ORDER
Arijit Pasayat,C.J.
1. These two habeas corpus petitions involve identical facts and, therefore, are taken up for disposal together. Order of detention under Section 3(1) of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act,1974(in short, the Act)passed by the Lt. Governor of National Capital Territory of Delhi,(in short, Govt of NCT of Delhi)is under challenge in each of the petitions. The said mittimus orders were passed with a view of preventing the petitioner in each case (hereinafter referred as the ‘detenu’ by name)from smuggling any goods. The order of detention in each case is dated 25.5.2000.
Ground on which detention has been’ directed and background thereof are as follows:-
2. Detenu Bbagat Ram Bhola and detenu Ajay Bhola arrived at IGI Airport from Singapore via Bombay by Air India flight No.AI-III. After clearing immigration formalities, they collected their baggage from the conveyor belt and kept it one trolley. Two hand bags were kept in another trolley. While detenu Bhagat Ram Bhola was pushing the trolley with two handbags, his son the other detenu was pushing the other trolley on which zipper suitcases were placed and they walked through green channel. As both of them reached the exit gate of the customs arrival hall, both of them were intercepted by a Customs arrival hall, both of them were intercepted by a Customs Officer on the basis of prior specific information and they were asked whether they were carrying any dutiable goods or any electronic goods to which both of them replied in negative. They were served with notice under Section 102 of the Customs Act,1962 (in short Customs Act) informing that their baggage and person would be searched and if they desired such search would be conducted in the presence of a Magistrate or a Gazetted Officer of Customs. There was a denial by them. Their baggage were opened and examined and were found to contain large quantities of dutiable and/or electronic goods. As the detenu could not produce any evidence documentary or otherwise to support the legal import of electronic goods, they were seized by the Customs Officer under the provision of the Customs Act. In voluntary statement dated 13.2.2000 tendered under Section 108 of the Customs Act recovery and seizure of the goods was admitted. It was, inter alia, stated that B.R. Bhola was an ex employee of Indian Airlines and retired from the post of Catering Superintendent in April,1997, while the other detenu Ajay was working in Indian Airlines as Senior Accounts Assistant. Considering the fact the both of them had travelled to Singapore and Dubai on a large number of occasions, a belief was entertained that they were engaged in smuggling activities and with a view to preventing them from smuggling, the order of detention was passed.
3. It is the stand of the detenu that their representations were not dealt with promptitude and there is long and inordinate delay in disposal by both the detaining authority and the Central Government.It is pleaded that representation was made to the Central Govt on 14.6.2000 with specific request to forward it to the detaining authority also. The said representation was rejected by the detaining authority vide order dated 29.6.2000. Unfortunately, the representation which was to be forward to the detaining authority was so done only on 29.6.2000 and was rejected on the same very day. According to the petitioners, the admitted position being that representations were received by the Central Govt on 14.6.2000 delay in dispatch to the authority, clearly involves a long period of inaction thereby rendering detention invalid.
Strong reliance is placed on decisions of the Apex Court in Gracy v. State of Kerala and Amit Shad Khan vs Hmingliana & Ors .
Stand of the respondent,on the other hand, is that in normal cases representation is made to the detaining authority. Power of revocation of the Central Govt is an independent power as available under Section 11 of the Act. In the case at hand, detenu made representation to the Central Govt with a request that a copy be forwarded to the detaining authority.On consideration of the request for revocation of detention, the Central Govt. found no merit and rejected the same. The prayer contained in the representation was to the following effect:
“I request your honour to kindly revoke the detention order under Section 11 ibid or in the alternate, I may be supplied the above information and documents to enable me to make an effective and purposeful representation before the Hon’ble Advisory Board.”
In other words, the first prayer was for revocation and in case it was not possible, a further request was made to supply some information/documents in order to enable the detenu to make effective and purposeful representation before the Advisory Board. Representation was considered by the Central Government and was rejected vide order dated 26.6.2000. A copy of the representation was received by Home Department on 29.6.2000 and as noted above the same considered and rejected by the detaining authority on the same date. It is submitted that when the representation was forwarded to the Government as requested as requested by the detenu, it has to be seen as to whether there was delay in consideration of the representation by the said authority after receipt from the other department. Only if there is delay in disposal of representation after that date, the same becomes fatal and not otherwise. Reliance is placed on Sat v State of Punjab, 1982 SCC (1) 12 and Kamelshkumar Ishwardas Patel v. Union of India, .
