K.B. Panda, J.
1. This is an application for a writ of habeas corpus challenging petitioner's order of detention dated 4th of August, 1974, passed by the District Magistrate of Cuttack (Opposite Party No. 2) in exercise of powers vested under Section 3 (1) (a) (iii) of the Maintenance of Internal Security Act, 1971 read with Section 3 (2) (a) and (5) (sic) (3 ?) thereof. Petitioner was taken into custody the same days.
2. The detenu was furnished the following grounds in support of the order of detention:
You have been licensed to act as a wholesaler for dealing with (in) fertilisers by the competent authority as per the provisions contained in the Fertilisers (Control) Order, 1957, and in that capacity you are found to have been acting in a manner prejudicial to the maintenance of supplies essential to the community in the following manner:
You have pledged Ammonium Sulphate fertiliser to the Canara Bank. As pen the record maintained in Canara Bank, it is seen that there should be 70 bags of Ammonium Sulphate pledged to the Bank in stock on 27-7-1974, but on physical verification by the Bank authorities and police, the same was found to be only 30 bags. Thus, there is an unaccountable shortage of 40 bags of the pledged stock. The stock register in respect of Ammonium Sulphate maintained by you shows that on 1-5-1974 on which date the last entry has been made in your Stock Book, the stock balance of Ammonium Sulphate was 340 bags, Since only 30 bags of Ammonium Sulphate were physically found in your godown, there is ah over-all shortage of 310 bags, which is unaccounted for.
It is clear, therefore, that you have in an unauthorised manner disposed of 310 bags of Ammonium Sulphate including 40 bags of the stock pledged to the Canara Bank. Fertilisers are declared essential commodities under Section 2(a)(xi) of the Essential Commodities Act, 1955 (Act No. 10 of 1955) and hence the imperative and immediate need of invoking the provisions contained in Section 3 (1) (a) (iii) of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971). In consideration of the above, I am personally satisfied that with a view to-prevent you from acting in a manner prejudicial to the maintenance of supplies essential to the community, it is necessary so to do and I have therefore, passed an order under Sub-section (iii) read with Clause (2) (a) of Section 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971).
3. Petitioner made a representation to the State Government against the order of detention on 19-8-74 and the detaining authority received the said representation on the self-same day. He, however, forwarded it to the State Government only on 13-9-1974 and after receipt of the representation, Government disposed it of within four days by rejecting it.
4. Petitioner has raised two contentions in support of this application : (i) the order of detention has no reasonable , nexus with the object of detention under the Maintenance of Internal Security Act and (ii) there has been unusual delay in disposal of the representation.
5. In the return made to this Court by the detaining authority, it has been asserted that fertilisers are an essential commodity and petitioner had failed to maintain proper accounts and was not able to explain a huge stock in his charge. In these circumstances the detaining authority reasonably assumed that petitioner was disposing of fertiliser which was in great demand in the black market. The detaining authority as also the Deputy Secretary to Government of Orissa in the Home Department filed two separate affidavits in answer to the allegation of delay in disposal of his representation which was specifically highlighted in the rejoinder filed on behalf of petitioner. According to the detaining authority, detenu's representation was received by him on 19-8-1974. As the detenu raised several questions of fact and in the opinion of the detaining authority those necessitated investigation, the representation was sent to the Superintendent of Police, Cuttack, for verification and report. The police returned the report on 15-9-1974, but before receiving the report from the police, the detaining authority forwarded the representation to the State Government on 13-9-1974. On 15-9-1974, the report from the police was received and on 16-9-1974 it was forwarded to the State Government. In respect of the delay at his level, the detaining authority explained how the police within the district were busy in the intervening period. The Deputy Secretary to Government in his affidavit stated that the Government received the representation on 13-9-1974, The para-wise comments came a little thereafter from the detaining authority and on the 20th of September, 1974, the State Government disposed of the representation.
