Kalu @ Hukumchand v. District Magistrate — 1996 DIGILAW 191 (MP)

ORDER N.K. Jain, J. 1. This is a writ petition under Articles 226 and 227 of the Constitution of India seeking quashment of the orders of detention as detailed below and issuance of writ of Habeas Corpus for restoration of the liberty. 2. The facts as unfolded are these : In exercise of powers under sub-section (2) of section 3 of the National Security Act, 1980 (for short 'the Act, 1980') and the notification dated 29-6-1995 of the Government of Madhya Pradesh under sub-section (3) of section 3, the District Magistrate, Indore on September 7, 1995 ordered detention of the petitioner Kalu alias Hukumchand on his (D.M.'s) being satisfied that, "with a view to preventing Kalu @ Hukumchand s/o Badlu Choudhary aged 42 years, R/o Dwarkapuri, Indore from acting in any manner prejudicial to the maintenance of public order, it is necessary to detain him under sub-section (2) of section 3 of the National Security Act, 1980". The District Magistrate on the same day recorded grounds on which the detention order came to be made. The aforesaid order (vide Ann. P-l) together with the statement enumerating grounds for detention (Annex. R-3) was served on the detenu on September 8, 1995. The approval of the State Government under section 3(4) was accorded on September 19, 1995 (vide Ann. R-8) and the fact of detention was also reported to the Central Government on 20-9-1995 (vide Ann. R-13). The case was also put up before the Advisory Board which has reported that "there is in its opinion sufficient cause for the detention of the petitioner". Accordingly the State Government vide their order dated October 31, 1995 (Ann. R-9) confirmed the detention order and directed that the same shall continue for a period of 12 months i.e., upto 17-9-1996. 3. The learned counsel for the detenu contended : (a) that, the District Magistrate, Indore, on 7-9-1995 when he passed the order of detention was not invested with the powers under section 3(3) of the Act, 1980. R-9) confirmed the detention order and directed that the same shall continue for a period of 12 months i.e., upto 17-9-1996. 3. The learned counsel for the detenu contended : (a) that, the District Magistrate, Indore, on 7-9-1995 when he passed the order of detention was not invested with the powers under section 3(3) of the Act, 1980. (b) that, there is no material against the detenu to warrant his detention under the N.S.A. (c) that, the detenu had submitted his representations dated 10-9-1995 and 22-9-1995 to the State and Central Government respectively but till the date of his filing this petition nothing has been heard from the either Government and as such there has been violation of the safeguard provided under Article 22(5) of the Constitution rendering his detention illegal. 4. Shri Piyush Mathur, the learned Dy. Government Advocate for the respondents Nos. 1 and 2 and Shri Neema, learned Standing Counsel for the Central Government (respondent No. 3) refuted the aforesaid contentions as being devoid of any merit and it was submitted that the State Government by order dated 29-9-1995 published in the Extra Ordinary Gazette has empowered the D. M. Indore to exercise the powers conferred by sub-section (2) of section 3; that the order is well founded; and that the representations made by the detenu after due consideration have been rejected on 2-11-1995 by the Central Government. 5. During arguments the learned counsel for the petitioner more or less gave up all other points and mainly concentrated on the point of violation of Article 22(5) of the Constitution and it was contended that while the State Government has not decided the representation till date, the Central Government took nearly 2 months to decide the same. The unexplained delay, it was further contended, vitiated the continued detention. According to him, in fact the State Government being 'the appropriate Government' in the instant case, should have decided the representation. But, no fact or document is placed on record by the respondents Nos. 1 and 2, to show that they have taken any decision in the matter. Alternatively, it was submitted even if the decision was to be taken by the Central Government, there was inordinate delay in the matter and so in either case the detention is vitiated. 6. But, no fact or document is placed on record by the respondents Nos. 1 and 2, to show that they have taken any decision in the matter. Alternatively, it was submitted even if the decision was to be taken by the Central Government, there was inordinate delay in the matter and so in either case the detention is vitiated. 6. The question that arises for consideration is as to who is the appropriate authority which was required to consider the representation submitted by the detenu in the context of the order for detention being passed by the District Magistrate i.e., officer specially empowered by the State Government under section 3(3) of the Act, 1980. The question has to be considered in the light of provisions relating to preventive detention contained in Article 22(5) of the Constitution of India as well as the provisions contained in the Act, 1980. 7. 'Inter alia' one safeguard contained in Clause (5) of Article 22 of the Constitution provides as under :- "22(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." It will be thus seen that Article 22(5) enjoins dual obligation on the authority making the order of preventive detention : (i) to communicate to person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. 8. Coming to the Act, 1980, under sub-section (3) of section 3 of the Act, power has been conferred on the District Magistrate as well as the Commissioner of Police to make an order of detention and sub-section (4) of section 3 prescribes that the officer shall forthwith report the fact of making the order to the State Government to which he is subordinate together with the grounds on which the order has been made and that no such order shall remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government. In section 8(1) it is prescribed that the authority making the order shall afford the person detained the earliest opportunity of making representation against the order to the appropriate Government. 9. The term 'appropriate Government' has been defined under clause (a) of section 2(1) of the Act as follows : (a) "appropriate Government", means, as respects a detention order made by the Central Government or a person detained under such order, the Central Government, and as respect a detention order made by a State Government or by an officer subordinate to a State Government or as respects a person detained under such order, the State Government; 10. In the instant case the order of detention was made by an officer who is subordinate to the State Government and as such the appropriate Government in this case would be the State Government. Further, as pointed out in para 8 above, the detention order though made initially by the District Magistrate is required to be approved by the State Government within a time frame. