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2001 DIGILAW 32 (ORI)

Samsa alias Sk. Samsuddin v. State of Orissa

2001-01-23

A.S.NAIDU, PRADIPTA RAY

body2001
JUDGMENT A. S. NAIDU, J. — This is an application under Arts. 226 and 227 of the Constitution of India by a detenu under the provi¬sions of the National Security Act, 1980 (hereinafter referred to as ‘the Act’). The order of detention dated 24.1.2000 is assailed primarily on two grounds, namely, that there was inordinate delay in disposing of the representation of the petitioner by the State Government and that the detenu was not informed to file a repre¬sentation before the Central Government which has the power to revoke the order of detention passed by the State Government. 2. Two counter-affidavits have been filed on behalf of the opposite parties. one sworn to by the Under Secretary, (Home) Special Section Department and the other by the District Magis¬trate-cum-Collector, Balasore who had passed the order of deten¬tion. After perusing the affidavits, for effective adjudication of the case, we called upon Mr. Das, learned Additional Govern¬ment Advocate, to produce the concerned Government file for perusal, which was produced before us. 3. So far as the question whether there was delay in dispos¬al of the representation is concerned, law is well settled that the detenu, under Art. 22 (5) of the Constitution of India, has a right that his representation should be considered by the appropriate authority as expeditiously as possible and there should not be unexplained delay in the matter of disposal of the representation. The representation is to be considered in its right perspective keeping in view the fact that the detention of the detenu is based on subjective satisfaction of the authority concerned, and infringement of the constitutional rights guaran¬teed under Art. 22 (5) invalidates the detention order. Per¬sonal liberty protected under Art. 21, is sacrosanct and it is obligatory on the part of the detaining authority to expeditious¬ly deal with the representation to protect and safe-guard the rights guaranteed under the Constitution. This Court relying upon several decisions, in the case of Choudhury Debasis Das v. State of Orissa and others, 83 (1997) CLT 95, has categorically held that the constitutional protection given to the detenu which mandates grant of liberty to the detenu to represent against detention, as imparted under Art. 22 (5) of the Constitution, casts an onerous duty on the authority to whom the representation is addressed, to deal with the same with utmost promptitude. Apart from the right guaranteed under Art. 22 (5) of the Constitution, Sec. 8 of the Act also vests a right upon the detenu to file his representation. 4. Examining the present case at hand in the ratio laid down above, we find from the records produced by the Government as well as the affidavits that the detenu filed a representation on 3.2.2000 which was forwarded by the District Magistrate, Balasore along with his parawise comments on 5.2.2000. The said represen¬tation was received in the Home (SS) Department on 7.2.200. The representation and the parawise comments were examined and put up by the dealing Assistant on 8.2.2000 before the concerned Secre¬tary. After routing through different levels, the matter was placed before the Chief Minister on 13.2.2000. It further appears that the Chief Minister simply put his signature on 18.2.2000. It is argued that the Chief Minister has accepted the suggestions made by the Secretary to reject the representation. The decision was communicated to the detenu on 19.2.2000 and was served on him on 24.2.2000. 5. From the records we find that there is no reason, not to place the file before the Chief Minister between 13.2.2000 to 18.2.2000. In the affidavit also no explanation has been given by the concerned authority explaining the reason for not placing the representation before the Chief Minister between 13.2.2000 to 18.2.2000. Further, it appears that the Chief Minister except putting his initial, has neither accepted the suggestion made by the Secretary to reject the representation nor made any endorse¬ment to that effect. Therefore, we hold that the representation was dealt with in a routine manner and the mandates of Arts. 22 (5) read with Sec. 8 of the Act was not kept in mind while disposing of the representation inasmuch as, the delay from 13.2.2000 to 18.2.2000 remains unexplained. The action itself infringes the constitutional right of the detenu guaranteed under Arts. 22 (5) of the Constitution and the order of detention is liable to be quashed on that ground alone. 6. The second ground raised by the detenu that he is to be informed that he can make a representation to the Central Govern¬ment, was directly in issue before this Court which has already been answered in the case of Prasad Bhola alias Durga Prasad Bhola vrs. State of Orissa and others, 1996 (11) OCR 631. 6. The second ground raised by the detenu that he is to be informed that he can make a representation to the Central Govern¬ment, was directly in issue before this Court which has already been answered in the case of Prasad Bhola alias Durga Prasad Bhola vrs. State of Orissa and others, 1996 (11) OCR 631. However, as we are going to dispose of the matter on a short point, we do not want to delve into the said controversy in the present case. 7. In the present case, admittedly, the detenu was arrested on 24.1.2000. Sec. 13 of the Act stipulates that maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Sec. 12, shall be twelve months from the date of detention. It that view of the clear position of law, the petitioner, in usual course, is to be released after expiry of twelve months from the date of his detention which is almost over. Further, the delay of five days i.e. from 13.2.2000 to 18.2.0000 remains unexplained which has made the order of detention invalid. 8. The writ application is allowed. The order of detention dated 24.1.20000 is quashed. The detenu be set at liberty forthwith unless he is required to be in custody for any other purpose. A copy of the judgment be sent to the Government in course of the day. PRADIPTA RAY, J. I agree. Application allowed.