Holding

An unexplained delay in considering a representation in a preventive detention case is unreasonable and fatal, warranting quashing of the detention order.

Summary

P. Paulsamy was detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 to prevent alleged drug trafficking. He filed a representation against his detention on 26‑10‑1998, but the Government considered it only after a delay, finally rejecting it on 12‑11‑1998. The petitioner challenged the continued detention under Article 32, arguing that the unexplained delay rendered the detention illegal. The Supreme Court held that while a mere delay is not per se fatal, a delay that remains unexplained is unreasonable and therefore fatal to the detention order. Applying this principle, the Court found the delay from 28‑10‑1998 to 10‑11‑1998 to be uncalled for and ordered the detention order quashed, directing the petitioner’s release.

Issues considered

Whether the delay by the Government in considering the representation of a detenu under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, is unreasonable and fatal to the detention order.

Legislation cited

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988s. 12, s. 3(1)

Subjects

preventive detentionrepresentationunreasonable delaySection 3(1)quashing orderArticle 32narcotic drugsdue process

Judgment

,,_._
A P. PAULSAMY
v.
UNION OF INDIA & ANR.

MAY 14, 1999

B (G.T. NANAVATI AND.S.N. PHUKAN, JJ.]

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988-Section I 3(1)-0rder of detention-Unreasonable
delay on part ofgovernment in considering representation ofdetenu-Whether
C fatal-Held, yes-Order of detention liable to be quashed.

An order of detention u/s 3(1) of the Prevention of illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act 1988, was passed to prevent
the detenu from engaging in illicit trafficking in narcotic drugs. The detenu
made a representation on 26-10-1998 which was rejected on 12-11-1998 and
D detenu was informed by letter dated 13-11-98. This writ petition had been
filed by the .detenu under Article 32 of the Constitution of India challenging
his continued detention as illegal on ground of unreasonable delay on the
part of the Government in considering his representation.
,,-·
E Union oflndia justified the delay by stating that representation of the
detenu was received in the office on 28-10-1998 which was received on 10- I'
11-1998 and the representation along with comments was submitted to the
Secretary of the Ministry of Finance on 11-11-98 which was rejected on 12-
11-98 after due consideration.

F .Allowing the writ petition and quashing the order of detention, this
Court

HELD : In preventive detention cases, though the delay on the part of
the government in considering the representation of detenu, by itself is not
G fatal, the delay which remains unexplained would be unreasonable. In the
instant case, though the representation was received on 28-10-1998,
comments of Sponsoring ~uthority were called for on 29-10-1998 which
were received on 10-11-1998. The order calling for comments of the
Sponsoring Authority was not passed by any of the officers empowered. The
representation was dealt with in a routine manner and there was no application
·-
H of mind by the competent officer as to whether it was necessary to call for
736
P. PAULSAMY v. U.O.I. [S.N. PHUKAN, J.] 737

comments of the Sponsoring Authority. Therefore, this delay from 28-10-98 A
r- to 10-11-1998 being uncalled for has to be regarded as unreasonable and
therefore, fatal. (738-F-H] ·

Venmathi Selvam (Mrs.) v. State of Tamil Nadu & Anr., (1998) (5) 510,
relied on.
B
CRIMINAL APPELLATE JURISDICTION : Writ Petition (CRL.) No.
194 of.1998.

From the Judgment and Order dated 13.8.98 of the Madras High Court
in Cr!. O.P. No. 8785 of 1998.
c
R.K. Jain, K. Subramanium, Mahesh Agrawal, E.C. Agrawala, Atul Sharma,
Rishi Agrawal and Triveni Potekar for the Petitioner.

P.P. Malhotra, Rajeev Sharma, B.K. Prasad and Y.P. Mahajan for the
Respondents.
D
The Judgment of the Court was. delivered by

S.N; PHUKAN, J. This writ petition has been filed by the dei.eP.u under
Article 32 of the Constitution of India. The Joint Secretary to the Government
of India, Ministry of Finance, Department of Revenue who was empowered
under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and E
Psychotropic Substances Act, 1988 ( for short the Act), being satisfied from
the records that it is necessary to prevent the detenu from engaging in illicit
trafficking in narcotic drugs in future, passed the order of detention on 28th
September, 1998. On the same day grounds of detention were issued and the
detenue was informed that ~e could make a representation against the order F
of his detention, to the Detaining Authority and/or the Central Government
addressed to the Detaining Authority or to the Secretary to the Government
. of India, Ministry of Finance, Department of Revenue. On 26 ..10.1998 the
detenu sent a representation addressed to (1) the Advisory Board. (2) the
Secretary to the Government oflndia, Ministry ofFinance and (3)-the Detaining
Authority. G
In the counter affidavit dated 11.05:99 filed on behalf of the Union of
India i.e. respondent No. 1 it has been stated that the said representation was
received in the office 011 28. l 0.1998 and comments from the Sponsoring
Authority were called for by Jetter dated 29.10.98 and the same were received

- on 10.11.98. The representation along with comments was submitted to the H
738 SUPREME COURT REPORTS [1999) 3 S.C.R.

A Secretary of the Ministry of Finance on 11.11.98 which was rejected on
12.11.98 after due consideration and detenue was informed by letter dated
13.11.98 which was received by the detenu on 18.11.98. In the counter affidavit
the order dated 7th July, 1995 issued by the Minister of Finance has been
annexed and we find that power of revocation of detention orders under
Section 12 of the Act has been deligated to the Secretary or Additional
,
B Secretary or Joint Secretary (Narcotics/in the Ministry of Finance (Department
of Revenue), Government of India.

It has been urged by Mr. R.K. Jain, learned Senior counsel for tlie
petitioner that there was unreasonable delay on the part of the Government
C in considering the representation of the detenu and,. therefore, his continued /
detention is illegal.

Mr. P.K. Malhotra, learned senior counsel for the respondents justified
the delay on the basis of the counter affidavit filed by the Union of India.

D Mr. Jain has placed reliance on a decision of this Court (rendered by
one of us Nanavati, J.) in Venmathi Selvam (Mrs.) v. State a/Tamil Nadu &
Anr., [1998) 5 SCC 510. This Court held that though the delay was not long,
it had remained unexplained and further though the delay by itself was not
fatal, the delay which remains unexplained would be unreasonable. It was
further observed that inspite of this well settled legal position, the State
E Government failed to explain satisfactorily that it had not dealt with the
representation of the detenu as promptly as possible. The Court found in that I
case that representation was dealt with in routine manner and in view of
indifference on the part of the Government Jhe continued detention of the
detenu was held to be i~legal.

F Examining the present case in hand, in the 'light of the ratio laid down
above, we find that though the representation was received on 28.10.1998,
comments of Sponsoring Authority were called for on 29.10.1998 which were
received on 10.11.1998. From the records we find that the order for calling for
comments of the Sponsoring Authority was not passed by any of the Officers
G empowered by the above orders of Minister dated 7th July, 1995. Therefore,
we hold that the representation was dealt with in a routine manner and there
was no application of mind by the competent officer as to whether it was
necessary to call for comments of the Sponsoring Authority. In other words,
this delay from 28.10.98 to 10.11.98 being uncalled for has to be regarded as
unreasonable and, therefore, fatal in view of the ratio laid down by this Court
H in Ven~athi Selvam (Mrs.)(supra). We, therefore, make the rule absolute,

'>,--
(------
P. PAULSAMY v. U.O.I. [S.N. PHUKAN, J.] 739
quash and set aside the impugned order of detention and direct that detenu A
be released forthwith unless he is required to be kept in jail in connection with
some other case.

R.A. Petition allowed.

...