JUDGEMENT These are eight writ petitions for quashing the orders of detention of eight detenus under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the Act") and for a writ of habeas corpus directing the respondents to produce the detenus before the Court and to set them free. The facts averred and the grounds raised in them are substantially the same. I shall therefore consider first the common features in the Writ Petition No. 92/80 which is the first of these Writ Petitions and thereafter the additional contentions raised in the remaining petitions. 2. Shortly stated the case of the petitioner in Writ Petition No. 92/80 is as under :- On 29th March, 1980 the Administrator of Goa, Daman and Diu ("The Administrator" for brevity's sake) after being satisfied that with a view to preventing the detenu from smuggling goods and abetting the smuggling of goods and engaging in transporting smuggled goods, it was necessary to place Vasant Shantaram Bagkar (hereinafter referred to as "the detenu") under preventive detention, directed, in exercise of the powers conferred on him under Section 3 (1) of the Act, that he be detained at Central Jail, Aguada. Accordingly the detenu was arrested on 30-3-1980 and lodged in the said jail. The grounds of detention were communicated to the detenu on 5-4-1980. On April 19, 1980 the detenu made a representation to the Administrator against the detention order. By letter dated June 30. 1980 the detenu was informed, that his representation was rejected. By the letter dated July 28, 1980, the detenu was informed that the Advisory Board constituted under the Act was of the opinion that there was sufficient cause for the detention of the detenu and that therefore the Administrator who was the detaining authority confirmed the detenu's detention and further directed that the detenu be detained for a period of four months from the date of detention. By Order dated July 29, 1980, the Administrator modified the Order dated July 28, 1980 and directed that the detenu be detained for a period of eight months from the date of detention. The petitioner challenges the various orders on the grounds mentioned in the petition. I shall refer to those grounds as I take them up for my consideration. 3. The petitioner challenges the various orders on the grounds mentioned in the petition. I shall refer to those grounds as I take them up for my consideration. 3. The case of the respondents is that the orders challenged in this petition are legal and that therefore the petition should be dismissed. 4. The first two grounds were not pressed by the petitioner. 5. Ground III is that the Administrator passed the detention order mechanically and without addressing himself to the question whether the detenu could not have been adequately dealt with under the ordinary law of the land for the alleged offence. 6. In the affidavit-in-reply the respondents have stated that the Administrator had addressed himself to the question as to whether the detenu could not have been adequately dealt with under the ordinary law of the land and that in the nature and circumstances of the case he had come to conclusion that preventive detention was called for. 7. The petitioner has not placed before me material on which it can be said that the Administrator had acted mechanically. In the present case the grounds for detention have been given with sufficient elaboration. They are copious and amply justify an order of detention. In view of these facts it is not possible for me to infer that the Administrator did not apply his mind to the relevant consideration. In fact, after perusing the records, I am in a position to say that the fact of the possibility of a criminal prosecution was clearly considered by the Administrator. In 'Kanchanlal Maneklal Chokshi v. State of Gujarat', AIR 1979 SC 1945 : (1979 Cri LJ 1306) the Court held that the possibility of launching a criminal prosecution was not an absolute bar to the order of preventive detention and that it was not correct to say that if such possibility was not present in the mind of the detaining authority the order of detention was necessarily bad. The present order of detention does not appear to have been made by way of punishment but for the purpose of preventing the detenu from continuing with nefarious activities. 8. The present order of detention does not appear to have been made by way of punishment but for the purpose of preventing the detenu from continuing with nefarious activities. 8. The fourth ground is that the detention order was made on January 9, 1980, (29-3-1980 ?) almost three months after the incident on which the detention order was passed; that there was no material before the Administrator to substantiate the ground that after January 9, 1980 the detenu was involved in smuggling goods or abetting the smuggling of goods and engaging in transporting smuggled goods; that there was therefore no rational or proximate nexus between the alleged involvement in the alleged attempt at smuggling goods on 9-1-1980 and the purported necessity to detain the detenu under the Act on March 29, 1980. 9. The grounds on which the detention was made disclose various incidents regarding the involvement of the detenu on 4-10-1979, 10-11-1979, 19-12-1979 and 9-1-1980. They relate to contraband of big amounts of wrist watches and silver worth millions of rupees. The last incident is alleged to have taken place on January 9, 1980. The detention order was made on March 29, 1980 by the Administrator. The detenu was detained with a view to preventing him from smuggling goods and abetting the smuggling of goods and engaging in trasporting of smuggled goods. From the grounds of detention it is evident that there was copious material for the Administrator to come to the conclusion that even as late as 29-3-1980, i. e. 2 months and 10 days after the last incident the detenu was likely to get himself involved in the smuggling of goods or abetting in the smuggling of goods or in transporting smuggled goods. In my opinion the detention cannot be