JUDGMENT
A.V. Savant, J.
1. The petitioner Smt. Ana Maria Pereira is the mother of the detenu Nazario Sobastiao Dias who has been detained under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, “the COFEPOSA Act”) under the impugned order dated 5th March, 1992. The petition seeks to challenge the said order dated 5th March, 1992. The relevant facts may be, briefly, stated as under :-
2. It appears that reliable information was received in the Office of the Enforcement Directorate, Bombay, that one Sobastiao R. Pereira, a resident of 202, Nirman Apartment, Andheri (E), Bombay, was indulging in receiving and making hawala payments on behalf of persons resident outside India without the permission of the Reserve Bank of India. In view of the said information, the premises of the said Sebastiao Pereira were searched by the officers of the Enforcement Directorate under section 37 of the Foreign Exchange Regulation Act, 1973 (for short, “the FERA”) on 10th September, 1991 and as a result of the searched documents and Indian currency of Rs. 75,000/- were recovered and seized as per the details given in the Panchanama dated 10th September 1991. During the course of the said search, a person named Ramesh Kumar Jain entered the said premises and on his search Indian currency of Rs. 11,70,000/- was recovered and seized as per the Panchanama dated 10th September, 1991. The statement of the said Sebastiao Pereira was recorded which disclosed that the said Pereira was introduced to one J. Rodrigues of United Kingdom by one Armando Pereira of Azossim, Ilhas, Goa, who is the Godfather of the daughter of Sebastiao Pereira. Sebastiao Pereira’s statement further disclosed that for making payments in India he received Rs. 11,70,000/- from Armando Pereira from 1st February 1991 and that Sebastiao Pereira also used to receive money from Michael Fornandos, Ramesh, Madhu and other un-known persons under the instructions of J. Rodrigues of U.K.
3. In the statements of the said Ramesh Kumar Jain which were recorded on 10th, 11th, 12th and 13th September 1991, it transpired that on the instructions of one Rajendra Choraria of London, some persons had given him the said money, view. Rs. 11,70,000/- and he had gone to the residence of Sebastiao Pereira with the said amount of Rs. 11.70 lakhs for delivering the same to Sebastiao Pereira. The statement of one Surendra Kumar Choraria, resident of Bombay, was also recorded under section 40 of the FERA, wherein he stated that he had a brother named Rajendra Kumar Choraria who is a N.R.I. and was staying in London, Michael Fornandos whose name was disclosed in the statements of both Sebastiao Pereira and Ramesh Kumar Jain was also interrogated and in the statement recorded under section 40 of the FERA on 10th, 11th, 12th and 13th September 1991 a note-book and some slips containing certain writings were recovered. It transpired the Michael Fornandos had received certain payments from two persons viz. on Tikur and another Mitha as per the slip marked ‘A’ seized from the residence of Michael Fornandos. As per the writings on page 2 of the Diary marked ‘A’ is was shown that he had paid Rs. 22,10,000/- to Sebastiao Pereira as per the instructions of the said J. Rodrigues of U.K. from June to August, 1991. On further inquiries being made in Goa in respect of Armando Pereira, it transpired that Armando Pereira was not available at his house but the detenu was residing at Armando Pereira’s house at Azossim, Ilhas, Goa and that the detenu was indulging in making hawala payments and, as such, the detenu’s residence was searched under section 37 of the FERA on 13th September, 1991. As a result of the said search certain documents were recovered as per the details given in the Panchanama dated 13th September, 1991. A cupboard in the said residence of the detenu was also searched on 1st October, 1991. The statement of Molton Pereira, the son of said Armando Pereira was recorded from which it transpired that the detenu was the Godfather of Newton, the younger brother of Molten and that the detenu used to go to Bombay to meet the said Sebastiao Pereira and bring to Goa the amounts of the order of Rs. 2, 3, 4 lakhs and so on and distribute it to various persons in Goa whose relations were working abroad. It further transpired that on the 11th September, 1991 the detenu had left Goa for Bombay to bring the amounts from Sebastiao Pereira to be distributed in Goa. Accordingly, the detenu came back Goa from Bombay on 13th September, 1991 and brought with him Rs. 1,69,500/- which was received by the detenu through Sebastiao Pereira as per the instructions of J. Rodrigues of U.K. to be delivered to various persons in Goa whose names and addresses were received by the detenu. The statement of the detenu was recorded on 14th September 1991 under section 40 of the FERA. It transpired that the detenu was working as a receptionist at Hotel Missel in Goa and that he was staying in the house of Armando Pereira. It further transpired from the statement of the detenu that Armando Pereira had come to Goa in December, 1990 and had told the detenu that he had a contact in U.K. viz. J. Rodrigues on 86, St. Mary Street, Southampton, U.K. which was found recorded in the handwriting of the detenu on the reverse of page 17 in the diary seized from the detenu. It further transpired that under the instructions of J. Rodrigues of U.K., Armando used to make payments to the wives of Seamen working abroad and that Armando used to get funds from parties in Bombay to make payments in Goa.
4. Another diary ‘B’ was seized from the detenu on 13th September 1991 which showed from page 9 that the detenu had transacted an amount of Rs. 18,75,000/- collected for payments to be made in Goa between December, 1990 and January, 1991. During this period, he had actually paid Rs. 16 lakhs out of Rs. 18,75,000/-; Rs. 6,900/- was adjusted as commission charges payable to the detenu and Rs. 700/- as bus charges. The balance of Rs. 2,67,400/- was also paid to the parties in Goa subsequently. Page 10 of Diary ‘B’ showed that the detenu had further transactions of Rs. 6,99,660/-. Page 11-A of Diary ‘B’ showed that various amounts were brought by the detenu from Bombay to Goa in the month of December 1990, January and February, 1991 and that the said amounts were paid to the parties in Goa under the instructions of J. Rodrigues of U.K.
5. As a result of the investigation carried out by the Enforcement Directorate it transpired that the detenu had indulged in receiving and making compensatory hawala payments in India under the instructions of and on behalf of persons residing outside India. As such, it was concluded that the activities of the detenu were in violation of the provisions of the FERA. The Joint Secretary to the Government of India was, therefore, satisfied that the unauthorised transactions in which the detenu had indulged had affected the foreign exchange resources of the country adversely. The said Joint Secretary was further satisfied that in view of the facts disclosed, the detenu was likely to continue his prejudicial activities in future. It was, therefore, felt necessary to detain the detenu under the COFEPOSA Act with the view to preventing him in future from indulging in activities prejudicial to the augmentation of the country’s foreign exchange resources. The order of detention was, therefore, passed on 5th March, 1992 as stated above and the detenu was informed that he had a right to make a representation to the Central Government, the detaining authority and the Advisory Board and he was told the authority to whom the representation should be addressed.
