Holding

A detention is unconstitutional if the State fails to decide the detenu's representation within a reasonable time, and the Supreme Court may entertain such a point even if it was not raised before the High Court.

Summary

Harish Pahwa was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on 16 May 1980. He filed a representation against his detention on 3 June 1980, which the Uttar Pradesh State Government received on 4 June but failed to decide promptly, finally rejecting it on 24 June 1980 after a series of delays and unexplained transfers. The High Court dismissed his habeas corpus petition, and he appealed to the Supreme Court, raising a new plea that the unreasonable delay in disposing of his representation invalidated the detention. The Court held that a point concerning delay can be raised before it even if not raised before the High Court, provided the record contains all material. It further observed that the State has a duty to consider representations of detenus expeditiously, and the unexplained delays amounted to a violation of the detenu's liberty, rendering the detention unconstitutional. Consequently, the appeal was allowed and the appellant was ordered to be set at liberty.

Issues considered

Whether a new point regarding the delay in deciding a detenu's representation can be raised before the Supreme Court despite not being raised before the High Court.
Whether the failure to dispose of the representation within a reasonable time makes the detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 unconstitutional.
What duty does the State have in dealing with representations of persons detained without trial?

Legislation cited

Subjects

detentionhabeas corpusrepresentationdelayforeign exchange actconstitutional lawlibertyexpeditious disposal

Judgment

276

A HARISH PAHWA
v.
STATE OF UTTAR PRADESH & ORS.

March 18, 1981
B
[A.D. KOSHAL AND BAHARUL ISLAM, JJ.]

Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974-Detenu assailing detention order-Failure of State Government to
dispose of representation within reasonable time-Point not taken before High
c Court-Whether can be raised in Supreme Court-Representations of detenus to be
dealt with cominuously and disposed of expeditiously-Duty of State Government.

The appellant who was detained by an order dated 16th May, 1980, made a
representation dated 3rd June, 1980 from jail, which was received by the State
Government on 4th June, 1980. Comments were called for from the Customs
Authorities on the 6th of June, 1980 and were received on 13th June, 1980. On
D the 17th June, 1980, the State Government referred the representation to its Law
Department for opinion which was furnished on the 19th June, 1980. The
representation was rejected by an order dated 24th June, 1980, which was com-
municated to the jail authorities two days later ..

The appellant's writ petition having been dismissed by the High Court, he
came in appeal to this Court raising a new plea that the representation made
E by him against the detention to the State Government was not decided within a
reasonable time and that the delay was fatal to the detention.

Allowing the appeal,

HELD : I. In matters of this kind where all the material necessary for the
F determination of a new point is available on the record, and having regard to the
importance of the matter, this Court can entertain the point even if it had not
been raised before the High Court. [277 F-G]

2. The order of detention declared unconstitutional and appellant directed
to be set at liberty. [279 Fl

G 3. On numerous earlier occasions this Court has made it clear that it does
not look with equanimity upon delays in considering the representations of
detenus. Where the liberty of a person is involved it is the duty of the State
to determine his representations with the utmost expedition and deal with it
continuously until a final decision is taken and communicated to the detenu.
[278 G-H]
H
In the instant case no explanation had been given by the Government, as to
why no action was taken on the representation of the detenu on 4th, 5th and
HARISH v. U.P. STATE (Kasha! J.) 277

25th of June 1980 and what consideration was given· from 13th June, 1980 to A
16th June, 1980 and why the file had to travel from table to table before reaching
the Chief Minister, who was the only authority to decide the representation.
y [278 E-F]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 183
of 1981.
B
Appeal by special leave from the Judgment and Order
dated 30.1.1981 of the High Court of Allahabad in Civil Misc.
Habeas Corpus Writ No. 6343/80 .

R.K. Garg, Naresh K. Sharma and Mukul Mudgal for the
Appellant.
c
R.K. Bhatt for Respondent No. 1

Hardayal Hardy and Miss A. Subhashini for the Respondents.
0
The Judgment of the Court was delivered by

KosHAL, J. This is an appeal by one Harish Pahwa against the
judgment dated 30th January, 1981 of the High Court of Allahabad

, dismissing a petition presented by the appellant to it under Article 226
of the Constitution of India with a prayer that a writ of habeas
corpus be issued against the State of Uttar Pradesh and Union
of India in as much as the detention of the appellant by them
was not in accordance with law.
E

2. The only point that has been raised before us by Mr.
Garg appearing on behalf of the appellant is that the representation F
made by him against his detention to the State Government
was not decided within a reasnoable time and that the delay
is fatal to the detention. This point was no doubt not taken
before the High Court, but in view of its importance and the
fact that all the material necessary for its 'determination is available
-0n the record, we have allowed it to be raised before us and have G
overruled a preliminary objection taken by the State to the effect
that it should not be entertained.

3. In order to decide the point we may refer to certain
admitted facts. The order of detention is dated 16th May, 1980 and H
the representation made by the appellant against it from Varanasi
Jail bears date the 3rd of June, 1980. The.State Government received
278 SUPREME COURT REPORTS [1981] 3 S.C.R.

A the representation on the 4th June, 1980 but for two days no action
was taken in connection 'with it. On the 6th of June, 1980 comments
were called for from the Customs authorities with regard to the
allegations made ··in the representation and such comments were
received by the State Government on the 13th June, 1980. On the
17th of June, 1980, the State Government referred the representation
B to its Law Department for its opinion which was furnished on the
19th of June, 1980 The rejection of the representation was ordered
on the 24th of June, 1980 and it was communicated to the jail
authorities two days later.

The case of the State is that the representation was with the
c Customs authorities who were formulating their comments from 7th
June, 1980 to the 12th of June, 1980 and that the representation was
under the consideration of the Government for four days from 13th
June, 1980 to 16th June, 1980, of its Law Department from 17th
June, 1980 to 19th June, 1980 and then again under its own considera-
tion for six days from 19th June, 1980 to 24th June, 1980.
D
In our opinion, the manner in which the representation made
by the appellant has been dealt with reveals a sorry state of affairs
in the matter of consideration of representations made by persons
detained without trial. There is no explanation at all as to why
no action was taken in reference to the representation on 4th, 5th
E
and 25th of June, 1980. It is also not clear what consideration was
given by the Government to the representation from 13th June, 1980
to 16th June, 1980 when we find that it culminated only in a

F
reference to the Law Department, n:ir it is apparent why the Law
Department had to be consulted at all. Again, we fail to understand
why the representation had to travel from table to :table for six days
before reaching the Chief Minister wh:> was the only authority to
decide the representation. We may make it clear, as we have done
on numerous earlier occasions, that this Court does not look with
1
'
equanimity upon such delays when the liberty of a person is
concerned. Calling comments from other departments, seeking
the opinion of Secretary after Secretary and allowing the representa-
G tion to lie without being attended to is not the type of action which
the State is expected to take in a matter of such vital import. We
would emphasise that it is the duty of the State to proceed to
determine representations of the character above mentioned with
the utmost expedition, which means that the matter must be taken
H up for consideration as soon as such a representation is received and
dealt with continuously (unless it is absolutely necessary to wait for
HARISH v. U.P. STATE (Kasha!, J.) 279

some assistance in connection with it ) until a final decision is taken A
and communicated to the detenu. This not having been done in the
y present case we have no option but to declare the detention
unconstitutional. We order accordingly, allow the appeal and
direct that the appellant be set at liberty forthwith.

B

N.V.K. Appeal allowed.