tion Original No 567 of 1986
Under Article 32 of the Constitution of India
Dr Raxna Swamy and PH Parekh for the Petitioner
B Datta Additional Solicitor General VJ Rao YP Rao Ms K Kumaramanglam and Ms section Relhan for the Respond ents
The facts The petitioner is one Hem Lall Bhandari residing in Bombay practising law  there
The first re spondent is the State of Sikkim through its Home Secretary the second respondent the Delhi Administration Police Department and the third respondent the Union of India through the Home Secretary
The petitioner states that he had a humble beginning and that he by dint of hard labour qualified himself in law and secured significant success academically
It is alleged that the Chief Minister of Sikkim wanted him to join politics and that he incurred the wrath of the Chief Minister because of his disinclination to accept this suggestion and that the order of detention was passed against him consequently
On 2991986 at 1015 PM three officers of the Sikkim Police Service accompanied by two officers of the Bombay Police went to the residence of the petitioner and took him to the office of the CID Bombay where he was served with a copy of the detention order
He was detained in the police lock up at the CID office and his request to contact a lawyer was not granted
He was kept in custody till 530 PM on 30 9 1986
At 6 PM on that day he was permitted to go to his office to collect some papers
There he con tacted Shri TR Andhyarugina Senior Counsel and informed him that he was being 81 taken to the Bombay Airport to be flown by flight IC 183 to Delhi
The Senior Counsel requested the police officers to permit him to approach the Bombay High Court before taking the petitioner to Delhi
This request was not granted
However he filed a habeas corpus petition for the release of the petitioner in the Bombay High Court on the same day and PB Sawant J stayed the order of detention as per the following order at 730 PM There are no grounds of detention furnished nor any documents along with the order
The grounds for detention have to be served along with the order
The order is prima facie illegal
It is therefore stayed till further orders from this Court
 This order could not be served on the detaining officer as the Plane carrying the petitioner took off to Delhi at 830 PM
Meanwhile at 1130 PM
Shri Andhyarujina tele phonically informed a Delhi Advocate Dr Mrs Swamy of the order passed by the Bombay High Court
On receipt of this information she informed the officer on duty at the Air port of the order of Bombay High Court
Nothing happened
Therefore a petition was filed before this Court on 1st October 1986 at 230 PM on which this Court passed an order directing that the petitioner be detained in Delhi and should not be removed from Delhi by the respondents and further that he should be produced before the Chief Metro politan Magistrate who might release him on bail if he thought it fit
On 2 10 1986 the petitioner was brought before the Chief Metropolitan Magistrate who after hearing the parties granted bail to the petitioner
The petitioner was released the same evening at 430 PM on furnishing a bond of a sum of Rs 10000 with a surety in the like sum
The petitioner returned to Bombay the next day The address of the petitioner is well known to the respondents
No serious attempt was made by them between 2 10 1986 and 14 10 1986 to serve the petitioner with the grounds of detention
On 6th October 1986 the petitioner attended the Bombay High Court in connection with the writ petition filed there and has been regularly attending his office and carrying on his professional duties both in the office and in the High Court
On 14 10 1986 the petitioner was served with the impugned order of detention the grounds of detention and the supporting documents
The case put forward by the petitioner s counsel is that the delay caused in serving the grounds of detention from 2 10 1986 to 14 10 1986 clearly violates Section 81 of the Act 82 and on that ground the order of detention has to be quashed
To meet the case of the petitioner that the grounds of detention were served on him only 15 days after the order of detention a Counter Affidavit is filed sworn to by the Home Secretary Government of Sikkim
We extract below the rele vant portion of the Counter Affidavit On 2 10 1986 the petitioner was produced in the Court of the Chief Metropolitan Magis trate
The petitioner was released on bail in pursuance of the order of this Hon ble Court
On 3 10 1986 the grounds of deten tion alongwith the materials were handed over to Shri KP Subba for service on the peti tioner
Shri KP Subba having learnt from Mrs Swami who was his surety that the petitioner left for Bombay on the same day
On 4 10 1986 the Police Officers could not contact the petitioner in his address
He waited on 5 10 1986 also but he did not find the petitioner at his house address or in the Court
He returned to New Delhi on 6 10 1986
The writ petition No 1015 of 1986 was heard by Hon ble Mr Justice Sawant and Justice Kolse Patil and by order dated 14 10 1986 discharged the rule
The grounds of detention could not be served within the period of 5 days or 10 days as per section 8 of the Act because the petitioner was released on bail by the Chief Metropolitan Magistrate on 2 10 1986 and the petitioner avoided the police officer
The petitioner received the grounds alongwith the material on 14 10 1986 at Bombay as per the orders of the High Court
Shri KP Subba the Police Officer waited till 6th October 1986 at Bombay and having found that he was not able to contact the petitioner returned to Gangtok
Thus the grounds could not be served on the petitioner within the stipulated period as the petitioner was not under detention from 2nd October 86 onwards
Had the petitioner been in detention it would have been possible for me to get the grounds served on the petitioner on 3rd Octo ber 1986 itself
I respectfully submit that it is the petitioner who rendered every effort on my part to serve the grounds futile 83 taking advantage of the various orders of the High Court of Bombay and this Hon ble Court
I did not know that the Writ Petition filed by the petitioner was posted in the Bombay High Court on 6th October 1986
