JUDGMENT

The detenue, namely, Mrs. Julia Jose Mavely, who is now lodged in the Central Prison, Thiruvananthapuram, has filed this petition under Art. 32 of the Constitution of India challenging the validity of the order of detention passed by the second respondent, the State of Kerala in exercise of powers conferred by Ss. 3(1)(i) and 3(i)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act) directing the petitioner/detenue to be detained and kept in custody in the above said prison with a view to preventing the detenue from smuggling goods and engaging in transporting or concealing or keeping smuggled goods. The period of detention has been fixed for one year as per the order dated 16-1-1991 with effect from 27-10-90. As the facts of the case which necessitated the detaining authority to pass this detention order are well set out in the grounds of detention, we think that it is not necessary for us to reiterate the same. Challenging the validity of the order, the learned counsel appearing on behalf of the petitioner/detenue pressed only one contention that there has been undue and unexplained delay in disposing the representation made by the detenue to the first respondent. The said contention as set out under Ground No. VIII in the writ petition reads as follows:-

"It is submitted that there is considerable delay in disposal of representation by the Central Government. The representation of the petitioner sent on 23-11-90 (said to be dated 27-11-1990) was disposed of on 3-1-1991 after a delay of 1 month and 6 days. It is submitted that the delay in disposal of representation is in violation of the constitutional safeguard provided under Art. 22(5) of the Constitution and therefore the continued detention of the petitioner is bad in law."

2. This ground is met by the first respondent in his counter stating as follows:

"As regards Ground VIII, it is submitted that the representation dated 27-11-90 from the detenue was received in the COFEPOSA Unit only on 4-12-90. That very day it was placed before the Joint Secretary COFEPOSA who directed that parawise comments may be called for from the sponsoring authority. A letter was issued to the sponsoring authority that very day asking for the comments. The comments were received on 1-1-91. The concerned officer submitted the case file to JS (COFEPOSA) on 3-1-91 who considered and rejected the same on that day. The detenue was informed of rejection of her representation by a memo issued on 3-1-91 itself."

3. From a reading of the above statement made in the counter of the first respondent, it is clear that the Sponsoring Authority from whom the comments were called for had delayed in spending the comments up to l-1-91 despite the fact that the comments were called for from him on 4-12-90. Barring that, no explanation is forthcoming as to why the delay had occasioned at the hands of the Sponsoring Authority to send the parawise remarks or the comments to the first respondent. The learned senior counsel appearing on behalf of the first respondent unsuccessfully tries to explain by stating that since the Sponsoring Authority was at a far away place i.e. Ernakulam, the delay had occasioned due to postal transmission and that if the postal delay is excluded there is actually no delay rendering the detention order invalid. But at the same time, he unhesitatingly states that on 4-12-90 a letter calling for the comments was sent to the Sponsoring Authority by speed post. In our considered opinion, the above explanation now offered cannot be accepted for more than one reason. First, the first respondent has not preferred such explanation in his counter. Secondly, even accepting this present explanation, the delay cannot be said to have been explained, because the postal transmission, according to the learned counsel was by speed post. Thirdly, no supporting affidavit is filed by the Sponsoring Authority who alone could e