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2006 DIGILAW 374 (GAU)

Maibam Sarat Singh v. State of Manipur

2006-04-18

M.B.K.SINGH, T.NANDA KUMAR SINGH

body2006
M. B.K., J.:- In this Writ Petitioner, the petitioner is challenging the legality of his detention under the National Security Act, hereinafter referred to as the 'Act,' in pursuance of the order passed by the District Magistrate, Imphal East District on 10.10.2005, purportedly with a view to prevent him from acting in any manner prejudicial to the maintenance of public order and security of the State, and its approval and confirmation by the State Government vide order No.17(1)954/05-H dated 18.10.05 and order No.17(1)954/05, dated 16.11.05 respectively. 2. We have heard Mr. Ph. Dolen, learned counsel appearing on behalf of the petitioner, Mr. Jalal, learned Addl. G.A. appearing on behalf of the respondents-1,2 and 3 and Mr. N.Ibotombi, learned CGSC appearing on behalf of the respondent No.4. 3. One of the grounds submitted by the petitioner's counsel is that the petitioner's representation to the Central Government submitted through the respondent No.3 on 31.10.05 was not considered and disposed of expeditiously. 4. On perusal of para 6 of the counter affidavit as well as para 5 of the supplementary affidavit filed on behalf of the respondent No.4, it is ascertained that the said representation of the petitioner dated 31.10.05 was received by the Central Government on 22.11.05. The same was, in fact, sent by the State Government vide letter dated 11.11.05. The State Government, vide wireless message dated 24.11.05, was requested to send parawise comments on the representation. The required parawise comment was received by the Central Government on 2.12.05 and in the concerned Section of the Ministry of Home Affairs on 6.12.05. 3rd and 4th December, 2005 were holidays being Saturday and Sunday. According to the respondent No.4, the said representation was processed for consideration and it was put up before the Under Secretary, Ministry of Home Affairs on 8.12.05. Further, according to respondent No.4, the Under Secretary considered the case and put up the same before the O.S.D.(Security), Ministry of Home Affairs on 8.12.05. Thereafter, the O.S.D.(Security) considered the same and put it up before the Secretary(BM), Ministry of Home Affairs on 8.12.05. Further, according to respondent No.4, the Secretary (BM), Ministry of Home Affairs considered the case and forwarded the same on 16.12.05 before the Union Home Secretary, who rejected the same on 16.12.05. Thereafter, the O.S.D.(Security) considered the same and put it up before the Secretary(BM), Ministry of Home Affairs on 8.12.05. Further, according to respondent No.4, the Secretary (BM), Ministry of Home Affairs considered the case and forwarded the same on 16.12.05 before the Union Home Secretary, who rejected the same on 16.12.05. Regarding the delay in forwarding the representation from the Secretary(BM), Union Home Secretary, who was the competent authority to deal with such representation, the explanation given by the respondent No.4 is that it was due to review of the procedure and process of considering the representation against detention. 5. We find that the said representation of the petitioner submitted on 31.10.05 was forwarded by the State Government to the Central Government only on 11.11.05. No explanation is given by the respondents-1 to 3 about the fact as to why the representation of the petitioner, required to be dealt by the Central Government, was forwarded to the Central Government only on 11.11.05 even though it was submitted to the Superintendent, Central Jail on 31.10.05. On the basis of the file being No.9/4/04-IG(J) and File No.B-2/2/04-MCJ/28/05 produced by Mr. Jalal, learned Addl.G.A., the said representation dated 31.10.05 was forwarded by the Superintendent, Manipur Central Jail, Imphal to the Inspector General of Prison, Manipur on 31.10.05 and the same was received by the office of the latter on 5.11.05. According to the learned Addl,.G.A., there were general holidays from 1.11.05 to 4.11.05 respectively and 6.11.05 was Sunday. No explanation is given as to why the representation received on 5.11.05 was not forwarded on that date itself and why it was sent only on 8.11.05 to the Government. On perusal of the Entry No.71 page 23 of the file bearing No.9/4/04-IG(J), we find that the date appearing just below the signature of the official was altered and modified in order to show that the representation was processed only on 7.11.05 and not on 31.10.05. No explanation is given as to why the representation was forwarded by the State Government to the Central Government only on 11.11.05. We are of the opinion that there was failure on the part of the concerned authority to deal with the representation of the detenu with a sense of urgency and without any callous attitude or slackness. 6. No explanation is given as to why the representation was forwarded by the State Government to the Central Government only on 11.11.05. We are of the opinion that there was failure on the part of the concerned authority to deal with the representation of the detenu with a sense of urgency and without any callous attitude or slackness. 6. Further, we are of the view that explanation given by the Central Government about the delay in forwarding the representation by the Secretary (BM) to the authority who could deal with the matter, is not reasonable. As implicit in the language of the Article 22(5) of the Constitution, the representation should have been considered and disposed of expeditiously with a sense of urgency. Nothing is disclosed as to what prompted the concerned authority to review the procedure and process of considering the representation against the detention. The explanation given by the Central Government, if accepted, will have the effect of defeating the implicit provisions of Art.22 (5) of the Constitution and as such it is not accepted. 7. It is well settled that if there is delay in considering the representation of a detenu, the Constitutional safeguard will be rendered nugatory and would be diluted considerably. It is implicit in the language of the Art.22(5) that the authority to whom the representation is made, should properly consider the same as expeditiously as possible. There are many cases wherein detention orders have been set aside due to delay in consideration of the representation. The words, “as soon as may be” occurring in Clause (5) of Art.22 reflects the concern of the framers of the Constitution that the representation should be expeditiously considered and disposed of with a sense of urgency without avoidable delay. It is also well settled that if there has been any delay in disposal of the representation, the reason for the delay must be indicated to the Court or else the unexplained delay in disposal of the representation would fatally affect the order of detention and in that situation continued detention would become bad. 8. In the light of the decision of this Court in Prabin Diamary & Ors-V- State of Assam & Ors. (1999) 2 GLT 105, we have no hesitation to hold that the delay in disposal of the representation made to the Central Govt. 8. In the light of the decision of this Court in Prabin Diamary & Ors-V- State of Assam & Ors. (1999) 2 GLT 105, we have no hesitation to hold that the delay in disposal of the representation made to the Central Govt. arising out unreasonable delay on the part of the official of the State in forwarding it to the Central Govt. and unreasonable delay on the part of the official of the Central Government in putting it up before the concerned authority for consideration have resulted in rendering the continued detention of the petitioner illegal and Constitutionally not permissible. 9. In view of the above findings, we do not think it necessary to consider other points submitted by the petitioner's counsel. 10. For the reasons given above, we are of the opinion that the Constitutional mandate and right of the detenu under Art.22(5) has been violated and as such continued detention of the petitioner has become illegal. The petitioner namely, Shri Maibam Sarat Singh(40) @ Suresh @ Chaoren, is to be released at his liberty forthwith, if not required to be detained in connection with any other case.