Judgment

D.A. DESAI :- This petition under Article 32 of the Constitution for a writ of habeas corpus is filed by Smt. Pushpa describing herself as the wife of Shri Pala Singh, son of Shri Sarwan who has been detained by an order made by the third respondent, Chief Secretary, Delhi Administration, on 27th January 1979 under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPSA for short).

2. Validity of the detention of the detenu has been questioned inter alia on the following grounds:

1. Two representations dated 23rd February and 27th March 1979 made by the detenu have been dealt with and rejected by Chief Secretary who was not competent to reject the same as the representations, if any, by the detenu have to be dealt with and decided by the appropriate Government which in the instant case would imply the Administrator of the Union Territory of Delhi, viz., Ltd. Governor.

2. The order confirming the detention of the detenu after obtaining the opinion of the Advisory Board is invalid as the same has been confirmed beyond the prescribed period of three months, the delay being of three days.

3. The Constitutional right of the detenu to make a representation was seriously undermined because of the inordinate delay in complying with the request of the detenu for copies of the documents from 9th February to 9th March. 1979.

4. Rejection of the representation dated 23rd February 1979 after an unreasonable delay is violative of Article 22 of the Constitution and, therefore, the order of detention is vitiated.

5. Presumably the second representation dated 27th March, 1979 made by the detenu was not placed before the Advisory Board with the comments of the State Government and any action taken pursuant to the opinion of the Advisory Board would, therefore, be bad in law.

6. An incorrect belief entertained by the detaining authority that the detenu was a Pakistani national, unwarranted in the facts and circumstances of the case, has resulted in the detaining authoritys decision being influenced by an extraneous irrelevant and incorrect consideration which would vitiate the order of detention.

3. Before dealing with the contentions seriatim a few relevant dates may be noticed.

4. The detenu was arrested on 31st December 1978 and was produced before the Magistrate on 2nd January, 1979 when he was remanded to custody. While he was in jail custody, a detention order dated 27th January, 1979 made by the third respondent, Chief Secretary to Delhi Administration was served upon him. The grounds of detention signed by the detaining authority were also served upon him on 30th January, 1979. Learned Advocate Shri Harjinder Singh, who also appeared as an instructing advocate at the hearing of this petition, addressed a letter dated 9th February, 1979 on behalf of the detenu to the detaining authority requesting the detaining authority to furnish copies of documents set out in the letter. This request for copies appears not to have been complied with till 23rd February, 1979 when learned advocate Shri Harjinder Singh submitted a representation as contemplated by cl. (5) of Article 22 of the Constitution on behalf of the detenu. In the last paragraph of this representation it has been stated that what is stated in the communication be treated as representation on behalf of the detenu. In this representation a grievance has been made that as the copies of the relevant documents have till then not been supplied to the detenu, an incomplete representation is being made. The detaining authority supplied the copies on 7th March, 1979. On 17th March, 1979 the detenu made an application complaining that the copies were illegible and copies of some documents were still not supplied though a long time had elapsed whereupon a further set of copies was supplied to the detenu on 22nd March, 1979. On a request from the detenu copies of some more documents were supplied to him on 26-3-1979. The detenu thereupon ma