1990 (4) TMI 311 - SC - Indian Laws

Detention Order Upheld: No Constitutional Violation Found; Delay Reasonably Explained by Government.

Abdul Salam alias Thiyyan Versus Union of India (UOI) and Ors.

The SC dismissed the appeal, affirming the validity of the detention order. It found no violation of Article 22(5) of the Constitution, as the Central ... - Issues Involved:1. Delay in the Central Government's disposal of the representation violating Article 22(5) of the Constitution of India.2. Delay in passing the detention order and its impact on the nexus between the incident and the detention.3. Delay in executing the detention order and its effect on the genuineness of the detention order.Detailed Analysis:1. Delay in the Central Government's Disposal of the Representation:The appellant argued that the delay by the Central Government in rejecting the representation amounted to a violation of Article 22(5) of the Constitution of India. Article 22(5) mandates that the detaining authority must communicate the grounds of detention to the detained individual at the earliest opportunity and allow them to make a representation against the order. The appellant's representation was made on 27-9-88 and rejected by the Central Government on 2-11-88, indicating a delay of one month and five days. The Court examined whether this delay constituted a violation of Article 22(5). It was noted that the Central Government, although not the detaining authority, is legally obliged to consider the representation expeditiously. The Court referred to precedents such as *Khudiram Das v. The State of West Bengal* and *Tara Chand v. The State of Rajasthan*, which emphasized the necessity of prompt consideration of representations to avoid rendering the detention unconstitutional. However, in this case, the Court found that the representation was processed expeditiously, with no negligence or callous inaction, thus rejecting the appellant's contention of delay.2. Delay in Passing the Detention Order:The appellant contested the delay between the alleged smuggling incident on 17-9-87 and the passing of the detention order on 21-5-88, arguing that this delay rendered the grounds for detention stale and disconnected. The Court considered whether the delay severed the nexus between the incident and the detention order. Citing cases like *Lakshman Khatik v. State of West Bengal* and *Rajendrakumar Natvarlal Shah v. State of Gujarat*, the Court noted that mere delay does not automatically invalidate a detention order unless the grounds are found to be stale or illusory. The Court examined the explanation provided in the counter-affidavit, which detailed the procedural steps taken before issuing the detention order, including the processing of case records and consultations with the Screening Committee. The Court found the delay reasonably explained and emphasized the necessity of considering the potentiality of the detenu repeating the prejudicial activities. Thus, the Court concluded that the delay did not invalidate the detention order.3. Delay in Executing the Detention Order:The appellant also argued that the delay in executing the detention order, which was passed on 21-5-88 but executed only on 6-8-88, indicated a lack of genuineness in the detention order. The Court assessed whether this delay undermined the subjective satisfaction of the detaining authority. The counter-affidavit explained that efforts to apprehend the appellant were made immediately after the order was passed, but the appellant's deliberate attempts to evade arrest caused the delay. The Court referred to precedents like *Sk. Serajul v. State of West Bengal*, which highlighted that delay in arresting the detenu must be satisfactorily explained to maintain the genuineness of the detention order. In this case, the Court found the explanation reasonable and rejected the contention that the delay in execution affected the genuineness of the detention order.In conclusion, the Court dismissed the appeal, finding no merit in the contentions regarding delays in the representation's disposal, the passing of the detention order, or its execution.