LAKHMIR SINGH v. UNION OF INDIA — 1986 DIGILAW 537 (ALL)

V. K. MEHROTRA, J. ( 1 ) INDIAN Airlines Flight No. 251 was boarded by Lakhmir Singh son of Sri Mahan Singh on Aug. 25, 1985 at Kathmandu in Nepal. Little did he realise what lay in store for him. The flight was heading towards Delhi. It touched the Babatpur Airport at Varanasi at about 12. 30 in the day. Lakhmir Singh got out of the plane. He was called to counter No. 1 by the Custom Authorities and asked to give search. No contraband articles were recovered from the person of Lakhmir Singh nor from the two bags which he was carrying at that time. On enquiry, Lakhmir Singh declared that he had no other luggage and prayed that the formalities may be completed soon as he had to proceed to Delhi by the same flight. The Customs Authorities, however, took him back to the plane as they had been alerted through information given to them secretly that Lakhmir Singh was carrying some contraband goods which he was taking to Delhi for clandestine sale. They sought permission of the Engineer In-charge of the plane and searched the toilet of the plane, in presence of two independent witnesses, where they found a V. C. R. , a bag and four packets concealed in the cavity/panel, the bag and the four packets contained a large number of foreign watches, watch chains, watch pins which, together with the V. C. R. were of the value of Rs. 5,22,724,/ -. ( 2 ) WHEN questioned about the aforesaid recovery, Lakhmir Singh admitted before witnesses of the search that he had himself concealed those goods in the cavity of the lower toilet while juice etc. was being served to the passengers in the plane. Also that he had purchased all these articles in Hongkong and was taking it to Delhi for selling the same on a higher price. He was to hand them over to one Ram Chandra in Karol Bagh, Delhi. The fact that the bags which were found concealed in the cavity were being carried by Lakhmir Singh was deposed to by the two Air Hostesses and the Flight Purser as also that Lakhmir Singh was the only Sardarji travelling in the plane. ( 3 ) LAKHMIR Singh gave another statement to the Customs Authorities next day, namely, on Aug. 26, 1985. ( 3 ) LAKHMIR Singh gave another statement to the Customs Authorities next day, namely, on Aug. 26, 1985. He said that he was living in Bangkok for the last 18/19 years and that on Aug. , 28 (25?), 1985 he was carrying the aforesaid goods secretly by concealing it in the toilet of the plane during his flight from Nepal. Lakhmir Singh was taken into custody under the Customs Act and was produced before the Remand Magistrate, Varanasi on Aug. 27, 1985. The Magistrate permitted him to be kept in custody for 14 days and for being transferred to Central Jail, Naini so that he could be produced before the Special Chief Judicial Magistrate, Allahabad. While there, Lakhmir Singh made repeated applications for being enlarged on bail but was not successful in securing an order of release on bail. On Oct. , 25, 1985, Lakhmir Singh was served with a copy of an order of Oct. 24, directing his detention in exercise of powers under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (briefly COFEPOSA ). This was accompanied by the grounds of his detention and other relevant papers. Copies of the order and the grounds are annexures-1 and 2 to the present Habeas Corpus Petition. The grounds in substance, are in the nature of a recital of the aforesaid facts on the basis whereof it was inferred that Lakhmir Singh was involved in smuggling of contraband goods and was likely to transport such contraband goods and conceal it with a view to smuggling the same and that it was necessary to detain him with a view to stop from doing so in future. ( 4 ) LAKHMIR Singh says that soon after his arrest he was interrogated by the officers of the Revenue Intelligence (Customs) on Sept. 22, 1985 when he told them that he did not make any confessional statement out of his free-will and volition and was coerced in making so, after being severely beaten and dealt with by third degree methods. He also sent a letter on Sept. 24, 1985 retracting from the alleged confession. He had sustained injuries on his body which had been noted by the Medical Officer, Central Jail, Naini. These facts were not brought to the notice of the detaining authorities. He also sent a letter on Sept. 24, 1985 retracting from the alleged confession. He had sustained injuries on his body which had been noted by the Medical Officer, Central Jail, Naini. These facts were not brought to the notice of the detaining authorities. Officers of the Customs Department had sent a detailed report (proposal) to the State Government urging it to pass an order of detention under S. 3 (1) of COFEPOSA. This was received by the State Government from the Collector of Customs on Sept. 20, 1985. Relying upon the facts contained therein says Lakhmir Singh, the approval was accorded by the Chief Minister for issuing an order of detention. This report was, however, never disclosed to Lakhmir Singh. The order of detention as also the grounds therefor were communicated to Lakhmir Singh in Hindi with which he was not familiar. As such, he was not able to make an effective representation against it. ( 5 ) A reference was made to the Government of India under S. 3 (2) of COFEPOSA by the State Government on Oct. 29, 1985. A report was made to the Advisory Board on Nov. 2, 1985. The petitioners representation dt. Nov. 5, 1985 against his detention addressed to the Home Secretary, Government of U. P. through the Superintendent, Central Jail, Naini, Allahabad was received on Nov. 6, 1985. This was sent by the State Government to the Customs Department for their comments through a special messenger on Nov. 7, 1985 and the comments were received by the Government on Nov. 15, 1985. A detailed note was prepared on Nov. 16, 1985 on which date the matter was dealt with by the Joint Secretary who forwarded it to the Home Secretary the same day. The Home Secretary dealt with the case of the petitioner on 16th Nov. itself and directed it to be placed before the Honble Chief Minister who was not available as he was busy in some other urgent affairs of the State. After waiting for the Chief Minister, the Chief Secretary dealt with the representation on his behalf, as empowered under the Rules of Business, on account of the non-availability of the Honble Chief Minister. The representation was rejected on Nov. 18, 1985 and its result was communicated to Lakhmir Singh through the Superintendent, central Jail, Naini on Nov. After waiting for the Chief Minister, the Chief Secretary dealt with the representation on his behalf, as empowered under the Rules of Business, on account of the non-availability of the Honble Chief Minister. The representation was rejected on Nov. 18, 1985 and its result was communicated to Lakhmir Singh through the Superintendent, central Jail, Naini on Nov. 20, 1985 as the file had been received back in the relevant section of the office on Nov. 19, 1985. The Advisory Board was also informed about this report. ( 