No notice was served on me or on the State Government about the posting of the writ petition in the Bombay High Court on 6th October 1986
The only communication received was that the said case was posted on 14th October 1986
Our Advocate General appeared on the day in the High Court of Bombay
I respectfully submit that the petitioner cannot be allowed to contend that the provisions of Section 8 of the Act were violated by me in view of the fact that the petitioner was not in detention and was en larged on bail by the Chief Metropolitan Magistrate New Delhi under the orders of this Court
Therefore I respectfully submit that there is no violation on my part of the provi sions of Section 8 of the Act
 The petitioner has made various allegations of malafides against the Chief Minister of Sikkim
These allegations are not supported by any acceptable evidence
Therefore we do not propose to consider them
Much was made of the fact that the Chief Minister has not filed a Counter Affidavit himself denying the allegations
According to us it is not necessary since the allegations are wide in nature and are bereft of details
We do not think it necessary in all cases to call upon persons placed in high positions to controvert allega tions made against them by filing affidavits unless the allegations are specific pointed and necessary to be con troverted
We therefore propose to confine ourselves purely to the question whether there has been a violation of the mandatory provisions contained in Section 8 of the Act
or not
The order of the Home Secretary directing the petition er s detention under Section 3 of the Act was made on 25 9 1986 and grounds of detention were prepared on the same date
The petitioner was served with the detention order on 29 9 1986 at 1015 PM
He was taken to the Bombay Police lock up that day
On 30 9 1986 at 6 PM he was taken to his office in Bombay
On the same day the Bombay High Court passed an order at 730 PM staying the detention order
The Plane carrying the petitioner leaves Bombay for Delhi on the same day at 830 PM
The detaining officers were in formed of the order of the Bombay High Court on 1 10 1986 at 5 PM
On the same day at 330 PM the Supreme Court di rects that the petitioner shall not be taken out of Delhi
On 2 10 1986 the Chief Metropolitan 84 Magistrate directs the petitioner s release on bail
On 14 10 1986 the petitioner is served with grounds of detention
These facts are not disputed
Let us see how the concerned officer explains the delay caused in servings the grounds of detention on the petition er
But before doing so we will read Section 81 of the Act
81 When a person is detained in pursuance of a detention order the authority making the order shall as soon as may be but ordinarily not later than five days and in exceptional circumstances and fOr reasons to be recorded in writing not later than fifteen days from the date of detention communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government A bare reading of the Section shows that it is obligato ry on the detaining officer to communicate to the detenu the grounds on which the order of detention has been made promptly
This has to be done as soon as possible and ordi narily not later than 5 days
The detaining authority is permitted to exceed this limitation of 5 days in exceptional circumstances
The grounds of detention under exceptional circumstances can be communicated to the detenu within a period not later than 15 days from the date of detention but when the detaining authority takes time longer than 5 days he was to record reasons why the grounds of detention could not be communicated within 5 days
It is clear in this case that the grounds of detention were communicated to the petitioner long after 10 days
There is no record evidencing any reason for this long delay
We have therefore to examine the reasons why the grounds of detention were given only on 14 10 1986
It is stated in the Counter Affidavit sworn to by the Home Secretary that the grounds of detention were handed over to Shri KP Subba for service on the petitioner on 3 10 1986
This KP Subba has not chosen to file an affidavit in this case to inform this Court as to what really happened with the grounds of detention given to him for service on the petitioner
It is stated in the Counter Affidavit that Shri Subba learnt from the petitioner s Advocate Mrs Swamy that the petitioner had left for Bombay
The Counter Affidavit continues to say that on 4 10 1986 the police officers  could not contact the petitioner in his home address
It is not 85 evident from this statement as to which officer tried to contact the petitioner in his home address on 4 10 1986
It is further stated that he waited on 5 10 1986 also but he did not find the petitioner at his house address or in the Court
The Counter Affidavit is not sufficiently communica tive as to who this police officer was
The Counsel for the petitioner tried to impress upon us the fact that this statement cannot be true because 5 10 1986 happens to be a Sunday and that no police officer would try to contact an Advocate in Court on Sunday
This police officer is said to have returned to New Delhi on 6 10 1986
The Counter Affida vit is eloquently silent about what happened after 6 10 1986
The Counter Affidavit thereafter discloses the fact that Shri KP Subba the police officer waited till 6th October 1986 in Bombay and returned to Gangtok since he was not able to contact the petitioner
The complaint of the officer is that the petitioner made it impossible for him to serve the grounds of detention
Every attempt on the part of the officer to serve the petitioner with grounds of deten tion were rendered futile by taking advantage of the orders of the High Court and the Supreme Court
It is further stated in the Counter Affidavit that the grounds of deten tion could not be served since the petitioner was released on bail and was not under detention from 2nd October 1986 onwards
We have considered the averments in the Counter Affida vit carefully
We have no hesitation to hold that there has been a flagrant violation of the mandatory provisions of Section 8 in this case
It is not permissible in matters relating to the personal liberty and freedom of a citizen to take either a liberal or a generous view of the lapses on the part of the officers