said to have been made too long after the incident on which the detention was made. 10. In 'Smt. Rekhaben Virendra Kapadia v. State of Gujarat', AIR 1979 SC 456 : (1979 Cri LJ 212), the detenu was detained under an Order dated 22-7-1974. He was released on 9-12-1974. He was detained again on 4-7-1977, pursuant to an order passed on 7-2-1977. The grounds of detention furnished to the detenu showed that the period related to the years 1973 and 1974. He was released on 9-12-1974. He was detained again on 4-7-1977, pursuant to an order passed on 7-2-1977. The grounds of detention furnished to the detenu showed that the period related to the years 1973 and 1974. It was held that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. The question is whether the past activities of the detenu are such that the detaining authority can reasonably come to the conclusion that the detenu is likely to continue in his unlawful activities. After making his observations Kailasam J., who spoke for the Supreme Court remarked that in that case the detaining authority had not stated that he was satisfied that the detenu was likely to engage in transporting of smuggled goods. His Lordship concluded that as the Order under Section 9 (1) had not been validly made and as the detenu had been in detention for more than one year, his continuance in detention was not sustainable. The ratio in AIR 1979 SC 456 : (1979 Cri LJ 212) is not attracted to the present case. 11. In 'Bhawarlal Ganeshmalji v. The State of Tamil Nadu' AIR 1979 SC 541 : (1979 Cri LJ 462) the incidents relating to detention took place on 23-2-1972 and 20-4-1974. The order of detention was passed on 19-12-1974. The detenu was absconding and did not surrender until 1-2-1978. It was held that the detention could not be said to be invalid on the ground that there was no proximity between the activities of the detenu and the order of detention. 12. In the fifth ground the petitioner contends that the communication of the grounds on which the detention order is based was served on the detenu later than 5 days from the date of detention; that there are no exceptional circumstances for justifying the delay and that, in any event, reasons for the delay have not been recorded in writing. 13. The detenu was arrested on March 1, 1980 and the grounds served on him were communicated to him on March 7, 1980. It is contended by Shri Kakodkar that the grounds of detention were communicated to the detenu seven days after the order of detention; that the delay was of two days and that the delay was not explained. 13. The detenu was arrested on March 1, 1980 and the grounds served on him were communicated to him on March 7, 1980. It is contended by Shri Kakodkar that the grounds of detention were communicated to the detenu seven days after the order of detention; that the delay was of two days and that the delay was not explained. Reliance was placed on 'Nallapareddi Chadrasekhara Reddy v. The Government of Andhra Pradesh, 1974 Cri LJ 158 (Andh Pra) wherein it was held that the day on which the detenu has been arrested had to be counted. With great respect I am unable to agree with the reasoning adopted by the Andhra Pradesh High Court in this ruling. The delay must be counted from the time and the date of the arrest up to the time and date of furnishing the grounds. This ratio was followed in "Gulam Sarwar v. The State of Bihar" (1974 Cri LJ 109) by the Patna High Court wherein the delay was counted from the time of arrest and the delay was found to be of about 8 hours. However even this short delay of about 8 hours was considered to be fatal. In "Nallapareddi Chandrasekhara Reddy v. The Government of Andhra Pradesh" (1974 Cri LJ 158) the detenus were detained on 3-1-1973 and the grounds were served on them on 8-1-1973. The order of detention was held to be bad as the grounds of detention were served on the detenus more than five days after the arrest. In this case also it appears that the grounds of arrest were served on the detenu a few hours after the period of five days was completed. The Supreme Court held in "Gora v. State of West Bengal". AIR 1975 SC 473 : (1975 Cri LJ 429) that Section 3 (3) of the Act is a very important requirement intended to secure that the State Government shall have sufficient time for consideration before it decides whether or not to approve the order of detention. The Court would therefore insist on a strict compliance with the provisions of Section 3 (3) and not condone avoidable delay even if it be trivial. In "Ramesh Ramlal Narang v. M. G. Mugwe", 1976 Cri LJ 135 (Bom) the detenu was detained on 5-10-1974 and the grounds were served on him on 11-10-1974, six days after the detention. The Court would therefore insist on a strict compliance with the provisions of Section 3 (3) and not condone avoidable delay even if it be trivial. In "Ramesh Ramlal Narang v. M. G. Mugwe", 1976 Cri LJ 135 (Bom) the detenu was detained on 5-10-1974 and the grounds were served on him on 11-10-1974, six days after the detention. It was held that the detaining authority was bound to justify every day of delay after the period prescribed for serving the grounds on the detenu. 14. The next question that falls for my determination is whether the justification given by the respondents was acceptable. The justification as recorded reads :- "Since we have now received the report of the Superintendent of Police". The learned Government advocate agree with me that this is the only recording of the justification made by the respondents. To my mind this justification is utterly insufficient. The explanation does not clearly state whether there was any delay and what the case, if any, was. The period, of time of 10 days of delay which can be justified under Section 3 (3) is a period of time given not exclusively to the detaining authority, but also to those whose help the Administrator is entitled to receive in discharge of his functions under Section 5 (3) of the Act. In fact, on going through the records I find that the Administrator was prompt in ordering the service of the grounds on the detenu. He has not taken any time whatsoever for ordering the service of the grounds. But the time taken by the Police in informing the authorities concerned about the detention and by the other officers who took part in processing the file of detention, has also to be counted. I am informed by the Learned Government Advocate that the police was warned to inform the Administrator without any delay about the arrest and yet, as can be seen from the records, the police took 6 days to inform the fact of detention to the authorities concerned. No other justification is given by these officers. 