IMPORTANT POINT
Release of detenue on bail in the ground case with conditions subsequent to the passing of detention order cannot be said to be a vital fact committed from being consideration vitiating detention order.

JUDGMENT

K. Jayachandra Reddy, J. - Leave granted in S.L.P. (Crl.) No. 1484/93.

In both these matters, Noor Salman Makani who is detained under Section 3 of the COFEPOSA Act, 1974 ('Act' for short) is the petitioner. The petitioner is a citizen of India. On 26.8.1992 he was travelling from Calcutta to Hongkong by Thai International Airways Flight No. TC-314. After completing the immigration formalities, he approached the Customs counter for clearance. The Customs authorities opened his brief case and recovered huge quantities of foreign exchange of various countries, the value of which is estimated at Rs. 38,06,930/-. On 27.8.1992 he was produced under arrest before the C.J.M., Barasat and his application for bail was rejected. On 19.9.1992 an order of detention dated 18.9.1992 was served on him in the jail alongwith the grounds of detention. On 1.10.1992 a declaration under Section 9(1) of the Act was issued and the same was served on the detenu on 13.10.1992. On 15.10.1992 the petitioner made a representation to the Central Government against the declaration but the same was rejected. On 28.12.1992 the petitioner made a representation before the Advisory Board but that was also rejected. Thereafter he filed a writ of habeas corpus and a Division Bench of the Calcutta High Court dismissed the same. As against the said order the present S.L.P. in which leave is granted, has been filed. A separate Writ Petition (Crl.) No. 261/93 questioning the declaration under Section 9(1) of the Act has also been filed stating that certain new facts have come to light which invalidate the declaration. The detention order is questioned on the ground that there was delay in considering the representation and also on the ground that the detaining authority has not duly considered the circumstances that the detenu was already in jail and has simply made a bald statement in the grounds stating that "there is possibility of the detenu being released on bail" and the same shows that there is non application of mind.

2. From the records it appears that the representation of the detenu addressed to the Joint Secretary, COFEPOSA, New Delhi was forwarded by Dum Dum Central Jail authority under registered post on 15.10.1992 and it was received by the Ministry's Office on 22.10.1992 and it was forwarded to the Sponsoring Unit on 23.10.1992 who received it on 26.10.1992. After offering para wise comments the same was sent by speed post to the Ministry's Office on 29.10.1992 which was received by the Ministry's Office on 2.11.1992. The representation was put up before the Joint Secretary on 3.11.1992 and the same was rejected on 4.11.1992. The Finance Secretary recommended the rejection of the representation on 5.11.1992 and finally the Minister for Finance rejected the same on the same day and a memo dated 6.11.1992 was issued to the petitioner intimating him about the rejection.

3. Learned counsel appearing for the petitioner submits that the delay between 15.10.1992 and 2.11.1992 has not been satisfactorily explained and hence fatal being violative of Article 22(5) of the Constitution. It is also his submission that the delay of every day has to be explained as held by the courts. He relied on some of the judgments of this Court including Rama Dhondu. Borade v. V.K. Sara Commissioner of Police and others1. There is no doubt that in many cases this Court has reiterated that the right and obligation to make and to consider the representation at the earliest opportunity is a Constitutional imperative which cannot be curtailed or abridged but in considering whether there was undue and unexplained delay, the facts in each case have to

1. A.I.R. 1989 S.C. 1861.

be examined. In Rama Dhondu Borade's case this Court observed thus;

"True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which there presentation should be dealt with. The use of the words "as soon as may be" occurring in Art.