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TMI Blog1990 (4) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... documents were also recovered. The gold was valued at Rs. 4,64,951/- and it was found to be smuggled gold, The appellant was interrogated by the Superintendent of Customs and a statement of the appellant was recorded. He confessed that he was introduced to a person who promised to give him remuneration provided he carries the gold to India and appellant agreed and carried these gold biscuits. Criminal proceedings were initiated. However, the detaining authority, the Home Secretary to Government of Kerala being satisfied passed the detention order dated 21-9-88 against the appellant with a view to preventing him from smuggling activities. The grounds also were served within time and in the grounds all the above mentioned details are mentioned. In the grounds the appellant also is informed that if he desires to make a representation to the Advisory Board, he may address it to the Chairman, Advisory Board and that he can also make a representation to the detaining authority or the Central Government. Questioning the same the present appeal is filed. 3. It is submitted that the representation was made on 27-9-88 to the Central Government and it was disposed of on 2-11-88. Therefore th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same without delay. Therefore the right under this Clause is two-fold, namely that the authority making the order must communicate to the detenu the grounds on which the order has been made, as soon as the order is made and secondly that the detenu must also be afforded the earliest opportunity of making a representation against the order. 7. Article 22(5) itself does not say to whom the representation is made or who will consider the representation. By virtue of provisions of the statute under which he has been detained, the appropriate Government is legally obliged to comply with these requirements. It is obligatory on the appropriate Government to consider the detenu's representation separate from the consideration of the detenu's case by the Advisory Board. But what the learned Counsel submits is that the Central Government which has the power to revoke the detention order passed by the State authority, is also under legal obligation to dispose of the representation without delay. Learned Counsel relied on some of the decisions of this Court. In Khudiram Das v. The State of West Bengal: [1975] 2 SCR 832 this Court held that one of the basic requirement of Clause (5) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o order for revocation. In Sabir Ahmed v. Union of India: [1980] 3 SCR 738 dealing with the power of the revocation of the Central Government it is observed that such power is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government and that the Central Government should consider the same with reasonable expedition and that what is reasonable expedition depends upon the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. It is also observed that it certainly does not cover the delay due to negligence, callous inaction, avoidable redtapism and unduly protracted procrastination. 10. In Sabir Ahmed's case: [1980] 3 SCR 738) as well as in Shyam Ambalal Siroya's case: 1980 CriLJ 555 the representation made by the detenu to the Central Government has been ignored and left unattended for a period of about four months and under those circumstances it was held that there was violation of Article 22(5). 11. In Rama Dhondu Borade v. V. K. Saraf, Commissioner of Police: 1990(25) ECC 50 the detenu made a representation to the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no nexus between the. alleged incident and the detention order and therefore there is no genuine satisfaction on the part of the detaining authority. The learned Counsel submits that there was no live existing connection between the incident and the detention. In Lakshman Khatik v. State of West Bengal: 1974 CriLJ 936 it is observed that mere delay in passing a detention order is not conclusive but the type of grounds given have to be seen and then consider whether such grounds could really weigh with an officer after such delay in coming to the conclusion that it was necessary to detain the detenu. In Rajendrakumar Natvarlal Shah v. State of Gujarat: 1988 CriLJ 1775 it is held that the mere delay in passing the detention order is not fatal unless the court finds that the grounds are stale or illusory or that there is no real nexus between the grounds and the detention. In Abdul Rahman's case 1990 Cri LJ 578 (SC) seizure of the gold biscuits was on 30-11-86 and the detention order was passed 11 months thereafter. On the ground that there was no satisfactory explanation for this undue, unreasonable and unexplained delay, it was held that the delay throws a considerable doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n otherwise it has been reasonably explained. 15. Yet another ground urged by the learned Counsel is that there was delay in arresting the detenu after the detention order was passed and therefore there is no genuineness in the detention order. In the counter-affidavit it is stated that after the detention order was passed, it was sent to the Superintendent of Police, Malappuram on. 23-5-88 for immediate execution and they were passed on to Circle Inspector, Malappuram. On 29-6-88, it was reported that the Circle Inspector had made due enquiries but the detenu could not be apprehended. Thereupon a special squad was deputed as per the directions of the Superintendent of Police and thereafter he was detained on 6-8-88. It is further submitted in the counter-affidavit that the delay in execution of the order is caused due to detenu's deliberate attempt to make himself scarce. That apart there is no decision where a court has gone to the extent of holding that a mere delay in arresting the accused renders the detention invalid. In the instant case, the delay, if at all, is only about 21/2 months and the explanation offered for the delay is reasonable. The learned Counsel, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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