6. There is no controversy before us in respect of certain dates which have a bearing in the contentions advanced before us by the rival counsel. The said dated are as under : The detenu was first produced before the Enforcement Directorate on 14th September, 1991. He was then produced before the Magistrate and released on bail on 15th September, 1991. He was summoned before the Enforcement Directorate on 1st October, 1991. His statements were recorded on 18th, 25th and 27th September, 1991. The detenu addressed a letter on 1st October, 1991 to the Enforcement Directorate. In the meanwhile, it appears that on 17th September, 1991 the detenu purported to retract the statements made by him earlier. However, on 1st October, 1991 the detenu retracted his statement of retraction dated 17th September, 1991. In the meanwhile, it appears that Sebastiao Pereira against whom also proceedings were initiated under the FERA has retracted his statement on 14th September, 1991 and the Enforcement Directorate dealt with Sebastiao Pereira’s retraction dated 14th September, 1991 on 12th December, 1991. The proposal received from the Directorate of Enforcement, New Delhi, for detention of the detenu was placed before the Central Screening Committee which met on 12th February 1992. After considering the material on record the Committee was of the view that it was a fit case for detention under the COFEPOSA. Having considered the relevant material on record, the impugned order of detention was issued on 5th March, 1992. The first respondent came to the conclusion that with a view to preventing the detenu from acting in any manner prejudicial to augmentation of country’s foreign exchange resources in future, it was necessary to detain him in exercise of the powers conferred by section 3(1) of the COFEPOSA Act.
7. It appears that the order was executed on 31st March 1992 when the detenu was served with the order. By letter dated 30th April, 1992 the detenu was informed that his case would be taken up by the Advisory Board for consideration at about 2.00 p.m. on 22nd May, 1992 in the Committee Room of the Delhi High Court, Delhi. On 5th May, 1992 the detenu made a declaration before the Jailor of the Aguada Jail, Goa that he had been informed about to the effect that the hearing in his detention case was to take place on 22nd May, 1992 at 2.00 p.m. in the Committee Room, Delhi High Court, Delhi. The detenu, however, declared that he did not desire to be heard in person on the date, place and time. He further declared that he could not afford to engage the services of a counsel or a friend since he was a poor person. The Superintendent, Central Jail, Aguada, Goa, informed the Deputy Registrar (COFEPOSA), High Court of Delhi, New Delhi, on 7th May 1992 that the detenu was not willing to be heard in person before the Advisory Board. The declaration made by the detenu on 5th May 1992 was, therefore, forwarded to the Advisory Board on 7th May, 1992.
8. However, on 9th May 1992 the detenu did make a representation which was apparently addressed to the Chairman, Central Advisory Board, High Court of Delhi, New Delhi. This representation dated 9th May 1992 was received by the Central Government on 13th May 1992 at New Delhi. We have the two Affidavits on record on the question of the consideration of the representation both by the Advisory Board as also by the Detaining Authority. The Affidavit of Shri Mahendra Prasad, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, discloses that the representation made to the Advisory Board was considered by the Advisory Board at the time of hearing on 22nd May, 1992. The said representation was again considered by the Central Government at the time of confirmation of the detention order, which confirmation was made on 29th June, 1992. Though the pleadings in petition were not precise, since some controversy was raised at the Bar we have perused the original papers made available to us by Shri Khandeparkar. It transpires that the Advisory Board which met in Delhi, considered the case of the detenu and the said Sebastiao Pereira on 22nd May, 1992. It considered the representation made by the detenu which is dated 9th May 1992. The Advisory Board came to the conclusion that there was sufficient cause for the detention of the detenu. The opinion of the Advisory Board and other papers were then forwarded by the Advisory Board to the detaining authority which received the same on 3rd June, 1992. The Affidavit of Shri Roop Chand, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi and the original papers produced before us show that immediately on receipt of the papers on 3rd June, 1992 from the Advisory Board, the case was processed and was submitted to the Joint Secretary (COFEPOSA) on 4th June, 1992. He considered the same on 5th June, 1992 and forwarded the papers to the Director General (EIB). The Director General (EIB) considered the case on 10th June, 1992. It must be mentioned here that 6th and 7th June, 1992 were holidays being Saturday and Sunday. The papers were than submitted to the Minister of State for Revenue. However, the said Minister was on tour from 11th June to 16th June, 1992. June 20th and 21st, 1992 were again holidays being Saturday and Sunday. The Minister of State considered the matter on 25th June which was a Thursday. The Finance Minister himself considered the matter of Friday, the 26th June, 1992. Since 27th and 28th June being Saturday and Sunday were holidays, the file was returned to the Department on 29th June 1992 which was a Monday and the order of confirmation under section 8(f) of the COFEPOSA Act has been issued immediately on the same day i.e. on 29th June, 1992. The order of confirmation specifically states in the third para that the Central Government had fully considered the report of the Advisory Board and the material on record.
9. Shri Roop Chand in his Affidavit also says that along with the papers returned by the Advisory Board with its opinion the representation addressed to the Advisory Board was also forwarded to the detaining authority. Admittedly, there is no separate representation made by the detenu to the detaining authority. Nonetheless, the detaining authority has considered the representation which is apparently addressed only to the Advisory Board. The entire material along with the report of the Advisory Board, including the representation made to the Advisory Board, was placed for consideration of the detaining authority. This is clear to us in view of the averments made in the Affidavits of Shri Mahendra Prasad, the concerned Joint Secretary and Shri Roop Chand, the concerned Under Secretary. Our perusal of the original papers also substantiates the statements made by the two Secretaries. It is true that in the last sentence of para 9 of his Affidavit Shri Mahendra Prasad has referred to the consideration of the representation dated 16th April 1992 made by the detenu who was informed by Memorandum dated 21st May 1992. The perusal of the papers shows that the representation dated 16th April 1992 was made by Sebastiao Pereira and admittedly the detenu in the present case has made no representation, save and except the representation dated 9th May 1992. It needs to be stated, however, that the affidavits of Shri Mahendra Prasad and Shri Roop Chand make it clear that the representation dated 9th May, 1992 made by the present detenu, though apparently addressed to the Advisory Board, was considered not only by the Advisory Board while submitting its reports, but also by the detaining authority before confirming the order of detention under clause (f) of section 8 of the COFEPOSA Act on 29th June, 1992. This order of confirmation has been served upon the detenu on 2nd July, 1992.
10. In the above facts, we have heard the learned counsel at some length since the matter involved the liberty of a citizen. Both the learned counsel, Shri Pereira for the petitioner viz. the mother of the detenu and Shri Khandeparkar for the respondents have taken us through the pleadings and invited our attention to a number of decisions of the Supreme Court and some decision of the our High Court. Before coming to the contentions raised by both the learned Counsel in details, we would like to mention that in the case of Rajendrakumar Natvarlal Shah v. State of Gujarat, , corresponding to , the Supreme Court has pointed out that in the enforcement of a law relating to preventive detention, like the COFEPOSA Act, there is apt to be some delay between the prejudicial activities complained of and the making of an order of detention. When a person is detected for a foreign exchange racketeering, the directorate of enforcement has to make a thorough investigation into all the facts with a view of determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy. Quite often, these activities are carried on by persons forming a syndicate or having a wide network and, therefore, this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Viewed from this perspective, the Supreme Court sounded a note of caution for the guidance of the High Court that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention, like the COFEPOSA Act, and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. The Supreme Court has held in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. The observations to this effect are made in Paras 9 and 10 of the Judgment in Rajendrakumar’s case at pages 161 & 162 (of (1988) 3 SCC) : (at p. 1781 of 1988 Cri LJ) of the Report, with which we will deal in details at a later stage.