15. I am informed by the Learned Government Advocate that the police was warned to inform the Administrator without any delay about the arrest and yet, as can be seen from the records, the police took 6 days to inform the fact of detention to the authorities concerned. No other justification is given by these officers. 15. In "Gulam Sarwar v. The State of Bihar," 1974 Cri LJ 109 (Pat), the justification that the messenger who took the grounds to be served on the detenu had reached Hazaribagh late in the night of 22nd March and for that reason had served the grounds on the detenu on March 23 at 7.50 a. m., 8 hours after the completion of the period of five days. This lapse of time was not considered as justified. 16. Grounds VI and VII shall be taken together. In these grounds the petitioner has raised the contention that the grounds in the detention order are not in existence, that they have not been formulated, that they have not been placed before the detaining authority and that they have not been signed by the Administrator. All these contentions are not based on correct facts. From the records I see that the grounds have been clearly formulated by the Administrator. I have no doubt that the grounds were in existence. It is also evident from the file that the grounds had been placed before the Administrator. I have noted that the Administrator has carefully gone through the grounds and has studiously underlined some portions and made queries in the margin in his characteristic handwriting and green ink used throughout the copious files placed before me. This indicates that the Administrator has taken pains to see that the detention order was made on proper grounds. After considering the grounds, the Administrator signed the notings in witness of his having considered the grounds. To my mind there is complete compliance with the law in this regard. In "Ujagar Singh v. State of Punjab", AIR 1952 SC 350 : (1953 Cri LJ 146) the detaining authority had not signed the grounds and the Supreme Court held that the detention order made by the Governor had been signed by the Home Secretary and considered this as sufficient compliance with the requirements of law. In "Ujagar Singh v. State of Punjab", AIR 1952 SC 350 : (1953 Cri LJ 146) the detaining authority had not signed the grounds and the Supreme Court held that the detention order made by the Governor had been signed by the Home Secretary and considered this as sufficient compliance with the requirements of law. The orders of detention in that case expressly stated that the Governor of Punjab was satisfied of their necessity and that they were made by his order. Their Lordships observed that there was no doubt that the orders were signed by the Home Secretary, but that was no defect. Krishna Murari Aggarwala v. The Union of India AIR 1975 SC 1877 : (1975 Cri LJ 1648) on which Shri Kakodkar relies is a decision given by a smaller bench. This decision deals with the signing of the order of detention. In the present case there is no doubt that the order of detention was signed by the Administrator himself. This ruling therefore is not relevant to our case. 17. I now come to ground VIII. It is stated that when another detenu by name Subhash Zantye appeared before the Chief Judicial Magistrate on Jan. 15, 1980, he complained of serious injuries inflicted upon him by the Customs Authority. Thereupon he was referred to the Goa Medical College Hospital for treatment and report. It is further stated that the matter is under inquiry in Case No. 1/80/A; that the detenu has retracted his purported confessional statement recorded by the Customs Authorities under Section 108. 15, 1980, he complained of serious injuries inflicted upon him by the Customs Authority. Thereupon he was referred to the Goa Medical College Hospital for treatment and report. It is further stated that the matter is under inquiry in Case No. 1/80/A; that the detenu has retracted his purported confessional statement recorded by the Customs Authorities under Section 108. It is argued by Shri Kakodkar and Shri Dessai that Subhash Zantye and Santana Gomes (detenus in Writ Petition 105/80 and 93/80 respectively) were ill-treated; that from the material on record it is evident that the medical examination showed that they had sustained some injuries; that all the detenus in these cases were detained for illegal transactions jointly taken by them; that their cases were processed together that the authority who sponsored the ill-tereatment and the extraction of confession was the same in all cases, namely, the Customs Authority; that this Authority filed their affidavits but did not specifically deny that they had knowledge; that these two detenus had complained of ill-treatment by the Customs Authority; that though other detenus regarding whom these petitions have been filed have not made any allegations regarding ill-treatment the ill-treatment meted out to their confreres, namely, Subhash and Santana was relevant because it may have influenced the mind of the detenus and that, therefore, it was incumbent upon the authorities concerned to place the entire material regarding the allegations of ill-treatment and regarding the retraction, before the Administrator in all cases. 