was on the record of the court case. it was the responsibility of the counsel and the officers of the directorate of revenue intelligence who were, it is clear from the record, inspecting the file from time to time for obtaining copies of the orders and other documents to take note of the retraction statement and to place the same before the detaining authority'.35. the next point raised by the learned counsel for the petitioner is that shri harmohinder singh also made a representation dated april 20, 1997. the same was never placed before the detaining authority though it was a very important and material document. had the same been placed before the detaining authority, it would have influenced the mind of the detaining authority in one way or the other. consequently, the non-consideration of the same vitiated the subjective satisfaction of the detaining authority. shri nishith goyal who has sworn an affidavit for and on behalf of respondent no. 3 while dealing with the said document has got this to say on this point that the representation dated april 20, 1997 addressed to the commissioner (customs) was received in the concerned branch after passing of the detention order. as such the same could not be placed before the detaining authority. he further goes on to state that the said facts contained in the said representation were already in the notice of the detaining authority as the same found a mention in the document which was considered by the detaining authority. curiously enough, the said affidavit is conspicuously silent on the point as to when the said representation was received in the concerned branch. to my mind, it is not sufficient enough to state that the said representation was received after the passing of the detention order. the authorities, i feel, were under an obligation to explain the delay of each and every day since it related to the liberty of a citizen. they must have given the dates as to how the said representation was dealt with at different levels on the said dates and when was it received in the concerned branch.36. admittedly, the said representation was sent on april 20, 1997. the impugned detention order was passed on may 26, 1997. thus, there were 36 days at the disposal of the authorities to place the said representation before the detaining authority. the perfunctory manner in which shri nishith goyal i.e. the officer concerned who filed an affidavit, has dealt with the said matter hardly commends itself to the court.37. the photo copy of the original representation which is in hindi has been placed on this file of this court. a close scrutiny of the same reveals that it was delivered in the office of the commissioner (customs), igi airport on april 21, 1997. it thereafter passed through different hands. ultimately the last endorsement on the same reveals that it was delivered to the concerned authority on may 23, 1997. however, the learned standing counsel has contended that the said date is may 28, 1997. i feel that the said date is may 23, 1997, however, an effort was made to change '3' into '8'. the said interpolation is visible even to a purblind and i feel that is why there is no mention of any date in the affidavit filed by respondent no. 3. the authorities have simply contented themselves by stating that it was received in the office after the passing of the detention order dated may 26, 1997.38. learned standing counsel, mr. aggarwal has thus contended that assuming arguendo, the said representation was not considered, even then it would not made any difference inasmuch as the detaining authority very much considered the earlier representation for and on behalf of shri harmohinder singh dated november 4, 1996. the contention of the learned counsel does not hold any water. i have gone through the representation dated november 4, 1996. the two representations are altogether different from one another. petitioner in his representation dated november 4, 1996 has tried to bring to the notice of the authorities, that despite the fact that he was taken from his house on november 2, 1996 at 6.00 a.m. in the morning, yet he was not produced before the court. he thus further goes on to state that he is a heart patient, yet he was tortured in different ways. he was beaten and compelled to write down something to suit the authorities. whereas the representation dated april 20, 1997 deals with his alleged false involvement. through the said representation the petitioner has tried to challenge his involvement on the basis of the statement of the co-detenus i.e. abhay tuli, deepak kaushal and parvesh kumar gujral. it further goes on to state that he and his son bhagwant singh have been falsely implicated. thus, this court is of the view that the non-consideration of the said representation dated april 20, 1997 has vitiated the subjective satisfaction of the detaining authority. had the said representation been placed before the detaining authority it is possible, that it would have swayed the subjective satisfaction of the detaining authority one way or the other. i am supported in my above view by the observations of the hon'ble supreme court of india as reported in ashadevi v. k. shivraj and anr.(7), air 1979 sc 447 '. ..... it is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order .....'