6 ) HEARING took place before the U. P. Advisory Board (Detention) on Dec. 5, 1985. Lakhmir Singh was heard in person. The report of the Board, sent to the Government through letter No. 257 dt. Dec. 11, 1985. This was before the expiry, on Dec. 12, 1985, of the period of seven weeks from the date of the order of detention as contemplated by S. 11 (1) of the National security Act, 1980. The State Government, after receipt of the report of the Advisory Board, considered the entire matter afresh. It confirmed the order of detention on Dec. 16, 1985. The order of confirmation was issued on Dec. 18, 1985 and it was served upon Lakhmir Singh in Jail the next day. ( 7 ) A representation dt. Jan. 8, 1986 sent by the wife of Lakhmir Singh by registered post on Jan. 11, 1986 to the State Government for revoking the order of detention of Lakhmir Singh was received in Home (Confidential) Section on Jan. 15, 1986. The representation was dealt with by the Confidential Section on Jan. 23, 1986, by the Joint Secretary on Jan. 24, and by the Home Secretary on Jan. 26, 1986. In the absence of the Chief Minister, the representation was rejected by the Chief Secretary on Jan. 27, 1986. Rejection was communicated to Lakhmir Singh through Superintendent of the Central Jail. ( 8 ) BALJEET Singh, brother-in-law of Lakhmir Singh also made a representation to the Central Govt. on Jan. 22, 1986 for revoking the order of detention of Lakhmir Singh by exercising powers under S. 11 of COFEPOSA. The Central Government took a decision in the matter, against Lakhmir Singh as intimated by it to the State Government through its letter No. F-686/277/85-Cus. VIII dt. Feb. 4, 1986. ( 9 ) THESE, in short, are the relevant facts. 22, 1986 for revoking the order of detention of Lakhmir Singh by exercising powers under S. 11 of COFEPOSA. The Central Government took a decision in the matter, against Lakhmir Singh as intimated by it to the State Government through its letter No. F-686/277/85-Cus. VIII dt. Feb. 4, 1986. ( 9 ) THESE, in short, are the relevant facts. ( 10 ) SRI Markandey Katju has appeared before us on behalf of Lakhmir Singh. He made several submissions. We shall consider them one by one, though, not in the order in which they were made. ( 11 ) IT was urged that Lakhmir Singh was familiar only with Gurmukhi and English languages. The grounds for his detention were supplied to him in Hindi. This deprived him of an opportunity of making effective representation against the order of detention. The assertion in para 3 of the Habeas Corpus petition is to the effect that since Lakhmir Singh was admittedly living in Bangkok for nearly 18 or 19 years, he was not well versed with either Devnagri (script) or Hindi language in which the order and grounds of detention were furnished to him. In spite of a demand being made by him for furnishing the documents either in Gurmukhi or in English or in Burmese language with which he was acquainted, neither the State Government nor the Customs authorities furnished the translated copies of the grounds of detention or the documents and material referred to and relied upon. The assertion in this paragraph has been replied by Sri R. P. Fuloria, who has sworn the counter-affidavit on behalf of the State Government, in paragraph 5 in which it has been said that the representation of Lakhmir Singh was in Hindi. No grievance was ever made by him that he was not familiar with Hindi or Devnagri script of that he be supplied translated copies of the grounds and the material either in English, Burmese or Gurmukhi. In paragraph 5 of the rejoinder affidavit, the assertions in para 3 of the petition have been reaffirmed. Annexure-6 to the petition is a copy of the representation made by Lakhmir Singh to the State Government against the order of detention. It is a long document running into several pages and contains as many as 19 paras. It denies the allegations made against the petitioner and also contains his version. Annexure-6 to the petition is a copy of the representation made by Lakhmir Singh to the State Government against the order of detention. It is a long document running into several pages and contains as many as 19 paras. It denies the allegations made against the petitioner and also contains his version. There is no suggestion whatsoever in it that Lakhmir Singh was not familiar with Hindi language or Devnagri script. The affidavit in support of the petition has been sworn by Baljit Singh. Part of paragraph 3, without specifying the part, has been sworn to be correct on personal knowledge. A part of it has been sworn (without specifying which part) to be based on information derived from the record. In absence of any grievance in the representation itself that Lakhmir Singh was not familiar with Devnagri script or Hindi Language or that a request was made by him that he be furnished with translation of the order, the grounds and the other papers in English, Gurmukhi or Burmese, it is not possible to accept the allegation that Lakhmir Singh was not familiar with Devenagri script or Hindi language or that any request was made by him for being furnished with translated copies. As a corollary, we hold that Lakhmir Singh was not prejudiced in the matter of making effective representation on account of the order of detention, the grounds in its support and the documents, being furnished in Hindi. ( 12 ) IT was also urged that the memorandum of oral statement said to have been given by Lakhmir Singh, which is referred to in ground No. (1) of the grounds furnished to the petitioner, was not supplied to him along with the grounds of detention. In paragraph 2 of the petition, it has been asserted that even though the statement allegedly made by the petitioner that he was not having contraband articles with him and that he asked the Customs Officials at Babatpur Airport to complete the formalities soon, has been referred to in the very first ground of detention furnished to the petitioner, no memorandum of that oral statement was placed either before the detaining authority or furnished to the petitioner. This assertion has been answered in paragraph 4 of the counter-affidavit by Fuloria. It has been asserted that no memorandum of oral statement was prepared by the Customs Department. This assertion has been answered in paragraph 4 of the counter-affidavit by Fuloria. It has been asserted that no memorandum of oral statement was prepared by the Customs Department. The statements which the petitioner made orally before the Customs Officials on Aug. , 25, 1985, when interrogated by them, are mentioned in the Panchanama of the articles prepared that day as also in the statement which the petitioner made by way of replies to the questions put to him by the Customs authorities the next day. Copies of both these documents were placed before the State Government. They were also furnished to the petitioner along with the order of detention. In para 4 of the rejoinder affidavit, it has been asserted on behalf of the petitioner that ". . . . ,since the petitioner was interrogated orally