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1987 DIGILAW 221 (MAD)

Hyder Ali v. State of Tamil Nadu

1987-07-28

DAVID ANNOUSSAMY, RATNAVEL PANDIAN

body1987
JUDGMENT Ratnavel Pandian, J.: This writ petition is filed by one Hyder Ali under Art.226 of the Constitution of India seeking the issuance of a writ of habeas corpus quashing the impugned order of detention, dated 9.5.1986 passed by the Government of Tamil Nadu, the first respondent and setting the detenu Ibrahimsa alias Uthaman Labbai, son of Sadakathullah, at liberty. The petitioner is the brother of the said detenu. 2. The impugned order of detention has been made by the first respondent in exercise of the powers conferred by Sec.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) (hereinafter referred to as the Act) with a view to preventing the detenu from smuggling goods. - 3. The facts of the case are well set out in the grounds of detention and we think it is not necessary for us to reiterate the same in this order. It may be noted here that the second respondent, viz., the Union of India, has made the declaration under Sec.9(1) of the Act on 10.12.1986. 4. Though in challenging the validity of the order of detention several contentions have been raised in the affidavit filed in support of the writ petition, Mr.Abdul Kareem, learned counsel appearing for the writ petitioner, has confined his argument only on one point, viz., that considerable time has elapsed between the date of the incident, i.e., 21.9.1985, and the date of the passing of the order of detention i.e., 9.5.1986, and further there is also delay in securing the detenu on 19.11.1986 and that this long lapse of time has not been satisfactorily explained, and as such the order of detention is vitiated. 5. This contention is raised in paragraph 3(b) and (d) of the petitioner's affidavit, which reads thus: “(b) There is a delay of seven and half months between the alleged incident and the date of the order of detention. The delay is illegal and therefore, the detention is illegal. (d) There is delay of seven months between the date of the order of detention and the date of detention and therefore the detention is illegal.” 6. By way of reply to the above contentions of the petitioner, the first respondent has given the following explanations as to why the delay had occasioned, in paragraphs 4 and 6 of the counter, which read thus: “4. By way of reply to the above contentions of the petitioner, the first respondent has given the following explanations as to why the delay had occasioned, in paragraphs 4 and 6 of the counter, which read thus: “4. Regarding the averment made in paragraph 3(b) of the affidavit, it is submitted that the proposal from the Customs department was received by this respondent on 25.2.1986 along with the relevant documents and materials. This respondent was having correspondence with the Customs Department for making such clarifications and after getting the clarification from the Customs department the detention order was passed on 9.5.1987. 6. As against the averment made in paragraph 3(d) of the affidavit, this respondent begs to submit that the detenu was apprehended on 19.11.1986 since he was absconding. Assistance of the Police department through the Commissioner of Police, Madras, was sought for by this respondent in securing the detenu and finally this detenu was arrested on 19.11.1986 on which date he was detained.” 7. Mr.Kareem would cite a number of decisions of the Supreme Court and of this Court in support of this contention that the explanations given by the first respondent are not at all satisfactory. 8. Now we shall refer to some of the decisions relied on by him. In Hemlata v. State of Maharashtra (1981)4 S.C.C. 647 :1982 Crl.L.J. 150:1982 S.C.C. (Crl.) 16: (1982)1 S.C.R. 1028 :A.I.R. 1982 S.C. 8 the Supreme Court referring to the principles laid down in Lakshmana Khatik v. State of West Bengal A.I.R. 1974 S.C. 1264 , has held as follows: “Dely ipso facto in passing an order of detention after incident is not fatal to the detention of a person, for in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority.” In yet another portion of the judgment their Lordships pointed out- “The detaining authority is in no legal liability to tell or satisfy the detenu as to the causes of delay; it is under an obligation to satisfy the Court as to the causes of delay to show that there was no infraction of the constitutional provision laid down under sub-Art. (5) of Art. 22 of the Constitution.” In H.G. Ravindran v. State of Karnataka 1984 Crl.L.J. 458 a Division Bench of Karnataka High Court, while dealing with the question of a delay not satisfactorily explained, has observed thus- “If there is an inordinate delay between the acts imputed to the detenu and the order of detention then the rationality of the nexus tends to snap. This is where a reasonable explanation for the delay becomes relevant and material. If there is an unexplained delay, the order of detention becomes bad on the ground that there is really no application of the mind of the detaining authority and, therefore, there is no genuine subjective satisfaction at all.” Then, in another part of the same judgment, it has been pointed out thus- “It is no doubt true that the delay, by itself, does not vitiate the detention, but when the delay, is such as to take away the rational nexus between the ground on which subjective satisfaction is sought to be reached and the objects to be served by the detention, the delay invalidates the detention.” See also Kanmal v. State of Tamil Nadu 1978 Crl.L.J. 867 rendered by a Bench of this Court to which one of us (Ratnavel Pandian, J.) was a party. 9. In a recent decision the Supreme Court in Shivratan Makim v. Union of India A.I.R. 1986 S.C. 610 has laid down the following dictum: “It is no doubt true that where an unreasonably long period has elapsed between the date of the incident and the order of detention, an inference may legitimately be drawn that there is no nexus between the incident and the order of detention, may be liable to be struck down as invalid. But there can be no hard and fast rule as to what is the length of time which should be regarded sufficient to snap the nexus between the incident and the order of detention.” See also the judgments of this Court in Sitheek v. Union of India and others, W.P. 8927 of 1987 dt. 10.2.1987, Manohar Viswanath Jotha Rao 10. When we examine the facts of the present case, in the light of the proposition of law laid down in the above decisions, we find that the lapse of time nearly 7 1/2 months in passing the order of detention and more significantly the delay of 6 months in securing the detenu, have not at all been satisfactorily explained in the counter affidavit filed on behalf of the first respondent. The first respondent has not made any averment as to whether any action had been taken, as contemplated in Sec.7 of the Act, after the order of detention was made on 9.5.1986. The learned Public Prosecutor also admits that no such action had been taken to secure the detenu as contemplated in Sec.7 of the Act. 11. When we examine the facts of the present case in the light of the proposition of law laid down in the above decisions we find that the above said unexplained lapse of time in passing the order of detention, particularly in securing the detenu, affects the validity of the order of detention. 12. When we, having in view the principles laid down by the Supreme Court in Ashok Narain v. Union of India A.I.R. 1982 S.C. 1222, asked the learned Additional Public Prosecutor as to whether the detaining authority in this case has taken into consideration the delay that had occasioned in this case before the passing the impugned order of detention, he referring to the file, would state that there is nothing in the file to show that the delay had been considered before the order of detention was passed. Under these circumstances, we are of the view that in the present case, long delay has not been satisfactorily and properly explained. Further, no action had been taken by the first respondent, as require in Sec.7 of the Act, to secure the detenu. 13. In the result, the writ petition is allowed on the impugned order of detention is quashed and the detenu is directed to be set at liberty forthwith. Further, no action had been taken by the first respondent, as require in Sec.7 of the Act, to secure the detenu. 13. In the result, the writ petition is allowed on the impugned order of detention is quashed and the detenu is directed to be set at liberty forthwith. B.S. ----- Petition allowed.