Singaram vs Union of India

Ratnavel Pandian, J.—This writ petition is filed by one Singaram, father of the detenu by name S. Mani, under Article 226 of the Constitution of India, seeking the issuance of a writ of habeas corpus quashing the order of detention passed by the first Respondent and setting the detenu at liberty,

The impugned order of detention has been made on 25-3-1987 by the first Respondent in exercise of the powers conferred by Section 3(l) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), hereinafter referred to as the Act, with a view to preventing the detenu from smuggling goods.

Mr. N. Natarajan, learned Counsel for the Petitioner has pressed only one contention challenging the validity of the impugned order though several grounds are raised in the affidavit filed in support of the writ petition. According to the learned Counsel, considerable time has elapsed between the date of the incident, I.e., on 21-2-86 and the date of the order of detention on 25-3-1987 and this long lapse of time which has not been satisfactorily explained by the Respondent would vitiate the order of detention.

It cannot be disputed that there is a delay of 13 months in passing the impugned order from the date of the incident. Now the question is whether this long lapse of time has been satisfactorily explained by the Respondents. This ground is raised in paragraph 5 (II) of the affidavit which reads as follows:

The detaining authority ought to have considered that the alleged act of my son had taken place (sic) on 21-2-1986 and he was released on bail on 5-3-1986 after that the detention order was passed only on 25-3-1987. There is a gap of one year and one month in between or before that there is no cases against my son. Since there is a delay of passing the order vitiates the order of detention and also the non-consideration of fact or proximity by the first Respondent herein vitiates the order of detention dated 25-3-1987

It is regrettable that ho counter has been filed by the first Respondent till date though notice was ordered on 23-4-1987 on which date the writ petition was admitted. Thereafter several adjournments were granted for filing a counter. The first Respondent has not filed any counter till date in spite of grant of several adjournments for that purpose and therefore, we have no other way except to dispose of the case on the available materials.

Mr. N. Natarajan cited several decisions in support of his contention which we shall presently refer to: In Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, the Supreme Court after referring to the principles laid down in Lakshman Khatik Vs. The State of West Bengal, Sheik Abdul Munnaf v. State of West Bengal AIR 1964 S.C. 2066, and Rabindra Kumar Ghosel alias Buli Vs. The State of West Bengal, has held as follows:

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.

In yet another portion of the same judgment their Lordships pointed out-

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 causes of delay to show that there was no infraction of the constitutional provisions laid down under sub-Art.(5) of Article 22 of the Constitution

In Ravindra v. State of Karnataka 1984 Cri. L.J. 45 (D.B.)a Division Bench of the Karnataka High Court while dealing with the question of delay not satisfactorily explained, has observed thus:

If there is an inordinate delay between the acts imputed to the detenu and the order of detention, the then rationality of the nexus tends to snap(sic). This is where a reasonable explanation for the delay becomes relevant and material. If there is an unexplained delay the order of detention becomes bad on the ground that there is really no application of the mind of the detaining authority and, therefore; there is no genuine subjective satisfaction at all.

Then, in another part of the same judgment it has been pointed out thus:-

It is no doubt true that delay, by itself does not vitiate the detention but when the delay is such as to take away the rational nexus between the ground on which the subjective satisfaction is sought to be reached and objects to be served by the detention, the delay invalidates the detention ''

See also Kamal v. State of Tamil Nadu 1978 L.W. Cri. 13 rendered by a Bench of this Court to which one of us (Ratnavel Pandian, J.) was a party.

In a recent decision, the Supreme Court in Shiv Ratan Makim Vs. Union of India (UOI) and Others, hss laid down the following dictum: -

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 of detention may be liable to be struck down as invalid. But there can be no hard and fast rule as to what is the length of time which should be regarded sufficient to snap the nexus between the incident and the order of detention.

When we examine the facts of the present case, in the light of the proposition of law laid down in the above decisions we find in the absence of any explanation from the first Respondent, that the lapse of time that had occasioned in the case for nearly 13 months has not at all been explained. Under these circumstances, we are of the view that the long delay in the present case vitiates the order of detention.

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.