Holding

An unexplained delay in considering a detenu's representation violates Article 22(5) and renders the detention order invalid.

Summary

Mahesh Kumar Chauhan was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. He filed a representation challenging his detention on 18‑21 August 1989, which was forwarded to the sponsoring authority on 25 August and the authority’s comments were received only on 11 September. The representation was rejected on 19 September, and Chauhan contended that the delay in considering his representation violated the mandatory requirement of Article 22(5) of the Constitution. The Delhi High Court dismissed his writ petition, holding that the delay was not fatal. On appeal, the Supreme Court examined the constitutional mandate that a detenu’s representation must be considered and disposed of as expeditiously as possible and that any unexplained delay vitiates the detention order. Relying on a series of precedents, the Court found that the delay was unexplained and therefore violative of Article 22(5). Consequently, the Court set aside the High Court’s order, allowed the appeal and directed that Chauhan be released.

Issues considered

Whether an unexplained delay in the disposal of a detenu's representation under Article 22(5) invalidates the detention order.
Whether the seriousness of the allegations in the detention order can justify a breach of the procedural requirement of expeditious disposal of the representation.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)

Subjects

preventive detentionrepresentationArticle 22(5)delayconstitutional lawforeign exchange actdetention orderpersonal liberty

Judgment

t MARESH KUMAR CHAUHAN @ BANTI
v.
UNION OF INDIA AND ORS.

MAY 2, 1990
A

[S. RA1NAVEL PANDIAN AND K. JAYACHANDRA B
REDDY, JJ.]
---: Preventive Detention: Conservation of Foreign Exchang~ and
Prevention of Smuggling Activities Act, 1974: Section 3(1)-Detention

. Order-Representation of deten~Expeditious disposal of-Necessity
for-Explanation of delay by appropriate authority-Need for-Undue
and unexplained delay-Whether violative of Article 22(5) of the
Constitution.
c

l The appellant filed a writ petition before the High Court challeng-
ing the detention order passed against him under Section 3(1) of the
Conservation of Foreign Exchange and Prevention of Smuggling D
Activities Act, 1974, alleging that his representation was dealt with in a •
cavalier manner, resulting in undue delay in its disposal.

Refuting the allegation, it was contended on behalf of the respon-
dents that the representation, received on 23.8.89, was forwarded to the
t sponsoring authority for comments on 25.8.89 and the comments were
received only on 11.9.89, and orders rejecting the representation were
E

issued on 19.9.89, after obtaining the orders of the appropriate
authorities. The High Conrt rejected the petition as devoid of any
merit.

In the appeal before this Court, on behalf of the appellant it was F
) contended that the offices of the detaining authority and the sponsoring
\ authority were within the same city and there was absolutely no expla-
nation for the delay on the part of the sponsoring authority in sendllig
the comments till 11.9.89, though the representation dated 18.8.89 was
sent for comments to the said authority even on 25.8.89, thus vitiating
the order of detention, and that in view of the inordinate and unexp- G
lained delay in considering and disposing of the representation, the
continued detention of the appellant was impermissible and unconstitu-
}, tional, as being violative of the mandatory provisions of Article 22(5) of
the Constitution oflndia.

Allowing the appeal, this Court, H

979
980 SUPREME COURT REPORTS (1990] 2 S.C.R.

A HELD: I. I A representation of a detenu whose liberty is In peril
and deprived should be considered and disposed of as expeditiously as
possible; otherwise the continued detention will render itself impermis-
sible and invalid as being violative of the constitutional obligation
enshrined in Article 22(5) of the Constitution and if any delay is occured
in the disposal of a representation, such delay should be explained by
B
the appropriate authority to the satisfaction of the Court. [985A-B]

·Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police &
Ors., [I989] 3 SCC 173; Khairul Haque v. State of West Bengal, [I969]
II Supreme Court Weekly Reports 529; Jayanarayan Sukul v. State of
West Bengal, [I979] I SCC 2I9; Shall< Hanif & Ors. v. State of W.R., •
C (1974] I SCC 637; Raisuddin v. State of U.P., [I983) 4 SCC 537 and
Frances Coralie Mullin v. W.C. Khambra and Ors., [!980) 2 SCC 275,
relied on. J<

