Madras High Court
Smt. Bajaj Preeti Tulsidas vs State Of Tamil Nadu And Ors. on 29 February, 2000
Equivalent citations: 2000CRILJ2625
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
ORDER
1. Petitioner is the detenue against whom an order is passed by the State Government on 9-7-1999, directing the detention under the provisions of Section 3(l)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA 'Act).
2. It seems that on 9-5-1999, the detenue, holder of an Indian Passport, arrived as a passenger at Anna International Airport, Chennai from Singapore, by Singapore Airlines Flight SQ 410, and was carrying a zipper bag as checked in baggage as also a dark blue colour zipper suitcase and two red colour handbags. The detenue then proceeded to Customs Table No. 10 and declared that she was in possession of two cellular phones and other goods totally vaued at Rs. 80,000/-. She was intercepted on suspicion and when asked whether she was carrying any contraband, the detenue replied in the negative. When she was examined closely in the Air Intelligence Unit room, she again reiterated that she was not carrying any contraband. After the examination of her zipper bag, it was found that the said zipper bag contained 10 Sony Compact Discs, 2 Panasonic telephone extension cords, 4 Pioneer Power Amplifiers and 14 Citizen Calculators. The bottom of the zipper bag was found to be tampered with and, therefore, it was cut open. It was found 12 wrist watches were kept concealed. Even the Amplifiers, which were recovered, were unusually heavy and hence, they were opened. They contained 4 Nokia cellular phones, 4 Samsung cellular phones and 14 citizen calculators. Not only this, but finding that the 14 calculators were being unusually heavy, they were opened. It was found that they were carrying 6 SIM Cards in each of the 14 calculators. The examination of the zipper suitcase showed that there were 20 Panasonic Camera batteries, 70 HP Ink Cartridges and 2 Nokia cellular phones. When the red colour handbag was examined, it was found that it contained 30 Sony Data Cartridges, 25 Exabite data Cartridges and 36 HP Ink Cartridges, while the other red colour handbag was found to contain 200 Panasonic Printer Ribbons along with the personal belongings of the detenue. It was obvious that the detenue was trying to smuggle these goods into India without paying proper duty and without declaring the same.
3. The confession statement of the detenue was recorded, admitting all the above details. A further statement was also recorded on 10-5-1999 wherein, the detenue gave her true address as "Flat No. 602, Dreamland Apartments, 6th Floor, Near Goal Maidan, Ulhas Nagar 2". She also admitted that the name of her friend, who gave her money in Singapore, was Vishal and that she did not know her address or telephone number.
4. It was also found that, on 7-1-1998, when she was going to Singapore from Chennai, more than Rs. 8,00,000/- worth of foreign currencies were seized from her possession and a case (O. S. No. 2 of 1998) was registered against her and, in that connection, she was in jail for one year under COFEPOSA Act. She was released from the prison on 12-2-1999 and that the present incident was her second offence.
5. On this basis, the authorities deduced that the total value of the seized goods was Rs. 4,83,525/- which she was trying to smuggle into India by giving misdescriptlon and by avoiding to pay the duties. The detenue was arrested on 10-5-1999 and remanded to judicial custody till 24-5-1999.
6. It seems that thereafter a follow-up action was taken and her residential premises in the aforementioned Dreamland Apartments, Flat No. 602, Near Goal Maidan, Ulhas Nagar-2, Thane, Maharashtra was searched by the officers of Customs (Prevention) Mumbai on 12-5-1999 wherein three documents were recovered and seized, they being :
(i) Copy of Memorandum dated 12-1-1994 in the name of Uddavdas T. Behrani, your husband, from the Enforcement, Directorate, Bombay.
(ii) Copy of Show Cause Memorandum from prosecution unit, M&P, Bombay in the name of Smt. Shoba Kailash Takhre.
(iii) Copy of Ration Card in the name of Chandra Uddavdas.
It was asserted on this basis that the real name of the detenue was Tmt. Chandra Uddhavdas and Thiru Uddavadas T. Behrani was her husband.
7. The detenue made a bail application on 12-5-1999 claiming herself innocent and alleging that the Customs had falsely implicated her by obtaining her signatures on the false statements. This claim was countered by the Department on 18-5-1999 in a separate reply. The detenue had also sent a retraction letter on 25-5-1999 and her counsel had also sent a representation on her behalf on 14-6-1999 to the Customs department, more particularly to the Commissioner of Customs (Airport). Another representation was also sent by the detenue on 29-6-1999 to the Secretary to Government, Public (SC) Department, Chennai. Her remand period was extended from time to time and finally up to 19-7-1999. On this material, the order under COFEPOSA Act has been clamped against the detenue. It is this order which is in challenge in the present petition.
8. Learned counsel appearing on behalf of the petitioner Mr. Jabbar, as a first submission, contends that the detention order is bad and vitiated as the detaining authority has considered extraneous and irrelevant material viz., the show cause notice issued to one Shoba Kailash Thakre, when such show cause notice had no connection whatsoever with the detenue. The second limb of his submission is that the said document was relied upon and was supplied to the detenue. Such document being wholly unconnected and being extraneous, should not have been supplied to the detenue and because of that supply, the detenue was confused and her right to make a proper representation against the detention guaranteed under Article 22(5) of the Constitution of India has been jeopardized. In support of these contentions, Mr. Jabbar, has invited our attention firstly to paragraph (viii) of the grounds and pointed out that a clear-cut mention has been made to the follow-up action and also to a show cause memorandum from prosecution unit, Mumbai in the name of Shoba Kailash Thakre. He then invited our attention to paragraph 2 of the detention order wherein it is stated that from the materials, the State Government were satisfied that she had indulged in smuggling activities. He then took us to paragraph 4 and pointed out the following statement:
While arriving at the subjective satisfaction to detain you under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the State Government have taken into consideration all the facts and materials referred to and relied upon in these grounds mentioned above and also the statements, rnahazars, etc. accompanying thereto.
From this, Mr. Jabbar reiterates that it was obvious that the notice in the name of Shoba Kailash Thakre, referred to in paragraph (viii) was a relied upon document and was taken into consideration by the concerned authority for arriving at its subjective satisfaction to detain the detenue. Learned counsel then suggets that the said Memorandum sent to Shoba Kailash Thakre is not in any way relevant and, therefore, was a totally extraneous document and since the authority has relied the said document firstly, the order under Section 3(1)(i) of the COFEPOSA Act must suffer and secondly, by the supply of this extraneous document (for which the learned counsel took us to the documents furnished in the booklet), the right of the detenue to make an effective representation has been seriously hampered.
