JUDGMENT
Khan, J.
1. Petitioner was arrested at IGI Airport on 25th April, 2002 and was produced before the Magistrate on 27th April, 2002 for alleged offences under Customs Act and that of FEMA. He was granted bail in this on 14th June, 2002 and was eventually detained under Section 3(i) of COFEPOSA on 5th August, 2002. He was communicated the grounds of detention also on the same day. He made representation against his detention to the detaining authority on 29th August, 2002, which was rejected by order dated 11th September, 2002. He again made a representation dated 23rd September, 2002 to the Chairman of the Advisory Board and also to the Central Government dated 21st October, 2002, asking for re-constitution of the Advisory Board and for revocation of his detention which also suffered the same fate. His detention order was confirmed later and communicated to him on 10th October, 2002.
2. Petitioner has challenged his detention on several grounds. He firstly complains that his detention was punitive in nature as it was passed on the same material on the basis of which a complaint was lodged against him for offences under the Customs Act and, therefore, satisfaction derived by the detaining authority was dehors the provisions of the COFEPOSA. He also alleges that there was an undue delay of 22 days in disposal of his representation dated 23rd September, 2003 and some relied upon documents, like adjudication order in the case of Bharat Bhushan, and security bag Tag Nos. 341823 and 341846 were not supplied to him which vitiated his detention. There was also no material before the detaining Authority to derive satisfaction that his detention was required to prevent him from indulging in smuggling in future as his passport was seized and he was suffering from stringent conditions of bail order. The detention order also suffers from non-application of mind as it was a stereo-typed verbatim reproduction of the dossier sent by the Customs Authority. The detaining authority had also not shown any compelling necessity for his detention.
3. Respondents have filed counter-affidavits denying Petitioner’s allegation and justifying the detention order. They claim that the order was passed by the detaining authority on a careful consideration of the material placed before and relied upon by him which included the voluntary statement of the Petitioner himself, besides statements of other persons and other relevant facts and circumstances. It is denied that the order was punitive in nature or that there was any unreasonable or undue delay in the disposal of petitioner’s representations. The representation dated 28th August, 2002, addressed to the detaining Authority by petitioner’s advocate was received on 2nd September, 2002, on which comments of the Sponsoring authority were sought on the same day which were received on 9th September, 2002. The case was put up before DS (COFEPOSA) on 10th September, 2002, and before the Joint Secretary (COFEPOSA) concerned on 11th September, 2002, and was rejected on the same day without any delay whatsoever.
4. The other representation dated 23/24th September, 2002 was received in the office of detaining Authority on 25th September, 2002 through Jail Superintendent on which the comments were sought on the same day which were, however, received in the office of detaining authority on 18th October, 2002. Petitioner’s case was meanwhile under consideration by the Advisory Board on 27th September, 2002, and its report affirming detention was received in the COFEPOSA section on 8th October, 2002, and the order of detention was confirmed on 10th October, 2002. The representation was then put up before the detaining authority on 18.10.2002 and was rejected on 21th October, 2002 after intervening holidays on 19th and 20th October which was conveyed to petitioner on 22nd October, 2002. The representation was also to be put up before DS (COFEPOSA) on 18th October, 2002, who forwarded it to DDG and JS (Admin.) on 21st October, 2002. It was considered by the Secretary (Revenue) for Central Government on 23rd October, 2002, and was rejected on the same day which was conveyed to the Petitioner on 24th October, 2002 itself.
5. It is also explained that the security tags in question could not be supplied to petitioner as it was not possible to remove these from the bags.
6. The adjudication order in the case of Bharat Bhushan was also not relied upon by the detaining authority and was not required to be supplied to the Petitioner as an adjudication order is ordinarily given to the person concerned on spot. Therefore, no prejudice could be said to have been caused by non-supply of either security tags or the adjudication order which could reflect on the detention. Reliance in this regard is placed on two Supreme Court Judgments – Kamarunnissa Vs. UOI & Anr., and Noor Salman Makani Vs. UOI & Ors., .
7. Needless to emphasise that preventive detention takes its own toll of a person’s liberty and that is why it becomes necessary to ensure that all constitutional and statutory safeguards were strictly observed while ordering such detention. Article 22(5) of the Constitution embodies these safeguards and guarantees and so do Sections 3(3), 8 & 9 of the COFEPOSA casting an obligation on the Detaining Authority to communicate the grounds of detention to the detenue within the prescribed time, which includes the supply of all relevant and relied documents. A right also accrues to him to make an effective representation against his detention at the earliest and any delay in dealing with or disposal of such representation leads to invalidation of the detention order. It results in same consequences if relevant and relied upon documents are not supplied to him within the prescribed time which could disable or prevent him from making an effective representation against his detention.
8. Any delay by itself how so long in disposal of the detenu’s representation does not necessarily invalidate the detention unless such delay is found inordinate and unreasonable and goes unexplained. If the explanation furnished for it is found satisfactory, it cannot lead to nullifying the detention. It is also well settled that non-supply of relied upon documents vitiates the detention irrespective of whether any prejudice is shown to have been caused to the detenu. This is so because non-supply of such documents tantamounts to denial of right of communication of grounds which could also effect a detenu’s right to make an effective representation against his detention. But it is not so in the case of documents referred to by the Detaining Authority in which case detention becomes invalid only if the detenu shows prejudice having been caused to him by such non supply. This distinction has been sometimes maintained and sometime discarded by the Supreme Court in its long-line of judgments. In one of its latest judgments however–Pawanmal Vs. State of Tamil Nadu 1999 SLT 191 it held:-
“Whereas non-supply of a copy and the documents relied upon in the grounds of detention has been held to be fatal to continued detention, the detenu need not show that any prejudice is caused to him.”
