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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 520  OF 2013 [Arising out of Special Leave Petition (Crl.) No.1359 of 2013]

ABDUL NASAR ADAM ISMAIL Through Abdul Basheer Adam Ismail … APPELLANT

Versus

THE STATE OF MAHARASHTRA & ORS. … RESPONDENTS

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. In  this  appeal,  by  special  leave,  the  appellant  has  

challenged judgment and order dated 23/01/2013 passed by  

the Division Bench of the Bombay High Court dismissing the  

writ  petition  filed  by  him  challenging  order  of  detention  

dated 16/4/2012 issued by the detaining authority i.e.  the  

Principal  Secretary  (Appeals  and Security),  Government  of

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Maharashtra,  Home  Department  under  the  provisions  of  

Section 3(1) of the Conservation of Foreign Exchange and  

Prevention of Smuggling Activities Act, 1974 (for short, “the  

said Act”).  The order  of  detention  directed  his  detention  

with  a  view  to  preventing  him  in  future  from  smuggling  

goods.  

3. From the grounds of  detention,  it  appears  to  be the  

case of detaining authority that on 12/8/2011, the appellant  

Abdul  Nasar  Adam  Ismail  (“detenu”  for  convenience)  

arrived  from Dubai  by  Air  India  flight  No.AI-984.   He was  

carrying one trolley hand bag.  After he was cleared through  

green  channel,  he  was  stopped  by  the  Assistant  

Commissioner  of  Customs  on  duty.   When  his  personal  

search was conducted, it was noticed that he had concealed  

two packets in his undergarments near his groin area and  

two  packets  under  the  knee  caps  worn  on  calves.   On  

removal of his pants, four plastic packets wrapped with cello  

tape,  which  were  kept  inside  his  cycling  shorts  and knee  

caps worn by him on his calves were recovered.  Detailed  

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examination of  these four  packets  resulted in  recovery of  

3086 gms. of 22 kt. and 1004 gms. of 18 kt. gold chains.  

The  total  seized  gold  was  valued  at  Rs.95,35,932/-.  The  

detenu’s statements under Section 108 of the Customs Act,  

1962  were  recorded.   On  perusal  of  the  proposal  and  

accompanying documents sent by the sponsoring authority,  

the detaining authority passed the aforementioned detention  

order.  

4. We have heard, at some length, Mr. K.K. Mani, learned  

counsel appearing for the detenu. He assailed the detention  

order on two counts. Firstly, he contended that the detenu  

through  his  lawyer  submitted  his  representation  dated  

23/6/2012 to the jail authority for forwarding it to the State  

Government.  The said representation was rejected by the  

State Government and the rejection was communicated to  

the detenu by the Under Secretary to the Government of  

Maharashtra vide letter dated 24/7/2012.  Counsel submitted  

that  thus  there  is  an  inordinate  delay  in  considering  the  

representation  of  the  detenu  which  has  violated  his  right  

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under  Article  22(5)  of  the  Constitution  of  India.   Counsel  

submitted that there is delay at every stage, which indicates  

the casual  approach of  the State Government.   So far  as  

unexplained delay in transmitting the representation to the  

State  Government  by  the  jail  authority  is  concerned,  he  

relied on the judgments of this Court in Rattan Singh  etc.  

v.  State of Punjab and others   1  ,   Aslam Ahmed Zahire  

Ahmed Shaik   v.   Union of India and others2 and  B.  

Alamelu   v.   State of Tamil Nadu and others3.  Counsel  

submitted that  in  a long line of judgments,  remissness or  

casual approach shown by the authorities in considering the  

representation  of  the  detenu is  severely  criticized  by  this  

Court because it breaches the mandate of Article 22(5) of  

the Constitution of India.  In such a situation,  the order  of  

detention is liable to be set aside.  In this connection,  he  

relied on judgments of this Court in Smt. Khatoon Begum  

etc. etc.  v.  Union of India and others4, Harish Pahwa  

v.  State of U.P. & Ors.  5  ,   K.M. Abdulla Kunhi and B.L.  