11. We may further point out that recently a Constitution Bench of the Supreme Court thought it necessary to review the law on some of the aspects of detention under the COFEPOSA Act and in the case of K. M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India, State of Karnataka, , the Constitution Bench has declared the earlier view in some of the cases to be no longer good law and overruled the same. The Supreme Court further observed that while it was necessary in dealing with the liberty of a citizen that the court should stand guard over the facts and requirement of law, the court could not draw presumption against any authority without any material. It must also be borne in mind that the confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation. In the scheme of the provisions of Section 8 of the COFEPOSA Act, it is clear that where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order, but in every case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the reason concerned, the appropriate Government has to revoke the order of detention and cause the person to be released forthwith.
12. In another case, the Supreme Court has also expressed its disapproval of the view taken by the High Court and observed that where the detention order in fully justified and absolutely necessary for the protection of the Society there was no particular virtue in quashing an order of detention. This has been observed by the Supreme Court in the case of State of U.P. v. Hari Singh Thakur, reported in 1987 (Supp) SCC 190, at page 191 : (1987 Cri LJ 1923) of the Report. We must also bear in mind that there is no hard and fast rule that merely because there is a certain time lag of a few months between the offending act and the date of the order of detention the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the detaining authority must be regarded as sham or unreal. The prejudicial acts of a detenu in a given case may be of such a character as to suggest, particularly in a case under the COFEPOSA Act that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities to the detriment of the society at large. This was observed by Bhagwati, J. (as he then was) in the case of Gora v. State of West Bengal, . Bearing in mind this approach of the Supreme Court, particularly while dealing with a detention under section 3 of the COFEPOSA Act we propose to deal with the contentions raised by the learned counsel.
13. The first and foremost contention of Shri Pereira, the learned Counsel appearing on behalf of the detenu is that the order of detention dated 5th March, 1992 is bad in law since there is an unexplained delay of over five months between the date of release of the detenu on bail on 15th September, 1991 and the issuance of the order of detention on 5th March, 1992. According to the learned counsel, the detaining authority has to be satisfied that it is with a view to preventing the detenu from acting in any manner prejudicial to the augmentation of the country’s foreign exchange resources that it is necessary to detain him. The learned counsel contends that the lapse of five months from the date of his release on 15th September 1991 would, ipso facto, snap the link between the offending act and the purported object of passing an order of detention. Shri Pereira, therefore, contends that there was no live link subsisting on the date of the petitioner’s order of detention. He contends that the delay between these two date viz. 15th September, 1991 – the date on which the detenu was released on bail and 5th March, 1992 viz. the date on which the order of detention had been issued has not been satisfactorily explained. In support of his contention Shri Pereira has invited our attention to certain decision of the Supreme Court, to which we will make a brief reference :-
(i) In the case of Pradeep Nilkanth Paturkar v. Shri S. Ramamurthi, , the Supreme Court has observed that where there was long and unexplained delay, the order of detention passed after five months and eight days from the date of registration of the last case could not be sustained. This was a case of a detention under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act of 1981. Certain criminal cases were registered against the detenu, the proposal for detention was submitted on 4th April 1991 and the order of detention was issued on 6th August 1991. On the facts of the case, the learned Judges held that there was no explanation of the long delay between the registration of the last case against the detenu and order of detention.
(ii) In the case of Mohamed Yusuf Haji Mohamed Khasim v. L. Hmingliana, Secretary, Preventive Detention , it was found that thought the alleged incident of illicit traffic in narcotic drugs had taken place on 18th April 1990, the proposal to pass the order of detention was made only on 29th December, 1990. The detenu was released on bail sometime in the month of August, 1990. The order of detention was issued on 30th March, 1991. In the facts of the case, the Division Bench of this Court held that the inordinate delay was not at all explained and hence, the order of detention was vitiated.
14. The second contention of Shri Pereira is to the effect that the delay between the issuance of the order of detention dated 5th March, 1992 and its executions viz. service of the detenu on 31st March, 1992 has not been properly explained. He has invited our attention to the decision of the Supreme Court in the case of T. A. Abdul Rahman v. State of Kerala, . It appears from the facts in Abdul Rahman’s case that the order was issued on 7th October 1987 and was served on the detenu as late as on 18th January, 1988. The service was, therefore, effected more than three months after the date of the passing of the order of detention. The Supreme Court came to the conclusion that though the detaining authority attempted to explain the laxity that had occasioned in the matter, it had miserably failed to explain the delay of three months in securing the arrest of the detenu from the date of the passing of the order.
15. Shri Pereira’ third contention is that he had no opportunity of appearing before the Advisory Board and hence, the order is bad in law. In support of the contention, Shri Pereira has invited our attention to the decision of the Supreme Court in the case of State of Punjab v. Sukhpal Singh, . This was a case where the Advisory Board was to meet on 12th November, 1988. The detenu applied for adjournment on 8th November, 1988 on the ground of his ill-health. On 11th November, 1988 the detenu was informed that his plea for adjournment was granted and that he would be informed of the next date of hearing fixed by the Advisory Board. However, without intimating any further date of hearing, the Advisory Board concluded its proceedings on 17th November, 1988 since it was running short of time. It was on these facts that the Supreme Court observed that though the detenu had desired to be heard by the Advisory Board and though the earlier date was postponed and the detenu was informed that he would be communicated the next date of hearing, the detenu was not so informed of the next date of hearing and in fact no hearing was given to him. These facts are clear from paragraphs 26 and 27 of the Judgment of the Supreme Court appearing at page 111 (of JT (SC)) : (Paras 21 & 22, at p. 597 of Cri LJ) of the Report. Relying upon these observations, however, Shri Pereira contends that in the present case despite the detenu having informed the Advisory Board that he did not desire to be heard in person, there is a failure on the part of the Advisory Board to give an opportunity to the detenu of being represented which violates the guarantee enshrined under Article 22(5) of the Constitution of India.
