Naresh vs State of U.P.& Ors.

Vishnu Sahai, J.—Through this writ petition preferred under Article 226 of the Constitution of India, the petitionerdetenu has impugned the order dated 2222002 passed by the third respondent Mr. C.P. Singh, Dy. Secretary Government of U.P. Lucknow, Department of Home (Grah Evam Gopniya Vibhag) U.P. Lucknow detaining him under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities, 1974 (COFEPOSA, 1974).

The detention order alongwith the grounds of detention which are also dated 2222002 was served on the petitionerdetenu on 2222002 itself and their true copies have been annexed to the writ petition.

We have heard learned Counsel for the parties. Since in our view this writ petition deserves to succeed on the ground that there has been an inordinate delay on the part of the State Government in disposing of petitioner''s representation dated 93 2002. We are not referring to the prejudicial acts attributed to the petitionerdetenu in the grounds of detention.

In para 15 of the petition it has been averred that the petitioner preferred a representation to the authorities concerned on 932002, through Superintendent of Jail against the impugned detention order.

Learned Counsel for the petitioner urged that a perusal of para 17 of the return filed by Mr. J.P. Sharma Dy. Secretary Department of Home (Confidential Department) U.P. Civil Secretariat Lucknow shows that there has been an inordinate and unexplained delay between 1622002 and 2622002 by the State Government in disposing of petitionerdetenu''s representation which has rendered his continued detention bad in law.

The averment contained in para 15 of the petition has been replied to in para 17 of the return of Mr. J.P. Sharma referred to above. In short he has stated therein thus:

�On 932002, petitioner preferred a representation which was received in the concerned Section on 1532002, on which date (sic) comments were called from the Commissioner of Customs and copies of the representation were sent to Central Government and Advisory Board. Thereafter the concerned section of the State Government examined the representation and submitted a note on 1632002. On 1632002 the Deputy Secretary examined it and submitted it to the Secretary of Home and Confidential Department who examined it and forwarded it for final orders to the State Government which rejected it on 2632002.�

Since from the averments contained in para 17 of the return filed by Mr. J.P. Sharma it was not clear as to on what date Secretary Home and Confidential Department examined and forwarded the petitioner''s representation, we yesterday ordered the learned counsel for the Respondent Nos. 1 to 3 and 6 to produce the original file.

Pursuant to our order he has produced the same. After perusing it we found that the Secretary Home and Confidential Department after examining the petitioner''s representation forwarded it to the State Government on 1632002 itself.

In such a situation since the State Government rejected the petitioner''s representation 10 days later i.e. 2632002 there is no escape from the conclusion that there has been an inordinate delay on the part of the State Government in disposing of the petitioner''s representation.

The Supreme Court in para 3 of the oftquoted case of Harish Pahwa v. State of U.P. and others, AIR 1981 SC 1126, has laid down the ratio that once a representation is preferred in a preventive detention matter it should be taken up for consideration as soon as 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.

If we apply the ratio laid down in Harish Pahwa case (supra) to our case it would become manifest that the representation preferred by the petitionerdetenu was not dealt with continuously, because no explanation is forthcoming in the return filed by Mr. J.P. Sharma as to why the State Government took ten days time in disposing of the petitioner''s representation. The only reason, which we can conjecture is that the State Government was insensitive to the promptitude with which a representation in a preventive detention. Matter had to be disposed off and such an attitude on its part has rendered the continued detention of the petitionerdetenu is bad in law.

In the result we allow this writ petition hold that the continued detention of the petitionerdetenu is bad in law and direct that the petitionerdetenu be released forthwith unless wanted in some other case.