9. The learned Additional Public Prosecutor, however, points out that the grounds were being read out of the context. He points out that the said document viz., the showcause memorandum in the name of Shoba Kailash Thakre was not a relied upon document and was mentioned only to complete the narration. He further points out that the detaining authority had taken into consideration only the relevant document which had a definite nexus with the detenue and her activities and, therefore, it could not be said that the detaining authority had taken into consideration any extraneous material. The learned Public Prosecutor further contended that merely because a document was supplied to the detenue would not make it a relied upon document and, as such, it cannot be said that any extraneous material was either considered or supplied to the detenue by the detaining authority. According to him, therefore, there was no question of firstly, the order being vitiated and secondly, the right of the detenue to make an effective representation being hampered.
10. Learned counsel for the petitioner has very strenuously argued that the consideration of extraneous material has always been eschewed by the Apex Court and once there is a statement in the grounds that all the material, including the notice sent to Shoba Kailash Thakre, was considered and relied upon by the State Government to arrive at the subjective satisfaction, it was obvious that the State Government had considered and relied upon an extraneous document. He argues very forcefully that either in the grounds or from the material on record, respondents have not been able to establish any nexus between the notice sent in the name of Shoba Kailash Thakre and the detenue or her activities. In support of this argument, the learned Counsel has relied on the observation made by the Supreme Court in paragraph 7 in Shalini Soni v. Union of India which reads as follows at page 1490 of Cri LJ :
...communication of the grounds presupposes the formulation of the grounds and the formulation of the grounds requires and enures the application of the mind of the detaining authority to the facts and material before it that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and atumatism (if one may be permitted to use the word to describe a mechanical reaction without conscious application of mind). It is an unwritten rule of law constitutional and administrative that whenever a decision making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote, where there is further an express statutory obligation to communicate not merely the decision but also the grounds on which the decision is founded it is a necessary corollary that the grounds communicated that is grounds so made known should be seen to pertain to pertinent and proximate matters....
The learned counsel secondly relies on Mahabookhan Nawab Khan Patham v. Police Commissioner wherein, the Court has found fault with the order impunged on the ground that the detaining authority had considered extraneous matters with which the detenue did not have direct or indirect connection or participation. The learned counsel also relied upon paragraphs 8 to 12 of the Supreme Court decision in Vashisht Narain Karwari v. State of U.P. in order to buttress his contention that authority, had in fact, relied upon the extraneous material and had said so in the order. The learned counsel invited our attention to the decision of the Delhi High Court in Pritam Singh v. Union reported in 1995 (3) Crimes 670 : 1995 Cri LJ 1246. A stray reference was also made to the celebrated decision in Khudiram Dass v. State .
11. There can indeed be no dispute with the proposition that if an extraneous material is considered and relied upon by the detaining authority, the detention is vitiated. That is almost a cardinal principle in the law of preventive detention. Therefore, in so far as the above principle is concerned, there can be no dispute that the above mentioned ruling does support the petitioner. However, a question remains as to whether the material considered by the authority was firstly, extraneous and secondly, it was whether relied upon as is being insisted upon by the learned counsel. A very heavy reliance was placed on paragraphs 2 and 4, to which reference has already been made and it was suggested that the detaining authority has actually made an irretrievable statement to the effect that the authority had taken into consideration all the materials referred to earlier and relied upon.
12. The question is whether the statement in paragraphs 2 and 4 would be all and end all to reach a conclusion that the documents, which have been mentioned earlier in the grounds, have actually been relied upon by the authority or not. In ground No. (viii), it is seen that a reference is made to the follow-up action of the search of Flat No. 602, Dreamland Apartments, Near Goal Maidan, Ulhas Nagar-2, which was admitted to be the residential premises of the detenue in her confession statement. Then a reference is also made to the documents found during that search. Document No. (i) refers to copy of memorandum in the name of Uddavdas T. Behrani, who is none else but the husband of the detenue, document No. (ii) happens to be the show cause notice in the name of Smt. Shoba Kailash Thakre and Document No. (iii) appears to be the copy of ration card in the name of Chandra Uddaydas. The language of that ground would clearly suggest that the three documents mentioned therein were actually required to be seized under a panchanama (Mahazar). A panchanama is on record and it makes a reference to these three documents. What is important is the further statement made in ground No. (viii), which reads as :
It is ascertained from the panchanama dated 12-5-1999 for the above seizure of documents from your residence that the first name of Tmt. Chandra Uddhavdas is Bajaj Preeti Tulsidas and that Thiru Uddavdas T. Behrani is your husband.
Now, it is obvious that if a search was conducted in the admitted residential premises of the detenue and during that search a panchanama was executed, evidencing the finding of three documents, the authority had to make reference to all the three documents which were actually seizied. When a reference is made to the panchanama, if the authority had made reference only to documents (i) and (iii) and not to document (ii), a valid complaint could have been made by the detenu that the authority concerned had deliberately not referred to all the documents which were seized during the search and mentioned in the panchanama. From the language of the grounds itself, it is clear that the three documents have been mentioned only to complete the narration as to what was found during the search and what was actually mentioned in the panchanama. The inference drawn from those documents is very important as is suggested immediately after the reference to the three documents and from the inference also, it is clear that what is considered is documents (i) and {iii) i.e. copy of Memorandum dated 12-1-1994 in the name of Uddhavdas T. Behrani and the copy of ration card in the name of Chandra Uddhavdas, none else but the petitioner. That inference has also been stated in the grounds. Therefore, it cannot be said that merely because reference to the document (ii), viz. copy of showcause memorandum from prosecution unit, M&P, Bombay in the name of Shoba Kailash Takhre in the grounds, it automatically becomes a relied upon document. The document has obviously been mentioned to complete the narration regarding the facts of search and seizure and the resultant panchanama and to reiterate as to which documents were actually found in the search and were made part of the panchanama. Beyond, this, it cannot be said that the aforementioned document in the grounds were relied upon. The further reference also suggests the same.
13. Our attention was invited by the learned Public Prosecutor to the counter filed by the detaining authority and more particularly to paragraph 12. An elaborate reference therein is made to the effect that the panchanama dated 12-5-1999 showed that Chandra Uddavdas and Bajaj Preeti Tulsidas are one and the same person, while Bajaj Preeti Tulsidas was the detenue, her name was mentioned as "Chandra Uddavdas" in the ration card. The authority then goes on to assert, on oath, that the panchanama was taken into consideration for this purpose only, while the memorandum in the name of Uddavdas T. Behrani was relied upon to prove that Uddhavdas was the husband of Chandra Uddhavdas. A reference is then made to the ration card where the name is mentioned as "Chandra Uddhavdas" and it is asserted, on oath, that, in fact, the detenue was "Chandra Uddhavdas", who gave her name as "Bajaj Preeti Tulsidas". A clear-cut reference is made to her admissions given in the confession statements that though initially she had given the address as 101, First Floor, Shyam Shadan, Chembur Colony, Mumbai, she subsequently stated that her real address was Flat No. 602, Dreamland Apartments, Near Goal Maidan, Ulhas Nagar-2, Thane, Maharashtra. The authority has asserted, on oath, that the memorandum in the name of Uddahavdas T. Behrani was undoubtedly a relied upon document and the address given in that document cor-related with the address given by the detenue in her second statement at the Custom House and, therefore, it was a relied upon document.
