Dismissed

Kasim Kadar Kunhi v. the State of Maharashtra and Ors.

Bombay HC2 Feb 2005WP/2198/2004

Case brief

AI extract

What is this about?

This judgment dismisses a writ petition challenging a detention order issued under COFEPOSA. The court held that the delay in serving the order and disposing of the representation was satisfactorily explained by the detenu's absconding and lack of specific address, finding the grounds for detention valid.

What did the court decide?

The petition is dismissed and the rule is discharged with no order as to costs.

Kasim Kadar Kunhi Vs the State of Maharashtra… — Pension and Retirement Benefits | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL WRIT PETITION NO.2198 OF 2004

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 Kasim Kadar Kunhi, age 27 yrs. )
 an Indian Inhabitant residing )
 at Mading Bldg. Compound, )
 No.3, R.No.39, (B), Musaphir )
 Khana, Mumbai 400 001. )... Petitioner
 (Friend of detenu)

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 Versus

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`1. The State of Maharashtra )`
`through the Secretary to )`
`the Government of Maharashtra)`
`2. Ranjana Sinha, Secretary )`
`(Preventive Detention) )`
`Government of Maharashtra, )`
`Home Department and Detaining)`
`Authority. )`
`3. The Superintendent of Prison )`
`Nasik Road, Central Prison, )`

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 Nasik. )

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 4. The Superintendent of Mumbai )
 Central Prision, Mumbai. )...Respondents

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 Mrs.A.M.Z.Ansari for petitioner

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 Mr.D.S.Mhaispurkar, APP for respondents

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 CORAM : R.M.S.KHANDEPARKAR &
 P.V.KAKADE, JJ.

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 DATE : 2ND FEBRUARY, 2005.

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 ORAL JUDGMENT : (Per Khandeparkar, J.)

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 . The Petitioner challenges the Order of Detention
 issued on 28.2.2002 by the Respondent No.2 in exercise
 of the powers under Section 3(1) of the Conservation of
 Foreign Exchange and Preventive of Smuggling Activities
 Act, 1974 (hereinafter referred to as COFEPOSA Act) on
 three grounds viz. (i) delay in execution of the
 detention order (ii) delay in consideration of
 representation and (iii) the order issued for the

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 purpose referred therein could not have been issued on
 the basis of the materials placed before the Detaining
 Authority.

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 2. The petitioner is the friend of one Mohd. Kunhi
 Kallattra - detenu. On suspicion, the detenu was
 intercepted on 6.9.2001 while he had boarded the Gulf
 Air Flight No.-059 to travel to Dubai, and examination
 of his baggage and personal search resulted in recovery
 of Indian Currency worth Rs.14,650/= and Foreign
 Currency equivalent to Rs.6,94,500/=, besides, travelers
 cheques totally worth Rs.12,87,252/= and the same were
 seized under Panchanama and he was arrested by the
 Custom Authorities. The foreign currency worth
 Rs.3,16,505/= is stated to have concealed in the bag,
 which was carried by the detenu and there was no
 declaration made in relation to the said foreign
 currency by the detenu before the Customs Authorities
 before boarding the air craft. The arrest of the detenu
 was followed by the investigation, which included the
 recording of his statement under Section 108 of the
 Customs Act, 1962, followed by retraction of statement
 and thereafter by Order dated 28.2.2002. The Detaining
 Authority issued the said impugned Detention Order and

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 the same was served upon the detenu along with the
 grounds in support thereto on 21.9.2004. It is also to
 be noted that pursuant to the arrest of the detenu, an
 application for bail came to be filed before the
 concerned Magistrate, which was allowed on 18.9.2001 and
 the detenu was released on bail on 29.10.2001.

