Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 751 (AP)

P. Aruna Kumari v. State of Andhra Pradesh

2020-11-30

AKULA VENKATA SESHA SAI, K.SURESH REDDY

body2020
ORDER : Akula Venkata Sesha Sai, J. 1. The issue in the present Writ Petition arises under the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter called as "the Act No. 1 of 1986"). 2. The 2nd respondent herein, the Collector & District Magistrate, Chittoor vide Order No. REV-CSECOPDL(PRC)/3/2020 D.TH(C7), dated 04-03-2020, ordered the detention under Section 3(1) & (2) read with 2(a) and 2(g) of the Act No. 1 of 1986 against the husband of the petitioner herein namely P. Siva Prasad (for short, 'detenu'). Thereafter, the State Government vide G.O. Rt. No. 742, General Administration (SC.I) Department, dated 28.04.2020 passed an order, directing that the order of detention be continued for a period of 12 months from the date of detention i.e., 06.03.2020. 3. In terms of Article 22(5) of the Constitution of India, the petitioner herein, wife of the detenu, submitted a representation, dated 21.08.2020. The State Government, by way of G.O. Rt. No. 1530, General Administration (SC.I) Department, dated 05.10.2020, rejected the said representation. In the present Writ Petition, the Order of detention, dated 04.03.2020 and the confirmation Order passed by the State Government vide G.O. Rt. No. 742, General Administration (SC.I) Department, dated 28.04.2020, are under challenge. 4. Heard Sri. Ch. Venkat Raman, learned Counsel for the petitioner and the learned Additional Advocate General Sri. P. Sudhakar Reddy for the State Government apart from perusing the material available on record. 5. The only contention urged in the present Writ Petition is that the delay in consideration of the representation, dated 21.08.2020, submitted by the wife of the detenu is fatal to the Order of detention and on that solitary ground, the Writ Petition is liable to be allowed. In elaboration, it is submitted by the learned counsel for the petitioner that the unexplained delay is a patent transgression and violation of fundamental rights guaranteed under Article 21 of the Constitution of India. 6. In support of his submissions and contentions, the learned counsel for the petitioner places reliance on the following judgments of the Hon'ble Apex Court and this Court:- (1) Rajammal v. State of Tamilnadu, (1999) 1 SCC 417 (2) Abdul Nasar Adam Ismail v. State of Maharashtra and others, (2013) 4 SCC 435 (3) Order of this Court in W.P. No. 9609 of 2020, dated 29.07.2020. 7. 7. Per contra, totally supporting the impugned action and reiterating the averments in the counter-affidavit filed on behalf of the respondents 1 and 2, it is submitted by the learned Additional Advocate General for the State that there is absolutely no illegality, nor there exists any procedural infirmity, in the impugned action, and in the absence of the same, the questioned action is not amenable for any judicial review under Article 226 of the Constitution of India. 8. It is further submitted by the learned Additional Advocate General that there is absolutely no delay in dealing with the issue and having regard to the explanation offered at paragraph 16 of the counter-affidavit, the contention contrary advanced by the learned counsel for the petitioner is liable to be rejected. 9. It is further submitted by the learned Additional Advocate General that having regard to the factual circumstances, the ratio laid down in the judgments cited by the learned counsel for the petitioner would not render any assistance to the case of the petitioner. 10. In the above background, now the issues that emerge for consideration by this Court are:- (1) Whether there is any delay in dealing with the representation submitted by the wife of the detenu and whether the same, having regard to the facts and circumstances of the case, vitiates the entire order of detention? (2) Whether the respondent authorities explained the delay properly having regard to the judgments cited by the learned counsel for the petitioner? 11. According to the counter-affidavit filed on behalf of the respondents 1 and 2, the petitioner herein submitted a representation on 21.08.2020 and the same was received by the office of the Chief Secretary on 28.08.2020. Thereafter, it was transmitted to the Home Department on 01.09.2020 and the Home Department forwarded the representation on 04.09.2020 to the General Administration Department. 11. According to the counter-affidavit filed on behalf of the respondents 1 and 2, the petitioner herein submitted a representation on 21.08.2020 and the same was received by the office of the Chief Secretary on 28.08.2020. Thereafter, it was transmitted to the Home Department on 01.09.2020 and the Home Department forwarded the representation on 04.09.2020 to the General Administration Department. It reached the Section concerned on 07.09.2020 and the Government issued a memo dated 16.09.2020 calling for remarks from the Collector & District Magistrate, Chittoor on each contention urged by the petitioner and the said memo was received by the District Collector on 25.09.2020 and on the same day, the District Collector, Chittoor requested the Superintendent of Police, Chittoor to furnish para-wise remarks, and the Superintendent of Police, Chittoor furnished remarks on 28.09.2020 and thereafter, the District Collector submitted remarks to the Government vide letter dated 29.09.2020 and eventually, the State Government rejected the representation of the petitioner vide G.O. Rt. No. 1530, General Administration (SC.I) Department, dated 05.10.2020. It is also stated in the counter-affidavit that from the date of representation till the date of passing of Orders i.e., from 21.08.2020 to 05.10.2020, there were 15 public holidays leaving only 30 working days, and during the said short period the file was processed between two separate departments. 