14. As regards the show cause memorandum in the name of Shoba Kailash Takhre, the authority points out that since this document is part of the three documents, which were sent by the Bombay officials, who conducted the search at the residential premises of the detenue and since this document was also part of the panchanama, the said document was referred in the grounds. The authority asserts :
The show cause notice in the name of Smt. Shoba Kailash Takhre is not relied upon document. It is a casual reference document which found place along with the mahzar dated 12-5-1999.
In the same paragraph, it is later on asserted :
Though the show cause was part of the mahazar, it is only a casual reference and the detaining authority has not relied upon this document at all.
From this, it is clear that the detaining authority had not relied upon this document at all and the said document came to be supplied and mentioned because it was an integral part of the panchanama dated 12-5-1999. Once this is clear, there will be no question of treating this to be an extraneous document at all.
15. Mr. Jabbar contended that it was not permissible for the detaining authority to provide an explanation for the order, once the order itself was clear. The reference is only to the statements in the paragraphs 2 and 4 of the grounds, wherein it is stated that the detaining authority had relied on the material referred to earlier in the grounds. For this purpose, Mr. Jabbar relied on the celebrated decision by Justice V.V.N. Bose in Commissioner of Police, Bombay v. Gordhandas Bhanji . The Supreme Court has observed :
Statutory orders cannot be construed in the light of subsequent explanations given by the officer making the order. Statutory orders must be construed with reference to the language used in the order itself.
There can be no dispute regarding the proposition that the language of the order would be all and end all of the matter. However, even considering the language of paragraphs 2 and 4 of the grounds, it cannot be said that there is an assertion in those grounds that the aforementioned document in question (show cause memorandum in the name Shoba Kailash Thakre) was a relied upon document. We have already made a reference that in ground (viii) a mere statement appears that three documents came to be recovered from the residential premises of the detenue in Ulhas Nagar, Thane. The inference drawn, however, is relatable only to documents (i) and (iii) and it cannot be said that there is anything to suggest that the inference is based on the document No. (ii), i.e. show cause memorandum in the name of Shoba Kailash Tkakre. There is no dispute that the said document was supplied to the detenue but, merely because a supply has been effected of that document, it cannot be said that the said document is relied upon for the purpose of the subjective satisfaction. Consideration of the document is one thing and the reliance of that document is quite another. If the detaining authority was considering the seizure mahazar (panchanama), it had to go through all the three documents in order to come to the conclusion as to whether those three documents, were in any way, connected with the smuggling activities of the detenue. Therefore, once the detaining authority comes and explains to us that out of the three documents, documents (i) and (iii) were "relied upon" and document No. (ii) was "not relied upon", it gives a clear picture of the frame of mind of the detaining authority that after considering all the three documents, it relied upon document No. (i) and document No. (iii) and not document No. (ii), which had no nexus with the smuggling activities of the detenue. In our view, such an explanation is perfectly justifiable. Again, we cannot ignore the fact that once the panchanama was referred to, in which there is a reference to the three documents being seized, in all fairness, all the three documents had to be mentioned as seized in pursuance of that panchanama. A deliberate non-mention of one of the three documents would itself have raised a suspicion that the authorities had something up their sleeve and, therefore, the third document was not either mentioned in the grounds or supplied to the detenue. In our considered opinion, the explanation given by the authority is perfectly justifiable and we are further of the clear opinion that the facts stated in the counter by the concerned authority do not amount to subsequent explanations of the order as contemplated in the aforementioned case of Gordhandas Bhanji. The ruling is of, therefore, no assistance to the petitioner. Once it is held that there was no reliance on extraneous material by the detaining authority and that the reference to the document regarding Mrs. Shoba Kailash Thakre was only by way of narration, the supply of that document to the detenue would be of no consequence and the petitioner cannot be allowed to argue that the supply of the said document has affected her right to make an effective representation.
16. Incidentally, the second line of argument by the learned counsel is that such a supply of irrelevant document would have confused the detenue and thereby affected her right to make an effective representation. We have already pointed out that the said document came to be supplied as it was referred to in the panchanama which itself was relied upon by the detaining authority and, therefore, a mere supply cannot have the effect of confusing the detenue or in any way affecting her right to make a effective representation. Apart from suggesting that supply of such a document would affect the said right on the part of the detenue, nothing more has been stated or argued by the learned counsel to suggest that the right would in fact be affected. We do not find that Mahaboob Khan Nawab Khan Patham's case cited supra, would be of any assistance to the petitioner. In that case, some criminal cases were mentioned in the grounds of detention, which were taken into consideration for dubbing the petitioner therein as a 'Goonda' and it was found, as a matter of fact, the petitioner had no connection with three of the criminal cases mentioned. It was under that circumstances that the Supreme Court came to the conclusion that if the petitioner had no connection direct or indirect, with the incidents in those cases, those cases could not be relied upon by the detaining authority and if that was done, it would amount to non-application of mind on the part of the detaining authority. We have already shown here that the detaining authority, in its counter, has shown as to in what manner it took into consideration the three documents and as to why it relied upon two of the said three documents, viz. document No. (i), i.e. copy of memorandum in the name of Uddhavdas T. Behrani and Document No. (ii), i.e. copy of ration card in the name Chandra Uddavdas and did not choose to rely upon the third document, viz. Document No. (ii) i.e. copy of the show cause notice in the name of Shoba Kailash Thakre. Under such circumstances, even if the third document, i.e. show cause notice in the name of Shoba Kailash Thakre, was supplied to the detenue, which was part and parcel of the panchanama, which itself was a relied upon document, it cannot be said that there was any scope for creating any confusion or affecting the right of the detenue under Article 22(5) of the Constitution. We, therefore, reject this contention.
