Important Points
1. If the Representation had not been addressed to the Central Government even though indicated in the grounds of detention then it cannot be said that any Representation made by the detenu to the Advisory Board ought to have been considered by the Central Government.
2. While computing five days time for serving grounds of detention on the detenue the date of commencement of detention has to be excluded.
3. Delay in considering the representation of the detenue in all cases ipso facto would not be sufficient to render the detention void; what can be held to be unexplained delay in disposing of representation would depend upon facts and circumstances of each case.

Headnote:(i) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3(1) and (3)-Detention order-Validity of - Order of detention served on 25.3.1994-Grounds of detention served on 30.3.1994-Contention that day on which order of detention was served could not be excluded for computing period of 5 days u/s 3(3) and as such delay of one day vitiated detention order-Untenable-First day has to be excluded while computing period of five days-No infraction of sub-section (3). (Para 3)
       (ii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Sections 3 and 11 - Constitution of India- Article 22(5)-Detention order-Validity of-Representation by detenue addressed to Advisory Board -Whether non consideration of representation by Central Government infringes constitutional rights of detenue? Held, No-If representation had not been addressed to Central Government even though indicated in grounds of detention it cannot be said that any representation made by detenue to Advisory Board ought to have been considered by Central Government. (Para 4)
       (iii) Constitution of India-Article 22(5)-Preventive detention-COFEPOSA, Sections 3 and 11-Representation by detenue addressed to Advisory Board-Non-consideration of representation by Central Government, whether amounts to breach of Article 22(5) -Held, No. (Para 4)
       (iv) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Section 3-Detention order-Delay in Consideration-Delay in consideration in all cases ipso facto would be sufficient to render detention void.
       Held : So far as the third ground of attack is concerned, a Representation that was made to the Central Government on 22.6.94 and was disposed of on 12th July, 1995, it cannot be said that there has been inordinate delay which can be said to vitiate the detention of the detenu. There is no inflexible Rule that delay in considering the Representation in all cases ipso facto would be sufficient to render the detention void. Further what can be held to be an unexplained delay in disposing of the Representation would depend upon the facts and circumstances of each case. The right to make a Representation is undoubtedly a constitutional right of the detenu and such a Representation should be considered as expeditiously as possible. But what is reasonable expedition will depend upon the facts of each case. Judged from the aforesaid stand point and examining the time taken by the Central Government in disposing of the Representation of the detenu and the grounds advanced by the Central Government in its counter-affidavit filed in the High Court we are unable to hold that there has been an unusual delay in disposing of the Representation. Therefore, the High Court was fully justified in rejecting the said contention urged on behalf of the appellant. (Para 5)
       (v) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974-Detention order-Time limit for serving ground of detention-Serving of grounds of detention on very same day when order of detention was served on detenue-No-Expression ‘as soon as may be’ cannot be read in isolation from phrase ‘but ordinarily not later than five days’.
       Held : Under Section 3(3) of the Act the legislators themselves have fixed the time limit within which the grounds of detention could be served on the detenu. The expression ‘as soon as may be’ cannot be read in isolation from the phrase ‘but ordinarily not later than 5 days’. Reading conjointly the aforesaid expressions it cannot be said that non-service of grounds of detention on the very same day when the order of detention was served on the detenu even though the grounds might have been prepared constitutes infraction of sub-section (3) of Section 3 of the Act. There may be a variety of reasons why a Detaining Authority would not be able to serve the grounds of detention on the same day even though the same may be ready. (Para 6)

Judgment

Pattanaik, J.-The appellant challenges the legality of his order of detention passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA) as well as the order of the Division Bench of Delhi High Court dismissing the appellant’s Writ Petition filed for issuance of a Writ of Habeas Corpus. The order of detention was passed on 25.3.1994 and the period of detention was for a period of one year which is long over but the detenu pursues his right of challenging the order of detention as a proceeding under Smugglers and Foreign Exchange Manipulators Act (SAFEMA) has been initiated by the Appropriate Authority. The appellant was apprehended at Indira Gandhi International Airport, New Delhi while he was leaving for Kualalumpur/Singapore and on search US dollars amounting to 1.39 lakhs in Indian currency were recovered. Further his brother who was also going with him, from his person, foreign currency equivalent to 5.34 lakhs of rupees was recovered. The detaining authority being of the opinion that the detention of the appellant is necessary with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange, issued the order of detention on 25.3.94 and was served on the detenu on the same day. But the grounds of detention was served on the appellant on 30th March, 1994. In accordance with the provisions of the Act his case was forwarded to the Advisory Board and the Advisory Board on consideration of the materials placed before it, gave its opinion that there is sufficient cause for the detention of the detenu. The appropriate government thereafter confirmed the detention and after expiry of period of one year the detenu has been released but the detenu/appellant filed a Habeas Corpus Petition in the High Court challenging the legality of the order of detention. By way of an additional application the detenu also urged additional grounds and the High Court ultimately by the impugned judgment dated 15.2.1995 dismissed the Writ Petition filed by the appellant. The appellant was released on 24.3.95 after expiry of the period of one year of detention. Though the Special Leave Petition was filed in this Court after the expiry of the period of limitation but the Court condoned the delay and granted leave, and thus, the present Appeal.

2. From the impugned judgment of the High Court it transpires that the appellant raised three contentions all of which were answered against the appellant. It was contended that the grounds of detention having been served on the appellant on 30.3.94 though the order of detention was served on 25.3.94, there has been an infraction of sub-section (3) of Section 3 of the Act and, therefore, the detention got vitiated. Secondly, it was urged that though the representation was made to the Advisory Board and it had not been indicated that the Central Government should also consider the same, yet the Central Government was duty bound to consider the said Representation of the appellant addressed to the Advisory Board and such non-consideration infringes the right of the appellant under Article 22(5) of the Constitution and the order of detention is vitiated on that score. Thirdly, it was urged that the Representation that was addressed to the Central Government on 20th June, 94 was disposed of on 6.5.95 and thus there has been considerable delay in disposing of the Representation and such delay in disposal vitiates the order of detention. In addition to the aforesaid three grounds urged before the High Court which were reiterated by the learned counsel for the appellant in this Court, two other grounds were also urged, namely, the grounds of detention even though had been prepared on the very date the order of detention was made yet the same not having been served for a period of 5 days there has been an infraction of sub-section (3) of Section 3 of the Act. In as much as the Act postu

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1999 Supreme(SC) 517

Cases Referred (2)