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S.S. Parkar, J.—This Writ Petition challenges the order of detention dated 28th August, 1996 issued by the Commissioner of Police, Navi Mumbai for detention of the detenu by name Bhalchandar Bhalya Narayan Patil under the provisions of the National Security Act, 1980. The present petition is filed by the brother of the said detenu. The copy of the order of detention dated 28th August, 1996 is annexed as annexure 4 to the petition. On the same date respondent No. 1 Commissioner of Police i.e. the detaining authority passed another order directing that the detenu should be detained in Yerawada Central Prison, Pune. The copy of the said order is annexed as annexure B to the petition. Pursuant to the said order of detention, the detenu was detained on 28th August, 1996. At the time of his detention the detenu was served with the grounds of detention dated 28th August, 1996 copy of which is annexed as annexure C to the petition.
The aforesaid order of detention came to be passed in exercise of the powers conferred on the detaining authority by Sub-section (2) of Section 3 of the National Security Act, 1980. The said order was passed on the grounds which are mentioned in annexure C to the petition. It is alleged in the said grounds inter alia that the detenu was a desperate goonda on records of Uran Police Station and he along with his associates was indulging in violent and terrorising activities in or around the premises of Oil and Natural Gas Commission (for short O.N.G.C.) at Uran and had created a terror, fear and sense of insecurity amongst the contractors, businessmen and workers working in contracts in O.N.G.C. company. It is further alleged that the detenu had been involved in the offences such as robbery, murder, criminal intimidation, extortion etc. so much so that the members of the public did not dare to depose or give statements against him. The particulars of incidents in which the detenu was involved have been enumerated in para 3 of the grounds of detention, the details whereof are not necessary to be mentioned here.
The petition has been filed challenging the detention of the detenu on various grounds. One of the grounds taken in the said petition is in para 8(F) of the petition about the unexplained delay in considering the representation made by the detenu to respondent No. 4 i.e. Union of India. The said ground mentions that after the detention of the detenu a representation was made by the detenu which was forwarded to the Govt. of India, Ministry of Home Affairs, the Department of Internal Security on or about 7th October, 1996 and that it was necessary that the said representation was considered expeditiously and in case there was any indifference shown in dealing with the said representation the continued detention of the detenu was rendered bad in law. Apart from the affidavit in reply filed on 10th March, 1997 by respondent No. 1 detaining authority and the affidavit of 6th March, 1997 filed by M.D. Ambade, Desk Officer, Govt. of Maharashtra, Home Department (Special), Mantralaya, Mumbai on behalf of the State Government, a counter affidavit dated 6th March, 1997 has been filed on behalf of respondent No. 5 Union of India by one Ishwar Singh, Desk Officer in the Ministry of Home Affairs, Govt. of India; New Delhi.
Paras 6 to 8 of the said affidavit filed on behalf of the Union of India seeks to explain how the representation forwarded to the Central Government was dealt with by that Government. From the said affidavit, it appears that the representation of the detenu was received by the Central Government in the Ministry of Home Affairs on 10th October, 1996. The said representation was immediately processed for consideration and the further information required for considering the said representation was called for from the Commissioner of Police i.e. the detaining authority through the crash wireless message dated 14th October, 1996. The required information was received by the Central Government in the Ministry of Home Department on 4th November, 1996 vide the State Government''s message dated 2nd November, 1996. On receipt of the said information the papers were put up before the Deputy Secretary, Ministry of Home Affairs on 4th November, 1996 who after perusal thereof put up the papers before the Joint Secretary, Ministry of Home Affairs on 5th November, 1996 along with his own comments. The Joint Secretary considered the case and along with his comments put up the matter before the Special Secretary, Ministry of Home Affairs on 6th November, 1996. The Special Secretary after considering the matter in turn put up the papers before Home Minister, Govt. of India on the same day.
