JUDGMENT
G. R. Bhattacharjee, J.
1. The petitioner Smt. Daljit Kaur has filed the present petition for a writ of habeas corpus, challenging the detention of her husband Sri Jagpal Singh Sahaull under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 (COFEPOSA Act, for short). The respondent No.2, the Joint Secretary to the Government of India, Ministry of Finance, Deptt, of Revenue in the purported exercise of his power under section 3(1) of the COFEPOSA Act passed an order on the 19th June, 1998 directing that the detenu @ Jagpal Singh Sahaull, @ Jagpal Singh (c) Gorkha be detained and kept in custody in Dum Dum Central Jail, Calcutta as he (the detaining authority) was satisfied that with a view to preventing the said Jagpal Singh from engaging in transporting, concealling and keeping smuggled goods in future it was necessary to make the order of detention. It appears from the recitals in the statements of the grounds of detention that the Directorate of Revenue intelligence, Calcutta received information that one Sri Jagpal Singh Sahauli @ Gorkha had garages on Bombay and Delhi Road around Calcutta and he was also transporting goods of foreign origin viz. bearings contained in containers and cleared under CTD for transportation to Nepal via declared Indian Land Customs station which were first taken to one of his garages near Alampur and that the seals of the containers were broken at that place and the packages of the imported goods were removed from the containers and loaded in the trucks waiting in the garage compound and that those containers did not cross the Indian Borders at all and the imported goods, namely, bearings so removed from the sealed containers were transported to Delhi under the cover of Indian goods like Jute Caddies etc. where the goods were delivered to places as per instructions of one Sri Khushwant Singh @ Kanti Singh of Dashmesh Road Service whose head office was at 27/1A, Eden Hospital Road, Calcutta-12 and that four trucks loaded with cases of ball bearings removed from containers under the cover of Jute caddies etc. left Calcutta on 29lh October, 1997 for Delhi side but one of those four trucks bearing a particular number had been seen parked for about 1/2 days on Delhi road near Jagadamba Petrol Pump. Acting on the said information the officers of the Directorate of Revenue intelligence, Calcutta located the concerned truck, caught hold of the same, searched, recovered and seized ball bearings of foreign origin from the truck on 31.10.97/01.11.97. Follow up actions were taken thereafter and on the basis of further information further recovery and seizers of ball bearings of foreign origin were made on 15.11.97 and 16.11.97. The petitioner’s involvement in the illegal activities were also unearthed. Various steps were taken in the process and statements of various persons were also recorded. Show-cause notices were also issued on different dates, the last one being dated 04.05.98. The
detention order was passed on 19.06.98 and it was served on the detenu on 27.07.98 at Dum Dum Central Jail and the grounds of detention together with the relied upon documents were served upon him on 29.7.98.
2. The petitioner has challenged the detention order on various grounds, such as. delay in passing the detention order, supply of illegible documents, non-consideration of representation etc. The plea taken by the petitioner that the live link had been snapped between the date of incident and the date of passing the order. The reason of delay in passing the order however has been repelled by the respondents by staling that while passing the detention order all the developments and materials generated upto the 4th May, 1998 were taken into consideration and that it would be evident from the grounds of detention that the live link between the date of incident and the date of passing the order was maintained all along. On going through the grounds of detention and also considering the large volume of relied upon documents it also appears to us that a lot of exercise had to be undertaken in collecting the necessary materials, and the complexities of relevant events, numerous in number were also quite enormous. In the circumstances we are not prepared to hold that there was any undue delay in passing the impugned order of detention or that the live link had been snapped in the meantime. As regards the plea of supply of illegible documents also we do not find any substantial merit. As regards the plea of the petitioner that the detenu does not know English or has no working knowledge of English it is stated in the affidavit-in-opposition of the respondents that he knows English and this fact is clearly borne out from two facts, namely, that the agreement available at pages 409-412 of the documents relied upon is in English and signed by the detenu himself in English, and also that while acknowledging the receipt of detention order and the documents, the detenue has made endorsement in English. Therefore, we are not convinced that the detenu does not know English.
3. However the most difficult challenge to the continued detention of the detenu has been projected in the area of consideration of representation submitted against his detention. In paragraph 23 of the writ petition it is stated that the detenu made an incomplete representation addressed to the Secretary to the Government of India, the detaining authority and to the advisory Board and that the detenu made another representation to the Central Government for revocation of his detention under section 11 of the COFEPOSA Act and the said representation was forwarded by the petitioner to the Superintendent of the Central Jail on 08.09.98 but the respondent No.3 refused to accept the same on the ground that the detenu had been transferred to other Jail and then the petitioner sent the representation by speed post and by registered post to the respondent No.3 (Superintendent, Dum Dum Central Jain). In paragraph 23 of the affidavit-in-opposition affirmed on behalf of the respondent Nos. 1 & 2 the Union of India and the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue respectively it is stated that the undated representation of the detenu written in Gurmukhl language was received in the Ministery on 04.02.98 and immediate action was taken to call for the comments as well as a translation of the representation in English language from the sponsoring authority, namely, Deputy Director, DRI, Calcutta and a letter dated 07.09.98 was issued to the sponsoring authority accordingly.
