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Judgment
M. Karpagavinayagam, J.—The order directing the detenu Sheik Abdullah to be detained u/s 3(1)(i) of the COFEPOSA is under challenge
in this Habeas Corpus Petition filed by Hakkini. the petitioner herein, the close relative of the detenu.
Heard counsel for the petitioner and the respondents.
The facts are unnecessary inasmuch as the detention order has to be quashed on a simple ground.
According to Mr. Kumar, learned senior counsel for the petitioner, on behalf of the detenu, a representation was sent on 30.10.1999 to the
Central Government but the same was disposed of only on 12.11.1999 after considerable delay. He would further point out that though the
second respondent in the counter would admit that the representation had been received by the Central Registry of the Ministry of Finance.
Department of Revenue on 2.11.1999, they forwarded it to the COFEPOSA unit only on 8.11.1999 and as such, the delay between 2.11.1999
and 8.11.1999 was not explained. It is further pointed out that though there is a delay of six days, which is of a short duration, inasmuch as the said
delay has not been explained and even according to the respondents, the representation was kept unattended, the detention order clamped upon
the petitioner is liable to be set aside.
In reply to the said submission Mr. Arunan, the counsel appearing for the second respondent, would contend that the COFEPOSA unit is the
concerned unit which has to consider the representation made by the petitioner and since the said unit had received the representation only on
8.11.1999, it cannot be said that there is a delay. He would further point out that the delay by itself is not a ground which proves to be fatal. To
substantiate the said plea, the learned counsel for the second respondent would cite Kamalabai v. Commissioner of Police (1993 S.C.C. (Crl)
913).
We have given our anxious consideration to the respective submissions.
At the outset, we shall mention, as correctly pointed out by the learned counsel for the petitioner that the Apex Court in Rajammal v. State of
Tamil Nadu (1999 S.C.C. (Cri) 93) has held that the delay that was caused irrespective of the time duration on account of any indifference or
lapse in considering the representation, such delay will adversely affect further detention of the detenu. In other words, it is for the authority
concerned to explain the delay in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as
well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.
In the light of the said principle, if we look at the facts of the present case, we are of the view that the delay between 2.11.1999 and 8.11.1999
has not at all been explained. On the other hand, it is contended by the learned counsel for the second respondent that though the representation
was received by the Central Registry of the Ministry of Finance, Department of Revenue, on 2.11.1999, it was received by the COFEPOSA unit
only on 8.11.1999. This oral explanation, in our view, is not acceptable, since in the detention order, it has been specifically stated that the detenu
could make his representation to the Secretary to Government of India, Ministry of Finance, Department of Revenue (COFEPOSA Unit). Central
Economic Intelligence Bureau, ""B"" Wing. 6th Floor, Janpath Bhavan, New Delhi 110 001. Accordingly, the detenu sent his representation giving
the correct address mentioning as ''COFEPOSA Unit"" as stated in the detention order and the same has been sent through the Superintendent of
Prisons, Central Prison, Chennai and admittedly received by the Central Registry of the Ministry of Finance, Department of Revenue, on
2.11.1999. In that situation, it cannot be stated that the COFEPOSA Unit, which is the concerned department, received the representation only on
8.11.1999. As held by the Supreme Court, though it is a short delay, when it is established that the representation was unattended and there is
unexplained delay, it goes without saying that the detention order suffers from illegality.
Therefore, the Habeas Corpus Petition is allowed. The impugned order of detention is set aside. Consequently the detenu is set at liberty and he
is directed to be released forthwith unless his continuous custody is required in some other case.
At this stage, Mr. Arunan, the learned counsel for the second respondent, seeks leave to file SLP Since this Court has allowed this petition on
the ground of unexplained delay on the basis of the judgment of the Apex Court, we are not inclined to grant leave. Leave is refused.