IMPORTANT POINT
Consideration of detenues representation valid; delay in forwarding representation unexplained - effect.

Judgment :-

Smt. Ranjana Prakash Desai, J.

1. Leave granted.

2. In this appeal, by special leave, the appellant has challenged judgment and order dated 23/01/2013 passed by the Division Bench of the Bombay High Court dismissing the writ petition filed by him challenging order of detention dated 16/4/2012 issued by the detaining authority i.e. the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department under the provisions of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, “the said Act”). The order of detention directed his detention with a view to preventing him in future from smuggling goods.

3. From the grounds of detention, it appears to be the case of detaining authority that on 12/8/2011, the appellant Abdul Nasar Adam Ismail (“detenu” for convenience) arrived from Dubai by Air India flight No.AI- 984. He was carrying one trolley hand bag. After he was cleared through green channel, he was stopped by the Assistant Commissioner of Customs on duty. When his personal search was conducted, it was noticed that he had concealed two packets in his undergarments near his groin area and two packets under the knee caps worn on calves. On removal of his pants, four plastic packets wrapped with cello tape, which were kept inside his cycling shorts and knee caps worn by him on his calves were recovered. Detailed examination of these four packets resulted in recovery of 3086 gms. of 22 kt. and 1004 gms. of 18 kt. gold chains. The total seized gold was valued at Rs.95,35,932/-. The detenu’s statements under Section 108 of the Customs Act, 1962 were recorded. On perusal of the proposal and accompanying documents sent by the sponsoring authority, the detaining authority passed the aforementioned detention order.

4. We have heard, at some length, Mr. K.K. Mani, learned counsel appearing for the detenu. He assailed the detention order on two counts. Firstly, he contended that the detenu through his lawyer submitted his representation dated 23/6/2012 to the jail authority for forwarding it to the State Government. The said representation was rejected by the State Government and the rejection was communicated to the detenu by the Under Secretary to the Government of Maharashtra vide letter dated 24/7/2012. Counsel submitted that thus there is an inordinate delay in considering the representation of the detenu which has violated his right under Article 22(5) of the Constitution of India. Counsel submitted that there is delay at every stage, which indicates the casual approach of the State Government. So far as unexplained delay in transmitting the representation to the State Government by the jail authority is concerned, he relied on the judgments of this Court in Rattan Singh etc. v. State of Punjab and others [(1981) 4 SCC 481], Aslam Ahmed Zahire Ahmed Shaik v. Union of India and others [(1989) 3 SCC 277] and B. Alamelu v. State of Tamil Nadu and others [(1995) 1 SCC 306]. Counsel submitted that in a long line of judgments, remissness or casual approach shown by the authorities in considering the representation of the detenu is severely criticized by this Court because it breaches the mandate of Article 22(5) of the Constitution of India. In such a situation, the order of detention is liable to be set aside. In this connection, he relied on judgments of this Court in Smt. Khatoon Begum etc. etc. v. Union of India and others [(1981) 2 SCC 480], Harish Pahwa v. State of U.P. & Ors. [(1981) 2 SCC 710], K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and others [(1991) 1 SCC 476], Kundanbhai Dulabhai Shaikh etc. v. Distt. Magistrate, Ahmedabad and others etc. [(1996) 3 SCC 194], Venmathi Selvam (Mrs.) v. State of Tamil Nadu and another [1998 (5) SCC 510], Rajammal v. State of Tamil Nadu and another [(1999) 1 SCC 417], Harshala Santosh Patil v. State of Maharashtra and others [(2006) 12 SCC 211], Pebam Ningol Mikoi Devi v. State of Manipur & O