17. The learned counsel thereafter contended that the detenue was detained under COFEPOSA Act on an earlier occasion by a detention order dated 24-2-1998, challenging which, the detenue, had filed a petition in H.C.P. No. 536 of 1998 and that, this Court had allowed the abovesaid petition and had quashed the detention order vide the judgment reported in 1999 Cri LJ 2643. Under such circumstances, if the detaining authority had considered the fact of the earlier detention also in paragraph 3 of the grounds of detention then, obviously, the detaining authority had taken into consideration something which was found by this Court to be of illegal and of no consequence and, thereby, this detention must be vitiated. Learned counsel relied upon the Bombay High Court ruling in Vijayraj Jivraj Solanki v. Union of India reported in 1996 Cri LJ 3957. We must at once point out that the submission is wholly incorrect. In the first place, what is relied upon in ground (iii) is the further statement dated 10-5-1999 given by the detenue before the Customs Officer. In that statement, the detenue had admitted that, on 7-1-1998, when the detenue was going to Singapore from Chennai, more than Rs. 8,00,000/-worth of foreign currencies were seized from the possession of the detenue and a case (O.S. No. 2/98) was started against the detenue and that the detenue was later on in jail in pursuance of a preventive detention action under COFEPOSA Act and that she was released on 12-2-1999. In the first place, this does not amount to the reliance on the previous detention. What is relied upon is the admission of the detenue that she was earlier dealt with under COFEPOSA Act. Again, the authority has also considered the fact that she was released, on 12-2-1999. The authority has also rightly considered the fact that the present incident, on the basis of which, the present action was taken, was a second offence on the part of the detenue, the first being in respect of the incident dated 7-1-1998. It cannot, therefore, be stated that the detaining authority has relied upon an order, which was set aside by this Court. Incidentally, when we look at that judgment, it would be apparent that in that judgment, the petition was allowed on the ground that there was no expeditious consideration of the representation sent by the detenue. What was found to be illegal was the further detention on account of the laxity on the part of the Central Government to consider the representation. There was no fault found with the order. What was quashed was the further detention and not the order. Under such circumstances, if a reference is made to a bare fact that the detenue was already dealt with once under COFEPOSA Act for an earlier incident and that the present incident amounted to the second offence, we do not think that there is anything wrong with the approach of the detaining authority. In the aforementioned ruling, the Bombay High Court had found that though the authority had made a reference to the earlier detention order, there was no mention that the said order was quashed by the High Court. The Court, therefore, came to the conclusion that the reference to a non est order, which was set aside by the High Court, would certainly bring the detention order under cloud. Such is not the case here. Though the Habeas Corpus Petition was allowed, nothing wrong was found with the order passed in the ealier prevention proceedings under COFEPOSA Act and again there is a clear-cut reference to the release of the prisoner also, which was on 12-2-1999. Therefore, it cannot be said that the authority herein has relied on an order, which is non est as it was set aside by the High Court. The contention, therefore must be rejected.
18. Lastly, the learned counsel argues that there was unexplained delay in the consideration of the representation made on behalf of the detenue, both by the Central Government as also the State Government. The representation was dated 26-7-1999 and was sent by the detenue on 28-7-1999. It was forwarded by the Superintendent of Central Prison, Chennai and it was received in the COFEPOSA Unit of the Central Government on 4-8-1999. The sponsoring authority's comments were received in the COFEPOSA Unit of the Central Government on 4-8-1999 at 5.25 PM itself. The matter was then considered by the Deputy Secretary on 5-8-1999, who submitted the file to the Joint Secretary on 6-8-1999, who, in his turn, submitted the file to the Secretary, Ministry of Finance, on 7-8-1999. However, since the Secretary, Ministry of Finance was on leave up to 11-8-1999, the file was submitted to the Finance Minister on 9-8-1999. The Finance Minister, after consideration of the representation, did not find any merit in the representation and rejected the same on 10-8-1999. After the file was received back on 12-8-1999, the detenue was intimated about the rejection on the same day. This is apparent from the counter filed by the Central Government, though belatedly. We are of the considered opinion that from the dates which appeared in the counter, which was not controverted by the learned counsel for the petitioner, it cannot be said that there was any delay worth the name on the part of the Central Government to consider the representation.
19. That leaves us with the second limb of the learned counsel's argument that there was a delay on the part of the State Government in consideration of the representation. We would first see as to what exactly the delay is and the dates when the said representation was considered. From paragraph 18 of the counter, it is clear that the representation was received by the State Government on 29-7-1999. Remarks were called for from the Customs Department on 30-7-1999. The next two days being holidays, the Customs Department forwarded its remarks on 3-8-1999, which was received by the Government on the same day. Then the remarks were called for from the Public (SC) Department on 4-8-1999. The file was returned from that Department on the same day. The circulation note was put up on 4-8-1999 to the Deputy Secretary to the Government, Public (L&O) Department, who considered the same on 5-8-1999. Then the Secretary to Government, Public (L&O) considered the case on 6-8-1999. Again, the next two days being holidays, on account of weekend, the file was sent to the Secretary, Law Department, on 9-8-1999. The Law Department raised certain queries and returned the file to the Public (L&O) Department on 13-8-1999. The file, with the clarification sought, was put up again on the same day. Again, the next two days being holidays on account of weekend, the Deputy Secretary, Public (L&O) Department again considered the matter on 16-8-1999 and put up the same before the Secretary to Government, Public (L&O) who, considered the file on the same day. The Secretary Law Department considered the file on 17-8-1999 and the file was then sent to the Hon'ble Minister for Law on the same day. On the very next day, the Hon'ble Minister for Law considered the representation and rejected the same. The communication was sent to the detenue on 20-8-1999 and the communication was acknowledged by the detenue on 21 -8-1999. The submission of the learned counsel is not so much on the quantum of delay though he has feebly tried to suggest such a delay. After all, after the representation has reached on 29-7-1999, it was disposed on 18-8-1999 and the intimation was given after two days thereof. Therefore, the whole exercise seems to have taken only 21 days from the beginning till the rejection of the representation by the Hon'ble Minister. Three more days were taken to inform the fate of the representation to the detenue. In our view, the total time taken cannot be said to be unwarranted time. When we find that out of these 21 days, 6 days were holidays, which would leave barely 15 days for the Government machinery to act. The learned counsel, however, very strongly suggests that since the representation was being considered by the very Government which had ordered the detention, the delay by the State Government will have to stand a tough scrutiny and that practically every day taken by the State Government in the process will have to be explained. In short, according to the learned counsel, there is some unexplained delay in considering the representation. For this purpose, the learned counsel very heavily relied upon the observations made by the Apex Court in the case of Paulsamy v. Union of India reported in 1999 SCC (Crl) 549 : 1999 Cri LJ 2897 and more particularly to the observations made in paragraphs 2 to 6 therein. According to the learned counsel, initially the comments on the representation were invited by the Deputy Secretary in this case. The learned counsel points out that the Deputy Secretary had no authority to dispose of the representation as only the Hon'ble Minister could take the decision regarding the inviting of the comments on the representation. Relying on Paulsamy's case, cited supra, the learned counsel says that if the remarks were called by the Deputy Secretary on 30-7-1999, then the period from 30-7-1999 till 5-8-1999 when the remarks came back to the Deputy Secretary was unnecessary waste of time and amounts to an unexplained period. He points out that the only authority who could take decision was the Hon'ble Minister as such, only the Hon'ble Minister could decide as to whether the comments were necessary to be called or not and, in his absence, if the officer like the Deputy Secretary decided to call for the comments then, such exercise amounted to waste of time. Reliance is also placed on the Division Bench judgment of this Court in H.C.P. No. 615 of 1999 (Farook Nagoor v. The State of Tamil Nadu) dated 10-8-1999: (reported in 1999 (2) Mad LW (Cri) 785) to which one of us (V.S. Sirpurkar, J.) was a party. The learned counsel points out that in the aforementioned judgment, the law laid down in Paulsamy's case was followed. The learned counsel also relies on the obsevations in paragraph 9, which read as follows:
Here also, as we have already pointed out, that it was the Deputy Secretary who has called for the comments and admittedly, he was not entitled or armed with the power to consider the representation or deal with it. It is in the routine manner that the comments have been called for and therefore, the delay between 22-1-1999 and 8-2-1999 can be termed as 'unreasonable delay which delay has remained unexplained. It may be that if the representation has been considered by the authority having power to do so, the comments may have been felt unnecessary and in that case, the representation could have been dealt with immediately. That not having been done, the delay has been caused because of the official procedure to invite the comments. In that view, the delay has remained unexplained and the ratio laid down in Paulsamy's case cited supra, applies on all fours to the present facts.