18. If I am to construe the law strictly, I would be constrained to say that the entire material regarding these detenus should be placed by the officers concerned before the Administrator, when the representations of all the detenus were placed before the Administrator It was for the Administrator to decide how to dispose of the representations. It is not possible for us to enter into a speculation or to substitute our assessment of the representations by the assessment that may be made by the Administrator. The Administrator was the final authority and nothing should be kept out from his scrutiny as was done by the Officers concerned. 19. Reliance is placed on "Sk. Nizamuddin v. State of West Bengal," AIR 1974 SC 2353 . There the detenu had been arrested in connection with a theft committed on 14-4-1973. The case was ultimately dropped and the detenu was discharged. 19. Reliance is placed on "Sk. Nizamuddin v. State of West Bengal," AIR 1974 SC 2353 . There the detenu had been arrested in connection with a theft committed on 14-4-1973. The case was ultimately dropped and the detenu was discharged. The order of detention was made on 10-9-1973 and the subjective satisfaction of the District Magistrate was based on that solitary incident of theft. The detenu was thereafter detained on 23-11-1973 pursuant to the detention order of 10-9-1973. The State failed to supply information to the Court as to when the petitioner was discharged. No explanation for delay in arresting the petitioner was given in the affidavit-in-reply filed by the District Magistrate. The Supreme Court held that it could not be said that the District Magistrate had applied his mind and arrived at a real and genuine satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner. 20. "Ashadevi v. K. Shivraj" AIR 1979 SC 447 : (1979 Cri LJ 203) was also cited by Shri Kakodkar in support of this ground. There the detenu was detained with a view to preventing him from engaging in transporting smuggled goods. In passing the detention order the detaining authority based its decision on the detenu"s confessional statement made earlier before the Customs Officer. The said confessional statements were subsequently retracted by the detenu at the first available opportunity while he was in judicial custody. It was held by their Lordships of the Supreme Court that the questions whether the confessional statements recorded were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu was in the nature of an afterthought, were primarily for the detaining authority to consider before deciding to issue the detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority, there was non-application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the detention order invalid and illegal. 21. 21. The petitioners argue at ground IX that assuming, while denying, that the purported grounds which were communicated by the Under Secretary (Home), Government of Goa, Daman and Diu by his letter dated April 5, 1980 are true, they do not warrant the making of the detention order against the detenu. It is contended that the detenu in the first ground merely attempted to smuggle; in the second ground it is stated that he merely accompanied Riyaz Bhaayee; in the third ground it is stated that the detenu was associated with Arun Naik Riyaz Bhaayee and Subhash Zantye in landing packages and that in the fourth ground in is stated that the detenu had escorted the silver. It is contended that abetment of smuggling might be a ground but that an attempt to smuggle is not a ground. It is also contended that to accompany or to be associated or to escort are also no reasons that warrant detention. 22. I am unable to agree with Shri Kakodkar. I reproduce below the grounds of detention :- "(ii) On 9-1-1980, Police seized 42 bags of contraband silver worth Rs. 44 lakhs at Harmal. This silver was brought from Bombay on 7th January, 1980 and you had escorted this consignment from Pernem to Harmal. After 11.00 p. m. on 7-1-1980 you accompanied Shri Riyaz Bhaayee and Shri Subhash Zantye to the beach along with others for establishing contact with the Arab Dhow in the high seas. After the attempt to smuggle out contraband silver proved fruitless, you had accompanied S/Shri Riyaz Bhaayee, Arun Naik and Subhash Zantye up to Khareband and after dropping them there had returned to your house at Pernem. You were also previously involved in smuggling activities. On 4-10-1979, a consignment of 27 packages containing wrist watches were landed at Harmal from an Arab Dhow. You were present at the site when this consignment was loaded in a tempo. You gave company to Shri Riyaz Bhaayee who is the kingpin in the entire operation on his journey to Khareband after the packages were loaded in a pick-up. On 10-11-1979, 40 packages of contraband wrist watches were landed at Asvem, Mandrem. You were associated with S/Shri Arun Naik, Riyaz Bhaayee and Subhash Zantye in landing the packages of wrist watches and escorting them at Khareband. On 10-11-1979, 40 packages of contraband wrist watches were landed at Asvem, Mandrem. You were associated with S/Shri Arun Naik, Riyaz Bhaayee and Subhash Zantye in landing the packages of wrist watches and escorting them at Khareband. On 19-12-1979, 50 bags of contraband silver each weighing about 30 kilograms were smuggled out and 42 packages of wrist watches in exchange of silver consignment were brought in by means of an Arab Dhow. You had escorted the silver consignment of 50 packages from Pernem to Harmal". It is seen from the grounds that the detenu escorted the contraband goods, that he accompanied Arun Naik, Riyaz Bhaayee and Subhash Zantye for establishing contact with an Arab Dhow; that he attempted to smuggle out contraband silver; that he was present at the site when contraband goods were landed at Harmal; that he accompanied Riyaz Bhaayee, who is said to be a kingpin, in the entire landing operation on his journey to Khareband after the packages were loaded in a pickup; that he was associated with Arun Naik, Riyaz Bhaayee and Subhash Zantye in landing contraband goods and that he escorted the contraband goods. I have no hesitation in saying that all these acts said to have been committed by the accused furnish sufficient grounds for his detention. 