Mohd. Shamim ( 1 ) THE petitioner through the present writ petition haschallegned the detention Order No. F. 5/19/94/h (P-11) dated 13/07/1994 passedunder Section 3 (1) of the Conservation of Foreign Exchange and Prevention ofsmuggling Activities Act, 1974 ( hereinafter REFERRED TO to as the Act for the sake ofconvenience) by Lt. Governor of Delhi, and Declaration No. 14/94 dated 16/08/1994 under Section 9 of the said Act issued by Additional Secretary to thegovernment of India. ( 2 ) BRIEF facts for the proper appreciation of the points involved herein areenumerated as under: that one package bearing the name of the petitioner containing 1470 spectacle frames and 5000 integrated circuits concealed in refrigerator andwashing machine, was interpcepted by the Preventive Officers of the Air Cargounit. Yet another consignment landed at the Airport on 24/03/1994 fromsingapore bearing the same address and passport number but in the name of adifferent consignee. A scrutiny of the same resulted in the recovery of the U-maticv. C. R. and Cordless Telephones of foreign origin hidden in the refrigerator andmusic system. The petitioner is alleged to have claimed the said consignment asbelonging to him vide his statement recorded under Section 108 of the Customsact. ( 3 ) THE petitioner is innocent. He has been falsely implicated in the instant case. He was forced to make the statement under Section 108 of the Customs Act. However, he retracted the same at the first available opportunity before the Trialcourt. The impugned order of detention is illegal and invalid inasmuch as thealleged occurrence is dated 23/03/1994 yet no order of detention was passed till 13/07/1994. The long and undue delay in passing the impugned order hassnapped the nexus in between the alleged activity and the activity sought to becurbed by passing the impugned order: The petitioner has not been supplied someof the documents which were relied upon by the Detaining Authority. Non/supplyof the documents mentioned in para 3 (ii) of the petition has vitiated the impugnedorder. The petitioner was thus deprived of an opportunity to make an effective andpurposeful representation under Art. 22 (5) of the Constitution of India. ( 4 ) SOME of the documents supplied to the petitioner are illegible which istantamount to the non supply of the documents. It is thus violative of Art. 22 (5) ofthe Constitution. The petitioner was thus deprived of an opportunity to make an effective andpurposeful representation under Art. 22 (5) of the Constitution of India. ( 4 ) SOME of the documents supplied to the petitioner are illegible which istantamount to the non supply of the documents. It is thus violative of Art. 22 (5) ofthe Constitution. There has been long and undue delay in consideration of therepresentation of the petitioner dated 27/07/1994 inasmuch as the same wasrejected vide order dated 8/08/1994 without application of the mind. Thecasual and mechanical consideration of the representation of the petitioner isviolative of Art. 22 (5) of the Constitution. The Detaining Authority failed to takeinto consideration the adjudication proceedings and thereby vitiated the detentionorder. The impugned detention of the petitioner is based on a solitary incident. Itthus cannot be deduced therefrom that the petitioner was likely to indulge in suchlike alleged activities in future. The subjective satisfaction of the Detaining Authority is thus vitiated. The Detaining Authority took into consideration certain irrelevant and extraneous material which has no concern, whatsoever, with the allegedprejudicial activities and thereby rendered the impugned order illegal and invalid. The Sponsoring Authority failed to apprise the Detaining Authority of the fact thatthe alleged offence was at the most punishable with imprisonment which mayextend to three years or fine or with both. Non consideration of this aspect hasrendered the impugned order illegal. The declaring authority did not take intoconsideration certain very material and relevant documents e. g. precharge evi-dence and the reply dated 5/08/1994 to the application for cancellation of bail. It has thus rendered the continued detention of the petitioner illegal. ( 5 ) THE respondents through their counter affidavit have controverted eachand every assertion made by the petitioner in his petition. ( 6 ) LEARNED Counsel for the petitioner Mr. Ashutosh has contended with greatzeal and fervour that the declaration dated August 16,1994 under Section 9 of theact is illegal and invalid and as such is liable to be quashed for the simple reasonthat the declaring authority i. e. the Government of India failed to take intoconsideration very relevant and material documents such as: (a) Counter affidavitdated 5/08/1994 to Crl. Ashutosh has contended with greatzeal and fervour that the declaration dated August 16,1994 under Section 9 of theact is illegal and invalid and as such is liable to be quashed for the simple reasonthat the declaring authority i. e. the Government of India failed to take intoconsideration very relevant and material documents such as: (a) Counter affidavitdated 5/08/1994 to Crl. M. (M) No. 1390/94 moved by the Customs Department for the cancellation of the bail granted to the petitioner vide order dated 28/04/1994 passed by the Additional Sessions