16. Shri Pereira’s fourth contention is that there is non-application of mind on the part of the Government as far as the representation dated 9th May, 1992 is concerned. Relying heavily on the affidavits of Shri Mahendra Prasad and Shri Roop Chand, the learned counsel contends that independent of the consideration of the representation by the Advisory Board, there is no consideration of the representation by the detaining authority. There can be no controversy that independent of the consideration of the representation by the Advisory Board, there is an obligation cast upon the detaining authority to consider the representation made by the detenu. It may be that in a given case, like the present case, there may be no separate representation addressed to the detaining authority. There may be only one representation as in the present case, addressed to the Advisory Board. What is further contended by the learned counsel is that not only has there to be independent consideration of the representation by the detaining authority, but there has to be a distinct communication by the detaining authority of the result of such consideration by the detaining authority. Shri Pereira further went to contend that independently of the confirmation of the order of detention under clause (f) of Section 8 of the COFEPOSA Act, there has to be a separate and distinct communication addressed by the detaining authority specifying the result of the consideration of the representation by the detaining authority. He concedes that the order of confirmation issued on 29th June, 1992 under clause (f) of Section 8 of the COFEPOSA Act, does say that the Central Government had fully considered the report of the Advisory Board and the material on record. But Shri Pereira contends that this is not sufficient to indicate independent consideration of the representation by the detaining authority. In support of this contention, Shri Pereira has invited our attention to the following decisions :-
(i) In the case of Smt. Gracy v. State of Kerala, . The Supreme Court held that the nature of duty imposed on the detaining authority under Article 22(5) in the context of extraordinary power of proventive detention was sufficient to indicate that strict compliance was necessary to justify the interference with personal liberty. It was more so since the liberty involved was of a person in detention and not of a free agent. The obligation of the detaining authority to consider the representation is different from, independent of and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the Government. There can be no doubt about this proposition of law. However, what was argued before the Supreme Court in the case of Smt. Gracy was that since the detenu’s representation was addressed to the Advisory Board to which it was submitted during the pendency of the reference before the Advisory Board, there was no obligation on the Central Government to consider the same independently since the representation was not addressed to the Central Government. This is clear from the observations in Para 4 of the Judgment at page 4 (of SCC); (at p. 1092 of AIR) of the Report, which read as under :-
“Whether there has been any infraction of the guarantee under Article 22(5) of the Constitution as a result of Central Government’s omission to consider the detenu’s representation independent of its consideration by the Advisory Board ? The Central Government’s stand is that the detenu’s representation being addressed to the Advisory Board to which it was submitted during pendency of the reference before the Advisory Board, there was no obligation on the Central Government also to consider the same independently since the representation was not addressed to the Central Government.”
It must be stated at this juncture that there is no such contention advanced in the present case. It is not the case of Shri Khandeparkar that the detaining authority was not obliged to consider the representation since it was addressed not to the detaining authority, but to the Advisory Board. The ratio of the decision in the case of Smt. Gracy can have, therefore, no application to the facts of the present case.
(ii) In the case of Smt. Santosh Anand v. Union of India, it has been observed that under Article 22(5), as also under section 11 of the COFEPOSA Act a representation should be considered by the detaining authority, who on a consideration thereof can revoke the detention order and if the representation is rejected by the detaining authority, it is open to the detenu to approach the State Government for revocation of the order and failing that it is open to him to approach of Central Government to get the detention order revoked. There can be no controversy about this.
17. Finally, Shri Pereira contended that there is a delay in considering the representation made by the petitioner and in issuing the order of confirmation under clause (f) of section 8 of the COFEPOSA Act. Relying upon the statements in the Affidavits of Shri Mahendra Prasad and Shri Roop Chand, Shri Pereira contended that the delay between 13th May 1992, the date of receipt of the representation made by the petitioner, and 29th June 1992, the date of confirmation of the order under clause (f) of section 8 of the COFEPOSA Act has not been satisfactorily explained. Shri Pereira, therefore, contends that there is a violation of the mandate of clause (5) of Article 22 of the Constitution.
18. As against this, Shri Khandeparkar appearing on behalf of the respondents has contended that, in the first place, there is no delay on the part of the detaining authority at any stage of the proceedings. Relying upon the Affidavits of Shri Mahendra Prasad and Shri Roop Chand, Shri Khandeparkar contends that the detaining authority has acted as expeditiously as possible. He further contends that in the matter of detention particularly under the COFEPOSA Act, it may not be permissible to adopt a mechanical test of a lapse of a few days or a few months. In reply to the first contention of Shri Pereira that there is a delay of 5 months between the date of release of detenu on bail on 15th September 1991 and the issuance of the order of detention on 5th March, 1992, Shri Khandoparkar has invited our attention to a decision of the Supreme Court in the case of Gora v. State of West Bengal, (supra). This was a case of a dacoity on the night between 25th & 26th June, 1973 and the order of detention was issued as late as on December 29, 1973 under sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971. Argument on behalf of the detenu was that as a result of the lapse of more than 6 months between the date of the incident in June, 1973 and the date of the order of detention, the link had snapped. Rejecting this contention, the Supreme Court observed that there was no hard and fast rule that merely because there was a time lag of about six months between the offending act and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending act and the order of detention. It was merely a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu were such that from them a reasonable prognosis can be made as to the future conduct of the detenu. Shri Khandeparkar relied heavily upon the observations in para 2 at page 17 (of SCC) : (at pp. 431-32 of Cri LJ) of the Report, which read as under :-
“There is, therefore, no hard and fast rule that merely because there is a time lag of, about six months between the ‘offending acts’ and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the ‘offending acts’ and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drawn it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future”.
19. The second decision on which Shri Khandeparkar placed reliance in reply to the first contention of Shri Periera is the decision of the Supreme Court in the case of Ashok Narain v. Union of India, . This was a case of detention under the COFEPOSA Act preceded by arrest under the Foreign Exchange Regulation Act some 8 months earlier. The detenu was apprehended on the 23rd February, 1981 and some foreign currency was seized from him. The order of detention came to be issued as late as on October 14, 1981 under the COFEPOSA Act. The delay in passing the order of detention was not occasioned by any laxity, but was due to a full and detailed consideration of the fact and circumstances of the case by the various authorities involved, as in the present case. The Supreme Court hold that the passage of time from the date of initial arrest of the detenu of February 23, 1981 and the making of the order of detention of October 14, 1981 was not occasioned due to any laxity on the part of the different agencies concerned, but was the result of full and detailed consideration of the facts and circumstances of the case by the various departments involved. The Supreme Court applied its mind to the material on record to satisfy itself that there was no undue and unnecessary delay in making the order of detention. The Supreme Court sent for the original files and perused the same. We have also, on the basis of this decision, perused the original files in the light of the Affidavits filed by the respondents. Shri Khandeparkar contends that in view of the explanation given by the two Secretaries which is consistent with the original record, there is no laxity or delay on the part of the authorities concerned in either issuing the order of detention in the first instance or in considering the representation made by the detenu and subsequently issuing the order of confirmation.
20. Shri Khandeparkar then invited our attention to the Supreme Court decision in the case of Rajendrakumar Natvarlal Shah v. State of Gujarat, . He invited our attention to the observations in para 9 of the judgment at page 161 (of SCC) : (at p. 1780 of Cri LJ) of the report where the Supreme Court observed that in the enforcement of the law relating to preventive detention like the COFEPOSA Act there is apt to be some delay between the prejudicial activity complained of under S. 3(1) of the Act and the making of the order of detention. The learned Judges in para 10 sounded a caution to the High Court in the following words :
“Viewed from this perspective, we wish to emphasise and making it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of more delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are ‘stale’ or illusory or that there is no real nexus between the grounds and the impugned order of detention.”
It may be stated that in Rajendrakumar’s case, (1988 Cri LJ 1775) (SC), the offending act detected on 19th December, 1986; the detenu was arrested on 2nd February, 1987 and the order of detention was made on 28th May, 1987. In para 12 of the Judgment at page 164 (of SCC) : (at p. 1781 of Cri LJ) of the Report, the Supreme Court observed that even though there was no explanation for the delay between 2nd February and 28th May, 1987, it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. At the end of para 12 the Supreme Court observed on a review of the relevant cases that the test of proximity was not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention.
