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Non-Reportable   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     No.1101__     of     2012   [Arising out of S.L.P.(CRL) NO. 620 OF 2012]

Rashid Kapadia               ….Appellant

Versus

Medha Gadgil & Ors      ….Respondents

J     U     D     G     M     E     N     T   

Chelameswar,     J.   

Leave granted.

2. Aggrieved by the Judgment in Criminal Writ Petition No.3253  

of 2011 of the Bombay High Court, the unsuccessful petitioner  

therein carried the matter to this Court.

3. The said writ petition was filed challenging the order of  

detention dated 20-07-2011 passed under Section 3(1) of the  

Conservation of Foreign Exchange and Prevention of Smuggling  

Activities Act, 1974 (henceforth referred to as 'the Act'), by the 1st  

respondent.  By the said order it was directed that the son of the  

appellant named Khalil Ahmed Rashid Ahmed Kapadia (hereinafter  

referred to as 'the detenu') be detained under the provisions of the  

Act.

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4. Aggrieved by the said detention order, the appellant herein  

made a representation to the 1st respondent praying that the  

detention order be revoked, for various reasons mentioned in the  

representation.  The said representation came to be rejected by the  

1st respondent by an order dated 07-09-2011.  Subsequently, the  

appellant filed the abovementioned writ petition on 18-10-2011  

challenging the order of detention.  By the Judgment under  

challenge the said writ petition was dismissed.

5. The facts, which lead to the passing of the detention order,  

are as follows:

6. A consignment of goods covered by eight shipping bills, all  

dated 26-10-2010, being exported by a firm called M/s.Noble  

Impex, was detained by the Customs authorities.  On examination  

of the consignment and the relevant documents, the authorities  

opined that there was a mis-declaration with respect to the quality,  

quantity and valuation of the goods sought to be exported.  It  

appears that the said goods were being exported under a scheme  

known as “Drawback Scheme”.  According to the Customs  

Department, the goods were over-valued in order to claim the  

benefit of higher export “drawback”.  It is the case of the Customs  

Department that one Syed Naimuddin is the proprietor of the  

abovementioned M/s. Noble Impex.  Syed Naimuddin and the  

detenu are said to be cousins.  It is the further case of the Customs  

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Department that the abovementioned cousins, with the aid and  

abetment of one Ashok Dhakane and Bala Jadhav, who are the  

partner and employee respectively of M/s. Khakane & Co., a firm  

carrying on business as a clearing house agent, attempted to make  

the abovementioned export.  Therefore, the Customs authorities  

moved the 1st respondent for the issuance of the detention order  

against the abovementioned four persons.    

7. The 1st respondent, on a consideration of the material placed  

before her, issued the detention order.

8. The detention order is challenged on various grounds before  

the High Court; principally, that all the material relevant for  

enabling the Detaining Authority (1st respondent) to record the  

satisfaction that it is necessary to preventively detain the detenu is  

not placed before the authority; secondly, that the detaining  

authority mechanically passed the order of detention without  

carefully scrutinising the material placed before her; and lastly, the  

detention is vitiated by the fact that the representation of the  

petitioner dated 06-08-2011 invoking Article 22(5) of the  

Constitution of India was rejected only on 07-09-2011 after an  

inordinate delay of one month.

9. Elaborate submissions were made before the High Court on  

the first two grounds mentioned above, which did not find favour  

with the High Court.

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19. Coming to the last ground, i.e., delay in disposing of the  

representation made by the appellant, however, the High Court did  

not examine the same in the right perspective.  The relevant portion  

of the Judgment of the High Court in that regard reads as follows:

“He further submitted that the representation  of the detenu was received on 06-08-2011  and the Detaining Authority considered the  representation after taking into account the  comments of the Sponsoring Authority and  the representation was rejected on  07-09-2011.”

20. The learned counsel for the appellant Sri Nikhil Jain once  

again made elaborate submission on all the three grounds  

mentioned above.  But, we are of the opinion that it is enough for  

us to consider the legality of the delayed disposal of the  

representation made by the appellant.

21. The fact that the representation was made on 06-08-2011  

and it was disposed of on 07-09-2011 by the 1st respondent is not in  

dispute.  In the counter affidavit filed by the 1st respondent in the  

writ petition it is stated at para 19 as follows:

“19. With reference to paras 8(DD) of the  petition, I say that the representation dated  6.8.2011 made by Shri Rashid Kapadia, was  received in my office on 6.8.2011 late in the  evening.  The parawise comments from the  Sponsoring Authority were called for by letter  dated 09.08.2011.  I say that during this  period 7.8.2011 was holiday.  The Sponsoring  

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Authority forwarded the parawise comments  on 26.8.2011 which were received in the  Department on 26.8.2011 late in the evening.  There were holidays on 27.08.2011,  28.08.2011, 31.08.2011 and 01.09.2011 and  on 29.08.2011 due to heavy rain fall the office  work was paralysed.  I further state that the  concerned Assistant submitted a detailed note  and forwarded it to the Under Secretary on  30.8.2011.  The Under Secretary endorsed it  on 2.9.2011 and forwarded it to the  Dy.Secretary.  The Dy. Secretary endorsed it  on 5.9.2011 and forwarded the papers to me.  I say that during this period 4.9.2011 was  holiday.  I had independently considered the  representation and rejected it on 7.9.2011.  Accordingly rejection reply was issued on  7.9.2011 through Speed Post to the  applicant.”

22. It can be seen from the above extracted portion that the 1st  

respondent called for the parawise remarks of the Sponsoring  

Authority (Customs Department) on 09-08-2011.  However, the  

Sponsoring Authority responded to the inquiry of the 1st respondent  

on 26-08-2011 with a delay of fifteen days.  The reasons for such  

delay have not been explained by the Sponsoring Authority,  

represented by the 3rd respondent herein.  There is nothing on  the  

record placed before us, which explains the abovementioned delay  

on the part of the 3rd respondent's Department.

23. It is well settled that the right of a person, who is preventively  

detained, to make a representation and have it considered by the  

Authority concerned as expeditiously as possible, is a Constitutional  

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right under Article 22(5).  Any unreasonable and unexplainable  

delay in considering the representation is held to be fatal to the  

continued detention of the detenu.  The proposition is too well  

settled in a long line of decisions of this Court.  We do not think it  

necessary to examine the authorities on this aspect, except to take  

note of a couple of Judgments where the principle is discussed in  

detail.  They are; Mohinuddin alias Moin Master v. District  

Magistrate, Beed and Ors.1  and Harshala Santosh Patil v. State of  

Maharashtra2.

24. Therefore, we have no option, but to come to the conclusion  

that the detention order cannot be sustained on the  

abovementioned ground alone and it is required to be, accordingly,  

set aside.

25. In view of such conclusion, we do not think it necessary to go  

into other contentions raised on behalf of the appellant.  The Appeal  

is, therefore, allowed.                

………………………………….J. ( ALTAMAS KABIR )

………………………………….J. ( J. CHELAMESWAR )

New Delhi; July 25, 2012.

1(1987) 4 SCC 58 2(2006) 12 SCC 211

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