The learned counsel further argued that even considering the time taken, it was clear that the Law Department had taken unnecessary time in inviting clarifications. The learned counsel also argued that as many as three Departments were consulted unnec- ' essarily and this was nothing but a sheer waste of time. The three Departments which were consulted were (i) Public (SC) Department, (ii) Public (L&O) Department and (iii) Law Department. According to the learned counsel, this procedural jargon was avoidable. The learned counsel attacked the manner in which the State Government has answered the questions regarding the delay in consideration of the representation. According to the learned counsel firstly, it was not explained as to on what points clarifications were required, secondly, it was not clear as to who required those clarifications; thirdly, it was not disclosed as to why it had become necessary to seek the clarifications and lastly, as to whether it was the Hon'ble Law Minister who had required those clarifications. Learned counsel also relied on the following decisions :
(i) Smt. Khatoon Begum v. Union of India (1981) SCC (Cri) 493 : 1981 Cri LJ 606 para 8;
(ii) Harish Pahwa v. Union of India ;
(iii) Jahuber Sathik v. State of Tamil Nadu (1999) SCC Cri 511 : 1999 Cri LJ 2881;
(vi) Venmathi Selvam v. State of Tamil Nadu (1998) SCC (Cri) 1359.
20. This argument was countered by the learned Additional Public Prosecutor by suggesting that rejection of the consideration of a representation under the preventive laws being a State business was governed by the necessary Business Rules and it was in pursuance of the Business Rules alone that, the whole exercise was taken up. He pointed out that each day's delay in between 9-8-1999 and 13-8-1999 when the Law Deparment raised the queries stood explained. He further pointed out that the Public (SC) Department, Public (L&O) Department and Law Department were bound to be consulted as firstly, as per the Business Rules and secondly, as the subject of detention come within their jurisdiction as also because these three Departments were consulted even prior to the detention. As regards the other questions raised, the learned Additional Public Prosecutor took a bold stand that the State was not bound to disclose as to what clarifications were sought. He pointed out that those who called for the marks had necessary powers and jurisdiction to invite the same. He also took a stand that it was not necessary for the State to disclose as to why the clarifications had become necessary and the State was also not bound to disclose as to whether in reality the Hon'ble Law Minister had required the clarifications. According to the learned Additional Public Prosecutor, in this case, detention was ordered by the State Government itself and, therefore, it was for the State Government to consider the representation through those officers or authorities who constituted the State Government. The learned Additional Public Prosecutor was at pains to point out that the observations made by the Apex Court in the aforementioned four judgments were not applicable to the present case as the present case stood on the different pedestal in the matter of law as well as on facts. The learned Additional Public Prosecutor, placing heavy reliance on the day to day explanation given in the counter, more particularly in paragraph 18, reiterated that the whole exercise of consideration of the representation was done strictly in accordance with the Business Rules and that there was no scope to say that there was any laxity, casualness, carelessness or red-tapism on the part of the State Government or any of its officers. Learned Additional Public Prosecutor has taken us through the Tamil Nadu Government Business Rules and the Secretariat Instusructions, which Business Rules seem to have been framed under Article 166 (2) and (3) of the Constitution of India.
21. Since the argument of the learned counsel for the petitioner is based on the observations of the Apex Court in Paulsamy's case, cited supra, it will have to be first considered as to whether the said case is applicable to the facts in the present case. It will have to be remembered that in Paulsamy's case there was a specific delegation by the Ministry of Finance, vide order dated 7-7-1995, of the power of revocation of detention order under Section 12 of the N.D.P.S. Act in favour of the particular officers like Secretary, Additional Secretary or Joint Secretary (Narcotics) in the Ministry of Finance, Department of Revenue, Government of India. In that case, the comments of the sponsoring authority were called for on 26-10-1998 and ultimately those comments were received on 10-11-1998. In that behalf, the Supreme Court observed :
From the records we find that the order for calling for comments of the sponsoring authority was not passed by any of the officers empowered by the above orders of the Minister dated 7-7-1995. Therefore, we hold that the representation was dealt with in a routine manner and there was no application of mind by the competent officer as to whether it was necessary to call for comments of the sponsoring authority. In other words, this delay from 28-10-1998 to 10-11-1998 being uncalled for has to be regarded as unreasonable and, therefore, fatal in view of the ratio laid down by this Court in Venmathi Selvam.
Thus, the Apex Court found, as a matter of fact, that certain officers in the Department alone were empowered to revoke the order of detention and none of those officers had applied their mind on the necessity of calling the comments of the sponsoring authority. It was in that view, that the Apex Court found that the period between calling of the comments and actual receipt of the comments remained unexplained and as such, the delay could be regarded as uncalled for and unreasonble having been caused on account of the routine manner in which the representation was dealt with. Relying very heavily on these observations, learned counsel for the petitioner urged that the situation was more or the less identical in the present case. According to him, the power to revoke the detention lay only in the Hon'ble Minister for Law and, therefore, no other authority could have been decided to invite the comments of the sponsoring authority excepting the Hon'ble Minister for Law. According to the learned counsel the comments have been invited by the Deputy Secretary in a routine manner and, therefore, the delay, is unreasonable and fatal to the further detention. On a deeper consideration of the argument, we are of the opinion that the argument, apart from being presumptions, is clearly incorrect. What is being presumed by the learned counsel here is that the power to revoke the detention lay only in the Hon'ble Minister for Law. We would at once show that this order of detention was passed by the State Government itself though the ministerial act of signing the same was done by the Secretary. Therefore, ordinarily the power of revocation under Section 11 of the Act lies with the State Government. Unlike in Paulsamy's case, cited supra, there is no specific delegation in favour of specific officers thereby concentrating the power to revoke the detention in particular officer or officers as the case may be. The necessary corrolary of the fact of the order having been passed by the State Government would be that the power to revoke the detention would lie with the State Government. The concept of State Government would 'take into its fold not a particular officer but, all the officers of the concerned Ministry, who are entitled to act for doing the Government business and such business is governed by the aforementioned Rules of Business. In stark contradistinction with the Paulsamy's case, cited supra, where the power to revoke the detention rested with particular officers, in the present case, the power to revoke the detention, in terms of the language of Section 11 of the Act, would lie with the whole State Government, it being the authority for ordering the detention of course, in addition to the other authorities as contemplated by that section.