21. Shri Kahandeparkar has then invited our attention to a Division Bench decision of this Court in the case of M. P. Mustafa v. Secretary (Preventive Detention) to the Govt. of Maharashtra, . He has particularly relied upon the observations in para 16 of the Judgment at page 624 of the Report. In the light of the Supreme Court decision in the above referred case of Rajendrakumar (1988 Cri LJ 1775) (SC), the Division Bench considered the question of delay in passing the order of detention under S. 3 of the COFEPOSA Act. In para 22 of the Judgment at page 627 of the Report, the Division Bench observed that in considering the question of delay in passing the order of detention what has to be borne in mind is that the cause for detention of the detenu is his prejudicial activity which adversely affects the economy of the country. The question which has, therefore, to be considered is whether the live link with regard to the above prejudicial activity can be said to be snapped merely because of delay in passing of the order of detention in a given case. The Division Bench was dealing with a case where the delay was of nearly 15 months in passing the order of detention from 16th January, 1988 on the day on which the contraband gold was detected in the said case. Despite the above, however, the Division Bench came to the conclusion that the explanation given by the authority was satisfactory and was not enough to vitiate the order of detention made on 7th April, 1989.
22. On the second contention raised by Shri Periera viz. the delay between the date of the order of detention and the execution thereof, that is to say the delay between 5th March and 31st March, 1992, Shri Khandeparkar contends that, in the first place, in the light of the decisions cited by him above on Point No. 1, there can neither be any hard and fast rule of a particular number of days nor should the Court mechanically or blindly apply the test of delay of a few days. Shri Khandeparkar reminded us of the observation of the Supreme Court in para 9 of the decision in Rajendrakumar’s case and, indeed, reminded us of the caution sounded by the Supreme Court in para 10 of its Judgment in Rajendrakumar’s case, . He further invited our attention to a recent decision of the Supreme Court in the case of M. Mohammed Sulthan v. The Joint Secretary to Govt. of India, Finance Deptt.. This was a case of an arrest made on 30th September, 1989 leading to the order of detention being passed on 12th December 1989 which was served on 12th January, 1990. Nevertheless, the Supreme Court upheld the order of detention which was made under the COFEPOSA Act as in the present case. Shri Khandeparkar reminded us that the detenu was working as a receptionist in a Hotel in Goa and was travelling between Goa and Bombay for collecting the amounts in Bombay for being distributed in Goa. Admittedly, he was no bail from 15th September, 1991.
23. On the 3rd contention of Shri Pereira regarding the detenu not having been given an opportunity to be represented before the Advisory Board, Shri Khandeparkar has invited our attention to the declaration made by the detenu on the 5th of May, 1992. The said declaration reads as under :-
“DECLARATION
Date : 5-5-1992
I hereby declare that I have been informed by the Jail Authorities that my hearing is going to take place on 22nd May, 1992 at
2.00 p.m. in committee Room, Delhi High Court, New Delhi.
Further I declare that I do not desire to be heard in person on the above date, place and time.
Moreover I declare that I cannot afford to engage the service of a counsel or friend, being a poor man.
Before me :
Sd/- Sd/-
Jailor Central Jail, Aguada-Goa (Nazario Dias)
Dated : 5th May, 1992"
Shri Khandeparkar contended that the detenu is not an illiterate person, but was a receptionist in a Hotel in Goa and was indulging in Foreign Exchange transactions involving lakhs of rupees. He invited our attention to the provisions of clause (c) of S. 8 of the COFEPOSA Act. Clause (c) contemplates that while dealing with the reference the Advisory Board has to consider the material placed before it and, if in any particular case it considers it essential so to do, or if the person concerned desires to be heard in person, after hearing him in person, prepare its Report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned. Shri Khandeparkar, therefore, contends that in view of categoric declaration made by the detenu that he did not desire to be heard in person, there is no violation of the provisions of clause (c) of S. 8 of the COFEPOSA Act. He further contends that the right to make a representation guaranteed by clause (5) of Article 22 of the Constitution does not necessarily contemplated the right to an oral hearing. An oral hearing is not a necessary component of a right to make a representation in every case. Even the right to be represented by a legal practitioner cannot be claimed by the detenu in so far as his appearance before the Advisory Board is concerned. In support of this contention, Shri Khandeparkar has invited our attention to a decision of the Constitution Bench of the Supreme Court in Haradhan Saha’s case, . This was a case where the validity of some of the provisions of the Maintenance of Internal Security Act, 1971, was challenged on the ground that they were violative of the provisions of Article 14, 19 and 22(5) of the Constitution. The Constitution Bench on a consideration of the relevant decisions observed that the opinion of the Advisory Board as well as the order of the Government rejecting the representation of the detenu must be after proper consideration. However, there need not be a speaking order. There was also no failure of justice if the order was not a speaking order. All that was necessary is that there should be a real and proper consideration by the Government and the Advisory Board. This has been so stated in para 26 of the Judgment at page 207 (of SCC) : (at p. 1484 of Cri LJ) of the Report. Further, in Para 28 of the Judgment, the Constitution Bench observed that an opportunity of making a representation cannot be equated with an opportunity of oral hearing or hearing before a Court and the procedure of a judicial trial. The duty to consider the representation does not mean a duty to accord personal hearing or disclosure of reasons in support of one’s conclusion. The Constitution Bench further observed in Para 30 that elaborate rules of natural justice were excluded, either expressly or by necessary implication, where procedural provisions are made in the statute or where disclosure of relevant information to an interested party would be contrary to the public interest. Relying heavily upon this decision. Shri Khandeparkar contends that there is no obligation on the detaining authority to independently communicate the result of the consideration of the representation by the detaining authority. Undoubtedly, there is an order of confirmation passed under clause (f) of S. 8 of the COFEPOSA Act, which states that the Central Government had fully considered the report of the Advisory Board and the material on record. The learned counsel, therefore, contends that there is no warrant for contending that there has to be an independent communication of the result of the consideration of the representation by the detaining authority.
