P. K. Misra, J - (1.) HEARD Mr. C. Mayilvahana Rajendran, learned counsel appearing for the petitioner and Mr. K. Chellapandian, learned Additional Public prosecutor, for the respondents.
(2.) THE order of preventive detention, dated 09. 07. 2004, passed by the second respondent, has been challenged by the detenu himself in this petition. THE detention is on the ground that the detenu is a bootlegger. Though several contentions have been raised in support of this petition, it is not necessary to refer to other contentions, as, in our opinion, the contention relating to unexplained delay in disposal of the representation made by the detenu merits acceptance. It is not disputed that the representation of the petitioner was received by the detaining authority from the Government on 24. 11. 2004 and subsequently para-war remarks were called for from the sponsoring authority on the same day. But, para-war remarks were received from the sponsoring authority only 29. 11. 2004. It is also not in dispute that the sponsoring authority is in the very same place. In the counter affidavit filed on behalf of the second respondent, it has been indicated about these dates. However, no explanation has been furnished as to why there was delay on the part of the sponsoring authority in furnishing the para-war remarks for about five days. Learned counsel appearing for the petitioner has placed reliance on the decision of the Supreme Court in Rajammal vs. State of Tamil Nadu and another (AIR 1999 SC 684 ). In the aforesaid decision, there was a delay of about four days when the representation was pending before the Minister. After referring several decisions of the Supreme Court, it was observed, "9. The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned. " The Supreme Court, in the above said case, found that merely because the matter was pending before the Minister, while he was on tour, was not a sufficient explanation for the four days delay in dealing with the matter. As emphasized by the Supreme Court in paragraph 9 of the decision cited, it is for the detaining authority or the Government to furnish explanation for any delay at the time of disposal of the representation of the detenu. In the present case, no explanation has been furnished as to why the sponsoring authority took about five days in furnishing the para-war remarks before the detaining authority, which is, in our opinion, is sufficient to vitiate the order of detention. The learned Additional Public Prosecutor placed reliance upon an unreported decision of a Division Bench of the Principal Bench of this Court in H. C. P. No. 42 of 2003, decided on 20. 10. 2003. He has also submitted that in this case 27. 11. 2004 and 28. 11. 2004, being Saturday and sunday, were holidays and, therefore, there was no unreasonable delay. Even accepting the said submission, we find no explanation as to why the sponsoring authority could not furnish para-war remarks either on 25. 11. 2004 or on 26. 11. 2004, which were admittedly working days, more particularly so when the sponsoring Authority was in the very same town. The submission made by the additional Public Prosecutor is, therefore, not acceptable. The decision relied upon by the learned Additional Public Prosecutor is also not applicable, as in the said case the explanation furnished by the Government was acceptable and therefore the Court found that there was no unexplained delay.
(3.) ACCORDINGLY, for the above said reasons, this habeas corpus petition is allowed and the order of detention, dated 09. 07. 2004, passed by the second respondent is quashed. The petitioner/detenu shall be set at liberty forthwith, unless his custody is required in connection with any other case. .;