Judge, Delhi; (b) the pre-chargeevidence recorded by the learned Additional Chief Metropolitan Magistrate in theform of the statement dated 5/08/1994 of Shri Rakesh Handa, ACO (Law) and (e) they also did not take into consideration the representation dated 27/07/1994made by the petitioner against the detention order dated 13/07/1994 while makingthe declaration dated 16/08/1994. All the abovesaid documents came intoexistence after the passing of the detention order and before making the declaration. Thus a duty was cast on the shoulders of the Detaining Authority to take intoconsideration the said documents as the said documents could have swayed thesubjective satisfaction of the declaring authority in either way. According to thelearned Counsel relevant document is a document which is likely to affect themind of the declaring authority in either way. ( 7 ) LEARNED Counsel for the Union of India, Mr. Madan Lokur, has countervailed the above argument advanced by the learned Counsel for the petitioner. According to him, the declaring authority was under no obligation to consider theaforementioned documents inasmuch as a detention order under Section 3 of theact is altogether different from a declaration made under Section 9 of the Act. According to the learned Counsel Section 3 of the Act is wider in its ambit and scopewhereas Section 9 of the said Act, where under a declaration is made is muchnarrower in its sweep. The learned Counsel thus contends that the petitioner doesnot have the same right which are available to him to make a representation undersection 3 of the Act as against the declaration under Section 9 of the Act. The learnedcounsel in order to substantiate his argument has dwelled at length on thedistinguishing features of the aforesaid two Sections. According to him, keeping inview the said distinction the petitioner has got no constitutional right to make arepresentation against the order of declaration. The learnedcounsel in order to substantiate his argument has dwelled at length on thedistinguishing features of the aforesaid two Sections. According to him, keeping inview the said distinction the petitioner has got no constitutional right to make arepresentation against the order of declaration. The right to make a representation,if any, is only a statutory right. In view of the above if the said documents are notconsidered it would not render nugatory the order of declaration. ( 8 ) THE next limb of the argument put forward by the learned Counsel is thatthe said documents are not relevant and material and thus need not have beentaken into consideration. ( 9 ) THE contention of the learned Counsel for the respondents is devoid of anyforce. ( 10 ) THE effect of a declaration under Section 9 of the Act is to extend the periodof detention of a person for a period of two years. Thus the order of detention andorder of declaration both deal with the liberty of a citizen. The order of declarationis thus nothing but the continuation of the earlier detention order passed against acitizen. It would be inconceivable to visualise the existence of one in the absence ofanother. They are just like twin sisters and they both go hand in hand. ( 11 ) I am reminded here of the oft quoted and oft repeated illustriousobservation of Thomas Jefferson, former President of United States of America,summary view of. . . . Rights. . . . . :"the God who gave us life, gave us liberty at the same time". Hence it would be puerile to argue that a person would have no constitutional rightto make a representation against an order of declaration. A mere glance at Article21 of the Constitution which grants protection of life and personal liberty to anindividual would reveal that the arguments of the learned Counsel cannot besustained by any stretch of imagination. Article 21 provides " No person shall bedeprived of his life or personal liberty except according to procedure establishedby law". Article 22 (5) further comes to the rescue of a person in case of deprivationof his life and liberty. Article 21 provides " No person shall bedeprived of his life or personal liberty except according to procedure establishedby law". Article 22 (5) further comes to the rescue of a person in case of deprivationof his life and liberty. It envisages " When a person is detainedin pursuance of anorder made under any law providing for preventive detention, the authoritymaking the order shall, as soon as may be, communicate to such person the groundson which the order has been made and shall afford him the earliest opportunity ofmaking a representation against the order". The effect of the declaration as I havealready observed above would be the deprivation of the liberty of an individual. Thus he would have a right to make a representation under Article 22 (5) of theconstitution of India. It would thus be a constitutional right and not a statutoryright. ( 12 ) I am supported in my above view by the observations of their Lordshipsof the Hon ble Supreme Court in Union of India and Another v. Shantaramgajanan Kanekar and Another, (1994 Supreme Court Cases (Cri) 1496 ). . . . "therespondent was served with an order of detention made under Section 3 (1) of theconservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (hereinafter the Act ). The detenu, it is not disputed did not know