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2019 DIGILAW 1971 (ALL)

Ashutosh Bhatt v. Union of India

2019-08-19

MANJU RANI CHAUHAN, MANOJ MISRA

body2019
ORDER : 1. We have heard Sri Abhishek Mani Tripathi for the petitioner; the learned A.G.A. for respondents 2, 3, 4 and 5; Sri Thakur Azad Singh for the Union of India; and have perused the record. 2. This habeas corpus petition has been filed by Ashutosh Bhatt alias Tipu, currently under detention at District Jail, Gorakhpur, questioning his detention under the National Security Act, 1980 (for short the Act, 1980) pursuant to the detention order dated 07.10.2018 passed by the District Magistrate, Gorakhpur in exercise of powers conferred upon him by Section 3(3) of the Act, 1980 read with Section 3(2) thereof. A prayer has also been made to set the petitioner at liberty. 3. A resume of essential facts would be apposite. While the petitioner was in jail in connection with case crime no. 89 of 2018, P.S. Gorakhnath, District Gorakhpur, under sections 302, 396, 412 IPC and section 7 Criminal Law Amendment Act and section 30 of the Arms Act, he was served with detention order dated 7.10.2018 passed by the District Magistrate Gorakhpur. The grounds of detention referred to direct involvement of the petitioner in an incident dated 12.02.2018 relating to murder of a person by use of firearm during the course of a ceremony which gave rise to case crime no. 89 of 2018 (supra). By alleging that the incident disturbed public order and that there was likelihood of the petitioner being released on bail, where after he would indulge in repeat of such activity that would disturb public order, with a view to prevent him from doing so, the order of detention was passed. 4. At the outset, the learned counsel for the petitioner has submitted that although there are several grounds for him to press and agitate in this petition but since the continued detention of the petitioner has been rendered illegal on account of unexplained inordinate delay in transmission of the representation by the detaining authority to the State Government, he would advance his submissions on that point only. 5. It has been submitted that against the order of detention, the petitioner had submitted representation at District Jail, Gorakhpur in five sets on 18.10.2018. The State Government received the representation along with para-wise comments and the letter of the District Magistrate dated 01.11.2018 on 06.11.2018, which was rejected by it on 19.11.2018. 5. It has been submitted that against the order of detention, the petitioner had submitted representation at District Jail, Gorakhpur in five sets on 18.10.2018. The State Government received the representation along with para-wise comments and the letter of the District Magistrate dated 01.11.2018 on 06.11.2018, which was rejected by it on 19.11.2018. The Central Government received the representation along with para-wise comments of the District Magistrate on 26.11.2018 through letter dated 12.11.2018 of the Deputy Secretary, Government of U.P., which was rejected by the Central Government on 30.11.2018. It has been urged that from the return filed by the Jail Authorities it is clear that the representation of the petitioner against the order of detention was submitted in five sets at District Jail, Gorakhpur on 18.10.2018 and from there it was sent to the office of the District Magistrate, Gorakhpur through Special Messenger on 18.10.2018 itself. The District Magistrate, Gorakhpur, however, sent it to the State Government vide letter dated 01.11.2018. There is no cogent explanation for the delay in onward transmission of the representation for the period between 19.10.2018 and 31.10.2018. 6. In his return, the District Magistrate, Gorakhpur sought to explain the delay in onward transmission of the representation by stating that after receipt of the representation, on 19.10.2018 comments were called from Senior Superintendent of Police, Gorakhpur (for short SSP) and those comments were received in his office on 31.10.2018. Immediately, thereafter, on 01.11.2018, the representation was forwarded to the State Government. 7. As in the return there was no explanation as to why 12 days were taken by the SSP in submitting his comments, on 06.08.2019, this Court had passed a detailed order requiring the District Magistrate, Gorakhpur to file his personal affidavit dealing with all the aspects mentioned in the said order. The order dated 06.08.2019 is extracted below: "In this habeas corpus petition, the return filed by the fifth respondent (Superintendent, District Jail, Gorakhpur) indicates that the petitioner submitted his representation in five sets at District Jail, Gorakhpur on 18.10.2018 which was sent to the office of District Magistrate, Gorakhpur through Jail Authorities on 18.10.2018 through special messenger. In the return filed by the State Government, from paragraph 6 thereof, it appears that the return dated 18.10.2018 was received in the concerned section of the State Government on 06.11.2018 along with the letter of District Magistrate, Gorakhpur, dated 01.11.2018. In the return filed by the State Government, from paragraph 6 thereof, it appears that the return dated 18.10.2018 was received in the concerned section of the State Government on 06.11.2018 along with the letter of District Magistrate, Gorakhpur, dated 01.11.2018. In the return filed by the District Magistrate, namely, K. Vijayendra Pandiyan, in paragraphs 9 and 19, he has stated as follows:- "9. That the contents of paragraphs no. 8, 9 and 10 of the writ petition are denied being incorrectly stated. In reply thereto, it is stated that the petitioner submitted his representation dated 18.10.2018 in five (05) sets