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 3. As regards the first ground of challenge it is
 the contention of the detenu that the impugned Order was
 belatedly served upon the detenu i.e. nearly two years
 and seven months from the date of issuance of the said
 Order and there is no satisfactory explanation for such
 delay in giving effect to the said Order. It is the
 contention on behalf of the detenu that inspite of
 receipt of the letter dated 2.9.2003 sent by the
 Advocate for the detenu informing the Customs
 Authorities about the non service of any Show Cause
 Notice under Section 124 of the Customs Act, 1961
 regarding the seizure of the currency from him, there
 was no response to the said letter nor even intimation

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 about the issuance of detention order against the
 detenu. It is further contention that the detenu
 himself had presented before the learned Magistrate
 dealing with the complaint filed by the Customs

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 Authority under Section 135 of the Customs Act and

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 inspite of having appeared as many as on five occasions
 before the learned Magistrate no efforts were made to
 serve the Detention Order and there is no explanation
 for such failure. It is the contention of the detenu
 that in the facts and circumstances of the case, the
 belated service of the impugned order of the detention
 on the detenu has impaired the satisfaction arrived at
 by the detaining authority, as the same is not genuine
 and it renders the order to be null and void and
 therefore, deserves to be quashed. The reliance is
 placed in the decision in the matter of K.P.M.Basheer
vs. State of Karnataka and Anr. reported in (1992) 2
Supreme Court Cases 295 and in the matter of Narendra
Punjabhai Shah vs. Union of India and Ors. reported in
1994(2) Scale page 112. It is also been brought to the

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 notice of the court that in the statement of detenu
 recorded under Section 108 of the Customs Act the detenu
 had clearly disclosed his local address in Mumbai and
 yet no efforts were made to serve the order of detention
 at Mumbai and there is no explanation for the same by
 the respondents. Even the action under section 7(1) of
 the COFEPOSA Act has been taken after five and half
 months and there is no explanation for such delay.

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 4. The learned A.P.P. on the other hand has
 submitted that the precaution was taken for issuance of
 the order to be served upon the detenu at Kerala after
 verifying the address of the detenu from the Sponsoring
 Authority and it was therefore sent to Kerala. Besides,
 even the notice issued by the Customs Authorities under
 Section 124 of the Customs Act almost during the same
 time when the Order was issued had returned unserved
 with the postal remarks "Left". He has further
 submitted that it is also not the case of the detenu
 either in the Petition or otherwise that the detenu was
 staying at Mumbai during the relevant time. Besides, in
 an application filed by the detenu before the Magistrate
 on 30.12.2001 he had disclosed his address of Kerala and
 it was not revealed that he had been residing at Mumbai
 at that time. As far as action under Section 7(1) of
 the COFEPOSA Act is concerned the same was taken after
 receipt of inability of the Kerala Police to execute the
 detention order on account of non availability of the
 detenu at Kerala and therefore, there was no delay as
 such in taking the action under Section 7(1) of the
 COFEPOSA Act. Even otherwise, according to the learned
 APP, the detenu himself having avoided the service of

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 detention order by absconding himself, he cannot be
 allowed to take benefit of his own wrong to defeat the
 detention order. The reliance is sought to be placed in
 the matter of Shaikh Mohammad Saeed Karamatullah vs.
State of Maharashtra & Ors. reported in 2004 ALL MR
(Cri) 654, in the matter of Smt. Poonam Rajeev Pathak
vs. Union of India and Ors. reported in 2002 ALL MR
(Cri.) 2182 and unreported decision in the matter of
Bapu Shantaram Satam vs. The Union of India and Ors.
in Criminal Writ Petition No.1909 of 2003 delivered on
29th June, 2004 while contending that a detenu who
 avoids the service of detention order by absconding
 himself cannot be allowed to take benefit of such a
 situation created by himself to defeat the detention
 order.

