S.M. Jahubar
Sathik Vs. State of Tamil Nadu & Ors [1999] INSC 147 (13 April 1999)
S.Saghir Ahmad, D.P.Wadhwa S.Saghir Ahmad, J.
J U D G M E N T
Leave
granted.
The
appellant has been detained in pursuance of an order dated 4.11.1997 passed
under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (for short, `the Act'). This was followed by a
declaration under Section 9(1) of the Act which was made on 27.11.1997. These
orders were challenged by the appellant before the Madras High Court by a writ
petition under Article 226 of the Constitution of India which was dismissed on
15.12.1998. It is against this judgment that the present appeal has been filed.
It is contended by the learned counsel for the appellant that against the order
dated 27.11.1997 passed under Section 9(1) of the Act, the appellant had made a
representation to the Central Government on 8/10.12.1997. But the
representation was rejected after an inordinate delay for which no reasonable
explanation has been provided by the respondents.
In the
counter affidavit filed before the High Court in this case, the respondents had
sought to explain the delay as under:- "9. With regard to averments made
in Para 8 (xxxviii) it is humbly submitted
that the representation dated 08.12.1997 (actually dated 10.12.1997) was
received in the office of the Department of Revenue on 15.12.1997 from the
State Government of Tamil Nadu. The same was received in the Cofeposa Unit of
the Ministry on 16.12.97.
16.12.1997
The representation dated 10.12.1997 was forwarded to the Commissioner of
Customs, Chennai for furnishing of parawise comments.
19.12.1997
The letter calling for proforma comments was received by the Assistant
Commissioner of Customs (Cofeposa), Chennai.
20.12.1997
21.12.1997 Were closed holidays being Saturday and Sunday.
22.12.1997
Proforma comments were prepared and submitted to the Additional Commissioner of
Customs for approval.
23.12.1997
Additional Commissioner approved the comments and the same were forwarded to
Under Secretary (Cofeposa).
25.12.1997
27.12.1997 28.12.1997 Parawise comments were received from the Sponsoring
Authority. On the same day clarifications were called for from the Section
Officer (Cofeposa) by the Under Secretary (Cofeposa).
30.12.1997
Clarifications were provided and file resubmitted to Under Secretary (Cofeposa).
01.01.1998
The representation from the detenu dated 10.12.1997 and proforma comments dated
23.12.1997 from Customs Department, Chennai were placed in two separate files
for consideration by the Additional Secretary (Administration) and Secretary
(Revenue).
01.01.1998
Clarifications were again sought from the Customs Department, Chennai on
certain points.
03.01.1998
04.01.1998 Were closed holidays being Saturday and Sunday.
06.01.1998
The Cofeposa Unit in Customs Department, Chennai, received the letter calling
for clarifications.
07.01.1998
Clarifications prepared and submitted to Assistant Commissioner (Cofeposa) who
submitted the same to Additional Commissioner of Customs, Chennai for approval.
09.01.1998
Additional Commissioner approved the clarifications and the same were despatched
to New Delhi.
10.01.1998
11.01.1998 Were closed holidays being Saturday and Sunday.
12.01.1998
Letter from Additional Commissioner of Customs, Chennai with clarifications
received in the office of Joint Secretary (Cofeposa).
13.01.1998
Clarifications received in the Cofeposa Unit.
13.01.1998
The Section Officer (Cofeposa) submitted the file to Under Secretary (Cofeposa).
14.01.1998
The Under Secretary (Cofeposa) submitted the file to Joint Secretary (Cofeposa).
14.01.1998
Clarifications were again sought from the Customs Department on certain points.
17.01.1998
18.01.1998 Were closed holidays being Saturday and Sunday.
20.01.1998
Letter asking for clarifications was received in the office of the Assistant
Commissioner (Cofeposa), Chennai.
20.01.1998
Clarifications to the letter dated 20.01.1998 were prepared.
21.01.1998
Clarifications were forwarded to the Under Secretary (Cofeposa), New Delhi.
23.01.1998
Clarification from Additional Commissioner of Customs, Chennai was received in
the Cofeposa Unit of the Ministry.
24.01.1998
25.01.1998 26.01.1998 Were closed holidays being Saturday, Sunday and Republic
Day.
27.01.1998
The Under Secretary (Cofeposa) submitted the file to Joint Secretary (Cofeposa).
28.01.1998
The Joint Secretary (Cofeposa) submitted the file to Secretary (Revenue).
29.01.1998
The Secretary (Revenue) received the file.
30.01.1998
The Secretary (Revenue) considered the representation dated 10.12.1997 on
behalf of the Central Government and rejected the same.
31.01.1998
01.02.1998 Were closed holidays being Saturday and Sunday.
02.02.1998
A Memo rejecting the representation was issued.
The
representation dated 10.12.1997 was considered and rejected by the Secretary
(Revenue) in 49 days of which 17 days were holidays and actual time taken for
considering and disposing off the representation is only 32 days. The time
taken for communication with the Sponsoring Authority at various stages of
consideration is also included in the total time taken. It is humbly submitted
that the representation dated 10.12.1997 was expeditiously and independently
considered by the Secretary (Revenue) and disposed it off without any delay.
27.01.1998
The copy of representation dated 10.12.1997 along with parawise comments of the
Sponsoring Authority dated 23.12.1997 and clarifications dated 09.01.1998 and
20.01.1998 furnished by the Customs Department, Chennai were placed in a
separate file and submitted by Under Secretary (Cofeposa) to Joint Secretary (Cofeposa)
28.01.1998 Joint Secretary (Cofeposa) submitted the file to Additional
Secretary (Administration).
29.01.1998
Additional Secretary (Administration) considered the representation dated
10.12.1997 and rejected the same.
31.01.1998
01.02.1998 Were closed holidays being Saturday and Sunday.
02.02.1998
File was received back from Additional Secretary (Administration). 02.02.1998 A
Memo rejecting the representation dated 10.12.1997 was issued.
The
representation dated 10.12.1997 was considered and rejected by the Additional
Secretary (Administration) in 49 days, of which 17 days were holidays and the
actual time taken for considering and disposing off of the representation is 32
days. The time taken for communication with the Sponsoring Authority at various
stages of consideration is also included in the total time taken. It is humbly
submitted that the representation dated 10.12.1997 was expeditiously and
independently considered by the Additional Secretary (Administration) and
disposed off without any delay." We have considered the explanation and
have also examined the original files. The respondents before disposing of the
representation had sought clarifications thrice. A perusal of the original file
placed before us reveals that the clarifictions were sought in the usual
bureaucratic style only for the sake of clarification without there being any
need for it. In these circumstances, it cannot be said that the representation
was disposed of with promptitude. On the contrary, even the explanation offered
by the respondents in their counter affidavit filed before the High Court
indicates the lethargic attitude with which the representation was taken up,
dealt with and ultimately disposed of after seeking clarifications thrice on
issues which did really not arise nor were there any necessity for seeking
clarifications.
The
representation could have been disposed of without seeking clarification which
obviously was sought to cover up the delay in prompt disposal of the
representation.
Since
the matter was not considered by the High Court in the right perspective, the
impugned judgment cannot be sustained. The appeal is allowed. The judgment and
order dated 15.12.1998 passed by the High Court is set aside and the detention
order dated 4.11.1997 passed under Section 3(1)(i) of the Act as also the
declaration made on 27.11.1997 under Section 9(1) of the Act are quahsed with
the direction that the appellant shall be set at liberty forthwith unless his
detention is required in connection with some other case.
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