English andwas conversant with Marathi language only. Marathi version of the grounds ofdetention was furnished to the detenu. The respondent was also served with a copyof the declaration made under Section 9 (1) of the Act together with the Marathiversion of the declaration. The detenu questioned the order of detention as also thedeclaration issued under Section 9 (1) of the Act on various grounds. The principalobjection raised on behalf of the detenu before the High Court was that the Marathiversion of the declaration under Section 9 (1) of the Act did not tally with itscounterpart in English and due to that defect, the detenu was prevented frommaking an effective representation under Article 22 (5) of the Constitution. Thehigh Court, on facts, found that the two versions of the declaration did not tallywith each other. The High Court found that the translated version of the declaration under Section 9 (1) of the Act was defective and opined that it was not possiblefor the detenu to make an effective representation. The order of detention wastherefore quashed. Thehigh Court, on facts, found that the two versions of the declaration did not tallywith each other. The High Court found that the translated version of the declaration under Section 9 (1) of the Act was defective and opined that it was not possiblefor the detenu to make an effective representation. The order of detention wastherefore quashed. ( 13 ) IN the facts and circumstances of the case, the view taken by the Highcourt is unexceptionable and we do not find any reason to interfere. The appeal isdismissed". ( 14 ) TO the same effect are the observations of a Division Bench of this Courtas reported in Joga Singh v. Union of India and Another (1992 JCC 195 ). ( 15 ) THIS brings me to the point as to whether the three documents adverted toabove were relevant and material and thus a duty was cast on the shoulders of thedeclaring authority to take them into consideration. This is not in dispute that thesaid documents were not taken into consideration inasmuch as the respondents intheir counter affidavit have stated that the said documents were not placed beforethe Competent Authority as the same were not forwarded by the Sponsoringauthority alongwith the proposal. Admittedly, the Competent Authority whileissuing the declaration took into consideration the application moved by thecustoms Department for cancellation of the bail. If that was a relevant documentfor the purpose of consideration of the Competent Authority while issuing thedeclaration then this Court feels that the reply thereto should also have been placedbefore the declaring authority. The petitioner herein vide para 2 of the counteraffidavit dated 5/08/1994 (Parawise reply) has very categorically stated thatthe second consignment did not belong to him. According to him, it was improbable that the same man would import two consignments in different names on thesame date or on two consecutive dates. He further stated that the present case wasa case where the goods are alleged to have been imported through air cargo. Incaseof arrival of a consignment through the air cargo the goods would not be clearedwithout a thorough examination and scrutiny of the consignment. Thus the goodscould not have been hidden and concealed. It was further stated therein ( vide para4 of the counter affidavit) that the offence, if any, alleged to have been committedby the petitioner was punishable with imprisonment for a term which may extendto three years or fine or both. Thus the goodscould not have been hidden and concealed. It was further stated therein ( vide para4 of the counter affidavit) that the offence, if any, alleged to have been committedby the petitioner was punishable with imprisonment for a term which may extendto three years or fine or both. ( 16 ) IN view of the above I am of the view that the abovesaid document wasquite relevant and material and it could have swayed the mind of the declaringauthority. ( 17 ) THIS brings me to the pre-charge evidence. The pre-charge evidence wasrecorded on 5/08/1994. It is the statement of PW1 Rakesh Handa who filed thecomplaint PW1 /a against the petitioner. On being cross-examined he has admitted that he has simply filed the complaint in the instant case. He has no personalknowledge with regard to the facts of the present case. He further goes on to admitthat in case of goods received through air cargo the same are not handed over to theconsignee directly. In the above circumstances I feel that pre-charge evidence wasalso quite material and relevant. ( 18 ) TO the same effect is the opinion of a Single Judge of this Court as reportedin Lynn A. Curtis v. Union of India and Others, (1990 Crl. L. J. 74 ). . . . "one of the prerequisites for passing the detention order is that all relevant material and facts mustbe placed before the Detaining Authority which may sway the mind of thedetaining Authority in coming to the conclusion whether he should pass thedetention order or not and if any relevant material particularly which is exculpatory in nature is not placed before the Detaining Authority the detention orderbecomes bad in law inasmuch as the Detaining Authority in that respect has failedto apply his mind to the relevant material. Therefore, where the pre-chargeevidence has not been placed before