Research › Browse › Judgment

Rajasthan High Court · body

1991 DIGILAW 568 (RAJ)

Jaida W/o Kayamuddin v. State of Rajasthan

1991-07-08

M.B.SHARMA, M.R.CALLA

body1991
JUDGMENT 1. - The petitioner has challenged the detention order dated 2nd January, 1991, passed under Section 3 (2) of the National Security Act, 1980, by the District Magistrate, Sawai Madhopur against her husband Kayamuddin. The aforesaid challenge is only on the grounds (1) that the main ground mentioned relates to public order and not law and order, which could not be made the ground of detention. (2) There was non-application of mind in making the detention order. (3) The representation made to the Central Government was not considered within a reasonable time and has not been disposed of. 2. At the very out-set, we may state that in our opinion, the third ground prevails with us that the representation made by the detenue was not disposed of with in a reasonable time; but delay has not been explained. We need not deal with the other grounds on which the detention has been challenged. We confine our discussion only to the last of the three grounds, namely non-disposal of the representation made by the detenue expeditiously. 3. The petitioner is a citizen of India and a resident of Sawai Madhopur. A perusal of the detention order Annx. 1, dated 2nd January, 1991 will show that on as many as 11 grounds the said detention order was made by the Collator and District Magistrate, Sawai Madhopur (Detaining Authority). It will appear from the perusal of the aforesaid 11 instance that they relate to the period from 1977 to 1990 and the petitioner is said to have committed offences under various sections of the Indian Penal Code. The learned counsel for the petitioner has produced a certified copy of the judgment regarding few of the cases, in which after trial the petitioner was acquitted and it can be said from a perusal of the grounds of detention that the fact of acquittal of the petitioner in few of the cases, was not in the mind of the detaining authority. If the detention order can be held to be invalid on the ground of non-application of mind, on the other grounds also the detention can be set aside. As said earlier, we are not going into the merits of the case. The only ground with which we are concerned in this case is that the representation made by him was not considered within a reasonable time. 4. As said earlier, we are not going into the merits of the case. The only ground with which we are concerned in this case is that the representation made by him was not considered within a reasonable time. 4. There appears to be no dispute that the petitioner made representation of the President of India on 25th March, 1991, which was sent to the Home Ministry of the Central Government on 27th March, 1991. The Central Government sent it to the State Government through wireless message on 1st April, 1991. The State Government called for the representation in original and the representation in original was received by the State Government on 15th April, 1991. It was sent in original to the Collector and District Magistrate, Sawai Madhopur on 20th April, 1991. Though, it was not stated in the reply filed by the respondents that the representation has been disposed of, but, during the course of arguments, the learned Addl. Advocate General, on the basis of the record available, states that the Collector and District Magistrate, Sawai Madhopur sent his comments on 29th May, 91 to the State Government and the State Government sent the comments by special messenger to the Central Government on 31st May, 1991. The Central Government disposed of the representation and dismissed the same on 2nd July, 1991. Even if the period from 25th March, 1991 to 15th April, 1991, for the sake of arguments, we do not consider because the representation in original was received by the State Government on 15th April, 1991, it can be said that the representation remained pending from 15th April, 1991 till 29th May, 1991 with the Collector and District Magistrate, Sawai Madhopur. There can be no doubt that the representation made by the detenue has to be dealt with the expedition and has to be disposed of expeditiously, by the State Government or the Central Government to whom the representation can be made under Article 22(5) of the Constitution of India. The detaining authority shall serve the grounds on which the detention order has been made so that the detenue may make a representation against the detention order. Making of representation and its expeditious disposal is not an empty formality. It is to be made expeditiously to the State Government or the Central Government, as the case may be and disposed of expeditiously. Making of representation and its expeditious disposal is not an empty formality. It is to be made expeditiously to the State Government or the Central Government, as the case may be and disposed of expeditiously. The Supreme Court in the case of Piara Singh v. State of Punjab, ( AIR 1987 SC 2377 ) , referring to the earlier cases held that " "In the light of these decisions in the present case it must be held that the delay in dealing with the representation of the petitioner, which was admittedly received by the Government on 14th January, 1987 and rejected as late as on 26th Feb., 1987, must be considered as inordinate delay in dealing with the representation. No explanation is given in the counter-affidavit as to why the representation could not have been dealt with and disposed of earlier, and hence it must be held that the order of detention of the petitioner is vitiated by reason of delay in dealing with his representation." 