22. At this stage, it will be beneficial to look into the Tamil Nadu Government Business Rules. Before that exercise is taken, it has to be borne in mind that the contention that the power of revocation laid with the Hon'ble Minister for law alone is factually incorrect though it may be that the Hon'ble Minister for law could act on behalf of the State of Tamil Nadu. The opening words of the detention order are "Whereas the Government of Tamil Nadu are satisfied...". The order has been given "BY ORDER AND IN THE NAME OF THE GOVERNOR" and has thus been signed by the Secretary to Government. It is therefore clear that the order has been passed by the Government of Tamil Nadu and has merely signed by its Secretary. It would, therefore, be presumptions on the part of the learned counsel for the petitioner to suggest that the power of revocation laid with the Hon'ble Minister for law alone. The power, according to us, laid with the State Government as a whole.
23. The learned Additional Public Prosecutor brought to our notice a Standing Order No. 9 issued by the Chief Minister of Government of Tamil Nadu, dated 3-3-1997, in which, it has been specified that under Rule 35(4) of the Tamil Nadu Government Business Rules, 1978 and in supersession of Standing Order No. 1 of the Chief Minister of Tamil Nadu issued by the Personnel and Administrative Reforms (Per. A) Department, dated 6-6-1998, the Chief Minister had directed that all the files pertaining to Act 14 of 1982, TADA Act 1987 and COFEPOSA Act, 1974 would be circulated to the Minister for Law before issue of orders. The said standing order further provides that if the Minister for Law considered any case to be complicated, he might submit the same for the approval of the Chief Minister. Perhaps, relying on this standing order, which was filed by the learned Additional Public Prosecutor, the aforementioned submission was made by the learned counsel for the petitioner that the power to revoke laid with the Hon'ble Minister for Law. The language of the standing order itself belies the contention. The plain meaning of the standing order would be that no orders should be passed pertaining to the abovementioned enactments unless the concerned file is circulated to the Hon'ble Minister for Law meaning thereby, that the Hon'ble Minister for Law would note each and every order pertaining to the above subjects before the said order is issued. This does not suggest that the exclusive power to revoke the detention laid individually in the Minister for Law to the exclusion of the others so that nobody else could exercise any power including calling for the remarks of the sponsoring authority as suggested in Paulsamy's case, cited supra. The basic presumption by the learned counsel for the petitioner is, therefore, incorrect.
24. Rule 4 of the Tamil Nadu Government Business Rules and Secretariat Instructions provides that the business of the Government shall be transacted in the Departments specified in the First Schedule and shall be classified and distributed between those departments as laid down therein. Rule 6 provides that each department would have a Secretary to the Government, who shall be the official head of that Department and such other officers and servants subordinate to him as the State Government may determine. It also provides that more than one Department may be placed in charge of one Secretary. Rule 7 then provides that the Council shall be collectively responsible for all the executive orders issued in the name of Government in accordance with the rules even if such orders are authorised by an individual Minister on a matter appertaining to his portfolio or as the result of discussion at a meeting of the Council or otherwise. Rule 9 suggests the primary responsibility of the Minister in charge of the Department in the disposal of the business appertaining to that Department. Rule 11 provides that all orders or instruments made or executed by or on behalf of the Government shall be expressed to be made or executed in the name of the Governor. Section III of the Rules deals with departmental disposal of business. Rule 21 provides that the cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may by means of Standing Orders give such directions as he feels for the disposal of the cases in the Department. Rule 23 suggests that the cases shall be submitted by the Secretary in the Department to the concerned Minister excepting those cases in which the Minister may have a personal interest. Rule 25 provides that before the cases submitted by a Secretary or other officer for orders a note for circulation shall be prepared summarising the salient facts and setting out at the end the point or points for orders. It further provides that where other departments have been consulted and the officers other than the Secretary of those Departments have expressed different views the originating department shall obtain the approval of its Secretary and send the case to the Secretary of those departments whose officers gave views different from the originating department. If the view of the Secretaries also differ, then the views of those Secretaries shall be reproduced verbatim in the note for circulation before indicating the points for orders. There are proviso, to this rule which suggest where the Chief Secretary or the Second Secretary or the Secretary of Finance Department or the Secretary of Law Department has expressed different opinions on the case under consideration, which are contrary to or different from the views expressed by the Secretary of the Department to which the case belongs and such Secretary still adheres to his views, he can after indicating the different views verbatim comment upon these views and also add any further comments expressing his own views with justifiable reasons and solicit orders routing the case through the Second Secretary or the Chief Secretary for approval of his own opinion by the Minister or the Chief Minister as the case may be. Rule 31 provides that a Secretary may ask to see the papers in any department if such departments are required for disposal of a case in his department. Sub-rule (3) empowers the Minister who may sent for any papers from any department for his information. The term "Secretary" is defined in Rule 2(o) to suggest that Secretary means a Secretary to the Government of the State, and includes an Additional Secretary, Joint Secretary and a Deputy Secretary to the Government of the State. This would show that once the Government has to take any decision, it has to be done with the active participation of the concerned department of not only the Secretary but also the other officers working in the department under that Secretary like the Additional, Joint or Deputy Secretary and such other officers would have a definite power to act while conducting the Government business covered under the Business Rules. The aforementioned rules also suggest that a Secretary, which includes Additional, Joint or Deputy Secretary, has a definite power to call for the necessary information from the various departments to enable him to prepare a note and to arrive at the points to be decided and has also the power to state his opinion in the matters. There is thus an overall participation by the Secretary, meaning thereby the Additional, Joint or Deputy Secretaries of the Department, in the decision-making process of the Government, which decision may be arrived at by inviting the comments from the necessary authorities. The importance of the Law Department can be seen from Rules 57 and 58.
25. We have already seen that the Hon'ble The Chief Minister had, in the allocation of business under Rule 35(4), directed that before any orders under COFEPOSA Act are issued, the files should be circulated to the Hon'ble Minister for Law. On this background, when we see the First Schedule to the Business Rules, it is seen that the subject of Preventive Detention under the COFEPOSA Act comes under the Public Department. The entry runs like this :
Preventive Detention other than preventive detention under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slumgrabbers, Ordinance, 1982 for reasons connected with Defence, Foreign Affairs, Security of State, Security of India, Maintenance of Public Order, Maintenance of Supplies and Services executed to the community - Persons subject to such detention.
