Holding

Unexplained delays between the prejudicial act, the detention order, the arrest and the disposal of the representation vitiate the order of detention under COFEPOSA as they violate Article 22(5) and cast doubt on the detaining authority’s genuine subjective satisfaction.

Summary

The appellant, brother of T.A. Sirajudeen, challenged his sibling's preventive detention under sections 3(1)(iii) and 3(1)(iv) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detenu had been caught with smuggled gold biscuits in November‑December 1986, but the detention order was only issued on 7 October 1987, his arrest followed on 18 January 1988 and his representation under Article 22(5) of the Constitution was disposed of after a 72‑day delay. The Supreme Court examined whether such unexplained delays broke the causal link between the alleged prejudicial activity and the detention, and whether they violated the constitutional right to a prompt hearing. Relying on earlier decisions, the Court held that the unexplained lag between the seizure, the order, the arrest and the disposal of the representation cast serious doubt on the detaining authority’s subjective satisfaction and amounted to a violation of Article 22(5). Consequently, the detention order was declared invalid, the High Court judgment set aside and the detenu ordered to be released.

Issues considered

The adequacy of the time gap between the smuggling incident and the passing of the COFEPOSA detention order.
Whether the three‑month delay between the detention order and the arrest undermines the detaining authority’s subjective satisfaction.
Whether the 72‑day delay in disposing the detenu’s representation violates Article 22(5) of the Constitution.
Whether the detention order under COFEPOSA is vitiated on account of the above delays.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)(iii), s. 3(1)(iv), s. 8, s. 9(1)
Constitution of Indias. Article 21, s. Article 22(5)
Customs Acts. 108

Subjects

preventive detentionCOFEPOSAforeign exchangegold smugglingArticle 22(5)subjective satisfactiondelayrepresentationconstitutional lawdetention order

Judgment

T.A. ABDUL RAHMAN
A
v.
STATE OF KERALA AND ORS.

AUGUST 23, 1989
I

\' [B.C. RAY ANDS. RATNAVEL PANDIAN, JJ.] B

Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974-Section 3(J)(iii) & 3(J)(iv)-Detention order-
Time lag between the passing of the detention order and the actual
"T arrest-Whether affects the subjeciive satisfaction of the detaining
authority-Legality of such detention order-Challenged.
c
~ This appeal bas been filed by the brother of the detenu T .A.
Sirajudeen who was detained pursuant to an order of detention passed
by the first respondent under Section 3(l)(iii) and 3(l)(iv) l'fthe Conser-
vation of Foreign Exchange and Smuggling Activities Act, 1974 with a
view to preventing the said detenu to take part in the smuggling D
activities of Gold. The circumstances under which the detention order
in question was passed may now be stated.

,,,,. 'i On 30.11.1986, Snperintendent of Central Excise, Manjeri Range
searched the residential premises of the detenu but did not discover any
contraband goods. However on questioning the detenu confessed that E
he had hurried eleven gold biscuits in the back yard, which were
recovered after digging the ground and the statement of the detenu was
recorded under Section 1()8 of the Customs Act, that very day.

On 9.12.1986 again the Authorities concerned searched the resi-

"
dence of the detenu in the belief that there was concealment of more F
gold. During the search the detenu pointed out to the Superintendent
one packet which had been placed in the thatched roofing of the house.

The detaining authority taking into consideration the fact of
seizure effected on two occasions and the statement of the detenu admit-
ting his involvement in the prejudicial activities mentioned in the G
grounds of detention reached subjective satisfaction and passed the
> impugned order of detention on 7.10.87. The detenu was arrested on
18.1.1988 and detained in Central Prison, Trivandrum from 19.1.1988
onwards Grounds of detention and other relevant material were
furnished to the detenu on 21.1.1988. The detenu made representation
for revocation of the detention order on 25.1.1988 which was rejected H
945
946 SUPREME COURT REPORTS [1989] 3 S.C.R.

on 11.4.1988. The first respondent made a reference und.r Section 8 of
A
the Act on 5.5.88 to the Advisory Board which reported that in its
opinion sufficient cause existed for t_he detention of the detenu.

