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2019 DIGILAW 1690 (ALL)

Shamshul v. Union of India

2019-07-15

MANOJ MISRA, VIRENDRA KUMAR SRIVASTAVA

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JUDGMENT : 1. We have heard Sri Jitendra Pal Singh for petitioner; Sri Pawan Kumar Srivastava for Union of India (respondent no.1); Sri Deepak Mishra, learned AGA, for respondent nos. 2 to 6; and have perused the record. 2. By this habeas corpus petition, the petitioner through his next friend has questioned his detention under the provisions of the National Security Act, 1980 (for short "Act, 1980") and has prayed that he be set at liberty. 3. The relevant facts are as follows: while the petitioner was confined in District Jail, Pilibhit pursuant to remand orders dated 21.9.2018 passed by remand Magistrate, Pilibhit in Case Crime No. 339 of 2018; 334 of 2018 and 336 of 2018, he was served with a detention order dated 30.10.2018 passed by the District Magistrate, Pilibhit in exercise of power under Section 3(2) read with Section 3(3) of the Act, 1980. The aforesaid order for detention was approved by the State Government on 2.11.2018 in exercise of its power under Section 3(4) of the Act, 1980. Report to the Central Government under section 3(5) of the Act, 1980 was sent on 6.11.2018. The matter was referred to the Advisory Board on 5.11.2018. The petitioner was heard by the Advisory Board on 3.12.2018 and the report of the Advisory Board finding the preventive detention justified was received on 10.12.2018. After receipt of report from the Advisory Board, the State Government, vide order dated 13.12.2018, exercising powers under section 12(1) of the Act, 1980, confirmed the detention, provisionally, for a period of three months, starting from the date of detention i.e 30.10.2018. The period of detention was thereafter provisionally extended for a further period of three months by order of the State Government, dated 17.1.2019, thereafter provisionally extended for a further period of three months vide order dated 22.4.2019 and, finally, extended for a further period of three months vide order dated 10.7.2019, that is, the detention of the petitioner was confirmed for the maximum period of 12 months, starting from 30.10.2018. 4. 4. Learned counsel for the petitioner has urged that though there are several grounds on which he could press the petition but he craves for liberty to press the petition on a solitary ground, that is, that there has been an unexplained and inordinate delay at the level of the District Magistrate in transmission of his representation to the State Government, which has rendered his continued detention illegal. 5. The learned counsel for petitioner has submitted that the petitioner had submitted representation in sufficient number of copies, namely, 32 sets, to the Jail Authorities on 7.11.2018 for being sent to Appropriate Government/ State Government; Central Government; the District Magistrate; and the Advisory Board. It has been urged that the District Magistrate had kept the representation at his level and has forwarded the representation on 19.11.2018 to the State Government. It has been urged that there is no satisfactory explanation on the part of the District Magistrate for the delay in transmission of the representation to the State Government. 6. From the counter affidavit filed by the State Government, it appears that representation was received in the concerned Section of the State Government on 20.11.2018, vide letter dated 19.11.2018 of the District Magistrate, Pilibhit. The State Government in its counter affidavit has stated that after receipt of the representation on 20.11.2018, the representation along with para wise comments was sent to the Central Government and to the U.P. Advisory Board, vide letters dated 22.11.2018. It is stated that 23.11.2018 was Guru Nanak Jayanti and as such a holiday; 24.11.2013 and 25.11.2018 were Saturday and Sunday, weekly holidays. Therefore, the concerned section of the State Government examined the representation on 26.11.2018. It is stated that representation was continuously examined thereafter and was finally rejected by the State Government on 1.12.2018. 7. From the counter affidavit filed by the Superintendent District Jail, Pilibhit, it appears that the representation was received by the jail authorities on 7.11.2018 and was sent to the office of the District Magistrate through special messenger. The counter affidavit filed by the District Magistrate is completely silent as to when he received the representation and when he forwarded the representation. He only states that he rejected the representation on 13.11.2018. 8. Sri Deepak Mishra, learned AGA appearing for the State respondents has stated that supplementary counter affidavit has also been filed by the District Magistrate. The counter affidavit filed by the District Magistrate is completely silent as to when he received the representation and when he forwarded the representation. He only states that he rejected the representation on 13.11.2018. 8. Sri Deepak Mishra, learned AGA appearing for the State respondents has stated that supplementary counter affidavit has also been filed by the District Magistrate. A copy of the supplementary counter affidavit has been supplied to the Court during the course of hearing, which has been taken on record. 9. In the supplementary counter affidavit dated 4.5.2019 it is stated that representation dated 7.11.2018 sent by the Superintendent Jail, District Pilibhit was received in the office of the District Magistrate on 12.11.2018. It is stated that an explanation was called from the Superintendent Jail, Pilibhit as regards delay in forwarding representation upon which it was found that in between 7.11.2018 to 9.11.2018 there were holidays such as Diwali, Bhai Dooj and Chitragupt Jayanti and 10.11.2018 was second Saturday and 11.11.2018 was Sunday and, therefore, representation could be forwarded only on 12.11.2018. 10. Neither in the main counter affidavit nor in the supplementary counter affidavit there is any explanation from the District Magistrate as regards the reason for not transmitting the representation to the State Government prior to 19.11.2018, because from paragraph- 6 of the return filed by the State Government it is clear that representation was received in the concerned Section of the State Government on 20.11.2018 along with letter dated 19.11.2018 of the District Magistrate. 11. Learned AGA has submitted that since the State Government at its own level has decided the representation promptly, therefore, the continued detention cannot be held illegal. But he has not been able to demonstrate from the return filed by the respondents that any explanation has been offered by the District Magistrate with regard to delay in forwarding the representation between 13.11.2018 and 19.11.2018. 