Union of India & Ors Vs.
Laishram Lincola Singh @ Nicolai  INSC 494 (24 March 2008)
Dr. Arijit Pasayat & P.
CRIMINAL APPEAL NO. 519 OF 2008 (Arising out of SLP (Crl.) No.1251 of 2007)
Dr. ARIJIT PASAYAT, J 1. Leave granted.
2. Challenge in this appeal is to the judgment of the Division Bench of the
Guwahati High Court, Imphal Bench allowing the habeas corpus petition filed by
The habeas corpus petition was filed questioning the order of detention
passed by the District Magistrate, Manipur, Imphal West, dated 23.9.2005 in
exercise of powers conferred by sub- section (3) of Section 3 of the National
Security Act, 1980 (in short the 'Act') read with Home Department's order
No.17(1)/49/80-H(Pt) dated 6.9.2005, which was approved by the State Government
under order No.17(1)/947/2005-H dated 5.10.2005 and again confirmed by order of
State Government being No.17(1)/947/2005-H dated 7.11.2005 fixing the period of
detention for 12 months from the date of detention. The order of detention was
challenged primarily on the ground that there was unexplained delay in
disposing of the representation made by the detenu. The High Court accepted the
plea that there was an unexplained delay.
3. Learned counsel for the appellants submitted that the representation was
made on 12.10.2005 and the Central Government received the same on 31.10.2005.
It immediately wrote to the State Government to give its parawise comments.
Such comments were received on 22.11.2005 and immediately thereafter after
consideration of all relevant aspects the order of rejection was passed on
29.11.2005 which was communicated to the detenu on 30.11.2005.
4. It was submitted that the High Court did not even consider the
explanation given by the appellants to show that there was, in fact, no delay.
No reason has been indicated by the High Court in the impugned order to show
any application of mind to the relevant aspect.
5. There is no appearance on behalf of respondent.
6. In Senthamilselvi v. State of T.N. and Anr. (2006 (5) SCC 676) it was
held as under:
"6. Coming to the plea that there was delay in disposal of the
representation it is to be noted that the order of detention is dated
1.12.2005. The representation was sent on 11.12.2005 which was received by the
respondents on 15.12.2005. The details were called for on 16.12.2005 which were
received on 20.12.2005. The file was submitted on 21.12.2005 and dealt with by
the Under Secretary and Deputy Secretary on 22.12.2005. The concerned Minister
passed order on 22.12.2005 and the order of rejection which was passed on
27.12.2005 was issued on 28.12.2005 which was sent to the Superintendent of the
Jail where the detenu was incarcerated, which was communicated to the detenu.
It was received by the prison authorities and it was served on the detenu on
the day it was received by the Jail authority.
The factual scenario indicated above indicates that the representation was
dealt with utmost expedition. There can be no hard and fast rule as to the
measure of reasonable time and each case has to be considered from the facts of
the case and if there is no negligence or callous inaction or avoidable
red-tapism on the facts of a case, the Court would not interfere. It needs no
reiteration that it is the duty of the Court to see that the efficacy of the
limited, yet crucial, safeguards provided in the law of preventive detention is
not lost in mechanical routine, dull casualness and chill indifference, on the
part of the authorities entrusted with their application. When there is
remissness, indifference or avoidable delay on the part of the authority, the
detention becomes vulnerable. That is not the case at hand. It may be noted
that the writ petition was filed on 22.12.2005, even before the order of
rejection was served. That being so the detenu cannot make grievance that the
State had not explained the position as to how his representation was dealt
7. In Vinod K.Chawla v. Union of India and Ors. (2006 (7) SCC 337), it was
observed as under:
"13. The contention raised cannot be judged by any straitjacket formula
divorced from facts.
This has to be examined with reference to the facts of each case having
regard to the volume and contents of the grounds of detention, the documents
supplied along with the grounds, the inquiry to be made by the officers of
different departments, the nature of the inquiry, the time required for
examining the various pleas raised, the time required in recording the comments
by the authorities of the department concerned, and so on.