1 (1981) 4 SCC 481 2 (1989) 3 SCC 277 3 (1995) 1 SCC 306 4 (1981) 2 SCC 480 5 (1981) 2 SCC 710

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Abdul  Khader   v.   Union  of  India  and  others  6  ,    

Kundanbhai  Dulabhai  Shaikh  etc.   v.   Distt.   

Magistrate,  Ahmedabad  and  others  etc.7,  Venmathi  

Selvam (Mrs.)  v.  State of Tamil Nadu and another8,  

Rajammal  v.  State  of  Tamil  Nadu  and  another9,  

Harshala Santosh Patil  v.  State of Maharashtra and  

others10,  Pebam  Ningol  Mikoi  Devi   v.   State  of   

Manipur  &  Ors.  11   and  Ummu Sabeena  v.   State  of   

Kerala  & Ors.  12  .   Counsel  submitted  that  the  gravity  of  

offence  is  irrelevant  in  preventive  detention  matters.  

Preventive detention is a serious inroad on the liberty of a  

person.  The procedural safeguards are the only protection  

available  to  him and,  therefore,  their  strict  compliance  is  

necessary.   In  this  connection,  counsel  relied  on  the  

judgments of this Court in  Smt. Icchu Devi Choraria  v.  

Union of India and others13, Kamleshkumar Ishwardas  

6 (1991) 1 SCC 476 7 (1996) 3 SCC 194 8 1998 (5) SCC 510 9 (1999) 1 SCC 417 10 (2006) 12 SCC 211 11 (2010) 9 SCC 618 12 (2011) 10 SCC 781 13 (1980) 4 SCC 531

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Patel   etc.  etc.   v.   Union  of  India  and  others14,  

Kundanbhai  Dulabhai  Shaikh  (supra) and  Rekha  v.  

State of Tamil Nadu  15  .  

5. So far as the second point urged by the counsel viz.  

that  there  is  no  independent  consideration  of  the  

representation by the detaining authority is concerned, we  

must mention that this point was not raised in the petition  

nor urged before the High Court.  It is not even raised in the  

present appeal.  Ordinarily, we would not have allowed the  

counsel to raise any point in this court, which was not urged  

before  the  High  Court.  However,  we  are  mindful  of  the  

decision of this Court in  Mohinuddin @ Moin Master  v.   

District Magistrate, Beed & Ors.  16  , where this Court has  

held that the habeas corpus petition cannot be dismissed on  

the  ground  of  imperfect  pleadings.   We  have,  therefore,  

allowed learned counsel to canvass this point.  In support of  

his submission that the detention order is liable to be set  

aside  if  the  detaining  authority  does  not  consider  the  

14 (1995) 4 SCC 51 15 (2011) 5 SCC 244 16 (1987) 4 SCC 58

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detenu’s representation independently, counsel relied on the  

judgments of  this  Court  in  K.M. Abdulla Kunhi (supra),  

Kamleshkumar  Ishwardas  Patel,  Venmathi  Selvam  

(supra) and  Harshala  Santosh Patil  (supra).   Counsel  

submitted that in the circumstances, this Court should set  

aside  the  impugned  judgment  and  quash  the  order  of  

detention dated 16/04/2012.

6. We must make it clear that these were the only points  

urged by learned counsel for the detenu in this Court.  While  

closing the hearing, we directed learned counsel to submit a  

list of authorities on the above points urged by him.  Learned  

counsel for the State was to submit his reply to the above  

points.  We are surprised to note that in the note submitted  

by  learned  counsel  for  the  detenu,  he  has  cited  four  

decisions  of  this  Court  under  the  caption  “New  Points”.  

These points are not formulated.  Thus, an opportunity has  

been  denied  to  learned  counsel  for  the  State  to  reply  to  

those new points.  We are also at a loss to understand which  

are those ‘New Points’.  We are unhappy about this conduct.  

