Holding

An unexplained, inordinate delay in deciding a representation under Article 22(5) renders the preventive detention order void.

Summary

The petitioner was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. He filed a representation on 27 September 1979, which the Government received on 28 September but rejected only on 3 November, creating a delay of over a month. The petitioner challenged the detention under Article 32, arguing that the unexplained delay violated Article 22(5) of the Constitution, which requires an expeditious decision on any representation. The Supreme Court held that any inordinate, unexplained delay in deciding a representation vitiates the detention, emphasizing that the Government must consider the representation independently of the Advisory Board and cannot wait for the Board’s opinion. Consequently, the Court found the delay unreasonable, set aside the detention order, and ordered the petitioner’s release.

Issues considered

Whether an unexplained delay in deciding a representation under Article 22(5) invalidates a preventive detention order.
Whether the appropriate Government must consider the representation independently of the Advisory Board.
Whether the delay of about one month and five days in the present case constitutes an inordinate and unexplained delay.

Legislation cited

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

Subjects

preventive detentionArticle 22(5)representationdelayconstitutional lawforeign exchange actadvisory boardexpeditious consideration

Judgment

869

PABITRA N. RANA A
v.
UNION OF INDIA AND ORS.
January 30, 1980
[S. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JJ.] B
Preventive Detention under stk:tion 3(1) of the (7onservation of Foreign
Exchange and Prevention of Sniugg/ing Activities Act, 1974-Inordinate and

If
u1W!xplai11cd delay in deciding the representation filed by thei, detenu violateS'
_ Article 22(5) of the Constitution and hence vitiates detention. ,

Allowing the Writ Petition, the Court c
HELD : Under clauses 4 and 5 of Article 22 of the Constitution tho detenu
has a dual right viz.

(i) to have the representation, irrespective of the length of detention,
considered by the appropriate Government; and
(ii) to have the representation considered by the Board duly constituted D
under the concuned Act. [870 E-F]
)
Further, the constitutional right to file a representation to the Government
carries with it impliedly a right that the representation must be disposed of as
quickly as possible and any unexplained delay would amount to a violt'ltion of
constitutional guarantee contained in Article 22(5). [870 F-G]
'· E
The obligation of the appropriate detaining authority to take 0. decision on
the representation filed by the detenu is quite apart and distinct from its obliga-
tion to constitute. a Board and to send the representation to it. The detaining
~- ~uthdor~t~ is n?th entitlhed to wait f~brl Ihde opinio[n o! theHBo ard Abu] t has to take
' ds ecmon wit out t e 1east pOSSI e e1ay. 87 0 0 - , 87 1

Pankaj Kumar Chakraborty & Ors. v. State of West Bengal [1970] I SCR F
543 and Narendra Purushotam Umrao ietc. v. B. B. Gujral and Ors., [1979]
2 SCR 715; relied on.

CRIMINAL ORJGINAL JURISDICTION : Writ Petition (Criminal) No.
1376 of 1979. G
(Under Article 32 of the Constitution).
A. K. Sen and Harjinder Singh for the Petitioner.
U. R. Lalit and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
H
FAZAL Au, J.-This Writ Petition has been filed with a pljyer
' . that an order of detention passed against the petitioner on the 7th
870 SUPREME COURT REPORTS [1980] 2 S.C.R.

September, 1979, under s. 3 (1) of the Conservation of Foreign Ex-
change and Prevention of Smuggling Activities Act, 1974 be quashed.
After the order was served on the detoou he made a representation on
'
the 27th September, 1979 to the Govt. who received it on the 28th Sep-
tember, 1979. In support of the Rule Mr. A. K. Sen has raised
a number of points, but in view of one of them which is to the effect
that there has been an inordinate and unexplained delay on the part
of the detaining authority in deciding the representation and that !he
detention is therefore vitiated, we need not go into the other points.
On the question of delay the petitioner had expressly taken a plea
in para 11 of the petition but in their reply the respondents have
not at all explained or detailed any reason why there was inorrlinate
c delay in disposing of the representation submitted by the detenu
to the detaining authority. The admitted position is that the repre-
sentation was received by the Government on the 28th September,
1979 and it was rejected on 3rd November, 1979, that is to say,
after about one month and five days of the receipt. It is now well
D settled that any unexplained delay in peciding the representation filed
by the detenu amounts to a clear violation of Art. 22(5) of the
Constitution of India and is sufficient to vitiate the detention. Our
attention was drawn by the counsel for the petitioner to a recent
decision of this Court in Narendra Purushotam Umrao etc.. v. B. B.
Gujral & Ors.(') where this Court while relying on an earlier
E decision of this Court in Pankaj Kumar ChakrabortY, & Ors. v. State
of West Bengal(') pointed out that under Clauses 4 and 5 of Art.
22 of the Constitution the detcnu has a dual right, viz.,