The appellant challenged the detention of his brother in the High
Court by means of Writ Petition but, having failed, he filed this appeal
B by special leave.

The appellant primarily urged two contentions before this Court.
It was urged that there was no proximity in time to provide a rational
nexus between the alleged prejudicial activity and the passing of the
impugned order of detention after II months i.e. on 7.J0.87 and as
there was no reasonable and satisfactory explanation for the said long
c delay, the detention order is liable to be quashed on the ground that the
credible chain between the grounds of the alleged criminal activities and
the purpose of detention stood snapped. The delay throws doubt on the
genuineness of the subjective satisfaction arrived at by the detaining
authority. Secondly it was contended that the representation submitted
D by the detenu on 25. I.88 challenging the impugned order clamped on
him had been disposed of by a delay of 72 days i.e. on ll.4.88 and this
long and avoidable delay vitiates the detention order being violative of
Art. 22(5) of the Constitution.

The first respondent in the counter affidavit explained the delay
E and attributed the same to the extensive search of various premises in
different places and examination of persons apart from departmental
delays. It is only after completing the necessary investigation customs
authorities sponsored the case for detention of the detenu.

Allowing the appeal, this Court,
F
HELD: There is no denying the fact that the impugned order has
been passed after lapse of JI months from the date of seizure of the
eleven gold biscuits from the back courtyard of the house of the detenu.
The test of proximity is not a rigid or mechanical test by merely count-
ing number of months between the offending acts and the order of
G detention. However, when there is undue and long delay between the
prejudicial activity and the passing of the detention order, the court has 1
to scrutinise whether the detaining authority has satisfactionly ..._
examined such a delay and afforded a tenable and reasonable ex-
planation as to why such a delay has occasioned and further the
court has to investigate whether the causal connection has been
H broken in the circumstances of each case. No hard and fast rule
TA RAHMAN v. STATE OF KERALA 947

can precisely be formulated and guidelines can be laid down in that
A
behalf. [951G-952A)

When there is unsatisfactory and unexplained delay betwien the
date of the order of detention and the date of securing the arrest
of the detenu, such a delay would throw considerable doubt on the
genuineness of the subjective satisfaction of the detaining autho- B
rity. [954C]

See Gora v. State of West Bengal, [1975) 2 SCR 996; Hemlata
Kamila/ Shah v. State of Maharashtra, [1981) 4 SCC 647; Go/am
Hussain @Gama/ v. Commr. of Police of Calcutta & Ors., [1974] 4
SCC 530; SK Serajul v. State of West Bengal, [1975] 2 SCC 78; Rekha-
ben Virendra Karadia v. State of Gujarat & Ors., [1979] 2 SCR 257; c
Harnek Singh v. State of Punjab, [1982] l SCC ll6; Shiv Ratan Makin
v. Union of India and Others, [1986] l SCC 401; Smt. K.Aruna Kumari
v. Government of Andhra Pradesh & Ors., [1988] l SCC 296 and
Rajendra Kumar Natvarlal Shah v. State of Gujarat & Ors., [1988] 3
sec 153. D
The Court in the instant case, noticed from the Counter affidavit
filed on behalf of the first Respondent, that the detaining authority has
. -{ attempted to explain the laxity that has occasioned in passing the
impugned order but miserably failed in explaining the delay of three
months in securing the arrest of the detenu from the date of passing of E

- the order and keeps stunned silence on that score. Counsel when
queried by the Court whether he could give any reason for this undue
delay in arresting the detenu on 18. I.1988 in pursuance of the
impugned order made on 7. I0.1987, frankly admitted that he could not
do so, Under the circumstances, the Court held that leaving apart the
question of delay in passing the order of detention, the fact remains that F
the detaining authority has failed to explain the long delay in securing
the arrest of the detenu after three months of the passing of the deten-
tion order and this non-explanation throws a considerable doubt on the
genuineness of the subjective satisfaction of the detaining authority
vitiating the validity of the order of detention. [954E-955A]
G
The long interval in receipt of the representation and the com-
ments of the Collector of Customs, Cochin, indicate the casual and
indifferent attitude, displayed by the authorities concerned dealing with
the representation. The manner in which the representation has been
dealt with reveals a sorry state of affairs in the consideration of the
representation made by the detenu. [955G-956A] II
948 SUPREME COURT REPORTS [1989] 3 S.C.R.

