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2000 DIGILAW 825 (BOM)

Lilawati Suresh Mange v. State of Maharashtra

2000-11-21

A.M.KHANWILKAR, G.D.PATIL

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Judgement A. M. KHANWILKAR, J. :- By this writ petition, under Article 226 of the Constitution of India, the petitioner, who is the wife of the detenu, Shri Suresh Shankarlal Mange alias Suresh Manaji Mange alias Bhanushali, (hereinafter referred to as the Detenu for the sake of brevity), has challenged the detention order passed by G. C. Tripathi, Principal @page-CriLJ863 Secretary of State of Maharashtra, Home Department (Appeals and Security) and Detaining Authority, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA). 2. Although various contentions were raised before us during the course of arguments, however, we have confined the present judgment on the issue of delay in considering the representation by the detaining authority, as in our view, this petition would succeed on this sole ground. 3. The relevant facts for the adjudication of the issue raised before us are that that the detaining authority passed the impugned detention order on 6-1-2000, which was served on the detenu on 15-1-2000 along with the grounds of detention, para 42 of the grounds of detention specifically mentions that the detenu was entitled to make a representation to the detaining authority against the impugned detention order and the same was required to be addressed to the Principal Secretary to the Government of Maharashtra, Home Department (Appeals and Security) and Detaining authority, Mantralaya, Mumbai 400 032 through the Superintendent of Jail where the detenu was kept in custody. Pursuant thereto, the Petitioner, wife of the detenu, addressed representation to the Secretary, Government of Maharashtra, Home Department (Appeals and Security), dated 3-2-2000, which, according to the petitioner, was handed over directly in the office of the Deputy Chief Minister on the 4th of February, 2000. In support of this plea the original acknowledgment obtained by the petitioner on the said representation was produced before us. The grievance made by the petitioner with regard to delay is articulated in grounds Nos. (h) and (i) of the writ petition, which are reproduced thus :- "(h) Despite of the detenu's furnishing the written representation and also personally representing the matter to the Detaining Authority, the Detaining Authority passed an order dated 31-3-2000 by vaguely referring to the representation dated 9-3-2000. (h) and (i) of the writ petition, which are reproduced thus :- "(h) Despite of the detenu's furnishing the written representation and also personally representing the matter to the Detaining Authority, the Detaining Authority passed an order dated 31-3-2000 by vaguely referring to the representation dated 9-3-2000. The detention order dated 31-3-2000 rejecting the petitioner's representation dated 3-2-2000 is vague and without any justification and thus, there is absolutely non-application of mind or non-consideration of the written representations of the detenu. Thus, the entire actions of the respondents are vitiated; (i) The delay, if any, at any stage in considering the representation would affect the right of the petitioner under Article 22(5) of the Constitution of India." 4. What intrigued us is that to counter the above said grievance made by the petitioner, Shri P. M. Nimonkar, Deputy Secretary to the Government of Maharashtra, Home Department (Special) Mantralaya, Mumbai filed affidavit in this Court dated 29-6-2000. Para 16 thereof, clearly asserts that the detenu presented representation to the Advisory Board and not to the Detaining Authority. In other words, the stand taken on behalf of the Respondents is that no representation was made on behalf of the detenue to the detaining authority. This stand was maintained on behalf of the Respondents even at the time of arguments till the learned counsel was confronted with the endorsement on the copy of the representation which indicated that the representation was received in the office of the Deputy Chief Minister on 4-2-2000, as also with the letter of Shri R. Y. Nalawade, Under-Secretary to the Government of Maharashtra dated 31-3-2000, which is Exh. H at page 82 of the paper book, which would clearly indicate that representation on behalf of the detenu dated 3-2-2000 was received by the Department on 21-3-2000 and the same was considered and rejected by the detaining authority. Moreover, the learned counsel for the Respondents was also confronted with the corresponding endorsements on the original file produced before us. The Respondents thereafter chose to file further affidavit of Shri B. S. Wankhede, Under-Secretary, Home Department (Special), Mantralaya, Mumbai dated 21-11-2000. This affidavit was tendered across the Bar during the course of the arguments. The noting on the original file would indicate that a representation was made to the detaining authority dated 3-2-2000 which was received on 4-2-2000. The Respondents thereafter chose to file further affidavit of Shri B. S. Wankhede, Under-Secretary, Home Department (Special), Mantralaya, Mumbai dated 21-11-2000. This affidavit was tendered across the Bar during the course of the arguments. The noting on the original file would indicate that a representation was made to the detaining authority dated 3-2-2000 which was received on 4-2-2000. Besides the said endorsement, there are other endorsements including dated 15-2-2000 which would clearly indicate that the representation made to the Secretary, Government of Maharashtra, Home Department (Appeals and Security) by the Petitioner on behalf of the detenu was duly received by the Respondents. There is no doubt that the same was received in the office of the Deputy Chief Minister on 4-2-2000 but obviously no steps were taken on the said application till 15-2-2000, till another endorsement was made thereon presumably while sending it to the Home Department, whereas the endorsement made by the Home Department of having received the said representation is dated 21-3-2000. When