1. to have the representation, irrespective of the length
of detention, considered by the appropriate Govern-
F ment, and

2. to have the representation considered by the Board
duly constituted under the concerned Act.

We might further mention that the constitutional right to file a repre-
G sentation to the Government carries with it impliedly a right that the
representation must be disposed of as quickly as possible and ilny
unexplained delay would amount to a violation of the constitutional
guarantee contained in Art. 22<5). This Court has also pointed
out that the obligation of the appropriate detaining authority to take
a decision on the representation filed by the detenu is quite apart

(l) [1979] 2 S.C.R. 315.
(2) [1970] 1 S.C.R. 54?,

-'---·,=~
PAillTRA N. RANA v. UNION (Fazal Ali, J.) 8 71

and distinct from its obligation to constitute a Board and to send A
the representation to it. The detaining authority is not entitled to
wait for the opinion of the Board but has to take its decision without
the least possible delay. In Writ Petition No. 246 of 1969 decided
-0n September 10, 1969 this Court observed as follows :
"lt is iniplicit in the language of Art. 22 that the appro- B
priate Government, while discharging its puty to consider
the representation, cannot depend upon the views of the
Board on such representation. It has to consider the repre-
sentation on its own without being influenced by any such
view of the Board. There was, therefore, no reason for the
Government to wait for considering the petitioner's repre- c
sentation until it had received tl1e report of the Advisory
Board. As laid down in Sk. Abdul Karim & Ors. v. State
of West Bengal, (supra) the obligation of the appropriate
Government under Art. 22(5) is to consider the representa-
tion made by the detenu as expeditiously as possible. The
consideration by the Government of such representation has D
to be, as aforesaid i'ndependent of any opinion which may
be expressed by the Advisory Board.
The fact that Art. 22 ( 5) enjoins upon the detaining
authority to affond to tl1e detenu the earliest opportunity to
make a representation must implicitly mean that such re- E
presentation must, when made, considered and disposed of as
expeditiously as possible, otherwise, it is obvious that th~
obligation to furnish the earliest opportunity to make a
representation loses both its purpose and meaning."

The observations extracted above clearly show that the repre- F
sentation must be consiPered by the Government as expeditiously as
possible. Mr. Lalit submitted that the delay in deciding the repre-
sentation was due to tlle fact tlmt the representation had to pass
through various channels and departments before the Government
was in a position to decide it. In the first place no such facts have
been pleaded in the reply filed by the respondents and, therefore, G
we cannot entertain the grounds now urged by the e-0uru;el for the
Union for the first time in the arguments before us. Even so it
ilppears that at the most the detaiiiliig authority had forwaooed the
representation to the Revenue Intelligence whose comments were
received on 16-10-79. Thereafter there was absolutely no
justification for any delay in taking a decision on the merit of thi:l H
representation. Even if we assume that there was some reasonable
explanation for the delay from 28th September, 1979 to 16th Octo-
872 SUPREME COURT REPORTS [1980] 2 S.C.R.

A ber, 1979, there appears to be no good explanation whatsoever for
the delay from 16th October, 1979 !O 2nd November, 1979 when
the representation was rejected by tlj.e Government. It is manifest
that th_e Government was not obliged to waif for the decision of the
Board because it had to consider the representation independently
of what the Board might say. In this view of th0 matter, we are
B satisfied that there has been unreasonable delay in deciding the
representation filed by the detenu and that by itself is sufficient to
render the detention void. For tliese reasons we allow this petition, .)
set aside the order of detention and direct that the detcnu be released ....
fortliwith.

c
V.D.K. Petition allowed.

MGJPF-91 SCI/80-2,500-24-10-80