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 5. The impugned Order was undoubtedly issued on
 28.2.2002 and it was served upon the detenu on 21.9.2004
 nearly two years and seven months after the issuance of
 the order. However, mere delay in giving effect to the
 order of detention by itself cannot be a justification
 for quashing of the detention order. In such a case, it
 is necessary to see whether the authorities have
 furnished satisfactory explanation for such delay. The

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 respondents in their affidavits have stated that
 immediately after the issuance of the detention order
 the same was sent for its execution to the Government of
 Kerala vide letter dated 20.2.2000 at the place of the
 ordinary residence of the detenu in the State of Kerala
 and at the address mentioned in that detention order.
 The Government of Kerala by letter dated 7.3.2002 had
 forwarded the said order for execution to the
 Superintendent of Police, Kasargod. The Superintendent
 of Police at Kasargod had acknowledged the receipt of
 the detention order by letter dated 25.3.2002.
 Thereafter, no intimation was received regarding the
 execution of the detention order. Therefore, a wireless
 message was sent to the Superintendent of Kasargod on
 14.5.2002 and simultaneously the local address of the
 detenu was also ascertained, and the papers were called
 back and on receipt of the papers on 10.6.2002 pursuant
 to letter dated 4.6.2002 from the Superintendent of
 Police, Kasargod, Kerala, the efforts were made to serve
 the detention order in Mumbai, however, without any
 success and under Report dated 8.7.2002, it was revealed
 that the detenu had left the premises where he was
 residing for few months in Mumbai. Despite the efforts
 to ascertain the whereabouts of the detenu as he could

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 not be traced, an order as contemplated under Section

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 7(1)(b) of COFEPOSA Act was issued on 18.7.2002 followed
 by Order dated 17.8.2002 under section 7(1)(a) of the
 said Act. Inspite of the action being taken under
 Section 7(1) of COFEPOSA Act the order remained to be
 executed for considerable time as the detenu was
 absconding. Thereafter the detenu surrendered before
 the Metropolitan Magistrate, 3rd Court, Mumbai, and an
 intimation thereof was received by the Government on
 15.9.2004. The detention order was then given effect to
 by executing the same on 21.9.2004. It is the case of
 the respondents that all these time the detenu himself
 was absconding and was deliberately avoiding the
 execution of the detention order.

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 6. The above explanation given by the respondents
 regarding the delay in giving effect to the detention
 order apparently discloses that the respondents did make
 efforts to execute the said detention order at the place
 of ordinary residence of the detenu in Kerala
 immediately after issuance of the order. Undoubtedly
 the statement recorded under section 108 of the Customs
 Act of the detenu by the Customs Authorities on 6.9.2001
 disclosed the permanent address of the detenu to be at

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 Kerala and the detention order was issued on the same

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 address and was also sent to be executed at the same
 place. The materials on record also reveal that the
 said statement the detenu undoubtedly disclosed that for
 few months prior to the date of the arrest he had been
 staying at Mumbai and he had disclosed his temporary
 address at Mumbai. At the same time the notice sent to
 the detenu by the Customs Authorities under Section 124
 of the Customs Act in the first week of March 2002 was
 returned with the postal remark "Left", and further the
 report dated 8.7.2002 from the PCB CID revealed that the
 detenu, after having resided in the said premises in
 Mumbai for about 2/3 months, had left the said premises.
 Considering these facts the issuance of the order for
 service thereof at Kerala in February 2002 cannot be
 found faulted with. Further the explanation given in
 the affidavit in reply also reveals that the efforts
 were made to execute the Order in Kerala but without any
 success, an intimation regarding non-availability of the
 detenu at Kerala was received 14.5.2002 and thereafter
 the papers were recalled and efforts were made to serve
 the order in Mumbai. However, pursuant to the Report
 dated 8.7.2002, it was revealed that his whereabouts at
 Mumbai also were not known. Obviously, the action under

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 Section 7 of the COFEPOSA Act was taken, however, the
 detenu could not be apprehended till September, 2004,
 for all this time he was absconding.