.39. this brings, us to another representation dated june 23, 1997 made by petitioner harmohinder singh. the authorities, the learned counsel for the petitioners have contended, took as many as 39 days to dispose of the said representation (as per the affidavit filed by mr. m.s. negi, under secretary, ministry of finance). it is a well settled principle of law that the authorities are under an obligation to dispose of a particular representation as soon as it is received, as expeditiously as possible, with a sense of urgency and promptitude. the authorities while dealing with the said representation have got this to say through mr. m.s. negi (vide para 3 of his affidavit) that the above said representation was received in cofeposa unit on june 24, 1997. the same was sent to the sponsoring authority on june 25, 1997 for comments. sponsoring authority submitted its comments on july 3/4, 1997 vide their letter dated july 3, 1997 which was delivered in the cofeposa unit on july 7, 1997. the comments were not found satisfactory. hence, further comments were called for on july 10, 1997. further comments were sent by the sponsoring authority through letter dated july 25, 1997 which was delivered in the cofeposa unit on the same date. the comments were still not clear and adequate on certain points. accordingly, a fax message was sent on july 30, 1997 to the sponsoring authority for further comments. the sponsoring authority furnished the comments vide fax dated july 30, 1997. secretary (revenue), thereafter rejected the representation after considering the same on july 31, 1997. the case file was received back in the cofeposa unit on 1st august, 1997.40. it is manifest from the above that the authorities in the instant case dealt with the representation which related to the liberty of a citizen in a perfunctory manner. no importance was shown to it and it was dealt with like an ordinary letter. sponsoring authority took as many as 9 days initially to submit the comments on the representation which was sent to them on june 25, 1997 inasmuch as they submitted the comments on july 3/4, 1997. the said comments were not found satisfactory. hence again the comments were called for on july 10, 1997. six precious days were lost in between. this time the sponsoring authority submitted the comments after 15 days i.e. on july 25, 1997. the said comments again were not satisfactory. consequently, a fax message was sent for comments on july 30, 1997. thus five days were wasted.41. i am tempted here to cite a few lines from article 22 of the constitution of india which deals with liberty of a citizen. it reads as under :'22. protection against arrest and detention in certain cases. --(1) no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.(2) ........(3).........(4).........(5) when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order'.42. thus article 22(5) confers upon the person detained a right to make a representation. to enable him to make a representation, a duty has been cast on the shoulders of the authorities who detained that person to communicate to such person the grounds on which the order has been made. it can thus be safely inferred from above that the underlying idea under article 22(5) of the constitution of india, referred to above, is to give an opportunity to the detained person to make a representation at the earliest possible opportunity. the said representation would be rendered nugatory in case the authorities after having received the same did not consider and dispose of the same with promptitude and a sense of urgency, keeping in view the fact that the liberty of a citizen is involved therein. liberty which is the cool the of our eyes and breath of our being. no meaningful existence is possible in the absence of liberty. it is the birth right of a citizen. god who gave us life, gave liberty also. thus no person can be deprived of it except in accordance with law.43. this is all the more so keeping in view the fact that a man who is detained under a preventive law, which the cofeposa is, has no remedy to approach a court of law under the ordinary provisions of law which are available to other citizens.44. the question with regard to the disposal of a representation carne up before different high courts and the hon'ble supreme court, time and again, and it is a subject-matter of different decisions rendered by the hon'ble supreme court and different high courts. the above view was given vent to by the hon'ble supreme court in mahesh kumar chauhan bante v. union of india and ors.(8) 1990(2) cri472, where their lordships cited with approval the observations of hon'ble mr. justice shelat as reported in khairul haque v. state of west bengal(9), (1969) 2 scwr 529, 'the fact that article 22(5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such representation must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning.'45. a division bench of the hon'ble supreme court while animadverting on the delay caused by the lethargic and apathetic attitude of state functionaries observed, in a case reported as kundan bhai dula bhai shaikh v. distt. magistrate, ahmedabad and ors. rameshchandra somchand shah v. distt. magistrate, surat and ors.,(10) 1996 (2) s.c.c 532 ' in both these cases, we have to read the old story of lethargy of the state government. in the first case, the representation dated 23-8-1995 was received in the office of the chief minister on 25-8-1995 and was ultimately disposed of on 12-9-1995 and the order was communicated to the detenu on 14-9-1995. during this period, the file was being processed in the government departments. it is pointed out in the counter affidavit that the representation, on being received in the office of the chief minister on 25-8-1995 was sent to the secretary, food and civil supplies department, where it was received on 29-8-1995. the internal movement of the file thus took four days. the representation was then sent to the special branch where it was received on 1-9-1995. the representation was taken up by the special branch on 6-9-1995. the inactivity in taking up the representation for six days is explained by showing in the counter-affidavit that there were about 40 to 50 representations pending for disposal and they were taken up chronologically ......'