JUDGMENT 1. - By these petitions filed under Article 226 of the Constitution of India, petitioner Babu Bhai, who is the brother of detenues Mool Chand and Chhagan Bhai, has assailed the orders of their detention dated 10.1.94 (Ann.4) passed under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short, "COFEPOSA Act") issued by Shri Mahendra Prasad, Joint Secretary, Ministry of Finance, Department of Revenue, New Delhi. 2. The facts set out in the grounds of detention (Ann. 6) can be re- capitulated within a narrow compass like this. During the course of "Nakabandi" conducted by the officers of the Customs, Jodhpur at a point 14 Kms. from Pali on Pali-Ahmadabad route in the night of June 1& 2, 1993 a Mahendra jeep of Registration No. CJ-8-1187 was intercepted. One Ganesh Bhai was driving the said jeep while by his side, Mool Chand detenue was sitting. The said vehicle was searched and from a secret cavity between the driver's seat and the middle seat 50 (fifty) Foreign Marked Gold Biscuits wrapped in insulated adhesive tape were recovered. The occupants of the jeep could not produce any oral and documentary evidence regarding legal import/acquisition/possession/custody/control of those recovered Foreign Marked Gold Biscuits, which were seized under Section 110 of the Customs Act, 1962. Those Foreign Marked Gold Biscuits were of 99.9% purity, weighed 5,388.600 gms. valued at Rs. 27,00,889/- (Rupees twenty seven lacs and eight hundred and eighty nine only). 3. It is alleged that detenue Mool Chand in his voluntary statements dated 2nd and 3rd June, 1993 recorded under Section 108 of the Customs Act, admitted the recovery of those 50 FM Gold Biscuits from the said jeep and stated that those Gold Biscuits were given to him by his brother Chhagan Bhai (detenue) on 1st June, 1993 for transporting those to Ajmer and for handing them over to one Ashok, who was to be contacted on a given telephone number on reaching Ajmer. He further admitted that the said consignment was delivered to Chhagan Bhai (detenue) on 1st June, 1993 by one Mahesh of Bombay. He admitted that he had no documents regarding the illicit import of those FM Gold Biscuits. He further admitted that the said consignment was delivered to Chhagan Bhai (detenue) on 1st June, 1993 by one Mahesh of Bombay. He admitted that he had no documents regarding the illicit import of those FM Gold Biscuits. Mool Chand informed that the said jeep belonged to one Ganesh Bhai, who had contacted to sell the same to Chhagan Bhai and that at the instance of the latter, a special cavity was got built for transporting the contraband articles. 4. Ganesh Bhai in his voluntary statement dated 2nd/3rd June, 1993 recorded under Section 108 of the Customs Act also deposed likewise. It is alleged that as a part of further investigation, on 2.8.93 statement of one Mohd, Hasim Beg resident of Bangalore was also recorded under Section 108 of the Customs Act from which it transpired that detenue Mool Chand and Chhagan Bhai were involved in smuggling activities, that Mool Chand had procured those fifty smuggled Foreign Marked Gold Biscuits from one Mahesh of Bombay and fixed a deal with one Ashok at Ajmer. The Detaining Authority after perusing the relevant record arrived at subjective satisfaction that Chhagan Bhai and Mool Chand were engaged in concealing of smuggled goods and also dealing in smuggled goods and that unless prevented, they would continue to engage themselves in such prejudicial activities in future. Therefore, order of detention dated 10.1.1994 (Ann. 4) was passed. 5. The impugned order of detention has been challenged by the petitioner inter-alia on the following grounds : (i) that the order of detention is vague and has caused confusion in the minds of detenues; (ii) that there has been inordinate delay of six months in passing the order of detention. Thus, nexus between the so called illegal activities have stood snapped; (iii) that there has been inordinate delay in serving the order of detention; and (iv) that there has also been inordinate delay in considering the representations of the detenu, for which no explanation whatsoever has been given. 6. A counter and two affidavits of Shri Sikander Khan, Joint Secretary, Ministry of Finance, Department of Revenue, New Delhi have been filed. 6. A counter and two affidavits of Shri Sikander Khan, Joint Secretary, Ministry of Finance, Department of Revenue, New Delhi have been filed. The respondents in their counter have asserted that the grounds of detention are neither vague nor incomplete, that the seizure was affected on 2nd June, 1993, that during investigation, effective efforts were made to trace out the persons involved in this case, that after making necessary inquiries, the Sponsoring Authority prepared the proposals and submitted those to the Additional Collector of Customs, Jodhpur on 21.10.1993, who submitted those to the Collector of Customs Head Quarter, Jaipur, where those were received on 25.10.93, that it was felt that some additional sets were required for sending proposals to