23. In ground X the petitioner contends that the detaining authority did not forward to the Central Government a report in respect of the detention order. Without prejudice, it is argued, that the detaining authority did not forward the alleged report to the Central Government within 10 days of making the detention order. 24. The detention order was made on 29-3-1980, and was in fact forwarded to the Government of India on 11-4-1980, that is, 13 days after the detention order. The period prescribed for forwarding the detention order is 10 days. The respondents exceeded this time limit by 3 days. No explanation whatsoever is given why the detention order was forwarded beyond the prescribed time except that the police delayed in communicating the fact of detention to the officers concerned. This is certainly no justification why the order could not be forwarded within ten days. Under Section 3 (2) of the Act the report to be made is not of the detention but of the detention order. This is certainly no justification why the order could not be forwarded within ten days. Under Section 3 (2) of the Act the report to be made is not of the detention but of the detention order. The importance of forwarding the report without delay is understood if we bear in mind the provision of Section 11 (b) which provides that a detention order may, at any time, be revoked or modified, by the Central Government. 25. In "Mritunjoy Pramanik v. The State of West Bengal" ( AIR 1973 SC 847 ) : (1973 Cri LJ 670) the Supreme Court took note of the delay of one day in submitting the report by the Advisory Board to the appropriate Government, which under Section 11 of the Maintenance of Internal Security Act had to be submitted within 10 weeks. 26. Krishna Iyer, J. speaking for the Supreme Court in "Sher Mohammed v. The State of West Bengal" ( AIR 1975 SC 2049 ) : (1975 Cri LJ 1751) observed that the procedural mandate contained in Section 3 (4) of the Maintenance of Internal Security Act prescribing a time limit of seven days to communicate the order of detention to the Central Government, is inviolable except on peril of the order being voided. 27. Grounds XI, XII and XIII are not pressed. 28. In ground XIV the petitioners contend that the representation made by the detenu was not at all considered or that it was not considered within reasonable time. 29. After going through the files I reject the contention of the petitioner that the Administrator did not consider the representation of the detenu. 30. The representation was made on May 22, 1980. The representation was considered on June 17, 1980, 26 days after the representation was made. The representation was therefore not considered within reasonable time. 31. Article 22 (5) lays down that an opportunity should be given to the detenu to make a representation. This mandatory requirement postulates the consideration of the representation within a reasonable time. From the rulings cited by Shri Kakodkar it is evident that the delay of 26 days is fatal. In "Nagpur Improvement Trust, Nagpur V. Ganesh Kulkarni ( AIR 1973 SC 696 ) a delay of 16 days was considered inordinate and the detention order was struck down. This mandatory requirement postulates the consideration of the representation within a reasonable time. From the rulings cited by Shri Kakodkar it is evident that the delay of 26 days is fatal. In "Nagpur Improvement Trust, Nagpur V. Ganesh Kulkarni ( AIR 1973 SC 696 ) a delay of 16 days was considered inordinate and the detention order was struck down. In "Khaidem Ibocha Singh v. The State of Manipur" ( AIR 1972 SC 438 ) the delay of 17 days was considered fatal and the explanation for the delay was rejected. Detention orders were struck down in the following cases :- "The Labour Inspector (Central) Hyderabad v. The Chittapur Stone Quarrying Co. (Pvt.) Ltd. ( AIR 1972 SC 1177 ) where the delay was of 19 days and the explanation of the delay was rejected; "Ranjit Dam v. The State of West Bengal" ( AIR 1972 SC 1753 ) where the delay was of 19 days and the explanation was rejected; "Debendra Nath Goswami v. The State of West Bengal" ( AIR 1973 SC 757 ) : (1973 Cri LJ 596) where the delay was of 24 days and the explanation was rejected; "Pabitra N. Rana v. Union of India and others" ( AIR 1980 SC 798 ) : (1980 Cri LJ 562) where the delay was 18 days and the explanation was rejected and "Narinder Singh Suri v. Union of India ( AIR 1980 SC 945 ): (1980 Cri LJ 683) where there was an unexplained delay of 20 days. 32. Shri Dias argues that no time limit was fixed for consideration of a representation of a detenu either under the Constitution or under the Act or under the Maintenance of Internal Security Act. He relies on "A. K. Gopalan v. State of Madras" ( AIR 1950 SC 27 ) : (51 Cri LJ 1383) wherein it was held that Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, Courts cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, Courts cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the instrument. Shri Dias contends that this ruling is a ruling by a larger Bench of 6 judges whereas the rulings cited in support of the petitioner"s case were, most of them, rulings by smaller Benches. I am unable to agree with Shri Dias. In Gopalan"s case two of the 6 judges that constituted the Bench gave a dissenting judgment. "Jayanarayan Sukul v. State of West Bengal" ( AIR 1970 SC 675 ) : (1970 Cri LJ 743) is a unanimous judgment given by a Bench of 5 judges, where it was held : "There should not be any delay in the matter of consideration of a representation of the detenu. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the Governance of the citizens. The citizen"s right raises a correlative duty of the State." 