IMPORTANT POINT
Delay if considering representation of detenu - effect.

JUDGMENT

Chelameswar, J.-Leave granted.

2. Aggrieved by the Judgment in Criminal Writ Petition No.3253 of 2011 of the Bombay High Court, the unsuccessful petitioner therein carried the matter to this Court.

3. The said writ petition was filed challenging the order of detention dated 20-07-2011 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (henceforth referred to as 'the Act'), by the 1st respondent. By the said order it was directed that the son of the appellant named Khalil Ahmed Rashid Ahmed Kapadia (hereinafter referred to as 'the detenu') be detained under the provisions of the Act.

4. Aggrieved by the said detention order, the appellant herein made a representation to the 1st respondent praying that the detention order be revoked, for various reasons mentioned in the representation. The said representation came to be rejected by the 1st respondent by an order dated 07-09-2011. Subsequently, the appellant filed the abovementioned writ petition on 18-10-2011 challenging the order of detention. By the Judgment under challenge the said writ petition was dismissed.

5. The facts, which lead to the passing of the detention order, are as follows:

6. A consignment of goods covered by eight shipping bills, all dated 26- 10-2010, being exported by a firm called M/s.Noble Impex, was detained by the Customs authorities. On examination of the consignment and the relevant documents, the authorities opined that there was a mis-declaration with respect to the quality, quantity and valuation of the goods sought to be exported. It appears that the said goods were being exported under a scheme known as “Drawback Scheme”. According to the Customs Department, the goods were over-valued in order to claim the benefit of higher export “drawback”. It is the case of the Customs Department that one Syed Naimuddin is the proprietor of the abovementioned M/s. Noble Impex. Syed Naimuddin and the detenu are said to be cousins. It is the further case of the Customs Department that the abovementioned cousins, with the aid and abetment of one Ashok Dhakane and Bala Jadhav, who are the partner and employee respectively of M/s. Khakane & Co., a firm carrying on business as a clearing house agent, attempted to make the abovementioned export. Therefore, the Customs authorities moved the 1st respondent for the issuance of the detention order against the abovementioned four persons.

7. The 1st respondent, on a consideration of the material placed before her, issued the detention order.

8. The detention order is challenged on various grounds before the High Court; principally, that all the material relevant for enabling the Detaining Authority (1st respondent) to record the satisfaction that it is necessary to preventively detain the detenu is not placed before the authority; secondly, that the detaining authority mechanically passed the order of detention without carefully scrutinising the material placed before her; and lastly, the detention is vitiated by the fact that the representation of the petitioner dated 06-08-2011 invoking Article 22(5) of the Constitution of India was rejected only on 07-09-2011 after an inordinate delay of one month.

9. Elaborate submissions were made before the High Court on the first two grounds mentioned above, which did not find favour with the High Court.

19. Coming to the last ground, i.e., delay in disposing of the representation made by the appellant, however, the High Court did not examine the same in the right perspective. The relevant portion of the Judgment of the High Court in that regard reads as follows:

“He further submitted that the representation of the detenu was received on 06-08-2011 and the Detaining Authority considered the representation after taking into account the comments of the Sponsoring Authority and the representation was rejected on 07-09-2011.”

20. The learned counsel for the appellant Sri Nikhil Jain once again made elab