1981 (11) TMI 175 - SC - FEMA

Whether the failure of the State Government of Punjab to forward the representation made by the detenu to the Central Government for revocation of his order of detention under Section 11 of the Act with reasonable despatch renders his continued detention invalid? Held that - In the present case, there was, therefore, no denial of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act. There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority as well as of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act The representations that he made were duly considered by the State Government and the Central Government. The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technicality. Appeal dismissed.

Summary

Issues Involved:
1. Duty of the State Government to forward the representation for revocation of the detention order to the Central Government.
2. Timing and jurisdiction of the Central Government's power to revoke the detention order under Section 11 of the Act.
3. Impact of delay by the State Government on the validity of the detention order.

Issue-Wise Detailed Analysis:

1. Duty of the State Government to Forward Representation:
The petitioner challenged the validity of his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, arguing that the State Government failed to forward his representation to the Central Government. The Court emphasized that under Article 22(5) of the Constitution and Section 11 of the Act, the State Government has a duty to forward such representations to the Central Government. The Court stated, "The detenu has therefore the right to approach the Central Government by a representation for revocation of his order of detention under Section 11(1)(b) and when such a representation is made, the State Government has the corresponding duty to forward it to the Central Government for necessary action."

2. Timing and Jurisdiction of the Central Government's Power:
The Court clarified that the power of revocation under Section 11 of the Act is exercisable at any time, independent of the State Government's actions. The judgment highlighted, "The power of revocation conferred on the appropriate Government under Section 11 of the Act is independent of the power of confirming or setting aside an order of detention under Section 8(f)." The Court dismissed the argument that the Central Government's power to revoke is contingent upon the State Government's prior consideration and rejection of the representation.

3. Impact of Delay by the State Government:
The Court noted the unexplained delay by the State Government in forwarding the representation to the Central Government but concluded that this delay did not invalidate the detention order. The judgment stated, "There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention." The Court emphasized that the detenu's right to make a representation was preserved, and the representations were duly considered by both the State and Central Governments.

Conclusion:
The Court dismissed the writ petition, stating that despite the delay by the State Government, the detenu's rights were not violated as both representations were eventually considered. The Court also expressed disapproval of the State Government's cavalier attitude towards its constitutional obligations, emphasizing the importance of promptly addressing representations in matters involving personal liberty. The judgment concluded, "Subject to these observations, the writ petition must fail and is dismissed."