Holding

The continued detention was illegal and the appellant must be set at liberty forthwith.

Summary

The appellant was detained under Section 3(2) of the National Security Act, 1980 and filed two representations – one to the Chief Minister and another to the Advisory Board – seeking release. While the Advisory Board considered the second representation promptly, the Chief Minister’s office delayed consideration of the first representation until 25 days later, offering no reasonable explanation. The High Court dismissed the habeas corpus petition on the ground of defective pleadings, but the Supreme Court held that the State bears the burden of proving the legality of the detention and must consider representations independently of the Advisory Board. The Court found the unexplained, unreasonable delay violated Article 22(5) of the Constitution and Section 8 of the Act, rendering the detention illegal. Consequently, the appeal was allowed, the High Court order set aside, and the appellant was ordered to be released.

Issues considered

The effect of an unreasonable delay in disposing of a detenu's representation under Article 22(5) of the Constitution.
Whether the State may wait for the Advisory Board's report before considering the detenu's representation.
Who bears the burden of proof in a habeas corpus petition challenging preventive detention.
Whether dismissal of a habeas corpus petition on pleading defects is permissible when the core grievance is unlawful detention.

Legislation cited

Constitution of Indias. Article 166, s. Article 22(5), s. Article 226, s. Article 32
National Security Act, 1980s. 3(2), s. 3(4), s. 8, s. 9

Subjects

Preventive detentionNational Security ActArticle 22(5) representationUnreasonable delayHabeas corpusConstitutional validityAdvisory BoardBurden of proof

Judgment

A MOHINUDDIN @ MOIN MASTER
.. _.
v.
DISTRICT MAGISTRATE, BEED & ORS.

JULY 28, 1987

B [A.P. SEN AND B.C. RAY, JJ.]

National Security Act, 1980: Section &--Preventive Detention-
Representation by detenu-Disposal of-Unexplained and unreason-
able delay-Detention whether illegal and invalid-Failure to consider
representation without waiting for opinion of Advisory Board-
C Detention whether rendered invalid.

Constitution of India, Articles 22(5), 32 & 226-Habeas Corpus
petition-Preventive detention-Validity of order-Burden of proof on
detaining authority-Effect of unexplained and unreason11ble delay in
D disposal ofdetenu's representation-Rule nisi-Persons competent to file
return.

Practice & Procedure: Writ Petition-Issuance of writ of
habeas corpus-Disallowance on ground of imperfect p/eadings-
Valitfity of.
E
The appellant was placed under detention on September 8, 1986, ,J
consequent upon an order of detention passed by the District Magistrate,
Beed under s. 3(2) of the National Security Act, 1980 on his being
satisfied that it was necessary to do so 'with a view to preventing him y
from acting in any manner prejudicial to the maintenance of public
F order'. He was served with the grounds of detention alongwith copies of
the relevant documents on September 14, 1986. He addressed a re·
presentation to the Chief Minister, State of Maharashtra on September
22, 1986 through the Superintendent, Central Jail, Aurangabad, wbo
forwarded the same to the State Goverument, Home Department which
received it on September 26, 1986, and on the same day forwarded It to
G the District Magistrate for his comments. On October 3, 1986, the 'r
District Magistrate returned the representation along with his com·
ments and the same were received in the Home Department on October
6, 1986. The State Government had, in the meanwhile, accorded its
approval to the impugned order of detention under s. 3(4) of the Act on
September 18, 1986. On October 6, the appellant made another
H representation to the Advisory Board against the order of detention.
668
....
MOHJNUDDJN v. DISIT. MAGISTRATE 669
if The Advisory Board met on October 8, 1986, considered the represen- A
tation and forwarded its report to the State Government on October 13
recommending confirmation of the order of detention. Thereafter, the
representation made by the appellant was processed in the Home
Department along with ~e report of the Advisory Board and forwarded
to the Chief Minister's Secretariat where the same was received on
B
October 23, 1986. The representation remained undisposed in the
Chief Minister's Secretariat and was put up before him on November
17, 1986 and he rejected the same.

