Decided on September 26,2002

UNION OF INDIA Respondents

Referred Judgements :-



- (1.)The petitioner by an order dated 3.5.2002 has been ordered to be detained in exercise of the powers conferred by section 3 (1) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities act, 1974 with a view to prevent him from smuggling goods in future. The order has been issued in the name of the governor by the secretary to the government of tamil Nadu. The petitioner was informed of his right to make a representation to the detaining authority, viz. the state government and also to the government of India, if he so desired in writing against the order under which had been kept under detention. The petitioner made representation dated 22nd May, 2002 to the central government. That representation was rejected on 5th July, 2002.
(2.)This petition under Article 32 of the Constitution of India has been filed seeking quashing of the detention order. The only point argued for the writ petitioner is regarding inordinate and unreasonable delay of the central government in consideration of the representation dated 22nd May, 2002.
(3.)In answer to the notice issued to the respondents, the respondents including the first respondent union of India, represented by learned additional solicitor general and assisted by the counsel for union of India appeared in court on 12th August, 2002. Two weeks' time was granted for filing counter affidavit. The order further stated that "it is made clear that no further adjournment will be granted. " Thereafter when the matter was heard on 26th August, 2002 by which time the counter affidavit on behalf of union of India had not been filed, the court directed issue of the rule. These are the circumstances under which the writ petition has come up for hearing before us. Despite the fact that more than six weeks have elapsed, no counter affidavit has been filed on behalf of the first respondent the union of India. Under these circumstances, we are unable to know as to how time was spent between 22nd May, 2002 and 5th july, 2002. Since even the record/file of union of India is also not available in court today we need not, in the present case, examine the question whether the central government without filing counter affidavit can rely upon the file and insist upon the same being looked into to find out whether there was any explanation for the time spent in the disposal of the representation. We do, however, wish to place on record that the aspect of the personal liberty of an individual shall not be taken and treated as lightly as it seems to have been done by the central government, on filing of this petition by the detenue. It has to be kept in view that the case in hand is that of preventive detention as opposed to punitive detention and Article 22 (5) of the Constitution confers on the detenue a right to make a representation against the order of detention. It is implicit in the constitutional provision that the representation when made shall be considered without any inordinate and unreasonable delay. The delay is required to be explained by the concerned authority-central government in the present case.

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