Kalam (Baba Kalam) vs State of Rajasthan

S.S. Byas, J.—In this petition for a writ of Habeas Corpus under Article 226 of the Constitution, the petitioner challenges has detention made u/s 3 of the National Security Act, 1980 (here in after to be referred to as the ''Act'' or ''NSA'').

As per averments of the petitioner, he is a citizen of India and resides in Kota. On 5-12-88, he was arrested and lodged in District Jail, Kota u/s 3(2) of the Act by the District Magistrate Kota by his order dated 6-12-1911 (Ex. P. 1) in exercise of the powers conferred on him under Sub-section (3) of the Section 3 of the Act. The grounds of detention contained in Ex. R. 1 were served on him on 1-12-1988 along with the letter Ex R. 2 issued by the District Magistrate, Kota. He submitted representations to the State. His matter was also placed before the Advisory Board. The Advisory Board held that there was sufficient cause for his detention under the NSA. His representation were rejected. The period of one year was fixed as the period of his detention by the State Government. He submitted representation on 9-3-1989 to the Central Government to reconsider his order of detention. No action has been taken on this representation up to she filing of the petition. The detention is challenged on two counts, namely:

(i) The non-consideration of his representation submitted by him on 9-3-1989 to the Central Government till now vitiates his detention, and

(ii) The grounds of detention furnished to in Ex. Rule 1 do not made out a case the he was acting in any manner prejudicial to the maintenance of public order and, as such, his detention and become necessary.

In the return filed by the respondents, the detention of the petitioner under the Act was admitted and it was stated that his detention had become necessary so as to prevent him from action in any manner prejudicial to the maintenance of public order. It was further stated that the representation of the petitioner was received on 30-1-1989 by the Central Government though the State Government It was considered and rejected on 10-2-1989. It was denied that the petitioner submitted any representation on 9-3-89. It was stated that no such representation was received by the Central Government and, as such, no question for the reconsideration of the detention order or revoking the same arose.

We have heard the learned Counsel for the petitioner, the learned Additional Advocate General and the standing counsel for the Central Government.

Eloberating the first contention, it was argued by Mr. Gupta that the petitioner sent his representation to the President of India on 9-3-1989 from the District Jail, Kota by Regd. post/A D. His representation was received in the office of the President on 20-3-1989 vide receipt Ex 7. This representation has not been considered till now and that vitiates the petitioners detention. It was on the other hand contended by the learned Additional Advocate General and Mr. Chaudhary that no representation was made by the petitioner on 9-3-1989 nor was any received by the respondents. Inter alia it was contended that once the representation of the petitioner was considered and rejected and rejected on 10-2-1989 by the Central Government. The second representation even if taken to have been submitted by the petitioner is not maintainable in the law. The failure by the Central Government in not giving consideration to the second representation of the petitioner does not make the detention illegal. We have taken the respective submissions in to consideration.

Two questions aries for our deliberation and decision. The first is whether the petitioner made any representation on 9-3-1989 ? It is a question of fact whether any such representation was made or not the petitioner has submitted the postal receipt Ex. 7 which shows that he sent his representation to the president of India and it was received in the office of the President of India on 20-3-1989. The petitioner has filed Ex 3, which is the copy of the representation he addressed to the President of India. In view of the postal receipt Ex. 7, it can be safely said that the petitioner addressed the representation to the President of India, sent it by Regd. post/A.P. and the same was received in the office of the President of India on 20-3-1989. We can also safely assume that the President of India must have sent this representation to the Home Ministry of Central Government for consideration and disposal, We, therefore, find no substance in the contention of Mr. Chaudhary that no representation made by the petitioner on 9-3-1989 was received by the Central Government.

The Next pertinent question is whether the second representation made by the detenu before the Central Government for the revocation of the detention order is or is not maintainable the contention or Mr. Gupta is that none of the provisions of the NSA creates a bar for the detenu to make the second representation for the revocation of the detention on order. Reliance in support of the contention was placed on Ram Bali Rajbhar Vs. The State of West Bengal and Others,

We have carafully gone through this judgment of the Apex Court of India and find that is fully supports the submissions made by Mr. Gupta.

In para 12 of the judgment their Lordships of the Supreme Court observed as under in Ram Ball Rajbhar''s case:

It will be a reasonable and judicious exercise of the power u/s 14 to refer a case once again to the Advisory Board for its opinion before a subsequent representation made on fresh materials by a detenu is rejected. It is true that the express and mandatory duty to refer arises only under the conditions laid down by Section 10 and there is no specific or separate provision for calling for the opinion of the Advisory Board form time to time. But the power u/s 14 of the Act, read with Section 21 of the Central Clauses Act. Which is specifically mentioned in Section 14 of the Act, could impott or imply a power of the State Government to refer a second representation likewise to the Advisory Board, if the State Government so decide in and analogous situation. And, the Advisory Board can then adopt such parts of the procedure laid down in Section 11 as could be applied to a second representation. In such a case. The reference would not be u/s 10 but u/s 14 of the Act read with the necessary implication of preserving the power of the Government to act as laid down in Section 21 of the General Clauses Act. In other word, subsequent reference would result from a necessarily implied power of the Government, to act, so far as possible, in a like manner to the one it had to adopt in confirming or revoking the initial detention order u/s 12.

Mr. Chaudhary strived hard to impress on us that the second representation based on the same ground taken in the earlier representation is of no use because the grounds taken earlier by the detenu already have been considered and rejected. As such, even if the second representations was made by the detenu, it required no consideration. The contention of Mr. Chaudhary is totally ineffective and barred.

We have gone through the scheme of the NSA and find nothing therein to prevent the petitioner form making the second or subsequent representation. We are quite conscious that if the grounds taken in the second or subsequent representation are the same which the detenu had already taken in his earlier representation. It will be of no help to him because grounds already considered and rejected cannot be reconsidered. A necessary corrolory flows from this that if the second or subsequent representation on made on additional or fresh grounds such additional and fresh grounds should be taken into consideration and a proper order should be passed thereon. The only authority to decide the question whether the second or subsequent representation by the detenu is based on the same grounds taken earlier by him is the Central Government and that can be done only after the second or subsequent representation is taken into consideration. Unless the Central Government addressed it self to the second or subsequent representation of the detenu, how can it be said as to whether the grounds taken in it are the same taken earlier or are fresh and additional. Whether or nor the Central Government revokes the detention is a matter of discretion. But this discretion is coupled with a duty. The duty is to consider the second or subsequent representation and there after pass a proper order. The second or subsequent representation may be dismissed on the ground that it does not disclose fresh and additional grounds. But the consideration of the second representation is a must. It the second or subsequent representation has been considered, it in itself is sufficient to vitiate the detention and render it illegal.

Since we are allowing the petition on ground No. 1, we need not touch the second ground relating to the question as to whether the activities attributed to the petitioner are such as dusturb the current life and even tempo of the society and on account of which the detention of the petitioner was found necessary with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.

In the result, we allow the Habeas Corpus Petition and direct the respondents to forth with release the petitioner Kalam alias Baba Kalam, if not wanted in any other case.