. their lordships expressed dis-approval and displeasure the way the representation was dealt with in the following words: 'this indicates that the representation was placed in the queue and was not given precedence over other representations which are not said, in the counter-affidavit, to relate to detention orders. even if they related to preventive detention, then such of those which were ready for disposal and in respect of which comments from various departments had been gathered and other formalities completed, should have been disposed of immediately and should not have been kept pending on the ground of 'chronological disposal' by saying that representations filed earlier by other detenus were still to be disposed of. the chronology must be broken as soon as a representation is ready for disposal.'46. learned counsel for the petitioners have then brought to the notice of this court that the replies dated may 19, 1997 to the show cause notice dated april 28, 1997 by harmohinder singh and bhagwant singh were not placed before the detaining authority. this fact also vitiated the subject satisfaction of the detaining authority and thus the detention order dated may 26, 1997 and the declaration dated june 24, 1997 are liable to be quashed.47. let us see as to how far the authorities are responsible for non-consideration of the same. there is no dispute with regard to the fact that the same were not placed before the detaining authority at the time of the passing of the detention order. shri nishit goyal who has filed an affidavit for and on behalf of the customs authorities has got this to say on this point. according to him, the said replies were deliberately addressed to the commissioner of customs on may 19, 1997 instead to the deputy commissioner of customs, igi airport, new delhi. the same were received in the office of the additional commissioner of customs, igi airport, on may 21, 1997. may 22, may 24 and may 25, 1997 were closed days. thus in this way the replies were delivered in the cofeposa unit on may 27, 1997. hence the same could not be placed before the detaining authority [vide para 10(c) of the affidavit].48. it is manifest from above that the petitioners addressed their replies to the commissioner of customs deliberately with an ulterior motive to cause delay in the disposal of the representation by the authorities. there was a specific mention in the show cause notice that the reply be submitted to the deputy commissioner of customs, igi airport. thus they have got no right to address it to the commissioner of customs. it is a well settled principle of law that a person who is responsible for bringing about a particular situation cannot be permitted to take advantage of the same in the instant case the petitioners themselves are responsible for causing the delay. thereforee, they now cannot turn around and take the advantage of the same by stating that the non-submission of the replies before the detaining authority be construed for their benefit and the detention orders and the declaration orders be quashed on the said ground. i thus am of the view that the authorities have sufficiently explained in the present case the reasons for the non-placement of the replies to the show cause notice before the detaining authority. hence the petitioners cannot blame none but themselves for the impasse, they found themselves in. they have to drink as they have brewed.49. the next point raised for and on behalf of the petitioners is that the authorities intentionally and deliberately did not place the replies dated may 15, 1997 by the petitioners deepak kaushal and parvesh kumar gujral to the show cause notice dated april 28, 1997 before the detaining authority. according to the learned counsel the same were not taken into consideration. had they been taken into consideration it is just possible the detaining authority would not have passed the impugned orders of detention.50. learned standing counsel in reply to the said argument have led this court through the affidavit of shri nishit goyal on this point. according to the said affidavit [vide para 10(c)], the replies to the show cause notice from deepak kaushal and parvesh kumar gujral were received in the office of the additional commissioner of customs on may 19, 1997 and the same were delivered in the cofeposa unit after the issue of the detention orders dated may 26, 1997. may 22, may 24 and may 25, 1997 were closed days. hence the same could not be placed before the detaining authority. in the above circumstances i feel that the authorities have sufficient reasons for not placing the replies before the detaining authority.51. in the circumstances stated above the petitioners are entitled to succeed. the petitions are allowed. the detention orders dated may 26, 1997 and the declarations dated june 24, 1997 are hereby quashed. the petitioners be set at liberty forthwith in case they are not required to be detained in any other case and under any other order.