the Ministry and therefore requisition for sending the additional set of proposals was sent to the Jodhpur office on 1.11.1993. The additional sets were dispatched by Jodhpur office on 24.11.1993 and received at Jaipur on 26.11.1993. It was averred that on the same day, those proposals were sent to the Joint Secretary, COFEPOSA New Delhi. The case was placed before the Screening Committee on 8.12.1993 and that thereafter the Ministry called for additional information's regarding launching prosecution, on 14.12.1993, which was supplied by the Collector (Customs), Jaipur on 20.12.1993 and thereafter, the order and grounds of detention and the relied upon documents were finalised and the order of detention was issued on 10.1.1994 and thus, there had been no inordinate delay. 7. As regards the delay in service of the order of detention upon the detenu, it was averred by the respondents in their reply that the detenu are residents of Gujarat State and that the Customs Authorities as well as Police Authorities of Palanpur (Gujarat) made all efforts to apprehend the detenues, who were absconding. It was asserted that the representations made by the petitioner on behalf of the detenues were considered by the authority concerned with all promptitude and that the Under Secretary to the Government of India vide office memo dated 1.11.1995 & 20.10.1995 addressed to the detenue Chhagan Bhai and petitioner Babu Bhai separately, and vide another office memo dated 27.11.1995 & 6.12.1995 addressed to Mool Chand (detenue) and the petitioner separately, had communicated them about rejection of their representation. Thus, there was no delay in consideration of the representation sent on behalf of the detenu. 8. We have heard Mr. Thus, there was no delay in consideration of the representation sent on behalf of the detenu. 8. We have heard Mr. S.R. Bajwa, Senior Advocate the learned Counsel for the petitioner and Mr. Suresh Pareek, the learned Standing Counsel for the Union of India, at length and perused the relevant record. 9. Mr. Bajwa has strenuously contented that on behalf of the detenues, the petitioner had submitted a written representation dated 18.9.1995 to various authorities including the Central Government, Secretary/Joint Secretary, COFEPOSA, Ministry of Finance, the statutory authority but due to callous reticence the statutory authorities failed to consider their representation with promptitude, which has caused grave prejudice to them, that no reason whatsoever has been shown and pleaded for this inordinate delay and that on this ground alone, the impugned detentions deserve to be quashed. 10. It may be mentioned here that from the pleadings it is abundantly clear and apparent that the representations of detenues Chhagan Bhai and Mool Chand were rejected and communicated to them after 35 and 32 days respectively and that no explanation for this delay has been pleaded either in the reply filed by the respondents or in the affidavits of Shri Sikander Khan, Joint Secretary, Ministry of Finance. 11. The Apex Court in Rajindra v. Commissioner of Police and Others, 1994 Supp. (2) SCC 716 , has emphasised that the representation of the detenu must be dealt with expeditiously and that if the delay in consideration of the representation is not explained, then there is no alternative except to quash the detention order. It has been observed as under : "Once a representation is made the detenue is entitled to the representation being dealt with expeditiously. If there is some ex facie delay, the obligation is on the State to explain that delay. There is no question of a specific allegation to be made in the petition, except pointing out by placing facts that there has been a delay which ex facie calls for an explanation and that obligation has to be discharged by filing a proper counter and explaining the delay. The Courts have not been unduly strict in insisting that each day's delay must be explained but it is obligatory on the part of the Government to show by filing a counter affidavit that it had acted promptly in dealing with representation. The Courts have not been unduly strict in insisting that each day's delay must be explained but it is obligatory on the part of the Government to show by filing a counter affidavit that it had acted promptly in dealing with representation. What is essential is that the Court must be satisfied that the Officers dealing with the representation were not indifferent to the urgency of the situation of the detenu being in jail." "It appears that of late the Central Government does not show that sense of responsibility which is expected of it while dealing with detention cases, namely, of filing counter in time before the Court dealing with the habeas corpus petition. The Central Government should be alive to the need to act promptly in such detention cases where the liberty of an individual is concerned. The Court is expected to go by the pleadings and the Central Government is expected to place the factual material in connection with the detention order by filing