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 7. It is sought to be contended that the detenu had
 been attending the hearing of the case under the Customs
 Act before the Metropolitan Magistrate, Mumbai and as
 many as five occasions he had appeared before the said
 Court during the relevant period. In that connection
 attention is sought to be drawn to the copy of the
 Roznama, at Annexure-D to the Petition, which disclose
 entries relating to the dates of 16.4.2004, 15.4.2004,
 3.8.2004, 11.8.2004 and 25.8.2004. Perusal of the said
 copy it is apparent that on 16.4.2004, 17.6.2004 and
 8.7.2004 the detenu, who is the accused No.1, had not
 appeared before the Court. Referring to the expression
 "A.No.1 for making his presence" appearing in the
 Roznama dated 8.7.2004, it was sought to be contended
 that the same reveals appearance of the detenu before
 the Magistrate. It is to be noted that the said
 expression is preceded by the words "case is taken on
 board on an application made by" and thereafter the
 expression "A.No.1 for making his presence" appears.
 Obviously, it was not a case fixed for hearing on the

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 said day but it was taken up on board pursuant to the
 application filed by the detenu. It nowhere records the
 presence of the detenu before the court on the said day.
 The fact that the matter was not fixed for hearing
 before the Magistrate on 8.7.2004, is also revealed from
 the Roznama dated 17.6.2004 wherein it is recorded that
 the matter was adjourned to 3.8.2004. Undoubtedly the
 entries relating to the dates of 3.8.2004, 11.8.2004 and
 25.8.2004 disclose presence of the accused before the
 Magistrate. At the same time the affidavit in reply
 also discloses that pursuant to the information received
 by the Government about the appearance of the accused
 before the Magistrate in August 2004, the authorities
 took necessary steps to serve the detention order and it
 was accordingly served on 21.9.2004. Being so, the
 contention that the detenu had appeared as many as on
 five occasions before the Magistrate during the relevant
 period is incorrect and totally devoid of substance. In
 fact Roznama entry dated 8.7.2004 itself discloses that
 the matter was taken up on board in order to direct the
 appearance of the detenu on the next date of hearing and
 which apparently discloses that prior to the said date
 the detenu had not appeared before the said Court. In
 fact only the entry dated 6.4.2004 discloses the

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 appearance of the detenu before the said Court. No
 other entry for the relevant time, in relation to the
 Roznama pertaining to the criminal case under the
 Customs Act has been disclosed to be referring to the
 appearance of the detenu before the learned Magistrate.
 Being so, the contention about the appearance of the
 detenu prior to August, 2004 before the learned
 Magistrate is totally devoid of substance.

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 8. Attention was drawn to the advocate’s notice on
 behalf of the detenu making grievance about the non
 receipt of the show cause notice and failure on the part
 of the authorities even to reply to the same and to
 inform about the detention order. Undoubtedly the said
 notice was issued on 2.9.2003. However, it is nowhere
 the case of the detenu that in the said advocate’s
 letter the advocate for the detenu had informed the
 authorities about the whereabouts of the detenu. It is
 sought to be argued that the authorities could have
 atleast informed the advocate for the detenu that the
 presence of the detenu was required for service of the
 detention order. The said contention is totally devoid
 of substance. Clause (b) of Section 7(1) of COFEPOSA
 Act provides that "if the appropriate Government has

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 reason to believe that a person in respect of whom a
 detention order has been made has absconded or is
 concealing himself so that the order cannot be executed,
 the Government may by order notified in the Official
 Gazette direct the said person to appear before such
 officer, at such place and within such period as may be
 specified in the order; and if the said person fails to
 comply with such direction, he shall, unless he proves
 that it was not possible for him to comply therewith and
 that he had, within the period specified in the order,
 informed the officer mentioned in the order of the
 reason which rendered compliance therewith impossible
 and of his whereabouts, be punishable with imprisonment
 for a term which may extent to one year or with fine or
 with both." Obviously, once the action under Section
 7(1)(b) is initiated, the burden will lie upon the
 detenu to establish that it was not possible for him to
 comply with the direction issued under the said
 provisions of law for his appearance. Once it is the
 case of the detenu himself that a notice by the advocate
 of the detenu was issued to authorities complaining
 about the non receipt of the show cause notice under
 Section 124 of the Customs Act and there being
 presumption about the knowledge to the detenu of the

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 detention order in view of direction under Section