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But, in any case, as already noted, since we are dealing with  

a preventive detention order, we would look into those four  

decisions.   

7. Mr. Arun R. Pednekar, learned counsel for the State of  

Maharashtra,  on  the  other  hand,  submitted  that  the  

representation  has  been  considered  with  utmost  

promptitude  and  the  explanation  offered  by  the  State  is  

reasonable and satisfactory.  Counsel submitted that if the  

delay  is  properly  explained,  there  is  no  breach  of  the  

constitutional  imperative.   If  there  is  no  indifference  or  

slackness  shown  by  the  State  Government,  the  order  of  

detention  cannot  be  set  aside  on  the  ground  of  delay  in  

considering the representation.  In this connection, he relied  

on judgments  of  the Constitution Bench in  K.M. Abdulla  

Kunhi  (supra) and Sayed  Abdul  Ala   v.   Union  of  

India  17  .    Counsel submitted that in any event if this Court  

comes to the conclusion that there is unexplained delay in  

considering the representation of the detenu, the order or  

detention  cannot  be  set  aside  on  that  ground.   Only  the  17 (2007) 15 SCC 208

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continued detention becomes invalid.  In this connection, he  

relied  on  judgments  of  this  Court  Union  of  India   v.  

Harish Kumar  18   and  Union of India  v.  Manish Bahal   

alias  Nishu  19  .   So  far  as  the  submission  that  the  

representation  was  not  considered  independently  by  the  

detaining authority is concerned, counsel submitted that no  

such ground was raised before the High Court  nor  was it  

taken in the petition and, therefore, the detenu should not  

be allowed to raise it at this stage.  Counsel submitted that  

in any case, the affidavit of the detaining authority clearly  

establishes  that  there  is  independent  consideration of  the  

representation  by  the  detaining  authority.   The  appeal,  

therefore, deserves to be dismissed.   

8. At the outset, we must note that on a query made by  

this  Court  as  to  whether  the  detenu  wants  to  press  this  

appeal  in  case  the  detenu  is  already  released  from  

detention,  counsel  for  the  detenu  submitted  that  he  has  

instructions  to  press  the  appeal  because  if  the  detention  

18 (2008) 1 SCC 195  19 (2001) 6 SCC 36

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order  is  set  aside by this  Court,  the proceedings initiated  

against the detenu under the provisions of the Smugglers  

and  Foreign  Exchange  Manipulators  Act,  1976  will  

automatically lapse.  We, therefore, proceed to deal with his  

submissions.   

9. Learned counsel urged that the gravity of the offence is  

irrelevant  in  a  preventive  detention  matter.   We  entirely  

agree with this submission and, hence, it is not necessary to  

refer to the judgments cited by him on this point.   

10. We  shall  first  deal  with  the  submission  that  the  

detaining  authority  has  not  considered  the  detenu’s  

representation independently.   As we have already noted,  

this point was not raised in the petition and admittedly, not  

urged before  the High Court.  Whether  a representation is  

considered by the detaining authority independently or not is  

for the detaining authority to say on affidavit.  This fact is  

within  the  exclusive  personal  knowledge  of  the  detaining  

authority.  Had this point been raised in the writ petition, the  

detaining authority would have dealt with it in her affidavit.  

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In the circumstances, if there is no categorical statement in  

the  affidavit  of  the  detaining  authority  that  she  had  

independently considered the representation, she cannot be  

faulted for it.  No inference can be drawn that the detaining  

authority did not consider the representation independently.  

In the affidavit, she has stated that the representation was  

processed  through  the  concerned  Assistant,  the  Under  

Secretary and the Deputy Secretary and then placed before  

her.   She rejected  it  on  24/7/2012.   No  objection  can  be  

taken to this procedure unless there is any slackness shown  

in processing the representation.  Here the entire procedure  

was completed within four days.  We have seen the record.  

