Domar Sahni vs State of Bihar and Others

S.N. Jha, J.—The petitioner has been detained in preventive custody u/s 12(2) of the Bihar Control of Crimes Act, 1981 by the District Magistrate, Darbhanga vide him Memo No. 4564 dated 21.10.2001. The detention has been approved and later confirmed for a period of one year upto 20.10.2001 under Sections 21(3) and 21(1) read with 22 of the Act by the State Government vide Memo No. 10573 dated 31.10.2001 and Memo No. 11973 dated 13.12.2001 respectively. The petitioner seeks quashing of the said orders, copies whereof have been enclosed as Annexure 2, 4 and 1 respectively to the writ petition.

The short factors of the case so far as relevant for disposal of the case are that after service of order of detention on 23.10.2001 the ground of detention was served on the petitioner. The petitioner filed representation against his detention on 9.11.2001 which was rejected on 10.12.2001. Rejection was communicated on 13.12.2001.

The solitary point urged on behalf of the petitioner is that there has been inordinate delay in disposal of the representation. According to the Counsel the representation was kept pending till receipt of the opinion of the Advisory Board which was not justified. It has been contended that the detenu is entitled to have his representation considered independently irrespective of the opinion of the Advisory Board and, therefore, the respondents committed error in delaying the disposal of the representation pending receipt of the opinion of the Advisory Board. Reliance has been placed on Moosa Husein Sanghar Vs. State of Gujarat and others, and Union of India and Others Vs. Manish Bahal @ Nishu,

On the other hand, on behalf of the respondents it-has been submitted that in terms of Section 19 of the Act the representation of the detenu, if any, is required to be sent to the Advisory Board. In the instant case, while the reference was pending with the Advisory (sent on 9.11.2001), on 13.11.2001 the representation of the petitioner dated 9.11.2001 was received. On 15.11.2001 the opinion of the detaining authority was also received. Since the Advisory Board was in seisin of the matter and the papers had been sent to it, the representation of the petitioner along with comments was also sent. On 6.12.2001 the Advisory Board sent its opinion where after the matter was considered and within four days representation was rejected which was communicated to the petitioner on 13.12.2001. Reliance is placed on K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others,

Section 17 of the Act provides that when a person is detained in pursuance of a detention order, the detaining authority shall "as soon as may be", but ordinarily not later than five days and in exception circumstances and for reasons to be recorded in writing, hot later than ten days from the date of Retention, communicate to him the grounds on which the order has been made affording him the "earliest opportunity" of making a representation against the order to the State Govemment Clause (5) of Rule 22 of the Constitution also lays down that when any person is detained in pursuance of any order under any law providing for preventive detention, the authority making the order shall, "as soon as may be", communicate to such person the grounds at which the order has been made and shall afford him the "earliest opportunity" of making representation against the order.

There is unanimity of opinion that though Article 22(5) of the Constitution (or, for that matter, Section 17 of the Bihar Control of Crimes Act) does not provide for any period within which the representation of the detenu is to be disposed of, the words "as soon as may be" mandate the authority to dispose of the representation without any delay. This is a Constitutional right which cannot be denied. However, the question of delay, if any, cannot be considered in strait jacket formulae. Whether there has been delay or not is to be considered in the facts of the case. And, further, it is open to the authority to explain the delay, if any. Thus, while a longer delay in terms of days may be explained, a shorter unexplained delay may vitiate the detention.

In K.M. Abdulla Kunhi v. Union of India (supra) while considering the question of delay on account of reference to Advisory Board a Constitution Bench of the Apex Court observed in paragraph 1 of the judgment (at page 483 of the report) as under:

The obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government''s obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in Clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention. The consideration by the Board is an additional safeguard and not a substituted for consideration of the representation by the Government. The right to have the representation considered by the Government, is safeguarded by Clause (5) of Article 22 and it is independent of the consideration of the detenu''s case and his representation by the Advisory Board under Clause (4) of Article 22 read with Section 8(c) of the Act.

However, in paragraph 16 at page 486 of the report, the Apex Court also observed:

The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of the report of the Advisory Board.

(emphasis added)

It was on the strength of these observations at page 486 of the report (supra) that it has been contended on behalf of the respondents that during pendency of the reference before the Advisory Board which was in seisin of the matter and in custody of the papers, the representation could not be disposed of. The observations would seem to support the respondents'' contention on all fours. In fairness to the petitioner, however, I must notice the facts of the case and the principles laid down in the decisions relied upon by the Counsel.