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 7(1)(b) having been published in Official Gazette, it
 was necessary for the detenu himself to disclose the
 reason for not being possible for him to appear before
 the authority and his whereabouts and having failed to
 do so, the detenu cannot take benefit of his own wrong.
 Being so, mere failure on the part of the authorities to
 inform to his advocate about the necessity of presence
 of the detenu to serve the order cannot enure to the
 benefit that the detenu who was apparently shown to be
 absconding at the relevant time. Besides, admittedly
 the advocate’s notice was in relation to the grievance
 pertaining to the non receipt of the show cause notice
 under Section 124 of the Customs Act. Merely because
 the authorities dealing with adjudication proceeding
 under the Customs Act had not informed about the
 requirement of the detenu for the purpose of service of
 the detention order, it cannot be said that there is
 unexplained delay in giving effect to the detention
 order.

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 9. As regards the decision in the matter of
 K.P.M.Basheer’s case (supra) it was a case where the
 arresting officer did not make any real and genuine

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 efforts to arrest and detain the detenu, and the
 explanation, which was sought to be offered that the
 detenu was fugitive, eluding the dragnet of the
 detention order, was found to be unacceptable, since
 during the relevant period the detenu had appeared
 before the Asstt. Collector of Customs, Mumbai on two
 occasions and the same was after the date of issuance of
 the detention order. In those circumstances the Apex
 Court held that the order of detention was not
 sustainable since the live and proximate link between
 the grounds of detention and the purpose of detention
 had snapped. Apparently the decision is clearly
 distinguishable on facts.

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 10. In Narendra Punjabhai Shah’s case (supra) the
 explanation which was sought to be given for delay of
 one year in serving the detention order was that though
 in a criminal case the detenu was the accused and had
 appeared before the Court on 23.3.1992 and also on
 7.10.1992, yet the detention order could not be served
 as the authorities were busy in translating voluminous
 documents which were in Gujarati to English and then the
 efforts to serve the order did not yield result as they
 could not find the detenu and therefore, they moved for

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 cancellation of bail and the detenu did not appear on
 the dates on which the application was posted for
 hearing and, therefore, the detenu was absconding. That
 was the explanation with reference to the period upto
 11.12.1992 and thereafter it is stated that a team of
 officers of sponsoring authority made an enquiry on
 6.4.1993 but then the detenu was not available and
 finally the detenu surrendered after expiry of one year.
 Obviously, the explanation was rejected being vague and
 unsatisfactory. That is not the case in the matter in
 hand. It was a specific case of the respondents in the
 matter in hand that the detenu was continuously
 absconding and the records apparently disclose that the
 detenu after his release on bail, appeared before the
 Learned Magistrate for the first time on 3.8.2004. He
 was released on bail on 29.10.2001 much prior to
 issuance of the order of detention. The detenu has not
 been able to disclose that the detenu was available in
 Mumbai or in Kerala during the relevant period, and the
 same coupled with the efforts on the part of the
 respondents to serve the detention order discloses his
 non availability in Mumbai as well as in Kerala and the
 fact that he was absconding during the said period.

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 11. The Division Bench of this Court in Shaikh
 Mohammad Saeed Karamatullah’s case (supra) while dealing
 with the issue relating to delay in giving effect to the
 service to the detention order and after taking note of
 the decision of the Apex Court in T.A.Abdul Rehman vs.

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State of Kerala reported in AIR 1990 SC 225 as well as

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Pradeep Nilkanth Paturkar vs. S. Ramamurthi, reported
in AIR 1994 SC 656 has clearly held that the Court has
 to ascertain whether the detaining authority had
 satisfactorily examined such a delay and afforded the
 tenable and reasonable explanations. Considering the
 facts stated above and the explanation given by the
 respondents for inability to give effect to the
 detention order dated 28.2.2002 till 21.9.2004,
 certainly the same discloses the detaining authority
 having satisfactorily examined the delay and has
 forwarded satisfactoriy explanation for such delay and
 therefore, the contention on behalf of the detenu that
 the delay has rendered the detention order to be null
 and void is to be rejected. The view that we are taking
 is also fortified by the decision of the another bench
 of this Court in the matter of Smt.Poonam Rajeev