The  concerned  Assistant,  the  Under  Secretary  and  the  

Deputy Secretary have merely put their signatures on the  

file.   They  have  expressed  no  opinion.   Therefore,  the  

submission that the detaining authority has not considered  

the representation independently and she could have been  

swayed  by  the  endorsements  made  by  the  subordinate  

officers is without any basis.  It is necessary to note here  

that this point is not raised even in the present appeal.  Had  

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it  been  raised,  we  would  have  called  upon  the  detaining  

authority to file affidavit in this Court.  In view of the above,  

we reject this submission.  

11. We shall now deal with the judgments mentioned in the  

Note  under  the  caption  “New  Points”.   So  far  as  

Mohinuddin is concerned, we have already discussed this  

judgment.  It is, therefore, not necessary to refer to it again.  

So far as Harish Pahwa  is concerned, we find that there is  

no new point discussed in this judgment.  It also states that  

the  representation  of  the  detenu  must  be  dealt  with  

continuously  until  the  final  decision  is  taken  and  

communicated to the detenu.  The second judgment is Baby  

Devassy Chully @ Bobby v.  Union of India & Ors.  20  .    In  

this case, this Court has stated that if a person is in custody  

and, there is no imminent possibility of his being released,  

the rule is that power of preventive detention should not be  

exercised.  In this case, the detenu was released on bail on  

20/8/2011  and  the  detention  order  was  passed  on  

16/4/2012.  Thus, when the detention order was passed the  20 2012 (10) SCALE 176

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detenu was not in custody.  Therefore, this judgment has no  

application to the present case.  The fourth judgment, which  

is stated to contain a new point,  is  Saeed Zakir Hussain  

Malik  v.  State  of  Maharashtra  21  .   In  that  case,  the  

detention  order  was  set  aside  on  the  ground  of  delay  in  

passing of the detention order and delay in execution of the  

detention order.  We have carefully perused the affidavit of  

the detaining authority.  The detaining authority has stated  

what steps were taken and how the proposal submitted by  

the  sponsoring  authority  was  processed  till  the  detention  

order was passed.  The sponsoring authority has also filed  

affidavit  explaining steps taken by it  till  the proposal  was  

submitted.   The High Court  has  rightly  held that  the said  

explanation  is  satisfactory.   In  this  connection,  reliance  

placed by the High Court on the judgment of this Court in  

Rajendrakumar Natvarlal Shah  v.  State of Gujarat  22   is  

apt.   We  deem  it  appropriate  to  quote  the  relevant  

paragraph.

21 (2012) 8 SCC 233 22 (1988) 3 SCC 153

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“10. Viewed from this perspective, we wish to emphasise   and make it clear for the guidance of the different High   Courts that a distinction must be drawn between the delay   in making of an order of detention under a law relating to   preventive  detention  like  the  Conservation  of  Foreign   Exchange and Prevention of Smuggling Activities Act, 1974  and the delay in complying with the procedural safeguards   of Article 22(5) of the Constitution. It has been laid down   by this Court in a series of decisions that the rule as to   unexplained delay in taking action is not inflexible. Quite   obviously, in cases of mere delay in making of an order of   detention  under  a  law like  the  Conservation  of  Foreign   Exchange and Prevention of Smuggling Activities Act, 1974  enacted for the purpose of dealing effectively with persons   engaged in smuggling and foreign exchange racketeering   who,  owing to  their  large resources  and  influence have  been posing a serious threat to the economy and thereby   to the security of the nation, the courts should not merely   on account of  delay in making of an order of detention   assume  that  such  delay,  if  not  satisfactorily  explained,   must necessarily give rise to an inference that there was   no sufficient material for the subjective satisfaction of the   detaining authority or that such subjective satisfaction was   not genuinely reached. Taking of such a view would not be   warranted  unless  the  court  finds  that  the  grounds  are   “stale” or illusory or that there is no real nexus between   the grounds and the impugned order of detention.  The   decisions to the contrary by the Delhi High Court in Anil   Kumar Bhasin  v.  Union of India & Ors., Crl. W.No.410/86   dated 2.2.1987,  Bhupinder  Singh  v.   Union of  India  &   Ors.,  Crl.  W. No.375/86 dated 11.12.1986,  Surinder Pal   Singh v. M.L. Wadhawan & Ors., Crl. W. No.444/86 dated   9.3.1987 and Ramesh Lal  v.  Delhi Administration, Crl. W.   No.43/84  dated  16.4.1984  and  other  cases  taking  the  same view do not lay down good law and are accordingly   overruled.”