5. Legal position with regard to issuance of writ of habeas corpus in preventive detention cases and the petitioners’ entitlement to relief in the light of the foregoing statements as noted above need to be considered carefully.The writ of habeas Corpus called by Blackstone as the great and efficacious writ in all manner of illegal confinement.It really represents another aspect of due process of law. As early as 1839 it was proclaimed by Lord denman that it has been for ages effectual to an extent never known in any other country. Lord Halsbury L.C. stated in Cox v. Hakes (1890) 15 AC 506 that the right to an instant determination as to the lawfulness of an existing imprisonment is the substantial right made available by this writ. Article 22 of the constitution confers four fundamental Right on every person, except in two cases mentioned in clause(3), as essential requirements and safeguards to be followed when it is necessary to deprive any person, for any cause whatsoever and for, however, brief a period of his personal liberty by placing hi under arrest or keeping him in detention.Those are (i) to be informed, as soon as may be, of grounds of such arrest;(ii)not to be denied the right to consult and to be defended by a legal practitioner of his choice;(iii) to be produced before the nearest Magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate (iv) not to be detained in custody beyond the said period of twenty four hours without the authority of a Magistrate Clauses(1)and(2) contain the guarantee of the four Fundamental Rights enumerated above, Clause(3) contains two exceptions and provides that the constitutional guarantees do not apply to (a) enemy aliens, and (b) persons arrested or detained under any law providing for preventive detention. Claises(4)and(7) are devoted to laying down certain fundamental principles as to preventive detention and guaranteeing certain Fundamental Rights To persons who are arrested under any law for preventive detention. The Fundamental Rights guaranteed by clauses (4) to (7) to persons detains under any law for preventive detention relate to the maximum period of detention, the provisions of any advisory Board to consider and report on the sufficiency of the cause for detention and the right to have the earliest opportunity of making a representation against the order of detention, preventive detention is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive.It is resorted to when the Executive is convinced that such detention is necessary in order prevent the person detained form acting in a manner prejudicial to certain objects which are specified by the law. The action of Executive in detaining a person being only precautionary, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to only down objective rules of conduct, the failure to conform to which should lead to detention.In case of preventive detention of citizen, Article 22(5) of the constitution enjoins the obligation of the appropriate Government or of the detaining authority to accord the detenu the earliest opportunity to make a representation and to consider that representation speedily. The right to make a representation implies right of making an effective representation. It is the constitutional right o f the detenu to get all the ground on which the order has been made. As has been said by Benjamin Cardozo, “A Constitution states or ought to state not rules for the passing hour but the principles for an expanding future”. The concept of grounds used in the context of detention in Article 22(5) has to received an interpretation which will keep it meaningfully intune with contemporary notions of the ‘realities of the society, and the purposes of the act in the light of concepts of liberty, and fundamental freedoms. While the expression grounds for that matter includes not only conclusions of fact but also all the basic facts on which those conclusions were founded; they are different from subsidiary facts or further particulars or the basic facts. The detenu is entitled to obtain particulars of the grounds which will enable him to make an effective representation against the order of detention.
It has been said that the history of liberty has largely been the history of observance of procedural safeguards.The procedural sinews strengthening the substance of the right to move the Court against executive invasion of personal liberty and the due dispatch of judicial business touching violations of this great right is stressed in the words of Lord Denning as follows:
“Whenever one of the King’s Judges takes his seat, there is one application which by long tradition has priority over all others, counsel has but to say: My Lord, I have an application which concerns the liberty of the subject and forthwith the Judge will put all other matter aside and hear it.It may be an application for a ‘writ of habeas corpus, or an application for bail but whatever form it takes, it is heard first.”(Freedom under the Law, Hamlyn Lectures, 1949)
6. The Constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of States security public order, disruption of national economic discipline etc being envisaged as a necessary evil to be administered under strict constitutional restrictions. In Ichhudevi v Union of India , Bhagwati, J. spoke of this judicial commitment:
“The court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade.”
“This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirement of the law and even where a requirement of the law is breached in the slightest measures,the Court has not hesitated to strike down the order of detention.”
In Vijay Narain Singh v. State of Bihar, Justice Chinnappa Reddy in his concurring majority view said:
“…..I do not agree with the view that those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. It is too perilous a proposition. Our Constitution does not give as carte blanche to any organ of the State to be the sole arbiter in such matter…..”
[Page 1336(of AIR)]
“…..There are two sentinels, one at either end. The legislature is required to mark the law circumscribing the limits within which persons may be preventively detained and providing for safeguards prescribed by the Constitution and the Court are required to examine, when demanded, whether there has been any excessive detention, that is whether the limits set by the Constitution and the legislature have been transgressed…..”
In Hem Lall Bhandaari v. State of Sikkim at page 766: it was observed:
“It is not permissible in matters relating to the personal liberty and freedom of a citizen to take either a liberal or a generous view of the lapses on the part of the officers….”
7. We shall first deal with the question whether there was an obligation on the part of the Cental Government to send the representation to the detaining authority. Reliance has been placed by the learned counsel for petitioner in Gracy’s case (supra) to contend that there is dual obligation to consideration the detenu’s representation by the Advisory Board and independently by the detaining authority and this obligation flows from Article 22(5). Even if there is one representation addressed to the detaining authority it is not relieved of the obligation merely because a representation is addressed to the Advisory Board instead of detaining authority and submit to the Advisory Board during the pendency of the reference before it.
