Holding

The Supreme Court held that the representation was not disposed of promptly, the undue delay and unnecessary clarifications rendered the detention order and declaration under COFEPOSA invalid and they were quashed.

Summary

The appellant, S.M. Jahubar Sa Thik, was detained under Section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on 4 November 1997 and a declaration under Section 9(1) was made on 27 November 1997. He filed a writ petition under Article 226 of the Constitution challenging the detention, which was dismissed by the Madras High Court. He also made a representation to the Central Government on 10 December 1997 against the declaration, but the representation was rejected only on 2 February 1998 after the authorities sought unnecessary clarifications on three occasions, causing an inordinate delay. The Supreme Court held that the representation was not disposed of with promptitude, the delay amounted to administrative lethargy and violated principles of natural justice. Consequently, the Court quashed both the detention order and the declaration, directing the appellant’s release, and set aside the High Court’s judgment.

Issues considered

Whether the delay in disposing the representation to the Central Government violates the appellant's right to speedy and fair administrative action.
Whether the High Court erred in not considering the delay and its impact on the validity of the detention order under COFEPOSA.
Whether the detention order under Section 3(1)(i) and the declaration under Section 9(1) of the COFEPOSA Act should be quashed on account of procedural irregularities.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)(i), s. 9(1)

Subjects

detentionCOFEPOSArepresentationadministrative delaynatural justicequashwrit petitionArticle 226lachesprocedural irregularity

Judgment

A S.M JAHUBAR SA THIK
v.
-
STATE OF TAMIL NADU AND ORS.

APRIL 13, 1999

B [S. SAGHIR AHMAD AND S .. RAJENDRA BABU, JJ.]

-
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974-Sections 3(1) (i} and 9(1)-Representation made to
Central Government against Order passed under Section 9(1)-Representation
C rejected in 49 days after thrice seeking clarifications on issues which did not
really arise and were not necessary-Held, it cannot be said that the
representation was disposed of with promptitude-Clarifications were only
sought to cover up the delay-Delay & Laches-Constitution of India, Art.
226.
D Appellant was detained in pursuance of an order passed under Section
3(1) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974. Thereafter, a declaration under Section 9(1) of the Act
was made. The appellant challenged these orders before High Court by filing
a writ petition under Article 226 of the Constitution of India. The appellant
E also made a representation against the order passed under Section 9(1) of
the Act to the Central Government on 8/10.12.1997, which was rejected on
2/2/1998. The writ petition of the appellant in the High Court was thereafter
dismissed. Against the judgment of the High Court, the appellant has preferred
the present appeal.

F The contention of the appellant was that the representation to the
Central Government was rejected after an inordinate delay for which no
reasonable explanation has been provided by the respondents.

Allowing the appeal, the Court

G HELD : l. A perusal of the original file reveals that the clarifications
sought by the respondents for disposing of the representation were sought 1
in the usual bureaucratic style only for the sake of clarification without
there being any need for it. In these circumstances, it cannot be said that
the representation was disposed of with promptitude. On the contrary, even
the explanation offered by the respondents in their counter affidavit filed
H before the High Court indicates the lethargic attitude with which the
~ 628
S.M. JAHUBAR SA THIK v. STATE OF TAMIL NADU [S. SAGHIR AHMAD, J.] 629

representation was taken up, dealt with and ultimately disposed of. The A
representation could have been disposed of without seeking clarification
which obviously was sought to cover Up the delay in prompt disposal of the
representation. [633-F-Gl

2. The matter was not considered by the High Court in the right
perspective. (633-H) B
3. The detention order;passed under Section 3(1) (i) of the COFEPOSA
Act and also the declaration made under Section 9(1) of the Act are quashed.
(634-A-B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. C
435of1999.

From the Judgment and Order dated 15.12.98 of the Madras High Court
in H.C.P. No. lO l of 1998.

R. Mohan and A.S. Nambiar and K.K. Mani for the Appellant. D
V.G. Pragasam, A.D.N. Rao, Rajeev Sharma and P. Parameshwaran for the
appearing parties.

