Holding

The detention order is invalid as the unexplained delay breaches Article 22(5) and the affidavits filed by a police officer lacking personal knowledge are not admissible.

Summary

Gazi Khan, detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1989, filed a representation under Article 22(5) of the Constitution. The representation was disposed of after an unexplained delay of 27 days, including a 7‑day gap with no explanation for the Assistant Secretary’s inaction. Affidavits supporting the detention were filed by a Deputy Superintendent of Police who had no personal knowledge of the case, and later by the Commissioner and Secretary (Home), both of which the Court found unacceptable. The Supreme Court held that the unexplained delay violated the constitutional mandate of speedy disposal of representations and that affidavits by officers not involved in the decision lack probative value. Consequently, the detention order was set aside and the appellant was ordered to be released.

Issues considered

Whether the 27‑day delay in disposing of the detenu's representation under Article 22(5) violates constitutional rights.
Whether a counter/ reply affidavit filed by a police officer with no personal knowledge of the case is valid.
Whether the order of detention under Section 3(1) of the Narcotic Drugs and Psychotropic Substances Act is invalid due to procedural lapses.

Legislation cited

Constitution of Indias. Article 21, s. Article 22(5)
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1989s. 3(1)

Subjects

Preventive detentionArticle 22(5)Delay in representationCounter affidavitPolice officer affidavitConstitutional rightsNarcotic Drugs and Psychotropic Substances ActHabeas corpus

Judgment

GAZI KHAN @ CHOTIA A
1 v.
I

--
STATE OF RAJASTHAN AND ANR.

MAY 2, 1990

[S. RATNAVEL PANDIAN AND K. JAYACHANDRA B
REDDY, JJ.]
·~
Preventive Detention: Prevention of Illicit TraJJIC in Narcotic
Drugs and Psychotropic Substances Act, 1989:

•••• Section 3( 1)-Detention order-Delay in disposal of representa· .
tion of detenu-Validity of-Whether violation of fundamental rights-
Practice of allowing a police officer not having dealt with the case at any
c

point and having no personal knowledge, to -swear counter/reply
y"
affidavits-Deprecated.

Constitution of India, 1950: Article 22(5)-Detention order- D
Delay in disposal of detenu's representation-Whether violative.

The appellant challenged before the High Court the order of
detention passed against him under Section 3(1) of the Prevention of

r Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1989,
on various grounds including delay in disposal of his representation. An
affidavit was filed by a Deputy Superintendent of Police, on behalf of
E

the respondents stating that the representation was placed before the
Assistant Secretary on 19.6.1989, a report was called for from the
District Magistrate, the comments, which were received by the State
\ Government on I. 7.1989, were placed before the Assistant Secretary on
_._,L_ 3. 7.1989 who, in turn, submitted to the higher authorities with his note F
on 9. 7.1989 and the representation was rejected on ll.7.1989. The High
-~ Court dismissed the Writ Petition holding that there was no undue
lethargy or indifference.

In the appeal, by special leave, on behalf of the detenu, it was
~-ontended that the detenu's representation was not decided within a G
reasonable time and hence the extraordinary delay of 27 days was fatal
to the detention.
j--
A reply was filed by the same Deputy Superintendent of Police, as
Officer Incharge of the case, who filed the affidavit before the High
Court, stating that there was no delay in the consideration of the H
representation.
831
8'"
~~ SUPREME COURT REPORTS [1990) 2 S.C.R.

Subsequently, on the direction of the Court, an additional
A
affidavit sworn by the Commissioner and Secretary (Home Depart-
ment) stating that there was no inordinate delay in considering the
' ,,
representation and it was rejected after CIU'efnl consideration, was
filed.

B Allowing the appeal, this Court,

HELD: 1. There is no explanation for the delay from 3rd to 9th
J nly, 1989 i.e. for 7 days, for the Assistant Secretary to merely pot up
a note on the basis of comments of the District Magistrate. The addi-

c
tional affidavit sworn to by the Commissioner and Secretary does not
whisper any explanation as to why such a delay of 7 days had occurred at
the hands of the Assistant Secretary. The order of detention is, there-
fore, a breach of constitutional obligation as enshrined under Article
22(5) of the Constitution oflndia. [841F-G; 842F]
•
Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police &
D Ors., [1989] 3 SCC 173; relied on.

Smt. Shalini Soni v. Union of India, [1980] 4 SCC 544, referred
to.