I .2 Inspite of the weighty pronouncements, of Ibis Court making
D the legal position clear, it is still disquieting to note that on many occa-
sion the appropriate authorities cause considerable delay in considering
and disposing of representations and also exhibit culpable indifference
in explaining such delay. In case the appropriate authority is unable
to explain personally the delay at various stages, then it will be
desirable-indeed appropriate-for the concerned authority or auth- ~
I
E orities at whose hands the delay has occured to individually explain
such delay. [985C-D]

I .3 The Court, in the absence of any explanation, cannot wink at
or skip over or ignore such an infringement of the constitutional
mandate and uphold an order of detention merely on the ground that
F
the enormity of allegations made in the grounds of detention is of very f
serious nature, as in the present case. [985D-El
1
I

Prabhu Dayal Deorah v. The District Magistrate, Kamrup &
Ors., [I974] I SCC I03, relied on.

G In the instant case, except merely mentioning that the representa-
tion was forwarded to the concerned sponsoring authority on 25.8.89
and the comments from the sponsoring authority were received by the
Department on ll.9.89, there is absolutely no explanation as to why
such a delay had occured. This undue and unexplained delay is in
violation of the constitutional obligation enshrined in Article 22( 5) of
H the Constitution oflndb.rendering the order invalid. [986B-C)
j• M.K. CHAUHAN v. U.0.l. [PANDIAN, J.} 981

)
Rama Dhondu Borade v, V. K. Saraf, Commissioner of Police & A
Ors., [1989] 3 sec 173, relied on.
~-

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 302 of 1990.

From the Judgment and Order dated 29.1.1990 of the Delhi High B
Court in Cr!. Writ Petition No. 657 of 1989.
~
Harjinder Singh and R.N. Joshi for the Appellant.

N.S. Hegde, Additional Solicitor General and Udai Lalit for the
- I''
Respondents.
c
The Judgment of the Court was delivered by
l
S. RATNAVEL PANDIAN, J. Leave granted.

This appeal is directed by the detenu, Mahesh Kumar Chauhan D
@Banti questioning the correctness of the judgment made in Criminal
Writ Petition No. 657/89 by the High Court of Delhi dismissing the
petition as devoid of any merit. The above Writ Petition out of which
this present appeal has arisen was filed by the appellant, Mahesh
t Kumar Chauhan against the order of detention dated 13.7.1989
clamped upon him by the first respondent, Union of India in exercise E
of the powers conferred by Section 3(1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 {herein-

- after referred to as the 'Act') with a view to preventing the detenu
from engaging in transporting and concealing smuggled goods and
dealing in smuggled goods otherwise than by engaging in keeping
f· smuggled goods. F
\ The entire facts of the case are well set out in the grounds of
detention and, therefore, we think that it is not necessary to reiterate
the same.

Mr. Harjinder Singh, learned counsel appearing on behalf of the G
appellant raised a variety of contentions, one of which being that there
/'-. is an inordinate and unexplained delay in considering and disposing of
the representation of the detenu dated 18.8.89 and as such the con-
tinued detention of the appellant is impermissible and unconstitutional
as being violative of the mandatory provisions of Article 22(5) of the
Constitution of India. H
982 SUPREME COURT REPORTS [1990] 2 S.C.R.

In the counter affidavit filed on behalf of the respondent before \
A
the High Court, the declarant namely, Joint Secretary, Department of
Revenue, Ministry of Finance while refuting the allegation of the
appellant that his representation has been dealt with in 'cavalier
manner' has stated that the petitioner has made his representation on
21.8. 1989 and not on 18.8.1989 as alleged by the appellant and that it
B was received in the office of his Department on 23 .8 .89 and the same
was forwarded to the concerned sponsoring authority on 25.8.1989.
The Sponsoring Authority sent his comments only on 11.9.1989.
Thereafter, the representation along with the comments was processed
and put up before the Ministry of State for Revenue, who considered
-
and rejected the same on 15 .9 .1989 subject to the approval of the
Finance Minister. On 18.9.89 the file was received back from the
c Finance Minister's office and the memorandum was issued on 19.9.89
rejecting the representation. Mr. Harjinder Singh submitted that the j
offices of the. detaining authority and the sponsoring authority are
within the metropolis of Delhi and that there is absolutely no explana-
tion for the delay occasioned on the part of the sponsoring authority in
D sending his comments till 11.9.1989 though the representation was sent
for comments to the said authority even on 25.8.1989 and that this
considerable delay at the hands of the sponsoring authority stands
unexplained vitiating the order of detention.

