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Sahib Singh v. State Of Punjab .
Factual and Procedural Background
This petition under Articles 226/227 of the Constitution of India challenges an order passed by the respondent under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, directing detention of the petitioner who is confined in Central Jail, Patiala.
The petitioner was arrested on 24.5.1993 and 800 grams of opium were recovered. FIR No. 51 dated 24.5.1993 under Section 3 of the N.D.P.S. Act was registered at P.S. Chheharta District Amritsar. Ten grams were taken as sample and analysis confirmed opium. The petitioner admitted recovery and ownership of the 800 grams and that he was engaged in smuggling. He was remanded to police custody on 7.5.1993, to judicial custody on 27.5.1993, and released on bail on 10.6.1993 by the Judicial Magistrate, Amritsar.
The detention order under Section 3 of the N.D.P.S. Act was passed on 8.12.1993, served on the petitioner on 14.4.1994, and the petitioner has been confined since. The petitioner sought quashing of the detention order on various grounds, including delay in passing the order, delay in execution of the order, and delay in deciding his representation.
Legal Issues Presented
- Whether the detention order passed under Section 3(1) of the N.D.P.S. Act should be quashed on grounds including delay in passing and executing the order and delay in deciding the petitioner's representation.
- Whether delay in deciding the petitioner's representation rendered the continued detention illegal and unconstitutional.
- Whether the respondent's explanation for the delay (collection of para-wise comments, referral to the Advisory Board, and reliance on precedents concerning permissible delay) suffices to validate the detention.
Arguments of the Parties
Petitioner's Arguments
- The detention order should be quashed on various grounds, explicitly including: delay in passing the order, delay in execution of the order, and delay in deciding the petitioner's representation.
Respondent's Arguments
- The respondent contended that the representation was decided promptly and without delay; para-wise comments were sought from the sponsoring authority and an Advisory Board opinion was obtained.
- Learned State counsel relied on the Supreme Court decision in State of Tamil Nadu v. C. Subramani (SC), 1993 (1) RCR 8, to contend that no fixed limitation exists for deciding a representation and that delay alone does not establish violation of Article 22(5) unless there is leisureness, supine indifference, slackness or callous attitude.
- The respondent asserted the delay was due to non-receipt of comments from the Sponsoring Authority and that the Advisory Board had been referred to for opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Harish Pahwa v. State of Uttar Pradesh, 1982 (1) CLR 65 | The State must determine representations of detained persons with the utmost expedition; representations must be taken up as soon as received and dealt with continuously unless absolutely necessary to wait for assistance; allowing representations to lie without attention renders detention unconstitutional. | The court relied on this principle to hold that the unexplained delay in disposal of the petitioner's representation rendered continued detention illegal and unconstitutional. |
| State of Tamil Nadu v. C. Subramani (SC), 1993 (1) RCR 8 | No fixed time is prescribed for deciding representations; delay does not automatically violate Article 22(5) unless there is an attitude of leisureness, supine indifference, slackness or callousness; short delays may be explainable by administrative reasons. | The respondent relied on this decision to argue that absence of a statutory time limit does not imply illegality. The court distinguished Subramani, finding the delay in the present case unexplained and unduly long despite the respondent's explanations. |
Court's Reasoning and Analysis
The court examined the timeline and handling of the petitioner's representation. The petitioner made a representation on 9.5.1994, forwarded by the Superintendent, Jail on 10.5.1994, and received by the respondent on 18.5.1994. The respondent stated that para-wise comments were collected from the sponsoring authority (received 30.5.1994), the case was referred to the Advisory Board on 10.5.1994 which gave its opinion on 31.5.1994, and that the detention was confirmed on 21.6.1994. The respondent asserted the representation was rejected on 9.8.1994 and the petitioner was informed on 10.8.1994.
The court identified an unexplained period from 2.6.1994 to 9.8.1994 during which no explanation was provided as to what action was taken on the representation. The court stressed that representations by detenus must be considered with the same urgency as the grounds of detention are communicated, and that representations must be disposed of expeditiously without waiting for the Advisory Board's opinion if such waiting would render continued detention illegal.
Applying the principle from Harish Pahwa, the court rejected the respondent's contention that delay caused by awaiting comments from the sponsoring authority justified the inaction. Although acknowledging the rule in C. Subramani that no statutory limitation exists and that short delays may be explainable, the court found that the respondent had not provided any satisfactory explanation for the prolonged and unexplained delay in this case. The court therefore concluded that the delay demonstrated an impermissible failure to act with expedition.
Holding and Implications
Holding: The petition is allowed and the court directed that the petitioner be set at liberty forthwith unless he is required in any other case. The core ruling is: The detention was held illegal because of the wholly unexplained and unduly long delay in disposal of the petitioner's representation.