Upon these facts, the appellant moved the High Court by a pell-
tion under Art. 226 of the Constitution for the grant of a writ of habeas
corpus on the next day I.e. on November 18, 1986 contending that his c
continued detention was unconstitutional and void inasmuch as there
~
was inordinate, unexplained delay on the part of the detaining autho-
rlty to consider and dispose of his representation which was in violation
of the constitutional safeguards enshrined in Art. 22(5) read withs. 8 of
the National Security Act. The writ petition was dismissed by the High
D
Court inter alia on the ground of defective pleadings regarding lhe
"'(' delay in Chief Minister's Secretariat in dealing wih the representation.

In the appeal by special leave, the District Magistrate in his counter
affidavit denied that there was any unreasonable delay in the disposal of
the representation and submitted that no such ground regarding un·
reasonable delay was taken in the High Court in the writ petition, and E
~ was raised for the first time before this Court, presumably on the
reasoning of the High Court. In the other counter affidavit the Desk
Offtcer, Home Department (Special) explained the reasons for the delay
in the Chief Minister's Secretariat asserting that the Chief Minister
remained preoccupied with very Important matters of the State during
the period from October 23, 1986to November 17, 1986 and therefore it F
was not possible for him lo have dealt with the representation earlier.

Allowing the appeal,

..,,. and heHELD: 1.The continued detention of the appellant was Illegal
must be set at liberty forthwith. [679G] G

2.1 It is incumbent on the State to satisfy the Court that the
detention of the petitioner/detenu was legal and in conformity not only
with the mandatory provisions of the Act but also strictly in accord with
the COl15titutional safeguards embodied in Art. 22(5). [674F]
H

..
670 SUPREME COURT REPORTS ( 1987] 3 S.C.R.

A 2.2 The constitutional right or the detenu to make a representa· t
tlon guaranteed by Art, 22(5) is a valuable right and is not a mere
formality. It includes by necessary implication the constitutional right
to a proper consideration of the representation by the authority to
whom it is made. (677E]

B In the instant case, there were two representations made by the
appellant, one to the Chief Minister dated September 22, 1986 and the
other to the Advisory Board dated October 6, 1986. While the Advisory
Board acted with commendable despatch in considering the same at its
meeting held on October 8, 1986 and forwarded its report on October
13, 1986, it was not till November 17, 1986 that the Chief Minister
C look at it. There was no reason why he could not deal with it with all
reasonable promptitude and diligence. The explanation that he
rem11ined pre-occupied with very important matters of the State, which
involved tours as well as Cabinet meetings, was no explanation at all.
There was therefore, failure on the part of the Government to discharge
its obligations under Art, 22(5). (676H·677B; 679F, 679E, 676G]
D
2.3 The constitution of an Advisory Board under s. 9 of the Act
does not relieve the State Government from the legal obligation to con·
sider the repr41Sentation of the detenu as soon as it is recei'ved by it. The
two obligations of the Government to refer the case of the detenu to the
Advisory Board and to obtain Its report on the one hand, and to give an
E earliest opportunity to him to make a representation and consider the
representation on the other, are two distinct obligations Independent or
each other. There is thus a duty cast on the Government to consider the
representation made by the deten11 witho11t waiting for the opinion of
the Advisory Board. (677E, G, DJ

F Narendra Purshotam Umrao v. B.B. Gujral & Ors. [1979] 2
sec 637' referred to.
The failure of the Government in the instant case to consider the
representation without waiting for the opinion of the Advisory Board
renders the c11ntlnued ddention of the appellant invalid and constitu-
G tionally impermissible. [678F] )r-
3. In return to the r11le nisi issued by this Court or the High Court
in a habeas corpus petition, the proper person to file the same is the
District M11gistrate who had passed the impugned order of detention,
and he m115t explain his s11bjectlve satisfaction and the grounds t~erefor
H and if for some good reason the District Magistrate is not available, the