In light of the above observations of this Court in our  

opinion,  the order of detention cannot be quashed on the  

ground that there is delay in issuance of the detention order.  

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So  far  as  delay  in  execution  of  the  detention  order  is  

concerned,  it  appears  from  the  affidavit  of  the  detaining  

authority that the detenu is a resident of Mangalore in the  

State of Karnataka.  The affidavit of Ravindra Kumar Das,  

Deputy  Commissioner  of  Customs,  COFEPOSA  Cell,  CSI  

Airport,  Mumbai,  indicates that because the detenu was a  

resident of Mangalore in the State of Karnataka, the order of  

detention,  grounds  of  detention  and  the  accompanying  

documents were forwarded to the State of  Karnataka and  

the order  of  detention,  therefore,  could  be served on the  

detenu only on 10/5/2012.  In the peculiar facts of this case,  

in  our  opinion,  the  High  Court  has  rightly  rejected  this  

submission.  We endorse the High Court’s view on this point.  

12. We shall now turn to the submission that there is delay  

in  disposal  of  the  detenu’s  representation  by  the  State  

Government.  Several judgments have been cited by learned  

counsel for the appellant.  It is not necessary to refer to all of  

them because they reiterate the same principles.  We may  

begin with the observations of this Court in Francis Coralie  

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Mullin  v.  W.C. Khambra  23  .  The relevant portion of the  

said judgment reads thus:

“The  time  imperative  can  never  be  absolute  or   obsessive”.    

In L.M.S. Umma Saleem v. B.B. Gujral,   (1981)    

3 SCC 317, it was held :  

“The occasional observations made by this Court   that  each  day’s  delay  in  dealing  with  the  representation must be adequately explained are   meant to emphasise the expedition with which the  representation must be considered and not that it   is a magical formula, the slightest breach of which  must  result  in  the  release  of  the  detenu.   Law   deals with the facts of life.  In law, as in life, there   are no invariable absolutes.  Neither life nor law   can be reduced to mere but despotic formulae.”  

13. It is also necessary to refer to the observations of the  

Constitution  Bench  of  this  Court  in  K.M.  Abdulla  Kunhi  

which read thus:    

“12. Clause  (5)  of  Article  22  therefore,  casts  a   legal obligation on the government to consider the   representation  as  early  as  possible.  It  is  a   constitutional  mandate  commanding  the  concerned authority to whom the detenu submits   his representation to consider the representation   

23 AIR 1980 SC 849

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and  dispose  of  the  same  as  expeditiously  as   possible.  The  words  “as  soon  as  may  be”   occurring in  clause (5)  of  Article  22 reflects  the  concern  of  the  Framers  that  the  representation   should be expeditiously considered and disposed   of with a sense of urgency without an avoidable   delay. However, there can be no hard and fast rule   in  this  regard.  It  depends  upon  the  facts  and  circumstances  of  each  case.  There  is  no  period   prescribed either under the Constitution or under   the  concerned  detention  law,  within  which  the   representation  should  be  dealt  with.  The  requirement however, is that there should not be   supine indifference, slackness or callous attitude   in  considering  the  representation.  Any  unexplained  delay  in  the  disposal  of   representation  would  be  a  breach  of  the   constitutional imperative and it would render the   continued detention impermissible and illegal.”  

14. The  principles  which  have  been  laid  down  by  the  

Constitution Bench and the other judgments which we have  

referred to earlier can be summarized.  Article 22(5) of the  

Constitution casts a legal obligation on the Government to  

consider  the detenu’s  representation as  early  as  possible.  

