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Allahabad High Court · body

2007 DIGILAW 13 (ALL)

NISHAR v. STATE OF U P

2007-01-03

PANKAJ MITHAL, SUSHIL HARKAULI

body2007
The petitioner is under preventive detention vide the order of the District Magistrate, Varanasi dated 24-5-2006. He has filed the present writ petition for quashing of the above impugned detention order and for setting him at liberty. 2. The petitioner is an accused in case Crime No. 42 of 2006 under Sections 498-B and 498-C IPC, P. S. Jaitpura District Varanasi. The petitioner in connection with the above case crime was apprehended by the police on 10-4-2006 with fake currency notes of the denomination of Rs. 100/- each amounting to Rs. 10,000/ -. Alongwith the petitioner two other accused persons were also arrested from whom similar fake currency notes of a total of Rs. 30,000/- were recovered. Accordingly, the petitioner is involved in an offence of circulating fake currency notes which has the effect of disturbing the economy of the country. It is said that the petitioner operates through an organized gang in circulating fake currency notes in a planned manner. 3. On account of involvement of the petitioner in the above incident of circulating fake currency notes, the District Magistrate Varanasi on being satisfied that there is every possibility of the petitioner being enlarged on bail in the said case and that he would indulge in the same activity on being released, which would be prejudicial to the maintenance of the supplies and services essential to the community, passed the impugned order of detention against him in exercise of the powers under Section 3 (2) of National Security Act, 1980 (hereinafter referred to as an act ). 4. According to the pleadings on record, the petitioner through Jail Authorities on the very date of the passing of the impugned detention order was served with the copy of the same alongwith the grounds of detention and other necessary papers which were read over and explained to him. The detention order was approved by the State Government on 31-5-2006 and the approval was also duly communicated to the petitioner. 5. The matter was placed before the Advisory Board alongwith the necessary documents. The detention order was approved by the State Government on 31-5-2006 and the approval was also duly communicated to the petitioner. 5. The matter was placed before the Advisory Board alongwith the necessary documents. The Advisory Board heard the petitioner in person and considered his representation on 22-6-2006 and submitted its report with its opinion to the State Government, whereupon, the State Government once again examined the entire case alongwith the opinion of the Advisory Board and decided to confirm the detention order of the petitioner on 20-7-2006 and to keep him in detention for a period of 12 months from the date of his actual detention i. e. 24-5-2006. The petitioner made a representation dated 30-5-2006 addressed to the District Magistrate, Varanasi, State Government and the Central Government on 1-6-2006 praying for the revoking of the detention order. 6. The representation of the petitioner was considered by the detaining authority i. e. , the District Magistrate and the same was rejected. The decision thereof was communicated to the petitioner on 9- 6-2006. 7. The representation was forwarded by the District Magistrate to the State Government vide his letter dated 10-6-2006. It was received by the State Government on 12-6-2006 and was finally rejected on 15- 6-2006 and the rejection was communicated to the petitioner by radiogram dated 19-6-2006. 8. Simultaneously, the representation of the petitioner was forwarded by the D. M. on 10-6-2006 and also by the State Government on 14-6-2006 to the Central Government by Speed post. It was received by the Ministry of Home Affairs, Central Government on 22-6-2006. The representation was processed for consideration and was placed before the Under Secretary of the Ministry of Home affairs on 29-9- 2006 and was finally rejected by the Union Home Secretary on 29-9-2006. 9. We have heard Sri Samir Jain, learned Counsel appearing for the petitioner and Sri Arvind Tripathi appearing for the respondents No. 1, 2 and 3. No one appeared for the respondent No. 4 Union of India. However, we have perused the counter- affidavit of the respondent No. 4 on record. 10. The very first submission of the learned Counsel for the petitioner is that the representation of the detenu dated 1-6- 2006 addressed to the Central Government was sent by the State Government to the Central Government on 14-6-2006. There is unexplained delay of 13 days in forwarding the representation to the Central Government. 10. The very first submission of the learned Counsel for the petitioner is that the representation of the detenu dated 1-6- 2006 addressed to the Central Government was sent by the State Government to the Central Government on 14-6-2006. There is unexplained delay of 13 days in forwarding the representation to the Central Government. The representation was received by the Central Government on 22-6-2006 but the final decision rejecting the same was taken on 29-6-2006 i. e. , after over three months. This delay in considering the representation has also not been explained at all. Therefore, the continued detention of the petitioner becomes illegal. 