2.1 A counter affidavit shonld normally be r.Jed by the detaining
·,.,
E authority himself, but this is not a rigid or inflexible rule and, in the '
absence of any allegations of ma/a fide or abuse of powers of personal
bias attributed to the detaining a1dhority, it may be sworn by a
responsible officer who personally dealt with or processed the case or by
an officer dnly authorised under the Rules of Business of the Govern-
I
ment concerned. However, the practice of allowing a police ollicer who
F has not dealt with the case any point of time at any level and who in the ----'-- -
very nature of the case could not have any personal knowledge of the
proceedings, to swear the counter and reply affidavits on behalf of the
+'
appropriate authorities should be highly deprecated and condemned
and the counter and reply affidavits sworn by such officer merit nothing
but rejection. [836H; 837A-B; 836F-GJ
G
The State of Bombay v. Purushottam Jog Naik, [1952] SCR 674;
Ranjit Dam v. State of West Bengal, [1972] 2 SCC 516; Shaik Hanifv.
State of West Bengal, [1974] 1 SCC 637; J.N. Roy v. State of West
Bengal, [1973] SCC (Cri) 123; Bhut Nath Mete v. State of West Bengal,
[1974] 1 SCC 645 at page 658; Asgar Ali v. District Magistrate Burdwan
H & Ors., [1974] 4 SCC 527: Suru Mallick v. State of West Bengal, [1975] r
GAZ! KHAN v. STATE OF RAJASTHAN [PANDIAN. J.J 833

,,,,j 4 SCC 470; Guiab Mehra v. State of U.P. & Ors., (1988] 1SCR126;
State of Gujarat v. "Sunil Fulchand Shah & Anr., (1988] 1 SCC 600 and
Madan Lal Anandv. Union of India, (1990] 1SCC81, referred to.

In the instant case, the reply affidavit and the additional affidavit
A

before the High Court as well as this Court are filed by the Deputy
Superintendent of Police who has no connection whatsoever with the B
passing of the order or dealing with or prl)cessing the file at all>' point of
time. In fact, he could not have got any personal "1iowledge with the
passing of the order of its subsequent proceeding since the order has
been passed by the State Government and the subsequent proceedings

' ••' have been dealt with by the officials of the Secretariat. It is, therefore,
terribly shocking and surprising that a police officer who has no con-
c
nection whatsoever with this detention order and who had not at any
relevant time personally dealt with the ~ase has come forward to swear
about the entire proceedings from the beginning right up to the rejec-
tion of the representation including the holding of the meeting of the
Advisory Board on behalf of the appropriate authority. The affidavit
filed by the Deputy Superintendent of Police is, therefore, not worth D
consideration. [841D-F; 836F-G]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 301of1990.

From the Judgment and Order dated 15.1.1990 of the Rajasthan E
High Court in H.C.P. No. 2866of 1989.

Pallave Shishodia, Sandeep Mehta and D. Bhandari for the
Appellant.

Chandmal Lodha, S.C. Gupta (N.P.), M.N. Shroff, I. Makwana F
and Manoj Prasad for the Respondents.

The Judgment of the Court was delivered by

S. RATNAVEL PANDIAN, J. This appeal by grant of special
leave is directed against the Order of the High Court of Rajasthan at G
Jodhpur in Habeas Corous Petition No. 2866/1989 dismissing the
Writ Petition filed by the detenu Gazi Khan@Chotia.

The order of detention dated 30.5.1989 under challenge has been
passed by the Administrative Secretary and Commissioner, Home
Department, State of Rajasthan in exercise of powers under Section H
834 SUPREME COURT REPORTS I1990] 2 S.C.R.

A 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substance Act, 1989 (for short 'the Act') on reaching his
subjective satisfaction that the detenu has been involved in illegal
business of smuggled charas and heroin and other psychotropic
substances.
\1111
\
B The relevant facts as set out in the grounds of detention giving
rise to this appeal may be recapitulated as follows:

The detenu Gazi Khan @ Chotia was actively involved in illegal
and objectionable activities by organising a group of smugglers and
financing them in the activities of smuggling without directly involving
himself in such activities. However, the police of Jaisahner has opened
c a history sheet showing the indirect involvement of the detenu in such
smuggling activities. The modus operandi of the detenu is revealed in
the statements recorded under Section 108 of the Customs Act from a
number of smugglers who were apprehended in the course of smuggl-
ing. On 3.11.1986 the detenu has himself given a statement before the
D Customs Officer admitting his involvement in smuggling of ready-
made garments and bidis. He was suspected in Offence No. 32 dated
30.3.1988 as well in Offence No. 17 dated 17.4.88 under the provisions
of the Act as well under Section 25 of the Arms Act. But since no
evidence was available incriminating the detenu with those offences no
action could be taken. Further the detenu is said to have been involved
E along with his associates in certain criminal cases registered under the
provisions of the Indian Penal Code. The detaining authority on the
above materials placed before him has passed ihis impugned order.
The High Court before which he challenged the impugned order o.
detention on various grounds has dismissed the Writ Petition holding
that all the contentions did not merit consideration. Hence this
F appeal.

The learned counsel appearing on behalf of the appellant, raised
several contentions, the main thrust of which being that the represen-
tation made by the detenu was not decided within. a reasonable time
and hence the delay is fatal to the detention. This point has been taken
G even before the High Court. But the High Court accepting the expla-
nation given by the Deputy Superintendent of Police, Jaisalmer in his
additional affidavit filed on behalf of the respondents spumed that
plea observing:

"In the present case as from the facts mentioned in the
H additional affidavit and referred to above, it cannot be said
that there was undue lethargy or indifference."
, \ GAZ! KHAN v. STATE OF RAJASTIIAN (PANDIAN, J.]

Under Ground No. (d) of paragraph 16 of the Special Leave Petition,
835

a contention is raised with regard to the delay of disposal of the rep-
resentation stating that-
A

"the extraordinary delay of 27 days in consideration of rep-
resentation of the petitioner is sought to be explained by
mere ipse di.xii of the detaining authorities who merely rest 8
·y- content with the skeletal chronology of days taken allege-
dly by several authorities with copies of unexplained
sileuce about why actually several days as alleged by
authorities were taken to process and consider the re-

I presentation of petitioner."

Before this Court a reply is filed by the Deputy Superintendent c
of Police, Jaisalmer stating that he is "appointed as Officer Incharge
~
in this case" and that he is replying to the allegations made in the
Special Leave Petition with reference to the record connected with this
case. In paragraph 15(d) of his reply, it is averred that "there is no
delay in the consideration of representation of the petitioner." The D
same Deputy Superintendent of Police in an additional affidavit filed
before the High Court has sought to explain the delay stating that the
representation of the detenu was placed before the Assistant Secretary
..,. / on 19.6.1989 with a proposal that a report might be called from the
District Magistrate, Jaisalmer, who was the sponsoring authority, that
the District Magistrate who received the communication on 22.6.1989 E
forwarded his comments to the State Govermnent on 29.6.1989, that
the comments were received by the State Govermnent on 1. 7 .1989 and
were placed for perusal of the Assistant Secretary on 3.7.1989 and that
the Assistant Secretary after putting up a note incorporating the com·
L ments of the District Magistrate on the representation placed the same
for perusal to the Deputy Secretary on 9. 7 .1989 and thereafter on the F
~ recommendation of the Special Secretary (Home) the representation
was rejected on 11.7.1989.

A perusal of the above additional affidavit shows that the
Deputy Superintendent of Police speaks on behalf of the detaining
authority, namely, the State Govermnent as well the authorities who G
dealt with the representation, namely, the Assistant Secretary and the
>-. Special Secretary (Home Department). Finally, in regard to the delay
' in the disposal of the representation he states in para]._ of the said
affidavit thus:

" ..... The delay has occasioned not by lack of deligence H
836 SUPREME COURT REPORTS [1990] 2 S.C.R.

or promptness on the part of the party concerned but due
A
to unavoidable circumstances and for the reasons entirely
beyond the control of the Detaining Authority."

In this connection, we would like to point out that the main reply and
the additional affidavit before the High Court as well as the reply
B affidavit before this Court are filed only by the same Deputy
Superintendent of Police on behalf of the Respondents 1and2.

After the judgment was reserved, we after going through the
papers directed the matter to be reposted for further hearing. Accord-
ingly the matter was listed on 17.4.1990 on which date we asked the
learned counsel for the respondents to explain as to under what
c authority the Deputy Superintendent of Police has arrogated himself
to the knowledge of the entire file relating to the impugned order and
speaks for the detaining authority and other authorities who subse-
quently dealt with the file. The learned counsel took an adjournment
and has now filed an additional affidavit sworn by the Commissioner
D and Secretary (Home Department) dated 21.4.1990. In the present
additional affidavit no explanation is given to our query. The explana-
tion given by the Secretary in his affidavit for the complaint of delayed
disposal of the representation is as follows:

"That there was no inordinate delay in considering the re-
E presentation of the petitioner and the same was rejec,~d
after careful consideration."