In Moosa Husein Sanghar Vs. State of Gujarat and others, the detenu had filed representation straight to the Advisory Board against his detention of 15.3.1991. On 25.3.1991 the matter was referred for consideration to the Advisory Board. On 30.3.1991 the detenu again sent his representation addressed to the Advisory Board of Gujarat at Ahmedabad but the same was erroneously sent to the Advisory Board in the High Court at Delhi. The xerox copies of the representation were later sent to the Chairman of the Advisory Board at Ahmedabad and the same was placed before the Board on 30.4.1991. The Advisory Board sent its opinion to the State Government on 6.5.1991. After considering the said report of the Advisory Board the State Government confirmed the order of detention on 13.5.1991 and on the same day by separate order also rejected the representation. It thus took about two months time to dispose of the representation. An argument was same on behalf of the State to the effect that as the representation dated 15.3.91 was addressed to the Advisory Board and not to the State. Government the government was not bound to consider the representation. Rejecting the contention the Supreme Court observed that merely because the representation was addressed to the Advisory Board and not to the State Government it did not absolve the State Government from the constitutional obligation flowing from Article 22(5) to consider the representation. The Court further observed that where the representation has been received before the case is referred to the Advisory Board, the appropriate Government must consider the same before the matter is referred to the Advisory Board and it would be justified in not considering the same only if there is no reasonable time to consider and dispose of the representation before the case is referred to the Advisory Board and in such case, the representation may be forwarded to the Advisory Board along with the case of the detenu. There is nothing in the decision to lend any help to the petitioner''s case.

In Kamar Raja v. The State of Bihar and Ors. 2001 (1) PCCR 197 (HC) (supra) the detenu submitted his representation against detention on 3.7.2000 but no order was passed until 29.8.2000 i.e. for 59 days. This Court noticed that on receipt of the representation comments were asked from the detaining authority which was sent only on 5.8.2000 i.e. after a month. However, no order was passed on the representation as the meeting of the Advisory Board was fixed for 8.8.2000. The representation remained pending, apparently, even after receipt of the opinion of the Advisory Board till 28.8.2000. On these facts this Court set aside the detention on the ground of inordinate delay in disposal of the representation as being violative of Article 22(5) of the Constitution. The decision, it would appear, was decided on its own facts and lends no support to the petitioner''s case.

In Union of India v. Manish Bahal (supra) the respondent had filed his representation addressed to the Advisory Board on 4.6.1999. The Advisory Board submitted its report on 10.6.1999 stating that there was sufficient cause for detention. After receipt of the opinion on 11.6.1999 the Lt. Governor of Delhi, on consideration of the opinion along with other materials placed on record, confirmed the detention on 21.6.1999 and by separate order on the same day also rejected the representation. The Delhi High Court quashed the detention on the ground that the Lt. Governor had rejected the representation taking into consideration the representation of the Advisory Board and, as such, there was no independent consideration of the representation. Setting aside the order of the High Court, the Supreme Court observed that it was not possible to accept the extreme view taken by the High Court. Merely because the report of the Advisory Board was placed before the detaining authority along with other papers for disposal of the representation made by the detenu, it could not be said that there was no independent consideration of the same by the authority. The Court observed that in the scheme of things under the Act (National Security Act in that case), the report of the Advisory Board is a relevant material. The issue involved in that case, it would appear, was entirely different and the decision, therefore, can be of no assistance to the petitioner.

In fairness to the petitioner I may notice the case of Navalshankar Ishwarlal Dave and another Vs. State of Gujarat and others, which would same to support his case. In that case the representation had been received by the State Government on 20.2.1993. However, the Government decide to keep it "pending" awaiting the opinion of the Board and on receipt of the representation on 23.3.1993, considered the case and rejected the representation on the same day i.e. 23.3.1993. The Court observed that the action of the State Government in keeping the representation without being considered awaiting the decision of the Board till 23.3.1993 and the resultant rejection thereafter was illegal. It may, however, be stated with most respect that though reference was made to the decision in the case of K.M. Abdull Kunhi (supra), the observations in paragraph 16 of the judgment thereof, quoted above were not noticed wherein the Court had observed in no uncertain terms that whether the representation is received before the case is referred to the Advisory Board or afterwards, "in both the situations there is no question of consideration of the representation before the receipt of the report of the Advisory Board".

Counsel for the parties fairly stated that though the decision in K.M. Abdulla Kunhi''s case has been noticed in most of the subsequent cases to buttress the need of expeditious and independent consideration of the representation, the aforequoted observations in paragraph 16 of the judgment have not been diluted, and possibly could not be inasmuch as the decision was rendered by a Constitution Bench, in view of the law laid down by the Constitution Bench of the Apex Court laying the manner of consideration and disposal of the representation in the context of the reference of the matter to the Advisory Board, it cannot be said that the delay in disposal of the representation in the present case is without any explanation. If thus the matter remained pending on account of pendency of the reference before the Advisory Board which was in seisin of the papers, the representation having been received later, it cannot be said that there was inordinate delay disposal of the representation. I am, therefore, unable to accept the contention of the petitioner.

The only contention raised on behalf of the petitioner having thus been rejected, the writ petition must fail and the same is accordingly dismissed.

Rajendra Prasad, J.

I agree.