24. On the fourth contention of Shri Pereira regarding the non-application of mind on the part of the detaining authority to the representation dated 9-5-1992, Shri Khandeparkar has invited our attention to another recent Constitution Bench decision of the Supreme Court in the case of K. M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India, . As stated earlier, the Supreme Court has in this decision reviewed the earlier case law and has in fact declared that the view expressed in three earlier decisions of the Supreme Court viz. (i) in the case of V. J. Jain , (ii) in Om Prakash Bahl’s case, being Writ Petn. No. 845 of 1979, decided on October 15, 1979 (unreported) and (iii) in Khairul Haque’s case, being Writ Petn. No. 246 of 1969, decided on September 10, 1969 (since reported in (1969) 2 SCWR 529) (un-reported) was no longer good law. In Para 20 of the Judgment, at page 489 (of (1991) 1 SCC) : (at P. 798 of 1991 Cri LJ) of the Report, the Constitution Bench has specifically declared that these three decisions were overruled. It is true that question of unexplained delay was not argued in this case before the Constitution Bench, but the Judgment is eloquent on the question of requirement of consideration of the representation and the time involved in the process of consideration. The Constitution Bench while approving of the observations in the case of Frances Coralie Mullin v. W. C. Khamba, , observed that the time imperative for consideration of a representation can never be absolute or absessive. In the very scheme of the provisions of the COFEPOSA Act where it is permissible for the Government to revoke the order of detention even after the same is confirmed, the Constitution Bench observed that it was only proper that the government should consider the representation only after the receipt of the report of the Board in certain situations mentioned in Para 16 of the Judgment. It was not even obligatory to consider the representation before confirming the order of detention. If in a given case the representation is received after the confirmation of the order of detention, the government is still bound to consider such a representation and can on such consideration revoke the order of detention even after it had been confirmed. The Constitution Bench, therefore, concluded in para 20 of its Judgment at Page 489 (of (1991) 1 SCC) : (at p. 798 of 1991 Cri LJ of the Report that so long as the representation was independently considered by the government and so long as there was no delay in considering the representation, the fact that the representation was considered even after the confirmation of the order of detention makes no difference to the validity of the detention or confirmation of the order of detention. It was in this behalf that the Constitution Bench overruled its earlier three decisions. Shri Khandeparkar has placed heavy reliance on this decision of the Supreme Court. It may be incidentally mentioned that the Constitution Bench in K. M. Abdulla Kunhi’s case has in para 19 of the judgment, at page 488 (of of the Report, approved of its earlier view viz. the view of the Constitution Bench in Haradhan Saha’s case, .
25. Shri Khandeparkar preferred to rely upon the decisions of the two Constitution Benches mentioned above and contended that it is clear from the material on record that the detaining authority has considered the representation made by the detenu. We have perused the record ourselves in the light of the Affidavits made by Shri Mahendra Prasad and Shri Roop Chand. We are satisfied that independently of the consideration by the Advisory Board, the detaining authority has considered the representation of the detenu. It is clear to us that there was only one representation made by the detenu viz. the representation dated 9th May, 1992 and the same was considered without any loss of delay and even before the confirmation of the order of detention on the 29th June, 1992.
26. On the last point raised by Shri Pereira viz. the delay in consideration of the representation, that is to say the delay between the date of the receipt of the representation viz. 13th May, 1992, and the date of the issuance of the order of confirmation viz. 29th June, 1992, Shri Khandeparkar contends that there is in the facts and circumstances of the case no delay whatsoever. He invited our attention to the elaborate Affidavit of Shri Roop Chand who has given a date-wise development from the receipt of the representation till its disposal and till the passing of the order of confirmation on the 29th June, 1992. He has catalogued the process of consideration of the representation and the movement of the file from one authority to the other up to the Finance Minister, who considered the case on the 26th June, 1992 pursuant to which the order of confirmation was issued under clause (f) of S. 8 of the COFEPOSA Act on the 29th June, 1992. In between this period, there were a number of holidays, including Saturday & Sunday, and the Minister of State was on tour between the 11th and 16th June 1992. He, therefore, contends that though it was not obligatory on the government in every cast to consider the representation before the confirmation of the order of detention, as observed by the Constitution Bench in K. M. Abdulla Kunhi’s case, (1991 Cri LJ 790) (SC), in fact, in the present case the representation of the detenu was considered as soon as possible and even before the confirmation of the order of detention on the 29th June, 1992. Shri Khandeparkar, therefore, contends that there is no delay whatsoever in consideration of the representation and the lapse of period between 13th May, 1992 and 29th June, 1992 has been satisfactorily explained.
27. On the submissions of the rival counsel, therefore, the following 5 contentions need to be considered :-
(i) Whether there was un-explained delay between the date of the release of the detenu on bail on 15th September, 1991 and the issuance of the order of detention on 5th March, 1992 ?
(ii) Whether the time leg between the date of the order and the execution thereof, that is to say the time lag between 5th March and 31st March, 1992 is fatal to the order of detention ?
(iii) Whether the detenu was denied the opportunity of being before the Advisory Board ?
(iv) Whether there is non-application of mind on the part of the detaining authority to the representation dt. 9th May 1992 made by the detenu ?
(v) Whether there was un-explained delay in consideration of the representation, that is to say whether the time lag between 13th May, 1992 – the date of the receipt of the representation and 29th June, 1992 – the date of the issuance of the order of confirmation has been properly explained.
In the light of the submissions made before us, we have ourselves perused the original papers that were made available to us by Shri Khandeparkar and our answers to these 5 contentions are as under :-
28. The first two contentions can be disposed of together viz. the question of delay between 15th September, 1991 and 5th March 1992 and secondly, the delay between the date of the order of detention and its service viz. the delay between 5th March and 31st March, 1992. We must at once mention that as early as in Gora’s case , the Supreme Court made it clear that there was no hard and fast rule regarding the time lag of a few days or a few months. The Supreme Court pointed out the difficulty in investigating into such acts which necessitated detention under different laws. Gora’s case was the case of a dacoity on the night between 25th and 26th June, 1973 and the order of detention was made as late as on December 29, 1973. The Supreme Court rejected the mechanical and blind approach of the test of proximity by merely calculating the number of days and months and observed that what the Court has to determine is whether the past activities of the detenu are such that from them a reasonable prognosis can be made as to the future conduct of the detenu. If this subjective satisfaction was arrived at by the detaining authority, the more lapse of a few days or months was not, according to the Supreme Court, fatal to the conclusion necessary for passing of an order of detention.
29. Again, in case of Ashok Narain v. Union of India, , the Supreme Court rejected the application of the mechanical test of delay of a few days or months. Ashok Narain’s case was dealing with the arrest of the detenu on 23rd February, 1981 and his detention under the COFEPOSA as late as on October, 14, 1981 viz. a gap of nearly 9 months. The Supreme Court observed that the time lag in such cases may be the result of full and detailed consideration of the facts and circumstances of the case by the various departments involved and, therefore, the mere passage of time from the date of arrest till the date of detention would not necessarily vitiate the order of detention.
30. Similarly, in the case of Smt. Hemlata Kantilal Shah v. State of Maharashtra, , the Supreme Court observed at page 13 (of AIR) : (at p. 155 of Cri LJ) of the Report in Para 6 of the Judgment that the delay ipso facto in passing an order of detention after the offending act was not fatal to the detention of the person, for such a delay in some cases may be unavoidable and may be reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. The Supreme Court further observed in Para 7 that the detaining authority was not under a legal obligation to tell or satisfy the detenu as to the causes of delay. It has, however, to satisfy the Court as to the causes of delay that there was no infraction as to the constitutional provision laid down under clause (5) of Article 22 of the Constitution.
31. Finally, in Rajendrakumar’s case, , the Supreme Court was dealing with a case where the offending act was detected on 29th December, 1986, the detenu was arrested on 2nd February 1987 and the order of detention was passed on 28th May, 1987. In Para 12 of the Judgment, at page 164 (of SCC) : (at p. 1781 of Cri LJ) of the Report, the Supreme Court reviewed its earlier decision, including the decision in Gora’s case, (1975 Cri LJ 429) (SC) referred by us earlier, and the Supreme Court concluded that the test the proximity was not a rigid or mechanical test to be blindly applied by merely calculating the number of days or months between the offending act and the order of detention. If the authority comes to the conclusion that the link had not snapped and the delay is attributable to the usual difficulties in investigating such a foreign exchange racket, as in the present case, it would not be permissible to strike down the order of detention merely on the ground of delay.
