Vinoo vs State of Tamil Nadu

Ratnavel Pandian, J.—This writ petition is filed by one Vinoo, wife of Sundararaj, the detenu herein, under Art.226 of the Constitution of

India, seeking the issuance of a writ of habeas corpus quashing the order of detention, dated 7-8-1986 passed by the second respondent in

exercise of the powers conferred by S.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central

Act 52 of 1974); with a view to preventing the detenue from smuggling goods, and setting him at liberty.

The facts of the case are well get out in the grounds of detention and W think it is not necessary to reiterate the same as the ground on which the

validity of the detention order is challenged lies in a very narrow compass.

Though several grounds have been raised in the affidavit filed in support of the writ petition. Mr. P. Venkatasubramaniam, Learned Counsel

appearing for the writ petitioner, vehemently contended that the representation sent by the detenu did not receive the continuous attention and there

is an unexplained delay in the disposal of the representation sent by the detenu on 25-8-1986 and as such Art.226 of the Constitution has been

infringed and hence the order is vitiated and is liable to be set aside.

Now, we shall examine whether there was really any delay in this case.

In paragraph 6 (iv) of the counter filed on behalf of the first and the second respondents, it is stated as follows:

Regarding the averment in Para 6(iv) of the affidavit, it is submitted that the representation of the detenu dated 25th August, 1986 was received in

Government on 27th August, 1986 through the Superintendent, Central Prison, Madras. On the same day, it was referred to the Collector of

Customs, Madras, for parawar remarks. The parawar remarks were received in Government on 10th September, 1986. On the same day, it was

sent to the Tamil Development and Culture Department for obtaining Tamil translation. The Tamil translation was received from the Tamil

Development and Culture Department on 12th September, 1986. The representation of the detenu was examined in detail and the file was

submitted with a note for circulation in Tamil to the Deputy Secretary, Public Department on 12th September, 1986. The Deputy Secretary dealt

with the file on 12th September, 1986 itself. The Commissioner and Secretary, Public, was on camp. 13th September, 1986, 14th September,

1986 and 15th September, 1986 were holidays. The Joint Secretary, Law Department, dealt with the file on 16th September, 1986. As the Chief

Secretary was on camp, the file was circulated to Minister for Law. The Minister for Law and the Minister for Information and Religious

Endowment dealt with the file on 17th September, 1986. It was decided by the Government to reject the representation of the detenu. The

decision of the Government was communicated to the detenu in Government letter No. 1603/86-4, Public (Law and Order�D) Department

dated 19th September, 1986, receipt of which has been acknowledged by the detenu on 24th September, 1986.

What the Learned Counsel would contend is that though the representation was sent to the Customs Department even on 27-8-1986 by the

Government, the parawar remarks were received by the Government from the Customs office only on 10-9 86 and that this delay of nearly 14

days has not been explained in the affidavit and hence the order is vitiated on the ground that the representation of the detenu has not received

continuous attention. In support of this contention, the Learned Counsel has placed reliance on Harish Pahwa Vs. State of U. P. and Others, . In

that case, the representation sent by the detenu therein was with the Customs authorities who were formulating their comments from 7-6-1980 to

12-6-1980 and the representation was under the consideration of the Government for four days from 13-6 1980 to 16-6-1980 and of the Law

Department from 17-6-1980 to 19.6.1960 and then again under its own consideration for six days from 13-6-1980 to 24-6-1980. Having regard

to the facts of that case, the Supreme Court made the following observation:

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 with reference

to the representation on 4th, 5th and 25th of 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 departments, 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 representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for

consideration as soon as such 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 not having been done in the present case we have no option

but to declare the detention unconstitutional....

See also Raj Kishore Prasad Vs. State of Bihar and Others, .

Now, coming to the facts of the present case, we may point out that the representation which has been sent from the Government on 27-8-

1986 to the Customs Department was lying with the Customs Department upto 10-9-1986, on which date alone the remarks were sent to the

Government. There is absolutely ho explanation as to why such a delay bad occasioned for sending the parawar remarks to the Government. The

representation was ultimately rejected and the copy of the rejection order was served on the detenu on 24-9-1986. Thus, there was no active and

continuous consideration of the representation of the detenu. But, on the other hand, there was a long unexplained delay and the representation

was lying with the Customs Department from 27 8-1986 till 10-9-1986.

When the above unexplained and undue delay that has occasioned in this case is examined to the light of the principles laid down in the above

decisions by the Supreme Court, we are of the view that the impugned order in this case is vitiated and is liable to be set aside.

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