TMI Blog2004 (6) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... limitations and procedural safeguards. The preventive detention is not intended as punishment for commission of economic offence. We are not considering correctness of application of mind regarding the satisfaction of the authority in issuing the order or merits of the case, but whether constitutional safeguards prescribed by law are complied with or not. As held by the Apex Court in Narendra Purshotam Umrao v. B.B. Gujral and Ors., AIR 1979 SC 420, when the liberty of the citizen is involved and he is put in prison without trial as a preventive measure, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by law have been scrupulously observed. This is so even if one is detained for preventing economic offences under COFEPOSA as held by the Apex Court in Icchu Devi v. Union of India, AIR 1980 SC 1983, and in Rattan Singh v. State of Punjab, 1981 SCC (Ori) 853. 2. The contentions of the petitioner are four in number. (1) There is delay in issuing the preventive detention order, accepting the dates mentioned in the order. (2) There is delay in disposal of the representations filed against the order. (3) The representations were not properly dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued on 20.11.2003 and there is delay in issuing the detention order. If it is to prevent the activities and not as punitive it should be issued at the earliest. But here there is unexplained delay in issuing the detention order. As far as the detenu is concerned, no allegation against him is raised for the period after March 2001, and the delay is more than 2 1/2 years and nexus itself is lost for detaining him as a preventive measure. (See Lakshman Khatik v. The State of West Bengal, 1974 Crl.L.J. 936, S.K. Abdul Munnaf v. The State of West Bengal, 1974 Crl.L.J. 1233, T.A. Abdul Rahman v. State of Kerala, 1990 Crl.L.J. 578, K.P.M. Basheer v. State of Karnataka, 1992 Crl.L.J. 1927. In Golam Hussai Alias Gama v. Commissioner of Police, Calcutta, AIR 1974 SC 1336, it was held that a writ of Habeas Corpus can be issued if there is wide time gap between the offence and the order of detention. The unexplained delay of three months was held to be unjustifiable in Malwa Shaw v. The State of West Bengal, (1974) 4 SCC 127. 4. The detenu has got a constitutional right under Article 22(5) and statutory right (Section 11 of COFEPOSA) for making representation. In the order this right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. There is also eighteen days delay in disposing of the representation which was not explained in the counter affidavit. The Supreme Court in Union of India v. Paul Manickam and Anr., (2003) 8 SCC 342, held that a constitutional protection is given to every detenu which mandates the grant of liberty to the detenu to make a representation against detention, as imperated in Article 22(5) of the Constitution and Section 11 of the COFEPOSA Act. It also imperates the authority to whom the representation is addressed to deal with the same with utmost expedition as held by the Supreme Court in Prof. Khaidem Ibocha Singh v. The State of Manipur, AIR 1972 SC 438. The Apex Court in a number of cases decided that representations should be considered and disposed of as expeditiously as possible and unexplained delay in considering the representation amount to violation of Article 22(5) resulting in the detention being declared illegal. In the background of constitutional mandate under Article 22(5) and statutory compulsion under Section 11 of COFEPOSA, the representations should be considered in the right perspective and every relevant points raised in the representation should be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that another communication was also sent to him on 31.5.2003 by the Under Secretary informing that Secretary has disposed of the representation. The learned Senior Standing Counsel has also handed over the file. It shows that on receipt of the representation the Under Secretary has prepared a note. Behind the note, the Secretary has made an endorsement as follows: I have gone through the representation and all relevant papers. The representation does not merit acceptance . Even though various contentions including non-supply of necessary documents etc. were mentioned in the representation, there is no application of mind by the Secretary to Government. The Secretary has just rejected the representation. It does riot show that he has applied his mind. When the Authority disposes a representation, which is a constitutional right of the detenu, it cannot be disposed of like this in a casual manner. Further, the Secretary has not communicated his order to the detenu, but only the Under Secretary has communicated the order. It is true that even though making of representation is a constitutional right, there is no obligation for the Central Government to grant a hearing. It is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red before the Income Tax Officer on 26.12.2003 also and again appeared on 29.12.2003 to substantiate his case. Ext.P15 would show that he appeared before the Commissioner of Income Tax, Cochin on 18.3.2004. All these exhibits would show that the detenu was available at his place of residence and he was not absconding. Delay in execution of the order of detention itself shows that nexus is lost as held by the Apex Court in P.V. Iqbal v. Union of India, 1992 Crl.L.J. 2924 (SC). Delay of 40 days in execution of the detention order was held sufficient to set aside the detention order, by the Apex Court in A. Mohammed Farook v. Jt. Secretary to G.O.I. and Ors., (2000) 2 SCC 360. Three months delay was held to be justifiable by the Apex Court in Abdul Rahman v. State of Kerala, AIR 1990 SC 225. In Assia v. State ofKerala, 2000 (1) KLT 673, a Division Bench of this Court held that one month's delay in execution of the detention order vitiates the order of detention (judgment by Mr.Arijit Pasayat, C.J. as he then was). The delay of more than four months in execution of the order is not properly explained in the counter and on this ground also the preventive detention order will stand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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