.
MOHINUDDIN v. DISTI. MAGISTRATE 671

affidavit must be sworn by some responsible officer like the Secretary A
or the Deputy Secretary to the Government in the Home Department
who personally dealt with or processed the case in the Secretariat
or submitted it to the Minister or other officer duly authorised under
the Rules of Business framed by the Governor under Art. 166 of the
Constitution to pass orders on behalf of the Government in such
• ~ matters. [674F·675A] B

y Niranjan Singh v. State of Madhya Pradesh [1973] 1 SCR 691;
Habibullah Khan v. State of West Bengal, [1974] 4 SCC 275; Jagdish
Prasad v; State of Bihar & Anr., [1974] 4 SCC 455 and Mohd. Alam v.
State of West Bengal, [1974] 4 SCC 463, referred to.

In the instant case, no one has filed any affidavit to explain the
c
--+ delay in the Chief Minister's Secretariat. The counter affidavit filed by
the District Magistrate contains a bare denial that there was any
unreasonable delay in the disposal of the representation. As regards
the delay in the Secretariat he adverts to the affidavit filed by the
Desk Officer, Home Department and asserts that it reveals the diffe· D
--. rent steps that were taken. There is in fact no explanation offered as
regards the delay in the disposal of the representation in the Secre·
lariat. [678G-679C]

·"' 4. It was an improper exercise of power on the part of the
· High Court in disallowing the writ petition on the ground of imper- E
... ' feet pleadings. The rule that a petitioner cannot he permitted to raise
· \ grounds not taken in the petition at the hearing cannot he applied to
· a petition for grant of a writ of habeas corpus. It is enough for the
• d'..,tenu to say that he is under wrongful detention, and the burden
lie!< on the detaining authority to satisfy the Court that the detention is
not >illegal or wrongful and that the petitioner is not entitled to the relief ' F
claiUned. [674DE]
1
In the appeal the appellant having raised the ground of delay in
disposal of his representation in Chief Minister's Secretariat it was the
duty iof the State Government to have placed all the material along with
t the counter affidavit. [679B] G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 324 of 1987.

From the Judgment and Order dated 19.1.1987 of the Bombay
High Court in Criminal Writ Petition No. 103 of 1986. H
672 SUPREME COURT REPORTS [ 1987] 3 S.C.R.

A Hardev Singh and Ms. Madhu Moolchandani for the Appellant. f
B.A. Masodkar, A.S. Bhasme and A.M. Khanwilkar for the
Respondent.

The Judgment of the Court was delivered by
B
--{
SEN, J. This appeal by special leave is directed against the judg-
ment and order of the High Court of Bombay dated january 19, 1987
rejecting the petition under Art. 226 of the Constitution filed by the
appellant in the High Court for grant of a writ of habeas corpus. The
appellant has been placed under detention by the impugned order
C dated September 7, 1986 passed by the District Magistrate, Beed
under s. 3(2) of the National Security Act, 1980 on his being satisfied
that it was necessary to do so 'with a view to preventing him from
acting in any manner prejudicial to the maintenance of public order'.
The appellant challenged the impugned order of detention on grounds
inter al'ia that there was infraction of the constitutional safeguards
D enshrined in Art. 22(5) read withs. 8 of the Act inasmuch as there was
inordinate, unexplained delay on the part of the detaining authority to
consider and dispose of his representation.

On the view that we take, it is not necessary to deal with the facts
elaborately. The material facts are these. The appellant was taken into
E custody on September 8, 1986 and was lodged at the Aurangabad
Central Prison, Aurangabad where he is now detained. He was served
with the grounds of detention along with the copies of the relevant
documents on September 14, 1986. It appears that a week thereafter.
i.e. on September 22, 1986 he addressed a representation to the Chie'f
Minister through the Superintendent, Aurangabad Central Priso·n,
F Aurangabad which the Superintendent forwarded to the Hqime
Department on September 24, 1986. The State Government, in.' the
meanwhile, under s. 3 (4) of the Act accorded its approval rq· the
impugned order of detention on September 18, 1986. On Octobt'f 6,
1986 the appellant made another representation to the Advisory Bpard
which met and considered the same on October 8, 1986. On Oct\ober
G 13, 1986 tlie Advisory Board after considering the representation .,.
made by the appellant together with the materials placed before it
forwarded its report to the State Government recommending confir-
mation of the impugned order of detention as there was, in its opinion,
sufficient cause for the detention of the appellant. Acting upon the
report of the Advisory Board, the State Government by its ordeF dated
H November 19, 1986 confirmed the order of detention. In the mean-
MOHINUDDIN v. DISTI. MAGISTRATE (SEN, J.] 673

