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V. Ramaswami, J.—This is a petition by the son of one Chelliah alias Mohammed Ali Jinnah, son of Raman, Kooriyur, Ramnad district, praying for the issue of a writ of Habeas Corpus to call for the records and set the detenu free by quashing the order of detention in Crl. M.P. 13 of 1984, dated 21st April, 1984, by which in exercise of the powers u/s 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) hereinafter Called the Act, the said Chelliah alias Mohamed Ali Jinnah, an ex-Police Constable, was directed to be detained in Central Prison on the ground that it was necessary with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.
On an earlier occasion in Crl. M.P. 11 of 1983, dated 4th November, 1983 the said Chelliah alias Mohamed Ali Jinnab, whom we shall hereafter refer to as the detenu, was detained u/s 3(1) of the Act as a habitual criminal. In the grounds of detention relating to the order, dated 4th November, 1983 it was stated that on 1st November, 1983, at or about 5:30 p.m., the detenu with his associates formed themselves into an unlawful assembly, armed with deadly weapons, way-laid and wrongfully restrained one Velu, son of Karuppan of Kooriyur at Ramnad near a Murugan temple, pushed him down, threw soda water bottles and threatened dire consequences, which incident formed the subject-matter of a charge in Crime No. 302 of 1983 under Sections 147, 148, 341, 323, 427 and 506 (ii) of Indian Penal Code. Again on 2nd November, 1983, at or about 10:30 a.m. the detenu with his associates formed themselves into an unlawful assembly, armed with deadly weapons, wrongfully restrained one S. Velu, son of Sellam of Soorangottai, near Government Headquarters Hospital, Ramanathapuram, twisted his right hand and threatened him with dire consequences, which is now the subject-matter of a criminal case in Crime No. 546 of 1983, Under Sections 147, 148, 341, 323 and 506 (ii) of I.P.C. These two cases are pending trial before the Sub Divisional Judicial Magistrate, Ramanathapuram. In addition to these cases, the ground of detention mentioned that the detenu came to adverse notice in the following two cases: 1. In Chiirakudi Police station Cr. No. 25 of 1981 Under Sections 147, 148, 427. 336, 426, 332, 307 and 506 (ii) of the I.P.C. 2. In Ramnad police station Cr. No. 591 of 1981 Under Sections 354 and 323 I.P.C. The case in Cr. No. 25 of 1981 is pending trial before the Sub Divisional Judicial Magistrate, Ramnad and the case in Cr. No. 591 of 1981 ended in a conviction and a fine of Rs. 100 u/s 354, I.P.C., and Rs. 50 u/s 323, I.P.C., on 8th August, 1983.
That order of detention, dated 4th November, 1983 was challenged in a writ petition in W.P. 11335 of 1983 filed by the wife of the detenu. It appears that in that case, the learned Counsel who appeared for the Petitioner raised a contention that there was an unreasonable and unexplainable delay of over 38 days in the disposal of the written representation of the detenu and that vitiated the order of detention itself. After referring to the decisions of the Supreme Court in Babul Mitra Vs. State of West Bengal and Others, , Ranjit Dan v. State of West Bengal AIR 1972 S.C. 1755., Jayanarayan Sukul Vs. State of West Bengal, . and Khatoon Begum v. Union of India A.l.R. 1981 S.C. 1077., a Division Bench of this Court held that the representation of the detenu was not considered with sufficient alacrity and without any tardiness as required by law, that the delay in rejecting the representation has not been properly explained and that vitiated the order of detention and on that ground quashed the order of detention, dated 4th November, 1983, and directed the detenu to be set at liberty forthwith. In the said judgment itself, it is stated that that was the only contention raised by the learned Counsel for the Petitioner. Subsequently, by an order of detention, dated 21st April, 1984 in Crl M.P. 13 of 1984, the detenu was again directed to be detained in Central Prison u/s 3(1) of the Act on the ground that it was necessary with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. In the grounds of detention, it was stated that on 13th April, 1984 at or about 9 a.m. the detenu along with one Dinakaran alias Mohamed Ismail, with their associates armed with deadly weapons, acting as a gang of goondas wrongfully restrained Nagarajan, son of Subramaniam and Balu, son of Veeran at Kooriyur village, near Amman temple, which formed the basis of a complaint in Ramanathapuram Police station Cr. No. 186 of 1984, Under Sections 147, 148, 341, 323 and 506 (ii) I.P.C. The material allegations relating to this offence are also set out in the order.
