TMI Blog1994 (3) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted on 21/5/1993. (3) Petitioner urged several contentions, all of which were rejected by the learned Single Judge. As we are of the view that the petitioner is entitled to be released from detention, in view of the unexplained delay in considering his representation, it is unnecessary to refer to the other contentions. (4) As to the delay, the following facts are to be noted: (1) In the writ petition, the petitioner stated thus:- THAT the petitioner/detenu says and submits that he sent a representation dated 28/4/1993 (Annexure'D') to detaining authority through Jail Supdt., whereby besides asking for the order of detention and grounds of detention in Gurmukhi/Hindi, a language known to the petitioner, a prayer was also made for revocation of the impugned detention order. However, till the filing of the writ petition, he has not received any reply whatsoever from detaining authority. It is submitted that it is enjoined upon the respondents to show to this Hon'ble Court that the said representation of the, petitioner was dealt with continuously till its final disposal and communication thereof to the detenu and on their failure to do so the respondents would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent by the Jail Superintendent through a special messenger on 4/5/1993; if so, how could there be such a delay for the representation to reach the Cofeposa Unit till 10/5/93, when both the Jail Supdt. and the 1st respondent's Cofeposa Unit are at Delhi itself. This delay of six days is not explained. (ii) Comments were called on this representation on 11/5/1993;but the Sponsoring Authority (who is also in Delhi) furnished the comments on 20/5/1993, involving another 9 days delay. (iii) Comments were received at the Cofeposa Unit on 21/5/1993, but the case was processed as on 31/5/1993; out of these 10 days, 2 days being Holidays may be excluded; even then there was a delay of 8 days. Thus in all the delay of 23 days remains unexplained. (6) The learned counsel for the petitioner pointed out that, since, no reply affidavit was filed to the writ petition, we should not entertain the present reply affidavit of the 1st respondent. Alternatively she contended that, even on the basis of the present reply affidavit, a total delay of 23 days has not been explained and therefore, the detention of the petitioner is unconstitutional, being violative of Article 22(5) of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt given in a petition under Article 226 would be appealable to a Division Bench of that High Court. (10) Though the decision was rendered in the context of a writ petition filed challenging an order under the Tenancy Act, the decision brings out the nature of the proceedings under Article 226 of the Constitution of India as also the scope of an intra-court appeal provided under the Letters Patent or a Statute. (11) While tracing the history of writ jurisdiction vested in the Chartered High Court, the Supreme Court referred to a few decisions of various High Courts and the Privy Council, where, it was held that such a jurisdiction was an Original Jurisdiction of the High Court and therefore, an order made in the exercise of the said jurisdiction was appealable under the Letters Patent. The Supreme Court referred to a Bench decision of the Bombay High Court in Mahomedalli Allabux Vs. lymailji Abdulali; Air 1926 Bombay 332. In the said decision of the Bombay High Court, the facts were:- A learned Single Judge had issued a writ of Habeas Corpus, in the exercise of the then powers under Section 491 of the Criminal Procedure Code (as also invoked the Common Law Powers of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay in this case is so inordinate as to warrant interference. (15) This decision has to be taken Along with other several decisions of the Supreme Court where, repeatedly the Supreme Court pointed out that whether the delay in considering the representation of the detenu is fatal to the detention depends upon the facts of each case, and that normally the authority to whom representation was made has to explain the delay by filing an affidavit in answer to the writ petition challenging the detention. If the representation was to the Central Government and delay is alleged against it, it is for the Central Government to explain the delay and non-filing of an affidavit by the Central Government in answer to the writ petition, on this aspect of the case, should result in drawing an adverse inference against it and court may have to hold that there has been an unexplained delay. It is only in exceptional cases. Court may ignore the non-filing of the affidavit by the Authority responsible for the delay. (16) The requirement to consider the representation expeditiously flows from Article 22(5) of the Constitution. Delay defeats the detenu's right to have his representatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh Vs. State of Punjab and others; , delay was caused. by the Jail Superintendent to forward the representation, resulting in the detention getting vitiated. At page 483 the court pointed out: MAY be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. By the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those those safeguards are not denied to the detenues. Section 11(1) of Cofeposa confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation . to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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