time, the appellant moved the High Court on November 13, 1986. A
The main ground on which the legality of the impugned order of
detention was assailed in the High Court was that although the appel-
lant had addressed a representation to the Chief Minister on Septem-
ber 22, 1986, it was not considered and disposed of by the Chief Minis-
} ter till November 17, 1986 i.e. there was unexplained, unreasonable B
v delay in disposal of the same. It was said that such unreasonable delay
r in disposal of the representation was sufficient to render the con-
tinued detention of the appellant illegal. The High Court did not think

- it necessary to call upon the respondents and by an oral judgment
dismissed the writ petition mainly on the ground of imperfect plead-
ings. It observed that the appellant had not specifically pleaded that
.'+ there was unreasonable delay in the office of the Chief Minister which
c
had not been explained and therefore the detention was illegal, but his
grievance was that his representation had not been considered. It re-
ferred to paragraph 4 of the writ petition where it is submitted:

"It is submitted that in Jaw, the State Government is bound D
to consider the representation before the decision of the
Advisory Board, but in the instant case neither the State
Government has considered the representation of the
petitioner nor the Government has communicated its
decision.''
E
It referred to the underlined portion of the averments in paragraph 4
of the writ petition, namely:

"Eight weeks have elapsed since the date of detention of the
petitioner but still neither the State Government has taken
any decision on the representation forwarded through the F
Home Department nor the petitioner is communicated any
decision pursuant to the report ......... "

The High Court distinguished the decision of this Court in
Harish Pahwa v. State of Uttar Pradesh & Ors., [1981] 3 SCR 276 on
-f the ground that in that case the Court had before it the affidavit of the G
Government showing that it had no explanation to offer except that it
had referred the matter to the Law Department and also there was
sufficient material to show that there was unreasonable delay in deal-
ing with the representation whereas in the present case there was no
such ground raised. The High Court disallowed the prayer for grant of
a writ of habeas corpus mainly on the ground of defective pleadings, and H

-·-w T'
674 SUPREME COURT REPORTS [1987) 3 S.C.R.

A added that the appellant "had not even asked for time to amend the
petition" and "put the respondents to ~otice". It observed:

"While the State undoubtedly has the duty to process the
representation of the detenu promptly, it is also the duty of
the petitioner to make specific averments of facts and their
B effect, if necessary, by amendment. This is necessary to put -(
the respondents to notice, that the effect of these facts have
to be answered and explained. The respondents may have
an explanation as to why the Chief Minister took so much
time. On such submission we cannot hole! that the respon-
dents have failed to explain delay or that the time taken by
the Chief Minister was wholly necessary. We should not be
c understood to have held that the time taken by the Govern-
ment was justified. Far from it. But we cannot allow the
petitioner to take the respondents by surprise by such a
style of pleading."