Implications: The immediate effect is the release of the petitioner unless required in another matter. The opinion does not purport to lay down a new general rule beyond applying established principles (as cited) regarding the duty of the State to dispose of detenue representations expeditiously; no broader novel precedent is announced in the text.
V.K Jhanji, J.:— Present petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ directing the respondent to release the petitioner who is now confined in Central Jail, Patiala in pursuance of order (Annexure P-1) passed by the respondent under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
2. Petitioner was arrested on 24.5.1993 and 800 grams of opium was recovered from his possession. FIR No. 51 dated 24.5.1993 under Section 3 of the N.D.P.S Act was registered at P.S Chheharta District Amritsar against the petitioner. From the recovered opium, 10 grams of opium was taken as sample and on analysis, it was found to be opium. Petitioner in his confessional statement, admitted the recovery and the ownership of 800 recovered grams of opium. He also admitted that he was doing smuggling of opium. He was remanded to the Police custody on 7.5.1993 Again he was remanded to judicial custody on 27.5.1993 and only on 8.6.1993 he was ordered to be released on bail. On 10.6.1993, he was released on bail by the Judicial Magistrate, Amritsar. The order of detention under Section 3 of the N.D.P.S Act was passed against the petitioner by the respondent on 8.12.1993 and the same was served upon the petitioner on 14.4.1994 and since then he is confined in Central Jail, Patiala. The quashing of the detention order has been sought on various grounds including the delay in passing of the order, execution of the order and also delay in deciding the representation of the petitioner.
3. After hearing the learned counsel for the parties, I am of the view that the petition deserves to succeed on the ground of delay in deciding the representation of the petitioner. Petitioner made a representation on 9.5.1994 which was forwarded by the Superintendent, Jail on 10.5.1994 The representation was received by the respondent on 18.5.1994 According to respondent No. 1, the representation was rejected on 9.8.1994 and the petitioner was intimated through the Superintendent, Jail on 10.8.1994 Though it has been stated that the representation of the petitioner was decided promptly and without any delay, yet I am satisfied that the respondent has not properly explained the delay in deciding the representation. What has been stated in para 3(c) is that on receipt of the representation on 18.5.1994, para wise comments were collected from the sponsoring authority which were received on 30.5.1994 It has been further stated that in the meantime, the case of the petitioner was referred to the Advisory Board on 10.5.1994 and the Board gave its opinion on 31.5.1994 In consequence thereupon, the detention of the petitioner was confirmed on 21.6.1994 No explanation has been given as to what action was taken on the representation from 2.6.1994 to 9.8.1994 when the same was rejected. When a representation is made, it is in the fitness of things that the same must be considered with the same urgency with Page: 245which the grounds of detention are communicated to the detenu. The representation of the detenu was required to be disposed of expeditiously without waiting for the opinion of the Advisory Board otherwise continued detention of the person detained would become illegal and unconstitutional. The contention of counsel for the respondent that the delay was on account of non-receipt of comments from the Sponsoring Authority cannot be accepted for the reason that it has been held by the Supreme Court of India in Harish Pahwa v. State of Uttar Pradesh, 1982 (1) CLR 65 as under:—
“Held, that calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a 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. This not having been done in the present case we have no option but to declare the detention unconstitutional.”
4. Mr. Bhanot, learned State counsel, appearing for the respondent has placed reliance on decision of the Supreme Court in State of Tamil Nadu v. C. Subramani (SC), 1993 (1) RCR 8 to contend that there is no limitation provided for deciding the representation. There is no dispute with this contention. It is true that no limitation is provided under the Act and no inference of delay leading to violation of constitutional right under Article 22(5) of the Constitution of India can be drawn unless it is shown that authorities dealing with the representation had adopted an attitude of leisureness, suppine indifference, slackness or callous attitude. In C. Subramani's case (supra), there was a delay of eight days in dealing with the representation in the office of the Chief Minister. Out of these eight days, there were two holidays and on four days, the Chief Minister could not find time being busy in Conference on law and order and on one day, the Chief Minister was busy in an official function of the University.
5. It was in these circumstances that it was held that the delay was properly explained. In the present case, no explanation worth consideration has been given for deciding or dealing with the representation of the petitioner from 2.6.1994 to 9.8.1994 when the same was rejected. In view of the wholly unexplained and unduly long delay in the disposal of the representation by the State Government, further detention of the petitioner has to be held illegal.
6. Consequently, this petition shall stand allowed and it is directed that the petitioner be set at liberty forthwith unless he is required in any other case.
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