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Case Number
Attorney(S)
  • For the Petitioner : Mr. Ashok Arora, Adv.
  • — Mr. S.K Misra with Mr. S.K Dubey.
Judges
  • Mr. Justice M.K. Chawla
Acts
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Petitioner : Mr. Ashok Arora, Adv.
  • — Mr. S.K Misra with Mr. S.K Dubey.
Judges
  • Mr. Justice M.K. Chawla
Acts
See more information ...
Smart Summary

Factual and Procedural Background

The detaining authority, Shri K.L. Verma, Joint Secretary to the Government of India, invoked Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) and passed an order of detention against the petitioner dated 13-10-1988, with a view to preventing him from smuggling goods. Pursuant to that order, the petitioner was arrested and detained on 7-11-1988, and the grounds of detention were served to him on the same day.

The petitioner submitted a representation against the detention on 25-11-1988 to the detaining authority and the Central Government. The representations were considered and rejected by an order dated 23-12-1988; however, that rejection was communicated to the petitioner only on 17-01-1989. The petitioner challenged the detention on grounds including delay in consideration and delay in communication of the decision.

Legal Issues Presented

  1. Whether there was an inordinate and unexplained delay in dealing with the petitioner's representation against detention.
  2. Whether the delay in communicating the rejection of the representation to the detenu (a 24-day delay between 23-12-1988 and 17-01-1989) rendered the detention invalid under the legal standards governing preventive detention and Article 22(5) of the Constitution.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner contended that there was an inordinate and unexplained delay both in dealing with his representation and in communicating the result of that representation to him.
  • The petitioner relied on precedent (Harish Pahwa v. State of U.P. & Ors.) to argue that delays in consideration and communication of representations affecting personal liberty render detention unconstitutional.

Respondents' Arguments

  • The respondents maintained that the representations were dealt with "expeditiously" and "continuously," and that no indifference was shown by the relevant authorities; any delay was explained by events and the routing of the file between offices.
  • The respondents provided a chronological account showing receipt of the representation on 28-11-88, internal references and translations, forwarding to sponsoring authorities, consideration by the detaining authority and Ministers, and final rejection dated 23-12-88 — asserting that the processing up to rejection did not involve unreasonable delay.
  • Regarding communication of the rejection to the detenu, the respondents argued that no prejudice resulted from delayed communication because the petitioner’s primary concern was that the representation be considered and a decision taken; they contended that immediate communication was only essential if the decision had been for release.
  • In oral submissions, Mr. Misra (for respondents) conceded that the counter-affidavit did not explain how or why the rejection order was not communicated expeditiously, and he could not point to record evidence explaining the lapse after the file returned from the Finance Minister on 23-12-1988.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Harish Pahwa v. State of U.P. & Ors., AIR 1981 SC 1126 Emphasises that delays in considering and communicating decisions on representations affecting liberty are unacceptable. The State must deal with such representations with utmost expedition and must consider them "continuously" until a final decision is taken and communicated to the detenu. The court relied on this precedent to hold that delay in communicating a rejection can render a detention unconstitutional; Harish Pahwa was treated as directly applicable authority for the proposition that communication of the decision is an essential facet of the statutory/constitutional requirement.
Sachindra Nath Audya v. Union of India & Others, 1988 (2) Delhi Lawyer 82 Holds that delay in communication of the memorandum rejecting a representation is fatal where the result was not communicated with due diligence; cites Harish Pahwa as governing principle. The court cited this decision as an instance where delay in communicating rejection led to quashing detention; it supported the conclusion that the respondents' failure to communicate promptly was fatal to the detention.
Shakir Ahmed v. Union of India & Others, 1988 (2) Delhi Lawyer 312 Affirms that the communication of a decision rejecting a detenu's representation is a necessary facet of consideration; non-communication amounts to non-compliance with Article 22(5). The court used this authority to reinforce that even where representations are dealt with expeditiously, failing to communicate the decision to the detenu violates the requirements of law and Constitution as explained in Harish Pahwa.

Court's Reasoning and Analysis

The court proceeded in two analytical steps reflecting the parties' contentions:

  1. Assessment of the respondents' explanation for delays in processing the representation up to the date of rejection (23-12-1988):
    • The court reviewed the detailed chronology supplied by the respondents showing receipt of the representation (28-11-1988), references to the Collector of Customs, dealing officers, translation of an order, and successive consideration by the detaining authority and Ministers, culminating in rejection on 23-12-1988.
    • On these facts the court found that the representation had been "dealt with continuously and expeditiously" up to the point of final decision, and that any delay in that processing had been satisfactorily explained. The court therefore did not find a fatal delay in the consideration phase.
  2. Assessment of the respondents' failure to explain delay in communicating the rejection to the detenu:
    • The court observed there was "absolutely no explanation whatsoever" for the period from 23-12-1988 (when the file returned to the COFEPOSA Section) until 17-01-1989 (when the petitioner was informed) — a 24-day gap.
    • The court referred to and relied on Harish Pahwa, and subsequent Delhi High Court decisions (Sachindra Nath Audya and Shakir Ahmed), which underscore that the State must not only decide representations expeditiously but must also promptly communicate the decision to the detenu; communication is a necessary facet of the statutory/constitutional requirement governing preventive detention and Article 22(5).
    • The respondents' argument that delayed communication caused no prejudice was rejected by the court as devoid of substance because the precedent treats timely communication as an essential procedural safeguard protecting personal liberty; delay itself can make detention unconstitutional irrespective of asserted absence of prejudice.
    • Because the respondents failed to explain the delay or show it was beyond their control, and because the duty to transmit the decision with reasonable promptness was not discharge, the court concluded the detention could not be sustained on that ground alone.

