Barmeshwar Nath Singh @ (sic)iya Jee @ Barmeshwar Singh vs State of Bihar and Others

S.N. Jha and B.N.P. Singh, JJ.—The Petitioner has been detained under the National Security Act, 1980 (hereinafter referred to as ''the Act'') by the District Magistrate, Bhojpur, Ara vide order dated (sic).12.1997 in NSA Case No. 1 of 1997. The order was approved by the State Government on 31.12.1997 and in course (sic) time confirmed on 5.12.2002, communicated to the Petitioner on 11.12.2002. The Petitioner seeks quashing of these orders and his release.

The facts of the case relevant for disposal are as follows. The impugned order of detention along with the grounds was served on the Petitioner while he was in judicial custody in connection with Gandhi Maidan (Patna) Rs. Case No. 237 of 2002 at Adarsh Central Jail, Beur, Patna, on 11.10.2002. The Petitioner filed representation against detention on 3.12.2002. No order was passed thereon. Meanwhile, the detention was confirmed, as indicated above, on 5.12.2002.

Non-disposal of representation naturally was the first point argued by Shri Ram Suresh Roy, on behalf of the Petitioner. He submits that expeditious consideration of representation is a valuable right guaranteed to a detenu not only in relevant statute, in the instant case, National Security Act, but also in the Constitution of India under Article 22(5). Far from expeditiously considering the representation, the Government sat tight over the matter till date. It is relevant to mention here that the fact that the representation has not so far been considered by the Government is not in dispute. Though it has not been said so in the counter affidavit, from perusal of the file it appears that the authorities of the State Government seem to be under impression that once detention has been confirmed on receipt of favourable opinion from the Advisory Board, there is no necessity to decide the representation. Such an impression is wholly misconceived and contrary to the decision of Constitution Bench of the Supreme Court in K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, The right to have the representation considered is an independent right. It does not depend on the opinion of the Advisory Board. Reference to Advisory Board provides an additional safeguard to the detenu in the sense that negative opinion is binding on the Government, that is, in case the Advisory Board does not concur in the detention, the Government is obliged to release the detenu; however, an affirmative opinion, that is, concurrence is not binding. In other words, where Advisory Board has concurred in the detention, it is open to the State Government to release the detenu. This is evident from Sections 12 and 14 of the Act. Section 14 of the Act provides that "without prejudice to the provisions of Section 21 of the General Clause Act, 1897, a detention order may, at any time, be revoked or modified".

Learned Standing Counsel appearing for the State submitted that as the representation of the Petitioner has not been decided by the Government, direction may be issued to it to do so. We are afraid, we cannot give this latitude to the Government. If expeditious decision on representation is a constitutional right of a detenu, it would follow that any such liberty to the Government would amount to giving premium to its inaction and condoning a grave lapse on its part. There are decisions to the effect that in the absence of an adequate explanation even few days'' delay has been held to be fatal. In that view of the matter, we are unable to accede to the request of the learned Standing Counsel and permit the State Government to consider and decide the representation at this stage.

Though our above finding should be enough to strike down the detention of the Petitioner, we would like to notice other submissions made on his behalf. It was stated that the detention order was issued on 22.12.1997 but served after about five years while the detenu was in custody. It was submitted that the object of detention is to take immediate action to pre-empt the person concerned from doing something. Thus where the detention order is not served within reasonable time, the very object of detention is lost and in such a case the person cannot be detained. Reliance was placed in the case of P.U. Iqbal Vs. Union of India (UOI) and Others, and Hassan Ali Vs. The Union of India (UOI) and Others, In the former case, delay of one year in serving the detention order was held to be fatal.

It was also submitted that the detention order was passed by the District Magistrate in purported exercise of Section 3(3) of the National Security Act but there is no averment either in the impugned order or in the counter affidavit that he was authorised to pass any order of detention. Section 3(1) of the Act empowers the Central Government to make an order of detention. The detention order can also be passed by the State Government in circumstances mentioned in Section 3(2). u/s 3(3) the District Magistrate or Commissioner of Police can be empowered to exercise powers of the State Government where the State Government is satisfied that it is necessary to do so for a particular period not exceeding three months at the first instance. In the instant case, detention order was issued on 22.12.1997. The relevant averments in paragraph 10 of the counter affidavit refers to authorisation in 1999.

The above submissions, prima facie too appear to be well founded. However, it is not necessary to make an indepth examination in view of our conclusion on the first point regarding effect of non-consideration of representation.

In the facts and circumstances set out above, we have no manner of doubt that continuance of detention of the Petitioner cannot be said to be in accordance with law and he is entitled to be released, The impugned order of the District Magistrate, Bhojpur, Ara dated 22.12.1997 and the consequential order of the State Government dated 31.12.1997 and 5.12.2002 are accordingly quashed and the Petitioner is directed to be released forthwith, if not granted in any other case.

The writ petition is thus allowed.