12. We have considered the rival submissions and have perused the record carefully. From the record we find that it is not in dispute that representation of the petitioner, in sufficient number of copies, was submitted to the Superintendent Jail, Pilibhit on 7.11.2018. This representation was forwarded by the District Magistrate vide letter dated 19.11.2018 to the State Government, which was received in the concerned Section of the State Government on 20.11.2018. From the record we find that it is not in dispute that representation of the petitioner, in sufficient number of copies, was submitted to the Superintendent Jail, Pilibhit on 7.11.2018. This representation was forwarded by the District Magistrate vide letter dated 19.11.2018 to the State Government, which was received in the concerned Section of the State Government on 20.11.2018. Though there appears to be explanation for the delay on the part of the Superintendent Jail, Pilibhit in not forwarding the representation to the office of the District Magistrate till 12.11.2018 but there appears no explanation whatsoever, at the level of the District Magistrate, in not forwarding the representation of the petitioner to the State Government in between 13.11.2018 and 19.11.2018. Interestingly, from the counter affidavit of the District Magistrate, it appears, he himself rejected the representation on 13.11.2018. Hence, in our view there was inordinate delay on the part of the District Magistrate in not forwarding representation till 19.11.2018. To explain this delay, the burden was on the District Magistrate to show that there were sufficient reasons for not forwarding the representation till 19.11.2018. But there is no explanation for that in any of the returns. 13. In Rajammal v. State of T.N., 1999 1 SCC 417 , a three judges bench of the apex court, after noticing the judgment of Constitutional Bench decision of the Apex court in K.M. Abdulla Kunhi v. Union of India, 1991 1 SCC 476 , in paragraphs 7 and 8 of its judgment, as reported, held as follows: 7. It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be" in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in K.M. Abdulla Kunhi v. Union of India. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in K.M. Abdulla Kunhi v. Union of India. The following observations of the Bench can profitably be extracted here: "It is a constitutional mandate commanding the authority concerned 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 a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the detention law concerned, within which the representation should be dealt with. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal." 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 the test is not the duration or range of delay, but how it is explained by the authority concerned. (Emphasis supplied) 14. Thereafter, the apex court proceeded to notice the facts of the case and held that unexplained delay of 5 days in between 9.12.1988 and 14.2.1988 has vitiated the continued detention. The relevant paragraphs 9 and 11 of the judgment in Rajammal's case (supra), as reported, is being extracted below: 9. What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the Under-Secretary for processing it on the next day. The Under-Secretary forwarded it to the Deputy Secretary on the next working day. What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the Under-Secretary for processing it on the next day. The Under-Secretary forwarded it to the Deputy Secretary on the next working day. Thus there is some explanation for the delay till 9-2-1998. Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14-2-1998. Though there is explanation for the delay till 9-2-1998, we are unable to find out any explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14-2-1998 is not a justifiable explanation when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen. 11. We are, therefore, of the opinion that the delay from 9-2-1998 to 14-2-1998 remains unexplained and such unexplained delay has vitiated further detention of the detenu. The corollary thereof is that further detention must necessarily be disallowed. We, therefore, allow this appeal and set aside the impugned judgment. We direct the appellant-detenu to be set at large forthwith. (Emphasis supplied) 15. From the decision noticed above, the deducible legal principle is that the duration or the length of the time taken in deciding or dealing with the representation is not what is the deciding factor as to uphold the detention or to declare the continued detention illegal. The deciding factor is the explanation for the delay, if any. In other words, whenever there appears inordinate delay, at any stage of dealing with the representation, it is for the authority concerned to explain the delay. It is not enough to say that the delay was very short. Even longer delay can well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned. 16. It is not enough to say that the delay was very short. Even longer delay can well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned. 16. It is well settled by a catena of decisions that an unexplained delay in transmission of representation against a preventive detention order violates the fundamental right of a detenue guaranteed under Article 22(5) of the Constitution of India thereby rendering the continued detention illegal (vide Pebam Ningol Mikoi Devi v. State of Manipur, 2010 9 SCC 618 , paras 33 to 37; Abdul Nasar Adam Ismail v. State of Maharashtra, 2013 4 SCC 435 , para 19). The rationale behind the above view is, if the representation is not promptly sent to the authority competent to decide, to whom it is addressed, the phrase "shall afford him (detenue) the earliest opportunity of making representation against the order", as contained in Article 22(5) of the Constitution of India, would be rendered nugatory. 17. In Abdul Nasar's case (supra) in paragraph 19 of the judgment it was held as follows: "19. In Pebam Ningol Mikoi Devi, seven days' unexplained delay in forwarding the representation to the Central Government was held to be fatal. In Aslam Ahmed Zahire Ahmed Shaik, the detenu had handed over his representation to the Superintendent of Jail on 16-6-1998 for onward transmission to the Central Government. It was kept unattended for a period of seven days and, as a result, it reached the Government 11 days' after it was handed over to the Superintendent of Jail. The Superintendent of Jail had not explained the delay. Relying on Vijay Kumar v. State of J&K, the continued detention of the detenu was set aside. At the cost of repetition, we must note that in this case, the Superintendent of Jail has not filed any affidavit explaining the delay. Therefore, this delay, in our opinion renders continued detention of the detenu, illegal." 18. Having noticed the legal position and upon finding that there is unexplained inordinate delay of about 5 days, in between 13.11.2018 and 19.11.2018, in forwarding the representation of the petitioner by the detaining authority to the appropriate government, we are of the considered view that the fundamental right of the petitioner guaranteed under Article 22(5) of the Constitution of India has been violated. Hence, the continued detention of the petitioner has been rendered illegal. The petition is, therefore, allowed. The petitioner shall be set at liberty forthwith, unless wanted in any other case. There is no order as to costs.