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2004 DIGILAW 115 (GAU)

Uttam Hazarika v. Union of India

2004-02-18

AMITAVA ROY, P.P.NAOLEKAR

body2004
JUDGMENT Amitava Roy, J. 1. The order dated 2.6.2003 passed by the District Magistrate, Jorhat, in exercise of powers under Section 3(2) of the National Security Act, 1980, (for short the "Act") whereby the Petitioner has been detained and his continued detention on the basis there of is under challenge in the instant petition. The Petitioner is presently lodged in the Central Jail, Jorhat. 2. We have heard Mr. B.D. Knowar, learned Counsel for the Petitioner and Mr. S. Ali, learned Additional Advocate General, Assam. None appeared for the Union of India. 3. Shorn of unnecessary details, the relevant facts pleaded by the parties have to be noticed at the outset. It is the case of the Petitioner that while he was detained in jail in connection with some other cases, he was served with the order of detention on the purported ground that it was necessary to prevent him from acting in a manner prejudicial to the security of the State and for maintenance of public order. The grounds of detention were served on him along with the order of detention. Though according to him, the grounds were vague and devoid of material particulars which deprived him of his valuable right to submit an effective representation against the order of detention, nevertheless, he submitted a representation dated 4.6.2003 addressed to the appropriate authority as well as the State Government. The grievance of the Petitioner, inter alia, is that though it was incumbent on the State Government to consider and dispose of the said representation with utmost expedition it was not so done. Further the representation along with the report relating to the detention together with all material particulars were not forwarded to the Central Government. The Petitioner has, therefore, complained that his continued detention is not permissible in view of failure of the State Government to consider and dispose of the representation without delay and also in view of non-consideration of his representation by the Central Government. 4. No affidavit in opposition has been filed on behalf of the Union of India. In their counter, the State Respondents while supporting the order of detention have pleaded that the State Government had on 7.6.2003 approved the impugned order of detention. 4. No affidavit in opposition has been filed on behalf of the Union of India. In their counter, the State Respondents while supporting the order of detention have pleaded that the State Government had on 7.6.2003 approved the impugned order of detention. According to the answering Respondents, the representation dated 4.6.2003 was received by the State Government on 11.6.2003 and thereafter by WT message dated 18.6.2003, the District Magistrate, Jorhat, was requested to furnish the parawise comments along with the English version of the representation directly to the Central Government, Ministry of Home Affairs, New Delhi with a copy to the Government of Assam, Political (A) Department, while denying the allegation that there had been undue delay in entertaining and disposing of the representation, the State Respondents, in their additional affidavit maintained that on receipt of the representation, the same was forwarded to the Advisory Board on 18.6.2003 while asking the District Magistrate, Jorhat, to furnish the parawise comments. The Advisory Board fixed the case for hearing on 1.7.2003 and the detenue was heard in person. The department initiated the process for consideration of the representation on 2.7.2003 and after the Chief Minister had approved the rejection there of on 4.7.2003, the file was received back by the department on 7.7.2003 and on the next date, i.e., on 8.7.2003, the rejection of the representation was communicated by the Joint Secretary to the Government of Assam, Political Department, The State Respondents have sought to justify the delay on the ground that the process of disposing of the representation involved movement of the relevant file from one table to the other. 5. The only point canvassed before us by Mr. Konwar and quite meticulously, pertains to the delay in disposal of the representation submitted by the Petitioner detenue. Referring to the calendar of dates noticed herein above, the learned Counsel has argued that the manner in which the representation was dealt with displays a callous lack of concern of the State authorities in taking a decision thereon in gross disregard to the mandate of Article 22(5) of the Constitution and the Act. According to him, the counter filed on behalf of the State Respondents do not disclose any acceptable explanation for the delay involved and, therefore, the detention of the Petitioner is liable to be adjudged illegal and unconstitutional. According to him, the counter filed on behalf of the State Respondents do not disclose any acceptable explanation for the delay involved and, therefore, the detention of the Petitioner is liable to be adjudged illegal and unconstitutional. He placed reliance in support of his submissions on the following authorities Smt Khatoon Begum v. Union of India and Ors. (1981) 2 SCC 480 ; Harish Pahwa v. State of UP and Ors. (1981) 2 SCC 710 , Monisur Islam v. Union of Indie 2002 (3) GLT 249 and Anamul Haque v. State of Nagaland 2003 (2) GLT 27. 6. Mr. Ali, learned Additional Advocate General, Assam, while refuting the above contentions has argued that the representation of the Petitioner after being received on 11.6.2003 was immediately attended to and was routed through different levels to the Chief Minister of the state who on 4.7.2003 approved the rejection thereof and thereafter the order to that effect was communicated by the Joint Secretary to the Government of Assam, Political (A) Department on 8.7.2003. Mr. Ali, therefore, maintained that there was no undue delay in disposing of the representation as alleged and considering the fact that the detention was necessary to prevent the Petitioner from acting in any manner prejudicial to the public order, the legality and validity thereof is unexceptional. 7. The competing arguments have been considered. On a bare perusal of the pleadings of the parties which reflect the relevant dates, vis-a-vis, the related developments in the process of disposal of the representation, it is apparent that the State Respondents have failed to provide any reason whatsoever for the period from 11.6.2003 to 18.6.2003 and from 19.6.2003 to 1.7.2003. In all, therefore, there is no explanation at all for a period of 19 days in between the date of receipt of the representation and the order of rejection thereof on 8.7.2003. The State Respondents have for whatever worth averred that on 1.7.2003 the Petitioner detenue was produced before the Advisory Board and that on 2.7.2003 the process for consideration of the representation was initiated which culminated in its rejection on 8.7.2003. 8. We do not consider that the production of the Petitioner denetue before the Advisory Board and the proceedings before the Board in connection with his detention can at all be an explanation for the delay that has occurred. 