1981 (8) TMI 216 - SC - FEMA

Whether the detention is to be continued beyond a period of three months or not? Whether there was unreasonable delay on the part of the State Government in considering the representation of the detenu? Held that - The only inhibition on the detaining authority is that it cannot lawfully continue the detention for a period longer than three months unless the Advisory Board has, before the expiration of the period of three months, reported that three is in its opinion sufficient cause for such detention. We must therefore hold that the State Government did not commit any breach of its constitutional or legal obligation in making a reference to the Advisory Board without first determining the period for which the detenu was to be detained. The affidavit of C. V. Karnik shows that the representation of the detenu was immediately put up before the Minister of State for Home for consideration, in the light of the comments received from the Customs Authorities and the representation was considered and rejected by the Minister of State for Home on 23rd February, 1981 and necessary intimation to that effect was conveyed to the detenu by a letter dated 25th February 1981. It is impossible to hold in these circumstances that there was any unreasonable delay on the part of the State Government in considering the representation of the detenu . Petition dismissed.

Summary

Issues Involved:
1. Validity of representation consideration by a different authority.
2. Decision to confirm the order of detention and continue the detention.
3. Reference to the Advisory Board within the stipulated time.
4. Alleged unreasonable delay in considering the representation.

Issue-wise Detailed Analysis:

1. Validity of Representation Consideration by a Different Authority:
The primary contention was that the detenu's representation against the detention order was considered by the Minister of State for Home Affairs instead of P. V. Nayak, who initially passed the detention order. The argument was that the same individual who issued the detention order should consider the representation. The court found no substance in this argument, stating that the detention order was made by P. V. Nayak on behalf of the State Government, not in his individual capacity. The representation could be considered by either P. V. Nayak or the Minister of State for Home, both acting for the State Government. The court emphasized that the requirement under Article 22(5) was met since the representation was considered by the detaining authority, which in this case was the State Government. The court also noted that having a different individual consider the representation might benefit the detenu as it brings a fresh perspective.

2. Decision to Confirm the Order of Detention and Continue the Detention:
The petitioner argued that there was no evidence to show that the State Government decided to confirm the detention order and continue the detention as required by clause (f) of section 8. The court dismissed this contention, referencing the annexures to the writ petition and a statement on oath by C. V. Karnik, which confirmed that the State Government made the order dated 23rd March 1981, confirming the detention and continuing the detenu's detention. The order was expressed to be made "By order and in the name of the Governor of Maharashtra," thereby affirming its validity.

3. Reference to the Advisory Board within the Stipulated Time:
The petitioner contended that the State Government failed to make a reference to the Advisory Board within five weeks from the date of detention, as required by clause (b) of section 8. The court rejected this argument, citing the affidavit of C. V. Karnik, which confirmed that the State Government referred the case to the Advisory Board within the stipulated time. The court further clarified that the detaining authority is not required to decide the detention period before making a reference to the Advisory Board. The reference is mandatory for all detention cases, regardless of the intended detention duration.

4. Alleged Unreasonable Delay in Considering the Representation:
The petitioner argued that there was an unreasonable delay in considering the detenu's representation, which should invalidate the detention. The court examined the timeline and found no unreasonable delay. The representation was forwarded to the relevant authorities promptly, and the State Government acted within a reasonable timeframe. The representation was received on 13th February 1981, comments were sought from the Customs Department, and the representation was considered and rejected by 23rd February 1981. The court concluded that the State Government was not guilty of any unreasonable delay.

Conclusion:
The court found no merit in any of the contentions raised by the petitioner. The petition was dismissed, and the detention order was upheld as valid and legally compliant.