the Detaining Authority which was a relevantmaterial document the subjective satisfaction reached by the Detaining Authorityin passing the detention order is vitiated. " ( 19 ) ADMITTEDLY, the representation dated 27/07/1994 addressed to thedetaining Authority was also not placed before the declaring authority. Thelearned Counsel thus contends that this vitiated the subjective satisfaction of thedeclaring authority and as such, rendered nugatory the impugned declaration. ( 20 ) THERE is no gainsaying the fact that the representation is a very importantand relevant document. " ( 19 ) ADMITTEDLY, the representation dated 27/07/1994 addressed to thedetaining Authority was also not placed before the declaring authority. Thelearned Counsel thus contends that this vitiated the subjective satisfaction of thedeclaring authority and as such, rendered nugatory the impugned declaration. ( 20 ) THERE is no gainsaying the fact that the representation is a very importantand relevant document. It is through a representation that the petitioner putsforward his case and brings to the notice of the Competent Authority all the factorsand documents which are exculpatory in nature. The above view was also givenvent to by a Single Judge of this Court in P. C. Aggarwal v. Sh. M. L. Wadhawan andors. , (Criminal Writ No. 49 of 1986, decided on 30/04/1986 ). I am tempted hereto cite a few lines from the said judgment to illustrate my point:. . . . "it is thus clearthat it is incumbent on the specified authority to apply its mind afresh to concludethat not only is the detenu engaged in unlawful activities as provided under the Actwhich led to his detention but also that those activities are being carried out or likelyto be carried out in vulnerable areas. The representation of the detenu challengingthe detention order if received within time by the specified authority (in this casesh. Wadhawan is the empowered authority for the purpose of passing the detention order and also for issuing the declaration) cannot be ignored from consideration. In my view it is incumbent on the authority concerned to consider thatrepresentation also. " ( 21 ) LEARNED Counsel for the respondents Mr. Lokur, on the other hand, hascontended that since the petitioner did not raise the plea with regard to the nonconsideration of his representation dated 27/07/1994 hence he was debarred fromraising this point before this Court. The contention of the learned Counsel is devoidof any force. ( 22 ) IT is well recognised principle of Criminal Jurisprudence that the rules ofpleadings are not applicable in case of a writ petition. It is not expected of thelitigants who are detained and apply for issue of a writ of habeas corpus to followstrict rules of pleadings. Even a postcard by a detenu is sufficient enough to bringinto motion the process of the Court. It is not expected of thelitigants who are detained and apply for issue of a writ of habeas corpus to followstrict rules of pleadings. Even a postcard by a detenu is sufficient enough to bringinto motion the process of the Court. To the same effect are the observations of theirlordships of the Supreme Court as reported in Smt. lcchu Devi Choraria v. Unionof India and Others, ( AIR 1980 SC 1983 ). . . . . . "in case of an application for a writ ofhabeas corpus, the practice evolved by Supreme Court is not to follow strict rulesof pleading nor place undue emphasis on the question as to on whom the burdenof proof lies. Even a postcard written by a detenu from jail has been sufficient toactivise the Court into examining the legality of detention. The Supreme Court hasconsistently shown great anxiety for personal liberty and refused to throw out apetition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. " ( 23 ) FURTHERMORE, admittedly the law of preventive detention is a law whichhas got a bearing on the liberty of anindividual. Thus the Courts are required to be on their tiptoe and guard and to be vigilant enough to see that the procedurerequired to be followed in cases of preventive detention is scrupulously followed. It was observed by a Division Bench of the Bombay High Court as reported injethmal Kapurchand Kothari v. Union of India and Ors. , ( 1985 (2) Crimes 960 , Pershah J. , as his Lordship then was ). . . . . . "it is to be borne in mind that the law ofpreventive detention encroaches upon the liberty of a person and unless it isestablished that the procedure prescribed the law is scrupulously followed, theorder of detention cannot be sustained". ( 24 ) IT has next been urged for and on behalf of the petitioner that there is aninordinate delay in the disposal of the representation dated 22/08/1994preferred TO by the detenu against the declaration. According to the learned Counselthe petitioner made a representation on 22/08/1994 against the declarationdated 16/08/1994. The said representation was disposed of within thirty onedays. A perusal of para 3 of the counter affidavit sworn by Mr. J. L. Sawhney, Undersecretary, Government of India, dated 23/01/1995 reveals that the saidrepresentation was received in the office on 30/08/1994. According to the learned Counselthe petitioner made a representation on 22/08/1994 against the declarationdated 16/08/1994. The said representation was disposed of within thirty onedays. A perusal of para 3 