32. A Division Bench of this Court took the same view in M. P. Mustafa’s case, . M. P. Mustafa’s case dealt with a situation where the offending act was detected on 16th January, 1988, the arrest was made on the 11th March, 1988, the accused was released on bail on 17th May, 1988 and the order, of detention was passed on 7th April, 1989, viz. nearly 15 months later. Nevertheless, the order of detention was upheld rejecting the contention of delay. In view of these decisions, particularly the three decisions of the Supreme Court mentioned above, we do not think that the ratio of the decision in Paturkar’s case, (1992 (2) JT (SC) 261), on which Shri Pereira has placed reliance, can have any application to the facts of the present case. That was a case where there was unexplained delay of more than 5 months from the date of the registration of the last case and the order of detention. Similarly, there was more than 4 month’s delay from the submission of the proposal for detention till the passing of the order of detention. It was in these peculiar facts in Paturkar’s case that the Supreme Court was disturbed by the fact of unexplained delay which had vitiated the order of detention.
33. Similarly the ratio of the decision of this Court in Mohd. Yusuf’s case, can have no application to the facts of the present case. In Mohd. Yusuf’s case, the offending act had taken place on 18th April, 1990 and the order of detention was passed on 30th March, 1991. A Division Bench of this Court took the view that the delay was unexplained, which has vitiated the order of detention.
34. Such are not the facts of the present case before us. In the light of the Supreme Court decisions in Gora’s case, (1975 Cri LJ 429) in Ashok Narain’s case, (1982 Cri LJ 1729) and Rajendrakumar’s case (1988 Cri LJ 1775), we are of the view that the detaining authority has acted as soon as possible and there is no unexplained delay between the offending act and the passing of the order of detention. In our view, therefore, the mere time lag between 15th September 1991 and 5th March, 1992 does not vitiate the order of detention in the facts and circumstances of this case. Once it is held that the link had not snapped, it is clear to us in the light of the Supreme Court decisions that the mere gap on a few days or months is not by itself sufficient to vitiate the order of detention. The first contention is, therefore, rejected.
35. In view of the above, the second contention of Shri Pereira will also have to be rejected. Shri Khandeparkar is justified in placing reliance on the Supreme Court decision in M. Mohammod Sulthan’s case. As stated earlier, this was a case where the order of detention was passed on 12th December, 1989 and though the service was effected on 12th January, 1990 viz. one month later, the order was upheld.
36. Shri Pereira’s reliance upon the observations of the Supreme Court in the case of T. A. Abdul Rehman v. State of Kerala, (1990 Cri LJ 578), is misplaced in the facts of this case. In Abdul Rahman’s case, the Supreme Court reiterated the fact that the test of proximity was not a rigid or mechanical test to be adopted by merely counting the number of days and months between the offending act and the order of detention. However, if there was unexplained delay and the authorities were guilty of laxity and had miserably failed in explaining the delay, it could be a ground relevant for considering the challenge to the order of detention. In a given case, it could be fatal. In Abdul Rahman’s case, the Supreme Court was not satisfied with the explanation offered by the authority and concluded that there was laxity on the part of the authority in explaining the delay of three months in securing the arrest of the detenu. In view of the observations of the Supreme Court in the cases mentioned earlier viz. Gora’s case, (1975 Cri LJ 429), Ashok Narain’s case, (1982 Cri LJ 1729) and Rajendrakumar’s case, (1988 Cri LJ 1775), and also in view of the latest decision in Mohammed Sulthan’s case, (1990 Cri LJ 2473) (SC), we are of the view that the delay in service of the order of detention does not vitiate the order of detention in the facts of the present case. There is, thus, no merit in the second contentions raised by Shri Pereira.
37. The third contention of Shri Pereira is regarding the alleged failure to afford an opportunity to the detenu of being represented before the Advisory Board when it met at Delhi on the 22nd May, 1992. Shri Khandeparkar is justified in placing reliance upon the declaration made by the detenu on the 5th May, 1992, which we have reproduced above verbatim. The detenu was informed by the Deputy Registrar of the Delhi High Court (COFEPOSA Branch) by a letter dated 30th April, 1992 that the Advisory Board was to meet in the Committee Room of the Delhi High Court at 2.00 p.m. on the 22nd May, 1992. The detenu was permitted to engage a lawyer at the time of hearing before the Advisory Board. The detenu is an English knowing person who was working as a receptionist in a Hotel at Goa and is involved in a foreign exchange recket with connections at Bombay and in United Kingdom. He categorically states in the declaration that he did not desire to be heard in person at the date, place and time. There is no grievance made about the declaration dated 5th May, 1992 being not genuine or authentic. In view of this, it is difficult to accept the contention of Shri Pareira that the detenu was not given an opportunity of being heard by the Advisory Board. Shri Pereira’s reliance on the Supreme Court decision in Sukhpal Singh’s case, is wholly misplaced. As pointed out earlier, Sukhpal Singh’s case was dealing with a situation where the Advisory Board was to meet at Indore on the 12th November, 1988 and the detenu applied for adjournment on the 8th November, 1988 on the ground that he was unwell. On the 11th November 1988 the detenu was informed by I.G. (Prisons) that his application for adjournment was granted and that he will be communicated the next date of hearing. The Advisory Board, therefore, did not meet on the 12th November, 1988. Unfortunately, however, since the Advisory Board was running short of time, which was to expire on the 19th November, 1988, it met on the 17th November, 1988 without affording any opportunity to the detenu. This was what was held to be impermissible by the Supreme Court in Sukhpal Singh’s case, (1990 Cri LJ 584). This is clear from Paragraphs 26 and 27 of the Judgment appearing at page 111 (of JT (SC)) : (paras 21 and 22 at p. 597 of 1990 Cri LJ) of the Report. We do not think that there is any parallel between Sukhpal Singh’s case and the present case.
38. Shri Khandeparkar is justified in his contention that in the scheme of the provision of S. 8 of the COFEPOSA Act read with clause (5) of Article 22 of the Constitution, there is no right to be represented by a legal practitioner before the Advisory Board. The detenu was given a chance of being represented. He declined to avail of the offer. Shri Khandeparkar is also justified in placing reliance upon the observations of the Division Bench of the Delhi High Court in the case of Sh. Om Prakash Sharma v. The Administrator, Delhi Administration, reported in 1983 Cri LJ 587, where a distinction has been made between appearance through a lawyer and assistance by a friend. The Delhi High Court observed in Para 7 of the judgment at page 589 of the Report that the situations in which a detenu should be represented by a lawyer of should be allowed to be assisted by a friend may be different. The circumstances justifying the assistance by a friend has to be pleaded and established and there can be no general law laid down that in every case where appearance of a legal practitioner is barred either explicitly or impliedly, assistance by a friend must be allowed. Shri Khandeparkar contends that clause (c) of Section 8 itself contemplates a desire being expressed by a person viz. the detenu that the wanted to be heard in person. Here, we have a situation where the detenu categorically says that he did not desire to be heard in person on the 22nd May, 1992 when the Advisory Board met at Delhi. He asked for no assistance either through a lawyer or a friend.
