A detention order must be based on compelling reasons and cannot be based on a single solitary incident. Further, the representation filed by the detenu must be considered with utmost expedition as required under Article 22(5) of the Constitution of India.

S.D.Bajaj, J.

1. On 13.4.1989 at around 1.00 a.m., Customs Authorities recovered from detenu-petitioner Sudarshan Kumar alias Amit Chaudhary U.S. $ 8400 and Rs. 2,000/- in Indian currency. Learned Chief Judicial Magistrate Chandigarh, released the petitioner on bail on 19.4.1989. A month thereafter on 19.5.1989 the order of preventive detention Annexure P-1 was clamped on the detenu-petitioner. Legality of the detention order Annexure P-1, based on grounds of detention Annexure P-2, has been assailed by detenu-petitioner in Criminal Writ Petition No. 1840 of 1989 on grounds that the representation filed by him was not considered by the detaining authority with due promptitude and utmost expedition contemplated in Article 22(5) of the Constitution of India, that impugned order of detention is based on single solitary incident of 13.4.1989; and that no compelling reasons have been set out in the detention order Annexure P-1 to order detention of the petitioner who had already been released on bail a month before it.

2. It was stated in reply that the representation was considered and decided in 23 days with utmost expedition; that the petitioner was indulging in illegal purchase/sale of the foreign currency on large scale and, therefore, it became necessary to detain him under preventive detention; and that the detaining authority know on 19.5.1989 that the petitioner was on bail with effect from 19.9.1989 and still deemed it necessary to detain him in exercise of its preventive jurisdiction on the basis of its subjective satisfaction.

3. I have heard Shri H.S. Mattewal, Senior Advocate, with Shri Sukhbir Singh, Advocate, for the petitioner, Ms. Jai Shree Anand, Advocate, for the respondents and carefully gone through the relevant material brought on record. It is stated in para 5 of the reply :-

"Detenus representation dated 1.6.1989 to President of India was considered and has been turned down. The detenu was informed accordingly vide letter dated 23.6.1989."

No explanation whatsoever is forthcoming for this admitted inordinate delay of 23 days in the disposal of the representation. In Harish Pahwa v. State of U.P. and others, AIR 1981 Supreme Court 1126, their lordships of the Supreme Court observed :-

"We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional."

In this view of the matter, the order of detention gets vitiated on this score.

4 A reference to the order of detention Annexure P-1 and grounds of detention Annexure P-2 makes it abundantly clear that the factum of the petitioner being already on bail with effect from 19.4.1989 was not in the knowledge of the detaining authority and was, therefore, not adverted to by it therein. The order of detention, therefore, obviously suffers from the vice of the non-application of mind and gets vitiated on this score as well. Further more, no compelling reasons which prompted the detaining authority to make the order of detention against the petitioner have been set out in Annexure P-1. In Smt. Shashi Aggarwal v. State of U.P. and others, AIR 1988 Supreme Court 596 their Lordship of the Supreme Court observed :-

"Every citizen in this country has the right to have recourse to law. He has right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve and the State could oppose, the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the c