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2013 DIGILAW 194 (MP)

Golu @ Anand v. State of M. P.

2013-02-13

M.C.GARG, SHANTANU KEMKAR

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JUDGMENT : As per Shantanu Kemkar, J. : - By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 28-7-2012 (Annexure P-1) passed by District Magistrate, Indore detaining him under Section 3 (2) of the National Security Act, 1980 (for short "the Act") as also the order dated 21-9-2012 passed by the State Government affirming the order of the District Magistrate. 2. The challenge of the petitioner to his detention is on the ground that there is clear violation of procedural safe guards provided under the Act. He has alleged that exercising his right to make representation before the State Government and Central Government he submitted the same to the State Government as also to the Central Government. However, the representation submitted to the State Government has not been decided and as such there is violation of provision contained in Section 14 (1) (a) of the Act. 3. The case of the respondents in the return is that petitioner's representation was considered and decided by the Central Government and a communication to that effect has also been made to the petitioner. However, in the return, no statement was made as to what had happened to the representation made to the State Government. In the circumstances, we asked the respondents to inform as to whether the petitioner representation has been decided by the State Government or not. The case was adjourned from time to time affording opportunity to the respondents-State to make a statement to that effect. After getting number of adjournments an order dated 4-12-2012 passed by the State Government rejecting the representation was placed on record by the respondents. 4. We have heard learned Counsel for the parties. 5. In order to appreciate the contentions raised by the parties few dates would be relevant. The writ petition was filed on 5-10-2012. The notice of which was received by the State Government on 9-10-2012. Return of the petition alongwith the affidavit of City Superintendent of Police was filed on 21-11-2012 in which no mention about the decision of the State Government on the representation submitted by the petitioner was made. Thereafter, on 3-12-2012, the affidavit of the District Magistrate was filed in support of the return in which also no whisper about the decision on representation was made. Thereafter, on 3-12-2012, the affidavit of the District Magistrate was filed in support of the return in which also no whisper about the decision on representation was made. Thereafter, on 24-1-2013 an order dated 4-12-2012 in regard to rejection of representation by the State Government was filed without any application or affidavit in support of it. 6. Interestingly, instead of stating any reason to justify the delay in deciding the representation, Ms. Mini Raveendran, learned Deputy Government Advocate urged that since the Central Government had already rejected the representation there was no necessity for the State Government to have decided the same. According to her, since now the State Government has decided the representation may be delayed but for such technical defect the order of detention need not to be quashed. The submissions of the learned Deputy Government Advocate cannot be accepted for the reasons stated hereunder. 7. Section 8 of the Act provides for affording the detenu the earliest opportunity of making representation against the order to the appropriate Government. Section 14 (1) (a) of the Act provides for revocation of detention order. It empowers both, the State and Central Governments, to revoke or modify the detention order. Article 22 (5) of the Constitution provides that the authority making the order of preventive detention shall as soon as may be communicate to such person the grounds on which the order has been made and afford him the earliest opportunity of making a representation against the order. In the case of Kamlesh Kumar Ishwardas Patel Vs. Union of India and others, (1995) 4 SCC 51 , the Supreme Court has held that Article 22 (5) of the Constitution of India must be construed to mean that the person detained has right to make representation against the order of detention which can be made not only to the Advisory Board but also to the Detaining Authority, i.e., the Authority that has made the order of detention or the order of confirmation of such detention which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order of detention and thereby give relief to the person detained. In case, such representation is submitted there is a corresponding duty on the authority to consider it. In Kundanbhai Dulabhai Vs. In case, such representation is submitted there is a corresponding duty on the authority to consider it. In Kundanbhai Dulabhai Vs. District Magistrate, Ahmdabad and others, AIR 1996 SC 2998 , the Supreme Court has held that right to make representation against the order of detention is not only a constitutional right, but a statutory right as well. Since the Constitution as also the Act specifically provide that the detenu shall be given the earliest opportunity of making representation against the order of detention, it is implicit that there is a corresponding duty on the authorities to whom 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 lose both its purpose and meaning. Considering the principle laid down in the earlier judgments, the Supreme Court further held that representation has to be disposed of at the earliest and if there has been any delay in disposal of the representation, the reasons for the delay must be indicated to the Court or else, the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of detention and in that situation, continued detention would become bad. 8. The Supreme Court in the case of Rekha Vs. State of Tamilnadu and another, (2011) 5 SCC 244 , has observed that law of detention should be strictly construed and confined to narrow limits of rare and exceptional cases, and meticulous compliance with procedural safeguards should be made mandatory. It held that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the Detaining Authority to show that the impugned detention meticulously accords with the procedure established by law. These procedural safeguards are required to be zealously watched and enforced by the Court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. 9. In the present case, the petitioner's representation dated 1-10-2012 has been decided by the State Government vide order dated 4-12-2012. Copy of the said order of rejection of the representation was filed on 24-1-2013 without there being any endorsement of it being supplied to the petitioner. 9. In the present case, the petitioner's representation dated 1-10-2012 has been decided by the State Government vide order dated 4-12-2012. Copy of the said order of rejection of the representation was filed on 24-1-2013 without there being any endorsement of it being supplied to the petitioner. There is no application or affidavit on behalf of the State explaining the delay caused in deciding the representation. In the circumstances, there is unexplained delay in disposal of the representation, what to talk about unsatisfactory explanation. 10. Having regard to the aforesaid legal position both the contentions of the learned Deputy Government that since the Central Government had already rejected the representation there was no need for the State Government to have decided the same as also that during the pendency of the petition since the representation has been rejected and for the delay caused in deciding the same the detention order cannot be quashed on technicalities are contrary to legal provisions and the law laid down by the Supreme Court. Thus, we are of the view that the decision on the representation having been taken belatedly, the same is contrary to the constitutional and statutory obligation conferred upon the State Government and such unexplained delayed decision looses both its purpose and meaning and it would fatally affect the order of detention making its continuation bad. [See : Kundanbhai Dulabhai Vs. District Magistrate, Alnndabad and others (supra)]. 11. As a result, the impugned order of detention passed by the District Magistrate and confirmation passed by the State are liable to be and are hereby quashed. 12. The petition is allowed. The petitioner be set at liberty, if he is not required to be detained in any other case.