and this has been referred to in the first ground of detention, as such the alleged oral assertion made by the petitioner ought to have been reduced into writing and it should have been furnished to him. " Obviously, on the own showing of the petitioner no memorandum of his oral statement made at the time when he was interrogated by the customs officials at Babatpur Airport on Aug. 25, 1985 were recorded. The question of furnishing a copy thereof to the petitioner or placing the same before the detaining authority could hardly arise. Besides, the statement attributed to the petitioner finds a mention in the Panchanama and in the statement given by the petitioner before the Customs people when interrogated. Copies of these documents were furnished to the petitioner and they were also placed before the State Government. In these circumstances, it cannot be said that there was any lapse on the part of the respondents in this respect. ( 13 ) IT was argued that a proposal had been made by the authorities of the Customs Department for taking proceedings against Lakhmir Singh under the COFEPOSA. A copy of this proposal was not furnished to Lakhmir Singh so that he was prejudiced in the matter of making an effective representation. ( 13 ) IT was argued that a proposal had been made by the authorities of the Customs Department for taking proceedings against Lakhmir Singh under the COFEPOSA. A copy of this proposal was not furnished to Lakhmir Singh so that he was prejudiced in the matter of making an effective representation. The statement in paragraph 9 of the petition in this respect is that the report which was sent to the State Government by the officials of the Customs Department contained the details about the activities of Lakhmir Singh which was taken into account by the State Government while passing the order of detention. In paragraph 10 of his counter-affidavit R. P. Fuloria, who does not dispute that a copy of the report or of the covering letter sent by the Customs Authorities was not furnished to petitioner, says "all those documents and materials from which the facts were deduced for making the grounds of detention and upon which reliance was placed were duly served upon the petitioner. " The objection of the petitioner in para 8 of the rejoinder affidavit is that the proposals sent by the Customs authorities having been taken into account by the State Government for passing the order of detention, its copy should have been furnished to the petitioner and the failure to do so resulted in denial of the right of effective representation. The fact that copies of documents on the basis whereof inference was drawn in support of the grounds of detention were furnished to the detenu is to be accepted in view of what has been stated in the counter-affidavit. The rejoinder affidavit does not contain any assertion from which it might appear that some document upon which reliance was placed by the detaining authority was not made available to the petitioner. The grounds of detention do not refer to the report (proposal) sent by the Customs authorities. They specifically refer to the material from which the ultimate conclusion was drawn by the detaining authority. A copy of each such material which has been referred to in the grounds has been furnished to the detenu as an enclosure with the grounds. The grounds of detention do not refer to the report (proposal) sent by the Customs authorities. They specifically refer to the material from which the ultimate conclusion was drawn by the detaining authority. A copy of each such material which has been referred to in the grounds has been furnished to the detenu as an enclosure with the grounds. In the detailed representation made by Lakhmir Singh, there is no suggestion whatsoever that was not in a position to make an effective representation in the absence of a copy of the report (proposal) sent by the Customs Authorities to the State Government. No such grievance was made even in the representation made by the petitioners wife on Jan. 8, 1985 against the detention of the petitioner. Apparently the petitioner did not feel handicapped in making his representation in the absence of that report which, as seen above, does not appear to have been relied upon by the detaining authorities. If, as in the case of Hari Shanker Tiwari v. State of U. P. (Habeas Corpus Petn. No. 16272 of 1984 decided on Sept. 9, 1985) reliance had been placed on the report submitted to the detaining authority and a copy of the report had not been furnished to the detenu it could be said that the order of detention was not sustainable on that account. In the case of Hari Shanker a Division Bench of this Court, speaking through P. S. Gupta, J. went into the evidence on record and came to the conclusion that the detaining authority had placed reliance upon the report of the Senior Superintendent of Police, Gorakhpur and of the Circle Officer of Police, Gorakhpur in coming to his ultimate conclusion and copies thereof were not supplied to the detenu in spite of a request to that effect by him. This was a clear case of denial of effective opportunity of making a representation to the detenu and a non-compliance with the requirements of Art. 22 (5) of the Constitution. In Nagina v. State (Habeas Corpus Petn. No. 6218 of 1985 decided on July 19, 1985) also the Division Bench, speaking through P. S. Gupta, J. came to the conclusion, on consideration of the evidence on record, that the report of which a copy had not been furnished to the detenu had, in fact, been relied upon by the detaining authority. No. 6218 of 1985 decided on July 19, 1985) also the Division Bench, speaking through P. S. Gupta, J. came to the conclusion, on consideration of the evidence on record, that the report of which a copy had not been furnished to the detenu had, in fact, been relied upon by the detaining authority. Counsel for the parties have placed reliance upon some more decisions which, we feel, it is really not necessary to notice in view of our conclusion that the detaining authority did not base its ultimate conclusion on the report made by the Customs authorities to the State Government for taking action under COFEPOSA against the petitioner. We may, however, mention that in a recent decision in Smt. Asha Keshev Rao v. Union of India, AIR 1986 SC 283 the Supreme Court has ruled that the mere fact that information received from the Intelligence source had not been made available to the petitioner or placed on record would not vitiate the order of detention where sufficient material, with reference to the Intelligence report had been made available to the detenu and no prejudice was found to have been caused to the detenu on account of the failure to disclose to him the exact information received from the Intelligence source. In the case before the Supreme Court, the order of detention was challenged also on the ground that the Intelligence report made to the Government ought to have been furnished to the detenu because it was mentioned in the grounds of detention that some material