JUDGMENT
Arun B. Saharaya, J.
(1) By this petition under Article 226 of the Constitution of India, the petitioner has challenged his detention in pursuance of an order dated 30th of January, 1990 made by the Administrator of the Union Territory of Delhi under Section 3(1) read with Section 2(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act) with a view to preventing him from smuggling goods and also preventing him from engaging in transporting, concealing and keeping smuggled goods. It is prayed, inter alia, that a writ of habeas corpus be issued directing the respondents to set the petitioner at liberty forthwith.
(2) In pursuance of the detention order, the petitioner was detained on 28th of April, 1990. The grounds of detention and the documents relied upon were served on him. On 6th of June 1990, he made a representation to the Central Government demanding certain documents and requesting for revocation of the order of his detention. On 27th of June, 1990, he was informed of the rejection of his representation by a memo dated 22nd of June, 1990.
(3) Counsel for the petitioner has urged only one ground, namely, that the petitioner’s detention is vitiated because of unexplained and inordinate delay In disposal of his representation. This ground was pleaded in para No. Xvi of the petition.
(4) In response to Rule Nisi, the detaining authority has not filed any return. An affidavit dated 18th of July, 1990 of Shri J.L. Sawhney has, however, been filed on behalf of the Union of India. With regard to the matter under consideration, it was pleaded in paragraph 2 as follows : “WITH regard to para Xvi of the writ petition, it is submitted that the detenu’s representation dated 6.6.90 forwarded by Superintendent, Central Prison, Tihar, New Delhi vide letter of the same date received in the Cofeposa Unit of the Ministry on 7.6.90 and was placed before J.S.(Cofeposa) the same day. J.S. (Cofeposa) desired parawise comments to be called for. Accordingly, comments were called for from the sponsoring authority the same day. The matter was followed up with the sponsoring authority by a reminder dated 12.6.90. The sponsoring authority submitted their comments vide their letter dated 20.6.90 which was received in the Ministry on 21.6.90. The concerned officer of the Cofeposa Unit submitted the base on 22.6.90 to Js (Cofeposa) who has been empowered under direction issued by the Finance Minister under Rule 3 of the Government of India (Transaction of Business) Rules, 1961, to consider such representations made against the detention order passed by the State Government. Js (Cofeposa) considered and rejected the representation of the detenu dated 6.6.90 on 22.6.90. The memo served through the Superintendent, Central Prison, Tihar, New Delhi was duly acknowledged by the detenu dated 27-6-90. All the relied upon documents had been supplied to the detenu by the concerned authorities. It is therefore submitted that the representation was dealt with continuously and rejected by the competent authority and there was no undue or unexplained delay in the disposal . of the representation by the Central Government. The allegation made that the representation was not considered by the competent authority is therefore wrong and denied.”
(5) On these pleadings, counsel for the petitioner has placed her case in two parts. First, regarding the time spent from 7th of June, 1990 to 20th of June 1990 by the sponsoring authority in sending the comments to the Cofeposa Unit of Ministry of Finance; and secondly, the time taken in communication of rejection of his representation to the petitioner from 22nd of June, 1990 to 27th of June, 1990.
(6) In Harish Bhatia v. Union of India and others, Crl. W. 656/89 decided on 29th of January, 1990, Bahri, J. held that the detention of the petitioner in that case had been vitiated as no explanation had been given for 11 days taken by the sponsoring authority in giving the comments to the concerned department of the Central Government, especially in view of the fact that the sponsoring authority was located in Delhi. In Rama Dhondu Borde v. V.K. Saraf, Commissioner of Police & Ors., , the detention of the petitioner was struck down .on the ground that delay of 10 days (4 days in between were holidays) in disposal of the representation by the Central Government had not been explained. Even this much time taken in the disposal of the representation was found to be an inordinate and unreasonable delay. In paragraph 20 of the judgment, it was emphasised that the representation should be dealt with expeditiously with a sense of urgency and without delay, in the following words: “THE use of the words “as soon as may be” occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay.”
(7) With regard to the first limb of the argument of the counsel for the petitioner, in the Central Government’s reply, not a word has been said to explain the time taken by the sponsoring authority from 7th of June, 1990 to 20th of June, 1990, even if closed holidays on 9th. 10th and 17th of June which were excluded, in forwarding its comments to the Cofeposa Unit, especially when both the authorities are located in Delhi.
(8) On the second count, the affidavit filed on behalf of the Central Government shows that the representation was considered ‘and rejected on 22nd of June, 1990, but the rejection memo was served on him only on 27th of June, 1990. In between, only one day i.e. 24th of June, 1990 was a holiday. This leaves out four effective days for which no explanation has been given.
(9) In a similar situation involving a delay of three working days, continued detention was found to be vitiated in Dilip Dey v. Union of India & Others, Crl. W. 293/90 decided on 6th of December, 1990. The conclusion reached in that case was based upon a discussion of the law laid down by the Supreme Court in a number of decisions, namely, Francis Coralie Mullin v. W.C. Khambra and others, , Mst. L.M.S. Umma Saleema v. B.B. Gujral and another, , Harish Pahwa v. State of U.P.and others, . Aslam Ahmed Zahire Ahmed Shaik v. Union of India and Ors., Jt 1989 2 Sc 34, Pratul Kumar Sinha v. State of Orissa. Jt 1989 2 Sc 578 and Madan Lal Anand v. Union of India and others, . The reasons noted in that judgment apply with equal force to the facts and circumstances of the present case.
(10) Thus, it is found that there is no explanation forthcoming for the delay on both the above-mentioned counts in the disposal of the petitioner’s representation by the Central Government. The continued detention of the petitioner is, therefore, illegal and impermissible. The same is set aside. The petitioner should be set at liberty forthwith, unless he be required to be kept in custody for any other cause.
(11) The Rule is made absolute and the writ petition is, accordingly, allowed. No costs.