33. The ratio in Gopalan"s case ( AIR 1950 SC 27 ) : (51 Cri LJ 1383) is not attracted to the present case. In Gopalan"s case the Supreme Court interpreted the scope and ambit of the legislative power, vis a vis the Constitution, whereas in the present case the ambit of the provisions of Article 22 (5) of the Constitution was sought to be delineated. In the rulings cited by the petitioners in support of this ground, the Supreme Court has, after considering the provisions of Art. 22 (5) and interpreting them in the light of the Fundamental Rights guaranteed by the Constitution, laid down that the representations had necessarily to be considered within a reasonable time. This pronouncement of the Supreme Court is the law of the land. What is reasonable time is a question to be decided according to the facts of each case. The decisions that were cited clearly give a guideline, which when applied to the case before me, could lead me to no other conclusion but that the detention becomes invalid because the representation of the petitioner was not considered within reasonable time. What is reasonable time is a question to be decided according to the facts of each case. The decisions that were cited clearly give a guideline, which when applied to the case before me, could lead me to no other conclusion but that the detention becomes invalid because the representation of the petitioner was not considered within reasonable time. 34. In the case before me there was no attempt to justify the delay in considering the representation, but a justification was given for the delay in communicating the order of rejection of representation to the detenu. This justification reads :- "It is stated that the said representation was received on 22-5-80 after the Advisory Board"s opinion and a reply was given to the detenu on 30-6-80. It is stated that because the Advisory Board"s opinion upholding the detention of the detenu had already been received some time was taken to consider whether or not reply to the representation had to be sent. Finally a reply was sent after considering the representation". With regard to the aforequoted justification I would like to observe that the consideration and opinion of the Advisory Board should have no bearing on the consideration of the representation by the Detaining Authority. I am fortified in this opinion by "Jayanarayan Sukul v. State of West Bengal ( AIR 1970 SC 675 ) : (1970 Cri LJ 743) wherein it was observed that the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action of the Advisory Board including the consideration of the representation of the detenu by the Board. 35. The last ground taken up by the petitioner is ground XV, They state that the Administrator has no authority to make the order dated July 29, 1980, inasmuch as his power to make such order in respect of the detenu was exhausted with the order made on July 28, 1980. 36. 35. The last ground taken up by the petitioner is ground XV, They state that the Administrator has no authority to make the order dated July 29, 1980, inasmuch as his power to make such order in respect of the detenu was exhausted with the order made on July 28, 1980. 36. As I have already held that the order of July 28, 1980 was bad because it was passed after the lapse of 3 months from the date of detention or rather, after the initial order of detention dated 29th March, 1980 had already lapsed at the expiry of 3 months as provided by law, I need not discuss the validity of the order of July, 29 because the order of July, 29 which purports to modify the order of July, 28 would also be bad since the order of July, 28 is bad. 37. In addition to the grounds mentioned in the petition the petitioner raised a new ground (hereinafter referred to as ground XVA) which I have allowed to be raised at this stage as it involves a question of law. It is argued by Shri Kakodkar that under Article 22 (4) of the Constitution as it stood at the time of the detention the total period of detention of a person cannot exceed three months unless the Advisory Board reports before the expiry of the said period of three months, that there is in its opinion sufficient cause for detaining the person. Reliance was placed on "Satya Deo Prasad Gupta v. The State of Bihar" ( AIR 1975 SC 367 ) : (1975 Cri LJ 419) where Bhagwati, J., speaking for the Supreme Court observed that the law is now well settled as a result of the decision of the Supreme Court in "D. S. Roy v. State of West Bengal", AIR 1972 SC 1924 , that on a proper interpretation of Article 22, cl (4) of the Constitution, the confirmation of the detention with a view to continue it beyond a period of three months, on receipt of the opinion of the Advisory Board, must be made within 3 months of the date of detention. It was held that a confirmation made beyond the period of 3 months must result in the invalidation of the detention of the petitioner. It was held that a confirmation made beyond the period of 3 months must result in the invalidation of the detention of the petitioner. There the detenu was detained on 11 July, 1974 but the State Government instead of releasing him the latest by October 11, 1974 continued the detenu in detention. In the case before me the detenu was detained on March 30, 1980. The Advisory Board submitted its report on May 20, 1980. The order of confirmation ought, therefore, to be made the latest by June 30, 1980 but it was not made until July 28, 1980. This irregularity is also fatal to the detention. 