One of the functions of the Law Department is also advising the Government in the matters of litigation, appeals, etc. on legal questions which are not of sufficient importance to necessitate a reference to the Advocate General. We have deliberately made reference to these rules as an argument was advanced that in the case in hands, initially, the comments were invited by the Deputy Secretary from the sponsoring authority and that the Deputy Secretary could not have taken a decision as to whether the comments should be invited or not. Once we find the effective role of a Secretary, which term also included the Additional, Joint or Deputy Secretary then, it cannot be said that the Deputy Secretary who invited the comments on the representation from the sponsoring authority was a total foreigner in the affairs who had no authority to act. We have already seen that the task to consider the representation, by reason of the language of Section 11 of the Act, befall on the State Government as the decision to clamp the preventive detention order is taken under Section 3 by the State Government. In the absence of any order concentrating such power under Section 11 in the hands of particular authorities, the whole State Government would be in a position to take the necessary decisions and, therefore, such decisions would be taken in the light of the Business Rules which empower the concerned officers to invite the comments and to make their own suggestions. Regard being had to the general language of the abovementioned Rules of Business, it cannot be said that the comments invited by the Deputy Secretary in the present case were without any authority and as such, the time required in obtaining those comments from the sponsoring authority was a waste of time or was a sheer official exercise. We have seen from the above rules that the various officers of the departments have to work on a particular proposal and it is only then that a final decision is taken by the Government acting as a whole. In fact a Deputy Secretary inviting the comments would be a part and parcel of the Government alone while taking the decision to invite the comments from the sponsoring authority. It would be as if the State Government has invited those comments which had the authority to revoke the detention orders and, therefore, also have the necessary authority to consider the representation made. We cannot ignore on this backdrop a clear-cut reference made in the detention order in paragraph 7. It is said therein :
You are informed that you have a right to make representation to the Detaining Authority/State Government and also the Government of India, if you so desire in writing against the order under which you are kept in detention. If you wish to make such a representation you should address it to the Secretary to Government of Tamil Nadu, Public (Law and Order) Department, Secretariat, Chennai-600 009 or....
Thus, it is obvious that it was the Secretary, which term also included Additional, Joint or Deputy Secretary, who was empowered to act on behalf of the State Government. The argument based on the Paulsamy's case, therefore, has to be rejected. A reliance was placed by the learned counsel for the petitioner on the Division Bench judgment of this Court in H.C.P.No. 615 of 1999, to which we have already made a reference. There the further detention was quashed by this Court relying on Paulsamy's case, cited supra. There also an order was produced by the Central Government Standing Counsel suggesting that the power to consider the representation was delegated by the Hon'ble Miniter to the Secretary, Additional Secretary or Joint Secretary, COFEPOSA Unit of the Ministry of Finance Department (Revenue). This order was dated 22-4-1998. If that was so, then the factual scenario is clearly different from the present case. That judgment is, therefore, be of no consequence in the present matter. In order to buttress his further contention that a Secretary is different from Minister and, therefore, cannot act where the Minister alone is empowered to consider the representation, the learned counsel relied on a reported decision in Kirthi Kumar v. Union of India and more particularly on paragraph 13 thereof, which makes a reference to the effect that where the order of detention was passed by the Home Minister, the consideration of the representation had to be by the Minister alone and not by the Secretary. For this, another decision in Santhosh Anand's case W.P.No. 1097 of 1979 dated 13-1-1979 was relied upon by the Apex Court. A reference to paragraph 2 suggests that the order of detention was actually passed by the Home Minister of State of Gujarat on 9-9-1980. Under such circumstances, the consideration of the representation by the Secretary would be clearly illegal. In that case the rejection of the representation was by the Secretary and not by the Home Minister. Such is not the case here. Here the order is not passed by the Hon'ble Home Minister' but by the State Government itself by order and in the name of the Government of Tamil Nadu and the representation was also rejected by the Government of Tamil Nadu though it may be that decision to invite comments may have been taken by the Deputy Secretary. We have already found, on the basis of the above mentioned Business Rules, that the said Deputy Secretary was perfectly empowered under the Business Rules to act. The ruling is, therefore, of no assistance to the learned counsel for the petitioner. A reference was thereafter made to the ruling in Smt. Kavitha v. State of Maharashtra wherein a contention was raised that the representation was disposed of by the Minister of State without having any authority to do so. A Standing Order made by the Chief Minister of Maharashtra is referred to in that decision by which the cases under the COFEPOSA Act were allotted to the Minister of State. It was tried to be suggested from this that once such an allotment is made then, it becomes the task of the Hon'ble Minister himself and that of nobody else. The learned counsel suggests that in the present case also, there is a Standing Order in favour of the Hon'ble Miniter for Law for considering any matter under COFEPOSA and, therefore, as per the judgment in Kavitha's case, cited supra, it would be an exclusive task of the Hon'ble Minister alone. In fact, the judgment in Kavitha's case, cited supra, does not consider the question involved in the present petition. There a complaint was made that though the order was passed by a Secretary called Mr. Samant, the representation was considered by the Minister, which was not proper, and that the representation should have been considered only by the said Secretary who made the order. The following observations of the Apex Court made in that behalf are really telling at page 1264 of Cri LJ :
The order of detention was not made by Shri Samant as an Officer of the State Government specially empowered in that behalf but by the State Government itself acting through the instrumentarlity of Shri Samant, a Secretary to Government authorised to so act for the Government under the Rules of Business. Governmental business can never get through if the same individual has to act for the Government at every stage of a proceeding or transaction, however, advantageous it may be to do so. Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages. It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages. It is unnecessary to pursue the matter any further as we find no constitutional or legal infirmity in the representation having considered by the Minister of State, Home Affairs, Government of Maharashtra.
In the present case also, the order is passed by the State Government of Tamil Nadu and, therefore, the consideration of the representation was also by the State Government of Tamil Nadu. In the process, if the Deputy Secretary, who had the power to invite the comments, has acted as part of the Government then, no fault can be found with that process. In fact, the decision in Kavitha's case, cited supra, supports the State rather than the petitioner. Lastly, reliance is placed on the decision of the Supreme Court in Masuma v. State of Maharashtra . Similar argument was raised in this case also that though the order of detention was made by one P.V. Nayak Secretary to Government, Revenue and Forest Department and Ex-Officio Secretary to Government, Home Department, the representation was considered and disposed of by the Minister of State for Home Affairs and not by Mr. P.V. Nayak. Again, the Apex Court observed at page 1258 of Cri LJ :
If we look at the order of the detention, it is clear that it was not made by P.V. Nayak, in his individual capacity as an Officer of the State Government but it was made by him as representing the State Government. It was the State Government which made the order of detention acting through the instrumentality of P.V. Nayak, Secretary to Government who was authorised to act for and on behalf and in the name of the State Government under the rules of business.