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of 12 days after its making. It is also the requirement of section 3(4) that the report should be accompanied by the grounds on which the order has been made and such other particulars as, in the opinion of the said officer, have a bearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention. The effect of the approval by the State Government is that from the date of such approval the State Government is the detaining authority. That appears to be the reason why section 8(1) envisages that the representation against the order of detention is to be made to the appropriate Government i.e., the State Government. 11. Reverting to the petition, the replies thereto and the documents filed by the parties, we find that the respondents Nos. 1 and 2 did not in their return plead a fact with necessary particulars or produce a document to show that they have taken any decision on the representation. It appears that the State Government merely forwarded the representation to the Central Government. 1 and 2 did not in their return plead a fact with necessary particulars or produce a document to show that they have taken any decision on the representation. It appears that the State Government merely forwarded the representation to the Central Government. The representation was made by the detenu both to the State Government and the Central Government. The Central Government as would appear from their reply received representation on 4-10-1995. They wanted certain clarifications from the State Government and as such the wireless messages were sent on 5-10-1995, 19-10-1995, 20-10-1995 and 23-11-1995. It was as late as on 23-11-1995 that the requisite information was furnished by the State Government to the Central Government and whereupon the Home Ministry, Government of India ultimately decided and rejected the representation on 27-11-1995. 12. It will be thus seen that the appropriate Government i.e., the State Government not only failed to take any decision on the representation made by the detenu but also caused delay in that representation being decided by the Central Government. At the first place the representation ought to have been decided by the State Government themselves and even if for the sake of arguments it is accepted that the Central Government was also empowered to decide the representation then also there was unreasonable delay in deciding the same. 13. Article 21 of the Constitution of India mandates that 'no person shall be deprived of his life or personal liberty except according to procedure established by law.' Article 22(5) in the context of detention under the relevant law, commands that the authority shall afford earliest opportunity of making a representation against the order. Expression "earliest" occurring in Article 22(5) and also in section 8(1) of the Act, 1980, means or must mean that there ought to be no delay either at the stage of submission or disposal. Section 8(1) of the Act is to serve the purpose as is contained in Article 22(5). Liberty is too precious a thing recognised under our Constitution. The case on hand, as noted above precipitates two infirmities sufficient to invalidate eclipse on liberty. One, appropriate Government did not decide and two, appropriate Government did not facilitate early disposal even by the Central Government. Information was withheld from 5-10-1995 to 23-11-1995 i.e., for about 50 days. This is thus, negation of constitutional obligation. The case on hand, as noted above precipitates two infirmities sufficient to invalidate eclipse on liberty. One, appropriate Government did not decide and two, appropriate Government did not facilitate early disposal even by the Central Government. Information was withheld from 5-10-1995 to 23-11-1995 i.e., for about 50 days. This is thus, negation of constitutional obligation. The assertion that Central Government did decide it on 27-11-1996 is poor proxy and cannot validate the invalidity. 14. In (1980) 4 SCC 544 , Smt. Shalini v. Union of India, the under noted proposition is laid down - "The obligation imposed on the detaining authority, by Article 22(5) of the Constitution, to afford to the detenu the earliest opportunity of making a representation, carries with it the imperative implication that the representation shall be considered at the earliest opportunity. Since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Article 22(5) read with Article 19, the courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural imperative must lead to the release of the detenu. The representation here was admittedly not considered and on that ground alone the detenu was entitled to be set at liberty." In Pabitra N. Rana v. Union of India, AIR 1980 SC 798 dealing with a case of detention under COFEPOSA Act, the Apex Court held : "When there has been unexplained and unreasonable delay of one month and five days in deciding the representation filed by the detenu against his detention under section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, that by itself is sufficient to render the detention void." In Gazikhan's case, AIR 1990 SC 1361 , the Apex Court quashed the order of detention, clamped upon Gazikhan on unexplained delay of seven days in disposal of his representation. In a recent decision in the case of Kamlesh Kumar Ishwardas Patel's case, 1995 (4) SCC 51 , their Lordships of the Apex Court in the similar situation as is prevailing in the instant case held that "since the Authority did not consider the representation there has been denial of the Constitutional safeguard guaranteed under Article 22(5) of the Constitution of India as a result of which the detention... has to be held illegal." 15. has to be held illegal." 15. From the foregoing discussions, it, therefore, inevitably follows that there has been denial of the constitutional safeguard conferred under Article 22(5) of the Constitution of India to the detenu which renders his detention illegal. We, therefore, allow the petition, quash the order of detention (Ann. P-1) made by the District Magistrate, Indore and also order (Ann. R-9) made by the State Government. The petitioner detenu Kalu @ Hukumchand shall be set free at once unless he is required in connection with any other matter.