12. According to the respondents and as contended by the learned Additional Advocate General, the said period, if any, by any stretch of imagination, cannot be construed as delay and that the said delay, if any, can be treated as negligible delay, and as such, on that ground, the impugned proceedings would not get vitiated. 13. In this context, it is pertinent to refer to the judgment relied on by the learned counsel for the petitioner in the case of Rajammal's case (1 supra) wherein the Hon'ble Apex Court at paragraphs 10 and 11 held as under:- Para 10: Mr. V.R. Reddy, learned senior counsel for the State of Tamil Nadu referred to a decision of this Court in Mrs. U. Vikayalakshmi vs. State of Tamil Nadu and another ( AIR 1994 SC 165 ) to contend that it could not be said that there was any delay in considering the representation from 9.2.1998 to 14.2.1998. In that case also the detention was under Section 3(1) of the Act. U. Vikayalakshmi vs. State of Tamil Nadu and another ( AIR 1994 SC 165 ) to contend that it could not be said that there was any delay in considering the representation from 9.2.1998 to 14.2.1998. In that case also the detention was under Section 3(1) of the Act. The detenu made representation again the detention which was received by the State Government conveyed the rejection of the representation on 23.6.1992. The detenu received the rejection order on 26.6.1992. It was submitted that there was an inordinate long delay in dealing with the representation and that the detenu was entitled to have the detention order quashed. This Court noticed that in the counter affidavit filed by the Deputy Secretary to the State Government the manner in which the representation was dealt with after its receipt on 18.5.1992 had been stated in detail. The Court then observed: "We have perused the stages through which the file containing the representation was dealt with promptly and there was no indifference lethargy or negligence in dealing with the same. The file was not unnecessarily held up at any level but moved from level to level promptly. We are, therefore, satisfied that the explanation tendered by the Deputy Secretary in this behalf is acceptable and does not destroy any lack of sense or urgency in dealing with the representation. We, therefore, do not see any merit in the first contention." In the present case, however, there is no explanation forth coming as to why the representation could not be dealt with by the Minister concerned from 9.2.1998 to 14.2.1998. Para 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. 14. It is very much evident from the reading of the above ruling that on the ground of delay of 6 days, the Apex Court found fault with the order of the detention and accordingly set aside the same. 15. We direct the appellant-detenu to be set at large forthwith. 14. It is very much evident from the reading of the above ruling that on the ground of delay of 6 days, the Apex Court found fault with the order of the detention and accordingly set aside the same. 15. In Abdul Nasar Adam Ismail's case (2 supra), the Hon'ble Apex Court at paragraphs 14 to 24 held as under:- Para 14: We shall now turn to the submission that there is delay in disposal of the detenu's representation by the State Government. Several judgments have been cited by learned counsel for the appellant. It is not necessary to refer to all of them because they reiterate the same principles. We may begin with the observations of this Court in Francis Coralie Mullin v. W.C. Khambra. The relevant portion of the said judgment reads thus: "The time imperative can never be absolute or obsessive". In L.M.S. Umma Saleem v. B.B. Gujral, (1981) 3 SCC 317 , it was held: "The occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae." Para 15. It is also necessary to refer to the observations of the Constitution Bench of this Court in K.M. Abdulla Kunhi which read thus: "12. Clause (5) of Article 22 therefore, casts a legal obligation on the government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority 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. 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 concerned detention law, 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." Para 16. The principles which have been laid down by the Constitution Bench and the other judgments which we have referred to earlier can be summarized. Article 22(5) of the Constitution casts a legal obligation on the Government to consider the detenu's representation as early as possible. Though no time limit is prescribed for disposal of the representation, the constitutional imperative is that it must be disposed of as soon as possible. There should be no supine indifference, slackness or callous attitude. Any unexplained delay would be a breach of constitutional imperative and it would render the continued detention of the detenu illegal. That does not, however, mean that every day's delay in dealing with the representation of the detenu has to be explained. The explanation offered must be reasonable indicating that there was no slackness or indifference. Though the delay itself is not fatal, the delay which remains unexplained becomes unreasonable. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. 