JUDGMENT
Malik, J.
(1) The petitioner has challenged the detention order dated 5th of March 1988 passed in respect of his brother Shri Joginder Singh under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) by Shri K. L. Verma, Joint Secretary to the Government of India. The detention order has been passed with a view to preventing the detenu from acting in any manner prejudicial to the augmentation of foreign exchange. Pursuant to this detention order the detenu was actually listen into custody on 6th of April 1988.
(2) The order of detention was passed following an incident dated 23rd of January 1988 when the detenu along with one Manjit Kumar was traveling from Ludhiana to Jalandhar in a taxi which was intercepted by the police en route near Phagwara and on search Us $ 10,000 and Rs. 10,110 Indian currency were recovered from the detenu while the search of his corrugation Manjit Kumar resulted in the recovery of Us $ 7075 and Canadian $ 1020. The matter was thereafter handed over to the Enforcement Directorate who on investigation came to the conclusion that the detenu was dealing in purchase and sale of foreign currency in violation of the law of land.
(3) The challenge to the detention order has been thrown on a number of grounds but I need not deal with the merits or otherwise of all the grounds as, in my view. Mr. Trilok Kumar during the course of arguments has convinced me that this petition is to be allowed in view of long and unexplained dobby in the consideration of his representation.
(4) That the detenu has a right to make a representation and get it considered at the earliest possible moment is a principle which has been laid down by the Supreme Court in Icchu Devi Choraria vs. Union of India and others, 1981 Supremes Court Cases (Cri.) page 25(1) and also in the case of Smt Khatoon Begum vs. Union of India, , and several other judgments which I need not indicate in this order. Together with this the principle that the representation of the detenu has to be considered clamorously till the decision is taken and communicated to the detenu has also been recognised by the Supreme Court in the case Harish Pahwa vs. State of U.P. and others, .
(5) My understanding of the law as laid down by the Supreme Court in this regard is that the detenu has a right to make a representation against the detention order and this right directly flows from the constitutional safeguards provided by Article 22(5) of the Constitution. The representation of the detenu has to be taken up for consideration at the earliest possible moment and dealt with continuously unless some sort of assistance is required from some quarter for its proper consideration. This court in that view of the matter has held in several judgments that if the defaming authority who is required to consider the representation finds it necessary to seek some further information and send for comments there cannot be any serious objection to it but then the decision to seek such comments or further information should be that of the authority who is competent to consider and deal with the representation. This, therefore, entitles the respondents to explain the cause of delay, if any, and if the court finds that the delay has been satisfactorily explained it will not vitiate the order of detention. In that view of the matter the delay ipso facto cannot be a ground for invalidating an order of detention as these consideration will have to be gone through before recording a finding on this issue. This, therefore, will differ torn case to case and will have to be decided and determined on the facts and circumstances of each case,
(6) In the present case, the detenu made a representation to the detaining authority on 18th of April 1988 by which he represented to the detaining authority to clarify certain matters as in the absence of that clarification his right to make an effective representation will be seriously impaired. To be precise, the request made was that according to the list of documents supplied to the detenu 40 documents have been supplied to him but against none of these documents it is stated as to how many pages each document is consisted of. The detenu made a grievance that it appeared to him that all the documents relied upon by the detaining authority in English were not supplied to him in Punjabi, the language he understands pari passu with the grounds of detention.
(7) The detenu made another representation on 28th of April 1988 which, in fact. was made with a view to challenge the merits of the detention order. Thereafter he made another representation dated 3rd of May 1988 which was in the form of a reminder to the earlier representations made by him in which he clearly indicated the nature and number of documents which were relied upon by the detaining authority but not supplied to him pari passu with the grounds of detention.
(8) The case of the detaining authority is that all the documents relied upon were supplied to the detenu pari passu with the grounds of detendon. I do not find it necessary to go into this controversy at all as this controversy in the light of what follows if not irrelevant has become unnecessary for the consideration of this writ petition.
(9) The detenu in his additional affidavit has stated that the memorandum rejecting his representation was delivered to him only on 15th of June 1988. This position is not controverter by the respondent in his additional affidavit. In the case of Harish Pahwa supra it is clear that it is not the consideration of the representation only but also the communication of the result of such representation at the earliest to the detenu that is required to be done under the law. So there has been an undue and unexplained delay in the communication to the detenu of the fact that his representation has been rejected.
(10) Now that apart, the respondent in his affidavit has explained as to how he dealt with the representations of the detenu. The explanation, in short, states that the representation of the detenu dated 18th of April 1988 was received in Cofeposa unit on 20th of April 1988 and that it was sent to the Enforcement Directorate on the same date for its comments. Same is stated about the representation dated 28th of April 1988 and 3rd of May 1988. It is further stated that the comments on all these representations were received from the Directorate of Enforcement on 19th of May 1988, and all the three representations were considered on 20th of May 1988 and a memorandum issued to the detenu on the same date. Assuming that it was found necessary to seek comments it is causing me a great deal of surprise that the comments in respect of the representations including that of 3rd May 1988 which was title last in the series were also received on 19th oi May 1988. One would be justified in asking as to what the Enforcement Directorate was doing till then with the representations of the detenu dated 18th of April 1988 and 28th of April 1988. The Enforcement Directorate being a functionary of the State was duty bound to deal with the representation at the earliest possible moment and the detaining authority who had allegedly sent it for comments was also duty bound to follow the same. That also goes to show that there has been a total unconcern shown to the representations of the detenu. That apart, there is a very serious lapse in this case inasmuch as all the representations of the detenu. it appears, have been dealt with by the office of the detaining authority and these were for the first time placed before the defaming authority only on 20th of May 1988. It seems, that at no stage had the detaining authority sough any comments from any quarters. In fact it was the Cofeposa unit which, without placing the representations for the decision of the detaining authority, sought comments in a most routine and mechanical manner from the Directorate of Enforcement. If the detaining authority does not know that the detenu has made a representation till 20th May 1988 it certainly vitiates the detention order. this being the case. the petition is allowed and the rule is made absolute The continued detention of the detenu is quashed and it directed that he shall be released forthwith unless required in some other case.