8. The question was examined recently by the Apex Court in R. Keshava v MB Prakash, AIR 2001 SC 301. It was observed in para 12 as follows:
“A perusal of the aforesaid section and other relevant provisions of the Act makes it abundantly clear that no duty is cast upon the Advisory Board to furnish the whole of the record and the representation addressed to it only to the Government along with its report prepared under section 8(c) of the act. It may be appropriate for the board to transmit the whole record along with the report, if deemed expedient but omission to send such record or report would not render the detention illegal or cast an obligation upon the appropriate government to make inquires for finding out as to whether the detenu has made any representation, to any person or authority, against his detention or not. We are of the opinion that in Gracy’s case (supra)it was not held that any such duty was cast upon the board but even if the observations are stretched to the extent, we feel that those observations were uncalled for in view of the scheme of the Act and the mandate of the Constitution.”
In para 14 and 17 following observations have been made which also throw considerable light on the issue.
“14. In view of the constitutional and legal position,as noted by us, we find it difficult to agree with the reasoning in the aforesaid observations. In the absence of constitutional or statutory provisions, we are unable to observed that the Advisory Board was under an obligation to forward the whole of the record of its proceedings to the State Government.The State Government while confirming the order of detention has to peruse the report of the Advisory Board along with other record, if any, n its possessions, and cannot determine the legality of the procedure adopted by the Advisory Board. Under clause (f) of Section 8 of the act, the government lis not bound by the report of the Advisory Board and in every case where the Advisory Board reports that there is, in its opinion, sufficient cause for the detention of a person may confirm the detention order. The word “may” used in this clause does not cast duty upon the appropriate government to necessarily accept the opinion for further detention. However, where the Board reports that there is, in its opinion, no sufficient cause for the detention for the person concerned, the appropriate government has no option but to revoke the detention order and cause the persons to be released forthwith. When the report of the Advisory Board opining that there exists sufficient cause for detention of a person is not binding upon the appropriate government, there is no infirmity in its order passed without consideration of the proceedings of the Advisory Board. The obligation of the appropriate government is restricted to the extent of examining the report conveying the opinion of the Board regarding further detention of the detenu. Similarly the observations made by this Court in Harbans Lal v. ML Wadhwan to the effect that the non submission of the entire record being the requirement of law, cannot be held to be good law on the point.”
“17. We are satisfied that the detenu is this case was apprised of his right to make representation to the appropriate government/authorities against this orders of detention as mandated in Article 22(5) of the Constitution, Despite Knowledge,the detenu did not avail of the opportunity. Instead of making a representation to the appropriate government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to send its copy to the concerned authorities under the Act. In the absence of representation or the knowledge of the representation having been made by the detenu, the appropriate government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenu to the Advisory Board. For this alleged failure of the appropriate government, the order of detention of the appropriate government is neither rendered unconstitutional nor illegal.”
9. In the instant case the admitted position is that in the representation was made to the Central Government, and a prayer was made to send a copy to the detaining authority and in fact a copy was sent. The moot question, therefore is whether the delay in dispatch by the Central Government to the detaining authority was fatal.In Sat Pal’s case (supra) the following observations at para 12 are of great importance:-
“In the present case, there was, therefore no denial of the right of making a representation to the Central Government for revocation of the order of detention under section 11 of the Act, unlike the Rattan Singh’case (1981 (4) SSC 481). There is nothing but the explained delay on the part of the State government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority, as well as of the right of making a representation to the Central Government fore revocationof the order of detention under Section 11 of the Act. The representations that he made were duly considered by the State government and the Central Government. The contention that the unexplained delay on the part of the State Govt is sufficient to invalidate the order of detention can hardly be accepted.The Court must took at the substance of the matter and not act on mere technically”
Sat Pal’s case (supra) was also noticed in Kameshkumar’s case (supra). In para 44 of the said judgment, it was observed as under:
“In Sat Pal v. State of Punjab, the order of detention was made by the State Government of Punjab under Section 3 of the FOFEPOSA Act and the detenu had made two representations- one was addressed tot he Joint Secretary, Govt of Punjab and the other was endorsed to the Central government through the Secretary, Ministry of Finance, Department of Revenue New Delhi. Both the representations were forwarded by the Superintendent Central jail to the Joint Secretary, state government of Punjab with an endorsement that one of them be forwarded to the Central Government. The State Government rejected the representations but there was a delay on the part of the State Government in forwarding the representation to the Central Government and ultimately the Central Government also rejected the said representation and there was no delay on the part of the Central Government in considering the representation,. The Court held that there was no detail of making a representation to the Central Government and the delay on the part of the State Government in forwarding the representation to the Central Government by itself was not sufficient to invalidate the order of detention.Sat Pal was therefore not a case of non consideration of the representation by one of the authorities of the representation by one of the authorities who was required to considered the said representation.”
10. In view of the above legal position and the undisputed position that representation was considered by the detaining authority of the date it was received from the Central Govt., there is no substance in the plea that there was any explained period of inaction. The petitions, therefore, are without any merit and deserve dismissal, which we direct.