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Rajasthan High Court · body

2000 DIGILAW 684 (RAJ)

Rafiq alias Nanha v. State of Rajasthan

2000-05-29

G.L.GUPTA, J.C.VERMA

body2000
JUDGMENT 1. - Through this habeas corpus petition under Article 226 of the Constitution of India, Rafiq @ Nanha calls in question his detention by the respondents under the National Security Act, 1980. 2. The case for the petitioner is that he has been detained by the respondents under an order dated 15.2.2000, though he was never indulged in any activity which is prejudicial to the maintenance of the public order. Besides other grounds, it has been stated that the petitioner had made a representation against the order of detention, but the same has not been considered by the detaining authority or the State Government or the Central Government. It has been pleaded that his representation was required to be considered by the authorities before the meeting of the Advisory Board, but it was not done. It has been stated that the petitioner had made the representation, to the President of India, Governor of Rajasthan, and the District Magistrate concerned through registered post on 7.3.2000 and he had also handed over his representation to the Superintendent, Jail, Jaipur on 7.3.2000 with a request to send the same to the concerned authorities but the authorities have failed to consider his representations. It has been contended that because of the non-consideration of his representation, the petitioner's detention has become illegal and is liable to be quashed. 3. In the return, it has been averred that the detenu is a history-sheeter and from the year 1975 upto 16.10.1999 as many as 15 criminal cases have been registered against him at different Police Stations for the various offences. It has been stated that the detenu had tried to outrage the modesty of the girls on public road for which cases have been registered against him. Stating that the detenu is a potential threat to the public order, it has been pleaded that he does not deserve any sympathy and the provisions of the National Security Act have been rightly invoked for maintaining the peace and public order. Regarding the representation, it has been averred that the same was not made before the meeting of the Advisory Board was held and now the Advisory Board has approved the detention of the detenu on 14.3.2000. 4. We have heard the learned counsel for the parties and have gone through the record of the case. 5. Regarding the representation, it has been averred that the same was not made before the meeting of the Advisory Board was held and now the Advisory Board has approved the detention of the detenu on 14.3.2000. 4. We have heard the learned counsel for the parties and have gone through the record of the case. 5. Though various grounds have been taken in the writ petition but Shri Bhandari confined his arguments' to the ground that the authorities have not considered the representation of the detenu and the detention is liable to be quashed on this ground alone. He has relied on some cases which shall be referred to hereinafter at the appropriate place. 6. It is now admitted position that the detention of the petitioner was made vide order Annexure 2 dated 15.2.2000 and he was supplied the grounds of detention on 17.2.2000. The order of detention passed by the District Magistrate has been confirmed by the State Government vide order dated 23.2.2000, Annexure 3. It is not disputed that the detenu's representations against his detention received by the State Government or the District Magistrate have not been considered as yet. 7. The say of the respondents is that the representation of the detenu was received after the matter was considered by the Advisory Board and therefore, it was not required to be considered. 8. The petitioner has filed the acknowledgement receipts of the representations submitted to the President of India as also to the Governor of Rajasthan. The endorsements appearing on these receipts indicate that they had been received in the office of the President of India on 9.3.2000 and in the office of the Governor, as also in the office of the Chief Minister of Rajasthan on 8.3.2000. The representations to the various other authorities were also dispatched by the petitioner on 7.3.2000 which fact is evident by Annexure 10. A perusal of the documents Annexures 12 and 13 make it dear that the State Government had received the representation of the petitioner much before the matter was placed before the Advisory Board. It is therefore not correct to say that the representation was received by the State Government after the matter was submitted to the Advisory Board. 9. A perusal of the documents Annexures 12 and 13 make it dear that the State Government had received the representation of the petitioner much before the matter was placed before the Advisory Board. It is therefore not correct to say that the representation was received by the State Government after the matter was submitted to the Advisory Board. 9. Even on assuming that the representation was received by the State Government after the matter was submitted to the Advisory Board, the State Government was not absolved of its obligation to consider the representation of the detenu. On this point, the legal position is crystal clear. The consideration of the representation by the State Government is required to be made even if the matter has been considered by the Advisory Board. The detaining authority -or the State Government are not absolved from their obligation of consideration of the representation. 10. In the case of (1) B Sundar Rao v. State of Orissa ( AIR 1972 SC 739 ) , the Apex Court has observed that the Government must consider the representation submitted by the detenu and the fact that the matter had been referred to the Advisory Board before the submission of the representation, will not absolve the Government from applying its own mind to the representation and take decision on it.So also case of (2) Ashok Kumar v/s State of J&K ( AIR 1981 SC 851 ) , the order of detention was quashed on the sole ground of non-consideration of the representation, even though.the order was confirmed after receiving the opinion of the Advisory Board. In other words, the consideration of the representation by the Government is sin qua non.The Supreme Court in the case of (3) Smt. Gracy V/s State of Kerala and.another ( AIR 1991 SC 1090 ) , has held that the detaining authority is not absolved of its obligation, merely because the representation was addressed to the Advisory Board and submitted to the same. In that case, since there was no independent consideration of the representation by the Central Government, their Lordships held that the order of detention as well as the order of the confirmation, are liable to be quashed. In that case, since there was no independent consideration of the representation by the Central Government, their Lordships held that the order of detention as well as the order of the confirmation, are liable to be quashed. In that case, the observations of the Constitution Bench in the case of (4) K.M. Abdulla Kunhi and B.L. Abdul Khader v/s Union of India, State of Karnataka, JT 1991(1) SC 216) were read, which are reproduced hereunder: "It is now beyond the place of controversy that the constitutional right to make representation under Cl.