D It was an improper exercise of power on the part of the High y
Court in disallowing the writ petition on the ground of imperfect ·
pleadings. Normally, writ petitions are decided on the basis of affi-
davits and the petitioner cannot be permitted to raise grounds not
taken in the petition at the hearing. The same rule cannot be applied to
a petition for grant of a writ of habseas corpus. It is enough for the
E detenu to say that he is under wrongful detention, and the burden lies
on the detaining authority to satisfy the Court that the detention is not ~
illegal or wrongful and that the petitioner is not entitled to the relief
claimed. This Court on more occasions than one has dealt with the
question and it is now well-settled that it is incumbent on the State to ).-
satisfy the Court that :;1e detention of the petitioner/detenu was legal
F and in conformity not only with the mandatory provisions of the Act
but also strictly in accord with the constitutional safeguards embodied
in Art. 22(5). In return to a rule nisi issued by this Court or the High
Court in a habeas corpus petition, the proper person to file the same is
the District Magistrate who had passed the impugned order of deten-
tion and he must explain his subjective satisfaction and the grounds
G therefor; and if for some good reason the District Magistrate is not
available, the affidavit must be sworn by some responsible officer like
.r- - •'
the Secretary or the Deputy Secretary to the Government in the Home
Department who personally dealt with or processed the case in the
Secretariat or submitted it to the Minister or other Officer duly
authorised under the Rules of Business framed by the Governor under
H Art. 166 of the Constitution to pass orders on behalf of the Govern-

T
MOHINUDDIN v. DISIT. MAGISTRATE [SEN, J.] 675

ment in such matters: Niranjan Singh v. State of Madhya Pradesh, A
[1973] 1SCR691; Habibullah Khan v. State of West Bengal, [1974] 4
SCC 275; Jagdish Prasad v. State of Bihar & Anr., [ 1974) 4 SCC 455
and Mohd. Alam v. State of West Bengal, [ 1974) 4 SCC 463.

In the present case, in answer to the notice issued by this Court
under Art. 136, the affidavit in reply has been filed by Shri S.V. Joshi, B

~} District Magistrate, Beed who passed the impugned order of deten-
tion. There is a general denial in paragraph 2 of the counter-affidavit
\
that there was unreasonable delay in the disposal of the representation
made by the appellant. However, the delay in disposal of the represen-
tation was in the Secretariat and therefore it is averred in paragraph
11: c
"I say that the affidavit filed by Shri Vishwasrao, Desk
Officer, Home Department (Special), Mantralaya,
Bombay on behalf of State of Maharashtra in the High
Court Bench at Aurangabad will reveal that different steps,
as required by the provisions of National Security Act, D
-"(. 1980 are taken immediately, within stipulated period."

and it is then averred in paragraph 12 that the contentions raised by
the appellant with regard to delay have been dealt with by the High
Court while deciding the writ petition. It is said that the appellant has
raised the contention about unreasonable delay in disposal of his rep- E
resentation, for the first time in this Court presumably on the reason-
-+ ing of the High Court. There is on record an affidavit sworn by I.S.
Vishwasrao, Desk Officer, Home Department (Special), Mantralaya,
Bombay in answer to the grounds 16(A) and 16(E). As regards the
grounds 16(A) and !6(E) formulated in the petition for grant of special
leave regarding unreason bale delay, it is averred in paragraph 3 of the F
affidavit:

"I say that the representation dated 22nd September, 1986
addressed to the Chief Minister by the detenu was forwar-
ded by the Superintendent, Aurangabad Central Prison,
Aurangabad on 24th September, 1986. I further say that G
the said representation was received in the Department on
26th September, 1986. I further say that the parawise re-
marks on the said represe.ntation were called for from the
detaining authority, i.e. District Magistrate, Beed on
26th September, 1986 and remarks of the District Magis-
trate dated 3rd October, 1986 were received by the H

..
676 SUPREME COURT REPC'JRTS [1987] 3 S.CR.

A Government on 6th October, 1986. I further say that there- ·-{-
after, the said representation was processed together with
report of the Advisory Board and as stated in the earlier
paragraphs, the said representation was rejected and the
detention of the detenu was conflrmed by the Chief Minis-
ter on 17th November, 1986."
B
In the same paragraph, there is the following averment made with ~
regard to delay in disposal of the representation in the Chief Minister's
Secretariat:

