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Issues: (i) whether service of the grounds of detention on the sixth day after service of the detention order violated the time-limit under Section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; (ii) whether a representation addressed to the Advisory Board had also to be considered by the Central Government under Article 22(5) of the Constitution of India and Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; (iii) whether delay in disposal of the representation made to the Central Government vitiated the detention; (iv) whether the order rejecting the representation showed non-application of mind.
Issue (i): whether service of the grounds of detention on the sixth day after service of the detention order violated the time-limit under Section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
Analysis: The period prescribed for furnishing the grounds had to be computed by excluding the day on which the detention order was served. The statutory phrase fixing service of the grounds within five days did not require inclusion of the first day. On that computation, service on 30 March 1994 was within time.
Conclusion: The contention of violation of Section 3(3) failed and is against the appellant.
Issue (ii): whether a representation addressed to the Advisory Board had also to be considered by the Central Government under Article 22(5) of the Constitution of India and Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
Analysis: The obligation to consider a representation depends on the authority to whom it is addressed and the statutory and constitutional scheme governing detention. The rule recognised in the earlier decision relied upon by the appellant applied where the representation was made to the detaining authority itself. Here the detaining authority was the Lt. Governor, and a representation addressed only to the Advisory Board did not create an independent obligation on the Central Government to consider that same representation. In any event, a separate representation had been made to the Central Government and was disposed of.
Conclusion: Non-consideration of the representation by the Central Government did not vitiate the detention and the contention failed against the appellant.
Issue (iii): whether delay in disposal of the representation made to the Central Government vitiated the detention.
Analysis: Delay does not automatically invalidate detention; the question is whether the delay is unexplained or unreasonable on the facts of the case. The right to make a representation must be dealt with expeditiously, but reasonable expedition depends on the circumstances. On the material placed, the time taken by the Central Government was not held to be inordinate or unusual.
Conclusion: The alleged delay did not vitiate the detention and the issue was decided against the appellant.
Issue (iv): whether the order rejecting the representation showed non-application of mind.
Analysis: The communication relied upon disclosed only the operative part of the decision. In the absence of the point having been raised before the High Court and without the record being called for, no safe inference could be drawn that the detaining authority had failed to apply its mind.
Conclusion: The challenge based on non-application of mind failed against the appellant.
Final Conclusion: The detention order was upheld and the appeal was dismissed after rejection of all challenges to the detention.
Ratio Decidendi: For preventive detention under COFEPOSA, the first day is excluded in computing the five-day period for furnishing grounds of detention, a representation addressed only to the Advisory Board does not by itself impose a duty on the Central Government to consider it, and delay in disposal of a representation invalidates detention only when it is shown to be unreasonable or unexplained on the facts.
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