TMI Blog2007 (4) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the constitutional right conferred under Article 22(5) invalidates the detention order. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. In the result, the High Court s impugned order is clearly indefensible and is set aside - Appeal is allowed. - Dr. ARIJIT PASAYAT LOKESHWAR SINGH PANTA JJ. JUDGMENT Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the judgment of the Division Bench of the Gauhati High Court, Imphal Bench, allowing the habeas corpus petition filed by respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The Ministry of Home Affairs received the representation made by the detenu against the detention on 3.11.2005. Immediately the parawise comments were called for from the sponsoring authority. The comments were received on 19.12.2005 and on 20.12.2005 the representation was rejected. On 7.11.2005 detenu filed a Writ Petition (Crl.) No. 50 of 2005 before the Gauhati High Court Imphal Bench for quashing the order of detention. It was submitted that there was unusual delay in disposing of the writ petition filed by the detenu. So far as the pivotal question whether there was delay in disposal of the representation is concerned, same has to be considered in the background of Article 22(5) of the Constitution. A constitutional protection i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... berty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it the great and efficacious writ in all manner of illegal confinement . The writ has been described as a writ of right which is grantable ex dobito justitae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right. In case of preventive detention no offence is proved, nor any charge is formulated and the justificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o carte blanche is given to any organ of the State to be the sole arbiter in such matters. The High Court was of the view that parawise comments were not required to be called for and it was held that the same was fatal to the detention. The question as to whether the views of the sponsoring authority are to be called for and whether they are necessary have been dealt with in several cases. In Kamarunnissa v. Union of India and Anr. (1991 (1) SCC 128) it was observed as under: The learned counsel for the petitioners raised several contentions including the contentions negatived by the High Court of Bombay. It was firstly contended that the detenus had made representations on December 18, 1989 which were rejected by the communicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 16, 1990. The comments were dispatched on January 9, 1990 and were received by the COFEPOSA Unit on January 11, 1990. The file was promptly submitted to the Finance Minister on the 12th; 13th and 14th being non-working days, he took the decision to reject the representation on January 16, 1990 and the memo of rejection was dispatched by post on January 18, 1990. It appears that there was postal delay in the receipt of the communication by the detenus but for that the detaining authority cannot be blamed. It is, therefore, obvious from the explanation given in the counter that there was no delay on the part of the detaining authority in dealing with the representations of the detenus. Our attention was drawn to the case law in this behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases where the considering authority feels that the remarks of the officer who made the original order are necessary then such superior authority must call for such remarks. In the instant case, the representation filed by the detenu did raise certain factual points which without the comment of the detaining authority might have been difficult to be dealt with. Therefore, in our opinion, the authority considering the representation had justly called for the remarks. The next limb of this argument that the State Government was influenced by the remarks of the detaining authority to dismiss the representation is too far-fetched. In the instant case, the Government of Tamil Nadu has been authorized to be the authority to consider the represe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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