N. Vasudevan vs The State of Tamil Nadu

S.A. Kader, J.—This is a writ petition filed under Art. 226 of the Constitution of India, for the issue of a writ of habeas corpus quashing the

order of detention passed by the first respondent on 24th August, 1987 under S. 3(1)(i) of the Conservation of Foreign Exchange and Prevention

of Smuggling Activities Act, 1974, with a view to preventing the detenu from smuggling goods. The petitioner is the father of the detenu.

Mr. Abdul Karim, learned senior counsel for the petitioner, has impugned the order of detention on the only ground that there was an inordinate

delay in passing the order of detention.

The incident which has given rise to the passing of the order of detention has occurred on 9th December, 1986, while the order of detention has

been passed on 24th August, 1987, after a delay of 8 months and 15 days. It is this inordinate delay, which, according to the petitioner, has

vitiated the order of detention. In the counter filed by the first respondent it is pointed out that the proposal for passing the order of detention was

received from the Customs Department only on 27th May, 1987. The file was then circulated to the Law Department and was received back on

8th June, 1987. A letter was then sent to the Customs Department on 9th June, 1987 asking for a copy of the letter sent by the detenu and a reply

was received on 16th June, 1987 in which the Customs department stated that the said letter referred to has been mistakenly mentioned as if it was

a letter of the detenu and in fact that letter dated 25th February, 1987 was received from one Sekaran. It was mentioned therein that a show cause

notice had been sent to the detenu and a copy will be sent to the Government in due course. Consequently on 10th July, 1987 and 22nd July,

1987 the first respondent sent reminders to the Customs department for sending a copy of the show cause notice sent to the detenu and the reply.

A reply was received on 20th August, 1987 enclosing the copy of the show cause notice and the detenu''s reply and this order of detention was

passed on 24th August, 1987. According to the first respondent, therefore, there was no inordinate or unexplained delay.

As already pointed out, the incident has taken place on 9th December, 1986 but, the proposal for passing an order of detention has been

received by the first respondent only on 27th May, 1987 after a delay of 5 months and 15 days. No explanation has been offered or attempted to

be offered for this delay. Even after the proposal was received on 27th May, 1987 it has taken three months for the first respondent to pass the

impugned order of detention. They have written to the Customs Department on 9th July, 1987 asking for the copy of the letter sent by the detenu

and the reply of the Customs department has shown that it was a mistake. The Government has, thereafter, waited for the copy of the show cause

notice and the reply sent by the detenu. They were received only on 20th August, 1987. There was absolutely no necessity for the first respondent

to wait for the copy of the show cause notice or for the reply thereto by the detenu and hence this delay of another three months for the first

respondent to pass the order of detention is not satisfactorily explained.

As pointed out by the Supreme Court in Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, .

Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for in certain cases, delay may be

unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. The detaining

authority is in no legal liability to tell or satisfy the detenu as to the cause of delay; it is under an obligation to satisfy the Court as to the cause of

delay to show that there was no infraction of the Constitutional provisions laid down under Sub-Art. (5) of Art. 22 of the Constitution.

The delay in the instant case has not been properly explained. The delay of 5 months and 15 days, in our view, is inordinate and it breaks the nexus

between the incident and the order of detention. The said order is, therefore, liable to be quashed.

In the result, the writ petition is allowed, the order of detention is quashed and the detenu is directed to be set at liberty forthwith.