Though  no  time  limit  is  prescribed  for  disposal  of  the  

representation, the constitutional imperative is that it must  

be  disposed of  as  soon as  possible.   There  should  be  no  

supine  indifference,  slackness  or  callous  attitude.   Any  

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unexplained  delay  would  be  a  breach  of  constitutional  

imperative and it  would render the continued detention of  

the detenu illegal.  That does not, however, mean that every  

day’s delay in dealing with the representation of the detenu  

has  to  be  explained.   The  explanation  offered  must  be  

reasonable  indicating  that  there  was  no  slackness  or  

indifference.  Though the delay itself is not fatal, the delay  

which  remains  unexplained  becomes  unreasonable.  The  

court  can  certainly  consider  whether  the  delay  was  

occasioned  due  to  permissible  reasons  or  unavoidable  

causes.   It  is  not  enough to  say that  the  delay was very  

short.  Even longer delay can as well be explained.   So the  

test is not the duration or the range of delay, but how it is  

explained  by  the  authority  concerned.   If  the  inter  

departmental  consultative  procedures  are  such  that  the  

delay becomes inevitable, such procedures will contravene  

the constitutional mandate.  Any authority obliged to make  

order  of  detention  should  adopt  procedure  calculated  

towards  expeditious  consideration  of  the  representation.  

The representation must be taken up for  consideration as  

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soon  as  such  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.    

15. In light of above principles, it is now necessary to see  

how  the  State  Government  has  disposed  of  the  detenu’s  

representation  in  this  case.   In  this  connection,  relevant  

dates are available from the affidavit of Shivaji S. Patankar,  

Deputy Secretary to the Government of Maharashtra, Home  

Department  (Special),  affidavit  of  Medha  Gadgil,  Principal  

Secretary (Appeals & Security), Government of Maharashtra,  

Home  Department,  Mantralaya,  Mumbai  and  affidavit  of  

Ravindra  Kumar  Das,  Deputy  Commissioner  of  Customs,  

COFEPOSA Cell, CSI Airport, Mumbai.    The High Court has  

correctly  located  the  important  dates  from  the  three  

affidavits.   In our opinion, the detaining authority and the  

sponsoring authority have properly explained the time lag  

between 6/7/2012 i.e. the date when the representation was  

received  by  the  detaining  authority  and  the  date  of  

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communication of rejection to the detenu i.e. on 30/7/2012.  

The  explanation  offered  by  them  is  reasonable  and  

acceptable.  We find that the representation was taken up  

for consideration as soon as it was received and dealt with  

continuously  until  a  final  decision  was  taken  and  

communicated to the detenu.  Undoubtedly, time was taken  

to  obtain  para-wise  comments  from  the  sponsoring  

authority.  But, in Kamarunnissa v.  Union of India  24  , this  

Court  has  held  that  seeking  views  of  the  sponsoring  

authority cannot be said to be a futile exercise.  Thus, the  

time  lag  between  receipt  of  the  representation  till  its  

consideration and communication of rejection to the detenu  

is properly explained.

16. We,  however,  find  that  the  delay  in  transmitting  the  

representation to the detaining authority by the jail authority  

is not explained.  If the representation was received by the  

Superintendent  of  Jail  on  23/6/2012,  he  should  have  

immediately sent it to the detaining authority.  The detaining  

authority has received it on 6/7/2012.  The time lag between  24 (1991) 1 SCC 128