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Pathak’s case, therein it was clearly ruled that "most
 important aspect to be considered in case of delay is

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 concerned is whether the live link between the

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 activities of the detenu and the detention order is
 snapped on account of alleged delay." Apart from binding
 nature of the said observation we have no hesitation in
 expressing our respectful agreement with the said
 ruling. In the case in hand the materials on record
 nowhere disclose snapping of live link between the
 activities of the detenu and the detention order. The
 very fact that the detenu was not available and
 absconding for a period of more than two years from the
 order of issuance of the detention, coupled with the
 explanation for the delay on that count in giving effect
 to the order, failure on the part of the detenu to
 appear before the authority inspite of action being
 initiated under Section 7 of the COFEPOSA Act, notice of
 the detenu’s advocate in September, 2003 enquiring about
 the show cause notice under Section 124 of the Customs
 Act, non appearance of the detenu in a criminal case
 before the Magistrate till August 2004, all these facts
 taken together clearly support the explanation as
 submitted on behalf of the respondents for delay in
 executing the detention order.

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 12. The second ground of challenge to the detention

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 order relates to delay in considering the

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 representations made by the detenu. It is the

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 contention of the detenu that the detenu had submitted
 nine copies of representation, jointly addressed to the
 Detaining Authority, State Government and Central
 Government and the Advisory Board, however, the reply
 filed by the Respondents discloses that the State
 Government did not consider the representation till the
 decision by the detaining authority and consequently
 there was considerable unexplained delay while
 processing the representation by the State Government.
 Referring to the affidavit in reply filed on behalf of
 the State Government it was submitted by the learned
 advocate for the detenu that the said affidavit clearly
 discloses that the Opinion of the Advisory Board dated
 19.11.2004 was received by the Home Department on
 20.11.2004. At the same time it discloses that the
 Addl. Chief Secretary rejected the representation on
 25.11.2004. Considering the fact that the
 representation was dated 2.11.2004, the contention of
 the learned advocate for the detenu is that there is no
 satisfactory explanation for such delay in considering
 the representation. The learned advocate for the
 respondents on the other hand referring to the affidavit

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 filed by the Commissioner of Customs has submitted that

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 pursuant to the representation dated 2.11.2004 the
 comments of Sponsoring Authority by letter dated
 5.11.2004 were called for and the said letter was
 received by the said authority on 9.11.2004 and parawise
 comments were submitted on 17.11.2004. He has also
 brought to our notice that the 6th and 7th of November,
 2004 being Saturday and Sunday were non working days for
 the Customs and from 10th to 13th November 2004 there
 were Diwali Holidays followed by 14th and 15th being
 Sunday and Ramzan-Id holiday respectively. Considering
 the same it is sought to be contended that there was no
 delay as such and the period taken for disposing of the
 representation has been well explained. It is also the
 contention on behalf of the respondents that the
 Government has independently considered the

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 representation without being in any manner influenced by
 the observations by the other authorities to whom it was
 submitted and considered. In that regard attention is
 also drawn to the affidavit of Shri J.N.Patil, Under
 Secretary to Government of Maharashtra, to the effect
 that the files relevant to the case of the detenu were
 in possession of the Detaining Authority till 23rd
 November, 2004, and therefore, the representation could

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 be disposed of by the Government only thereafter.