In addition to this instance on 13th April, 1984 the order of detention further stated that the detenu had come to adverse notice in the following cases and listed out the earlier four instances:
Cr. No. 25/81 with reference to the instance, dated 10th April, 1981.
Cr. No. 591/81 with reference to the instance on 26th November, 1981.
Cr. No. 302 of 1983 with reference to the instance on 1st November, 1983.
Cr. No. 546 of 1983 with reference to the instance on 2nd November, 1983.
It is to quash this order of second detention and to set the detenu at liberty that the present habeas corpus petition has been filed.
The first ground urged by the learned Counsel for the Petitioner is that the four cases which are referred to as cases which had come to the adverse notice in the order of detention, dated 21st April, 1984 which were grounds for detention in the earlier order, dated 4th November, 1983 can neither be grounds for intention nor can they be relied on for the purpose of holding that the detenu is a goonda within the meaning of the Act. The learned Counsel for the Petitioner contended that after the quashing of the earlier order of detention, the detaining authority can consider only fresh facts, which have arisen after the quashing of the earlier order, and it is not possible for him to take any action either solely on the old grounds or on the old grounds with new and fresh facts. In effect, the learned Counsel for the Petitioner contended that there is some sort of principle of res judicata which would apply not only to the grounds, but also to the scope of the enquiry u/s 3 itself. On the other hand, the learned Advocate-General contended that the Government has the power to pass a fresh order of detention on fresh facts and while making such an order the Government is also entitled to rely on the earlier cases in which the detenu came for adverse notice. In fact the argument of the Advocate-General was that it was possible for the Government to pass a fresh order of detention on the same facts on which the earlier order of detention was made provided that while quashing the order, the court had not held that any of the grounds referred to therein were either non-existent or not relevant or not proximate or for any reasons it could not be taken into account. In other words, if this Court had interfered with the order on any technical ground, it was possible for the Government to cure the defect and make a fresh order of detention subject only to the condition that it would be liable to be struck down if it is shown to be a mala fide exercise of power.
Though the grounds of detention referred to the latest criminal activity as the ground on which the detention order has been made and the earlier criminal activity is only referred to as cases in which the detenu came to adverse notice, it has been held in a series of decisions of the Supreme Court and this Court that even those cases where the detenu had come to the adverse notice, (sic) have to be considered to be grounds for detention.
In Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, . with reference to the grounds of detention made u/s 8(a)(i) of the Jammu and Kashmir Public Safety Act, 1978, it was contended that the grounds of detention contained a preamble as well as grounds of detention and that there is vagueness in the preamble and that by reason of such vagueness the Petitioner has not found it possible to exercise his right of making representation under Article 22(5) of the Constitution effectively. On the other hard, it was contended on behalf of the Government, that the preamble portions themselves are not grounds, that the other portions only form the real grounds of detention and that the vagueness of the preamble could not possibly justify the argument that the grounds of detention are also vague. Rejecting this contention, the Supreme Court held;
The distinction made in Naresh Chandra Gangulay''s Case between the ''preamble'' whereby the recital is in terms of the statutory provision and the ''grounds'' meaning thereby that conclusions of fact which led to the passing of the order of detention does not justify any distinction being made between introductory facts background facts and ''grounds'' as such. All allegations of fact which have led to the passing of the order of detention are ''grounds'' of detention. If such allegations are irrelevant or vague the detenu is entitled to be released.
