Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 385 (GAU)

Ningombam Momo Singh v. State of Manipur and Ors.

2006-04-25

D.BISWAS, T.NANDA KUMAR SINGH

body2006
T. Nandakumar, J.:- In this writ petition the detention order being No.Cril/NSA/No.84 of 2005 dated 18.7.2005 passed by the learned District Magistrate in exercise of his power conferred under Sub Section (3) of Section 3 of the National Security Act, 1980 read with Home Department's order No.17(1)/49/80-H(Pt) dated 31.5.2005 for detaining the petitioner, order of the State Government being No.17(1)/918/2005-H dated 28th July, 2005 for approving the said detention order issued by the learned District Judge, Manipur dated 18.7.2005 and also the order of the Government of Manipur being No.17(1)/918/2005-H the 22nd August, 2005 for affirming the detention order issued by the District Magistrate dated 18.7.2005 and also for fixing the period of detention for 12 (twelve) months from the date of detention had been put to challenge mainly on the ground that there are inordinate and unexplained delay in disposing the representation filed by the detenu against the detention order to the State Government as well as to the Central Government. [2] Heard Mr.N.Brojendro, learned counsel for the petitioner as well as Mr.K.Kumar, learned Addl.CGSC appearing for respondent no.3 and Mr.Jalal, learned GA for respondent nos.1 and 2. [3] The factual panorama of the petitioner's case is that the detenu/petitioner, while he was at the Central Jail, Sajiwa was detained under the said order of the District Magistrate, Imphal West which had been approved by the said order of the Government of Manipur dated 28.7.2005 and affirmed by the order of the Government of Manipur dated 22.8.2005. [4] The petitioner filed representation to the Secretary to the Central Government, Ministry of Home Affairs, Department of Internal Security, North Block, New Delhi on 1.8.2005 through the Addl.Superintendent, Manipur Central Jail. Admittedly the said representation was forwarded by the State Authorities to the Central Government. The main thrust of the petitioner for challenging the detention order is that there is a delay of 23 days in disposing the said representation by the Central Government. Admittedly the said representation was forwarded by the State Authorities to the Central Government. The main thrust of the petitioner for challenging the detention order is that there is a delay of 23 days in disposing the said representation by the Central Government. [5] Since the detenu is detained under the National Security Act, it is the bounden duty of the State Government in compliance with Sub Section (5) of Section 3 of the NSA to submit a report of fact about the detention of the detenu under NSA to the Central Government altogether with the grounds on which detention order has been made and such other particulars as, in the opinion of the State Government, have a bearing on the necessity for the order. For easy reference Sub-Section (5) of Section 3 of the NSA is quoted hereunder: (5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particular as, in the opinion of the State Government, have a bearing on the necessity for the order.” [6] The District Magistrate as well as the State Government filed their Affidavit-in-opposition stating in a very clear and unequivocal terms that the State Government reported all the necessary facts as well as such other particulars as may, in the opinion of the State Government have a bearing on the necessity for the order about the detention of the detenu/petitioner to the Central Government on 28.7.2005. The District Magistrate and the State Government in their counter affidavit already reiterated that all the relevant documents for consideration about the detention of the detenu had also been forwarded to the Central Government. [7] The respondent no.3, Union of India filed Affidavit-in-opposition stating that there is no legal obligation on respondent no.3 to call for representation from the petitioner. The representation of the detenu dated 1.8.2005 was received by the Central Government on 17.8.2005. The Central Government vide their wireless message dated 18.8.2005 requested the State Government to send parawise comment on the representation and the State Government had furnished the parawise comment which was received by the Central Government on 22.8.2005. After processing the said representation dated 1.8.2005, the Union Secretary (Home) had considered and rejected the same on 24.8.2005. The Central Government vide their wireless message dated 18.8.2005 requested the State Government to send parawise comment on the representation and the State Government had furnished the parawise comment which was received by the Central Government on 22.8.2005. After processing the said representation dated 1.8.2005, the Union Secretary (Home) had considered and rejected the same on 24.8.2005. [8] Learned counsel appearing for the petitioner submits that no cogent reasons had been mentioned in the Affidavit-in-opposition of the Central Government i.e. respondent no.3 as to why and what are the reasons for requirement of parawise comment from the State Government to the said representation of the detenu inasmuch as the State Government in compliance with Sub-Section (5) of Section 3 of the NSA reported all the relevant facts to the Central Government, i.e Union of India together with the grounds on which the order had been made and such other particulars, as in the opinion of the State Government have a bearing on the necessity for the order. The learned counsel also further submits that respondent no.3, Union of India has not placed the relevant file(s) of the Central Government before this Court for perusal. Such being the situation, the learned counsel appearing for the petitioner submits that the Central Government/Union of India did not mention any reason or explanation for the delay in disposing the representation of the detenu for the period from 1.8.2005 to 17.8.2005 and from 18.8.2005 to 22.8.2005. [9] The learned counsel for the petitioner, in order to substantiate case of the petitioner had referred to