was collected by the Intelligence authorities. The case of the State Government was that it was not necessary to supply the copy of the Intelligence Report. The Supreme Court observed (in paragraph 12) :". . . . . . . . . . ON the facts we are, however, satisfied that adequate material had been disclosed and no prejudice appears to have been caused for want of further disclosure. It may be that the exact information received from the Intelligence source had not been made available to the petitioner or placed on record but sufficient material with reference to the Intelligence Report had been made available. In that view of the matter, we also find no force in the petition. It may be that the exact information received from the Intelligence source had not been made available to the petitioner or placed on record but sufficient material with reference to the Intelligence Report had been made available. In that view of the matter, we also find no force in the petition. " ( 14 ) THIS decision clearly lays down that where necessary material has been disclosed, the order would not get vitiated unless it was established that some prejudice had been caused to the detenu by non-disclosure of the material. ( 15 ) THE order of detention and its confirmation was assailed also on the ground that even though a request was made by Lakhmir Singh in the representation made by him that he may be permitted representation through a friend before the Advisory Board, he was not given that opportunity even though he had provided the name and address of the friend in time about it. It has been asserted in paras 13 and 14 of the petition that the petitioner was not a well-read man and, as such, his friend representative Baljit Singh, who was his brother-in-law, be allowed to appear before the Advisory Board to make submissions in his defence was a request contained in the representation. The request was reiterated in a letter of Nov. 2, 1985 giving out the address of Baljit Singh. Yet, Baljit Singh was not permitted to represent the petitioner even though the officers of the Customs Department, who were present before the Advisory Board when the petitioner was there, were allowed to make submissions in support of the order of detention. These allegations have been reiterated in the rejoinder-affidavit. A counter-affidavit sworn by Sri B. L. Yadav has been filed in the case on behalf of the U. P. Advisory Board (Detentions) High Court, Lucknow Bench, Lucknow. In para 7 of this counter-affidavit it has been asserted that Lakhmir Singh was heard in person by the Board on Dec. 5, 1985 at length and every opportunity was afforded to him to represent his case. No request was made by him before the Board for being permitted to represent his case before the Advisory Board through his friend. The Customs Officers, according to this counter-affidavit, were allowed to appear before the Board for purpose of producing the record and answering the query made by the Court. No request was made by him before the Board for being permitted to represent his case before the Advisory Board through his friend. The Customs Officers, according to this counter-affidavit, were allowed to appear before the Board for purpose of producing the record and answering the query made by the Court. ( 16 ) SRI Katju argued that when the detenu had made a request for hearing before the Advisory Board through a friend, it was incumbent upon the Board to ensure opportunity of such hearing and the mere fact that the detenu was heard was not enough. In such cases, proceeded the argument, it had to be visualised that a detenu, taken straight from his cell to the Boards room may lack the ease and composure to present his point of view and may be unable to present his own case properly. The submission further was that failure to comply with the mandatory requirement of permitting representation through a friend would vitiate the order in view of what was laid down by the Supreme Court in Abdul Zabbar v. State of Rajasthan, AIR 1983 SC 505 and other cases as held by the Division Bench of this Court in Shams Iqbal v. State of U. P. , 1986 All LJ 120. We may mention at this stage that in para 19 of the representation (annexure-6 to the petition) it was said that the petitioner be given opportunity of personal (hearing?) before the Advisory Board and he and his representatives be permitted to be present before the Board and an opportunity be given to argue the case. The petitioner, undoubtedly, was present before the Advisory Board and was heard by it. We have no reason to doubt the assertion contained in the counter-affidavit filed on behalf of the Advisory Board that the petitioner did not make any request before the Advisory Board that he be heard through his friend. The counter-affidavit also avers that in case a request had been made for adjournment on the ground that the friend of the petitioner be present before the Advisory Board, the request would certainly have been considered. We have perused the record of the case which was made available to us by the learned Counsel for the State of Uttar Pradesh as desired by us. We have perused the record of the case which was made available to us by the learned Counsel for the State of Uttar Pradesh as desired by us. We do not find any indication therein that any request was made by the petitioner before the Advisory Board for any opportunity being given to him for his case being presented by his friend Baljit Singh. The Advisory Board considered the matter in detail and submitted a report to the State Government to the effect that in its opinion sufficient material was available to the State Government to order the preventive detention of Lakhmir Singh. It is difficult for us to take the view that in the circumstances of the instant case the failure to afford opportunity to the friend of the detenu to make submissions on behalf of the detenu before the Advisory Board would per se be violative of the guarantee enshrined in Art. 22 (5) of the Constitution. There has to be material to suggest that prejudice was caused to the detenu because his friend Baljit Singh was not called before the Advisory Board to present the case of the detenu. ( 17 ) A submission of the nature made before us by Sri Katju was also made before the Supreme Court in the case of Smt. Asha Keshev Rao Bhosley (1986 Cri LJ 177 ). Relying upon the observations made by the Supreme Court in its decision in A. K. Roy v. Union of India, AIR 1982 SC 710 (in paragraph 95 of the Report of that case), where some observations had been extracted from Pett v. Greyhound Racing Association Ltd. , (1969) 1 QB 125 to the effect that a detenu taken straight from his cell to the Boards room may be "tongue-tied, nervous, confused or wanting in intelligence" and if justice is to be done he must have help of a friend who can assist him to give coherence to his stray and wandering ideas, it was ruled by the Supreme Court (in paragraph 14 of the Report) that "the rule to be applied is one of prejudice (Emphasis supplied by us ). It went in to the facts