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 the range of delay, but how it is explained by the authority concerned. If the inter departmental consultative procedures are such that the delay becomes inevitable, such procedures will contravene the constitutional mandate. Any authority obliged to make order of detention should adopt procedure calculated towards expeditious consideration of the representation. The representation must be taken up for consideration as soon as such 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. Para 17. The representation must be taken up for consideration as soon as such 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. Para 17. In light of above principles, it is now necessary to see how the State Government has disposed of the detenu's representation in this case. In this connection, relevant dates are available from the affidavit of Shivaji S. Patankar, Deputy Secretary to the Government of Maharashtra, Home Department (Special), affidavit of Medha Gadgil, Principal Secretary (Appeals & Security), Government of Maharashtra, Home Department, Mantralaya, Mumbai and affidavit of Ravindra Kumar Das, Deputy Commissioner of Customs, COFEPOSA Cell, CSI Airport, Mumbai. The High Court has correctly located the important dates from the three affidavits. In our opinion, the detaining authority and the sponsoring authority have properly explained the time lag between 6/7/2012 i.e. the date when the representation was received by the detaining authority and the date of communication of rejection to the detenu i.e. on 30/7/2012. The explanation offered by them is reasonable and acceptable. We find that the representation was taken up for consideration as soon as it was received and dealt with continuously until a final decision was taken and communicated to the detenu. Undoubtedly, time was taken to obtain para-wise comments from the sponsoring authority. But, in Kamarunnissa v. Union of India[24], this Court has held that seeking views of the sponsoring authority cannot be said to be a futile exercise. Thus, the time lag between receipt of the representation till its consideration and communication of rejection to the detenu is properly explained. Para 18. We, however, find that the delay in transmitting the representation to the detaining authority by the jail authority is not explained. If the representation was received by the Superintendent of Jail on 23/6/2012, he should have immediately sent it to the detaining authority. The detaining authority has received it on 6/7/2012. The time lag between 23/6/2012 and 6/7/2012 is not explained at all. It is only stated by the detaining authority that 23/6/2012 and 1/7/2012 were public holidays. There is no explanation for the inaction on the part of the Superintendent of Jail, Nashik Road Central Prison, Nashik. The detaining authority has received it on 6/7/2012. The time lag between 23/6/2012 and 6/7/2012 is not explained at all. It is only stated by the detaining authority that 23/6/2012 and 1/7/2012 were public holidays. There is no explanation for the inaction on the part of the Superintendent of Jail, Nashik Road Central Prison, Nashik. He has not cared to file any affidavit explaining why the representation which was received by him on 23/6/2012 was not sent to the detaining authority immediately. Para 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.[25], 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 delay. Therefore, this delay, in our opinion renders continued detention of the detenu, illegal. Para 20. We would like to make it clear that the delay in disposal of the representation of the detenu has vitiated only the continued detention of the detenu and not the detention order. In Meena Jayendra Thakur v. Union of India[26], this Court was considering a case where the detenu was detained under the provisions of the said Act. This Court held that if the detaining authority on the basis of the materials before him did arrive at his satisfaction with regard to the necessity for passing an order of detention and the order is passed thereafter, the same cannot be held to be void because of a subsequent infraction of the detenu's right or of non-compliance with the procedure prescribed under law because that does not get into the satisfaction of the detaining authority while making an order of detention under Section 3(1) of the said Act. Para 21. It does not affect the validity of the order of detention issued under Section 3(1) of the said Act. Para 21. It does not affect the validity of the order of detention issued under Section 3(1) of the said Act. Similar view has been taken by this Court in Sayed Abdul Ala. In that case, this Court was concerned with an order of detention issued under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. It was argued that there was delay in considering the representation of the detenu. Relying on Meena Jayendra Thakur, this Court expressed that even if it is to be assumed that there was some delay in considering the representation, the same would not vitiate the original order of detention. By reason of the delay, only further detention of the detenu will become illegal. The delay in considering the representation does not vitiate the order of detention itself. Para 22. In Harish Kumar, this Court was again considering an order of detention issued under the provisions of the said Act. This Court reiterated the same view and held that "14 The detention order passed at the satisfaction of the detaining authority on the basis of the material available in no manner gets vitiated for the reason of non-consideration of the representation made by the detenu to the Central Government". It was held that