"I further say that the Chief Minister was pre-occupied in
connection with very important matters of the State which
c involved tours as well as meetings outside Bombay. I
further say that during the period from 23.10.1986 to i'
17. I 1.1986, two Cabinet meetings were held at Pune and
Aurangabad, each meeting lasting for two days i.e. 28th
and 29th October, 1986 at Pune and I Ith and 12th
D November, 1986 at Aurangabad. I further say that such
meetings in Pune and Aurangabad are generally held once )-
a year to focus the attention on regional problems. I further
say that the preparations for these meetings as well as other
meetings held with the concerned Ministers and officials
demanded a lot of time of the Chief Minister and this
E naturally resulted in some delay in disposing of several
cases submitted to the Chief Minister including this case. I . .J _
further say that the cases where such representations are --..,.
made in the detention matters, they required a close
scrutiny of all the relevant record and careful application 'of
mind. I therefore, respectfully submit that the time taken ~
F for passing the Government order in this case should be
viewed in the light of the averments made in this affidavit
and therefore, if properly considered, it cannot be said that
th'' delay in disposing of the representation is unreasonable
and unexplained."

G It is somewhat strange that the State Government should have
acted in such a cavalier fashion in dealing with the appellant's
representation addressed to the Chief Minister. We are satisfied that
there was failure on the part of the Government to discharge its obliga-
tions under Art. 22(5). The affidavit reveals that there were two
representations made by the appellant, one· to the Chief Minister
H dated September 22, 1986 and the other to the Advisory Board dated

.... ~ - -- ;-·
MOHINUDDIN v. DISTI. MAGISTRATE [SEN, J.] 677

October 6, 1986. While the Advisory Board acted with commendable A
despatch in considering the same at its meeting held on October 8,
1986 and forwarded its report together with the materials on October
13, 1986, there was utter callousness on the part of the State Govern-
ment to deal with the other representation addressed to the Chief
Minister. It was not till November 17, 1986 that the Chief Minister
condescended to have a look at the representation. When the life and B
liberty of a citizen is involved, it is expected that the Government will
ensure that th~ constitutional safeguards embodied in Art. 22(5) are
strictly observed. We say and we think it necessary to repeat that the
gravity of the evil to the community resulting from anti-social activities

- can never furnish an adequate reason for invading the personal liberty
of a citizen, except in accordance with the procedure established by C
the Constitution and the laws. The history of personal liberty is largely
the history of insistence on observance of the procedural safeguards.

Apart from the admitted inordinate delay, there is a fundamen-
tal defect which renders the continued detention of the appellant
constitutionally invalid. As observed by one of us (Sen, J.) in D
~ Narendra Purshotam Umrao v. B.B. Gujral & Ors., [1979] 2 SCC 637
there was a duty cast on the Government to consider the representa-
tion made by the detenu without waiting for the opinion of the Advis-
ory Board. The constitution of an Advisory Board under s. 9 of the
Act does not relieve the State Government from the legal obligation to
consider the representation of the detenu as soon as it is received by it. E
--Jr· It goes without saying that the constitutional right to make a represen-
tation guaranteed by Art. 22(5) must be taken to include by necessary
implication the constitutional_ right to a proper consideration of the
-~ representation by the authority to whom it is made. The right of
representation under Art. 22(5) is a valuable constitutional right and is
not a mere formality. The representation made by the appellant' F
addressed to the Chief Minister could not lie unattended to in the
portals of the Secretariat while the Chief Minister was attending to
other political affairs. Nor could the Government keep the representa-
tion in the archives of the Secretariat till the Advisory Board submit-
ted its report. In Narendra Purshotam Umrao's case it was observed:
-I "Thus, the two obligations of the Government to refer the case of the G
· detenu to the Advisory Board and to obtain its report on the one hand,
and to give an earliest opportunity to him to make a representation
and consider the representation on the other, are two distinct obliga-
tions, independent of each other." After referring to the decisions of
this Court in Abdul Karim v. State of West Bengal, [1969] 3 SCR 479;
Pankaj Kumar Chakrabarty v. State of West Bengal, [1970] 1SCR543 H

~----I'll';·---·
..
678 SUPREME COURT REPORTS [ 1987] 3 S.C.R.