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23/6/2012 and 6/7/2012 is not explained at all.   It  is only  

stated  by  the  detaining  authority  that  23/6/2012  and  

1/7/2012 were public holidays.  There is no explanation for  

the inaction on the part of the Superintendent of Jail, Nashik  

Road Central Prison, Nashik.  He has not cared to file any  

affidavit  explaining  why  the  representation  which  was  

received by him on 23/6/2012 was not sent to the detaining  

authority  immediately.   In  Pebam  Ningol  Mikoi  Devi,  

seven  days’  unexplained  delay  in  forwarding  the  

representation to the Central  Government  was held  to  be  

fatal.  In Aslam Ahmed Zahire Ahmed Shaik, the detenu  

had handed over his representation to the Superintendent of  

Jail  on  16/6/1998  for  onward  transmission  to  the  Central  

Government.   It was kept unattended for a period of seven  

days and, as a result, it reached the Government 11 days’  

after it was handed over to the Superintendent of Jail.  The  

Superintendent of Jail had not explained the delay.   Relying  

on  Vijay Kumar  v.   State of  J.  & K.  25  ,  the  continued  

detention  of  the  detenu  was  set  aside.   At  the  cost  of  

25 (1982) 2 SCC 43

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repetition,  we  must  note  that  in  this  case,  the  

Superintendent of Jail has not filed any affidavit explaining  

delay. Therefore, this delay, in our opinion renders continued  

detention of the detenu, illegal.   

17. We would like to make it clear that the delay in disposal  

of  the  representation  of  the  detenu has  vitiated  only  the  

continued  detention  of  the  detenu  and  not  the  detention  

order.  In  Meena Jayendra Thakur v. Union of India  26  ,    

this  Court  was  considering  a  case  where  the  detenu  was  

detained under the provisions of the said Act.   This Court  

held  that  if  the  detaining  authority  on  the  basis  of  the  

materials before him did arrive at his satisfaction with regard  

to the necessity for passing an order of detention and the  

order is passed thereafter, the same cannot be held to be  

void because of a subsequent infraction of the detenu’s right  

or of non-compliance with the procedure prescribed under  

law because that does not get into the satisfaction of the  

detaining authority while making an order of detention under  

Section 3(1) of the said Act.  It does not affect the validity of  26 (1999) 8 SCC 177

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the order of detention issued under Section 3(1) of the said  

Act.   Similar view has been taken by this Court in  Sayed  

Abdul Ala.  In that case, this Court was concerned with an  

order  of  detention  issued  under  the  Prevention  of  Illicit  

Traffic in Narcotic Drugs and Psychotropic Substances Act,  

1988.  It was argued that there was delay in considering the  

representation of the detenu.  Relying on Meena Jayendra  

Thakur, this Court expressed that even if it is to be assumed  

that there was some delay in considering the representation,  

the same would not vitiate the original order of detention.  

By reason of the delay, only further detention of the detenu  

will  become  illegal.   The  delay  in  considering  the  

representation does not vitiate the order of detention itself.  

In Harish Kumar, this Court was again considering an order  

of detention issued under the provisions of the said Act.  This  

Court reiterated the same view and held that the detention  

order passed at the satisfaction of the detaining authority on  

the basis of the material available in no manner gets vitiated  

for  the  reason  of  non-consideration  of  the  representation  

made by the detenu to the Central Government.  It was held  

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that initial order of detention was not rendered void ab initio.  

It  may be noted that  even the  Constitution Bench of  this  

Court in  K.M. Abdulla Kunhi, held that any unexplained  

delay in disposal of representation of the detenu would be a  

breach of the  constitutional  imperative and it would render  

the  continued detention  impermissible  and illegal  and set  

aside the continued detention of the detenu.  

18. In  view of  this  clear  legal  position,  we hold  that  the  

order of detention dated  16/4/2012  is valid.   However,  on  

account  of  delay  in  disposal  of  the  representation  of  the  

detenu by the State Government, the continued detention of  

the detenu is rendered illegal.  We, therefore, direct that the  

detenu  –  Abdul  Nasar  Adam  Ismail  be  released  from  

detention  forthwith  if  he  is  not  already  released  from  

detention and he is  not  required in  any other  case.   The  

appeal is disposed of accordingly.  

………………………….J. [T.S. Thakur]

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………………………….J. (Ranjana Prakash Desai)

New Delhi April 2, 2013

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