The Court took firm view that the representation of the detenu
A
has not been given prompt and expeditious consideration and was
allowed lo lie without being properly attended to. The delay of 72 days
in the absence of satisfactory explanation is too long a period for ignor-
ing the indolence on the part of the concerned authority. The unexp-
lained delay in disposal of the representation of the detenu is violative of
B Article 22(5) of the Constitution of India rendering the order of deten-
tion invalid. [956H-957B]

The Court set aside the judgment of the High Court, quashed the
order of detention and directed that the detenu be set at liberty
forthwith. [957C] -.(
c Rama Dhondu Borade v. Shri V.K. Saraf, Commissioner of -(
Police & Ors., 11989] l Scale 22.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 318 ofl989.
D
From the Judgment and Order dated 15.6.88 of the Kerala High
Court in Original Petition No. 3299 of 1988.

R. Sasiprabhu and P .K. Manohar for the Appellant.

E B. Dutta, Additional Solicitor General, P. Parmeshwaran,
Pramod Swarup and T .T. Kunhikannan for the Respondents.

The Judgment of the Court was delivered by
-
S. RATNAVEL PANDIAN, J. This appeal under Article 136 of
F the Constitution of India is preferred by the appellant, Abdul Rahman
questioning the validity and correctness of the order of detention pas-
sed by the first Respondent on 7.10.1987, in exercise of the powers
conferred by section 3(1)(iii) and 3(1)(iv) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(Central Act 52 of 1974) (hereinafter referred to as the 'Act") whereby
G detaining the appellant's brother Sri T.A. Sirajudeen @ Siraj (the
detenu herein) with a view to preventing the detenu from engaging in
transporting or concealing or keeping smuggled gold or dealing in
smuggled gold otherwise than by engaging in transporting or conceal-
ing or keeping smuggled gold.

H Though the impugned order was passed on 7 .10. 1987, the detenu
T.A. RAHMAN v. STATE OF KERALA [PANDIAN, J.J 949

was arrested on 18. I. 1988 and detained in the Central prison,
A
Trivandrum from 19.1.1988 onwards. The detenu was furnished with
copies of the grounds of detention and other connected material docu-
ments on 21. I. 1988. The detenu made a representation to the third
Respondent praying for revocation of the detention order on
25.1.1988 which was rejected on 11.4.1988. Meanwhile on 11.2.1988 a
declaration by the third Respondent under Section 9( 1) of the Act was B
made, whereby the detenu.was ordered to be detained for a continued
detention for a further period of 6 months over one year. The first
Respondent made a reference under section 8 of the Act on 5 .5. 1988
to the Advisory Board which has reported that there is in its opinion
sufficient cause for the detention of the detenu. The material facts
which necessitated the passing of the detention order can be briefly
stated thus: c

On 30.11.1986, Superintendent of Central Excise, Manjeri
Range and party searched the permanent residence of the detenu in his
presence which did not result in the seizure of any contraband goods or
the recovery of any incriminating documents. But on questioning by D
the officer, the detenu confessed that he had buried eleven gold
biscuits in the backyard of his house. He dug up the spot and produced
the eleven! gold biscuits which were kept concealed under the ground.
--{ Each of the gold biscuits was found wrapped in black carbon paper
bearing foreign markings and weighing 10 tolas each with the purity of
24 carats. The total weight of the eleven gold biscuits was 1282.600 E
gms., the market value of which as on that date was Rs.3, 14,237. The
contraband goods were seized under a Mahazar. On 30.11. 1986 a
statement was recorded from the detenu by the Superintendent of the
Central Excise under section 108 of the Customs Act in which the
detenu had given a detailed note of his involvement in the smuggling
activities. On 9.12.1986 also the Superintendent of Central Excise F
searched the residence of the detenu in the reasonable belief that there
was concealment of more smuggled gold in the said house. During this
search, the detenu pointed out to the Superintendent one packet which
had been placed in the thatched roofing of his house'. The Superinten-
dent took out the packet and it was found containing four gold ingots
bearing foreign markings weighing 466.400 gms. with 24 carat purity, G
all to the value of Rs. l, 14,268. The detaining authority taking into
consideration of the seizure effected on two occasions and the state-
ment of the detenu admitting his involvement in the prejudicial
activities mentioned in the grounds of detention reached its subjective
satisfaction of the necessity of passing the impugned order and passed
the same on 7.10.1987. The appellant filed a Writ Petition under Article H \
950 SUPREME COURT REPORTS [1989] 3 S.C.R.

