IMPORTANT POINTS
(1) Non-consideration of retraction statement by detaining authority where retraction is a vital document, vitiates detention order.
(2) Where detenu is already in Jail and circumstances indicate that there was no compelling necessity to pass detention order, such detention order is vitiated.

JUDGMENT

Mohd. Shamim, J. - What light is to the eyes - what air is to the lungs what love is to the heart, liberty is to the soul of man.

R.G. Ingersoll, Progress.

Liberty in fact is the very breath of our being. It is inconceivable to think of a meaningful existence in the absence of liberty. That is why the framers of our Constitution thought it fit to secure for all the citizens of this country, liberty of thought, expression, belief, faith and worship. In fact, the golden strand of liberty runs throughout the fabric of our Constitution.

2. The petitioner through, the present writ petition under Article 226 of the Constitution of India has raised the question of his liberty, so vital to a man, as observed above, which he is alleged to have been illegally deprived of. He thus seeks the quashment of the order of detention dated January 20, 1993 and the order of declaration No. 3193 under Section 10 (1) of the Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988 (for short 'the Act').

3. Brief facts which gave rise to the present petition are as under: that the petitioner is 55 years of age. He originally belongs to Ludhiana. However, he had migrated to U.K. near about 25 year's ago. The petitioner is a father of two daughters who are of marriageable age. The petitioner came to India in search of a suitable match for his daughters. He also wanted to explore the possibility of export of rice and garments from India to the above said country.

The petitioner was forcibly removed on August 27, 1992 by the officials of the Narcotic Control Bureau and was later on shown to have been arrested in a case under the Act. The petitioner was sent to judicial custody on August 29, 1992. The petitioner has been in jail since then. He never moved any application for bail because of the stringent provisions of the Act. A detention order was passed under Section 3 (1) of the Act on January, 20, 1993 by the respondent No.2 against the petitioner and the same was served on him on January 22, 1993 in Central Jail, Tihar where he was being detained as an undertrial. Subsequently, several days thereafter he was served with grounds of detention alongwith a list of documents relied upon by the detaining authority. The impugned order of detention passed against the petitioner is absolutely illegal, invalid, unconstitutional and unwarranted. The petitioner sent a representation to the Central Government against the order of detention through the Superintendent Jail, Tihar. The same was rejected vide letter dated March 30, 1993 and communicated to the petitioner on April 13, 1993. The respondent No. 3 made a declaration under Section 10 (1) of the Act on February 18, 1993. The petitioner made a representation against the order of detention before the Advisory Board on being produced before the same on March 26, 1993. The petitioner submitted another representation dated April 28, 1993 to the President of India against the order of declaration and against the abovesaid order of detention through the Superintendent Central Jail, Tihar.

4. The said detention order and the declaration are illegal, invalid, unconstitutional and unwarranted, inter alia, on the following grounds: that the detaining authority did not take into consideration the retraction dated September 2, 1992 made by the petitioner and sent from the jail which formed part of the judicial file. Thus, the detention order is liable to be quashed for non consideration of the important and vital document which could have swayed the mind of the detaining authority at the time of the passing of the detention order. There is long and inordinate delay in disposing of the representation made by the petitioner against the order of detention and the order of declaration. The order of rejection was communicated to the petitioner on April 13, 1993. Thus there was a considerable delay in the communication of the said order. The petitioner was already in detention i.e. in j