Order of detention vitiated due to delay in consideration of representation.

This writ petition has been filed by one Rajgopal Chettiar, the father of the detenu, Radhakrishnan under Art. 226 of the Constitution of India, seeking the issuance of a writ of Habeas Corpus for quashing the order of detention dated 26-3-1987 passed against the detenu Radhakrishnan, and for setting him at liberty.

2. The impugned order of detention has been passed by the first respondent Union of India in exercise of the powers conferred on it by and under S. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act with a view to preventing the detenu from smuggling goods.

3. The facts of the case are set out in detail in the grounds of detention furnished to the detnu and it is needless to recapitulate the same in this order.

4. Though several grounds of attack have been enumerated in the affidavit in support of this writ petition; the learned counsel for the petitioner confined his arguments only to the following aspects of the matter :-

(1) Delay in passing the order of detention

(2) Delay in considering the detenu's representation. We shall consider these aspects

5. Point 1 :- The incident which has given rise to this order of detention has taken place on 22-8-1986. The order of detenion has been passed on 25-3-1987, 7 months and 2 days later. It is the case of the petitioner that the delay is inordinate and unexplained and the order of detention cannot, therefore, stand. In Hemlata v. State of Maharashtra, 1983 (54) CC 559, 1982 (1) SCR 1028, 1982 (88) CRLJ 150, 1982 (2) BCR 218, 1982 AIR(SC) 8, 1981 (4) SCC 647, 1982 SCC(Cr) 16, 1981 (3) Scale 1657 : 1983 (54) CC 559, 1982 (1) SCR 1028, 1982 (88) CRLJ 150, 1982 (2) BCR 218, 1982 AIR(SC) 8, 1981 (4) SCC 647, 1982 SCC(Cr) 16, 1981 (3) Scale 1657 ), their Lordships of the Supreme Court pointed out -

"Delay ipso facto in passing an order of detention after an 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 ..... The detaining authority is in no legal liability to tell or satisfy the detenue as to the cause 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 provisions laid down under sub-Art. (5) of Art. 22 of the Constitution." *

In a very recent decision in Shivratan Makim v. Union of India, 1986 AIR(SC) 610, 1986 (1) CRIMES 465, 1986 CAR 32, 1986 CrLR(SC) 89, 1985 (2) Scale 1504, 1986 (1) SCC 404, 1986 SCC(Cr) 74, 1985 (S3) SCR 843, 1986 CRLR 89, 1986 (92) CRLJ 813 : 1986 AIR(SC) 610, 1986 (1) CRIMES 465, 1986 CAR 32, 1986 CrLR(SC) 89, 1985 (2) Scale 1504, 1986 (1) SCC 404, 1986 SCC(Cr) 74, 1985 (S3) SCR 843, 1986 CRLR 89, 1986 (92) CRLJ 813), the learned Judges of the Supreme Court observed;

"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 and the order may be liable to be struck down as invalid." *

6. In the counter-affidavit filed on behalf of the first respondent this contention of the petitioner is met as follows -

"Regarding the averments in ground 2, it is submitted that the arguments put forth in this ground has no legal weight. As the detenu had given the name and address of the alleged receiver of the goods, the department had to necessarily pursue the investigation and make every effort to apprehend the alleged receiver who still remained elusive." *

These averments are as vague as vagueness could be. No particulars are given about the steps taken to apprehend the alleged receiver and the delay caused thereby. What is worse is that even the date when the proposal was sent to the Government by the sponsoring authority for detaining the detenu has not been mentioned and we are unab