A 226 of the Constitution of India for quashing the impugned order of
detention, but was not successful. Hence this appeal.
4.
Of the several grounds urged in the Special Leave Petition, the
learned counsel appearing on behalf of the appellant stressed only the
following two contentions seeking to set aside the order of detention.
B
(1) As there is no proximity in time to provide a rational nexus
between the alleged prejudicial activity, that is the seizure of
the gold biscuits on 30.11.1986 and the passing of the
impugned order of detention after 11 months i.e. on
7 .10.1987 and as there is no reasonable and satisfactory '-'(
c explanation given by the first Respondent for this undue and
unreasonable delay, the order is liable to be quashed on the ~
ground that the credible chain between the grounds of the
alleged criminal activities and the purpose of detention is
snapped. Further the unreasonable and unexplained delay
between the date of the order of detention on 7.10.87 and
D the date of arrest of the detenu after a lapse of 3 months on
18.1.1988 throws considerable doubt on the genuineness of
the subjective satisfaction of the detaining authority leading
to an inference that there was no real and genuine subjective
satisfaction as regards the necessity to detain the detenu with
a view to preventing him from acting in prejudicial manner.
r
E
(2) The representation submitted by the detenu to the third
Respondent on 25. 1.1988 challenging the impugned order ..
clamped upon him had been disposed of by a delay of 72 days
i.e. on 11.4.1988 and this long and avoidable delay
vitiates the order of detention as being violative of Article '
F 22(5) of the Constitution of India.

We shall now deal with the first contention which is referred
under ground Nos. 11 & Ill of the Grounds in the Special Leave Peti-
tion which read thus:
G "For that the High Court ought to have seen that the peti-
tioner was detained on the basis of a alleged solitary incident
occurred on 30.11.1986 and the detention order was passed
after lapse of 11 months i.e. on 7 .10. 1987, and the peti-
tioner was arrested and detained on 19.1. 1988."
H "For that the High Court ought to have seen that there was
T.A. RAHMAN v. STATE OF KERALA [PANDIAN, J.l 951

no proximity between the alleged incident and subsequent
A
detention. The time factor has not been considered by the
detaining authority and he has mechanically passed the
detention order without paying any attention to the loose
grounds and quick sands in the reports of the sponsoring
officer."
( 8
The above two contentions are sought to be answered by the first
Respondent in his counter stating that the investigating officer had to
question a number of persons and to conduct extensive search of
various premises in different places in connection with the information
gathered during interrogation and the Superintendent issued summons
to the brothers of the detenu, namely, Haneefa and Abdul Rahman
for appearance on 10.3.87 and 3.3.87 respectively, but Abdul Rahman
c
was absconding and that on 10.2.87, the statement of C.K. Madhavan
referred to in the statement of the detenu was recorded and that on
18.5.1987 show cause notices were issued to persons connected with
this case and immediately after completion of the investigation the
Customs authorities sponsored the proposal for detention of the D
detenu by their letter dated 26.8. 1987 and that the proposal was
screened by the Screening Committee on 11.9.1987 and thereafter the
detention order was passed on 7. 10.1987.

Coming to the delay in securing the detenu by arrest the explana-
tion is given as follows: E

"The detention order was forwarded to the Malappuram
Superintendent of Police for its execution by letter dated
9.10.1987. The Police executed the order on 18.1.1988.
J From the above facts it is dear _that there is no delay in
passing or executing the order of detention as alleged in the F
petition for Special Leave to Appeal."

