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2001 DIGILAW 1062 (PAT)

Umesh Singh v. State Of Bihar

2001-11-27

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment 1. The petitioner has moved this Court for quashing the order dated 18.6.2001, initiating a proceeding under the Bihar Control of Crimes Act and directing to detain the petitioner, annexure 1, the order dated 26.6.2001 approving the detention order by the State Government, annexure 2 and also the order dated 9.8.2001, Annexure-3, the final order directing to detain the petitioner till 17.6.2002. 2. The relevant facts of the case are that the petitioner was made accused in criminal cases which are pending for disposal. The Superintendent of Police, Begusarai, respondent no. 5, submitted a report for initiating a proceeding under the Bihar Control of Crimes.. Act, hereinafter to be referred to as the Act. On the said report respondent no. 4 initiated a proceeding under the Act and directed to detain the petitioner vide order dated 18.6.2001. The said order was approved by the State Government vide order dated 26.6.2001. The petitioner filed a representation on 28.6.2001. The said representation was rejected on 10.7.2001. Thereafter, final order of detention was passed vide order dated 9.8.2001 directing to detain the petitioner till 17.6.2002. The order of detention has been challenged on the ground that there was unexplained delay in disposal of the representation. 3. Two sets of counter affidavit have been filed-one on behalf of respondent nos. 2 and 3 and the other on behalf of respondent no. 4. In the counter affidavit it has been stated that the petitioner was involved in the criminal cases and his activities were prejudicial to the public order and as such it was necessary to detain the petitioner to maintain the public order. Further stand has been taken in the counter affidavit that representation of the petitioner was forwarded by respondent no. 4 vide letter dated 3.7.2001 with comment which was received on 4.7.2001 in the department and after thorough examination of the representation, the State Government vide letter dated 10.7.2001 rejected the representation. 4. Learned counsel for the petitioner, vehemently pointed out that there was unexplained delay in disposal of the representation and as such the order of detention is bad in law. On the other hand learned counsel for the respondents submitted that delay in disposal of the representation has been explained in the counter affidavit. 5. 4. Learned counsel for the petitioner, vehemently pointed out that there was unexplained delay in disposal of the representation and as such the order of detention is bad in law. On the other hand learned counsel for the respondents submitted that delay in disposal of the representation has been explained in the counter affidavit. 5. In this regard it is to be mentioned that there is no provision under the Act for filing representation, rather right to file representation has been provided under Article 22(5) of the Constitution of India. In case representation is filed by the detenu, the same is required to be disposed of at the earliest. If there is any delay in disposal, the same must be explained by the respondents. There may be delay in disposal due to unavoidable reason but delay in disposal of representation without any explanation would vitiate the order of detention. Filing of representation against the detention is a right guaranteed under the Constitution and such right cannot be violated arbitrarily. 6. In the instant case, in the counter affidavit the respondents admitted the filing of the representation by the petitioner. However, it has been stated in the counter affidavit that respondent no. 4 forwarded the representation vide letter dated 3.7.2001 with comment which was received in the department on 4.7.2001. The said representation was rejected on 10.7.2001. However, there is no explanation for the period 28.6.2001 to 3.7.2001 as to why the representation was not sent to the department. Moreover, the said representation was received in the department on 4.7.2001 but there is no explanation as to why the said representation was not disposed of earlier i.e. prior to 10.7.2001. Therefore, it is evident that there was unexplained delay in disposal of the representation of the petitioner. In the case of Rajammal V/s. State of Tamil Nadu and another, A.I.R. 1999 S. C. 684, the delay was of 5 days in disposal of the representation by the Minister as he was out of station. The Supreme Court quashed the detention order and held: "It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. The Supreme Court quashed the detention order and held: "It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution of India for the decision to be taken on the representation, the words, as soon as may be in Clause 5 of Article 22 of the Constitution of India convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which could have occasioned in disposal of the representation. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes." 7. It is obvious from the discussions made above that there was unexplained delay in disposal of the representation of the petitioner. In such a situation, the order of detention cannot be held to be legal. Accordingly, the writ petition is allowed. The orders of detention contained in annexures 1, 2 and 3 are hereby quashed.