The Supreme Court, after taking into consideration the relevant rules, further observed :
Whether P.V. Nayak considered the representation and disposed it of or the Minister of State for Home did so would be immaterial, since both had authority to act for the State Government and whatever be the instrumentality, whether P.V. Nayak or the Minister of State for Home, it would be the State Government which would be considering and dealing with the representation.
The Supreme Court further says :
There is no requirement express or implied in any provision of the COFEPOSA Act that the same person who acts for the State Government in making the order of detention must also consider the representation of the detenu.
Kavitha's case, cited supra, thereafter has been relied upon. All these would go to show that if the State Government was the author of the order, the State Government or any of its instrumentality could take up the task of consideration of representation which has exactly happened in this case. The contention therefore is rejected.
26. The learned counsel then complained of the delay before the Law Secretary. According to him, the file was sent on 9-8-1999 and the Department raised the points only on 13-8-1999 thereby allowing the file to remain with it on 10th, 1 lth, and 12th. That may be so. However, if the Law Department was considering the file, which is clear from the affidavit, and on the basis of those consideration it had also raised certain points to be answered by Public (L&O) Department, seeking its clarifications, it was obvious that the Law Department was working on the file for those three days. We do not find that the period of three days would be such as can be termed as unpardonable delay on the part of the Law Department. It cannot be forgotten that the clarifications raised with Public (L&O) Department were received on the same day by it and the file was thereafter sent back by the Law Department. It cannot, therefore, be said that there was any unpardonable delay on the part of the State Government and more particularly the Law Department. It was complained that it was not clear and disclosed in the counter-affidavit as to what were the queries raised by the Law Department and as to why it had become necessary to seek the clarifications. We are of the clear opinion that such probe is not permissible at the behest of the petitioner particularly, where the time taken is barely three days. The petitioner is, undoubtedly, entitled to the expeditious disposal of her representation but, she cannot have the right to probe into the files and demand to know the points considered by a particular Department. The explanation offered by the Law Department that the file was being considered and that some queries came to be raised on 13-8-1999 on the basis of that consideration offers good explanation. The contention, in that behalf, is therefore rejected. Similar is the contention raised in respect of the queries raised by the authorities from the Customs Department and the Public (SC) Department. It is argued that these departments by themselves were not entitled to revoke the detention and, therefore no queries or clarifications could be sought from these departments. In fact, it can be seen that all the three departments were concerned only with the preventive detention. After all Public (SC) Department and Public (L&O) Department are nothing but the part, of the Public Department which can be seen from the First Schedule to the Business Rules. Therefore, their taking part in the consideration of the representation cannot be faulted. In this behalf, the learned counsel tried to rely on a reported decision in Smt. Khatoom Begum v. Union of India reported in (1981) SCC (Cri) 493 : 1981 Cri LJ 606. In that case, the representation dated 12-11-1980 came to be rejected only on 10-12-1980. The State Government had offered an explanation that the District Magistrate had to gather information from many sources and the representation, with his comments, was returned to the Home Secretary by the District Magistrate only on 25-11-1980 and thereafter, the Law Department was consulted and the file could reach the Home Minister only on 15-12-1980 whereafter it was rejected by the Home Minister on 18-12-1980. In paragraph 6, the Apex Court commented and observed as follows at page 608 of Cri LJ :
If the Parliament or the State Legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter-departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable.
In fact, In the subsequent decisions of the Apex Court, the Apex Court has settled the law by saying that the factum of delay by itself would not be fatal to the subsequent detention if the delay is properly explained. The Apex Court has found fault with the unexplained delay. The learned counsel could not say what was the circumlocutory procedure calculated to cause delay. For that matter, the case of the present detenue cannot be said to have been singled out by taking recourse to some extraordinary procedure. We have already made reference to the necessity of the consultation with the Law Department as also the Public Department. It cannot be said that the officers in this case have acted with laxity and were guilty of red-tapism. On the other hand, the representation seems to have been dealt with with adequate alacrity. The learned counsel also made reference to the case of Harish Pahwa v. State of U.P., and S. M. Jahubar Sathik v. State of Tamil Nadu, reported in 1999 SCC (Cri) 511 : 1999 Cri LJ 2881. In the latter case of Jahubar Sathik, a representation made to the Central Government on 8-12-1997 came to be rejected on 29-1-1998 and that is after about 49 days and the intimation thereof was given only on 2-2-1998. The Supreme Court, on perusal of the original file placed before it, has recorded a finding as follows :
that the clarifications were sought in the usual bureaucratic style only for the sake of clarification without there being any need for it.
The Supreme Court then gone on to hold at page 2883 of Cri LJ :
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 really did not arise nor was 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.
(Emphasis supplied) The factual scenario is totally different. There, as a matter of fact, the Apex Court has recorded a finding that the reasons for which the comments were thrice called from the same authority did not at all exist. No such thing appears to have happened here. It is not a case where the clarifications have been sought from a single authority a number of times. In Harish Pawa's case, cited supra, a representation dated 3-6-1980 was rejected on 24-6-1980. The Supreme Court scoffed at the manner in which the representation was dealt with from 13th June to 16th June and between 17th June and 19th June and then again from 19th June to 24th June. It has adversely commented on the fact that no explanation was offered as to why no action was taken on 4th, 5th and 25th June. Again it has made a comment as to why the Law Department had to be consulted at all. It must be pointed out here that under the Rules of Business of Tamil Nadu Government, the Law Department had to offer its say. Such rules were not before the Apex, Court in Harish Pawa's case. Again in that case, the Chief Minister was the only authority to decide the representation. The factual scenario in Harish Pawa's case is therefore different. Lastly, the learned counsel for the petitioner relied on Venmathi Selvam v. State of Tamil Nadu reported in (1998) SCC (Cri) 1359. The learned counsel particularly relied on the following observations :
The State Government was required to explain how it dealt with the representation between 15-10-1997 and 10-11-1997. Except stating that it called for the remarks of the detaining authority on 17-10-1997 the Government has failed to explain why it had become necessary for it to call for the remarks of the detaining authority.
In this case, the Supreme Court had given a fresh opportunity to the respondent to file a counter-affidavit and yet, the State Government had failed to file any counter and explain as to why it had called for the remarks of the detaining authority and what was the reason for not taking up for consideration the representation of the detenu from 21-10-1997 till 10-11-1997. It was in view of this unexplained delay that the Supreme Court went on to say that though the delay was not long, it had remained unexplained . It also says that though the delay by itself is not fatal, the delay which remained unexplained becomes unreasonable. There is no such unreasonable delay, much less unexplained delay, in the present case. We find that the representation has been dealt with with the required promptitude, alacrity and reasonableness. The aforementioned case is, therefore, of no assistance to the petitioner.
27. In short, we are of the opinion that there was no delay on the part of the State Government in considering the representation of the detenue.
28. In the result, we are of the opinion that the petitioner has no merit and must be dismissed. It is accordingly dismissed.