There is no denying the fact that the impugned orde_r has been passed
after lapse of 11 months from the date of seizure of the eleven gold
biscuits from the back courtyard of the house of the detenu. As
repeatedly pointed out by this court that there is no hard and fast rule G
that merely because there is a time lag between the offending acts and
the date of order of detention, the causal link must be taken to be
snapped and the satisfaction reached by the detaining authority should
be regarded as unreal, but it all depends upon the facts and circums-
tances of each case and the nature of the explanation offered by the
detaining authority for the delay that had occurred in passing the H
952 SUPREME COURT REPORTS [1989] 3 S.C.R.

order. There is a catena of decisions on this point, but we feel that it is
A
not necessary to recapitulate all those decisions except a salient few.
This court in Go/am Hussain alias Gama v. Commr. of Police of
Calcutta & Ors., [ 1974] 4 SCC 530 wherein there was a time lag of 6
months between the incident and the date of order of detention while
answering a similar contention, laid down the ratio of proximity as
B follows:

"No authority, acting rationally, can be satisfied, subjec-
tively or otherwise, of future mischief merely because long
ago the detenu had done something evil. To rule otherwise
is to sanction a simulacrum of a statutory requirement. But
no mechanical test by counting the months of the interval is
1
c sound. It all depends on the nature of the acts relied on,
grave and determined or less serious and corrigible, on the
length of the gap, short or long, on the reason for the delay
in taking preventive action, like information of participa-
tion being available only in the course of an investigation.
D We have to investigate whether the causal connection has
been broken in the circumstances of each case. Gora v.
State of West Bengal, [1975] 2 SCR 996 has held thus: There
is, therefore, no hard and fast rule that merely because
there is a time lag of about six months between the 'offend-
ing acts' and the date of the order of detention, the causal
E link must be taken to be broken and the satisfaction
claimed to have been arrived at by the District Magistrate
must be regarded as sham or unreal. Whether the acts of
the detenu forming the basis for arriving at a subjective
satisfaction are too remote in point of time to induce any
reasonable person to reach such subjective satisfaction
F must depend on the facts and circumstances of each case.
The test of proximity is not a rigid or mechanical test to be
blindly applied by merely c<>unting the number of months
between the 'offending acts' and the order of detention. It
is a subsidiary test evolved by the court for the purpose of
determining the main question whether the past activities
G of the detenu is such that from it a reasonable prognosis
can be made as to the future conduct of the detenu and its
utility, therefore, lies only in so far as it subserves that
purpose and it cannot be allowed to dominate or drawn it.
The prejudicial act of the detenu may in a given case be of
such a character as to suggest that it is a part of an
H organised operation of a complex of agencies collaborating
' '7.
:<1

T.A. RAHMAN v. STATE OF KERALA [PANDIAN, J.I 953

to clandestinely and secretly carry on such activities and in
A
such a case the detaining authority may reasonably feel
satisfied that the pre judicial act of the detenu which has
come to light cannot be a solitary or isolated act, but must
be part of a course of conduct of such or similar activities
clandestinely or secretly carried on by the detenu and it is,
therefore, necessary to detain him with a view to prevent- 8
ing him from indulging in such activities in th6 future."

In Hemlata Kantilal Shah v. State of Maharashtra 1981 4 SCC
647, this Court held: ·

"Delay ipso facto in passing an order of detention is not
fatal to the detention of a person, for, in certain cases delay c
may be unavoidable and reasonable. What is required by
law is that the delay must be satisfactorily examined by the
detaining authority."

See also SK Serajul v. State of West Bengal, [1975] 2 SCC 78; D
Rekhaben Virendra Karadia v. State of Gujarat & Ors., )1979] 2 SCR
257; Harnek Singh v. State of Punjab, [1982] 1 SCC 116; Shiv Ratan
Makin v. Union of India and Others, [1986] 1SCC401; Smt. K. Aruna
Kumari v. Government of Andhra Pradesh and Ors., [1988] 1 SCC 296
and Rajendra Kumar Natvarlal Shah v. State of Gujarat and Others,
[1988] 3 sec 153. E

- In a recent decision in Yogendra Murari v. State of U.P. and
Others 1988 (4) SCC 559, this Court has reiterated the earlier view
consistently taken by this Court observing:

" .......... it is not right to assume that an order of deten- F
tion has to be mechanically struck down if passed after
some delay ............ It is necessary to eonsider the ,
circumstances in each individual case to find out whether
the delay has been satisfactorily explained or not."