initial order of detention was not rendered void ab initio. Para 23. It may be noted that even the Constitution Bench of this Court in K.M. Abdulla Kunhi, held that any unexplained delay in disposal of representation of the detenu would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal and set aside the continued detention of the detenu. Para 24. In view of this clear legal position, we hold that the order of detention dated 16/4/2012 is valid. However, on account of delay in disposal of the representation of the detenu by the State Government, the continued detention of the detenu is rendered illegal. We, therefore, direct that the detenu-Abdul Nasar Adam Ismail be released from detention forthwith if he is not already released from detention and he is not required in any other case. The appeal is disposed of accordingly. We, therefore, direct that the detenu-Abdul Nasar Adam Ismail be released from detention forthwith if he is not already released from detention and he is not required in any other case. The appeal is disposed of accordingly. In the above referred judgment, the Hon'ble Apex Court categorically found that 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, though no time limit is prescribed for disposal of the representation, more so, having regard to the Article 22(5) of the Constitution of India, which mandates disposal of the representation at the earliest. 16. In fact, in W.P. No. 9609 of 2020 filed on behalf of the son of the detenu in the present Writ Petition i.e., P. Rajesh, a Division Bench of this Court, after extensively considering various aspects and referring to all the earlier judgments of the Hon'ble Apex Court, had set aside the order passed against the son of the detenu in the present case. Paragraph 16 of the said Order reads thus:- Para 16: Admittedly, the representation dated 5.5.2020 was sent to the Government and it is to be presumed that it must have been received within a couple of days, as the counter filed by the Government is silent as to the date when it was received by the Government. In para 16 of the counter it is stated that the said representation was received by the Home Department and thereafter with an endorsement dated 19.6.2020, it was forwarded to the GAD, which was looking after the preventive detention matters. The representation was received by the GAD on 19.6.2020 and as 20.6.2020 and 21.6.2020 were holidays, called for remarks from the District Collector on 22.6.2020 and thereafter rejected the representation on 26.6.2020. From a perusal of the above, it is clear that from 5-5-2020 onwards, the representation of the petitioner was lying with the Government till 19.6.2020 i.e., for nearly 40 days. No explanation is forthcoming in the counter as to why the representation was in the Home Department till 19.6.2020 without being attended to. 17. From a perusal of the above, it is clear that from 5-5-2020 onwards, the representation of the petitioner was lying with the Government till 19.6.2020 i.e., for nearly 40 days. No explanation is forthcoming in the counter as to why the representation was in the Home Department till 19.6.2020 without being attended to. 17. Reverting to the present Writ Petition, it is significant to note that even according to the counter-affidavit, the representation submitted on behalf of the detenu in the present case was received by the office of Chief Secretary on 28.08.2020, and the same was sent to the Home Department on 01.09.2020 i.e., after four days the said representation was forwarded to the Home Department. Thereafter, after 4 days i.e., on 04.09.2020, the Home Department sent the said representation to the General Administration Department and it reached the concerned Section on 07.09.2020. Thereafter, vide memo dated 16.09.2020 the State Government called for remarks from the Collector & District Magistrate, Chittoor. Therefore, it is very much evident from the same that there was delay of 12 days in calling for remarks from the Collector & District Magistrate by the Government. Even thereafter, according to the counter-affidavit, a memo was received by the District Collector on 25.09.2020, who in turn requested the Superintendent of Police, Chittoor to furnish para-wise remarks and the Superintendent of Police furnished the remarks on 28.09.2020. Subsequently, on 05.10.2020 the State Government passed the Orders. 18. It is very much clear that though the remarks were called for on 16.09.2020, it had taken nearly 20 days to conclude the process. It is very much lucid from the above factual situation that the said delay in consideration of the representation submitted on behalf of the detenu, having regard to the principles laid down in the above referred judgments, is undoubtedly fatal to the Order of detention and on the ground of said unexplained delay, the Order of detention is liable to be set aside. 19. For the aforesaid reasons, the Writ Petition is allowed, setting aside the Order of detention vide Order No. REV-CSECOPDL(PRC)/3/2020 D.TH(C7), dated 04-03-2020 passed by the 2nd respondent and G.O. Rt. No. 742, General Administration (SC.I) Department, dated 28.04.2020 and consequently the detenu namely Pongubala Siva Prasad shall be set at liberty forthwith, if he is not required in any other case. There shall be no order as to costs. No. 742, General Administration (SC.I) Department, dated 28.04.2020 and consequently the detenu namely Pongubala Siva Prasad shall be set at liberty forthwith, if he is not required in any other case. There shall be no order as to costs. Consequently, miscellaneous applications pending, if any, shall stand closed.