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1990 DIGILAW 515 (BOM)

Halya Wajya Kurmuda v. R. D. Tyagi, Commissioner of Police, Thane and other

1990-12-20

S.W.PURANIK

body1990
JUDGMENT - S.W. PURANIK, J.:---The petitioner impugns the order of detention dated 19th June, 1990 passed by the 1st respondent against him under the National Security Act. Even though the petitioner-detenu raises many grounds to challenge the said order of detention, yet, however, Shri S.R. Chitnis, learned Counsel appearing for the petitioner, restricted his submissions only to the ground of delayed consideration of the representation of the petitioner-detenu. 2. We have heard Shri S.R. Chitnis, learned Counsel for the petitioner, Shri S.G. Page, learned Public Prosecutor, for respondent No. 1. and the State of Maharashtra, and Shri M.K. Patwardhan, learned Counsel for the Union of India respondent No. 3. 3. On the ground of delayed consideration of the representation of the petitioner-detenu, Shri S.R. Chitnis, relying on the averments in the petition and the counter-affidavits by the respondents, has stated the following relevant dates in support :- 19-6-1990 :-- The order of detention. 20-8-1990 :-- Representation of the detenu despatched. 22-8-1990 :-- Representation received by the Central Government. 22-8-1990 :-- Crash wireless message for query. 3-9-1990 :-- Information supplied by State by Speed Post. 10-9-1990 :-- Required information received by Central Government. 18-9-1990 :-- Letter informing rejection despatched. 4. Shri Chitnis, therefore, contended that even assuming that all the required information and the representation was effectively available for consideration on 10th September, 1990, yet there is no explanation why the same could not have been considered expeditiously and communicated to the detenu. He laid emphasis on the case of (Rama Dhondu Borade v. V.K. Saraf)1 , A.I.R 1989 S.C. 1861. He also cited an unreported decision of this Court in Criminal Writ Petition No. 463 of 1990 (Shivaji Dashrath Gaikwad v. State of Maharashtra)2, decided on 11th September, 1990 by Kurudkar and Saldanha JJ. Lastly Shri Chitnis submitted that in view of the pronouncements of the Supreme Court and the High Court, it was incumbent upon the appropriate authority to explain the delay for each and every day and show their bona fides of what they have done datewise. He also brought to our notice a recent decision of the Supreme Court in (Mahesh Kumar Chauban @ Banti v Union of India)3 , reported in 1990 Criminal Law Journal 1507. 5. He also brought to our notice a recent decision of the Supreme Court in (Mahesh Kumar Chauban @ Banti v Union of India)3 , reported in 1990 Criminal Law Journal 1507. 5. Since the submissions regarding the delay in consideration of the representation of the detenu were directed against the Central Government, we heard Shri M.K. Patwardhan, learned Counsel for the Union of India. Paras 7 and 8 of the reply-affidavit filed on behalf of the Union of India -respondent No. 3 state as follows:- "7. That the required information was received by the Central Government in the Ministry of Home Affairs on 10-9-1990 vide the Commissioner of Police, Thane's letter dated 3-9-1990. That the said representation from decision to reject it was taken on 14-9-1990. That the representation from the petitioner along with all the required information became effectively available to the Central Government in the Ministry of Home Affairs for consideration only on 10-9-1990. That a final decision to reject the said representation was taken by the Central Government in the Ministry of Home Affairs within 5 days of its effectively becoming available for consideration." It is further stated in paragraph 9 of the said reply - affidavit that the decision was also communicated to the petitioner by the quickest mode, viz., crash wireless message on 17th September, 1990. It is seen from the reply - affidavit filed on behalf of the State that the crash wireless message which was received in the evening of 17th September, 1990 rejecting the detenu's representation was communicated to the detenu on 18th September, 1990. 6. Shri Patwardhan then submitted that the observations of the Supreme Court in one case cannot be treated as a mathematical guideline for finding out whether delay is reasonable or undue. He relied upon two decisions of the Supreme Court reported in (Abdul Salam v. Union of India)4, A.I.R. 1990 S.C. 1446 and (Madan Lal Anand v. Union of India)5, A.I.R. 1990 S.C. 176, and the very latest decision of the Supreme Court in (M. Mohd. Sulthan v. Joint Secretary to Govt. of India, Finance Department)6, A.I.R. 1990 S.C. 2222. 7. We have carefully gone through the decisions and authorities cited by both the parties. Sulthan v. Joint Secretary to Govt. of India, Finance Department)6, A.I.R. 1990 S.C. 2222. 