Thus, unless it is in the nature of a recital in terms of the statutory provision all the allegations of facts in the grounds of detention are grounds of detention and it is not the last of the instances, which prompted the department to initiate proceeding for preventive detention that would be called the grounds of detention. In fact if last of the instances alone is to be taken into account as a ground of detention it may not be possible to bring the detenu as a habitual criminal because it is the prior instance of commission of similar offences that make him a habitual criminal and thereby a goonda within the meaning of the Act.
In this connection we may also usefully refer to the decision of the Supreme Court in Wasi Uddin Ahmed v. District Magistrate, Aligarh A.l.R. 1981 S.C. 2166. It was a case dealt with under the National Security Act. The Supreme Court observed-
The past conduct or antecedent history of a per. son car appropriately be taken into account in making a detention order. It is indeed usually from prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order. of course, a such prejudicial conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary.
Prior criminal proceedings ending in a conviction or acquittal or pending investigation or trial are very material circumstances. Those circumstances might quite possibly have an impact on the decision of the detaining authority or the Government whether or not to make an order of detention. We have therefore no doubt that the grounds for detention are not merely the grounds mentioned as the last instance, but also of all those cases which have been noticed in the grounds of detention as cases in which the detenu had come to adverse notice. In fact, because of this reason, the Supreme Court in a number of cases have considered the question, whether those cases which came for adverse notice are proximate and valid grounds or stale grounds, which could not be taken into account. The question of stateless will not come in unless the earlier instances are also considered to be grounds of detention.
The question therefore arises as to when the quashing of the order of detention will operate as a bar for relying on the earlier cases as grounds for future detention.
Section 14 of the Act dealing with the revocation of detention orders reads as follows-
Revocation of detention orders.-
(1) Without prejudice to the provisions of Section 15 of the Tamil Nadu General Clauses Act, 1891 (Tamil Nadu Act 1 of 1981), a detention order may. at any time, be revoked or modified by the State Government notwithstanding that the order has been made by an officer mentioned in Sub-section (2) of Section 3.
(2) The revocation of expiry of a detention order shall not bar the making of a fresh detention order u/s 3 against the same person, in any case where fresh facts have arisen after the date of revocation or expiry, on which the State Government or an officer, as the case may be, are or is satisfied that such an order should be made.
Section 12(2) of the Act provides that in any case, where the advisory Board has reported that there is, in its opinion no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released for with. The Advisory Board''s powers are very wide. They can consider each one of the grounds of detention in order to satisfy themselves as to whether there is any sufficient cause for such detention and therefore if the opinion of the Advisory Board is that there is no sufficient cause for the detention, it may mean that there is no legal or relevant material or even if there was material, it was not sufficient or for any other reason, there is no cause for detention of the person concerned. In fact, they are expected to go into the merits thoroughly and advise the Government as to whether there is any cause for detention. Section 12(2) is also mandatory and the Government has no option but to accept the opinion of the Advisory Board and revoke the order.
Under Article 22(5) of the Constitution of India the detaining authority shall communicate the grounds of detention and shall afford him the earliest opportunity of making representations against the order. It is now well settled that Article 22(5) of the Constitution not only enables the detenu to make his representations but also enjoins a duty on the detaining authority to consider the representations on merits and also to consider the same without any unreasonable delay. It has also been further held by the Supreme Court that this obligation of the appropriate authority to consider the representation on merits is dehorn the consideration of that representation by the Advisory Board and the final confirmation order of the Government on receipt of such opinion of the Advisory Board. Thus there are two fold obligations for the appropriate Government.
(1) to afford the detenu the opportunity to make a representation and to consider the representation, which may result in the revocation of the order of detention and release of the detenu,
(2) to constitute a Board and communicate the the representation of the detenu along with other materials to the Board to enable it to form its opinion and to obtain such opinion and also on receipt of the opinion from the Board to act according to such opinion.