E
In support of the above contention, he placed much reliance on
the decision of this Court in Rama Dhondu Borade v. V.K. Saraf, "' 1

Commissioner of Police & Ors., [1989] 3 SCC 173 to which one of us
(Ratnavel Pandian, J.) was a party. In the above cited decision, this
Court after referring to the dictum laid down in Smt. Shalini Soni v.
Union of India, [1980] 4 SCC 544 and some other decisions of this
Court dealing with the similar questions of delayed disposal of rep-
F resentation, has laid down the following proposition of law:

"The detenu has an independent constitutional right to
make his representation under Article 22(5) of the Con-
stitution of India. Correspondingly, there is a constitu-
tional mandate commanding the concerned authority to
G whom the detenu forwards his representation questioning
the correctness of the detention order clamped upon him
and requesting for his release, to consider the said rep- ,j,
resentation within reasonable dispatch and to dispose the
same as expeditiously as possible. This constitutional
requirement must be satisfied with respect but if this con-
H stitutional imperative is observed in breach, it would
M.K. CHAUHAN v. U.0.I. [PANDIAN, J.) 983
.,1
amount to negation of the constitutional obligation render-
! A
_i ing the continued detention constitutionally impermissible
and illegal, since such a breach would defeat the very-
concept of liberty-the highly cherished right-which is
enshrined in Article 21 of the Constitution."

However, in the same decision, it has been pointed out "What is B
reasonable dispatch depends on the facts and circumstances of each
~
case and no hard and fast rule can be laid in that regard."

We hasten to say in this connection that inspite of the fact this
Court in a series of decisions has repeatedly and consistently laid down
~
the rule in precise and clear terms that all the procedural safeguards
prescribed in nuder Article 22(5) of the Constitution of India should be
c
. scrupulously and strictly observed one of which as ingrained in our
t system of judicial interpretation, being that the detenu shall be
afforded an earliest opportunity ofmaking a representation against the
validity of the order of detention clamped upon him and_ that represen-
tation should be considered and disposed of as expeditiously as D
possible. ·

How far this Court has seriously viewed the culpable suppine
indifference, callousness and recalcitrant attitude on ihe part of the
r appropriate authorities who while dealing with the representations at
·various stages and disposing of the same cause considerable delay is E
prismatically reflected with enhanced intensity through a plethora of
pronouncements of this apex Court. We may appositely refer to a few.

- Shelat, J. in Khairul Haque v. State of West Bengal, Writ Petition
No. 246 of 1969 decided on 10.9.69reported in 1969 II Supreme Court
f-- Weekly Reports 529 after referring two earlier decisions in Sk, Abdul F
Karim and Others v. State of West Bengal, [1960] 1SCC433 and Durga
\ Show and Ors. v. State of West Bengal; [1970] 3 SClC 696 has observed
thus:

"The fa~t that Art. 22(5) enioms upon the detaining
authority to afford to the detenu the earliest opportunity to G
make a representation must implicitly mean that such rep-
resentation must, when made, be Considered and disposed
of as expeditiously as possible, otherwise, it is obvious that
the obligation to furnish the earliest opportunity to make a
representation loses both its purpose and meaning".
(emphasis supplied) H
,
984 SUPREME COURT REPORTS (1990) 2 S.C.R.
-

A Constitution Bench of this Court in Jayanarayan Sukulv. State
A
of West Bengal, [ 1979] 1 SCC 219 has highly depricated the conduct of \
appropriate authorities in unduly and unreasonably delaying the con-
sideration and disposal of a representation and stated as follows:

"The reason for immediate consideration of the represen-
B tation is too obvious to be stressed. The personal liberty of
a person is at stake. Any delay would not only be an
irresponsible act on the part of the appropriate authority but
also unconstitutional because the Constitution enshrines the
fundamental right of a detenu to have his representation
considered and it is imperative that when the liberty of a
person is in peril immediate action should be taken by the
.c relevant authorities."
(emphasis supplied)
. I J.
,Sar_kl!!ia;IJ. in Shaik Hanif & Ors. v. State ofW.B., [1974] 1 SCC
637 has expressed as follows:
D
"It is the duty of the Court to see that the efficacy of the
limited, yet crucial, safeguards provided in the law of pre-
ventive detention is not lost in mechanical routine, dull
casualness and chill indifference on the part of the authori-
ties entrusted with their application. ... I
E
I In Raisuddin v. State of U.P., [1983] 4 SCC537, it is pointed out,

" .......... if on such examination, it is found that there
was any remissness, indifference or avoidable delay on the
part of the detaining authority/State·Govemment in deal-
F ing with the representation, the Court will undoubtedly
treat it as a factor vitiating the continued detention of the
detenu .......... "

Chinnappa Reddy, J. in Frances Coralie Mullin v. W. C.
Khambra and Others, [ 1980] 2 SCC 275 has expressed his view saying:
G
" .......... No allowance can be made for lathgargic
indifference. No allowance can be made for needless
procrastination."

We do not like to swell this judgment by recapitulating all the pro-
H nouncements of this Court on this point.
M.K. CHAUHAN. v. U.0.1. [PANDIAN. J}_:_::- ---· 985

Now the unchallengeable legal proposition that emerges from a·
host of decisions, a few of which we have referred to above, is that a A
representation of a detenu who~~- %erty is in peril and deprived ·
should be considered a..':•· dis!Juse.; > as expeditiously as possible;
otherwise the continued det~ation will render itself impermissible and
invalid as being violative of the constitutional obligation enshrined in
Article 22(5) of the Constitution and if any delay is occured in the B
disposal of.a representation, such delay should be explained by the
appropriate authority_to the satisfaction of the Court.
--- -- - .
Inspite of the weighty pronouncements, of this Court making the
legal position clear, it is still disquiting to note that on many occasions
the appropriate authorities cause considerable delay in considering
and disposing of representations and also exhibit culpable indifference c
in explaining such delay. We feel that in case the appropriate authority
is unable to explain personally the delay at various stages, then it will
be desirable~indeed .appropriate-for the· concerned· authority or
authorities at who\c hanc.Is the delay ha\ occun.:d f;~ i11divid1ially 1·xp
lain such delay. · · ·- I>

The next question is should.or can.the Court in the absence of
any explanation wink at or skip over or ignore such an infringement of
the constitutional mandate and uphold an order of detention merely
on the ground that the enormity of allegations made in the grounds of
detention is of very serious nature as in the. present case? Our.answer E
would be 'Not at all'. · ··· ·

In this ronnection, it will be relevant to make reference to the
view expressed by Mathew, J. speaking for the majority in Prabhu
Dayal Deorah v. The District Magistrate, Kamrup and Others, [1974) 1
sec 103 which is as follows: F

"We say and we think it is necessary to repeat, that the
· - gravity of the evil to the community resulting from· anti-
social activities can never furnish an adequate reason for
invading the personal liberty of a citizen, except in accor-
dance with the procedure established by the Constitution G
and the laws. The history of personal liberty is largely the
history of insistence on observance of procedure. And
observance of procedure has been the bastiori against
wanton assaults on personal liberty over the years. Under
our Constitution, the only guarantee of personal liberty for
a person is that he shall not be deprived of it except in H
986 SUPREME COURT REPORTS (1990] 2 S.C.R.

A accordance with the procedure established by law." \
Reverting to the facts of the present case as submitted by the
·-
learned counsel, except merely mentioning that the representation was
forwarded to the concerned sponsoring authority on 25.8.1989 and the
B comments from the sponsoring authority was received by the Depart-
ment on 11.9.1989, there is absolutely no explanation as to why such a
delay had occured. Therefore, in the light of the proposition laid down >-
in Rama Dhondu Borade's case (albeit), we have no other option
except to allow this appeal on the ground that this undue and unexp-
lained delay is in violation of the constitutional obligation enshrined in
Article 22(5) of the Co!lstitution of India rendering the impugned -'i. _
C order invalid.

For the foregoing reasons, we set aside the order of the High .J
Court, allow the appeal and direct the detenu to be set at liberty
forthwith, unless his detention is required for some other cause.
D N.P.V. Appeal allowed.

-