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1995 DIGILAW 390 (RAJ)

Rajesh Kumar v. State of Rajasthan

1995-04-19

MOHINI KAPUR, N.L.TIBREWAL

body1995
Honble TIBREWAL, J. - In this writ of habeas corpus, the petitioner is assailing the validity and legality of the order of detention dated 15.06.1994 passed against him by the Collector and District Magistrate, Bharatpur in exercise of power contained under Section 3(2) of National Security Act, 1980 (for short N.S.A.). The impugned order of detention has been challenged on various grounds inter alia, including that there was violation of the constitutional safeguards enshrined in Article 22(5) of the Constitution in as much as the representation made by the petitioner through his mother Smt. Omwati to the President of India in the month of August 1994 has not been considered and disposed of. (2). The order of detention (Anx.l) was passed on June 15, 1994 by the Collector and District Magistrate, Bharatpur on the ground that with a view to preventing the petitioner from acting in any manner prejudicial to maintenance of public order his detention was necessary and in pursuance to the order, he was arrested on June 16, 1994. On his arrest the order of detention, as well as, the grounds of detention were served on him. The State of Rajasthan approved the order of detention on June 24, 1994 and reported the matter to the Central Government under Section 3(5) of N.S.A. In para Nos. 8 and 9 of the petition, it was alleged by the petitioner that he made a representation through his mother in the month of August 1994 to His Excellancy the President of India with a prayer to revoke his illegal detention and the same was received in the Secretariat of the President, but it has not been considered and disposed of by the Central Government. (3). As stated earlier, the detention order has been assailed on a number of grounds, but, on the view that we take, it is not necessary to specify and deal with other grounds as we are satisfied that by non-consideration of petitioners representation referred above by the concerned authority his fundamental right as enshrined under Article 22(5) of the Constitution of India has been infringed and on this ground alone this petition may be allowed. (4) In the present case, in answer to the notice issued by this Court, no return has been filed by the Central Government and there remain un-controverted averments of the petitioner that his representation made to the President of India in the month of August 1994 has not been considered and disposed of. It would be useful to state here that Mr. Suresh Pareek, Advocate had accepted the notice on behalf of the Union of India on 11.11.94 and prayed for two weeks time to file counter-affidavit. The matter was again listed in-Court on 24.11.94 and it was adjourned to 5.12.94. On 5.12.94 Mr. V.S. Gurjar, Advocate appeared for Mr. Suresh Pareek, counsel for Union of India and requested for a short adjournment. The request was accepted and the petition was ordered to be listed on 7.12.94. On 7.12.94 Mr. S.S. Hasan, Advocate appeared for the Union of India and on joint-request the matter was adjourned to 14.12.94. On 14.12.04 Mr. S.S. Hasan Advocate again appeared for Union of India and again prayed for adjournment. This Court passed the following order on that date: "This habeas corpus petition was filed on 27.9.94. It was admitted on September 29, 1994 and notices were issued to the non- petitioners to be sent by Registered post. Then the matter was listed on November 11, 1994 and Mr. Suresh Pareek, Standing Counsel for respondent No.6 accepted notice for the Union of India and prayed two weeks time to file counter-affidavit. Time was granted and November 29, 1994 was fixed. On 29.11.1994 the matter was again adjourned to December 5, 1994. On this date, again time was sought on behalf of Mr. Suresh Pareek, learned counsel for the Union of India. The matter was again listed on 7.12.94 and on a joint request it was listed today. Though, the State of Rajasthan has filed reply, but no reply has been filed on behalf of Union of India. No counter affidavit has also been filed. Mr. Gupta commenced his arguments and during the course of arguments, when a query was put to Shri Hasan, learned counsel appearing for the Union of India, he stated that reply has not been filed and time may be granted to file the reply. Mr. Hasan was asked to file application giving out the reasons as to why the reply has not been filed. Mr. Hasan was asked to file application giving out the reasons as to why the reply has not been filed. Thereafter, an application has been filed by Mr. Hasan, though, no reason whatsoever, has been given in the application for not filing the reply and prima facie, no justification appears for not filing the reply as yet. In the matter of habeas corpus, it is expected from the respondents to file the reply without any delay as such matters are of urgent nature. Prima-facie, we do not find any cogent ground for not filing the reply till now, but still we give a last opportunity to the Union of India to file reply subject to the payment of costs of Rs. 2,000/-. We are imposing the costs because, we find that habeas corpus matters are taken very lightly by the respondents and