8. We do not consider that the production of the Petitioner denetue before the Advisory Board and the proceedings before the Board in connection with his detention can at all be an explanation for the delay that has occurred. The obligation of the State authorities to consider and dispose of the representation of a detenue under the Act is independent of the proceedings contemplated thereunder before the Board. It is the constitutional mandate that a person subjected to preventive detention should be afford the earliest opportunity of making a representation against the same. This imposes a solemn obligation on the authorities concerned to deal with the representation with all promptness and expedition so that the right conferred on the detenue to make the representation becomes meaningful and not illusory. What is necessary is that the concerned authorities should deal with the representation with a live concern and not in a casual manner allowing the representation to remain in the heap of files waiting for its turn to be attended to in due course. The process under taken in this regard has to unequivocally display the care and anxiety to dispose of the same with utmost alacrity. Having regard to the considerations on which a preventive detention is effected those according to us, makes it more obligatory for the Authorities concerned to act scrupulously in terms of the preventive detention laws and the peremptory dictates of the Constitution, lest a procedural lapse results in rendering the detention constitutionally impermissible thus defeating the very purpose thereof. It is thus not enough to order a detention under the Act unless necessary follow up steps as mandated by the Constitution are religious taken. The law clothes the concerned Authorities with the power of detaining a person even without trial on considerations of overriding public interest and security of the State. But this power is coupled with the duty to act strictly in terms of the Act and edicts of the Constitution so that the civil liberty of a person is not curtailed except in accordance with the procedure established by law. The concerned Authorities, there fore, cannot while ordering preventive detention of a person be oblivious of their duties to strictly adhere to precepts of the Act and the constitution in order to sustain such an action. 9. The concerned Authorities, there fore, cannot while ordering preventive detention of a person be oblivious of their duties to strictly adhere to precepts of the Act and the constitution in order to sustain such an action. 9. Time and again on numerous occasions the imperative necessity of expeditious disposal of a representation of a person in preventive detention has been underlined in no uncertain terms by the Apex Court as well as this Court. We, for obvious reason do not wish to burden this judgment by referring to those authorities. We,however, feelit apposite to extract the following from the decision rendered in Smt. Khatoon Begum (supra). The right of a detenue to have his representation considered "at the earliest opportunity" and the obligation of the detaining authority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974, or the National Security Act, or for that matter any other Parliamentary or State law providing for preventive detention. They are a right and an obligation created by the very constitution which breaches life into the Parliamentary or State law. Article 22(5) enjoins a duty on the authority making the order of detention to afford the detenue "the earliest opportunity of making a representation against the order". The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative which cannot be curtailed or abridged. If the Parliament or the state legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter-departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenues. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable. 10. It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenues. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable. 10. In the decision of the Apex Court in Harish Pahwa (supra) the delay in consideration of a representation caused in soliciting comments from the concerned authorities/departments has been disapproved and it has been emphasized that a representation if filed must be attended to and dealt with continuously until a final decision is taken and communicated to the detenue. It is only when there is an absolute necessity to wait for some assistance that time required for such purpose is allowable. 11. This Court in Anamol Haque (supra) in the contextual facts noticed that the representation submitted by a detenue on 6.5.2002 had remained pending till 20.5.2002. As in spite of several opportunities no counter was filed by the State Respondents either controverting the allegations made in the writ petition or explaining the delay, it held further detention of the detenue therein to be illegal and quashed the same. 12. The obligation of the detaining authority to independently consider and dispose of the representation without waiting for the opinion of the Advisory Board was noticed by this Court in Monisur Islam (supra). It recalled the resounding observations of the Apex Court in Narendra Purshotam Umrao v. Sub-Inspector of Police Gujrat (1979) 2 SCC 637 , that the constitution of an Advisory Board under the Act did not relieve the State Government from its legal obligation to consider the representation of the detenu as soon as the same is received by it and that the Government could not keep such a representation pending till the Advisory Board submitted its report and any let up in the process of consideration of the representation on such a ground would render the detention invalid. 13. Turning to the facts of the instant case, we do not find any explanation whatsoever as to how the period from 11.6.2003 till 18.6.2003 and thereafter 19.6.2003 to 1.7.2003 was utilized by the authorities. This unexplained period has consumed the bulk of the time taken for disposal of the representation. 13. Turning to the facts of the instant case, we do not find any explanation whatsoever as to how the period from 11.6.2003 till 18.6.2003 and thereafter 19.6.2003 to 1.7.2003 was utilized by the authorities. This unexplained period has consumed the bulk of the time taken for disposal of the representation. The plea that the delay had occurred due to movement of the file from one table to other does not appeal to us. Administrative red tapism in a matter of such moment is not a legally acceptable justification. Administrative priority cannot over ride the constitutional compulsions. Reference to the proceeding before the Advisory Board as made in the counter is also of no relevance in vie of the emphatic pronouncement of the Apex Court in Narendra Purshotam Umrao (supra). The manner in which the representation of the Petitioner detenue has been dealt with exhibits a lack of concern and urgency on the part of the State authorities, which is an anathema to the constitutional duty, imposed on them. The representation was handled like any other routine matter in the department throwing to the winds the peremptory requirements of the Act and the Constitution. We are, therefore, of the considered opinion that there has been an unexplained delay in disposal of the Petitioner's representation rendering the continued detention of the Petitioner constitutionally impermissible. 14. In view of the foregoing discussion, we have no hesitation to hold that the Petitioner is entitled to be set at liberty forthwith. We order accordingly. The Petitioner is to be released unless he is wanted in connection with some other case. The petition is allowed. No costs. Petition allowed.