5. Similar view has been taken by this Court in Shambhu Singh v. State of Rajasthan and Ors., (1990 RCC 286) and Ramesh Chandra v. State of Rajasthan and Ors., (1990 RCC 484) . In State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35 ) the Supreme Court reiterated the requirement of prompt disposal of representation made by the detenue. 6. The learned Addl. Advocate General could not dispute this proposition of law; but his contention is that there is delay in disposal of the representation and a reasonable explanation has been given for disposal of the representation made by the petitioner. 7. A look at Para 6 and more so sub-paras (B),(C),(D) and (E) will show that the delay in disposal of the representation has been explained thus: "That the contents of sub-para (B) to (E) are replied in the terms that the wife of the detenue made a representation to the President of India which was sent to the Home Ministry of the Central Government and the Central Government sent it to the State Government through wireless message on 1.4.1991. The original representation was received by the State by post on 15th April,1991. After the wireless message dated 2.5.91, the State Government has sent letters to the Central Government to send the representation and to process the representation on 3.4.91, 8.4.91 and 9.4.91. The original representation was received by the State by post on 15th April,1991. After the wireless message dated 2.5.91, the State Government has sent letters to the Central Government to send the representation and to process the representation on 3.4.91, 8.4.91 and 9.4.91. That immediately after the receipt of the representation in the general section on 15.4.91, it was sent to the section concerned on 16.4.91 and was processed by the detention cell. The representation was sent to the Distt. Magistrate, Sawai Madhopur on 20.4.91 for sending his comments but the comments were not received, for which the reminders were issued on 27.4.91, 3rd May, 1991,15th May, 1991, 18th May, 1991, 25th May, 1991 and 27th May, 1991 through special messenger. It is submitted that the Collector, Sawai Madhopur could not attend his routine duties as well as the emergency duties as he was busy in discharging his duties as District Election Officer and in arranging the election duties for his district. The election duties were getting priority over other duties and disobedience of election duties was made actionable by the Election Commissioner. The delay in disposing and processing of the representation has also occasioned because the representation was not made to the competent authority which is the State Govt. or the Collector in the instant case. The representation was deliberately sent to the President of India to create the ground of delay in disposing of the representation and to get out of the detention. The delay in the instant case is reasonably explained, hence is not fatal to the detention order." 8. A perusal of the above para shows that the delay had been occasioned in disposal of the representation because the District Magistrate, Sawai Madhopur was busy in election duty. The polling in Sawai Madhopur for Parliamentary election was held on 20th May, 1991. The District Magistrate received the representation for his comments on 20th April, 1991. There was sufficient time for him to have attended to the representation. The polling was to take place on 20th May, 1-991, i.e. after a month of the receipt of the representation by the District Magistrate. Affidavit of the District Magistrate, Sawai Madhopur had been filed. The District Magistrate received the representation for his comments on 20th April, 1991. There was sufficient time for him to have attended to the representation. The polling was to take place on 20th May, 1-991, i.e. after a month of the receipt of the representation by the District Magistrate. Affidavit of the District Magistrate, Sawai Madhopur had been filed. In para 7 thereof, he admits that letter dated 3rd April, 1991 of the State Government was received intimating the receipt of the representation of the detenue made to the President of India, dated 25th March, 1991. As no copy of the representation was received, he made a request to the State Government on 8th April, 1991 to send the copy of the representation received from the Central Government. He further stated in the affidavit that he received a copy of the representation on 20th April, 1991; but he could not attend to it as he was busy in election duty. As already stated, polling was held on 20th May, 1991 and the representation has been received on 20th April, 1991. In the affidavit , he stated that a letter dated 3rd April, 1991 of the State Government was received intimating the receipt of the representation of the datenue made to the President of India. He could not start the process of collecting the material because he could receive the original representation on 20th April, 1991. The delay in attending to the representation from 20th April, 1991 has not been reasonably explained.We, therefore, hold that the representation of the petitioner was not dealt with within a reasonable time expeditiously. 9. We may state that the representation of the petitioner appears to have been disposed of and dismissed by the Central Government on 2nd July,1991,but that will not make any difference because the delay in disposal of the representation will still hold good. 10. We allow the habeas corpus petition and quash the detention order, Annexure 1, dated 2nd January,1991 made under Section 3 of the National Security Act ordering detention of the petitioner's husband. The petitioner's husband shall be set at liberty immediately, if not required in any other case.Petition allowed. *******