Section 14 of the Act only enables the Government to make a fresh detention order after the revocation of an earlier order, where there are fresh facts after the date of revocation. In the light of the provisions (sic) read with section 12(2) of the Act and Article 22 (5) of the Constitution, if the revocation or cancellation of the order of detention was by the Government either in pursuance of the opinion of the Advisory Board or on a consideration of the written representation of the detenu, the Government could only rely on Section 14(2) if they want to make a fresh detention order.
The third category of cases is revocation of the orders of detention by Courts in exercise of its power under Article 226 of the Constitution. In Basanta Chandra Ghose v. Emperor,1 the Appellant was arrested on 27th March, 1942, under an order dated 19th March, 1942, purporting to be made by the Governor of Bihar in exercise of the powers of preventive detention conferred by Rule 26 of the Defence of India Rules. An application u/s 191 Crl.P.C., was filed praying for quashing of the order. When the said application was pending, the Restriction and Detention Ordinance (3 of 1944) was promulgated on the 15th January, 1944. The High Court of Patna in the view that the new Ordinance had taken away the powers of the High Court, dismissed the application. On appeal, however, the Federal Court set aside the order and remanded the matter to the High Court for fresh disposal in due course of law. But before it could be disposed of by the High Court, the Governor of Bihar passed two other orders dated 3rd July, 1944, by the first of which, he cancelled the order of detention dated 19th March, 1942, and by the second, he directed the detention of the Appellant on the ground that it was necessary so to do with a view to prevent him from acting in any manner prejudicial to the maintenance of public order and to the efficient prosecution of the war. One of the arguments before the Federal Court was that once the order of 19th March, 1942, had been cancelled, there was no power to pass a fresh order of detention except on fresh material. Repelling this contention, the Federal Court held-
It may be that in cases in which it is open to the court to examine the validity of the grounds of detention a decision that certain alleged grounds did not warrant a detention will preclude further detention on the same grounds. But where the earlier order of detention is held defective merely on formal grounds, there is nothing to preclude a proper order of detention being based on the pre-existing grounds themselves, especially in cases in which the sufficiency of the grounds is not examinable by the courts.
In Jagdev Singh v. State of J and K. 1945 F.C. 18 SC also considered a similar question. The Petitioners in that case were detained under Rule 30 (1) (b) of the Defence of India Rules, 1962. Their detention was continued from time to time after review under Rule 30 (A). One such review was made in February, 1967. In the light of the decision of the Supreme Court reported in Sadhu Singh v. Delhi Administration, AIR 1968 S.C. 327. which held that as the review did not require a judicial approach to the question of continuance of detention, no opportunity was given to the Petitioners to represent their case when the review was made in February. 1967. The detention was continued for a further period of six months. By the decision reported in Sadhu Singh Vs. Delhi Administration, the earlier decision in Jagdev Singh Vs. State of Jammu and Kashmir, was overruled and it was held that the function of review under Rule 30-A was quasi judicial and therefore in exercising the same, the rules of natural justice have to be complied with. After this judgment, a fresh review was undertaken in April, 1967, in which notice was given to the detenu and they were given a hearing. Thereafter, an order was passed in each of those on April 27, 1967 by which the State Government directed the continuance of the detention orders for further periods. One of the grounds urged by the learned Counsel for the Petitioners in that case was whether it was open to the State Government to pass fresh order on the same facts. Relying on the earlier two judgments of the Supreme Court reported in Ujagar Singh v. State of Punjab, AIR 1957 S.C. 1507. and Godavari Shamrao Parulekar v. State of Maharashtra A.I R. 1952 S.C. 350. the Supreme Court observed-
These cases certainly show that a fresh order of detention can be passed on the same facts, if for any reason the earlier order of detention has to be revoked by the Government. Further we do not find anything in the Defence of India Act (hereinafter referred to as the Act) and the Rules which forbids the State Government to cancel one order of detention and pass another in its place. Equally we do not find anything in the Act or the Rules which will bar the Government from passing a fresh order of detention on the same facts, in case the earlier order of detention or its continuance is held to be defective for any reason. This is of course subject to the fact that the fresh order of detention is not vitiated by mala fides. So normally a fresh order of detention can be passed on the same facts provided it is not mala fide, if for any reason the previous order of detention or its continuance is not legal on account of some technical defect as in the present cases.