In matters where the liberty of the citizens is involved it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of law
Expeditious action is insisted upon as a safeguard against the manipulation
In this case there is no acceptable or satisfactory explanation as to what the officer or the officers did after 6 10 1986
This inaction after 6 10 1986 till 14 10 1986 by itself is sufficient for us to hold that Section 81 has been violated by the officer concerned and on that ground alone the order of detention has to be quashed
An attempt was made by the counsel for the respondents to contend that the delay in communicating the grounds of detention caused in this case has to be condoned and the rigour of the Section relaxed since the detenu had been released on 2 10 1986 and hence 86 not in detention
This according to us is a specious plea which cannot stand legal scrutiny
If this contention is to be extended to its logical conclusion it would be clothing the authorities with powers to delay communication of the ground of detention indefinitely whenever a detenu secures from a Court of law either bail or parole
To accept this contention would be to destroy the effect of the mandate of the Section
As indicated earlier the mandate enacted in the Section is a safety valve for a citizen who is robbed of his liberty and to disable the authorities from manipulating the grounds of detention
The Section has to be interpreted literally
No relaxation is permissible
If the original time of 5 days has to be extended such extension must be supported by an order recording reasons
If reasons are not so corded the order of detention will automatically fail
Even if reasons are recorded they have to inspire confidence in the Court and are subject to legal scrutiny
If the reasons are unsatisfactory Courts would still quash the order of detention
On a consideration of the materials placed before us we hold that the order of detention is bad and we quash the same
Since the petitioner is not in detention there is no need to pass any order to direct his release
APJ Petition allowed


Summary:
The Order of detention of the petitioner under s3 of the was made on 259
1986 and the grounds of detention were prepared on the same date
The petitioner was detained and served with the detention order on 2991986 at 1015 PM
In a habeas corpus petition filed on behalf of the petitioner on 309
1986 the High Court passed an order at 730 PM staying the detention order
However the stay order could not be served on the detaining officer as the plane carrying the petitioner left Bombay for Delhi at 830 PM
The detaining officers were informed of the order of the High Court on 1 101986 at 5 PM
On the same day a petition was filed in this Court and at 330 PM this Court passed an order directing that the petitioner shall not be taken out of Delhi
On 210
1986 the petition er was released on bail by the Chief Metropolitan Magis trate Delhi
On 1410
1986 the petitioner was served with grounds of detention
On behalf of the petitioner it was contended that the delay caused in serving the grounds of detention from 210 196 to 1410
1986 clearly violates the mandatory require ments contained in s81 of the Act and therefore the order of detention was liable to be quashed
On behalf of the respondents it was contended 1 that the petitioner made all efforts of the police officer to serve the grounds of detention futile by taking advantage of the orders of the High Court and this Court and 2 that the delay in communicating the grounds of detention caused in this case should be condoned and rigour of the section relaxed since the detenu had been released on 2101986 and hence not in detention
Allowing the petition 78 79 HELD 1 Section 81 of the Act shows that it is obligatory on the detaining officer to communicate to the detenu the grounds on which the order of detention has been made
This has to be done as soon as possible and ordinarily not later than 5 days
The limitation of 5 days can be exceeded in exceptional circumstances
The grounds of deten tion under exceptional circumstances can be communicated to the detenu within a period not later than 15 days from the date of detention but when the detaining authority takes time longer than 5 days he has to record reasons why the grounds of detention could not be communicated within 5 days
2 The mandate enacted in the section is a safety valve for a citizen who is robbed of his liberty from manipulating the grounds of detention
The section has to be interpreted literally
No relaxation is permissible
If the original time of 5 days is to be extended such extension must be supported by an order recording reasons
If reasons are not so recorded the order of detention will automatically fail
Even if reasons are recorded they have to inspire confidence in the Court and are subject to legal scrutiny
If the reasons are unsatisfactory Courts will still quash the order of detention
3 In the instant case the grounds of detention were communicated to the petitioner long after 10 days
There is to record evidencing any reason for this long delay
The contention that the delay in communicating the grounds of detention caused in this case has to be condoned and the rigour of the section relaxed since the detenu had been released on 210
1986 and hence not in detention is a specious plea which cannot stand legal scrutiny
If this contention is to be extended to its logical conclusion it would be clothing the authorities with powers to delay communication of the grounds of detention indefinitely whenever a detenu secures from a Court of law either ball or parole
To accept this contention would be to destroy the effect of the mandate of the section
4 In the case there is no acceptable or satisfactory explanation as to what the officer or the officers did after 610 1986
This inaction after 6101986 till 1410
1986 by itself is sufficient to hold that s81 has been violat ed by the officer concerned
The order of detention is bad and therefore quashed
5 It is not necessary in all cases to call upon per sons placed in high positions to controvert allegations made against them by filing 80 affidavits unless the allegations are specific pointed and necessary to be controverted