The bench of Justice Sawant and Justice Ranjana Desai were deciding on a petition filed by one Mrinal Namdeo Waghmare, for a detenu, Manivannan Mahadevan aka Ruben, a foreign national, who was detained by the Narcotics Control Bureau under an order dated September 30 under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS).

According to the petitioner who filed the petition on January 21, 1998, a representation was made to the detaining authority on October 29, 1997 by Mahadevan in Tamil requsting for all copiesof documents in Tamil to deal with the representation against the detention. The contention was that this was not considered by the authorities and no communciation was received by the detenu till the petition was filed on January 1998. This, the petitioner contended was violative of the mandate of Article 22 (5) of the constitution which afforded the protection of making a representation against the detention. Since the mandatory provisions of the article was violated, this rendered the detention illegal, was the contention.

Mahadevan and co-detenu, Harish Bishnoi were arrested on May 24, 1997 when officers of the Narcotics Control Bureau, Mumbai had intercepted a white Maruti 1000 MH-O4-X-488 at Grant Road (E) carrying 23 kgs of heroin, in three gunny bags.

The bench was essentially asked to consider the delay between the period when the representation was first made by the detenu on Oct 29, 1997 and the rejection that came about on Dec 11, 1997. The bench, however found itself accepting the affidavitsfiled by the investigating officer that stated that the representation made on Oct 29, 1997 was received by the jailor at the Yeravada Central prison, Pune on Oct 31, 1997. It was sent to the detaining authority at New Delhi on the same day which was received on Nov 10, 1997. Comments were called by a letter dated Nov 17, as Nov 14 was Guru Nanak Jayanti and Nov 15 and 16 were Saturday and Sunday.

The letter despatched on Nov 17th was received by sponsoring authority in Mumbai on Nov 20, 1997. Since the representation was in Tamil and required to be translated it was sent for translation. Nov 22 and 23 were holidays. However, officer Gawde who had to give the report was on surveillance duty from Nov 23, and came back to office only on December 1, when he sent his report on the same day. The representation was hence rejected on Dec 5. As Dec 6 and 7 were Saturday and Sunday, the rejection was communicated to Mahadevan on Dec 8, who acknowledged it on Dec 11, 1997. The bench however found that the delaywas satisfactorily explained. However, at this stage the bench were told by the advocate for the petitioners, that in the case of the co-detenue, Harish Bishnoi, who had also sent his representation on the same days, another division bench of Justice Arumugham and Justice Vishnu Sahai had found that the delays were in two pockets. The first pocket, while the bench excluded the days of Nov 15 and 16, and held that there was an unexplained delay of two days ie Nov 13 and 14 and in the second pocket between Nov 23 and 30. This bench had held that there was a total delay of nine days in considering the representation. The bench found it difficult to accept the decision of the earlier bench and held that, in keeping with the various laws laid down by the Supreme Court, the clubbing of two pockets of holidays was not permissible.