We are terribly shocked and surprised to note that a police
officer who seems to have no connection whatsoever with this deten-
tion order and who had not at any relevant time personally dealt with
F the case has come forward to swear about the entire proceedings from
the beginning right up to the rejection of the representation including
the holding of the meeting of the Advisory Board on behalf of the
appropriate authority. This practice of allowing a police officer who
has not dealt with the case at any point of time at any level and who in
the very nature of the case could not have any personal knowledge of
G the proceedings, to swear the counter and reply affidavits on behalf of
the appropriate authorities should be highly deprecated and condem-
ned and the counter and reply affidavits sworn by such officer merit
nothing but rejection.

This Court on several occasions has expressed its views that in
H response to the Rule Nisi a counter affidavit should normally be filed
GA-ZI KHAN v. STATE OF RAJASTHAN [PANDIAN. J.J 837

by the detaining authority himself though it cannot be suggested as a
j rigid or inflexible rule applicable in all cases of detention under all
circumstances. However, when allegation of ma/a fide or abuse of
A

powers or personal bias is attnbuted to the detaining authority, the
said authority should himself swear to the counter affidavit. In the
absence of any such allegation in the petition a counter affidavit may
be sworn by a responsible officer who personally dealt with or proces- B
sed the case or by an officer duly authorised under the Rules of Busi-
ness of the Government concerned ..

A Constitution Bench of this Court in The State of Bombay v.
Purushottam Jog Naik, !1952] SCR 674 in which a similar question
. arose, the learned Judges answered as follows:
c
" . . . . . if the Home Secretary has the requisite means of
-..- knowledge, for example, if the Minister had told him that
he was satisfied or he had indicated satisfaction by his
conduct and act and the Home Secretary's affidavit was
regarded as sufficient in the particular case, then that D
would constitute legally sufficient proof. But whether that
would be enough in any given case, or whether the "best
evidence rule" should be applied in strictness in that
particular case, must necessarily depend upon its facts. In
the present case, there was the element that 57 cases were
dealt with in the course of 6 days and ~rders passed in all on E
one day. But we do not intend to enter into the merits. All
we desire to say is that if the learned Judges of the High
Court intended to lay down as a proposition of law that an
affidavit from the Minister in charge of the department is
indispensable in all such cases, then they went too far."
F
In Ranjit Dam v. State of West Bengal, [1972] 2 SCC 516 the
counter affidavit was filed by the Assistant Secretary, Home (Special)
Departmant. who was authorised to file it as the detaining authority
had since then been appointed as Secretary of the State Electricity
Board. This Court in that circumstance stated tbus:
G
"The reason given in this counter-affidavit for the District
Magistrate not making the affidavit himself does not
appear to be satisfactory. But as nothing turns on that fact
we need say no more about it for the present."

Sarkaria, J. in Shaik Hanifv. State of West Bengal, [1974] 1 SCC H
637 observed thus:
838 SUPREME COURT REPORTS [1990] 2 S.C.R.

"Since the Court is precluded from testing the subjective
A
satisfaction of the detaining authourity by objective stan-
dards, it is all the more desirable that in response to the
'
rule nisi the counter-affidavit on behalf of the State should
be sworn to by the District Magistrate or the authority on
whose subjective satisfaction the detention order under
B Section 3 was passed. If for-sufficient reason shown to the
satisfactiOn. of the Court, the affidavit of the person who
passed the order of detention under Section 3 cannot be
furnished, the counter-affidavit should be sworn by some
responsible officer who personally dealt with or processed
the case in the Government Secretariat or submitted it to
the Minister or other officer duly authorised under the
c rules of business framed by the Governor under Article 166
of the Constitution to pass orders on behalf of the Govern-
ment in such matters."