11. The right to make a representation against an order of detention is not only a constitutional right guaranteed by Article 22 (5) of the Constitution of India but is a statutory right as well under Section 8 of the Act. The right provided under the Act has therefore to be treated as an extension of the constitutional right already available to the detenu under Article 22 (5) of the Constitution of India. Since the constitution as also the Act specifically provide that the detenu shall be given the earliest opportunity of making a representation against the order of detention, it is implicit that there is a corresponding duty on the authorities to whom the representation is made to dispose of the representation at the earliest or else the constitutional and the statutory obligation to provide the earliest opportunity of making a representation would loose both its purpose and meaning. 12. The Supreme Court in the case of Debendra Nath Goswami v. State of West Bengal, 1973 SCC (Crl.) 573 : AIR 1973 SC 757 , clearly laid down that Article 22 (5) of the Constitution of India imposes an obligation on the authority making an order of preventive detention to communicate to the person concerned as soon as may be the ground on which such order is made and also to afford him earliest opportunity of making a representation against that order. This obligation can be meaningful only after such representation is also considered with the same sense of urgency with which the authority is required to communicate the grounds and to afford the earliest opportunity to the detenu. This obligation can be meaningful only after such representation is also considered with the same sense of urgency with which the authority is required to communicate the grounds and to afford the earliest opportunity to the detenu. It must necessarily follow that if the representation is not considered with the same sense of urgency the very purpose of providing for the communication of the grounds of detention and the opportunity of making representation by Article 22 (5) of the Constitution of India would be frustrated and defeated. It has further been observed that the explanation for the delay has to satisfy the conscience of the Court that the Government concerned considered the representation with the sense of urgency expected of it by the Constitution. 13. A similar view has been expressed by the Supreme Court in the case of Rashid S. K. v. State of West Bengal, 1973 SCC (Crl.) 376. The Supreme Court observed that undoubtedly neither the constitution nor the act expressly provides for consideration of a detenus representation by the Government within any specified period of time. However expeditious consideration of the petitioners representation has been spelt out by this Court from Article 22 (5) of the Constitution. The use of the words "as soon as may be" reflects the ultimate objective i. e. the most speedy consideration of the detenus representation by the authorities concerned, as without it the basic purpose of affording the earliest opportunity of making representation would be defeated. 14. In other words, it can safely be concluded that the right of representation under Article 22 (5) is a valuable constitutional right and is not a mere formality and it must be taken to include by necessary implication an obligation to consider and decide the representation most expeditiously as it affects the personal liberty of the detenu. 15. Now in the above legal background comes the question as to whether there is delay/inordinate delay or unexplained delay in considering the representation of the petitioner which may vitiate the continued detention of the petitioner. 16. The Supreme Court in a recent case of Senthamilseivi v. State of T. N. and Anr. 15. Now in the above legal background comes the question as to whether there is delay/inordinate delay or unexplained delay in considering the representation of the petitioner which may vitiate the continued detention of the petitioner. 16. The Supreme Court in a recent case of Senthamilseivi v. State of T. N. and Anr. , (2006) 3 SCC (Crl.) 50, has held that there can be no hard and fast rule as to measure of reasonable time and each case has to be considered from the facts of the case and if there is no negligence or callous inaction, the Court would not interfere. However, where there is remissness, indifference or avoidable delay on the part of the authority, the detention becomes vulnerable. 17. In the present case the delay in dealing with the representation has been attributed in two parts. 