Holding and Implications

Holding: The court allowed the petition and made the Rule absolute; the continued detention of the petitioner was quashed. The petitioner "shall be released forthwith unless required to be detained in some other case."

Implications:

  • Direct effect: The detention order against the petitioner was set aside and the petitioner is to be released immediately unless there exists some other lawful basis for detention.
  • Scope of precedent: The decision applies established authority (Harish Pahwa and related Delhi High Court decisions) to the facts — reaffirming that unexplained delay in communicating a decision on a detenu's representation is fatal to the detention. The opinion does not purport to establish a new rule beyond the cited precedents; its principal effect is to apply those precedents to the present facts.

Order notation in the opinion: "Petition Allowed" / "Rule is made absolute."

Show full summary ...

    Harvinder Singh Petitioner v. Union Of India And Others S

    M.K Chawla, J.:— In exercise of the powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) hereinafter referred to as COFEPOSA, Shri K.L Verma, Joint Secretary to the Government of India passed an order of detention of the petitioner dated 13-10-1988, with a view to preventing him from smuggling goods. As a consequence of this order, the petitioner was arrested and detained on 7th November, 1988. On the same day, the grounds of detention were duly served.

    2. On 25th November, 1988, the petitioner exercised his right in making the representation against the order of his detention, to the detaining authority and the Central Government. His representations were carefully considered and the same were rejected by order dated 23rd December, 1988, but communicated to the detenu on 17th January, 1989. For the determination of the questions in controversy, the other facts need not be stated.
    3. The contention of the learned counsel for the petitioner is two-fold; that there has been an inordinate and unexplained delay, not only in dealing with the representation but also in communication of its result to the petitioner.
    4. The case set up by the respondents in their counter is that the representations of the petitioner have been dealt with expeditiously, continuously and no indifference has been shown by the appropriate authorities towards it. The delay, if any, has been fully explained. To substantiate this submission, learned counsel places reliance on the following averments :—
    “The petitioners representation dated 25-11-88 was received in the COFEPOSA Unit on 28-11-88. The representation was placed before the Joint Secretary on 29-11-88 who desired the parawise comments of the Sponsoring Authority i.e the Collector of Customs on the representation. On the very next day, i.e 30-11-88, the representation was forwarded to the Sponsoring authority i.e Collector of Customs. The representation was received in the Customs Headquarters on 1-12-1988. On 2-12-88, the same was assigned to a dealing officer. On 6-12-88, the dealing officer sent the representation to the Airport Customs. It may be mentioned that 3-12-88 and 4-12-88 were holidays being Saturday and Sunday. The representation was received at the Airport Customs on 7-12-88. The representation was then processed and since the petitioner had asked for the Hindi translation of the order dated 12-7-88 by the learned A.C.M.M the same was given for translation on 8-12-88. The comments were finalised and the Hindi translation of the order dated 12-7-88 were sent to the Customs Headquarters on 12-12-88. It may be mentioned that 10-12-88 and 11-12-88 were holidays being Saturday and Sunday. The same was received by the Customs Headquarters on 13-12-88 and on the next day, the comments on the representation and Hindi translation of the order were sent to the Ministry. The comments on the representation alongwith the representation and Hindi translation dated 12-7-88 alongwith covering letter dated 14-12-88 were received in the COFEPOSA unit on the same day i.e 14-12-88. The detaining authority, who was on official tour, returned on 19-12-88. The very same day, i.e on 19-12-88, the detaining authority considered and rejected the representation of the petitioner. Since the same representation was also addressed to the Central Government, the detaining authority forwarded the file containing the representation to the Finance Minister through the Minister of State for Revenue on 21-12-88. The Minister of State for Revenue considered and rejected the representation on 21-12-88 subject to the approval of the Finance Minister. The file was then forwarded to the Finance Minister, who considered and rejected the representation on 22-12-88. The file was received back in the COFEPOSA Section on 23-12-88 and two memos, were issued to the petition on 23-12-88 intimating the rejection of his representations by the Central Government and the detaining authority. It is thus submitted that the representations of the petitioners have been dealt with without any unreasonable delay.”
    5. Learned counsel for the petitioner even though contended that the respondents have not explained the undue delay which has occurred from 14-12-88, when the comments alongwith the Hindi translation of the order dated 12-7-88 were received in the COFEPOSA Unit, till its rejection by the Finance Minister on 23-12-88, but the bare perusal of the reply reproduced above, in my opinion, satisfactorily explains the delay at this end also. The important aspect to be kept in mind is as to whether the representation has been dealt with continuously and expeditiously and the appropriate authorities have not shown any indifference in dealing with the same. In my opinion, this essential ingredient has been complied with and the delay, if any, has been fully explained. On the facts of this case, I do not find that there has been any fatal delay at any point of time during the consideration and rejection of the representation.