of the case and accepted the submission made on behalf of the State that the detenu was not prejudiced in making an effective representation of his case at the hearing by the Advisory Board in absence of a friend. ( 18 ) ANOTHER argument which was made before us by Sri Katju was that the State Government, before it decided to confirm the order of detention, was required to go into the available material afresh which would include the entire record of the Advisory Board and not only the report made by it. He drew our attention to the assertions contained in paragraph 12 of the petition in which it has been asserted that the Advisory Board did not submit its report within ten weeks as contemplated in S. 3 (e) of COFEPOSA and moreover, the records of the proceedings of the Advisory Board were not made available by the Advisory Board to the State Government so that the order of confirmation was illegal. The counter-affidavits filed in this case contain and reply to these assertions. In paragraph 6 of his counter-affidavit, sworn on behalf of the Advisory Board, Yadav states that the report of the U. P. Advisory Board (Detentions) was sent to Government through letter No. 257 dt. 11-12-1985 which was before the expiry of the period of seven weeks mentioned in S. 1 (1) of the National Security Act, 1980 on 12-12-1985. Fuloria has stated in paragraph 13 of his counter-affidavit sworn on behalf of the State Government that the hearing before the Advisory Board took place on Dec. 5, 1985 and its report dt. Dec. 12, 1985 was made available to the State Government on that date itself. After the receipt of the report of the Advisory Board, the entire matter was considered afresh and the detention of the petitioner was confirmed on Dec. 16, 1985. Sri Katju urged on the basis of these averments that there was no specific denial in the counter-affidavit of the fact that the record of the Advisory Board was not sent. We looked into the original records of the case placed before us by the counsel for the State of U. P. and found that letter No. 257 dt. Sri Katju urged on the basis of these averments that there was no specific denial in the counter-affidavit of the fact that the record of the Advisory Board was not sent. We looked into the original records of the case placed before us by the counsel for the State of U. P. and found that letter No. 257 dt. 11-12-1985 referred to in the counter-affidavit of Yadav was sent by Mohan Singh a member of Higher Judicial Service who was the Registrar of the U. P. Advisory Board (Detentions) High Court Building, Lucknow to the Joint Secretary to the Government of U. P. on the subject of detention of Lakhmir Singh. It mentions that the report of the U. P. Advisory Board (Detentions) was being sent as also two copies of all the papers received from Government. As enclosures to the letter is mentioned one file. The report contains a mention of what happened before the Advisory Board. It also mentions what was stated before it by the detenu. It also mentions as to what was looked into by the Board. In the rejoinder affidavit, where it deals with the assertions made in paragraphs 6 and 13 of the counter-affidavit of aforesaid, nothing has been said which may suggest as to what was the record which had to be sent by the Advisory Board and which had not been sent. ( 19 ) SRI Katju urged that it was not open to us to look into the original records and, to quote his own words, "fish out material against the detenu". He also urged that the burden lay upon the State Government to satisfy this Court that every technicality of law had been complied with. We have not appreciated the submission that by looking into the original records we were trying to fish out some material against the detenu. He also urged that the burden lay upon the State Government to satisfy this Court that every technicality of law had been complied with. We have not appreciated the submission that by looking into the original records we were trying to fish out some material against the detenu. The fact we looked into the record to find out, firstly, whether the assertion made in the counter-affidavit filed by Yadav that no opportunity was claimed by the detenu before the Advisory Board for adjournment of the case for enabling his representative-friend to argue the case on his behalf was acceptable in view of the reiteration on behalf of the petitioner of the assertion in the rejoinder-affidavit that he made that request and, secondly, for the purpose as to what were the recitals of the letter with which the report was forwarded by the Advisory Board to the State Government, namely, letter No. 257 dt. Dec. 11, 1985 referred to in para 6 of the counter-affidavit sworn by Yadav and mentioning what we found, cannot be characterised as delving into the records of the State Government to fish out material against the detenu. Since, as ruled by the Supreme Court, "the test to be applied is one of prejudice" we were well within the ambit of our jurisdiction to find out about the correctness or otherwise of an assertion made in the affidavits filed before us from the original records which, as a matter of normal practice prevailing in this Court, were available for the perusal of this Court at the time of the hearing of the Habeas Corpus Petition. ( 20 ) WE are unable to concluded as suggested by Sri Katju, that the order of detention was liable to be set aside on the ground that the record had not been sent along with the report of the Advisory Board to the State Government, or that the entire material was not considered by the State Government before issuing the order confirming the order of detention. ( 21 ) ANOTHER attack upon the order of detention is that there has been delay in considering the representation for revocation of the order of detention made by the petitioners wife. In para 15 of the petition, it has been stated that Smt. Arvinder Kaur (wife of the petitioner) made a representation on Jan. ( 21 ) ANOTHER attack upon the order of detention is that there has been delay in considering the representation for revocation of the order of detention made by the petitioners wife. In para 15 of the petition, it has been stated that Smt. Arvinder Kaur (wife of the petitioner) made a representation on Jan. 8, 1986 to the State Government for revoking the order of detention under S. 11 of COFEPOSA. This was sent by registered post under postal receipt No. 5171 dt. Jan. 11, 1986. Replying to the assertion made in this para of the petition it has been stated in para 15 of his counter-affidavit by Fuloria that the representation was received in the Home (Confidential Section) of the State Government on Jan. 15, 1986. It was dealt with by that Section on Jan. 23, 1986. The Joint Secretary of the Home Department dealt with the matter on Jan. 24, 1986 and it was placed before the Home Secretary who dealt with it on Jan. 26, 1986. Since the Chief Minister of Uttar Pradesh was not available the representation was placed before the Chief Secretary and rejected on Jan. 27, 1986. In para 13 of the