it is further stated that the sponsoring authority submitted their comments as well as the translation of the representation in English on 14.09,98 and the representation of the detenu was submitted to the Under Secretary on 15.09.98 who after proceesing the same submitted it to ADO on 18.09.98 and the ADG in turn submitted the same to SS-cum-DG, CEIB on the same date and the Special Secretary-cum-DG. CEIB rejected the representation of the detenu on 21.09.98 on behalf of the Central Government and a memo intimating the detenu about rejection of his representation was issued on 21.09.98 itself, 19th and 20th September being Saturday and Sunday (Holidays). It is further stated therein that simultaneously this representation of the detenu was also submitted to the detaining authority on 18,09.98 who rejected the same on the same day and a memo intimating the detenue about rejection of his representation was also issued on 18.09.98 and in view of the above it is evident that the representation of the detenu was considered independently and expeditiously both by the detaining authority as well as Central Government and there is no other representation made by the detenu received in the office of the respondent Nos. 1 & 2.
4. We are however now looking to the most disturbing aspect of the case. In the sub-paragraphs (f) & (g) of the affidavit-in-reply it is stated that another representation under section 11 of the COFEPOSA Act was sent by the petitioner for the detenu to the Superintendent of Dum Dum Central Jail on the 8th September, 1998–(this has also been referred to in paragraph 23 of the writ petition)–but the Superintendent of Duni Dum Central Jail refused to accept the same and later the petitioner sent it by speed post on the 10th September, 1998 and a copy of the representation was sent to the Superintendent of Central Jail on the 9th September, 1998 by registered post also and the said second representation was made on additional grounds. It is also stated therein that it does not appear from the affidavit affirmed on behalf of the respondents Nos. 1 and 2 that the second representation under section 11 of the COFEPOSA Act was considered by the detaining authority and the Central Government independently and expeditiously and non-consideration of the said representation by the statutory authorities makes the detention of the detenu illegal and bad. With obvious reference to the said representation, the Superintendent of the Dum Dum Central Jail, the respondent No.3 says in paragraph 7 of his affidavit that on 11.09.98 one xerox copy of the prayer petition (written in English) of Daljit Kaur along with one Xerox copy of the petition probably written in Gurmukhi language was received in the office of the Superintendent, Dum Dum Central Jail. In paragraph 8 of that affidavit it is stated that on 14.09.98 one prayer petition (written in English) of one Daljit Kaur along with one petition probably written in Gurmukhi language was received by the said office from outside when the detenu was not in that Jail as he had been shifted to Tihar Central Jail in Delhi on 13.09.98 for appearance before the Advisory Board at Delhi on 16.09.98 and the detenu came back on 20.09.98. In paragraph 10 of the said affidavid of the respondent No.3 it is stated that since the detenu appeared before the Advisory Board on 16.09.98 and the advisory board had occasion to consider the case of the detenu in all respects and also had occasion to consider whether further detention of the detenu would be justified or not and since the detenu
himself appeared before the advisory board and ought to have put forward his case before the advisory board, the superintendent of Dum Dum Central Jail was under the impression that the representation received on 14.09.98 with the forwarding letter of the petitioner for gelling the same signed by the detenu for transmission before the Ministry had lapsed its force and efficacy, and being pursuaded by such impression neither the said representation was got signed nor steps were taken for onward transmission of the same after return (of the detenu) to Dum Dum Central Jail on 20.09.98. It is further stated in the said paragraph 10 of the affidavit that the Superintendent of Dum Dum Central Jail acted absolutely bona fide and there had been no intentional or deliberate inaction on the part of the Superintendent of Dum Dum Central Jail in this regard and the lapses, if there were any, were due to bona fide mistakes of Judgment (on the part of the Jail superintendent). It is also noted in the said paragraph of the affidavit that at no point of time neither the detenu nor anybody on his behalf reminded any jail authority including the Superintendent of the Dum Dum Central Jail of the said representation in any manner whatsoever. Therefore, it is evident that the representation in respect of the delenllon of the detenu which was received by the Superintendent of the Dum Dum Central Jail on 14.09.98 and which was obviously intended for consideration of the Central Government under section 11 remained in cold storage in that Jail and no action whatsoever was taken on the same, not to speak of forwarding the same to the appropriate authority. It is true that the petitioner in the meantime personally appeared before the advisory board on 16.09.98. But can that be a ground for not sending the representation of the petitioner to the appropriate authority for consideration? The answer must be in the negative.
