Unexplained delay in considering a detainee's representation under Article 22(5) of the Constitution renders the continued detention void.

MEHTA, J. :- The petitioner, who is a citizen of Ghana, has challenged the order of detention dated 13-4-1989 passed against her by the Detaining Authority under Sub-Section (1) of Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Act 46 of 1988). This Writ Petition can be disposed of on the narrow issue that the authorities concerned have not considered the representation made by the Detenu with the necessary promptitude and expedition.

2. The Detenu made a representation to the State Government as also the Central Government on 27-7-1989. The same was received by the Superintendent of Prison on 1-8-1989. The representation was despatched to Delhi on 5-8-1989. It is the contention of the Detenu that there was a delay of three days in despatching her representation to the Department at Delhi.

The representation was received in Delhi on 9-8-1989. On the same day, i.e., on 9-8-1989, the Department sent for parawise comments from the Government of Maharashtra as also from the Deputy Director of Narcotics. Since no reply was received, the Department sent a reminder on 22-8-1989. The parawise comments, which were dated 16-8-1989, were received by the Department on 28-8-1989. It is the contention of the Detenu that there was a delay of twelve days in preparing the parawise comments. The comments of the Government of Maharashtra were also forwarded and received by the Department on the same day, i.e., on 28-8-1989. Thereafter the papers were pleaded before the Joint Secretary on 30-8-1989, and on the same day the Joint Secretary, after endorsing her recommendations, placed the papers before the Minister of State for Revenue. The Minister of State for Revenue placed the papers before the Finance Minister on 1-9-1989, and the Finance Minister rejected the same on 4-9-1989. The rejection memo dated 7-9-1989 was received by the Detenu on 18-9-1989. Therefore, here also, according to the Detenu, there has been a delay of eleven days.

3. Shri Gupte, learned Counsel appearing on behalf of the Detenu, containded that there has been a delay of several days in considering the representation of the Detenu and this would render the continued detention of the Detenu void. In support of his submission, Shri Gupte relied on two recent rulings of the Supreme Court on the same issue, i.e., unexplained delay in the disposal of the representation made by the Detenu. In the case of Aslam Ahmed v. Union of India, AIR 1989 SC 1403 : (1989 Cri LJ 1447), Their Lordships of the Supreme Court, after reviewing various authorities on the same issue, observed :

"Thus when it is emphasised and re-emphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by a slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Art.22(5) of the Constitution."

4. Again, in the case of R.D. Borade v. V.K. Saraf, AIR 1989 SC 1861. Their Lordships were pleased to state :-

"True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the words "as soon as may be"

occurring in Art.22(5) of the Constitution reflect that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However