Alok Pratap Singh vs State of Madhya Pradesh and Another

S.K. Seth, J.

The District Magistrate, Sarguja vide his order dated 5-6-1989 (Annexure-R/1) directed the detention of the petitioner under sub-section (2) of section 3 of the National Security Act on the ground that it was necessary to do so with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Pursuant to the said order, the petitioner was taken into custody on the same day. The detention order was finally confirmed by the State Government under sub-section (1) of section 12 of the Act on the basis of the report of the Advisory Board on 22-7-1989 (Annexure-R/15). It was specified in the said confirmatory order dated 22-7-1989 that the petitioner would continue to be in detention for a period of twelve months from the date of his detention i.e. upto 4-6-1990. In present petition filed by him under Articles 226 and 227 of the Constitution, the petitioner has challenged his abovesaid detention under the provisions of the National Security Act on various grounds.

In our opinion, as the petition filed by the petitioner deserves to be allowed on a short point, it is not necessary to discuss and examine the other points raised by the petitioner in the same. It is clear from the documents produced in the case that the petitioner had been taken into custody on 5-6-1989. The grounds of detention were served on him by the District Magistrate, Sarguja on 6-6-1989. It is also clear from the documents produced in the case that in exercise of his right under sub-section (1) of section 8 of the National Security Act read with clause (5) of Article 22 of the Constitution, the petitioner made a representation to the authorities concerned of the State Government on 10-6-1989. Thereafter, in spite of several wireless messages sent by the authority concerned of the State Government to the District Magistrate, Sarguja, the latter did not send his comments to the said authority until 29-6-1989. The said comments were received by the authority concerned of the State Government on 3-7-1989. On the basis of the said comments, the representation made by the petitioner was rejected by the authority concerned of the State Government only on 4-7-1989. There is documentary evidence on record to indicate that the representation dated 10-6-1989 sent by the petitioner had been received by the authority concerned of the State Government prior to 16-6-1989. Thus, it took a long period of twenty one days for the State Government to dispose of the representation made by the petitioner under sub-section (1) of section 8 of the Act read with clause (5) of Article 22 of the Constitution. There was absolutely no explanation available in the case as to why in spite of repeated messages having been sent by the authority concerned of the State Government on different dates the District Magistrate, Sarguja did not furnish his comments to the said authority promptly.

It is settled law that the provisions of sub-section (1) of section 8 of the Act read with clause (5) of Article 22 of the Constitution confer a very valuable right to the detenu of being afforded the earliest opportunity of making a representation against his detention to the appropriate Government. Again, it is settled law that it is necessarily implied in the said valuable right that the representation, if any, so made by the detenu has to be disposed of expeditiously and with utmost promptitude by the appropriate Government. Any undue delay on the part of the appropriate Government in disposing of the representation has the effect of rendering the continued detention of the detenu under the relevant detention order illegal and invalid.

It is further settled law that the right under sub-section (1) of section 8 of the Act read with clause (5) of Article 22 of the Constitution has been guaranteed independent of the duration of the period of detention and irrespective of the existence or non-existence of an Advisory Board. The constitution of an Advisory Board for the purpose of reporting whether a person should or should not be detained for a period of more than three months is a very different thing from a right of consideration by the State Government whether a person should be detained even for a single day. The obligation of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the reference. It follows, therefore, that even if reference is to be made to the Advisory Board u/s 9 of the Act, the authority concerned is under legal obligation to dispose of the representation of the detenu expeditiously and with promptitude.

For the reasons stated above, as the continuous detention of the petitioner has become illegal and invalid on account of undue delay on the part of the authority concerned in disposing of the representation made .by him under sub-section (1) of section 8 of the Act read with clause (5) of Article 22 of the Constitution, the detention order dated 5-6-1989 (Annexure-R/1) passed by the District Magistrate, Sarguja against him has to be declared as inoperative and no longer enforceable. For the same reason, the confirmatory order dated 22-7-1989 (Annexure-R/15) passed by the State Government under sub-section (1) of section 12 of the Act has also to be declared as inoperative and no longer enforceable. The said orders are accordingly quashed and it is directed that the petitioner shall be released forthwith from his detention unless he is required to be detained in connection with any other matter.