this anomaly in the pleadings and the original record was brought to the notice of the Respondents only thereafter the Respondents thought it appropriate to place further affidavit on record so as to explain the doubt which was created. While offering explanation, the latest affidavit filed by Shri B. S. Wankhede, Under- Secretary dated 21-11-2000 admits the fact that the representation was received in the office of the Deputy Chief Minister on 4-2-2000. The only explanation offered is that since the office of the Deputy Chief Minister receives scores of such applications, no prompt action could be taken thereon. The affidavit however clearly admits the fact that representation was forwarded to the registry in the office of the Deputy Chief Minister on 15-2-2000. In other words, there is no satisfactory explanation offered with regard to the inaction between 4-2-2000 till 15-2-2000. The said affidavit mentions that representation was then sent to the Home Department. The endorsement on the original file indicates that the representation was received in the Home Department on 21-3-2000. No doubt, after 21-3-2000 the affidavit gives the details about the steps taken till the representation was processed and considered and came to be rejected by the detaining authority. Be that it may be, admittedly, no explanation whatsoever is offered even with regard to the inaction between 15-2-2000 till 21-3-2000. 5. No doubt, after 21-3-2000 the affidavit gives the details about the steps taken till the representation was processed and considered and came to be rejected by the detaining authority. Be that it may be, admittedly, no explanation whatsoever is offered even with regard to the inaction between 15-2-2000 till 21-3-2000. 5. Ordinarily, we would have decided the matter on the basis of pleadings before this Court made by the rival parties. As mentioned earlier, in the grounds of writ petition clear assertion was made by the petitioner that representation was made to the detaining authority on behalf of the detenu dated 3-2-2000. In response to the said assertion, the Respondent filed affidavit in this Court wherein contended that no such representation was ever made to the detaining authority. The Respondents stand was clearly false and belied by the record inasmuch as besides asserting as above, the petitioner also produced the original acknowledgment to buttress her stand and in fact her stand was fully supported by the Respondents document letter dated 31-3-2000 at page 82. Moreover, it is only when the Counsel for the Respondents was confronted with the original record then the Respondents thought it appropriate to explain the circumstances which caused delay in considering the said representation dated 3-2-2000 till 31-3-2000. The affidavit as filed before this Court by Shri B. S. Wankhede, Under-Secretary, is another unsuccessful attempt by the Respondents to explain the enormous delay from 4-2-2000 till 31-3-2000 in considering the representation by the detaining authority. As observed earlier, no explanation much less satisfactory is offered with regard to the time spent between 4-2-2000 till 15-2-2000 and again between 15-2-2000 till 31-3-2000. On the other hand what is argued before us is that that the detenu cannot take advantage of his own wrong by making representation to the wrong authority inasmuch as the petitioner ought to have handed over the representation to the office of the Principal Secretary, Government of Maharashtra, Home Department (Appeals and Security) and Detaining Authority, whereas with mala fide intention the same has been submitted in the office of the Deputy Chief Minister on 4-2-2000. The assertion regarding mala fide of the petitioner is made by the Respondents for the first time in affidavit tendered across the Bar dated 21-11-2000. The assertion regarding mala fide of the petitioner is made by the Respondents for the first time in affidavit tendered across the Bar dated 21-11-2000. The allegation is that that the representation was intentionally handed over in the office of the Deputy Chief Minister on 4-2-2000 so that there is delay in considering the representation. Therefore, according to the Respondents, the same cannot be made a ground for challenging the detention order. We are afraid, it is not open to the Respondents to take such stand, for what was expected of the Respondents is that as soon as the representation was handed over in the office of the Deputy Chief Minister on 4-2-2000 the same should have been forwarded without any loss of time to the Principal Secretary, Home Department (Appeals and Security) as the same was addressed to the said authority within the same Department. Since the representation mentioned all particulars of detention order and other details it was incumbent on the person concerned in the office of the Deputy Chief Minister to act with prudence and immediately forward the said representation to the appropriate authority competent to consider the said representation. However, this is not what has happened in the present case. On the other hand, the representation remained pending and unattended in the office of the Deputy Chief Minister till 15-2-2000 and on that day the same was merely forwarded to the Registry of the Deputy Chief Minister. Even the Registry of the Deputy Chief Minister did not act with promptitude as no explanation has been offered as to what happened between 15-2-2000 till 21-3-2000 when the representation was stated to be actually received in the office of the Home Department. This is wholly beyond our comprehension and cannot be countenanced at all. It is not possible to accept the stand taken by the Respondents that since the representation was handed over in the office of the Deputy Chief Minister, viz., allegedly to the wrong authority, the petitioner cannot make a grievance of delay in considering the said representation. This is wholly beyond our comprehension and cannot be countenanced at all. It is not possible to accept the stand taken by the Respondents that since the representation was handed over in the office of the Deputy Chief