The Judgment of the Court was delivered by

S. SAGHIR AHMAD, J. Leave granted. E
The appellant has been detained in pursuance of an order dated 4. l l. l 997
passed under Section 3(l)(i) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (for short, 'the Act'). This was
followed by a declaration under Section 9(1) of the Act which was made on
27.l l.1997. These orders were challenged by the appellant before the Madras F
High Court by a writ petition under Article 226 of the Constitution of India
which was dismissed on 15.12.1998. It is against this judgment that the
present appeal has been filed.

It is contended by the learned counsel for the appellant that against the G
order dated 27. ! l.l 997 passed under Section 9( l) of the Act, the appellant had
,
~·

made a representation to the Central Government on 8/10.12.1997. But the
representation was rejected after an inordinate delay for which no reasonable
explanation has been provided by the respondents. In the counter affidavit
filed before the High Court in this case, the respondents ·had sought to
explain the delay as under:- H
630 SUPREME COURT REPORTS [1999] 2 S.C.R.

A "9. With regard to averments made in Para 8 (xxxviii) it is humbly
submitted that the representation dated 08.12.1997 (actually dated
10.12.1997) was received in the.office of the Department of Revenue
on 15.12.1997 from the State Government of Tamil Nadu. The same was
received in the Cofeposa Unit of the Ministry on 16.12.97.

B 16.12.1997 The representation dated 10.12.1997 was forwarded
to the Commissioner of Customs, Chennai for furnishing of
parawise comments.

c
19.12.1997 The letter calling for proforma comments was
received by the Assistant Commissioner of Customs
(Cofeposa), Chennai.
-
20.12.1997
21.12.1997 Were closed holidays being Saturday and Sunday.

22.12.1997 Proforma comments were prepared and submitted to
D the Additional Commissioner of Customs for approval.
~

23.12.1997 Additional Commissioner approved the comments
and the same were forwarded to Under Secretary (Cofeposa).

E 25.12.1997
27.12.1997
28.12.1997 Parawise comments were received from the
Sponsoring Authority. On the same day clarifications were
--
called for from the Section Officer (Cofeposa) by the Under
F Secretary (Cofeposa).
30.12.1997 Clarifications were provided and file resubmitted to
Under Secretary (Cofeposa). ..

01.01.1998 The representation from the detenu dated 10.12.1997
and proforma comments dated 23.12.1997 from Customs
G
Department, Chennai were placed in two separate files for
consideration by the Additional Secretary (Administration)
and Secretary (Revenue).

Ol.Ol.1998 Clarifications were again sought from the Customs
H Department, Chennai on certain points.
S.M. JAHUBARSATHIK v. STATEOFTAMILNAOU [S. SAGHIRAHMAD,J.) 631
03.01.1998 A
04.01.1998 Were closed holidays being Saturday and Sunday.
06.01.1998 The Cofeposa Unit in Customs Department, Chennai,
received the letter calling for clarifications.

07.01.1998 Clarifications prepared and submitted to Assistant
B
Commissioner (Cofeposa) who submitted the same to
Additional Commissioner of Customs, Chennai for approval.

09.01.1998 Additional Commissioner approved the clarifications
and the same were despatched to New Delhi.

10.01.1998
c
I I.Ol.1998 Were closed holidays being Saturday and Sunday.

12.01.1998 Letter from Additional Commissioner of Customs,
Chennai with clarifications received in the office of Joint
Secretary (Cofeposa). D
13.01.1998 Clarifications received in the Cofeposa Unit.

13.01.1998 The Section Officer (Cofeposa) submitted the file to
Under Secretary (Cofeposa).
E
14.01.1998 The Under Secretary (Cofeposa) submitted the file
to Joint Secretary (Cofeposa).

14.01.1998 Clarifications were again sought from the Customs
Department on certain points.
F
17.01.1998
18.01.1998 Were closed holidays being Saturday and Sunday.

20.01.1998 Letter asking for clarifications was received in the
office of the Assistant Commissioner (Cofeposa), Chennai.
G
20.01.1998 .Clarifications to the letter dated 20.01.1998 were
prepared.