18. The first part is with regard to delay in forwarding of the representation. The representation was made on 1-6-2006 to the detaining authority i. e. District Magistrate. He forwarded the representation with parawise comments to the State Government on 10-6-2006 by Special Messenger and to the Central Government by Speed post. The representation was also forwarded by the State Government to the Central Government on 14-6-2006. 19. The main thrust is on second part of the delay in considering the representation which relates to the period 22-6-2006 when the representation was received in the Ministry of Home Affairs, Central Government and its disposal on 29-9-2006. There is no explanation worth material on record explaining this delay of three months in considering the representation of the petitioner. From the counter- affidavit of Smt. L. P. Srivastava, Under Secretary Ministry of Home Affairs New Delhi filed on behalf of respondent No. 4 Union of India it appears that the representation was admittedly received on 22-6- 2006 in the Ministry of Home Affairs. However a general and a vague statement has been made that during the period 15th April to 30th May, 2006 there was unprecedented influx of representation by around 250 detenus from all over the country. These representations were mostly in local languages and since the translated copies were not normally available, it required much of effort to factually understand the contents and to decide the same. These representations were mostly in local languages and since the translated copies were not normally available, it required much of effort to factually understand the contents and to decide the same. The counter- affidavit of the respondent No. 1 is completely silent and does not state anywhere that the representation of the petitioner or the documents enclosed with the representation of the petitioner were not legible or typed or that since the documents were in Hindi, their translation in English was required as the officers attending the representation in the Central Government were not well versed with Hindi and therefore, needed English version of the documents. The counter-affidavit of the respondent No. 4 does not disclose the actual number of representations of the detenus which were in fact considered and decided by the Central Government between the period 22-6-2006 and 29-9-2006 so as to render the officers incapable of attending to the representation of the petitioner. 20. Sri Arvind Tripathi, learned Standing Counsel placed reliance upon the latest case of D. Anuradha v. Joint Secretary and Anr. , to assert that delay if satisfactorily explained would not be material. The delay has been caused due to non- availability of the translated copies of the documents. The Supreme Court in the above case has held that the representation must receive immediate attention and must be considered as expeditiously as possible. The delay due to non-availability of translated copy of the representation was held to be sufficiently explained. However, it does not help the respondents. First for the reason that there is no specific averment about non- availability of translated copy of the representation in the present case. Secondly the representation has been decided without waiting of the typed or translated copies of the representation and other documents meaning thereby that translated copies were not necessary. 21. It is settled principle of law of habeas corpus that when a reply is filed by the detaining authority or the State Government or the Central Government in justification of the detention utmost precision, meticulous details, punctualness are insisted upon. It is the imperative duty of the detaining authority to file a complete return to the writ issued by the Court. 22. It is the imperative duty of the detaining authority to file a complete return to the writ issued by the Court. 22. In cases where question of personal liberty of person is involved and that too by means of preventive detention, it is incumbent upon all the authorities concerned to explain the delay in considering the representation and all the authorities are required to act as one unit to ensure earliest decision of the representation of the detenu. 23. In Rajammal v. State of T. N. and Anr. , 1999 (1) JIC 524 (SC) : 1999 SCC (Crl.) 93, Supreme Court held that if the delay was caused on account of indifference or lapse in considering the representation, such delay will adversely affect further detention of the detenu. It is for the authorities concerned to explain the delay in disposing of the representation even short delay in considering and deciding the representation may be fatal if not explained and the larger period of delay may be well explained. The explanation that the Minister was on tour and as such the representation could not be attended was not held to be sufficient justification, as it affected the personal liberty of the citizen granted by Article 21 of the Constitution of India. 24. In the case of Solomon Castro v. State of Kerala and Ors. , 2000 (1) JIC 842 (SC) : 2001 SCC (Crl.) 650, the detenu moved a representation on 20-3-1999, it was received by the detaining authority on 22-3- 1999 and was rejected on 28-4-1999. The Supreme Court placing reliance on its earlier decision in case of Rajammal (supra) held that there was absolutely no explanation for the delay between 9-4-1999 to 28-4-1999. Therefore, the continued detention was held to be illegal. 