K.P. Mohapatra, J.
1. This application under Article 226 of the Constitution of India has been filed by the brother of the detenu Pradyumna Kumar Mishra with a prayer that a writ of habeas corpus be issued against the State of Orissa in as much as the detention of the detenu in exercise of the powers conferred under Section 3(2) of the National Security Act (hereinafter called the 'Act') was not in accordance with law.
2. The only point that has been raised before us by Mr. Mund, learned counsel, appearing on behalf of the petitioner, is that the representation made by the detenu against his detention to the State Government was not disposed of within a reasonable time and the inordinate unexplained delay would vitiate the order.
3. In order to decide the question raised reference may be made to certain admitted facts. The District Magistrate, Puri by order dated 12. 8. 1984 being satisfied that it was necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, passed the order of detention under Section 3(2) of the Act against the detenu on 12. 8. 1984 which was served on him on the same day. Accordingly the detenu was detained in the Special Tail at Bhubaneswar. On 16. S. 1984 the detenu was supplied with the grounds of his detention. The detenu submitted representation to the Secretary to the Government of Orissa in the Home Department, Bhubaneswar vide Annex-4 dated 27. 8. 1984. The Superintendent of Special Jail, Bhubaneswar forwarded the representation of. the petitioner to the District Magistrate, Puri on 1. 9. 1984. On 6. 9. 1984 the District Magistrate, Puri forwarded the same to the Secretary to Government in Home Department with parawise comments. On 10.9.1934 the representation was received in the Home Department. On 12. 9. 1984 the Secretary, Home Department examined the matter and made his notings. On 19. 10. 1984 the Chief Minister passed orders on the representation and the order of the State Government was passed on 22. 10, 1984 rejecting the representation of the detenu On 23. 10. 1984 the decision of the Government was communicated to the detenu vide Annex-5.
4. The case of the State Government, as it appears from the additional counter filed is that the representation dated 27. 8. 1984 addressed to the Secretary to Government in Home Department was sent by the District Magistrate, Puri on 6.9.1984. Immediately on receipt of the same it was processed and orders from the Addl. Secretary to Government in Home Department was taken on 11.9.1984 and from the Secretary Home Department on 12.9.1984. Thereafter orders from the Chief Minister were taken on 19.10.1984 and the said decision was communicated to the detenu on 25. 10. 1984. During the relevant period the Chief Minister was occupied on account of State Assembly sittings, Collector & District Magistrates Conference etc. Besides, the Chief Minister was away from Headquarters for a period of 7 days on a visit to Delhi in connection with Government work. On account of the pre-occupations of the Chief Minister, orders on the representation could not be obtained earlier.
5. Law is well settled by a series of decisions of the Supreme Court and of this Court that the representation made by the detenu against the order of detention should be considered by the State Government as soon as possible, i.e., with reasonable dispatch and if that is not done it would have the effect of vitiating the order of detention. The question whether the representation submitted by a detenu has been dealt with alt reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule set formula nor by a mere arithematical counting of dates, but by a careful scrutiny of the facts and circumstances of each case. If on such examination, it is found found there was any remissness, indifference or avoidable delay on the part of the detaining authority/State Government in dealing with the representation it will undoubtedly by treated as a factor vitiating the continued detention of the detenu. On the other band, if the Court is satisfied that the delay was occasioned not by any lack of deligencc or promptness of attention on the part of the party concerned, but due to unavoidable circumstances or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention. This view is supported by the decisions reported in A.I.R. 1976 S. C, 456, (State of Orissa and Anr. v. Shri Manilal Singhania and Anr.), A.I.R.. 1982 S. C 1923 (Vijay Kumar v. State of J. & K. and Ors.) and A. I. R. 1934 S.C. 46 (Rajsuddin alias Babu Tamphi v. The State of Uttar pradesh and Anr.) and several other decisions of the Supreme Court and of this Court. In this case the representation was made oh 27.8.1984 and 4.9.1984 it was received by the office of the District Magistrate, Puri being forwarded by the Superintendent of Special Jail, Bhubaneswar. On 10. 9.1984 the representation was received in the office of the Secretary to Government in Home Department, Bhubaneswar being forwarded by the District Magistrate, Puri with his comments. Ultimately, the order of the Chief Minister was obtained on 19. 10. 1984 after being processed in the Home Department. So from the date of representation till the date of communication of the decision there was delay of 52 days. Apart from the delay in processing the application upto the stage of consideration by the secretary in Home Department, no proper explanation has been given as to why the matter was delayed for a period of more than one month before the order of the Chief Minister was obtained. The explanation now furnished is vague and unsatisfactory. There is no explanation as to why the representation was not placed before the Chief Minister on the day when he was available at the Headquarters. Considering the facts and circumstances of the case we are of the view that the explanation given for the inordinate delay is not satisfactory. We are, therefore, clearly of the opinion that there was unreasonable and undue delay in the disposal of the detenu's representation and that the utmost dispatch which is required to be shown was lacking.
6. We, therefore, allow the writ application and quash the order of detention of the detenu. Detenu Kusa @ Pradyumna Kumar Mishra be set at liberty forthwith.
There shall be no order as to costs.
K.P. Mohapatra, J.
7. I agree.