39. Finally, we may conclude on point No. 3 by placing reliance on the observations of the Constitution Bench in Haradhan Saha’s case, (1974 Cri LJ 1479) (SC) where in para 28 it has been observed that the opportunity of making a representation contemplated by Article 22(5) cannot be equated with an opportunity of oral hearing before Court in accordance with the procedure of a judicial trial. The Constitution Bench has further observed in para 30 of the Judgment, at page 208 (of (1975) 3 SCC 1987) : (at p. 1484 of 1974 Cri LJ 1479) of the Report, that elaborate rules of natural justice were excluded, either expressly or by necessary implication, where procedural provisions are made in the statute or where disclosure of relevant information to the interested party would be contrary to public interests. These observations have been made by the Constitution Bench while upholding the validity of the Maintenance of Internal Security Act, 1971. However, suffice for our purpose to say that the detenu was afforded an opportunity of being heard but he declined to avail of it. The detenu made it clear that he did not desire to be heard in person. There is, thus, no merit in the third contention raised by Shri Pereira that the detenu had no opportunity of being represented before the Advisory Board when it met in Delhi on 22nd May, 1992.
40. The fourth contention of Shri Pereira is in respect of the alleged non-application of mind by the detaining authority at the time of confirmation of the order of detention. As indicated earlier, the Constitution Bench in K. M. Abdulla Kunhi’s case, (1991 Cri LJ 790) (SC), has now made it clear that what is necessary is proper consideration by the detaining authority. Rejecting the earlier view in the cases of (i) V. J. Jain, (1979 Cri LJ 1131) (SC); (ii) Omprakash Behl; and (iii) Khairul Haque, (1969 (2) SCWR 529), the Supreme Court has now made it clear that so long as the representation was considered properly and in good time, it is not even obligatory to consider the representation before the confirmation of the order of detention. The Supreme Court has agreed with its earlier observations in Francis Coralie Mullin’s case , which observations have been quoted in para 14 of the judgment in K. M. Abdulla Kunhi’s case, at page 485 (of of the report. It would be useful to reproduce the same as under :-
“We, however, hasten to add that the time imperative can never be absolute or obsessive. The Court’s observations are not to be so understood. There has to be leeway, depending on the necessities (we refrain from using the word ‘circumstances’) of the case. One may well imagine a case where a detenu does not make a representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward, it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before them but may merely forward it to the Board without himself considering it. Several such situations may arise compelling departure from the time imperative. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved. The burden of explaining the necessity for the slightest departure from the time imperative is on the detaining authority.””
After having said this and approved of the view expressed by the earlier Constitution Bench in Haradhan Saha’s case, (1974) Cri LJ 1479) (SC), to the effect that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law and that there need not be a speaking order disposing of a representation, the Supreme Court concluded that all that was necessary was that there should be a real and proper consideration by the Government. Finally, in Para 20 of the Judgment the Supreme Court dealt with the government’s power of revoking the order of detention even after the detention was confirmed. In a given case, therefore, if the representation was received by the government at a late stage just before the confirmation of the order or after the confirmation of the order, the government is obliged to consider the said representation even after the order of detention was confirmed. This is so because the order of detention can be revoked either suo motu or on a representation being made to the government. The sum and substance, therefore, is that there has to be a proper consideration by the detaining authority. In view of this dictum of the Constitution Bench, which has overruled some of the earlier decisions of the Supreme Court, it is not possible for us to accept the fourth contention of Shri Pereira. In fact, his contention is that there has to be a prior consideration by the detaining authority before issuing the order of confirmation and secondly, there has to be distinct communication of the result of consideration to the detenu. We find no warrant for any of those propositions, in the law laid down by the two Constitution Benches either in Haradhan Saha’s case, (1974 Cri LJ 1479) (SC) or in K. M. Abdulla Kunhi’s case, (1991 Cri LJ 790) (SC).
41. The 5th and the last contention raised by Shri Pereira is about the delay in consideration of the representation viz. the delay between 13th May, 1992 and 29th June, 1992. Having perused the original papers, we are satisfied that the explanation given by Shri Roop Chand in his affidavit is satisfactory. The representation dated 9th May, 1992 sent from Goa was received by the detaining authority in Delhi on the 13th May. The Advisory Board met on the 22nd May, 1992. The Advisory Board considered the entire material and was of the opinion that there was sufficient cause for the detention of the detenu. The Advisory Board returned the papers to the detaining authority on the 3rd June, 1992. The papers were processed and submitted to the Joint Secretary (COFEPOSA) on the 4th June, 1992. He considered the same on the 5th June, 1992 and forwarded the papers to the Director General (EIB). The Director General (EIB) considered the case on the 10th June. In between, 6th and 7th June were holidays, being Saturday and Sunday. The Director General forwarded the papers to the Minister of State for Revenue on the 10th June, 1992. The Minister of State was on tour from 11th to 16th June and 20th and 21st June were the holidays being Saturday and Sunday. The Minister of State considered the matter on the 25th June and forwarded the papers to the Finance Minister on the 26th June, 1992. The Finance Minister considered the case on the same day viz. 26th June, 1992; 27th and 28th were Saturday and Sunday and were holidays and the order of confirmation has been passed on Monday, the 29th June, 1992. We do not think that this is a case of any delay in consideration of the representation by the detaining authority or confirmation of the order of detention under clause (f) of S. 6 of the COFEPOSA Act. At any rate, in our view, there is no unexplained delay in consideration of the representation and the confirmation of the order issued on the 29th June, 1992 in the facts and circumstances of the present case. Shri Khandeparkar is justified in placing reliance on the decision of the Supreme Court in M. L. Jose’s case . The Supreme Court observed in Jose’s case that the representation was received in the COFEPOSA Unit on 4th March, 1991 and the same was considered on the 21st March, 1991. It was held in the facts of Jose’s case that there was no delay in disposal of the representation. We have already indicated above the Supreme Court’s approach in the matter of the consideration of the representation. The Constitution Bench in K. M. Abdulla Kunhi’s case, (1991 Cri LJ 790) (SC), has now gone to the extent of saying that such consideration in every case need not necessarily be before the order of confirmation. So long as there is a proper consideration and the consideration is in good time, it is enough compliance with the mandate of clause (5) of Article 22 of the Constitution. The decisions to the contrary have been overruled by the Constitution Bench in K. M. Abdulla Kunhi’s case. In the facts of the present case, therefore, having regard to the pleadings and having perused the original papers produced before us, we do not think that there was any delay in consideration of the representation and/or the time lag between 13th May and the confirmation of the detention on the 29th June, 1992 has been properly explained. Accordingly, there is no merit in the fifth and the last contention raised by Shri Pereira.
42. In view of the above, there is no merit in any of the contentions raised on behalf of the detenu. The Petition, thus fails,
The rule is accordingly discharged.
43. Petition dismissed.
