Budha Singh vs State of Punjab and anr.

S.D. Bajaj, J.

Criminal Writ Petition No. 1517 of 1998 has been filed by Budha Singh detenu for quashing the detention order Annexure P1 bearing No. 5775 dated June 7, 1988. It is alleged therein that in connection with First Information Report No. 21 registered in Police Station Valtoha district Amritsar under Sections 411/414 of the Indian Penal Code, section 95 of the Arms Act and section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on February 29, 1988 the petitioner was arrested on May 27, 1988, that while the petitioner was still in custody, detention JUDGMENT Annexure P1 was served upon him on June 7, 1988. According to the petitioner, the detention order was passed by the detaining authority without its subjective satisfaction in a mechanical manner without application of mind, that the representation filed by the petitioner against his detention having not been decided as yet, there is an obvious violation of Article 22 of the Constitution of India and that the detention is bad because provisions of section 3(5) of the National Security Act have not been compiled with.

In reply filed on September 16. 1988 respondent No. 1 asserted that the representation filed petitioner on July 77, 1988 was declined by it on August 17, 1988 and the petitioner was apprised of it on the same date, that Article 22 of the Constitution as also section 3(5) of the National Security Act have not been violated and that the impugned detention order was passed by the detaining authority on its subjective satisfaction.

I have heard Shri A. S. Sandhu, Advocate, for the petitioner, Shri S.S. Saraon, A.A.G. Punjab and have carefully gone through the pleadings of both the parties.

In para 3 of the detention order the detaining authority observed, "That this order has been passed by me being conscious of the fact that Sh. Budha Singh is already in judicial custody in the cases registered against him. Budha Singh is taking steps to get himself released front the custody and there is every likelihood of his being set at liberty, and in that event he is likely to indulge in prejudicial activities in view of his prima facie propensity towards such activities and thus there is compelling necessity to pass the detention order against him though he is in judicial custody at Present. "Detenu admittedly did not take any steps to get himself released from the custody and, therefore, had the detaining authority been apprised of it, may have not passed the detention order Annexure P1. There was thus want of application of mind by the detaining authority on this score. JUDGMENT Annexure P1 thus falls through on this score.

Again there has been an inordinate delay of one month and ten days from July 7, 1988 to August 17, 1988 which was looked upon with disfavor by the Supreme Court in Saleh Mohammed v. Union of India, 1980(4) S.C.C. 428 as follows :

"Times out of number, this court has emphasised that where the liberty of an individual is curtailed under a law of preventive detention, the representation, if any, made by him must be attended to, dealt with and considered with watchful care and reasonable promptitude lest the safeguards provided in Article 22(5) of the Constitution and the statute concerned should be stultified and rendered meaningless.

In Harish Pahwa v. State of U.P. and others, 1981(3) SCR 276 it was observed by the Supreme Court that it does not look with equanimity upon delays in considering the representations of detenus. Where the liberty of a person is involved, it is the duty of the State to determine his representation with the utmost expedition and deal with it continuously until a final decision is taken and communicated to the detenu. In that case the representation of the detenu was received by the State Government on 4th June, 1980. The detention was under COFEPOSA. Comments were called for from the Custom authorities on 6th June. 1980 and the comments were received on 13th June, 1980. On 17th June, 1980 the Government referred the representation to its Law Department for its opinion which was furnished on 19th June, 1980. The representation was rejected on 24th June, 1980. The rejection was communicated to the jail authorities two days later. The writ petition filed by the petitioner was dismissed by the High Court. The aforesaid principles were reiterated by the Court on an appeal preferred by the detenu against the decision of the High Court. It was held in that case that there was no explanation given by the Government as to why no action was taken on the representation of the detenu on 4th, 5th and 25th June, 1980 and what consideration was given by the Government on it from 13th June, 1980 to l6th June, 1980. On that ground it was held that there was inordinate delay in considering the representation of the detenu and the detention became bad in law. In the light of these decisions in the present case it must be held that the delay in dealing with the representation of the petitioner, which was admittedly received by the Government on 14th January, 1987 and rejected as late as on 26th February, 1987, must be considered as inordinate delay in dealing with the representation. No explanation is given in the counter affidavit as to why the representation could not have been dealt with and disposed of earlier, and hence it must be held that the order of detention of the petitioner is vitiated by reason of delay in dealing with his representation. Inaction on the part of the respondents for an inordinately long period of 1 month and 10 days also invalidates the detention order Annexure P 1.

Report regarding detention of the petitioner on June 7, 1988 having been forwarded to the Under Secretary to Government of India, Ministry of Home Affairs, on June 17, 1988, before the expiry of 15 days period set out in subsection (5) of section 3 of the National Security Act, the petitioner can possibly have no grouse against the respondents on this score.

For the reasons given above, Criminal Writ Petition succeeds and allowed. Detention order Annexure P1 is quashed. Detenu Budha Singh would be freed immediately if not required in any other case.

Revision allowed.