The learned Judge after referring to Ranjit Dam's case (albeit) and to
D J.N. Roy v. State of West Bengal, [1973] SCC (Cri) 123 stated as under:

"Nevertheless, the failure to furnish the counter-affidavit
of the Magistrate who passed the order of detention, is an
impropriety. In most cases, 'it may not be of much
consequence but in a few cases, for instance, where ma/a
. ,..
E fides or extraneous considerations are attributed to the '
Magistrate or the detaining authority, it may, taken in con-
junction with other circumstances, assume the shape of a
serious infirmity, leading the Court to declare the deten-
tion illegal."

F Having regard to the facts of that case wherein the Deputy Secretary
(Home) filed the counter instead of District Magistrate it was held that
the mere omission to file the affidavit by District Magistrate did not
vitiate the detention order.

Speaking for the Bench, Krishna Iyer, J. in Bhut Nath _Mete v.
G State of West Bengal, [1974J 1SCC645 at page 658 (para 21) has expres-
sed his considered view on this point as hereunder:

"True, we should have expected an affidavit from the
detaining authority but even that is felt too inconvenient
and a Deputy Secretary who merely peruses the records
H and swears •n affidavit in every case is the poor proxy. Why
GAZ! KHAN v. STATE OF RAJASTHAN [PANDIAN, J.J 839

is an affidavit then needed at all? The fact of subjective
A
( satisfaction, solemnly reached, considering relevant and
~- -
excluding irrelevant facts, sufficient in degree of danger
and certainty to warrant pre-emptive casting into prison, is
best made out by the detaining District Magistrate, not one
who professionally reads records and makes out a precis in
the form of an affidavit. The purpose is missed, going by B
the seriousness· of the matter, the proof is deficient, going
by ordinary rules of evidence, and the Court is denied the
benefit of the word of one who takes responsibility for the
action, if action has to be taken against the detainer later
...... for misuse. We are aware that in the exigencies of administ-
ration, an officer may be held up far away, engrossed in
other important work, thus being unavailable to swear an c
affidavit. The next best would then be the oath of one in
the Secretariat who officially is cognisant of or has
participated in the process of approval by Govemment-
not one who, long later, reads old files and gives its gist to
the Court. Mechanical means· are easy but not legitimate. D
We emphasize this infirmity because routine summaries of
files, marked as affidavits, appear in the returns to rule!
nisi, showing scant courtesy to the constitutional gravity ol
deprivation of civil liberty. In some cases, where a valid
reason for the District Magistrate's inability to swear
affidavits directly has been furnished, this Court has ac- E
cepted the concerned Deputy Secretary's affidavit. This
should, however, be the exception, not the rule."

Khanna, J. in Asgar Ali v. District Magistrate, Burdwan & Ors.,
[ 1974] 4 sec 527 while answering a contention that an affidavit by the
detaining authority was essential for sustaining the validity of the F
detention order observed as follows:

"Although normally the affidavit (Jf the person actually
making the detention order should be filed in a petition for
a writ of habeas corpus, the absence of such an affidavit
would not necessarily be fatal for the case of the respon- G
dents. It would indeed depend upon the nature of alle-
gations made by the detenu in the petition for determining
whether the absence of affidavit of the person making the
detention order introduces a fatal infirmity. In case an alle-
gation is made that the officer making the detention order
was actuated by some personal bias against the detenu in H
840 SUPREME COURT REPORTS [1990] 2 S.C.R.

making the detention order, the affidavit of the person
A
making the detention order would be essential for repelling
that allegation. Likewise, such an affidavit would have to
be filed in case serious allegations are made in the petition
showing that the order was ma/a fide or based upon some
extraneous considerations. In the absence of any such alle-
B gation in the petition, the fact that the affidavit filed on
behalf of the respondents is not that of the District Magis-
trate but that of the Deputy Secretary, Home (Special)
Department of the Government of West Bengal would not
by itself justify the quashing of the detention order."

c
In Suru Mallick v. State of West Bengal, [1975] 4 SCC 470, this Court -1
accepted the affidavit of the Deputy Secretary (Home) who dealt with
the matter as the District Magistrate was not available and pre-
occupied with some urgent business. In Guiab Mehra v. State of U.P.
& Ors., [1988] 1 SCR 126, a Station House Officer of Kydganj Police
Station filed the counter stating that District Magistrate had passed the
o detention order when the appellant was already in jail on the
apprehension that the appellant therein was likely to be released on
bail in the near future. Ray, J. speaking for the Bench while setting
aside the order of detention held thus:

"This clearly goes to show that the Sub-Inspector has ...
E arrogated to himself the knowledge about the subjective '
satisfaction of the District Magistrate on whom the power
is conferred by the Act. The District Magistrate, the
detaining authority in this case has not chosen to file his
affidavit. The affidavit-in-opposition filed by the Station
Officer of Police implies that he has access to the file of the
F District Magistrate or he influenced the decision of the
District Magistrate for making the detention order."