5. The learned Advocate for the respondents has referred to the Division Bench decision of the Gujarat High Court in Mohammed Saft v. The Commissioner of Police 1990 Cr.LJ 2758. That was a case of detention under the Gujarat Prevention of Anti-Social Activities Act. 1985. In that case the detenu made a fresh representation addressed to the State Government and the advisory board which was received by the advisory board after it had heard the detenu and formed its opinion but had not yet communicated its opinion. After considering the facts and circumstances of the case, it was held by the court in that decision that it was not possible to say that the advisory board, by not considering the representation of the detenu, had either violated Article 22(5) of the Constitution or section 12(1) of the said Act and therefore on this ground continued detention of the detenu could not be regarded as illegal. Whatever may be the import of the said decision of the Gujarat High Court, will however have to lake notice of the decision of the Supreme Court in Premlata Sharma v. District Magistrate 1998 SCC (Crl) 831 which has been relied upon by the learned Advocate for the petitioner. In that case pursuant to an order dated 26.04.97 made by the District Magistrate, Mathura in exercise of his powers under Section 3(3) of the National Security Act, 1980 the detenu had been detained since 03.05.97 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Against his detention he made a representation to the State Government on 14.05.97 which was rejected on 23.05.97. A copy of the said representation, along with parawise comments,
was forwarded by the State Government on 21.05.97 to the Home Secretary, Government of India. New Delhi for consideration. The Central Government also rejected the representation of the detenu on 06.08.97. Thereafter on 22.08.97 the detenu made a representation to the Home Secretary, Government of India through the” Superintendent of Mathura Jail, where he was confined. By its letter dated 26.08.97 the detaining authority informed the detenu that the representation could not be sent to the Central Government as it was made after extraordinary delay. Thereafter the wife of the detenu made a habeas corpus petition before the Supreme Court. The Supreme Court considered the matter in the back-drop of the section 14 of the National Security Act, 1980. The said section 14, it may noted here. Is in pari materia with section 11 of the COFEPOSA Act. The Supreme Court inter alia held that when the representation was made to the Central Government it was for it–and not for the detaining authority–to decide whether the representation should be rejected on the ground that his earlier representation had already been considered and rejected. The Supreme Court in that connection observed that to put it differently, when the representation was addressed to the Central Government it was incumbent on the part of the detaining authority to forward the same to the Central Government and not to take a pre-emptive action thereupon of its own. It also needs no emphasis that the transmitting authority namely, the Jail Superintendent also can not take such pre-emptive action instead of forwarding the representation to the Central Government. In our present case the representation obviously under section 11 of the COFEPOSA Act in connection with the detention of the detenu which was sent to the Superintendent of the Dum Dum Central Jail should not have been withheld by the superintendent from being placed for the consideration of the concerned authority and it was obviously incumbent upon him to take necessary action promptly thereon and forward the same to the appropriate authority for consideration instead of sitting light over the same on the ground that the detenu had already appeared in the meantime before the advisory board or on the ground that he was not remined by the detenu or anybody on his behalf that his pending representation should be forwarded to the appropriate authority. The fact that the detenu appeared before the advisory board is not a bar for the petitioner to send a representation under section 11 of the COFEPOSA Act to the Central Government against his detention. Any such representation. It is needless to say, has to be considered by the Central Government and disposed of promptly and independently irrespective of the question whether the petitioner has been already heard by the advisory board or not. Since the concerned representation of the petitioner was not at all sent by the Superintendent of the Dum Dum Central Jail to the Central Government and consequently the Central Government which is the competent authority could not consider the representation and since in view of the Supreme Court decision in Premlata Sharma v. District Magistrate (supra) withholding of representation from the appropriate authority on the ground that an earlier representation was rejected by such authority is fatal in the eye of law, the continued detention of the detenu cannot be a sustained. There are also an umpteen number of decisions of the Supreme Court where it has been held that unexplained delay in considering the representation of
the petitioner and unexplained delay on the part of the Jail authority in transmitting the representation of the detenu to the concerned authority is fatal to the continued detention. Reference may be made to a number of decisions of the Supreme Court, such as. Durga Shaw & Ors. , Professor K. Ihocha Singh v. State of Manipur , Kundan v. District Magistrate . Ven Nathi v. State of Tamil Nodu , Vijay Kumar v. State of Jammu and Kashmir (1992) 2 SCC 43. Here in our present case the representation of the petitioner was not at all forwarded by the Superintendent of the Dum Dum Central Jail to the concerned authority. That it is a compelling reasons for holding, on the authority of the Supreme Court decisions governing the field, that the continued detention of the detenu is illegal. Since we find that the continued detention of the detenu is illegal for the aforesaid reason we direct the respondent not to give further effect to the detention order on the basis of which the detenu has been held under detention and we further direct that the detenu be released forthwith from detention if his detention is not otherwise required under law.
6. The Jail Superintendent, Dum Dum Central Jail, is also directed to discharge his responsibility in future with due seriousness and promptitude in sealing with a representation which may be submitted by any detenu detained under any law of preventive detention. The inspector General of Prisons, Government of West Bengal is also directed to forthwith issue necessary instructions to all the superintendents of jails and Jailors emphasising the need of promptly transmitting to the concerned authorities- The representatives received from detnues detaind under any law of preventive detention so that any such detention does not become bad in the eye of law simply because of lack of prompt action on the part of the jail authorities in the matter of transmitting the representatives to the concerned authorities. The Registrar, appellate side is directed to communicate this order along with copy of this Judgment to the inspector General of Prisons for compliance.
The writ petition stands disposed of accordingly.
G. R. Bhattacharjee, J.
7. I agree.
8. Petition disposed of