9. It is in this perspective that petitioner’s challenge to his detention has to be tested. Petitioners first and foremost grounds of attack relates to the alleged delay of 22 days taken by the Sponsoring Authority in furnishing comments on his representation dated 23.9.2002. It is submitted that unexplained delay by the Sponsoring Authority in furnishing its comments was as fatal as the one by the Detaining Authority in disposal of the representation. Several judgments of Supreme Court including Mahesh Kumar Chauhan Vs. OI (AIR 1990 SC 1456, KD Sheikh Vs. District Magistrate (JT 1996(2) SC 532) and V. Salval Vs. State of Tamil Nadu are cited to show an unexplained delay of few days was held to vitiate the detention order in these cases.
10. Respondents explanation to this is that Sponsoring Authority had deferred furnishing of comments to await the outcome of Advisory Boards report which was made on 8.10.2002 and on the basis of which detention was confirmed on 10.10.2002. The representation was thereafter promptly considered and rejected on 24.10.2002. It is submitted that Sponsoring Authority could do so in the face of impending report of the Advisory Board which could have resulted either in continuation or revocation of detention. Support for this is drawn from the Supreme Court Judgment in Abdullah Kunhi’s case .
11. Whether action on petitioner’s representation could have been deferred by the Sponsoring Authority to await the outcome of the Advisory Board report is the question.
12. The delay in consideration and disposal of a detenu’s representation is regarded fatal because he enjoys a fundamental right of liberty and life. His liberty can be curtailed or taken away only in accordance with procedure established by law. Where he is detained under the preventive detention, which takes away his valuable liberty, he has the right to make a representation at the earliest to show that his detention was not justified. That is why the detaining Authority and the Govt. are under an obligation to consider this representation promptly so as to let him know whether his plea against detention was acceptable or not. Any delay in this would tend to perpetuate the detention otherwise.
13. A situation is conceivable where a detenu’s representation is under examination and the report of the Advisory Board is also round the corner. Would the Authority in such a situation be justified in postponing the consideration of the representation to await the outcome of the Board’s report which could affect the detention either way.
14. The Authority in such a situation, in our view, could defer action till the Board’s report was available. Because this report was crucial for the continuation or revocation of the detention. In a case where the detention was not affirmed, it would render the exercise of further consideration of the representation redundant and futile. But where it was affirmed, the Authority was bound to accord prompt consideration to the detenues representation and dispose if off without any loss of time. Therefore time taken to await the report could not be treated unreasonable to make the detention invalid.
15. This is not to suggest that the Authority was free to offer such explanation in every case. It would be entertainable only in cases where the receipt or processing of the representation coincided with the final stage of the Advisory Board’s deliberations. It would be justified for the Authority in that case to await the outcome of the Board’s report and then to proceed with the disposal of representation promptly and without any delay.
16. It is noticed in the present case that the Board was in the final stage of deliberations when the Sponsoring Authority was asked to furnish comments. It admittedly waited for 21 days to furnish these while awaiting the Board’s report. But after the Board had confirmed the detention it had acted with reasonable dispatch to furnish the comments and the Detaining Authority had also proceeded in the matter promptly to dispose of the representation. It could not, therefore, be held in the circumstances that consideration and disposal of petitioner’s representation was afflicted by undue, unreasonable and unexplained delay which would vitiate the detention. The explanation offered was satisfactory to us in the facts and circumstances of the case. We find support for this in Supreme Court Judgment in Abdullah Kunhi’s case (1991 1 SC 476) holding:-
“?Post confirmation consideration of the representation not unconstitutional. The Government can consider the representation after receipt of the report of the Advisory Board and confirmation of the Detention Order.”
17. We also see no substance in the other plea related to non-supply of adjudication order and the security bag tags which seems to have been raised for the heck of it. According to Respondents the order in question was not relied upon by the Detaining Authority and was in any case being made available to the person concerned on spot. As regards security bag tags, it is submitted that these were so stuck to baggage that these could not be removed though the bags were seized. These in any case formed the case property in the complaint filed against petitioner and could not have been furnished to him.
18. With this, petitioner’s both pleas are rejected. Because since neither the adjudication order, nor the security bag tags were relied upon by the Detaining Authority, the question of supplying these to the detenu did not arise. Even if these were assumed to figure in referred to documents, still petitioner was to show prejudice likely to be caused to him by their non-supply which he has failed to do.
19. Petitioner also alleges that his detention order suffered from non-application of mind because of similarity of action against him and his co-detenu Bharat Bhushan. He says that grounds of detention in the two cases were also the same and verbatim reproduction of complaints for offences under the Customs Act. The recoveries from the two were also clubbed together. It is also asserted that Detaining Authority had failed to show the compelling necessity for petitioner’s detention after seizure of his passport and as stringent conditions were imposed for his bail.
20. None of these pleas persuades us to take the view that the detention order suffered from any infirmity whatsoever, least of all by non-application of mind. When two persons are found involved in one alleged prejudicial transaction, there are bound to be similarities in the action and in the material on the basis of which such action is taken. But that does not necessarily depict non-application of mind of the Detaining Authority while ordering the detention.
21. The other plea also sounds untenable on the face of it. Because mere surrender or seizure of the detenu’s passport or any conditions faced by him for his bail could not furnish any guarantee or proof of his having abandoned his prejudicial activity. By this logic any person facing detention could get away with it on seizure or surrender of his passport and continue indulging in prejudicial activity all the same.
22. Therefore, all things considered, we find no merit in this petition, which is dismissed.