http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: PABITRA N. RANA

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT30/01/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KAILASAM, P.S. KOSHAL, A.D.

CITATION:  1980 AIR  798            1980 SCR  (2) 869  1980 SCC  (2) 338  CITATOR INFO :  APL        1980 SC1123  (1)  R          1990 SC 605  (15)

ACT:      Preventive  Detention   under  section  3  (1)  of  the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,  1974-Inordinate and  unexplained  delay  in deciding the  representation filed  by the  detenu  violates Article  22(5)   of  the  Constitution  and  hence  vitiates detention.

HEADNOTE:      Allowing the Writ Petition, the Court ^      HELD: Under  clauses 4  and 5  of  Article  22  of  the Constitution the detenu has a dual right viz.      (i)  to have  the representation,  irrespective of  the           length of detention, considered by the appropriate           Government; and      (ii) to have the representation considered by the Board           duly constituted  under the concerned Act. [870 E-           F]      Further,   the   constitutional   right   to   file   a representation to the Government carries with it impliedly a right that the representation must be disposed of as quickly as possible  and any  unexplained delay  would amount  to  a violation of  constitutional guarantee  contained in Article 22(5). [870 F-G]      The obligation  of the  appropriate detaining authority to take a decision on the representation filed by the detenu is  quite   apart  and   distinct  from  its  obligation  to constitute a Board and to send the representation to it. The detaining authority  is not entitled to wait for the opinion of the  Board but has to take its decision without the least possible delay. [870 G-H, 871 A]      Pankaj Kumar Chakraborty & Ors. v. State of West Bengal [1970] 1 SCR 543 and Narendra Purushotam Umrao etc. v. B. B. Gujral and Ors., [1979] 2 SCR 715; relied on.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

JUDGMENT:      CRIMINAL   ORIGINAL    JURISDICTION:   Writ    Petition (Criminal) No. 1376 of 1979.      (Under Article 32 of the Constitution).      A. K. Sen and Harjinder Singh for the Petitioner.      U. R. Lalit and M. N. Shroff for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This Writ Petition has been filed with a prayer  that  an  order  of  detention  passed  against  the petitioner on the 7th 870 September, 1979,  under  s.  3(1)  of  the  Conservation  of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 be quashed. After the order was served on the detenu he made a  representation on  the 27th  September, 1979  to the Govt. who  received it  on  the  28th  September,  1979.  In support of  the Rule  Mr. A.  K. Sen  has raised a number of points, but  in view  of one  of them which is to the effect that there  has been  an inordinate and unexplained delay on the  part   of  the  detaining  authority  in  deciding  the representation and that the detention is therefore vitiated, we need  not go  into the  other points.  On the question of delay the  petitioner had  expressly taken a plea in para 11 of the  petition but in their reply the respondents have not at all  explained or  detailed  any  reason  why  there  was inordinate  delay   in  disposing   of  the   representation submitted by  the detenu  to the  detaining  authority.  The admitted position is that the representation was received by the Government  on the  28th  September,  1979  and  it  was rejected on  3rd November, 1979, that is to say, after about one month  and five  days of  the receipt.  It is  now  well settled  that   any  unexplained   delay  in   deciding  the representation filed  by  the  detenu  amounts  to  a  clear violation of  Art. 22(5) of the Constitution of India and is sufficient to vitiate the detention. Our attention was drawn by the  counsel for  the petitioner  to a recent decision of this Court in Narendra Purushotam Umrao etc. v. B. B. Gujral & Ors. where this Court while relying on an earlier decision of this Court in Pankaj Kumar Chakraborty & Ors. v. State of West Bengal  pointed out  that under Clauses 4 and 5 of Art. 22 of the Constitution the detenu has a dual right, viz.,      1.   to have  the representation,  irrespective of  the           length of detention, considered by the appropriate           Government, and      2.   to have the representation considered by the Board           duly constituted under the concerned Act. We might  further mention  that the  constitutional right to file a  representation to  the Government  carries  with  it impliedly a  right that  the representation must be disposed of as  quickly as  possible and  any unexplained delay would amount  to  a  violation  of  the  constitutional  guarantee contained in  Art. 22  (5). This  Court has also pointed out that the  obligation of  the appropriate detaining authority to take a decision on the representation filed by the detenu is quite apart 871 and distinct  from its  obligation to constitute a Board and to send the representation to it. The detaining authority is not entitled to wait for the opinion of the Board but has to take its  decision without the least possible delay. In Writ Petition No.  246 of 1969 decided on September 10, 1969 this Court observed as follows:      "It is  implicit in  the language  of Art.  22 that the      appropriate Government,  while discharging  its duty to      consider the  representation, cannot  depend  upon  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

    views of  the Board  on such  representation. It has to      consider the  representation on  its own  without being      influenced by  any such  view of  the Board. There was,      therefore, no  reason for  the Government  to wait  for      considering the  petitioner’s representation  until  it      had received  the report of the Advisory Board. As laid      down in Sk. Abdul Karim & Ors. v. State of West Bengal,      (supra) the  obligation of  the appropriate  Government      under Art. 22(5) is to consider the representation made      by  the   detenu  as  expeditiously  as  possible.  The      consideration by  the Government of such representation      has to  be, as  aforesaid independent  of  any  opinion      which may be expressed by the Advisory Board.           The  fact   that  Art.   22(5)  enjoins  upon  the      detaining  authority   to  afford  to  the  detenu  the      earliest opportunity  to  make  a  representation  must      implicitly mean  that such  representation  must,  when      made, considered  and disposed  of as  expeditiously as      possible, otherwise,  it is obvious that the obligation      to  furnish   the  earliest   opportunity  to   make  a      representation loses both its purpose and meaning."      The observations  extracted above clearly show that the representation must  be  considered  by  the  Government  as expeditiously as  possible. Mr.  Lalit  submitted  that  the delay in  deciding the  representation was  due to  the fact that the representation had to pass through various channels and departments  before the  Government was in a position to decide it.  In the  first place  no  such  facts  have  been pleaded  in   the  reply   filed  by  the  respondents  and, therefore, we  cannot entertain the grounds now urged by the counsel for  the Union  for the  first time in the arguments before us. Even so it appears that at the most the detaining authority had  forwarded the  representation to  the Revenue Intelligence  whose  comments  were  received  on  16-10-79. Thereafter there  was absolutely  no justification  for  any delay  in   taking  a   decision  on   the  merit   of   the representation. Even  if  we  assume  that  there  was  some reasonable explanation  for the  delay from  28th September, 1979 to 16th Octo- 872 ber,  1979,   there  appears   to  be  no  good  explanation whatsoever for  the delay  from 16th  October, 1979  to  2nd November, 1979  when the  representation was rejected by the Government. It  is manifest  that  the  Government  was  not obliged to wait for the decision of the Board because it had to consider  the representation  independently of  what  the Board might  say.  In  this  view  of  the  matter,  we  are satisfied that there has been unreasonable delay in deciding the representation filed by the detenu and that by itself is sufficient to  render the  detention void. For these reasons we allow this petition, set aside the order of detention and direct that the detenu be released forthwith. V.D.K.                                     Petition allowed. 873