The conspectus of the above decisions can be summarised thus: G .
The question whether the prejudicial activities of a person necessitat-
I ing to pass an order of detention is proximate to the time when the
order is made or the live-link between the prejudicial activities and the
purpose of detention is snapped depends on the facts and circums-
tances of each case. No hard and fast rule can be precisely formulated
that would be applicable under all circumstances and no exhaustive H
954 SUPREME COURT REPORTS [1989] 3 S.C.R.

guidelines can be laid down in that behalf. It follows that the test of
A
proximity is not a rigid or mechanical test by merely counting number
of months between the offending acts and the order of detention.
However, when there is undue and long delay between the prejudicial
activities and the passing of detention order, the Court has to
scrutinise whether the detaining authority has satisfactorily examined
B such a delay and afforded a tenable and reasonable explanation as to
why such a delay has occasioned, when called upon to answer and
further the Court has to investigate whether the causal connection has
been broken in the circumstances of each case.

Similarly when there is unsatisfactory and unexplained delay bet-
ween the date of order of detention and the date of securing the arrest
c of the detenu, such a delay would throw considerable doubt on the
genuineness of the subjective satisfaction of the detaining authority
leading to a legitimate inference that the detaining authority was not
really and genuinely satisfied as regards the necessity for detaining the
detenu with a view to preventing him from acting in a prejudicial
D manner.

In the light of the above propos1t10n of law, we shall now
examine the first contention which has been raised for the first time
before this Court. From the reading of the counter affidavit filed on
behalf of the first Respondent, it is seen that ~he detaining authority

-
E has attempted to explain the laxity that has occasioned in passing the
impugned order, but miserably failed in explaining the delay of three
months in securing the arrest of the detenu from the date of the passing
of the order, and keeps stunned silence on that score. The learned
counsel appearing for the first respondent when queried by this Court
whether he could give any reason for this undue delay in arresting the
F detenu on 18. 1. 1988 in pursuance of the impugned order of detention
made on 7 .10.1987, he has frankly admitted that he could not do
so-rightly so in our view-in the absence of any explanation in the
counter affidavit. The Superintendent of Police, Malapurram to whom
the detention order was forwarded for execution has not filed any
supporting affidavit explaining the delay in securing the ·arrest of the
G detenu. Under these circumstances, we hold that leaving apart the
question of delay in passing the order of detention from the date of the
seizure of the gold, the faot remains that the detaining authority has
failed to explain the long delay in securing the arrest of the detenu after
three months from the date of the passing of the detention order and
this non-explanation in our view throws a considerable doubt on the
H genuineness of the subjective satisfaction of the detaining authority
I
T.A. RAHMAN I', STATE OF KERALA [PANDIAN, J,] 955
,.f vitiating the validity of the order of detention.
A
The next contention stressed by the learned counsel for the
appellant is with regard to the delay of 72 days in the disposal of the
representation made by the appellant to the third respondent on
25.1.1988. This contention is raised in ground Nos. VIII and IX of the
Grounds in the Special Leave Petition. This is resisted by the third B
respondent in paragraph 8 of his counter stating that a 'representation
dated 2.2. 1988 was received in the COFEPOSA Section of Ministry of
Finance on 16.2.1988 with a letter dated 5.2.1988 from the Govern-
ment of Kerala; that as certain information was not available with the
Central Government, the Collector of Customs, was asked to get a
~
copy of the representation from the State Government and to send his
comments; that Collector of Customs, informed the Central Govern- c
ment by a telex message dated 1.3.1988 which was received in the
COFEPOSA Section on 8.3. 1988 informing that the representation
was not available with the Home Department; that thereafter a copy of
the representation was forwarded to the Collector of Customs by post
on 8.3. 1988; that the comments of the Collector were received back on D
28.3. 1988; that then the representation along with the comments were
placed before the Joint Secretary, COFEPOSA Section on 30.3.88,
who forwarded the same to the Minister of State for Revenue on the
{ same day and on 4.4.88 the Minister of State forwarded his comments
to the Finance Minister who considered and rejected the representa-
tion on 8.4.88. According to the third Respondent, the representation E
was considered expeditiously and as such there is no violation of
Article 22( 5) of the Constitution of India.

