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2000 DIGILAW 131 (GAU)

Ramesh Saharia v. Union of India

2000-03-24

J.N.SARMA, P.G.AGARWAL

body2000
P. G. Agarwal, J.-By this application under Article 226 of the Constitution the petitioner has challenged the order of detention dated 21.7.99 passed by the District Magistrate, Darning, whereby the detenu Diganta Saharia @ Maina Saharia was directed to be detained under the National Security Act, 1980, for short the Act. In this case the petitioner has challenged the detention order on the following grounds: (1) delay in transmission of the representation submitted by the detenu; (2) non-application of mind while disposing of the representation. 2. Shri N. Dutta, learned counsel for the petitioner has drawn the attention of this Court to the clause (3) of the grounds of detention, whereby a copy was endorsed to the Superintendent of District Jail. The relevant portion of the direction reads as follows: “The Superintendent of District Jail, Mangaldoi for keeping the detenu as Class II detenu in his jail custody. He is also requested to send the representation, if submitted by the detenu against this order to the undersigned for further necessary action immediately.” Learned counsel has submitted that under the settled law on the subject, the Superintendent, District Jail is required to forward the copy of the representation to the State Govt/Central Govt directly, as the case may be, and the District Magistrate had no authority to direct otherwise and thereby delay the matter. On perusal of the directions as quoted above, we do not find any direction by the District Magistrate that the representation addressed to the Central Govt or the State Govt is required to be routed through District Magistrate. The record produced before us also shows that the copy of representation received by the Superintendent, District Jail was forwarded to the District Magistrate and to the State Govt separately. We, therefore, find no force in the above submission. Shri Dutta further submitted that in the instant case there was undue delay in transmission of the representation. The admitted facts are that the order of detention was passed on 21.7.99 and the detenu submitted his representation on 5.9.99 and the District Magistrate forwarded the same to the State Govt on 9.9.99 along with its parawise comments. In a catena of decisions the Apex Court held that the representation must be considered with due promptitude or expedition and without avoidable delay. In a catena of decisions the Apex Court held that the representation must be considered with due promptitude or expedition and without avoidable delay. At this stage, we would like to recapitulate the observation of the Apex Court in the case of Aslam Ahmed Zahire Ahmed Shaik vs. Union of India & others, (1989) 3 SCC 277 : “It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of detenu has to be disposed of with reasonable expedition but it must necessarily depend on the facts and circumstances of each case. The expression 'reasonable expedition is explained in Sabir Ahmed vs. Union of India as follows: “What is 'reasonable expedition' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does hot cover the delay due to negligence, callous inaction, avoidable redtapism and unduly protracted procrastination.” Thus when it is emphasised and reemphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, 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 or remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 22 (5) of the Constitution.” 3. From the affidavit filed by the State Govt and the Central Govt it is seen that the representation was forwarded to the Central Govt by the State authority , on 13.9.99. It may be mentioned here that 11th and 12th September, 1999 were holidays on account of 2nd Saturday and Sunday. The Central Govt received the representation on 17th September and disposed of the same on 20th September, 1999. 4. The representation submitted by the detenu on 5.9.99 was received by the District Magistrate on 6.9.99 and it was forwarded to the State Govt on 9.9.99 along with parawise comments. The Central Govt received the representation on 17th September and disposed of the same on 20th September, 1999. 4. The representation submitted by the detenu on 5.9.99 was received by the District Magistrate on 6.9.99 and it was forwarded to the State Govt on 9.9.99 along with parawise comments. It is submitted by the learned counsel for the petitioner that the District Magistrate was required to sent the representation immediately and it was unnecessarily retained for three days. The explanation on behalf of the respondent is that whenever a representation is forwarded to the Central Govt, parawise comments from the District Magistrate is called for and thereafter the comments are sent and it entails some delay. Hence, in order to avoid such delay, it was considered to forward (he representation along with the parawise comments itself to the authority so that the concerned authority may dispose of the representation promptly. There is no denial that generally parawise comments are called for. We, therefore, find that the explanation given by the respondent is sanguine and reasonable and as a matter of fact it was meant to avoid delay and not to cause delay. 5. This Court in the case of Naren Neog @ Naren etc vs. State of Assam & others, 1997 (II) GLT 374 observed as follows : “It is not so much the number of days, which counts, what really matters is with what live concern and promptness the representation was processed and attended at different levels and stage to stage. A lackadaisical attitude on the part of the authorities concerned, which is writ large in the instant case, militates against the constitutional requirement of as soon as may be.” 6. Learned counsel for the petitioner has submitted that the impugned orders whereby the authorities have rejected the representation do not reflect that the concerned authorities had applied their minds to the representation. It is fairly submitted that in such cases speaking orders are not required to be passed. Learned counsel has further relied on the observations of the Apex Court in the case of Bhut Nath Mete vs. State of West Bengal, (1974) 1 SCC 645 . The Apex Court observed: “ The bare bones of natural justice in this context need not to be clothed with the ample flesh of detailed hearing and elaborate reasoning. Learned counsel has further relied on the observations of the Apex Court in the case of Bhut Nath Mete vs. State of West Bengal, (1974) 1 SCC 645 . The Apex Court observed: “ The bare bones of natural justice in this context need not to be clothed with the ample flesh of detailed hearing and elaborate reasoning. It must be self-evident from the order that the substance of the charge and the essential answer in the representation have been impartially considered. We do not think that a speaking order like a regular judicial performance is either necessary or feasible. Article 22 (5) also does not compel us to reach a different conclusion. After all, we must remember that a harmonious reconciliation between the claims of security of the nation and the liberty of the citizen through the process of effective representation before deprivation and fair consideration by the Executive and the Advisory Board are the necessary components of natural justice.” In the instant case, we find that representation were duly considered. 7. In the result, we find no illegality in the order of detention and accordingly the petition is dismissed.