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1993 DIGILAW 10 (MP)

Timmi Alias Sukhdeep v. State Of Madhya Pradesh

1993-01-07

K.M.PANDEY, T.N.SINGH

body1993
ORDER T.N. Singh, J. 1. Since 11-5-1992, the petitioner is suffering detention under the National Security Act, for short, the 'Act', when an order was passed by District Magistrate, Gwalior under Section 3(3) of the said Act. Petitioner came to this Court assailing his detention on 14-8-1992, but return came from the respondent on 24-11-1992. 2. Rightly and forcefully, Shri Gupta has submitted that even the long road on which the respondent travelled from Bhopal to Delhi via Gwalior, brought nothing to this Court through the return. The contention pressed indeed is a short one and that is substantial and forceful. The only contention raised and we decide today to dispose of the petition is based on Sections 3(5) and 14(1) of the Act. That mega-contention is sought to be muted by micro-objection by Shri Roman, contending that Union of India not being made a party, the petitioner is disabled in relying on the provisions cited to derive any benefit therefrom. A few words, we propose to say about that objection first as we have found that meritless. 3. Case-law galore has been cited and we entertain no doubt at all that the procedure and the time-scale for following the same contemplated under Section 3 are inexorably mandatory. Indeed, as held in Rattan Singh, AIR 1982 SC 1 , the modicum of procedural safeguard the detenu possesses is to be regarded as immutable; the Court has no jurisdiction to read down the same in any manner. Sub-section (5) of Section 3 contemplates that when any order of detention is either made or when made by District Magistrate is approved by the State Government, a report in that regard shall be sent by the State Government to the Central Government within seven days together with the grounds on which the order has been made along with other particulars having a bearing on the necessity for the order. Section 14(1) contemplates that the detention order may be revoked or modified at any time not only by the State Government when the order is made by an officer subordinate to it, but also by the Central Government. Section 14(1) contemplates that the detention order may be revoked or modified at any time not only by the State Government when the order is made by an officer subordinate to it, but also by the Central Government. In the writ petition, his continued detention is challenged by the petitioner on the ground, inter alia, that the State Government has violated the provisions of Section 3(5) of the Act and that contention is not in the return in terms of the following bald statement:-- "It is denied that the State Government has failed to report the facts of making the order, to the Central Government within the stipulated period in terms of provisions of Section 3(5) of the National Security Act. This contention of the petitioner is obviously incorrect and contrary to the record. As has been stated hereinabove, the aforesaid compliance of provisions of Section 3(5) of the National Security Act has also been done by the State Government by sending its report together with the relevant documents and necessary information in revised pro forma, to the Central Government within the stipulated period. Thus all the contentions raised by the petitioner in this ground are baseless and misconceived. All the compliances required by the provisions of the Act have been done by the respondent and there has been no violation of any of the provisions of the Act." 4. In our view, that averment leads the respondent nowhere. The mere fact that the State Government had "sent" its report without specifying even when that was done, how that was done and when that reached the Central Government, renders the plea innocuous, baseless and ineffective. Indeed, had the Central Government been made a party, it could have enlightened the Court as to the action taken on the report or even made the position clear on fact as to whether within the specified time the report duly reached that Government. But, that does not alter the position even little bit in so far as it concerns the failure of the State Government to discharge its own duty to satisfy the Court that within the specified time, the report did reach the Central Government. Whether or not any action was taken thereon by the Central Government is another matter. But, that does not alter the position even little bit in so far as it concerns the failure of the State Government to discharge its own duty to satisfy the Court that within the specified time, the report did reach the Central Government. Whether or not any action was taken thereon by the Central Government is another matter. Weare, therefore, not at all satisfied that merely on the ground of non-impleadment of Central Government, the petition fails or even the iron-clad contention fails. 5. We may refer now to the decisions which Shri Gupta has cited in support of the contention mooted. Sher Mohammad, AIR 1976 SC 2049 was a case of Maintenance of Internal Security Act, 1971, but that enactment also contained a similar provision. District Magistrate's order of detention had to be communicated to the Central Government within seven days of the order and the Court held that there had been infringement of procedural safeguard rendering the detention illegal because it was not established to the satisfaction of the Court that there was sufficient compliance with the statutory requirements. The time imperative was held sacrosanct by their Lordships. However, very pointedly, the point came up for decision of their Lordships of the Supreme Court subsequently in Sabir Ahmed's case, 1980 3 SCC 295 and on that valuable light was shed in a Five Judge Bench decision of the Gauhati High Court in Hitendra Nath Goswami's case, 1984 Cri.L.J. 1558. The Apex Court held that the power of revocation contemplated under Section 14 of the Act, though supervisory in nature, was itself a statutory and valuable safeguard and it could "either be exercised on information received by the Central Government or from its own sources including that supplied under Section 3 by the State Government or by the detenu in the form of petition or representation". The view taken by the Gauhati Full Bench has also relied on Apex Court's subsequent decision in Satpal's case, 1981 Cri.L.J. 1867 SC and it was held that the supervisory power was an additional check or safeguard and if that was breached in any manner, the detention would be vitiated. The view taken by the Gauhati Full Bench has also relied on Apex Court's subsequent decision in Satpal's case, 1981 Cri.L.J. 1867 SC and it was held that the supervisory power was an additional check or safeguard and if that was breached in any manner, the detention would be vitiated. We have no doubt that even if State Government could not have forced the hands of the Central Government to pass any particular or specific order in any particular or specific way on the report submitted, it had still the Constitutional duty to ensure that its report did reach, within time specified, to the Central Government and to satisfy the Court that it had discharged its duty contemplated under Section 3(5) by doing so. Not only the material averment in that regard is lacking in the return, no material outside in the shape of acknowledgment received from the Central Government could even be placed before us to satisfy us that the State Government/respondent did discharge its own duty. 6. Shri Gupta also relied on Guru Charan Singh's case, 1986 (1) Crimes 124 , decided by a Division Bench of the Allahabad High Court where facts are tale-tell. The State Government had approved the detention order on 27-10-1984 and the report was despatched to the Central Government on 29-10-1984, but it was received by the Central Government on 9 -11 -198 4. The continued detention of the petitioner was invalidated on the very ground of delay in receipt of the report by the Central Government. To the same effect is the decision of a Division Bench of Bombay High Court in the case of Vinayak v. D. Ramachandran, 1985 Cri. L.J. 1257. The term used in Section 3(5) -- "report thefact'.' --has been construed to mean that a duty is postulated in Section 3(5). State is required thereunder to satisfy the Court that not only the report was sent to the Central Government within time specified, but the same was received also by the Central Government within the specified time. The Court held that if the authority chose to send it by post, then that was done at its own risk but there could be no scope for relaxing the time-frame statutorily contemplated. We respectfully agree with the view taken by the Bombay and Allahabad High Courts. 7. The Court held that if the authority chose to send it by post, then that was done at its own risk but there could be no scope for relaxing the time-frame statutorily contemplated. We respectfully agree with the view taken by the Bombay and Allahabad High Courts. 7. For all the aforesaid reasons, we have no doubt that it is difficult to sustain the continued detention of the petitioner under the Act which we hold illegal and invalid. The petition is allowed. We direct that the petitioner shall be set at liberty forthwith if not required in connection with any other case.