A and Khairul Haque v. State of West Bengal, W.P. No. 246 of 1969, decided ·-f-
on September 10, 1969 the nature and dual obligation of the Govern-
ment and the corresponding dual right in favour of the detenu under
Art. 22(5) was reiterated. The following observations of the Court in
Khairul Haque's case were quoted with approval:

B '"It is implicit in the language of Art. 22 that the appro- ~
priate Government, while discharging its duty to consider
the r~presentation, cannot depend upon the view of the
Board on such representation. It has to consider the re-
presentation on its own without being influenced by any
such view of the Board. There was, therefore, no reason
for th~ Government to wait for considering the petitioner's
c representation until it had received the report of the Advis-
ory Board. As laid d-.wn in Abdul Karim v. State of West 7
Bengal, 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
D by the Government of such representation has to be, as
aforesaid, independent of any opinion which may be expre- -..,..
ssed by the Advisory Board.

The fact that Art. 22(5) enjoins upon the detaining
authority to afford to the detenu the earliest opportunity to
E make a representation must implicitly mean that such re-
presentation must, when made, be 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." \..

F In the circumstances, there being a failure on the part of the State
Government to consider the representation made by the appellant
addressed to the Chief Minister without waiting for the opinion of the
Advisory Board, renders the continued detention of the appellant in-
valid and constitutionally impermissible.

G We have no manner of doubt that there is no explanation what- ·r
ever much less any reasonable explanation for the inordinate delay in
consideration of the representation made by the appellant addressed
to the Chief Minister and that by itself is sufficient to invalidate the
impugned order of detention. In fact, no one has filed any affidavit to
explain the cause for the delay in Chief Minister's Secretariat. The
H counter-affidavit filed by Shri S. V. Joshi, District Magistrate contains
MOHINUDDIN v. DISTI. MAGISTRATE (SEN, J.) 679

a bare denial in paragraph 2 that there was any unreasonable delay in A
the disposal of the representation. As regards the delay in disposal of
the representation in the Secretariat, he adverts in paragraph 11 to the
affidavit filed by Vishwa_srao, Desk Officer, Home Department on
behalf of the State Government and asserts that it reveals the different
steps that were taken and in paragraph 12 he submits that the conten-
tion about unreasonable delay in disposal of the representation by the B
State Government was not raised in the High Court and it has been
taken for the first time in this Court. Even so, the appellant having
raised the ground in appeal it was the duty of the State Government to
have pla_ced all the material along with the counter-affidavit. There is

- in fact no explanation offered as regards the delay in disposal cif the
representation in the Secretariat. We have already extracted the rele-
vant portion from the affidavit of Vishwasrao, Desk Officer. It is
C

accepted that the representation made by the appellant to the Chief
Minister on September 22, 1986, rorwarded by the Superintendent,
Aurangabad Central Prison on the 24th, was received in the Home
Department on the 26th which in its turn forwarded the same to the
detaining authority i.e. the District Magistrate on the same day i.e. D
26th for his comments. The District Magistrate returned the represen-
tation along with his comments dated October 3, 1986 which was re-
ceived by the Government on the 6th. It is said that thereafter the
representation was processed together with the report of the Advisory
Board and was forwarded to the Chief Minister's Secretariat where the
same was received on October 23, 1986. It is enough to say that the E
explanation that the Chief Minister was "pre-occupied with very
important matters of the State which involved tours as well as two
Cabinet meetings at Pune on October 28 and 29, 1986 and at
Aurangabad on November 11 and 12, 1986" was no explanation at all
why the Chief Minister did not attend to the representation made by
the appellant till November 17, 1986 i.e. for a period of 25 days. There F
was no reason why the representation submitted by the appellant coura
not be dealt with by the Chief Minister with all reasonable promp-
titude and diligence and the explanation that he remained away from
Bombay is certainly not a reasonable explanation. In view of the
wholly unexplained and unduly long delay in the disposal of the re-
presentation by the State Government, the further detention of the G
appellant must be held illegal and he must be set at liberty forthwith.
For these reasons, the appeal must succeed and is allowed. The
judgment and order passed by the High Court are set aside and the
appellant is directed to be set at liberty forthwith.
P.S.S. Appeal allowed. H

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