a counter affidavit so that the petitioner has an opportunity to meet with the factual information. The indulgence shown by the Courts in perusing the file seems to have given an impression that the Central Government is under no obligation to file a counter affidavit to explain the delay. This impression has to be removed once and for all. The Central Government is under obligation to file its counter within the time permitted by Court failing which the case may go by default. Production of the file is not a substitute for a counter to be filed by the Central Government. The Court peruses the file not to absolve the Central Government of its responsibility to file a counter but to satisfy its conscience if it notices ambiguities in the Government's stand. If the Courts have shown indulgence by perusing the file where affidavit is not filed for good reason, let that indulgence not be misused by construing it to be a licence to dispense with the obligation to file a return. 12. In Rajindra's case (supra), the representation of detenu was received on 12.2.1993 and the same was rejected on 7.4.1993. The Central Government did neither file any counter nor care to explain ex facie delay. The learned Additional Solicitor General requested the Court to adjourn the matter to enable the Central Government to produce the concerning file for its perusal. 12. In Rajindra's case (supra), the representation of detenu was received on 12.2.1993 and the same was rejected on 7.4.1993. The Central Government did neither file any counter nor care to explain ex facie delay. The learned Additional Solicitor General requested the Court to adjourn the matter to enable the Central Government to produce the concerning file for its perusal. This request was turned down and the Apex Court held that the delay in consideration of representation of the detenu stood unexplained and that there was no alternative except to quash the order of detention. 13. In the case on hand, the representation on behalf of Chhagan Bhai (detenu) was submitted on 18.9.1995 to the Central Government. The Joint Secretary, COFEPOSA and the Under Secretary Government of India by his office memo dated 20.10.1995 and 1.11.1995 (Ann. R.4 & R.5 respectively) addressed to the said detenu and his brother informed about the rejection of their representations i.e., after 32 and 43 days. Similarly the representation dated 1.11.1995 filed on behalf of Mool Chand (detenu) to the statutory authority was rejected and communicated vide memo dated 27.11.95 and 2.12.1995 (Ann. R.6) i.e. after 27 & 32 days. For these delays, no explanation has been given by the respondents in their replies or in the affidavits of hri Sikandar Khan. The related files of these detenues have also not been placed before us for perusal. This indicates that the statutory authority has not considered the representations of the detenue with promptitude. On the other hand, they have shown callus indifference on their part and given a complete go-bye to the Constitutional mandate given under Article 22(5) of the Constitution of India, which mandates that such representations have to be considered, disposed of and intimated to the detenu expeditiously and with all promptitude's. It is needless to mention that under Section 3 of the COFEPOSA Act a person is detained without trial for any offences and, therefore, his personal liberty and fundamental rights are jeopardized. A person can only be detained and his freedom of movement can only be restricted in accordance with law. 14. In the case on hand, we are constrained to observe that the authorities concerned have not given any explanation whatsoever for the delays in considering the representations of the detenu for such a long period. A person can only be detained and his freedom of movement can only be restricted in accordance with law. 14. In the case on hand, we are constrained to observe that the authorities concerned have not given any explanation whatsoever for the delays in considering the representations of the detenu for such a long period. They have even not cared to plead relevant facts explaining the delay in considering the representations of the detenu despite repeated observations made and directions given by the Apex Court and various High Courts. Therefore, only on this ground of inordinate delay in considering the representations of the detenu with no explanation, their detention cannot be justified and sustained and those deserve to be quashed. 15. In such circumstances, the learned Counsel for the petitioner has not pressed on other grounds challenging the impugned detentions. 16. In the result, we allow these petitions and quash the impugned order of detention (Ann. 4) passed against detenu Chhagan Bhai and Wool Chand (detenu) and direct that they be immediately set at liberty, if not required in any other case. No order as to costs. 17. A copy of this order be sent to Secretary, Ministry of Finance, Department of Revenue, New Delhi to ensure that no such lapse takes place in future.Petitions allowed. *******