V.K.JHANJI, J. - (1.) PRESENT petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ directing the respondent to release the petitioner who is now confined in Central Jail, Patiala in pursuance of order (Annexure P-1) passed by the respondent under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
(2.) PETITIONER was arrested on 24.5, 1993 and 800 grams of opium was recovered from his possession. FIR No. 51 dated 24.5.1993 under Section 3 of the N.D.P.S. Act was registered at P.S. Chheharta District Amritsar against the petitioner. From the recovered opium, 10 grams of opium was taken as sample and on analysis, it was found to be opium. Petitioner in his confessional statement, admitted the recovery and the ownership of 800 recovered grams of opium. He also admitted that he was doing smuggling of opium. He was remanded to the Police custody on 7.5.1993, Again he was remanded to judicial custody on 27.5.1993 and only on 8.6.1993 he was ordered to be released on bail. On 10.6.1993, he was released on bail by the Judicial Magistrate, Amritsar. The order of detention under Section 3 of the N.D.P.S. Act was passed against the petitioner by the respondent on 8.12.1993 and the same was served upon the petitioner on 14.4.1994 and since then he is confined in Central Jail, Patiala. The quashing of the detention order has been sought on various grounds including the delay in passing of the order, execution of the order and also delay in deciding the representation of the petitioner. After hearing the learned counsel for the parties, I am of the view that the petition deserves to succeed on the ground of delay in deciding the representation of the petitioner. Petitioner made a representation on 9.5.1994 which was forwarded by the Superintendent, Jail on 10.5.1994. The representation was received by the respondent on 18.5, 1994. According to respondent No. 1, the representation was rejected on 9.8.1994 and the petitioner was intimated through the Superintendent, Jail on 10.8.1994. Though it has been stated that the representation of the petitioner was decided promptly and without any delay, yet I am satisfied that the respondent has not properly explained the delay in deciding the representation. What has been stated in para 3(c) is that on receipt of the representation on 18.5.1994, para wise comments were collected from the sponsoring authority which were received on 30.5.1994. It has been further stated that in the meantime, the case of the petitioner was referred to the Advisory Board on 10.5.1994 and the Board gave its opinion on 31.5.1994. In consequence thereupon, the detention of the petitioner was confirmed on 21.6.1994. No explanation has been given as to what action was taken on the representation from 21.6.1994 to 9.8, 1994 when the same was rejected. When a representation is made, it is in the fitness of things that the same must be considered with the same urgency with which the grounds of detention are communicated to the detenu. The representation of the detenu was required to be disposed of expeditiously without waiting for the opinion of the Advisory Board otherwise continued detention of the person detained would become illegal and unconstitutional. The contention of counsel for the respondent that the delay was on account of non-receipt of comments from the Sponsoring Authority cannot be accepted for the reason that it has been held by the Supreme Court of India in Harish Pahwa v. State of Uttar Pradesh, 1982(1) CLR 65 as under :- "Held, that calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasis 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."
(3.) MR . Bhanot, learned State counsel, appearing for the respondent has placed reliance on decision of the Supreme Court in State of Tamil Nadu v. V.C. Subramani, 1993(1) RCR 8 (SC) to contend that there is no limitation provided for deciding the representation. There is no dispute with this contention. It is true that no limitation is provided under the Act and no inference of delay leading to violation of constitutional right under Article 22(5) of the Constitution of India can be drawn unless it is shown that authorities dealing with the representation had adopted an attitude of leisureness, supine indifference, slackness or callous attitude. In C. Sobramani's case (supra), there was a delay of eight days in dealing with the representation in the office of the Chief Minister. Out of these eight days, there were two holidays and on four days, the Chief Minister could not find time being busy in Conference on law and order and on one day, the Chief Minister was busy in an official function of the University. It was in these circumstances that it was held that the delay was properly explained. In the present case, no explanation worth consideration has been given for deciding or dealing with the representation of the petitioner from 21.6.1994 to 9.8.1994 when the same was rejected. In view of the wholly unexplained and unduly long delay in the disposal of the representation by the State Government, further detention of the petitioner has to be held illegal.;