7. We have carefully gone through the decisions and authorities cited by both the parties. Several pronouncements of the Apex Court as well as the High Courts have made the legal position very clear as regards the expeditious consideration of the representation of the detenu so as not to impinge upon his right under Article 22(5) of the Constitution of India . On occasions, serious note has been taken by the Courts of the manner in which the appropriate authorities caused considerable delay in considering and disposing of representations and how the authorities exhibit culpable indifference even in the matter of explaining such delay .It is in the light of these observations that occasionally the Courts have directed that the appropriate authority should explain personally the delay at various stages. 8. The law is so well settled that it need not be repeated in this judgement. Suffice it to say that right from the case of (Khairul Haque v. State of West Bengal)7, reported in (1969) 2 S.C.W.R. 529, followed by (Jaynarayan Sukul v. State of West Bengal)8, 1970 Criminal Law Journal 743, (Raisuddin v. State of U.P.)9, 1983 Criminal Law Journal 1785, and a plethora of other cases including the case of Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police, reported in 1989 Criminal Law Journal 2119, the Supreme Court has observed the need for expeditious consideration of the representation and if there be any delay, the need for explaining the same in a bona fide and satisfactory manner. No doubt, it is true that in other cases like Abdul Salam v Union of India, A.I.R. 1990 S.C. 1446, Madan Lal Anand v. Union of India, A.I.R. 1990 S.C.176, and M. Mohd. Sulthan v. Joint Secretary to Govt of India, Finance Department, A.I.R. 1990 S.C. 2222, the Supreme Court has reiterated the principles but on facts has found that the delay was reasonably explained and on that count the continued detention could not be invalidated. 9. The ratio of all these various authorities would be that the detenu has a right that his representation is expeditiously considered and disposed of by the appropriate authority and that the result thereof is communicated to him equally expeditiously. Failure in these duties by the appropriate authority would render the continued detention of the detenu invalid. 9. The ratio of all these various authorities would be that the detenu has a right that his representation is expeditiously considered and disposed of by the appropriate authority and that the result thereof is communicated to him equally expeditiously. Failure in these duties by the appropriate authority would render the continued detention of the detenu invalid. As regards the explanation for the delay, if any, it is for the court to scrutinise the facts in each case and find out whether the same has been reasonably explained . There can be no mathematical formula that a particular representation must be disposed of within 5 days or 8 days. The quantum of delay and the explanation therefore will have to be considered by the Court. 10. In the instant case, we find, and as admitted by the petitioner, that the representation along with the required information was effectively available to the appropriate authority for consideration on 10th September, 1990. We have ourselves perused the original papers tendered before us by Shri Patwardhan, learned Counsel for the Union of India. The decision to reject the representation was taken on 14th September, 1990. 15th and 16th September, 1990 were holidays on account of Saturday and Sunday. Immediately on Monday the 17th September, 1990 the appropriate authority despatched a crash wireless message informing the rejection of the representation of the detenu. The same has been communicated to him on 18th September, 1990. Looking to these facts, we find that from 10th to 14th September, 1990 i.e. within 5 days , the appropriate authority has considered the representation and disposed of the same and communicated the result of the same immediately on the next opening day i.e. 17th September, 1990. We do not find that there has been any unreasonable delay in considering and disposing of the representation of the petitioner-detenu. We also do not find there was any necessity for any detailed explanation of each day's stages carried out upto the date of decision in the peculiar facts of this case. 11. Since this was the only point urged, we do not find that the detention of the petitioner-detenu is liable to be invalidated. 12. In the result, the petitioner fails and is dismissed. The impugned order of detention dated 19th June 1990 passed against the petitioner-detenu is confirmed. Rule discharged. Petition fails. -----