1990 (4) TMI 56 - SC - Customs

Writ of habeas corpus against detention orders - Held that - The Finance Minister considered and rejected the representation on 1-11-1988 and the file was received in the office and on 2-11-1988 and on the same day, a memorandum rejecting the representation was sent to the detenu. From the explanation it can be seen that the representation was considered most expeditiously and there is no negligence or callous inaction or avoidable red-tapism It can be seen that on the mere delay in arresting the detenu pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine. Each case depends on its own facts and circumstances. The Court has to see whether the delay is explained reasonably. As mentioned above, in the instant cae, we are satisfied with the explanation for the delay in arresting the detenu. Therefore this contention is also liable to be rejected. For all the above-mentioned reasons, the appeal is dismissed.

Issues Involved:
1. Delay by the Central Government in rejecting the representation.
2. Delay in passing the detention order.
3. Delay in executing the detention order.
4. Effective opportunity to represent before the Advisory Board.

Issue-wise Detailed Analysis:

1. Delay by the Central Government in rejecting the representation:
The appellant argued that the Central Government's delay in rejecting his representation violated Article 22(5) of the Constitution of India. The representation was made on 27-9-1988 and disposed of on 2-11-1988, amounting to a delay of one month and five days. The Court noted that Article 22(5) confers a valuable right upon the detenu to make a representation and mandates that the detaining authority should dispose of the same without delay. The Court examined precedents such as Khuidiram Das v. The State of West Bengal and Others, Tara Chand v. The State of Rajasthan, Shyam Ambalal Siroya v. Union of India and Ors., and SabirAhmed v. Union of India and Ors., which emphasize the necessity for the Central Government to consider representations with reasonable expedition. The Court found that the representation was received in the COFEPOSA Section on 10-10-1988, translated, and comments were sought from the Collector of Customs, Cochin. The process was completed expeditiously, and the representation was rejected by the Finance Minister on 1-11-1988. The Court concluded that there was no "negligence or callous inaction or avoidable red-tapism" and thus rejected this contention.

2. Delay in passing the detention order:
The appellant contended that the detention order, passed on 21-5-1988, was issued after an undue delay following the incident on 17-9-1987, making the grounds stale and lacking a live connection. The Court referenced cases such as Lakshman Khatik v. The State of West Bengal, Rajendrakumar Natvarlal Shah v. State of Gujarat and Others, and Abdul Rahman's case, which discuss the impact of delay on the genuineness of the detaining authority's satisfaction. The Court found that the delay was reasonably explained in the counter-affidavit, detailing the timeline of actions taken by the sponsoring authority and the State Government. The Court emphasized that mere delay is not conclusive and must be considered in the context of the case's circumstances. The Court held that the delay did not invalidate the detention as it was reasonably explained and did not sever the necessary nexus.

3. Delay in executing the detention order:
The appellant argued that the delay in executing the detention order, which was passed on 21-5-1988 and executed on 6-8-1988, indicated a lack of genuineness. The Court examined the explanation provided in the counter-affidavit, stating that efforts were made to apprehend the detenu, who was deliberately avoiding arrest. The Court referenced cases such as Abdul Rahman's case and S.K. Serajul v. State of West Bengal, which discuss the impact of delay in arresting the detenu. The Court concluded that the explanation for the delay was reasonable and that mere delay in arresting the detenu does not render the detention invalid. The Court held that the subjective satisfaction of the detaining authority was genuine.

4. Effective opportunity to represent before the Advisory Board:
The appellant submitted that he was not given an effective opportunity to represent his case before the Advisory Board as he was not permitted to be represented by an advocate or his next friend. The Court did not provide a detailed analysis of this issue in the judgment, indicating that it was not a significant factor in their decision.

Conclusion:
The Court dismissed the appeal, finding that the delays in rejecting the representation, passing the detention order, and executing the detention order were reasonably explained and did not invalidate the detention. The Court upheld the detention order, emphasizing the importance of considering the circumstances of each case and the potentiality of the detenu's prejudicial activities.

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