    6. That may be so, but the respondents have yet to cross another hurdle. The contention is that even if the delay till the rejection of the petitioner's representation is considered to be cogent even then the respondents have not at all explained the delay for not communicating this decision to the detenu till 17-1-1989. According to the learned counsel it is enjoined upon the respondents to show from the record that an earnest attempt was made by the office to inform the result of his representations to the detenu ‘or’ the delay was on account of reasons beyond their control. In the absence of a valid explanation, the order of detention is liable to be set aside. In support of this contention, learned counsel places reliance on the Judgment reported as Harish Pahwa v. State of U.P & Ors. AIR 1981 S.C 1126.(1)
    7. Mr. Misra, learned counsel for the respondents concedes that in the counter-affidavit of the Under Secretary no explanation whatsoever has been furnished, as to how and under what circumstances and at whose fault, the order of rejection of the representation of the petitioner was not communicated expeditiously to the petitioner. He has also not been able to give a valid explanation for this delay from the record file. The fact remains that the department remained inactive, for reasons best known to the concerned officers, and no action was taken on the file after it was reveived back from the Finance Minister on 23rd December, 1988. What is its effect.
    8. The submission of the learned counsel for the respondents is that no prejudice has been caused to the detenu in not communicating the rejection of his representation. His concern was only to the extent of the making of the representation and an order passed thereon. If the orders have been for his release, then the immediate communication was essential, as he could not be detained any longer, but the delayed information of rejection will have not adverse consequence.
    9. This argument on the face of it is devoid of any substance. As observed earlier, the Supreme Court in Harish Pahwa's case (supra) declared the detention of the petitioner unconstitutional on the short ground that there was two days' delay in the rejection of the representation on 24th June, 1980 and its communication to the jail authorities on 26th June, 1980. While expressing their concern for the inaction of the authorities in disposing of such like representations of the detenus, the Court observed as under :—
    “We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking opinion of Secretary after Secretary and allowing the representations to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasize that it is the duty of the State to proceed to determine representations of the character above-mentioned with the utmost expedition which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having been done in the present case, we have no option but to declare the detention un-constitutional.”
    (emphasis added)
    10. Delay in communication of the memorandum rejecting the representation of the detenu has been held to be fatal in a case reported as Sachindra Nath Audya v. Union of India and others, 1988(2) Delhi Lawyer, 82, (2) wherein the order dated 26th March, 1988, of the Finance Minister rejecting the representation was sent on 29th March, 1988 but the same was actually received by the petitioner on 9th August, 1988. Relying on the law laid down in Harish Pahwa's case (supra), the Court observed that it was obligatory on the part of the respondents to immediately communicate the result of the representation to the detenu. This duty having not been performed with due diligence, the detention of the petitioner was quashed. On almost similar facts, wherein the order of rejection was not communicated to the petitioner, Malik Sharief-ud-Din, J. in Shakir Ahmed v. Union of India and others, 1988(2), Delhi Lawyer, 312(3), observed as under:
    “….. The Supreme Court in the case of Harish Pahwa v. State of U.P, A.I.R 1981, Supreme Court 1126 has laid emphasis on the fact that not only that the representation of the detenu must be considered and dealt with continuously but that final decision be taken and that the decision be communicated to the detenu. In this case, it seems to me that the Supreme Court has viewed the communication part of this rejection as a necessary facet to the consideration of the representation. Normally, and ordinarily also, if a representation is made or if there is an appeal for the redressal of a grievance and a decision is taken it must be pronounced to the person who is interested therein. Having found that the representation has been dealt with expeditiously but not communicated to the detenu as required by Harish Pahwa's case, supra, I find that there has been non-compliance with the requirements of Article 22(5) of the Constitution.”
    11. The Judgments referred to and relied upon by the learned counsel for the petitioner fairly and squarely apply to the facts of the present case. Here also admittedly there is absolutely no explanation whatsoever, of the 24 days' delay in communicating the result of the representation of the detenu.
    12. It was imperative on the part of the concerned authorities to discharge the obligatory of dealing with and transmitting the decision with all reasonable promptness and diligence. The respondents have miserably failed to come up to the expectations of the law laid down by the Supreme Court. On that account alone, the detention order deserves to be quashed.
    13. The petition is allowed and the Rule is made absolute. The continued detention of the petitioner is quashed. He shall be released forthwith unless required to be detained in some other case.
    M.T Petition Allowed
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    Comments

    Harvinder Singh Petitioner v. Union Of India And Others S
    (Jul 13, 1989)