25. In the present case what transpires is that the representation of the petitioner which was received by the Ministry of Home Affairs, Central Government on 22-6-2006 was attended to for the first time on 29-9-2006. There is no whisper in the counter-affidavit of the respondent No. 4 that any action whatsoever was taken by the Central Government on the petitioners representation before 29-9-2006. Therefore, it is clear case where the representation of the petitioner had remained unattended for three months by the Central Government for which no explanation has come forth. There is no whisper in the counter-affidavit of the respondent No. 4 that any action whatsoever was taken by the Central Government on the petitioners representation before 29-9-2006. Therefore, it is clear case where the representation of the petitioner had remained unattended for three months by the Central Government for which no explanation has come forth. In some what similar factual situation where the representation made by the detenu to the Central Government was left unattended for a period of about four months the detention was held to be illegal by the Supreme Court in the case of Sabbir Ahmad v. Union of India, 1980 (Crl.) 675. In another case of Kundanbhai Dulabhai Shaikh v. Distt. Magistrate, Ahmedabad and Ors. , 1996 SCC (Crl.) 470, the Supreme Court reiterated that it is duty of the authority to dispose of the representation of the detenu at the earliest. The representation should not be kept pending on any ground much less that the representation was placed in the queue of undecided representations for chronological disposal. The chronology must be broken as soon as the representation is ready for disposal and any unexplained delay or unsatisfactory explanation due to the lethargic attitude of the Government in the disposal of the representation would vitiate the order of detention. 26. Therefore, the counter-affidavit of the respondent No. 4 is not sufficient and does not explain the delay in considering the representation of the petitioner in the sense of urgency needed for dealing with such representation. There is not only delay in considering the representation of the petitioner on the part of the Central Government but the delay is inordinate and goes totally unexplained. 27. In view of what has been discussed and stated above we are of the considered opinion that the respondents especially respondent No. 4 had acted in a most casual and careless manner and had ignored the representation of the petitioner for a continuous period of three months. The explanation furnished in this regard is vague and of general nature and as such is no explanation for not attending to the representation of the petitioner with sense of urgency that was needed. The respondent No. 4 would have avoided the delay by taking little care. We, therefore, has no hesitation to hold that the continued detention of the petitioner is unjustified and illegal. 28. The respondent No. 4 would have avoided the delay by taking little care. We, therefore, has no hesitation to hold that the continued detention of the petitioner is unjustified and illegal. 28. Since the petitioner has succeeded on the first point. We do not consider it necessary to dwell upon second submission of the learned Counsel for the petitioner that there was no material before the detaining authority to record its satisfaction that the petitioner on being released on bail is likely to indulge again in the same activity or offence. 29. It would not be out of context to note before departing that there appears to be a reasonably possibility of the detention being quashed on technical grounds in many of the cases, as legible copies of the detention order, grounds of detention or of the FIR and other documents in support there of may not be available to the Central Government alongwith the translated copies in English. Generally the documents are in the local languages and the officers of the Central Government dealing with these representations may not be well versed with the local languages and as such may face difficulty in understanding the same in the absence of legible typed and translated copies. Therefore, we request the Chief Secretary, Government of Uttar Pradesh to consider the feasibility of forwarding the types copies of all the documents with the English translation in future in all cases so that no difficulty is faced by the Central Government in dealing with the representation of the detenus with an promptness. 30. In view of the above, the continued further preventive detention of the petitioner pursuant to the order of detention dated 24-5-2006 is held to be illegal and he is directed to be set at liberty forthwith provided he is not wanted in any other case. 31. The petition is allowed accordingly. No order as to cost. Petition allowed. .