JUDGMENT
M.K.Chawla, J.
(1) The petitioner Jayakumar Moorthy 18 seeking the setting aside of the detention order passed on 28th of December, 1987 by the Government of Kerala u/s. 3(1)(ii), 3(1)(iii) and 3(1)(iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), for short, the Cofeposa Act. The order was made against the petitioner with a view to preventing him from abetting the smuggling of gold, engaging in transporting or concealing or keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods.
(2) Along with the impugned order, the ground of detention also dated 28th December, 1987 were served on the detenu while he was in judicial custody. On 3rd February, 1988, declaration u/s. 9(1) of the Cofeposa Act (as amended), was issued by Shri B. V. Kumar, Additional Secretary to the Government of India. The Cofeposa Advisory Board in its report opined that there was sufficient cause for the detention and the continued detention of the petitioner. Accordingly, u/s. 8(f) of the Cofeposa Act, the State of Kerala confirmed, that the detention of the petitioner shall continue for a period of 2 years from 2-1-1988.
(3) In the order of detention, the petitioner was informed that if he so desired, he could make any representation against the order of his detention to the detaining authority and/or the Central Government and/or to the Chairman, Cofeposa Advisory Board, High Court of Kerala, Arunaculam, through the Superintendent, Central Prison, Trivendrum.
(4) The petitioner while exercising this right made a representation on 15th February, 1989 to the State Government through his counsel which was received by the Department on 16th February, 1989. A copy of the said representation is Annexure-M to the petition. The contention is that this representation has not, so far been disposed of. There has thus been unreasonable and inexplicable delay in disposing of the representation making the order of detention illegal and violative of Article 22(5) of the Constitution of India.
(5) The stand of the respondents on this aspect, as disclosed in the affidavit of Shri Rajashekhran Nair, Additional Secretary to the Government of Kerala (Home Deptt.) is as under :-
“The representation received on behalf of the detenu was disposed of on 13-4-89. The representation dated 15-2-89 was received by the State Govt. on 16-2-1989 and it was considered and rejected on 13-4-89. The question as to whether the Advocate was entitled as to represent on behalf of the detenu had to be examined in consultation with the Law Department. Hence some delay occurred………”
(6) Can this explanation be considered as cogent enough to justify the expeditious disposal of the representation as enjoined under Article 22(5) of the Costitution. The only answer to this query can be in the negative.
(7) The respondents have defaulted on two counts. Firstly there is no worthwhile explanation if it can be called so, in disposing of the representation on 13-4-89 which was admittedly received in the Department on 16-2-89 and secondly, the delay in not communicating the decision to the detenu till 16th April, 1989. On both these counts, the case stands fully covered by the Supreme Court in case reported as Harish Pahwa vs. State of U.P. and others, . In the said case, the Supreme Court has clearly stated that there are two facets to be considered of the representation of the detenu. One of them being that the representation of the detenu must be considered at the earliest possible opportunity and must be continuously considered until a final decision is taken thereon and the other fact is that the result thereof must be immediately communicated to the detenu. It has further been laid down that no authority concerned with the disposal of representation of the detenu can show any indifference towards the representation. This is so said because the liberty of a person is at stake and he is preventively being detained without a trial. The detention of the petitioner was held to be unconstitutional on the short ground that the State Government has not decided the representation of the petitioner within a reasonable time. While expressing their concern for the inaction of the authorities in disposing of such like representation of the detenus, the Court observed as under :- The representation made by a detenu has to be considered without any delay. The Supreme Court does not look with equanimity upon delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. It is the duty of the State to proceed to determine representation which the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously, (unless it is absolutely necessary to wait for some assistance in connection with it) till a final decision is taken and communicated to the detenu. Where this is not done, the detention has to be declared unconstitutional.”
(8) In the present case, what exactly has happened is, that right from 16-2-89 till 13-4-89, the representation addressed to the State Government by the detenu was practically withheld by the detaining authority for no rhyme or reason. No action whatsoever was taken on it. That also goes to show that there is absolutely no explanation, what to talk of a reasonable one, by the State Government as to how this representation was dealt with and handled by various department during this period. The non-communication of its result to the detenu is also fatal.
(9) Having come to the conclusion that the representation of the petitioner detenu was not dealt with as required by low, there is no need for me to go into other contentions. On this ground alone, therefore, the rule is made absolute. The detention and the continued detention of the petitioner is hereby quashed and it is directed that the petitioner be released forth with unless required to be detained in any other case.