rejoinder affidavit, sworn by Smt. Arvinder Kaur, it has been asserted in regard to para 15 of the counter-affidavit, that the representation made by her had not been expeditiously disposed of. The argument is that the delay in considering the representation, made by the wife, between Jan. 15 and 23, 1986 had not been reasonably explained. The inaction for a period of eight days vitiated the order of detention. ( 22 ) THERE is no doubt that a representation seeking revocation of an order of detention must be disposed of expeditiously but it is equally not in doubt that every delay in the consideration of a representation would invalidate the order of detention. The delay should be unreasonable and, that undoubtedly, is a matter depending upon the facts of each individual case. In Harpal Singh Yadava v. Supdt. Central Jail, Varanasi (Habeas Corpus Writ Petn. No. 8419 of 1983. decided on Sept. The delay should be unreasonable and, that undoubtedly, is a matter depending upon the facts of each individual case. In Harpal Singh Yadava v. Supdt. Central Jail, Varanasi (Habeas Corpus Writ Petn. No. 8419 of 1983. decided on Sept. 28, 1983) reported in (1983) 2 Crimes 894 a Division Bench of this Court, after referring to a large number of decisions, concluded that the delay of six days in the transit of the representation handed over by the detenu under S. 11 of COFEPOSA had remained unexplained which rendered the order of detention invalid. In that case the representation had been handed over by the detenu on Jan. 21, 1983 to the Superintendent, Central Jail, Varanasi who made an endorsement of receipt on it the same day. He also made a note forwarded on the same day. The representation reached the State Government on Jan. 28, 1983. Further the office submitted a detailed note on the representation on July 2, 1983 taking four days in doing so. The authorities then took 12 more days to dispose of the representation the Bench felt that there was no reasonable explanation for the failure to dispose of the representation earlier. ( 23 ) IN Raisuddin v. State of U. P. , AIR 1984 SC 46 a grievance was made before the Supreme Court that a representation made by the detenu under S. 8 of the National Security Act, 1980 had been disposed of with inordinate delay which rendered the order of detention bad. The representation was received in the office of the District Magistrate on Nov. 27 but he could forward his report to the State Government only on Dec. 3. What was urged before the Supreme Court in the petition under Art. 32 of the Constitution presented on behalf of the detenu was that there was undue and explained delay on the part of the detaining authority in forwarding the representation of the detenu to the State Government in as much as nearly six days had elapsed in submission of the report by the District Magistrate to the State Government. The Supreme Court looked into the original file pertaining to the case maintained in the office of the District Magistrate and on the basis of the facts noticed therefrom and of the averments contained in the counter-affidavit felt that the District Magistrate had dealt with the matter with all promptness which was reasonably possible in the circumstances then obtaining. The Supreme Court observed (in paragraph 4) that :". . . . . . . . . . IN this context we consider it necessary to emphasise that the question whether the representation submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere arithmetical, counting of dates but by a careful scrutiny of the facts and circumstances of each case; if on such examination it is found that there was any remissness, indifference or avoidable delay on the part of the detaining authority/state Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu on the other hand if the Court is satisfied that the delay was occasioned not by any lack or diligence or promptness of attention on the part of the party concerned, but due to unavoidable circumstances or reasons entirely beyond his control such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention. . . . . . . . . . " ( 24 ) WE find from para 12 of the counter-affidavit of Fuloria sworn on behalf of the State Government that the representation which had been made earlier by the petitioner had been received by the State Government on Nov. 6, 1985. It was sent by the State Government through a special messenger to the Customs Department for their comments. The matter was to be dealt with by the officers of the Customs Department at Gorakhpur. Their comments were received on Nov. 15, 1985. After preparation of the detailed note by the Section concerned on Nov. 16, the matter was dealt with by the Joint Secretary and the Home Secretary on the same day, and finally disposed of by the Chief Secretary on account of non-availability of the Chief Minister on Nov. 18, 1985. Their comments were received on Nov. 15, 1985. After preparation of the detailed note by the Section concerned on Nov. 16, the matter was dealt with by the Joint Secretary and the Home Secretary on the same day, and finally disposed of by the Chief Secretary on account of non-availability of the Chief Minister on Nov. 18, 1985. We then find from para 13 of the same counter-affidavit that after the Advisory Board had submitted its report on Dec. 12, 1985 to the State Government after hearing the petitioner, the entire matter was considered afresh and an order confirming the detention of the petitioner was passed on Dec. 16, 1985. The fact that a period of about eight days was taken in getting the comments from the Customs Department was attempted to be pressed into aid by Sri Katju for the submission that the delay between Nov. 6 and 15 was an inordinate one and it was urged that this vitiates the order of detention. We are unable to accept the submission because we cannot overlook that the petitioner was nabbed at Babatpur Airport by the Customs authorities and it is understandable that before furnishing their comments to the State Government the authorities at Gorakhpur would have had taken sometime in getting in touch with the officials at Babatpur Airport as urged before us by the State Counsel. ( 25 ) THE order of confirmation was made by the State Government on Dec. 16, 1985 after fully considering the matter. Not even a month had passed when the petitioners wife made her representation on Jan. 11, 1986 which was received by the State Government on Jan. 15, 1986. In this background, the fact that consideration of the wifes representation was made on Jan. 23, 1986 cannot be said to be such a laxity on the part of the State Government as to invalidate the order of detention. ( 26 ) WITH some emphasis it was urged by Sri Katju that Lakhmir Singh had retracted from his alleged confession before the Customs authorities. This retraction was not considered either when the order of detention was passed or when it was subsequently confirmed. The relevant assertions are contained in paragraphs 5 to 7 of the petition. In substance, it has been asserted that when he was interrogated by the officials