6. We shall proceed to examine the contention of the petitioner that his detention has become illegal on account of the delay in disposal of his representation. Counsel for both sides agree that if the detention is vitiated on that ground, the order of detention has to be struck down, In several decisions of the Supreme Court, the effect of undue delay on the part of the State Government in considering the detenu's representation has been decided, In the case of D. N. Goswami v. State of West Bengal AIR 1973 SC 757 : 1973 Cri LJ 596, the court indicated:
The question of the effect of undue delay on the part of the State Government in considering a detenu's representation has come up before this Court on numerous occasions. It. has consistently been laid down that no hard and fast line can be drawn and that in each case it has to be seen if on the facts and circumstances the State Government can be said to have- considered the representation with reasonable dispatch and promptitude realising the importance our Constitution attaches to an individual's right to personal liberty. The position has been reviewed in a recent decision of this Court in Durga Pada Ghosh v. State of West. Bengal W. P. No. 174 of 1972, D/- 7-8-1972 (reported- in AIR 1972 SC 2420). Article 22(5) of the Constitution imposes an obligation on the authority making an order of preventive detention to communicate to the person concerned as soon as may be the grounds on which such order is made and also to afford him the earliest opportunity of making a representation against that order. This obligation can be meaningful only if such representation is also considered with the same sense of urgency with which the authority is required to communicate the grounds and afford the earliest opportunity to the detenu. It must necessarily follow that if the representation is not considered with the same sense of urgency the very purpose of providing the communication and the opportunity by sub-art. (5) would be frustrated and defeated. The explanation for the delay has to satisfy the conscience of the court that the State Government concerned considered the representation with the sense of urgency expected of it by the Constitution....
In the present case, the detenu's representation was in the hands of the detaining authority on 19-8-1974 and as it was disposed of on 20th of September, 1974, a total period of 31 days has been taken. In the case of Manilal Singhania V. N. Mohanty, O. J. C. No. 1076 of 1974, disposed of on 19-12-1974 (Orissa) we have examined at great length this aspect of the matter and consider it unnecessary to repeat what has been stated there. The total period of thirty-one days is certainly too long unless it is adequately explained. The period of thirty-one days in this case can be divided into two parts. The re- . presentation remained in the hands of the detaining authority from 19-8-1974 till 13-9-1974 a total period of 25 days excluding the two days on either side. The reason for detaining the representation for such a long period is said to be an equiry into the allegations of facts. There is no duty cast on the detaining authority to make an investigation. We agree with the learned Additional Government Advocate that if an enquiry is made by the detaining authority and particulars are furnished to the State Government, there may be no objection, but on the score of making an enquiry, the representation could not be withheld for about 4 weeks and it could not be kept away from the authority competent to dispose it of.
7. The detaining authority was obliged to send the representation to the State Government on the 13th of September, 1974, as he did not receive the enquiry report until then. It was only after the representation had been forwarded to the Government that on 15-9-1974, the enquiry report came. What was done on the 13th of September, 1974, could as well have been done in good time after the representation was received.
The explanation for the delay in making the enquiry also does not seem to be appropriate enough so as to satisfy judicial conscience in the matter. The en-quiring authority has not given any affidavit to explain the position. It is nowhere the case that the Superintendent of police made a personal investigation into the allegations in the detenu's representation. Even if the Superintendent of Police was busy as stated in the affidavit of the detaining authority the enquiry could have been entrusted to some other person. We are not at all satisfied that the delay of 25 days at the level of the detaining authority has been explained so as to condone the same,
There does not appear to have been any delay at the level of the Government and in, fact Counsel for the petitioner did not make such a contention.
Even if there be no delay at the level of the State Government, the fact that there has been a total delay of 31 days in disposing of the representation and there is no adequate explanation for the said period must necessarily result in a finding that the representation has not been disposed of with due haste; on the other hand, there has been unusual delay in dealing with it. As We have already said, the effect of such a position is that the order of detention becomes illegal and has to terminate.
8. It is unnecessary to examine the other contention because in our view on the conclusion reached above, the petition has to succeed and the petitioner has to be set at liberty. We allow his application, quash the detention and direct that he be released forthwith.
K.B. Panda, J.
9. I agree.