38. Some general considerations are called for regarding the manner in which Laws relating to the detention of persons must be interpreted. In "Khudiram Das v. The State of West Bengal" ( AIR 1975 SC 550 ) : (1975 Cri LJ 446) Bhagwati J., observed: Where the liberty of the subject is involved, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the subject is not deprived of his personal liberty otherwise than in accordance with law. There, the argument on behalf of the State was that it was not competent to the Court to probe into the matter as to what was the nature of the other material before the Detaining Authority and whether that Authority was influenced by such other material in making the order of detention. Rejecting the argument His Lordship remarked :- "This claim made by counsel on behalf of the State is indeed a bold claim calculated to shut out judicial intrusion merely on the strength of ipse dixit of the Detaining Authority. We cannot countenance such claim". In "Mohd. Alam v. State of West Bengal" (1974 Cri LJ 770) (SC) Sarkaria, J., speaking in the same context said: "Our democratic Constitution inhibits blanket and arbitrary deprivation of a person"s liberty without the authority of law. It guarantees that no one shall be deprived of his personal liberty except in accordance with procedure established by law. It further permits the State, in the larger interests of society, to so restrict that fundamental right that a reasonable, but delicate balance is maintained on a legal fulcrum between individual liberty and social security. It guarantees that no one shall be deprived of his personal liberty except in accordance with procedure established by law. It further permits the State, in the larger interests of society, to so restrict that fundamental right that a reasonable, but delicate balance is maintained on a legal fulcrum between individual liberty and social security. The slightest deviation from or displacement or infraction or violation of the legal procedure symbolised in that fulcrum, upsets the balance, introduces error and aberration and vitiates its working. This symbolic balance, therefore has to be worked with utmost care and attention. Viewed in that perspective, the requirement as to the filing of the counter-affidavit by proper person cannot be treated as an empty formality. This obligation stems from the well settled principle that once a Rule Nisi is issued on habeas corpus motion, by the Court, the onus is on the State to show that the liberty of the detenu has been taken away in accordance with procedure established by law, and that the safeguards provided in Article 22 and in the Act, have not been transgressed or bypassed". ( AIR 1974 SC 917 ) : (1974 Cri LJ 770). 9. Shri Dias was fair enough to admit that there have been irregularities in the present case in as much as the law prescribing various periods of times was not abided by. He made a feeble attempt to justify them but he was fair enough in impliedly conceding that he was not on firm ground. 40. The arguments advanced by Shri Kakodkar, already considered by me in Writ Petition No. 92/80 apply to the remaining petitions, Shri Dessai who appears for the petitioners in Writ Petitions Nos. 93/80, 94/80, 95/80, 96/80, 105/80 and 106/80 and Shri Tamba who appears for the petitioner in Writ Petition No. 111/80 have, for the sake of brevity adopted the arguments of Shri Kakodkar in Writ Petition No. 92/80. There are, however, additional grounds which Shri Dessai and Shri Tamba have raised. I shall now presently consider them. 41. In petition No. 94/80, made by Jayant Keshave Haldankar, it is contended by Shri Dias for the respondents that the representation was not signed by Haldankar. Shri Dessai points out that the representation was signed at the end of the last Exhibit attached to the petition. I shall now presently consider them. 41. In petition No. 94/80, made by Jayant Keshave Haldankar, it is contended by Shri Dias for the respondents that the representation was not signed by Haldankar. Shri Dessai points out that the representation was signed at the end of the last Exhibit attached to the petition. He further points out that the respondents have identified that representation as the representation made by Haldankar in Writ Petition No. 94/80 and that, therefore, it could not be said that the representation of Haldankar was not signed. I entirely agree with Shri Dessai. Substantially the requirements of law are complied with by Haldankar. The respondents ought to have been aware that Haldankar meant to make a representation to the Administrator. If at all there was any doubt in the mind of the respondents it was the duty of the respondents to ascertain facts from Haldankar and give Haldankar an opportunity to sign at proper place and comply with such minor technicalities. 42. It is argued by Shri Dessai that after the order dated July, 28 confirming the detention and fixing its period to 4 months the Detaining Authority had exhausted its power and was functus officio. He, therefore, had no power to pass any other order of detention on the same ground. He further contends that the passing of the order of July, 29 showed that the order of July, 28 was passed without application of mind, that for this reason the order of July, 28 was bad and that since the order of July, 28 was bad, the order of July, 29 was also bad. I agree with Shri Dessai. The order of July, 29 is bad because the order of July, 28 is bad. The modification of a bad order is equally bad. The infirmity of the order of July, 28 affects the order of July, 29. Shri Tamba also draws my attention to the fact that the order of 29th July extended the period of detention from 4 months to 8 months after the consideration of the representations made by the detenus. He states that the representations made by the detenus could not possibly lead the Government to enhancement of the period of detention from 4 months to 8 months. I agree with Shri Tamba. 43. He states that the representations made by the detenus could not possibly lead the Government to enhancement of the period of detention from 4 months to 8 months. I agree with Shri Tamba. 43. It is next argued by Shri Dessai that the order of rejection of representation made by the Administrator was not communicated to the detenus except in the case of Bagkar. He states that the detenus had a right to know what was the finding of the Administrator. I agree with Shri Dessai. The authorities concerned breached the principles of natural justice when they failed to inform the detenus the order passed by the Administrator. It must be remembered that the detenus had a right to make representations to the Central Government also and in this context the failure of, the authorities concerned, in informing the detenus of the order passed by the Administrator assumes importance. 