Aftab Ahmad (In Jail) vs District Magistrate and Others

Vishnu Sahai, J.—Heard Mr. Virendra Bhatia with Mr. Vivek Shrotria for the Petitioner-detenu, Mr. S. K. Singh for Respondent Nos. 1 and 2 and Mr. B. B. Saxena for Union of India, Respondent No. 3.

Through this writ petition preferred under Article 226 of the Constitution of India, the Petitioner-detenu has impugned order dated 30.12.2001 passed by the first Respondent Mr. C. N. Dubey, the District Magistrate, Gonda detaining him under Sub-section (2) of Section 3 of the National Security Act.

The detention order along with grounds of detention, which are also dated 30.12.2001, was served on the Petitioner-detenu on 30.12.2001 itself and their true copies have been annexed as Annexures-1 and 2 respectively to the writ petition.

The prejudicial activities of the Petitioner-detenu impelling the first Respondent to pass the impugned order of detention are contained in the grounds of detention (Annexure-2). Since in our judgment, a reference to them is not necessary for the adjudication of the pleading contained in Para 20 of the writ petition and ground (f) of the petition, we are not adverting to them.

In Para 20 of the petition and ground (f) of the petition, the pleading in substance is that the Petitioner made a representation to the State Government and the Union of India on 14.1.2002 and there has been delay in disposal of the said representation.

Mr. Virendra Bhatia, learned Counsel for the Petitioner-detenu emphatically urged that the delay of five days at the level of the State Government in disposing of the representation of the Petitioner-detenu has rendered his continued detention illegal and bad in law.

The averments contained in Para 20 of the petition and ground (f) of the petition have been replied to in Para 14 of the return of the detaining authority and in Para 3 of the return of Mr. C.P.N. Singh, Deputy Secretary, Home in Confidential Department, U. P. Civil Secretariat, Lucknow.

In Para 14 of his return, the detaining authority, in short, has stated as under:

The representation of the Petitioner-detenu dated 14.1.2002 was received in his office on 16.1.2002. On 16.1.2002, comments were called from Superintendent of Police Gonda. On 18.1.2002, the comments from Superintendent of Police, Gonda, were received. On 19.1.2002, through a special messenger, the representation of the Petitioner-detenu along with necessary comments, report, etc. was sent to the State Government.

In Para 3 of his return, Mr. C.P.N. Singh, in short, has stated as under:

The District Magistrate, Gonda vide his letter dated 19.1.2002 forwarded the representation of the Petitioner-detenu along with parawise comments which was received by the State Government on 22.1.2002. The State Government sent copy of the representation along with parawise comments to the Government of India and Uttar Pradesh Advisory Board vide its letter dated 23.1.2002. The concerned section of the State Government examined the representation and submitted a detailed note on 23.1.2002. The Special Secretary examined it on 23.1.2002 itself and thereafter forwarded to the Secretary, Home in Confidential Department who also examined it and on the said date (23.1.2002) forwarded it to the higher authorities, i.e., State Government for final orders. After due consideration, the said representation was finally rejected by the State Government on 28.1.2002.

We have perused the averments contained in Para 20 of the petition, those contained in ground (f) of the petition and the reply furnished by the detaining authority in Para 14 of his return and that furnished by Mr. C.P.N. Singh in Para 3 of his return. In our judgment, there is unexplained delay between 23.1.2002 and 28.1.2002. A perusal of Para 3 of return of Mr. C. P. N. Singh would make it manifest that after the detenu''s representation had been duly processed and examined by the Secretary, Home in Confidential Department on 23.1.2002, on the said date itself it was forwarded to the State Government and there was an ominous inaction on the part of the State Government in dealing with the Petitioner''s representation for full five days, i.e., between 23.1.2002 and 28.1.2002.

It is well-settled that if the detention of a detenu is assailed on the ground of delay in disposal of the representation, the crucial thing to be borne in mind is not the number of days of delay but whether there is credible explanation for the said delay. Thus, there may be the cases where the delay is long but since the explanation is satisfactory, the Court will not hold the continued detention of the detenu to be bad in law. On the converse, there may be cases where the delay in consideration of the detenu''s representation is short, as is in our case, but since there is no satisfactory explanation for the delay, the Court will hold the continued detention of the detenu to be vitiated in law. In the ultimate analysis it is the explanation which matters and not the number of days of delay. Since in the instant case, there is no explanation for the delay between 23.1.2002 and 28.1.2002, the continued detention of the detenu, in our judgment, is bad in law.

We feel it useful to advert to the oft-quoted case of Harish Pahwa Vs. State of U. P. and Others, , wherein in paragraph 3, the Supreme Court has laid down the ratio that a representation preferred by the detenu or on behalf of the detenu in a preventive detention matter has to be dealt "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". If we apply the ratio laid down in Harish Pahwa''s case supra, there is no getting way from the fact that the Petitioner-detenu''s representation was not continuously dealt with. Para 3 of the return of Mr. C.P.N. Singh makes it manifest that the Secretary, Home (Confidential) had forwarded the Petitioner''s representation to the State Government on 23.1.2002 but the said representation was only disposed of on 28.1.2002. No explanation has been forthcoming as to why it was not disposed of earlier.

Before the proceeding to the operative part of the judgment, we would like to refer to another judgment of the Apex Court, namely, that rendered in the case of Rajammal v. State of Tamil Nadu 1999 (1) ACR 392 (SC) : AIR 1999 SC 93. A perusal of Para 9 of the said decision shows that on 9.2.1998, the representation was forwarded to the Minister who received it while he was on tour. The Minister passed orders on the representation only on 14.2.1998. On behalf of Respondents, it was argued that since the Minister was on tour, the representation was disposed of on 14.2.1998. The Supreme Court rejected the said explanation on the ground that it was not a justifiable one.

For the aforesaid reasons, in our view, the five days delay by the State Government in disposal of the Petitioner-detenu''s representation, i.e., delay between 23.1.2002 and 28.1.2002, has remain unexplained and has rendered the continued detention of the Petitioner-detenu bad in law.

In the result this petition is allowed. We hold that the continued detention of the Petitioner-detenu cannot sustain in law and direct that the Petitioner-detenu Aftab Ahmad be set at liberty forthwith unless wanted in any other case.