Minister, viz., allegedly to the wrong authority, the petitioner cannot make a grievance of delay in considering the said representation. We would be fortified in taking such a view having regard to the fact that the grounds of detention, para 43 thereof, clearly mentions that detenu was also entitled to make representation to the State Government against the detention order and the same was to be addressed to the Hon'ble Deputy Chief Minister (Home), Mantralaya, Mumbai 400032 though the Superintendent of Jail where the detenu was detained. The Respondents have not taken exception because of the representation having been directly handed over by the detenu's wife in the office of the Deputy Chief Minister, instead of sending it through the Superintendent of Jail, as would have been ordinarily required in view of the observations made in the grounds of detention. We, therefore, fail to understand as to how the office of the Deputy Chief Minister could have taken such a callous attitude with regard to the representation made on behalf of the detenu when the said office was equally responsible and obliged to entertain the representation against detention orders. It, therefore, does not lie in the mouth of the Respondents that the said representation was addressed to the wrong authority and for which reason they were entitled to take no action thereon with utmost despatch. 6. In our view, by no stretch of imagination, inaction between 4-2-2000 till 15-2-2000 and at any rate again between 15-2-2000 till 21-3-2000, can be said to be satisfactory or reasonable but would only indicate the lethargy, callousness and insensitivity in the office of the Deputy Chief Minister in handling such urgent matters which relate to the liberty of citizens. We are not at all impressed or satisfied by the explanation offered by the Respondents for delay in considering the representation in the present case. In our view, the office of the Deputy Chief Minister has acted in very cavalier fashion in dealing with the detenu's representation, albeit addressed to the Secretary. We are not at all impressed or satisfied by the explanation offered by the Respondents for delay in considering the representation in the present case. In our view, the office of the Deputy Chief Minister has acted in very cavalier fashion in dealing with the detenu's representation, albeit addressed to the Secretary. In such a situation, the office of the Deputy Chief Minister in the first place ought to have refused to accept the representation and directed the petitioner to hand over the same in the office of the Secretary concerned, for making this remark, we assume that the representation was not presented in a closed envelope, for it is the petitioner's case that the representation was handed over in the office of the Deputy Chief Minister not in sealed cover. Naturally, there was no occasion for the office of the Deputy Chief Minister to be misled as the contents of the representation unambiguously revealed that the same pertained to detention and addressed to the Secretary of the same department. Even the Respondents did not claim that since the representation was handed over in the office of the Deputy Chief Minister in closed envelope the same was not attended till 15-2-2000, however, even assuming that the representation was handed over in sealed envelope even then there can be no justification for not attending to the said envelope for a period of more than 11 days i.e. from 4-2-2000 till 15-2-2000. For, by no stretch of imagination, inaction on any document for such a long time can be said to be reasonable and justified particularly at the level of the highest office of the State, namely, the Deputy Chief Minister, and particularly when his office is also obliged to receive and consider the representations on behalf of the detenus challenging detention orders. 7. The apex Court has time and again frowned upon the lethargy on the part of the authorities to consider the representation with utmost despatch. It is needless to multiply the authorities except reference to the recent decision of the apex Court viz. 1999 Cri LJ 826 : ( AIR 1999 SC 684 ) Rajammal v. State of Tamil Nadu. 7. The apex Court has time and again frowned upon the lethargy on the part of the authorities to consider the representation with utmost despatch. It is needless to multiply the authorities except reference to the recent decision of the apex Court viz. 1999 Cri LJ 826 : ( AIR 1999 SC 684 ) Rajammal v. State of Tamil Nadu. The Apex Court has repeatedly held that it is a constitutional obligation of the authorities to consider the representation forwarded by the detenu without any delay and it is essential that the representation should be considered and appropriate decision taken thereon by the authority as soon as may be, it means at the earliest opportunity. Although authorities are entitled to explain the delay, however, as we have already observed that no satisfactory explanation has been offered, on the other hand, we are of the view that there was absolute indifference and lethargy shown by the authorities in considering the representation, that clearly affected the precious right of the detenu. It is well settled that Article 22(5) reflects the concern of the framers of the Constitution that representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. In other words, any inaction on the part of the authorities or limb of the Government which ultimately leads to delay in considering the representation will have to be deprecated and frowned upon. In the present case, since we are not satisfied that the explanation offered by the Respondents for delay in considering the representation, we have no other option but to quash and set aside the impugned detention order. 8. Accordingly, we allow the writ petition and quash and set aside the impugned detention order dated 6-1-2000 passed against Shri Suresh Shankarlal Mange alias Suresh Manaji Mange alias Bhanushali under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu shall be set at liberty forthwith unless required in some other case. Rule made absolute. Petition allowed.