44. It is pointed out to me by Shri Dessai and Shri Tamba that the periods of time taken for considering the representations of the detenus whom he and Shri Tamba represent are much longer than in the case of Bagkar in petition No. 92/80 and range from 24 to 40 days. I agree. 45. It is urged before me by Shri Dessai and Shri Tamba that in the cases of the detenus represented by them, the representations were considered after the order of confirmation was passed and that that vitiates the order disposing the representations. Shri Tamba relies on "Vimalchand Jawantraj Jain v. Pradhan" ( (1979) 4 SCC 401 ) : (1979 Cri LJ 1131). In that case there was nothing on record to show that the Government had considered the representation before making the order confirming the detention of the petitioner. On the contrary there was a statement on affidavit that the detention order was confirmed after consideration of the report of the Advisory Board which was of the opinion that the detention should be continued. Bhagwati, J., speaking for the Court observed that the constitutional obligation under Article 22 (5) was thus not complied with. His Lordship further remarked that the subsequent consideration and rejection of the representation would not cure the invalidity of the order of confirmation. It was held that the detention of the petitioner was illegal and void. Bhagwati, J., speaking for the Court observed that the constitutional obligation under Article 22 (5) was thus not complied with. His Lordship further remarked that the subsequent consideration and rejection of the representation would not cure the invalidity of the order of confirmation. It was held that the detention of the petitioner was illegal and void. The ratio in Vimalchand"s case applies to the case before me where the order of detention was confirmed on July 28, and the representation was considered on July, 29. 46. It is urged before me by Shri Tamba that these petitions could succeed on any of the irregularities committed in these cases. He draws my attention to Narinder Singh Suri v. Union of India, ( AIR 1980 SC 945 ) : (1980 Cri LJ 683) (supra) where it was observed that it was not necessary for the Court to go into any further details because the petition must succeed on the short ground that a representation by the petitioner was made to the Detaining Authority on 5th October, 1979, was received by the latter on the 10th October, 1979 and was rejected on the 30th October, 1979. The delay from 10th October to 29th October was considered fatal. 47. The general argument raised by Shri Dias is that all the irregularities are procedural. The answer to this contention can be found in the observations made by me in this Judgment. It would not be out of place here to make a reference to Article 21 of the Constitution which lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. In this context the procedural irregularities pointed out by me assume importance and vitally affect the orders of detention challenged before me. 48. In the circumstances all these writ petitions must be allowed. 49. I am not at all happy with the result of these matters. There is copious material in support of the order of detention passed by the Administrator. It is unfortunate that the cases were processed with complete disregard to the relevant, provision of the Constitution and of the Law of Preventive Detention. 49. I am not at all happy with the result of these matters. There is copious material in support of the order of detention passed by the Administrator. It is unfortunate that the cases were processed with complete disregard to the relevant, provision of the Constitution and of the Law of Preventive Detention. The periods of time prescribed under the Law have been breached repeatedly despite the fact that it is laid down by the Supreme Court in a plethora of decisions that even one of such breaches, by a delay of few hours, has been considered fatal to the detention order. In a very recent ruling given by the Supreme Court in a widely published judgment the Court observed "this Court has also through its judicial pronouncements created various legal bulwarks and breakwaters into the vast powers conferred on the executive by the laws of preventive detention by fixing relevant points of time". Though the law in this regard is well laid down, I have taken pains to write this judgment at length, reviewing the entire case law on the subject so that the legal experts advising the Government may act more efficaciously in future cases. I am informed by the learned Government Advocate and there is evidence of it in the file - that a Committee was constituted by Government to assist the Administrator in the discharge of his functions under the law. The Law Secretary to the Government of Goa was a Member of this Committee. The establishment of the Committee indicates that Government has taken precautions to see that the legal procedural requirements were complied with. As I have already remarked the Administrator has carefully scrutinized whatever material was placed before him. It is, therefore, unfortunate that the legal nuances of the relevant provisions of the Law of Preventive Detention, have not been studied or dutifully applied. 50. Preventive Detention is a draconian measure but the perilous situation created by smugglers to the national economy amply justifies it. While hungry millions in our country go without a square meal a day, trafficking vampires suck the exchequer dry. Courts of law cannot close their eyes to the milieu in which they live. It is, therefore, a matter of great concern that we have very reluctantly to set free the detenus in the present case. 51. While hungry millions in our country go without a square meal a day, trafficking vampires suck the exchequer dry. Courts of law cannot close their eyes to the milieu in which they live. It is, therefore, a matter of great concern that we have very reluctantly to set free the detenus in the present case. 51. I allow the Writ Petitions and order that the detenus be set free. Petitions allowed.