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TMI Blog1980 (2) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining the comments of the Customs authorities, it was found necessary to take legal advice as the representation posed many legal and constitutional questions. So, after consultation with the Secretary (Law and Judicial) Delhi Administration, the representation was finally rejected by the Administrator on January 15, 1980. These facts are stated in the counter affidavit filed on behalf of the Delhi Administration and are substantiated by the records produced before us. If there appeared to be any delay, it was not due to any want of care but because the representation required a thorough examination in consultation with investigators of fact and advisers on law. though the Administrator considered the representation of the detenu after the hearing by the Board, the Administrator was entirely uninfluenced by the hearing before the Board. The application for the issue of a Writ of Habeas Corpus is therefore dismissed. - 1524 OF 1979 - - - Dated:- 27-2-1980 - RANJIT SINGH SARKARIA AND O. CHINNAPPA REDDY, JJ. For the Petitioner : Ram Jethmalani, Harjinder Singh, Sunil Mehta and Mukul Mudgal For the Respondents M. M. Abdul Khader and M. N. Shroff JUDGMENT Mrs. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the petitioner : 1. The representation of the detenu, made on December 22, 1979, was not communicated to the Advisory Board as it ought to have been, when the Board met on January 4,1980. 2. The detaining authority should have disposed of the representation before forwarding it to the Advisory Board. Even if the detaining authority did forward it to the Advisory Board, the detaining authority should not have awaited the hearing before the Advisory Board and should not have allowed itself to be influenced by such hearing. 3. There was inexcusable delay in enabling the detenu to make a representation and indisposing of the representation. Notwithstanding the clear assertion in the additional grounds raised by the petitioner, which she was allowed to do by an order of the Court, that her representation dated December 22, 1979, was not placed before the Advisory Board when the Board met on January 4, 1980, there was no specific denial of the assertion in the counter filed by the Delhi Administration to the additional grounds. However, we were informed by Shri Abdul Khader, learned Counsel for the Delhi Administration, that the representation was in fact forwarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu." In the second case, to the facts of which we will refer later, the observations upon which reliance was placed were : "It is urged that the Government was under a constitutional obligation to consider the representations before the hearing before the Advisory Board. There is no quarrel with the principle but the difficulty is about the application of the principle on the facts an circumstances of the present case. In fact, the Government has to reach its decision uninfluenced by the opinion of the Advisory Board." In the third case, offer of inspection of documents twelve days after request for copies was considered fatal to the detention and it was observed : "If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. The detention cannot be said to be according to the procedure prescribed by law. When the Act contemplates the furnishing of groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before then but may merely forward it to the Board without himself considering it. Several such situations may arise compelling departure from the time-imperative. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved. The burden of explaining the necessity for the slightest departure from the timeimperative is on the detaining authority. We notice that in Narendra Purshotam Umarao etc. v. B. B. Gujral Ors. (supra) the detenu made his representation on 4th and 6th of March 1978, the Advisory Board gave a hearing on 13th March and the detaining authority rejected the representation on 18th March. The Court perused the records of the Government and the Advisory Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment considered it and rejected it but that was before the Board made its report and sent it to Government. But counsel urged that this fact may explain the lapse of time from the date that the records were sent and the date when they were returned, but not the delay between May 27, 1971 and June 7, 1971, during which Government could have arrived at its decision. That argument has not much force, because in a given case Government may not be able to reach a proper conclusion within a short time especially, in a case where another authority, in this case the District Magistrate, has passed the questioned order. It might have to make inquiries as to the situation in the locality, the nature of and the circumstances in which detention was found necessary, the previous history of the person detained etc. Therefore, it is difficult to agree with counsel that Government should have reached its conclusion during the said period...........There can be no hard and fast rule with regard to the time which Government can or should take, and that each case must be decided on its own facts." We may now consider whether the facts here disclose a disregard to the petitioner s constitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X
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