the decision of this court (incidentally one of us, Justice T.Nandakumar Singh is party) : (1) Shri Yumnam Anand Meitei Vs State of Manipur & Ors. dated 31.3.2005 passed in WP(Cril) No.50 of 2005 and (2) Hitendra Nath Gowwamy Vs State of Assam & Ors: 1984 Cril.L.J 1558 (5 Judges). [10] The Apex Court in K.M. Abdulla Kunhi & B.L. Abdul Khader -vrs - Union of India & Ors., State of Karnataka & Ors., (supra) held that the respresentation relates to the liberty of the individuals, the highly cherished right enshrined n Article 21 of the Constitution, Clause (5) of Article 22 castes a legal obligation on the Government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words “as soon as may be:” occurring in clause (5) of Article 22 reflects the concern of the framers that the representation should be expeditiously considered and disposed of with the sense of urgency without any unavoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of the case. There is no prescribed time limit either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement, however, is that there should be no supine indifference, slackness or callousness attitude in considering the representation. Any unexplained delay in the disposal of the representation would be a prejudice of the constitutional imperative and it would render the continue detention impermissible and illegal.” The Apex Court again, reiterated in Rama Dhondu Borade (supra) that the detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose of the same as expeditiously as possible. The Apex Court in Rajammal -vrs - State of T.N. Anr.(Supra) had discussed as to how the duration or range of delay in disposing the representation is fatal or not and held that the test is not the duration or range of delay but it is the explanation made by the concerned authority. Para-8 of SCC, in Rajammal -vrs - State of T.N. Anr reads as follows: “8. The position, therefore, now is that if delay was caused on account of any indifference, or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So, test is not the duration or range of delay, but how it is explained by the authority concerned.” [11] 14. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So, test is not the duration or range of delay, but how it is explained by the authority concerned.” [11] 14. As discussed above, there is no period either under the Constitution or under the National Security Act, 1980 within which representation should be dealt with but the question is whether the delay in disposing the representation, in the facts and circumstances of the present case in hand, had been explained reasonably and properly by the State Government and also by the Central Government and the State Government jointly in explaining the delay in disposing the representation of the petitioner dated 12.10.2005 to the Central Government. It is now well settled that it is not enough to say that delay was very short, but what is concerned with the Court is that how it is explained by the authority concerned. [12] 17. This court has to keep a balance between the requirements for detaining a detenu under the NSA by the competent authority on the one hand and right and liberty of the Citizen of India on the other. Neither party should have the impression that its case has been prejudiced by the order of this court. [13] 19. In Mahesh Basumatary Vs State of Assam & Ors: 2005 (1) GLT 264, while deciding as to whether the explanation made by the Central Govt. regarding the delay in disposal of the representation of the detenu/petitioner are reasonable or not, this court had perused the record in original, i.e. the relevant file of the Central Government, placed before this court by the learned CGSC. The relevant extract of the Judgment of this court in Mahesh Basumatary (supra) reads as follows: “The facts noted by us amply demonstrate that the Central Government had taken the requisite steps from time to time to dispose of the petitioner's representation and when the para-wise comments were received on 10.8.2004 decision was taken to reject the petitioner's representation on 6.8.2004. In this regard, we have perused the record in original placed. On the above facts we are satisfied that time taken by the Central Government in disposing of the petitioner/detenu's representation has been explained to the satisfaction of the Court.” before the court by the learned Sr. In this regard, we have perused the record in original placed. On the above facts we are satisfied that time taken by the Central Government in disposing of the petitioner/detenu's representation has been explained to the satisfaction of the Court.” before the court by the learned Sr. CGSC which would substantiate necessary steps as claimed, had been taken by the Central Govt. to obtain para-wise comments from the State Govt. [14] For the reasons discussed, we are of the view that respondent no.3, i.e. Union of India failed to give sufficient reason/explanation for the delay in disposal of the representation of the petitioner/detenu because of the unexplained delay caused due to the calling of parawise comment from the State respondents to the representation of the detenu for the reasons not explained and disclosed in the Affidavit-in-opposition of respondent no.3 [15] We are of the considered view that the present writ petition is squarely covered by the decision of this Court (incidentally one of us, T.Nandakumar,J is party) dated 5.4.2006 passed in W.P(Cril) No.50 of 2005, copy of which has been placed on record and marked as “X” for identification. [16] In view of the above discussions, we are of the firmed view that there are supine indifference, slackness and callousness attitude in considering the representation of the petitioner/detenu by the respondents and delay in disposing of t he representation are not explained, as a result thereof, there is a breach of the constitutional imperative rendering the continued detention of the petitioner/detenu is impermissible and illegal. Accordingly detention orders are hereby quashed and the detenu/petitioner be set at liberty unless wanted in other cases. Writ Petition is allowed. No order as to costs.