, The learned counsel for the appellant has explained that the
representation was submitted originally on 25.1.1988, but was got back
and resubmitted on 2.2.1988. According to him, it is surprising that the
said representation was received by the third respondent only on
F

16.2.1988 aft~" a considerable delay of two weeks and thenceforth
there was a considerable delay from 16.2.88 to 28.3.88 in receiving the
comments of the Collector of Customs, and again there was a delay of
7 days in forwarding the representation to the Minister of State for
Revenue with the comments of the Joint Secretary, COFEPOSA Sec- G
tion. The long interval.in receipt of the representation and the com-
~ ments of the Collector of Customs, Cochin indicate the casual and
'~ indifferent attitude displayed by the authorities concerned dealing
with the representation.

In our opinion, the manner in which the representation has been H

if
,.,'$
956 SUPREME COURT REPORTS [1989] 3 S.C.R.

dealt with reveals a sorry state of affair in the matter of consideration
A of the representation made by the detenu. Further we fail to under-
stand why such a long delay from 16.2.88 to 28.3.88 had occasioned in
getting the comments from the Collector of Customs. The only futile
explanation now offered by the third respondent is that this delay had
occasioned because the Collector of Customs was not able to get a
B copy of the representation from the Home Department, Kerala and
thereafter the Collector got a copy of the representation on being
forwarded by the third respondent on 8.3.1988. Even then there is a
delay of 20 days in getting the comments of the Collector and that
delay is not at all explained.

C This Court in Rama Dhondu Botade v. Shri V. K. Sara•;
, Commis-
. sioner of Police & Ors., [ 1989] 1 Scale Vol. 4 22 after referring to --<
various decisions, has observed thus:

"The detenu has an independent constitutional right to
make his representation under Article 22(5) of the Con-
D stitution of India. Correspondingly, there is a constitu-
tional mandate commanding the concerned authority to
whom the detenu forwards his representation questioning
the correctness of the detention order clamped upon him
and requesting for his release, to consider the said rep-
resentation with reasonable dispatch and to dispose the
E same as expeditiously as possible. This constitutional
requirement must be satisfied with respect but if this con-
stitutional imperative is observed in breach, it would amount
to negation of the constitutional obligation rendering the
continued detention constitutionally impermissible and
illegal, since such a breach would defeat the very concept
F of liberty-the highly cherished right-which is enshrined
in Article 21 of the Constitution."

" ....... What is reasonable dispatch depends on the facts
'
and circumstances of each case and no hard and fast rule
can be laid down in that regard. However, in case the gap
G between the receipt of the representation and its considera-
tion by the authority is so unreasonably long and the expla-
nation offered by the authority is so unsatisfactory, such
delay could vitiate the order of detention."

Bearing in mind the above principle when we approach the facts
H of the present case, we are of the firm view that the representation of
T.A. RAHMAN v. STATE OF KERALA [PANDIAN, J.] 957

the detenu has not been given prompt and expeditious consideration, A
and was allowed to lie without being properly attended to. The expla-
nation now offered by the third respondent that the delay has occurred
in seeking the comments of the Collector of Customs etc. is not a
convincing and acceptable explanation. In our view the delay in 72
days in the absence of satisfactory explanation is too long a period for
ignoring the indolence on the part of the concerned authority. Hence B
we hold that the unexplained delay in disposal of the representation of
the detenu is violative of _Article 22(5) of the Constitution of India,
rendering the order of detention invalid.

r· For all the above mentioned reasons, we allow this criminal
appeal by setting aside the judgment of the High Court, quash the C
~ impugned order of detention and direct the detenu to set at liberty
forthwith.

Y.Lal Appeal allowed .
•
D

).