Again in State of Gujarat v. Sunil Fulchand Shah & Anr., (1988] 1 SCC
600, accepting a further affidavit of the Deputy Secretary (Home
Department), this Court did not attach much importance to the fact
G that the affidavit was not filed by the detaining authority personally.
However, the Court said:

"It is true that in a case where a point as mentioned above
arises the detaining authority should personally affirm on
oath the stand taken on his behalf, but it cannot be sug-
H gested as an inflexible rule applicable to all detention cases
irrespective of the circumstances."
GAZ! KHAN v. STATE OF RAJASTHAN [PANDIAN, J.] 841

Recently in Madan Lal Anand v. Union of India, [1990] 1 SCC 81
I
r Dutt, J. speaking for the Bench pointed out:
A
~-

"There can be no doubt that a deponent who has no
personal knowledge about any fact may, on the basis of
some other facts, make his submissions to the court. We do
not think that any importance should be attached to the B
said statement made by the deponent in the counter-
affidavit."

Thereafter the learned Judge has expressed his views that when there
is an allegation of mala fide or bias made against the detaining autho-
rity, then the detaining authority should himself swear to the counter-
affidavit. Ultimately having regard to the allegation made therein and c
to the fact that the Under Secretary to the Government has filed the
counter, the learned Judge pointed out:

"Merely because the detaining authority has not sworn an
affidavit, it will not in all circumstances be fatal to the D
sustenance of the order of detention."

As we have pointed out supra the reply affidavit and the addi-
tional affidavit before· the High Court as well as this Court are filed by
'(,. the Deputy Superintendent of Police who does not seem to have any
· connection whatsoever with the passing of the order or dealing with or E
processing the file at any point of time. In fact, the Deputy Superinten-
dent of Police could not have got any personal knowledge with the
passing of the order or its subsequent proceeding since the impugned
order has been passed by the State Government and the subsequent
k proceedings have been dealt with by the officials of the Secretariat.
Reverting to the facts of the case there is no explanation for the delay F
-~ _ from 3rd to 9th July 1989, i.e. for 7 days for the Assistant Secretary
.. merely to put up a note on the basis of the comments of the District
Magistrate. The present additional affidavit sworn to by the Commis-
sioner and Secretary on 21.4.1990 also does not whisper any explana-
tion as to why such a delay of 7 days had occurred at the hands of the
Assistant Secretary. G

The learned counsel appearing for the appellant in support of his
contention that the unexplained delay has vitiated the order has placed
reliance on a decision of this Court in Rama Dhondu Borade v. V.K.
Saraf, Commissioner of Police & Ors., [1989] 3 SCC 173 to which
decision one of us {Ratnavel Pandian, J.) was a party. In that decision H
842 SUPREME COURT REPORTS I1990] 2 S.C.R.
A after referring to various decisions of this Court including Smt. Shalini '
Soni v. Union of India, [1980] 4 SCC 544 the following proposition was _,,_
laid down:

"The detenu has an independent constitutional right to
make his representation under Article 22(5) of the Con-
B stitution of India. Correspondingly, there is a constitu-
tional mandate commanding the concerned authority to
whom the detenu forwards this representation questioning
the correctness of the detention order clamped upon him
and requesting for his release, to consider the said re-
presentation within reasonable dispatch and to dispose the
c 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 render-
ing breach would defeat the very concept of liberty-the
highly cherished right-which is enshrined in Article 21 of
D the Constitution."

However, in the same decision it has been pointed out that "what is
reasonable dispatch depends on the facts and circumstances of each
case and no hard and fast rule can be laid in that regard." We have
already expressed that the affidavit filed by the Deputy Superinten-
E dent of Police is not worth consideration and there is absolutely no
explanation for the delay caused at the hands of the Assistant
Secretary.

Therefore, for the reasons stated above,. we set aside the
impugned order of detention on the ground that there is a breach of
F constitutional obligation as enshrined under Article 22(5) of the Con-
stitution of India. In the result, the appeal is allowed and the detenu is
directe~ to be set at liberty forthwith.

N.P.V. Appeal allowed.