Again in paragraph 8, the Supreme Court further observed-
Now there is no doubt that if the Government resorts to the device of a series of fresh orders after every six months and thus continues the detention of a date, circumventing the provisions of Rule 30- A for review, which as interpreted by this Court in Lakhanpal''s Case W.P. 258 of 1966 dt. 7th March, 19673 give some protection to the citizens of this country, it would certainly be acting mala fide. Such a fresh order would be liable to be struck down not on the ground that the Government has no power to pass it but on the ground that it is mala fide exercise of the power. But if the Government has power to pass a fresh order of detention on the same facts in a case where the earlier order or its continuance fails for any defect we cannot see why the Government cannot pass such fresh order curing that defect. In such a case it cannot be said that the fresh order is a mala fide order passsd to circumvent under Rule 30A.
(The emphasis is ours).
Thus the general principle of law is, if the order of revocation by the Court was on the ground that certain alleged grounds did not warrant a detention or that the grounds could not have been relied on for some reason or other, the order will preclude fresh detention on the same grounds. The order of revocation by the Government on a consideration of the representation of the detenu or on the advice of the Board will also preclude the Government from making a fresh order on the same grounds. However, if the setting aside of the order by the Court is not on merits, but on account of some technical defect, normally a fresh order of detention can be passed on the same grounds provided it is not mala fide and this also is subject to the provisions of the Act and the rules. The Act or the Rules may bar the Government from making a fresh order of detention or may enable them to pass fresh order on the existence of certain conditions as noticed by the Supreme Court in the passage cited above from the decision in Godavari Shamrao Parulekar Vs. State of Maharashtra and Others, . Section 14(2) of the Act empowers the Government to make a fresh order only where fresh facts have arisen after the date of revocation. No distinction therefore could be made between a revocation of an order u/s 12(2) or on a representation under Article 22(5) of the Constitution and the setting aside of an order of detention on technical grounds by the High Court.
We are therefore, thrown back to a consideration of the scope of Section 14(2) of the Act. We have already noticed that when the order of revocation was on the ground that the alleged grounds did not warrant a detention that is on merits, it will preclude further detention on the same grounds. Therefore, when Section 14(2) required fresh facts arising after the date of revocation in order to enable the Government to pass a fresh order, in effect the provision bars the Government from passing a fresh order of detention on the same facts which existed earlier or on a combination of fresh facts with earlier facts. Section 14(2) is intended to confer a specific and limited power on the Government and not to leave the matter to be considered under the general law. In the circumstances, therefore, since the provision specifically restricts the powers of the Government we are of the view that the fresh order could only be on fresh facts in its entirety. In the instant case, the impugned orders of detention relied not only on fresh facts, but also on grounds which were in existence prior to the revocation of the order. The order of detention is therefore, vitiated by a lack of jurisdiction on the part of the detaining authorities.
It was next contended by the learned Counsel for the Petitioner that the bar u/s 162, Crl.P.C., against reliance of statements recorded by a police officer in the course of investigation is equally applicable to all cases under preventive detention and that since that detaining authorities in this case had relied on the same, the orders are vitiated.
We may immediately refer to the decision of the Supreme Court in Khatri and Others Vs. State of Bihar and Others, ., where the scope of Section 162, Crl.P.C., was considered. In that case the Supreme Court held that it is apparent from Section 4 that the provisions of the Code of Criminal Procedure are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with. On the scope of Section 162, Crl.P.C, the Supreme Court observed-
it bars the use of any statement made before a police officer in the course of an investigation under Chapter XII, whether recorded in a police diary or otherwise, but, by the express terms of the section, this bar is applicable only where such statement is sought to be used ''at any enquiry, or trial in respect of any offence under investigation at the time when such statement was made.'' If the statement made before a police officer in the course of an investigation under Chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an enquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made the bar of Section 162 would not be attracted.
