Research › Search › Judgment

Allahabad High Court · body

2008 DIGILAW 1592 (ALL)

PREM CHAND @ PINTU v. STATE OF UTTAR PRADESH

2008-08-11

S.P.MEHROTRA, V.M.SAHAI

body2008
JUDGMENT By the Court.—We have heard Sri Swetashwa Agarwal, learned Counsel for the petitioner, Sri Ali Murtaza, learned AGA for the State Government and Sri M.C. Tripathi, Advocate, appearing for the Central Government. 2. The respondents have filed counter affidavit to which rejoinder affidavit has been filed. 3. Learned Counsel for the petitioner has urged that there is unexplained delay in deciding the representation of the petitioner by the Central Government, therefore, the detention order becomes illegal and is liable to be quashed. 4. We have gone through the counter affidavit filed by the Central Government. The representation dated 13.11.2007 was sent by the State Government to the Central Government, which was received at the concerned desk of the Ministry of Home Affairs on 21.11.2007 along with the letter of the District Magistrate dated 20.11.2007. After the representation was received by the Central Government on 21.11.2007, till 28.11.2007, these is no explanation submitted on behalf of the Central Government as to why the delay was caused, what the Central Government was doing and why the reppresentation of the petitioner was not attended to as soon "as may be it was received as laid down in various decisions with reference to the words as soon as may be” occurring in Article 22(5) of the Constitution of India. There is, thus, an unexplained delay of seven days. 5. Learned Counsel for the Central Government has informed the Court that 24.11.2007 was Saturday and 25.11.2007 was Sunday, therefore, the office was closed. Apart from these two days, there is no explanation for 22nd and 23rd November, 2007 and for 26th, 27th and 28th November, 2007. The delay for these five days is unexplained. 6. The Apex Court in Rajammal v. State of Tamil Nadu and another, (1999)1 SCC 417 has referred to the provisions of Clause (5) of Article 22 of the Constitution of India, and has held that unexplained delay of five days was fatal and the detention order would be bad in law and contrary to the Constitutional obligation on the Central Government to consider and decide the representation of the detenu without any delay. 7. 7. In Harish Pahwa v. State of U.P., AIR 1981 SC 1126 , the Apex Court has held that it is the duty of the State to proceed to determine representations with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. 8. Similar view has been expressed by the Supreme Court in the case of Union of India and another v. Harish Kumar, A.I.R. 2007 S.C. 1430 (paras 7, 11 and 12), relied upon by the learned Counsel for the petitioner. 9. Since in the instant case, there is an unexplained delay of five days by the Central Government, therefore, in our considered opinion, the further detention of the petitioner has become bad in law. 10. In the result, this writ petition is allowed. The further detention of the petitioner by the respondents is quashed. The petitioner shall be set at liberty forthwith unless he is wanted in some other case. 11. Let a copy of this order be given to Sri Ali Murtaza, learned AGA, free of cost, within 48 hours for compliance of the order. ————