21.01.1998 Clarifications were forwarded to the Under Secretary
(Cofeposa), New Delhi. H
632' SUPREME COURT REPORTS [l 999] 2 S.C.R.

A 23.01.1998 Clarification from Additional Commissioner of
Cl!stoms, Chennai was received in the Cofeposa Unit of the
Ministry. ·

24.01.1998
25.01.1998
B 26.01.1998 Were closed holidays being Saturday, Sunday and
Republic Day.

27.01.1998 The Under Secretary (Cofeposa) submitted the file
to Joint Secretary (Cofeposa).

c 28.01.1998 The Joint Secretary (Cofeposa) submitted the file to
Secretary (Revenue).

29.01.1998 The Secretary (Revenue) received the file.

30.01.1998 The Secretary (Revenue) considered the
D representation dated 10.12.1997 on behalf of the Central
Government and rejected the same.

31.0U998
01.02.1998 Were closed holidays being Saturday and Sunday.

E 02.02.1998 A Memo rejecting the representation was issued.

The representation dated 10.12.1997 was considered
and rejected by the Secretary (Revenue) in 49 days of which
17 days were holidays and actual time taken for considering
and disposing off the representation is only 32 days. The
F time taken for communication with the Sponsoring Authority
at various stages of consideration is also included in the
total time taken. It is humbly submitted that the representation
dated 10.12.1997 was expeditiously and independently
considered by the Secretary (Revenue) and disposed it off
G without any delay.

27.01.1998 The copy of representation dated l 0.12.1997 along
with parawise comments of the Sponsoring Authority dated
23.12.1997 and clarifications dated 09.01.1998 and 20.01.1998
furnished by the Custoins Department, Chennai were placed
·H in a separate file and submitted by Under Secretary
S.M. JAHUBAR SATHIK v. ST ATE OFT AMIL NADU [S. SAGHIR AHMAD, J.] 633
(Cofeposa) to Joint Secretary (Cofeposa) A
28.01.1998 Joint Secretary (Cofeposa) submitted the file to
Additional Secretary (Administration).

29.0l.l998 Additional Secretary (Administration) considered the
representation dated 10.12.1997 and rejected the same. B
31.0l.l998
01.02.1998 Were closed holidays being Saturday and Sunday.

02.02.1998 File was received back from Additional Secretary
(Administration). 02.02.1998 A Memo rejecting the C
representation dated 10.12.1997 was issued.

The representation dated 10.12.1997 was considered
and rejected by the Additional Secretary (Administration) in
49 days, of which 17 days were holidays and the actual time
taken for considering and disposing off of the representation D
is 32 days. The time taken for communication with the
Sponsoring Authority at various stages of consideration is
also included in the total time taken. It is humbly submitted
that the representation dated 10.12.1997 was expeditiously
and independently considered by the Additional Secretary E
(Administration) and disposed off without any delay."

We have considered the explanation and have also examined the original
files. The respondents before disposing off the representation had sought
clarifications thrice. A perusal of the original file placed before us reveals that
the clarifictions were sought in the usual bureaucratic style on!y for the sake F
of clarification without there being any need for it. In these circumstances,
it cannot be said that the representation was disposed off )-Vith promptitude.
On the contrary, even the explanation offered by the respondents in their
counter affidavit filed before the High Court indicates the lethargic attitude
with which the representation was taken up, dealt with and ultimately disposed
off after seeking clarifications thrice on issues which did really not arise nor G
were there any necessity for seeking clarifications. The representation could
have been disposed off without seeking clarification which obviously was
sought to cover up the delay in prompt disposal of the representation.

Since the matter was not considered by the High Court in the right
perspective, the impugned judgment cannot be sustained. The appeal is _H
634 SUPREME COURT REPORTS [1999] 2 S.C.R.

A allowed. The judgment and order dated 15 .12.1998 passed by the High Court
is set aside and the detention order dated 4.11.1997 passed under Section
3( l)(i) of the Act as also the declaration made on 27 .11.1997 under Section
9( l) of the Act are quahsed with the direction that the appellant shall be set
at liberty forthwith unless his detention is required in connection with some
other case.
B
A.K.T. Appeal allowed.

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