After pointing out that the object of Section 162, Code of Criminal Procedure, is to protect the accused against over-zealous police officers and untruthful witnesses, the Supreme Court further observed-
But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar.'' It has no application, for example, in a civil proceeding under Article 32 or Article 226 of the Constitution and a statement made before the Police officer in the course of investigation can be used as offence in such proceedings provided it is otherwise relevant under the Evidence Act.
The proceeding under the Tamil Nadu Act 14 of 1982 can neither be considered as an enquiry nor as a trial in respect of any particular offence. As the long title of the Act itself shows the Act is intended to prevent bootleggers, drug offenders, goondas, immoral traffic offenders, and slum grabbers, from acting in any manner prejudicial to the maintenance of public order. The activities of these persons, which are considered to be dangerous and would affect or are likely to affect the maintenance of public order may be criminal in nature, and those criminal actions have to be dealt with under the normal provisions of the Criminal law. However, when a preventive detention is made under the provisions of the Act, the detenu is not tried with reference to any offence. Nor could the proceedings be called an inquiry into any particular criminal offence. The object of the Act, being to prevent such persons from acting in any manner prejudicial to the maintenance of public order, the scope of the proceedings does not involve any inquiry into any particular offence (sic) nor is it in the nature of a trial. It is the clandestine activity carried on in violation of law that was sought to be prevented under the powers vested under the Act. We are of the opinion that the provision of Section 162, Crl.P.C., therefore, cannot be urged as a bar against the Government or the detaining authority considering the statements as evidencing the activities which have a bearing on the maintenance of public order. A similar view has also been taken by a Divisions Bench of this Court in A. Vellanai v. Collector and District Magistrate, Tirunelveli 1983 L.W. (Cri.) 236: 1984 Cri.L.J. 68. This contention of the Petitioner''s counsel that the statements could not be relied on, has therefore no substance.
It was next contended by the learned Counsel for the Petitioner that in respect of the first of the instances, which came to the adverse notice, i e., Crime No. 25 of 1981 of Chattrakuty police station, no statements or records relating to the same were either furnished to the detenu nor they did form part of the record. This vitiates the order on the ground either that the detaining authority had not applied his mind to the full facts or that it has been vitiated by reason of not supplying those statements to the detenu. It is not disputed that this case was inquired into; statements of witnesses were recorded; reports of the police officers were sent and ultimately a charge-sheet was filed and the case is pending trial in S.D.J.M''s court, Ramnad. However, these statements and other records like wound certificates, etc., had not been given in these proceedings to the detenu, nor were they forwarded by the officers to the detaining authority for consideration. We are of the opinion that the learned Counsel is well founded in his contention that there was a failure to take into consideration most material or vital facts, which are likely to influence the mind of the authority one way or the other and also by not furnishing those records the detenu had not been afforded an effective opportunity of showing cause against the detention. It is well-settled that the orders of detention are made on the subjective satisfaction on the part of the detaining authority. It is therefore, not possible for the Courts in such circumstances to scrutinise the validity of the order applying objective tests on merits. In all these cases of preventive detention where personal liberties are involved, the Constitution guarantees only a procedural safeguard. One such procedural safe guard is that all relevant material facts, which are in the possession of the departmental authorities and which have a bearing on the issue and would influence the mind of the detaining authority one way or the other, shall have to be forwarded to the detaining authority and shall not be kept back or suppressed. If, therefore, the records relating to Crime No. 25 of 1981 had not been for warded to the detaining authority, it would amount to keeping back material and vital facts, which have bearing on the issue and thereby vitiating the order of detention. If, on the other hand, it is contended that those records were sent to the detaining authority and considered by him while making the detention order the non-furnishing of the same to the detenu, would violate the constitutional guarantee under Article 22(5) of the Constitution and for that reason the order of detention will be vitiated. The Supreme Court in Ashadevi v. K Shivraj, AIR 1979 S.C. 447. observed-
It is well-settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order, will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before Issuing the detention order.