14. In L.M.S. Ummu Saleema v. B.B. Gujaral (1981 (3) SCC 317) it was held
that there can be no doubt that the representation made by the detenu has to be
considered by the detaining authority with the utmost expedition but as
observed in Frances Coralie Mullin v.W.C. Khambra (1980 (2) SCC 275) (SCC p. 279, para 5), "the
time-imperative can never be absolute or obsessive". In Madan Lal Anand v. Union of India (1990 (1) SCC 81) the representation dated 17-1-1989 of the
detenu who was detained under COFEPOSA was rejected after more than a month on
20-2- 1989. After referring to L.M.S. Ummu Saleema it was held that the
detaining authority had explained the delay in disposal of the representation
and accordingly the order of detention cannot be faulted on that ground. In
Kamarunnissa v. Union of India (1991 (1) SCC 128) the representation made by
the detenu on 18-12-1989 was rejected on 30-1-1990 and it was contended that
there was inordinate delay in consideration of the representation. In the
explanation given in the counter-affidavit filed in reply, it was submitted
that considerable period of time was taken by the sponsoring authority in
forwarding its comments. It was contended on behalf of the detenu that the
views of the sponsoring authority were totally unnecessary and the time taken
by that authority could not be taken into consideration. The contention was
repelled by this Court and it was observed that consulting the authority which
initiated the proposal can never be said to be an unwarranted exercise. It was
further emphasised that whether the delay in considering the representation has
been properly explained or not would depend upon the facts of each case and
cannot be judged in vacuum. Similarly, in Birendra Kumar Rai v. Union of India (1993 (1) SCC 272) the petitioner made a representation
against his detention on 22-12-1990 which was rejected by the Central
Government after a month on 25-1-1991. It was observed that the explanation
offered for the delay in consideration of the representation was not such from
which an inference of inaction or callousness on the part of the authorities
could be inferred and accordingly the challenge on the ground of delay was
rejected. The subsequent decisions of this Court are also on the same lines and
we do not consider it necessary to refer to them as the principle is well
settled that there should be no inaction or lethargy in consideration of the
representation and where there is a proper explanation for the time taken in
disposal of representation even though it may be long, the continued detention
of the detenu would not be rendered illegal in any manner.
15. The grounds of detention in the present case are a long one running into
35 paragraphs which were accompanied by 82 documents running into 447 pages.
The representation made by the appellant was also a fairly long one. The
representation made by the appellant on 24-3-1998 was received by the Ministry
on 27-3-1998. The comments of the sponsoring authority were called on 30-3-
1998 which were received on 17-4-1998. The comments were placed before the
Secretary (R) through the ADG on 22-4-1998 (18th and 19th being holidays). The
decision of the Central Government was taken and communicated on 29-4-1998
(25th and 26th being holidays). The representation was also considered by the
detaining authority in the meantime and was rejected on 21-4-1998. In the
additional affidavit filed on behalf of the sponsoring authority before the
High Court, it was stated that the representation was received by them on
2-4-1998 and the comments were dispatched on 17-4-1998. During this period,
there were holidays on 4th, 5th, 8th to 12th April, and only seven working days
were available. Again there were holidays on 18th, 19th, 25th and 26th April.
Having regard to the facts and circumstances of the case, we are clearly of the
opinion that the entire time taken in consideration and disposal of the
representation made by the appellant has been fully explained and it cannot be
said by any stretch of imagination that there was any inordinate delay or
unexplained delay in considering the representation made by the appellant. The
challenge to the detention order made on the ground of delay in consideration
of the representation made by the appellant has no substance and deserves to be
8. The order of the High Court is clearly unsustainable and is set aside.
The period of detention fixed by the order of detention being over, it is open
to the detaining authority to consider whether there is any need for detaining
the respondent as the situation stands now.
9. The appeal is allowed to the aforesaid extent.
Pages: 1 2 3