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 13. The learned advocate for the petitioner however,
 placing reliance in the decision in the matter of Mahesh
Kumar Chauhan @ Banti vs. Union of India and Ors.
reported in (199)) 3 Supreme Court Cases 148 and in the
 matter of Mrs. Venmathi Selvam vs. State of Tamil Nadu
and Anr. reported in JT 1997 (2) SC 393, has submitted
 that the so called explanation cannot be said to be a
 satisfactory explanation and irrespective of whether the
 delay is long or short, if it remains unexplained, it is
 fatal and therefore, the impugned order is liable to be
 quashed. Attention is also drawn to the decision of the
 unreported judgment of this Court in the matter of Smt.
Smita Sandeep Shirke vs. The State of Maharashtra in
Criminal Writ Petition No.1343 of 2004 delivered on 20th

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October, 2004. The learned APP on the other hand has
 placed reliance in the decision of the Apex Court in the

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 matter of Union of India and Anr. vs. Sneha Khemka and

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Anr. reported in 2004 Cri. L.J. 941 while contending

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 that the requirement of Article 22(5) of the

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 Constitution of India is that the representation should
 be disposed of within reasonable time and the materials
 on record reveal that there is due compliance of the

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 said requirement.

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 14. In Smt.Smita Sandeep Shirke’s case (supra) the

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 Division Bench the detenu had forwarded his

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 representation on 10.7.2004 and it was rejected on
 7.8.2004, which was communicated to the detenu on
 13.8.2004. Referring to the unsatisfactory explanation
 given on behalf of the Government and as there was delay
 at every stage without satisfactory explanation and
 further that there was absolutely no explanation for the
 period from 14.7.2004 till 22.7.2004, it has held that
 the failure on the part of the authority to
 satisfactorily explain the delay was fatal to the

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 continued detention of the detenu.

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 15. In Mahesh Kumar Chauhan’s case (supra) it was
 found that the authorities were unable to give any
 explanation for the period between 25.8.1989 to
 11.9.1989, except stating that the representation
 received from the detenu was forwarded to the concerned
 Sponsoring Authority on 21.8.1989 and the same was
 received by the department on 11.9.1989 and those
 circumstances, it was observed that there was undue as
 well as unexplained delay which amounted to violation of

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¶93

 the provisions of Article 22(5) of the Constitution of
 India rendering the detention order to be invalid.

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 16. In Mrs.Venmathi Selvam’s case (supra) the Apex
 Court has ruled that though the delay was not long it
 had remained unexplained. That was a case wherein
 representation dated 7.10.1997 was received on
 14.10.1997. The representation was rejected by the
 Government on 10.11.1997. The Government was required
 to explain as to how it dealt with the representation
 between 15.10.1997 and 10.11.1997, except stating that
 the remarks were called from the Detaining Authority on
 17.10.1997, there was no explanation whatsoever, even
 after specific opportunity being given by the Court to
 the Respondents to file the affidavit. Inspite of
 opportunity being given and as the same was not availed
 of, nor any explanation was submitted by the Government
 in those circumstances, the detention was held to be bad
 in law.

¶95

 17. It is to be noted that the above referred
 decisions clearly hold that in case of delay in disposal
 of the representation, it is incumbent upon the
 authorities to explain the delay and any failure in that

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 regard can render the detention order to be bad in law.
 However, at the same time, the Apex Court in the recent
 decision in the matter of Union of India and Ors. vs.
Sneha Khemka’s case (supra) has ruled that "a
 representation of the detenu having regard to the clause
 5 of Article 22 of the Constitution of India must also
 be disposed of within reasonable time". It is therefore
 needless to say that right to make representation being
 the fundamental right assured to the detenu under
 Article 22(5) of the Constitution of India and bearing
 in mind the object and purpose of the representation by
 the detenu, it is necessary for the authorities to deal
 with such representation within reasonable time and to
 communicate the decision thereon to the detenu at
 earliest possible. For reason whatsoever, if there is
 any delay in disposal of such representation, it is
 necessary for the authorities to furnish satisfactory
 explanation for such delay. In the case in hand
 considering the time consumed for disposal of the
 representation, bearing in mind the intervening holidays
 and non working days as explained by the respondents and
 revealed from the materials on record certainly, the
 respondents cannot be accused of having failed to
 discharge their obligation in that regard. In the facts

¶98

 : 26 :

¶99

 and circumstances of the case, the representation was

¶100

 disposed of within reasonable time. Besides, the
 material files relating to the detenu were for some time
 with one of the authorities and undoubtedly the said
 authority could not have disposed of the representation
 without perusal of the said records, so also the State
 Government could not have disposed of the said
 representation as the said records were with another
 authority, therefore, the State Government could not be
 blamed of having delayed the disposal of the
 representation.