We may also point out that the mere filing of a F.I.R. without any statements from third parties or even the complainant implicating the accused cannot be considered as a ground of detention, since communication of the grounds of detention is intended to afford an opportunity to the detenu for making effective representation against the order of detention. It is obvious as held in Khudiram Das Vs. The State of West Bengal and Others, . that "the grounds have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based". Hence the basic facts and materials with reference to a charge of commission of the crime are not merely the complaint and the F.I.R. but also all those materials that were gathered during the investigation. The non-furnishing of the materials to the detaining authority in respect of Crime No. 25 of 1981, therefore would vitiate the order. If those materials had been furnished to the detaining authority, they not having been furnished to the detenu, that would also vitiate the order. These reasons will apply even in respect of third and fourth instances in respect of which also it is stated that no materials had been furnished to the detenu. Nor were the basic facts and materials part of the record which were considered by the detaining authority. The order, therefore, will be vitiated on the ground of non-application of the mind in so far as 1st, 3rd and 4th instances are concerned. However, we are not persuaded to accept the contention of the learned Counsel for the Petitioner that the second of the instances had no bearing on the maintainability of public order and therefore, could not have been relied on by the detaining authority.
The next contention of the learned Counsel for the detenu is that the order is vitiated on the ground that the detenu''s written representation had not been expeditiously disposed of, that there was no continuous consideration and that there was an unreasonable and un-explainable delay''. In this case the written representation dated 10th May, 1984 was despatched by the Jail Superintendent, on 10th May, 1984 itself. However, it was received by the Government on 14th May 1984. After the receipt of the written representations, the Government forwarded it to the detaining authority on 15th May, 1984, calling for his remarks which was received by the detaining authority on 21st May, 1984. In the meantime on 15th May. 1934, itself, the detaining authority has sent his remarks on the written presentation which was received by him from the Jail Superintendent. This was received by the Government on 18th May, 1984. The grounds were in English. After the receipt of the communication from the Government, the detaining authority again sent his paragraph-wise remarks on 21st May, 1984. This time, it was in Tamil. It was received by the Government on 23rd May, 1981. It is then stated in the counter-affidavit that it was dealt with by the Under Secretary, Deputy Secretary Secretary and Law Minister on 2nd June, 1984 and the same was rejected on 2nd June, 1984. The file seemed to have been sent to the Chief Minister, who endorsed it on 9th June, 1984. In the meanwhile, on 7th June, 1984, the order of rejection was Communicated to the detenu. It may be seen from the dates above mentioned that there was absolutely no reason for the Government to wait for the paragraph-wise remarks from the Collector, since the Government had already received paragraph-wise remarks in English on 18th May, 1984 itself. Even after the receipt of the paragraph-wise remarks in Tamil on 28th May, 1984, how the file was dealt with from that date to 2nd June 1984 is not explained. We are referring to this aspect in particular because even on the earlier occasion, the writ petition was allowed on the ground that 37 days for disposal of a written representation is an inordinate delay and the delay in rejecting the representation has not been properly explained. The Supreme Court in a number of cases has repeatedly held that the written representation of a detenu will have to be considered continuously and without any delay and it would be no answer to a demand for liberty to say that administrative red-tapes makes the delay inevitable, We are satisfied that the delay between 18th May, 1984 and 2nd June, 1984, had not been properly explained and even if from 18th May, 1984 to 28th May, 1984 is explained by saying that they were waiting for the further remarks from the Collector, which was unnecessary, still there is an unexplained, delay from 28th May, 1984 to 2nd June, 1984. We are of the view that the order is vitiated for this reason as well. We accordingly allow the writ petition, set aside the order of detention and direct the Respondents to set at liberty the detenu forthwith.