prompt replies are not filed by them. The matter be listed on 20.12.1994. However, it is made clear that the reply to this petition or any counter affidavit shall be accepted only on payment of costs of Rs. 2,000/- to the learned counsel for the petitioner." (5). Thereafter, on 20.12.94 on lawyer appeared for the Union of India and no return was also filed on its behalf. The above proceedings have left an impression, which is somewhat strange that the Union of India should have acted in such a cavalier fashion in dealing with the habeas corpus matters. Be that as it may, the fact remains that the contention of the petitioner remains un-controverted that his representation to the Central Government has not been considered and disposed of and there is failure on the part of the Government to discharge its obligation under Article 22(5) of the Constitution.. The prayer in the representation, a copy of which has been placed on record as Annexure-4, specially invoke Section 14 of the National Security Act, which enables the Central Government to revoke or modify the order of detention made by the State Government or an officer specified by the State Government. From the reply of the State Government it appears that the said representation addressed to the President was received by the Presidents Secretariat latest by first week of September 1994. It is not disputed before us that a representation addressed to the President must be considered to be a representation properly addressed to the Central Government. From the reply of the State Government it appears that the said representation addressed to the President was received by the Presidents Secretariat latest by first week of September 1994. It is not disputed before us that a representation addressed to the President must be considered to be a representation properly addressed to the Central Government. Even otherwise under Section 3(8) of the General Clauses Act, the Central Government means the President. Therefore, it cannot be disputed that the representation made by the petitioner to the President of India was proper representation and it was a constitutional obligation on the part of the Central Government to consider the same without un-due delay. (6). It will be appropriate to mention here that the State Government in its reply has admitted about making of representation by the petitioner through his mother directly to the President of India and it.was further stated by the State Government that after receiving a copy of the said representation the detaining authority replied the same through letter dated 14.10.94 to the Secretary, Home Department, Government of India, New Delhi and a copy of the same was sent to the Principal Home Secretary, Government of Rajasthan on the same day in reference to a wireless message dated 15.9.94. A perusal of the letter dated 14.10.94 (Anx. R/5), shows that the same was written by the detaining authority to the Secretary, Home Department, Government of India, New Delhi in reply to his wireless message dated 8.9.94. This shows that the Central Government had sent the wireless message on 8.9.94 seeking comments of the detaining authority on the representation made by the petitioner and this was replied by him on 14.10.94 i.e. after more than a month. There is nothing further on the record to show as to whether the representation was ultimately disposed of or not by the Central Government and, if so, when? (7). All the above facts makes it clear that a representation was made by the petitioner in the month of August 1994 to the President of India as a Head of the Central Government. The said representation was not disposed of atleast upto 14.10.94, the date on which the detaining authority had sent his comments on the representation on that date vide Annexure R/5. The said representation was not disposed of atleast upto 14.10.94, the date on which the detaining authority had sent his comments on the representation on that date vide Annexure R/5. No reply has been filed by the Central Government to further explain whether the representation was ultimately considered and disposed of or not and, if so, when? In such a state of affairs the Central Government has failed to discharge its constitutional obligation, which require of an expeditious consideration of the petitioners representation as spelt out from Article 22(5) of the Constitution. It is now well settled by a catena of judgment of the Apex Court of the country that a representation of detenue has to be disposed of with reasonable expedition and it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness or indifference. The making of representation for revocation to the Central Government under Section 14 of the NSA is a part of the constitutional right of a citizen which is available against his detention. Section 14 is an additional safeguard provided to a detenue against his arbitrary and executive action. The non-consideration of petitioners representation expeditiously by the Central Government has resulted in rendering his continued detention illegal and constitutionally impermissible. (8). Consequently, for the reasons stated above, we allow this petition, quash the impugned detention order and direct the petitioner to be set at liberty forthwith.