of the counter affidavit sworn by Mr. J. L. Sawhney, Undersecretary, Government of India, dated 23/01/1995 reveals that the saidrepresentation was received in the office on 30/08/1994. The comments weresent for from the Sponsoring Authority vide request dated 1/09/1994. Thesponsoring Authority furnished the comments on 15/09/1994 and the samewere received in the COFEPOSA Unit on 16/09/1994. On the same day thecase was processed and placed before the Joint Secretary. The file after passingthrough the different hands was ultimately placed before the Minister of Financeand the representation was then rejected on 24/09/1994. It is thus manifestfrom above that the Government of India took nearabout 25 days after the receiptof the representation to dispose it off. No cogent and reasonable explanation hasbeen placed on record to explain this inordinate delay except this that the file wassome time with this officer and some time with that officer. The Sponsoringauthority took nearabout 15 days to furnish the comments which, I feel, was longand inordinate delay in the submission of the comments. In the above circumstances, I am of the view that the delay in the consideration of the representationrendered illegal and invalid the impugned order. ( 25 ) IT is a well settled principle of law that a detenu has got a constitutionalright to get his representation considered by the Detaining Authority at the earliest. The representation should be disposed of as expeditiously as possible. A sense ofurgency should be attached to the same. Time and again the Hon ble Supremecourt and the different High Courts have echoed their concern in a catena ofauthorities with regard to the consideration of a representation made by a detenuagainst his detention with all diligence and promptitude. I am tempted here to citethe observations of their Lordships of the Supreme Court as reported in Jayanarayan Sukal v. State of West bengal, 1970 (1) SC 219, cited with approval by thehon ble Supreme Court in Rama Dhondu Boradev. Shri V. K. . Saraf, Commissionerof Police and Ors. , JT 1989 (2) S. C. 579,. . . . . " It is established beyond any measure ofdoubt that the appropriate authority is bound to consider the representation of thedetenu as early as possible. Shri V. K. . Saraf, Commissionerof Police and Ors. , JT 1989 (2) S. C. 579,. . . . . " It is established beyond any measure ofdoubt that the appropriate authority is bound to consider the representation of thedetenu as early as possible. The appropriate Government itself is bound to considerthe representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty ofa person is at stake. Any delay would not only be an irresponsible act on the partof the appropriate authority but also unconstitutional because the Constitutionenshrines the aforementioned right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediateaction should be taken by the relevant authorities. " ( 26 ) IT is manifest from the discussion above that the declaration order passedby the Government of India is illegal and invalid. ( 27 ) NOW the question which falls for consideration is: What is the effect of theillegality of the impugned declaration on the detention order dated 13/07/1994?it has been held time and again that in case the declaration cannot be sustained inthe eye of law in that eventuality the detention order automatically evaporates inthe air and it cannot be sustained and is liable to be flung to the winds. The simplereason is that a detention order is required to be confirmed within three monthsfrom the date of its issue in the absence of a declaration extending the period ofdetention by the appropriate Government. In the instant case the order of confirmation was passed on 19/01/1995 though the order of detention was passedon 13/07/1994. ( 28 ) TO the same effect is the view expressed by their Lordships of the Supremecourt as reported in Nirmalkumarkhandelwal v. The Union of India and Ors. , (AIR1978 SC 1155 ). . . "there is no reason to doubt the law enunciated by this Court in theaforesaid decisions. Respectfully following the ratio of those decisions, we holdthat since no order of confirmation of the detention was made under Cl. (f) of Sec. 8 within three months of the date of detention by the appropriate Government,further detention of the petitioner after the expiry of that period is without theauthority of law". Respectfully following the ratio of those decisions, we holdthat since no order of confirmation of the detention was made under Cl. (f) of Sec. 8 within three months of the date of detention by the appropriate Government,further detention of the petitioner after the expiry of that period is without theauthority of law". To the same effect is the view given vent to by a Single Judge of this Court asreported in Pooran Singh v. Union of India, ( 1990 (3) Delhi Lawyer 165 ). Learned Counsel for the petitioner besides the points alluded to and dilatedupon above raised quite a good number of other pleas. However, I need not dwellupon them in view of the above. In the circumstances stated above the petition is allowed. The detention orderdated 13/07/1994 and the declaration dated 16/08/1994 under Section 9 (1) ofthe Act are hereby quashed. Let the petitioner be set at liberty in case he is notrequired to be detained in any other case.