of the Revenue Intelligence (Customs) on Sept. This retraction was not considered either when the order of detention was passed or when it was subsequently confirmed. The relevant assertions are contained in paragraphs 5 to 7 of the petition. In substance, it has been asserted that when he was interrogated by the officials of the Revenue Intelligence (Customs) on Sept. 22, 1985 he told them that he did not make any confessional statement on Aug. 25 and Aug. 26, 1985 voluntarily and that he was coerced into making those statements. Further, a letter was sent by the petitioner to the Customs Officer, Babatpur with copy to the State Government intimating them that he had never made any confession on Aug. 25, or Aug. 26, 1985 or on any other date and that he had been wade to sign on blank sheets forcibly. Also, that he has been falsely implicated and the goods, from the toilet of the plane on Aug. 25, 1985 at Babatpur Airport did not belong to him. Fuloria has answered these assertions in paragraphs 7 to 9 of his counter-affidavit. It has been asserted in these paras that the Customs authorities had informed the State Government that the petitioner was not interrogated by the officials of the Revenue Intelligence (Customs) as asserted by the petitioner. Therefore, the occasion of the petitioner retracting from his confessional statement did not arise. It has also been asserted that no letter said to have been despatched by the petitioner on Sept. 24, 1985 retracting from the confessional statement made earlier was received either by the officials of the Customs Department at Babatpur Airport or in the office of the Home Secretary, U. P. ( 27 ) IN para 6 of the rejoinder-affidavit, it has been reiterated that the petitioner was interrogated and further that he had sent the letters on Sept. 24, 1985. Thereafter, it has been asserted, by way of an argument, in this paragraph of the rejoinder-affidavit that a presumption would arise on account of posting of these letters under certificate of posting that they had been duly received by the Customs officials and the State Government in its Home Department. What is further stated in this para of the rejoinder-affidavit is that the petitioner had filed an earlier Writ Petition No. 16493 of 1985 on Nov. 7, 1985 which was withdrawn as not pressed on Jan. 8, 1986. What is further stated in this para of the rejoinder-affidavit is that the petitioner had filed an earlier Writ Petition No. 16493 of 1985 on Nov. 7, 1985 which was withdrawn as not pressed on Jan. 8, 1986. In that writ petition a clear averment was made that the petitioner had retracted from the alleged confessional statement made on Aug. 25 and 26, 1985. The State Government, to which notice had been issued in that writ petition, was thus aware that the petitioner had retracted from the confessional statement attributed to him. This retraction should, therefore, have been taken into consideration by the State Government while it was considering the question of confirmation of the order of detention and before passing such order on Dec. 15, 1985. ( 28 ) THERE is nothing before us on the record of this petition, apart from the bare assertions of the petitioner, to show that he had been interrogated on Sept. 24, 1985 by the officials of the Revenue Intelligence (Customs ). The statement in the counter-affidavit that no such interrogation was made cannot be brushed aside in the absence of any cogent material to the contrary. ( 29 ) EVEN if we were to assume that Lakhmir Singh retracted from the confession made by him as urged on his behalf, what would be its effect on the order of detention. Sri Katju has placed reliance on the decision of the Supreme Court in Sita Ram Somani v. State of Rajasthan, (1986) 2 SCC 86 . That was a case decided by a Bench consisting of O. Chinnappa Reddy and V. Khalid, JJ. Sita Ram Somani was detained in pursuance of an order under S. 3 (1) of COFEPOSA. He had made confessional statement in respect of some foreign gold biscuits and U. S. dollars recovered from him. This was, however, retracted by him in an application for being released on bail made by him. The bail applications containing the retraction were not placed before the detaining authority nor were they considered by it. The Supreme Court took the view that the retraction of the confessional statement contained in the bail applications was relevant material and in the absence of any consideration thereof by the detaining authority, the order of detention could not be upheld. This decision was given by the Supreme Court on Feb. 11, 1986. Earlier on Apr. The Supreme Court took the view that the retraction of the confessional statement contained in the bail applications was relevant material and in the absence of any consideration thereof by the detaining authority, the order of detention could not be upheld. This decision was given by the Supreme Court on Feb. 11, 1986. Earlier on Apr. , 12, 1985 a Division Bench of the Supreme Court consisting of S. Murtaza Fazal Ali, A. Varadarajan and Sabyasachi Mukharji, JJ. dealt with a similar question in the case of Prakash Chandra Mehta v. Commr. and Secry. , Govt. of Kerala, AIR 1986 SC 687 . There too it was urged before the Supreme Court that the retraction of the confession had not been taken into consideration and the fact that there was retraction of confession having not been taken into consideration, the proceedings were vitiated. V. D. Mehta, his daughter Miss. Pargna Mehta and his son Bharat Mehta were detained under the provisions of the COFEPOSA. Their detention was challenged by petitioner Prakash Chandra Mehta, another son of V. D. Mehta. The Supreme Court took the view that where, apart from the confessional statement which was retracted, there was other material, independent of the confessional statement, which could reasonably lead to the satisfaction in favour of detention arrived at by the authorities, the order of detention could not be held to be invalid for non-consideration of the retraction. The Court referred to S. 5-A of the Act and observed (in para 74) that:-". . . . . . . . The same argument was presented in a little different shade namely the fact of retraction should have been considered by the detaining authority and the Court does not know that had that been taken into consideration, what conclusion the detaining authority would have arrived at. This contention cannot be accepted. We are not concerned with the sufficiency of the grounds. We are concerned whether there are relevant materials on which a reasonable belief or conviction could have been entertained by the detaining authority on the grounds mentioned in S. 3 (1) of the said Act. Whether other grounds should have been taken into consideration or not is not relevant at the stage of the passing of the detention order and in para 77 that : -". . . . . . . . The confessional statements, of course, were retracted. Whether other grounds should have been taken into consideration or not is not relevant at the stage of the passing of the detention order and in para 