(5) of Article 22 by necessary impliction guarantees the constitutional 'right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in as. (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient cause for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. The right to have the representation considered by the Government is safeguarded by Cl.(5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under Cl.(4) of Article 22 read with Section 8(c) of the Act." (Emphasis supplied) 11. It is thus obvious that even though the State Government had submitted the case of the petitioner to the Advisory Board, yet it was obligatory for the Government to have considered the representation of the petitioner admitted. It has not been done. It is thus obvious that even though the State Government had submitted the case of the petitioner to the Advisory Board, yet it was obligatory for the Government to have considered the representation of the petitioner admitted. It has not been done. The detention of the petitioner is liable to be quashed on this ground alone. 12. The Apex Court time and again has observed that the representation submitted by a detenu against his detention should be considered without delay and if delay is caused in the consideration of the representation and it is not explained, the detention order is liable to be quashed.In the case of (5) Jayanarayan Sakul v/s State of West Bengal ( AIR 1970 SC 675 ) , the constitution Bench considered the provisions of the Preventive Detention Act, 1950, and the provisions of the Constitution of India. Four principles were directed to be followed in regard to representation of detenus. The observations appearing at para no. 20 are reproduced hereunder: "Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will sed the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will sed the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu." (Emphasis supplied) In the case of (6) Raghavendar Singh v/s Superintendent of District Jail. ( AIR 1986 SC 356 ) , the detention order was quashed mainly on the ground that the representation of the detenu was not considered by the Central Government for 75 days.So also, in the case of (7) Smt. Khatun v/s Union of India ( AIR 1981 SC 1077 ) , which was a case under the National Security Act the delay in consideration of the representation was held to be fatal. In that case, the case of the Government was that a certain -amount of delay was inevitable having due regard to the procedure prescribed by the Act and, therefore, delay in consideration of the representation should not be held to prejudice the detention. Their Lordships repelling the contention held that Article 22(5) of the Constitution of India enjoins a duty on the authority making the order of detention to afford the detenu "the earliest opportunity of making a representation against the order" and that the consideration of the representation at the earliest opportunity is a Constitutional imperative which cannot be curtailed or abridged.In the case of (8) Tara Chand V/s State of Tamilnadu ( AIR 1980 SC 1361 ) , it was held that if there is inordinate delay in consideration of the representation that would clearly amount the violation of the provisions of Article 22(5) of the Constitution so as to render the detention unconstitutional and void.In the case of (9) Venmathi V/s State of Tamilnadu ( 1998(5) SCC 510 ) , the delay of three weeks was held to be prejudicial to the detention and the detention was quashed. In that case, it was observed that though the delay by itself is not fatal, yet the delay which remains un-explained, becomes unreasonable and when the delay, is not explained, it shows that the representation was dealt with in a routine manner, and renders the detention of the detenu illegal.The same principle was reiterated by the Apex Court in the case of (10) Kundanbhai v/s Dish. Magistrate ( AIR 1996 SC 2998 ) , when it observed at para No.14 of the report as follows. "It is implicit that there is corresponding duty on the authorities to whom the representation is made to dispose of the presentation at the earliest or else the constitutional and statutory obligation to provide the earliest opportunity of making a representation would be both its purpose and meaning." Their Lordships further observed at para 18 that if there has been any delay in the disposal the reasons for the delay must be indicated to the court or else the explained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of the detention and in that situation, continued detention would become bad.The same principle was reiterated by the Apex Court in the case of (11) R. Paulsamy v/s UOI ( AIR 1999 SC 2004 ) , and only 14 days unexplained delay in the consideration of representation was held to.be fatal.In the case of (12) Rajammal v/s State of T.N. ( AIR 1999 SC 684 ) , the contention of the State was that the representation could not be considered for 5 days as the Minister was away. Their Lordships held that the delay in consideration of the representation has not been satisfactorily explained as the absence of the Minister at the head quarter was not a sufficient ground to justify the delay. 13. Thus the unambiguous legal position is that it is the constitutional duty of the appropriate authority to consider the representation of the detenu without delay and if the representation is not at all considered or delay is caused in the consideration of the representation and the same is not explained, the detention is liable to be quashed. 14. In the instant case, as already stated the representation of the detenu has not at all been considered by the Government and therefore, the detention is liable to be held void. 15. 14. In the instant case, as already stated the representation of the detenu has not at all been considered by the Government and therefore, the detention is liable to be held void. 15. It may be that the petitioner is a history sheeter and various cases are pending against him and in the eyes of the authorities who are responsible to maintain the public order, his remaining at large may cause problem, but that cannot be a ground to uphold the detention when the authorities have failed to discharge their constitutional obligation under Article 22(5) of the Constitution of India. The further detention of the petitioner is illegal. The petition deserves to be allowed. 16. Consequently, the petition succeeds. The impugned order is hereby quashed. The petitioner is directed to be set at liberty forthwith, if not required in any other case.Petition Allowed *******