Faqeer Mohammad (In Jail) vs Deputy Secretary, Home and Confidential Section and Others

Vishnu Sahai, J.—Through this writ petition, preferred under Article 226 of the Constitution of India, the Petitioner-detenu-Faqeer Mohammad impugns the order dated 24th October, 2002 passed by Mr. C. P. Singh, Deputy Secretary, Home and Confidential Affairs Department, State of Uttar Pradesh (opposite party No. 1) detaining him u/s 3(1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The detention order, along with the grounds of detention, which are also dated 24th October, 2002 was served on the Petitioner-detenu on 24th October, 2002 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 detaining authority to issue the impugned detention order against him, are contained in the grounds of detention (Annexure-2). Since in our view, a reference to them is not necessary for the adjudication of the pleadings contained in paragraph 12 and ground B of paragraph 16 thereof, we are not adverting to them.

Paragraph 12 of the Petitioner reads thus:

... That there is a delay of 22 days by the State Government and 79 days by the Union of India in disposing of the representation made by the Petitioner-detenu to them respectively and no reason has been spelt out therein for perusal by the Petitioner detenu....

Ground B of paragraph 16 reads thus:

... Because there is an extra-ordinary delay in disposal of the representations by the State Government as well as the Union of India....

The averments contained in paragraph 12 and ground B of para 16 thereof have been replied to in paragraphs 6 and 7 of the return of Mr. B. R. Sharma, under Secretary, Government of India.

Paragraph 6 reads thus:

....It is submitted that the representation dated nil addressed, inter alia, to the Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi was received in this office on 22.11.2002 through the Superintendent, District Jail, Barabanki vide endorsement dated 20.11.2002. Comments on the said representation were called for from the State Government of U.P. vide letter dated 26.11.2002.

Paragraph 7 reads thus:

... On receipt of comments from the sponsoring authority, i.e., District Magistrate, Barabanki the representation with the comments thereon was processed and submitted to the competent authority who considered the representation on behalf of the Central Government and rejected the same on 8.1.2003. Shri Fareeq Mohd. was informed of the rejection of his representation vide Memo dated 9.1.2003....

We have heard learned Counsel for the parties and perused the averments contained in paragraph 12 of the petition and ground B of para 16 thereof and those contained in paragraphs 6 and 7 of the return of Mr. B. R. Sharma. We make no bones in observing that we find merit in the pleadings contained in para 12 of the petition and ground B of para 16 thereof. It would become manifest from paragraphs 6 and 7 of the return of Mr. B. R. Sharma that the Petitioner-detenu''s representation was received in the Ministry of Finance, Department of Revenue, New Delhi in 22.11.2002 and comments from the State Government were called vide letter dated 26.11.2002 and on receipt of the comments from the sponsoring authority, i.e., District Magistrate, the representation was processed and submitted to the competent authority, who rejected the same on 8.1.2003.

In our view, in a most cavalier manner, Mr. B. R. Sharma has sought to explain the delay in the disposal of the representation. The date when comments were received from the sponsoring authority and the various dates on which the representation was processed by various authorities, have not been furnished in the return.

It should be borne in mind that implicit in the fundamental right of the Petitioner-detenu to make a representation at the earliest opportunity is the obligation on the authority to whom the representation is made to dispose of the same at the earliest opportunity. That is the rationale why the various dates on which the representation is processed by the various functionaries and the dates on which comments, etc. are received should be mentioned. Then alone would the Court be able to decide whether the representation has been disposed of at the earliest opportunity.

In the instant case, since the same has not been done, it cannot be said that the representation of the Petitioner-detenu has been decided by the Union of India at the earliest opportunity.

In this connection, we feel it pertinent to mention that because implicit in the fundamental right of the detenu to make a representation at the earliest opportunity is the obligation on the authority to whom the representation is made to dispose of the same at the earliest opportunity, the Supreme Court was prompted to hold in paragraph 3 of the oft-quoted case of Harish Pahwa Vs. State of U. P. and Others, , that a representation in a preventive detention matter has to be "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."

For the said reasons, we find merit in the pleadings contained in paragraph 12 of the petition and ground B of para 16 thereof and hold that the continued detention of the Petitioner-detenu Faqeer Mohammad is vitiated in law.

Since the continued detention of the Petitioner detenu Faqeer Mohammad is vitiated in law, we direct that the said Petitioner-detenu be released forthwith, unless wanted in some other case.