77 that : -". . . . . . . . The confessional statements, of course, were retracted. But in this case the confessional statement was not the only fact upon which the detaining authority had passed an order. In the premises even if the confessional statements which were retracted as such could not be taken into consideration there are other facts independent of the confessional statement as mentioned hereinbefore which can reasonably lead to the satisfaction that the authorities have come to. " ( 30 ) THE principle, to our mind, seems to be that if there is relevant material, apart from the confessional statement, which can sustain the order of detention, the mere fact that the confessional statement was taken into consideration and its retraction was not considered, will not vitiate the order of detention. We will, therefore, examine the facts of the present case in this light. ( 31 ) BUT, before doing so, we may notice another submission of Sri Katju and it is this : ( 32 ) THE State Government was in any case bound to have taken into consideration the circumstances that the confessional statement was retracted by petitioner Lakhmir Singh, else the order of confirmation would stand vitiated. Support was sought by Sri Katju from the decision of a Division Bench of tie Lucknow Bench of this Court in Arun Shankar v. State of U. P. , 1984 All LJ 1031. In that case two persons were detained under the provisions of the National Security Act (65 of 1980 ). The State Government revoked the order of detention in respect of one of them as the Advisory Board did not approve of his detention. This fact was not considered by the State Government when proceeding to consider the case of the other detenu, in whose case the order of detention was confirmed. The Bench observed that it was necessary for the State Government to have taken into consideration the fact that in the case of one of the two detenus the Advisory Board had declined to approve the order of detention which was almost on identical grounds on which the order of detention was based in the case of the other detenu. The Bench observed that it was necessary for the State Government to have taken into consideration the fact that in the case of one of the two detenus the Advisory Board had declined to approve the order of detention which was almost on identical grounds on which the order of detention was based in the case of the other detenu. The learned Judges, using their own words, said in para 10 :". . . . . . . . . . IT was. . . . . . necessary for the State Government to have taken into consideration in the instant case the result of quashing of detention of Dwivedi as a result of the advisory Boards opinion while it proceeded to record its approval and later confirmed the detention order in the petitioners case. This was so because the entire material was in possession of the State Government itself. Whatever would have been the result of the consideration is a different matter, but what was necessary was that this fact should have been taken into consideration. On this ground alone therefore, the petition deserves to be allowed. . . . . . "32a. We are not able to appreciate how this decision assists Sri Katju in his submission in the present case. The circumstance which was found to be relevant in Aruna Shanker case was that the Advisory Board had expressed an opinion against the detention of Dwivedi, one of the detenus, almost on identical grounds and this fact was not taken into consideration by the State Government while considering the question of confirmation or otherwise of the order of detention in respect of other detenu. In the case before us we have found that the order on writ petition was filed on Nov. 7, 1985. The question of confirmation was taken up after the submission by the Advisory Board of its report on Dec. 12, 1985. That report was submitted by the Board after hearing the petitioner. The Board had expressed an opinion in favour of continuance of the order of detention. The Board, which was presided over by the Senior Judge of the Lucknow Bench of this Court, as is clear from the report, did not accept the story that the petitioner was beaten by the customs authorities as alleged by him. The Board had expressed an opinion in favour of continuance of the order of detention. The Board, which was presided over by the Senior Judge of the Lucknow Bench of this Court, as is clear from the report, did not accept the story that the petitioner was beaten by the customs authorities as alleged by him. The Board has mentioned in the report that if the petitioner had been beaten by the Customs Authorities, as asserted by him, there would have been a mention of injuries in the remand order or the Jail Register when he was admitted in the jail and further that the petitioner did not refer to any one of these documents. This report was duly considered by the State Government. Thus, the circumstance that the petitioner had retracted from the confessional statement cannot be said not to have been considered by the State Government. ( 33 ) REVERTING, however, to where we left this aspect earlier, we find from the grounds of detention that apart from the statements attributed to the petitioner, the satisfaction to detain the petitioner was founded upon the fact of recovery of contraband goods, concealed in the cavity/panel of the toilet of the plane, from the possession of the petitioner, the effort of the petitioner to escape liability by suggesting that he was carrying nothing but two bags and a thousand rupees and his anxiety to get back to the plane which was bound for Delhi and further to secure bail by repeated applications. In addition, the circumstance that he had adopted the modality of concealing contraband goods, worth over Rs. 5,00,000/- in the cavity of the toilet of the plane was also suggestive of the fact that he was an experienced smuggler and was likely to repeat his smuggling activities in future. It cannot be said that the circumstance appearing in the grounds, other than the confessional statement, were not relevant and could not be taken into consideration by the State Government or further that on their basis no reasonable person could feel satisfied, as was felt by the State Government, that an order of detention be passed in respect of petitioner Lakhmir Singh to prevent him from resorting to smuggling activities in future. Following, therefore, the dictum of the Supreme Court in Prakash Chand Mehta AIR 1986 SC 687 we are inclined to the view that there were other facts independent of the confessional statement, which could reasonably lead to the satisfaction that the authorities actually came to. In view of the facts and circumstances of the case, discussed above, we are of the view that the detaining authority was rightly satisfied in passing the order under S. 3 of the Act for the detention of the petitioner in the prison with a view to prevent him from indulging in smuggling in future. ( 34 ) IN conclusion, we find no merit in this Habeas Corpus petition and dismiss it. Petition dismissed. .