Rajagopal Chettiar vs Union of India and Another

This writ petition has been filed by one Rajgopal Chettiar, the father of the detenu, Radhakrishnan under Art. 226 of the Constitution of India,

seeking the issuance of a writ of Habeas Corpus for quashing the order of detention dated 26-3-1987 passed against the detenu Radhakrishnan,

and for setting him at liberty.

The impugned order of detention has been passed by the first respondent Union of India in exercise of the powers conferred on it by and under

S. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act with a view to preventing the detenu from smuggling

goods.

The facts of the case are set out in detail in the grounds of detention furnished to the detnu and it is needless to recapitulate the same in this

order.

Though several grounds of attack have been enumerated in the affidavit in support of this writ petition; the learned counsel for the petitioner

confined his arguments only to the following aspects of the matter :-

(1) Delay in passing the order of detention.

(2) Delay in considering the detenu''s representation. We shall consider these aspects.

Point 1 :- The incident which has given rise to this order of detention has taken place on 22-8-1986. The order of detenion has been passed on

25-3-1987, 7 months and 2 days later. It is the case of the petitioner that the delay is inordinate and unexplained and the order of detention

cannot, therefore, stand. In Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, , their Lordships of the Supreme Court pointed out

-

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 detenue as to the cause of delay; it is under an obligation to satisfy the court as to the causes 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.

In a very recent decision in Shiv Ratan Makim Vs. Union of India (UOI) and Others, , the learned Judges of the Supreme Court observed;

It is no doubt true that where an unreasonably long period has elapsed between the date of the incident and the order of detention an inference

may legitimately be drawn that there is no nexus between the incident and the order of detention and the order may be liable to be struck down as

invalid.

In the counter-affidavit filed on behalf of the first respondent this contention of the petitioner is met as follows -

Regarding the averments in ground 2, it is submitted that the arguments put forth in this ground has no legal weight. As the detenu had given the

name and address of the alleged receiver of the goods, the department had to necessarily pursue the investigation and make every effort to

apprehend the alleged receiver who still remained elusive.

These averments are as vague as vagueness could be. No particulars are given about the steps taken to apprehend the alleged receiver and the

delay caused thereby. What is worse is that even the date when the proposal was sent to the Government by the sponsoring authority for detaining

the detenu has not been mentioned and we are unable to say whether there was any delay on the part of the Government in scrutinising the report

and passing the order of detention. The learned counsel for the first respondent has not also been able to show from the file that the detaining

authority has taken into consideration the delay which had occasioned in this case before passing the order of detention. Under these

circumstances, we are led to conclude that the inordinate delay of 7 months has not been properly explained and the order of detention cannot

stand.

Point 2 : The detenu has sent his representation on 25-4-1987 and the first respondent has passed the order of rejection on 4-6-1987 after a

delay of 39 days. This is explained in para 11 of the counter-affidavit filed on behalf of the first respondent thus :

Regarding the averments in ground 9, there is no force in this ground ....... The representation was duly considered by the Ministry and the

detenu''s representation was rejected - Vide Memorandum No. F. 686/180/87-Cus. VIII dated 4-6-87"".

This Explanation hardly touches the question of delay. In Harish Pahwa Vs. State of U. P. and Others, , the representation made by the detenu

was received by the State Government on 4-6-1980 and the rejection of the representation was ordered on 24-6-1980 after a delay of 20 days.

It was explained that on 6-6-1980 comments were called for by the Government from the Customs authorities and they were received on 13-6-

1980. On 17-6-1980, the State Government referred the representation to its Law Department for its opinion, which was furnished on 19-6-

1980. The rejection order was passed on 24-6-1980. The Supreme Court pointed out -

In our opinion, the manner in which the representation made by the appellant has been dealt with reveals a sorry state of affairs in the matter of

consideration of representation made by persons detained without trial. There is no explanation at all as to why no action was taken in reference to

the representation on 4th, 5th, and 25th June 1980. It is also not clear what consideration was given by the Government to the representation from

13th June 1980 to 16th June 1980 when we find that it culminated only in a reference to the Law Department nor it is apparent why the Law

Department had to be consulted at all. Again we fail to understand why the representation had to travel from table to table for six days before

reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier

occasions, that this court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other

department, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to, is not the type of

action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to proceed to

determine representation of the character of abovementioned with the utmost expedition, which means that the matter must be taken up for

consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance,

in connection with it) until a final decision is taken and communicated to the detenu. This is not having been done in the present case, we have no

option but to declare the detention unconstitutional.

In the instant case, no explanation is given or even attempted to be given for the delay of 39 days. We have, therefore, no option but to strike

down the order of detention as illegal.

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.

Petition allowed.