at District Jail, Bulandshahar on 18.10.2018, which was sent to the office of District Magistrate, Bulandshahar through Jail Authorities on the very same day i.e. on 18.10.2018. Thereafter, on 19.10.2018, the deponent called for the report from the Senior Superintendent of Police, Gorakhpur, whereupon the Senior Superintendent of Police, Bulandshahar has submitted its report to the office of the deponent on 31.10.2018. After perusing the same, the parawise reply of the representation was prepared and thereafter, the representation of the petitioner was rejected by the District Magistrate, Gorakhpur/deponent on 01.11.2018 and the communication of the rejection of said representation along with the order, was communicated to the petitioner through Jail Authorities on the very same day i.e. on 01.11.2018. It is apt to mention herein that the prescribed procedure has been followed and there is no inordinate delay in deciding the petitioner's representation, as the time taken is due to procedural necessities. 19. That it is most humbly submitted that the petitioner submitted his representation dated 18.10.2018 in five (05) sets at District Jail, Bulandshahar on 18.10.2018, which was sent to the office of District Magistrate, Bulandshahar through Jail Authorities on the very same day i.e. on 18.10.2018. Thereafter, on 19.10.2018, the deponent called for the report from the Senior Superintendent of Police, Gorakhpur, whereupon the Senior Superintendent of Police, Bulandshahar has submitted its report to the office of the deponent on 31.10.2018. After perusing the same, the parawise reply of the representation was prepared and thereafter, the representation of the petitioner was rejected by the District Magistrate, Gorakhpur/deponent on 01.11.2018 and the communication of the rejection of the said representation alongwith the order, was communicated to the petitioner through Jail Authorities on the very same day i.e. 01.11.2018. After perusing the same, the parawise reply of the representation was prepared and thereafter, the representation of the petitioner was rejected by the District Magistrate, Gorakhpur/deponent on 01.11.2018 and the communication of the rejection of the said representation alongwith the order, was communicated to the petitioner through Jail Authorities on the very same day i.e. 01.11.2018. It is apt to mention herein that the prescribed procedure has been followed and there is no inordinate delay in deciding the petitioner's representation, as the time taken is due to procedural necessities." From the averments made in paragraphs 9 and 19 of the affidavit filed by the District Magistrate, Gorakhpur what concerns the Court is that there is complete non application of mind on the part of the District Magistrate in signing the return on oath. He refers himself, though being District Magistrate, Gorakhpur as District Magistrate, Bulandshahar and, not only that, he addresses Senior Superintendent of Police, Gorakhpur as Senior Superintendent of Police, Bulandshahar. Further, he has referred to District Jail, Gorakhpur as District Jail, Bulandshahar. It is not expected of such a responsible officer to file an affidavit in such a casual manner. Further, we find that there is no disclosure in the affidavit filed by the District Magistrate as to what took so long for the Senior Superintendent of Police, Gorakhpur in submitting his report, which was called from him on 19.10.2018. The counter affidavit also does not disclose whether any reminder was sent from the office of the District Magistrate prompting the Senior Superintendent of Police concerned to submit his report. In view of the above, we deem it appropriate to call upon the District Magistrate, Gorakhpur to file his personal affidavit dealing with all the aforesaid aspects. Put up this matter on 19th August, 2019. Let a copy of this order be supplied to the learned A.G.A. for information and compliance." 8. Pursuant to the order dated 06.08.2019, the District Magistrate, Gorakhpur has filed two affidavits today. In the first affidavit he has disclosed about the extension of detention period to the maximum permissible, that is of 12 months starting from the date of detention. Let a copy of this order be supplied to the learned A.G.A. for information and compliance." 8. Pursuant to the order dated 06.08.2019, the District Magistrate, Gorakhpur has filed two affidavits today. In the first affidavit he has disclosed about the extension of detention period to the maximum permissible, that is of 12 months starting from the date of detention. In the second affidavit he has expressed regret and apology for typographical mistakes in his earlier return and has sought to explain the delay in onward transmission of the representation by claiming that the delay in receiving comments from the SSP was because the Station House Officer, P.S. Gorakhnath, Gorakhpur (for short SHO) had provided comments to the SSP on 29.10.2018. In paragraph 10 of the second affidavit it is stated that the SSP called for comments from the SHO on 20.10.2018. 9. Why it took 8 days for the SHO concerned to provide his comments is not explained in the affidavit. Further, there is no explanation offered by the District Magistrate as to whether he had issued a reminder to the SSP or the SSP had issued reminder to the SHO for the comments. 10. The learned counsel for the petitioner submitted that in the case of Rajmamal vs. State of Tamil Nadu and another, (1999) 1 SCC 417 , continued detention was declared illegal in absence of explanation for delay of five days in dealing with the representation. The learned counsel for the petitioner has also placed reliance on decisions of the Apex Court in Pebam Ningol Mikoi Devi vs. State of Manipur: (2010) 9 SCC 618 , paras 33 to 37; Abdul Nasar Adam Ismail vs. State of Maharashtra, (2013) 4 SCC 435 , para 19 so as to contend that unexplained delay in onward transmission of the representation vitiates the continued detention of the detenue as it violates the fundamental right of a detenue guaranteed under Article 22 (5) of the Constitution of India. 