¶101

 18. The contention about the decision of the
 Government might have been influenced by the decision of
 the another authority is also without any substance. No
 conclusion in that regard can be drawn without any
 basis. Apart from mere making submission in that regard
 no materials have been referred to in support of such
 submission. The very fact that the relevant files were
 in possession of the different department at the
 relevant time, itself would disclose the justification
 for the decision by the Government subsequent to the
 decision by the said authority. There is no record
 which can even remotely suggest that the decision of the

¶102

 : 27 :

¶103

 Government was influenced by the decision of the said
 authority.

¶104

 19. The third and the last ground of challenge is
 that considering the materials placed before the
 detaining authority, same would reveal acts of smuggling
 on the part of the detenu, as there was no case for
 issuance of the order on the ground that the activities
 of the detenu were prejudicial to the augmentation of
 the foreign exchange. It is the contention of the
 detenu that there was no material placed before the
 detaining authority sufficient to arrive at the
 conclusion that the activities of the detenu were in any
 manner prejudicial to the augmentation of the foreign
 exchange and therefore, the impugned order is bad in
 law. The respondents on the other hand have submitted
 that the detenu was intercepted on 6.9.2001 while he was
 travelling to Dubai by Gulf Air Flight No.-059 and on
 personal search of detenu and examination of his baggage
 he was found to have foreign and Indian Currency of the
 value worth of Rs.12,87,252/= including travellers
 cheques and the detenu could not establish the source
 from whom he had received the foreign currency nor he
 had declared to the same to the Customs Authorities and

¶105

 : 28 :

¶106

 therefore he was in illegal possession of the same and

¶107

 the said currency was liable to be seized and
 accordingly seized. It is further case of the
 Respondents that the detenu is not NRI and therefore,
 was supposed to deposit 3000/= out of 5000 US # within a
 period of 10 days from the date of receipt of the said
 currency in his possession and having not done so,
 activity of the detenu was detrimental to the
 augmentation of the foreign exchange. Attention was
 drawn to the dictionary meaning of the word "augment"
 which means "to make greater, more numerous, larger" and
 it was contended that the activity of the detenu could
 not be said to lead to be detrimental to augmentation of
 the foreign exchange merely because he is said to have
 carried the foreign currency while going abroad and that
 it could be an attempt to smuggle the currency out of

¶108

 India. Once it is apparent that the detenu was in
 possession of the foreign currency beyond the limit
 which he could and there was no explanation for the
 same, nor he did disclose the same and yet he carried

¶109

 the same while going abroad, certainly it amounts to
 attempt to drain out the foreign exchange from the
 country and to that extent it would be detrimental and
 prejudicial to the augmentation of the foreign exchange

¶110

 : 29 :

¶111

 in the country.

¶112

 20. Apart from mere submission that such an activity
 would not amount to detrimental to foreign exchange, no
 further elaboration has made in that regard by the
 learned advocate for the Petitioner. Considering the
 materials on record and case putforth by the respondents
 in reply to the said contention, certainly the
 subjective satisfaction for the detention of the detenu
 cannot be said to be without application of mind and
 therefore, it does not warrant interference in the
 impugned order on the alleged ground.

¶113

 21. As no other ground is canvased against the
 impugned order there is no case to interference in the
 impugned order, and therefore, the petition is
 dismissed. Rule is discharged with no order as to
 costs.

¶114

 (R.M.S.KHANDEPARKAR, J.)

¶115

 : 30 :

¶116

 (P.V.KAKADE, J.)

Kasim Kadar Kunhi v. the State of Maharashtra and Ors.

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Kasim Kadar Kunhi v. the State of Maharashtra and Ors.

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