11. Per-Contra, the learned A.G.A. has submitted that the explanation for delay, if any, in onward transmission of the representation at the level of the D.M. has been provided as, ordinarily, comments on the representation are called from police authorities and, therefore, if the D.M. had called for comments from the S.S.P., it cannot be said that the D.M. deliberately delayed the onward transmission of the representation. He further submitted that few days are always taken in submitting para-wise comments therefore the delay of about 8 days in submitting comments will not be fatal. 12. The learned counsel for the Union of India submitted that the Central Government took only few days in deciding the representation after it was received in the office. 13. We have considered the rival submissions. 14. In Rajammal v. State of T.N., (1999) 1 SCC 417 , a three judges bench of the apex court, after noticing the judgment of the Constitutional Bench of the Apex court rendered 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 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. 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. 15. 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. 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. 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. 16. 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 it 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. 17. It is equally 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 the 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 found in Article 22(5) of the Constitution of India, would be rendered nugatory. 18. 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. 18. 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." 19. In Jaggu v. State of U.P., 2008 SCC OnLine All 1348: (2008) 70 AIC 491: (2008) 5 All LJ (NOC 1037), a Division Bench of this court found that long unexplained delay in submitting report by police authorities, which results in delay in onward transmission of representation, vitiates the continued detention. The relevant extracts from the judgment of this Court in the case of Jaggu (supra) are reproduced below: "3. The detenu made a representation dated 13.9.2007 to the State Government, which was handed over to the jail authorities on 14.9.2007. The jail authorities sent the representation to the office of District Magistrate on 15.9.2007. On the same day, the District Magistrate called for comments from the Senior Superintendent of Police, Ghaziabad and the report of Senior Superintendent of Police was received by the District Magistrate on 1.10.2007. Thereafter, the District Magistrate transmitted the representation to the Central Government, the State Government and the Advisory Board on 2.10.2007. 4. Learned Counsel for the petitioner has urged that there is no explanation of 15 days' delay i.e. from 16.9.2007 to 30.9.2007, as to why the report was sent by the Senior Superintendent of Police after 15 days. Thereafter, the District Magistrate transmitted the representation to the Central Government, the State Government and the Advisory Board on 2.10.2007. 4. Learned Counsel for the petitioner has urged that there is no explanation of 15 days' delay i.e. from 16.9.2007 to 30.9.2007, as to why the report was sent by the Senior Superintendent of Police after 15 days. One could understand that the report could be sent by the Senior Superintendent of Police within a day or two, but he could not sit over the matter for 15 days and send his report to the District Magistrate after 15 days. Further, from the counter affidavit of the District Magistrate, it is dear that there is no explanation given in the counter affidavit for the delay from 16.9.2007 to 30.9.2007. 5. The Apex Court in Rajammal v. State of Tamil Nadu, has held that un-explained delay of five days was fatal and the decision order would 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. 6. In Harish Pahwa v. State of U.P. the Supreme Court has taken the similar view. 7. Similar view has been taken by the Supreme Court in the case of Union of India v. Harish Kumar, relied upon by the learned Counsel for the petitioner. 8. For the aforesaid reasons, further detention of the petitioner under the National Security Act is held to be illegal." 20. From the law noticed above, it is clear that there should not be inordinate delay in submitting comments on the representation. Although, no specific time limit can be fixed in that regard but, ordinarily, 3 to 5 days may be considered reasonable. However, when the delay appears to be inordinate then explanation must be offered by the authorities concerned. 21. We find that the SHO concerned took eight days to submit comments on 29.10.2018 when they were called from him by the SSP on 20.10.2018. Taking eight days to submit comments, particularly, by a police station which had been the base station from where recommendations for detention emanated, in our view, is inordinate for which an explanation was necessary. As we find that there is no explanation for this delay, despite this Court's order dated 06.08.2019, the continued detention of the petitioner has been rendered illegal. The petition is therefore allowed. As we find that there is no explanation for this delay, despite this Court's order dated 06.08.2019, 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.