Para 8 of the affidavit of the Desk Officer seeks to explain the further developments in the matter with regard to the representation of the detenu which reads as under:
The case was returned by Home Minister on 13.12.96. He desired re-examination of the case. The case was re-examined by the concerned Deputy Secretary and it was resubmitted to the concerned Joint Secretary on 30.12.96. The Joint Secretary put it up to the Special Secretary on 31.12.96. The Special Secretary considered the case and put it up to the Union Home Minister on 9.1.97, The Home Minister returned the case again and the Special Secretary placed it before the Minister of State for Home on 14.2.97. The Minister of State for Home Affairs himself duly considered the case of the detenu and rejected the representation of the detenu on 14.2.97. The delay was on account of the Home Minister reviewing the matter relating to NSA cases and deciding to delegate the work to Minister of State for Home.
From what has been stated in the aforesaid para 8 of the affidavit, it is quite clear that no explanation at all has been given as to why the Home Minister took time to consider the matter between 6th November, 1996 when the papers were placed before him and the case file was returned by Home Minister again to the Special Secretary on 13.12.1996 for examination. The affidavit does not explain the delay of 17 days at the level of Deputy Secretary between 13.12.96 and 30.12.96 nor the time taken by Special Secretary between 31.12.96 and 9.1.97 to place the case again before Home Minister and delay of more than one month occurring at the level of Home Minister between 9.1.97 and 14.2.97 when the case was put up before the Minister for State of Home Department on 14th February, 1997 on which day the Minister of State for Home Affairs considered the case and rejected the representation of the detenu. It is stated in the affidavit of the Desk Officer of the Govt. of India, Ministry of Home Affairs that delay was on account of Home Minister reviewing the matter relating to National Security Act cases and deciding to delegate the work to the Minister of State for Home. The affidavit filed by the Desk Officer, however, does not explain the delay occurring at different levels as stated above.
Article 22(5) of the Constitution of India provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Similarly Section 8 of the National Security Act, 1980 lays down that when the person is detained the authority making the order shall, as soon may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. It is in order to effectively comply with this constitutional mandate, that the concerned authorities are obligated to consider the representation of the detenu without inordinate delay. Section 14 of the National Security Act empowers the Central Government to either revoke or modify the order passed under the provisions of National Security Act notwithstanding the fact that the order has been made by the State Government or by the Central Government. Although the impugned order was passed initially by the Commissioner of Police, but the same is subject to the approval of the State Government. The order of detention is, therefore, deemed to have been made by the State Government i.e. in this case by respondent No. 2.
Shri Chitnis, the learned Counsel appearing on behalf of the petitioner, cited before us the judgment of the Supreme Court in Mohinuddin alias Moin Master Vs. District Magistrate, Beed and Others, . In the said case the detention order was passed under the provisions of the National Security Act against which the detenu had made a representation. The detenu had made representation amongst others to the Chief Minister and the Advisory Board. Although the Advisory Board considered the representation and forwarded its report immediately, there was delay on the part of the State Government to consider the representation made by the detenu to the Chief Minister. The affidavit was filed on behalf of the State Government stating that the Chief Minister was away from capital and busy with other political affairs at the relevant time and, therefore, representation could not be considered by the Chief Minister immediately. The Supreme Court holding that the State had acted in cavalier fashion in dealing with the detenu''s representation addressed to the Chief Minister and that there was a failure on the part of the Government to discharge its obligation under Article 22(5) of the Constitution, set aside the order of detention on the ground that there was failure to explain the delay in considering the representation of the detenu.
In this case as we have pointed out earlier, the affidavit filed by the Desk Officer on behalf of the Union of India is silent as to why the Home Minister took 36 days time between 6th November, 1996 and 13th December, 1996 to consider the representation of the detenu and 17 days delay between 13th December, 1996 and 30th December, 1996 by the Deputy Secretary, so also time of 9 days taken by Special Secretary between 31.12.96 and 9.1.97 and again by Home Minister between 9.1.97 and 14.2.97. This is a case where the explanation is not at all given for the inordinate delay during the aforesaid period at different levels. In view of the failure on the part of the Central Government to offer any explanation for the aforesaid inordinate delay in considering the representation of the detenu, the order of detention is liable to be set aside.
In view of the above, there is no need to consider the other grounds taken in the petition for challenging the impugned order of detention.
Hence the rule is made absolute in terms of prayers (a) and (c) of the petition and the detention and continued detention of the detenu namely Bhalchandar @ Bhalya Narayan Patil is quashed and set aside. The detenu shall be set at liberty forthwith unless required in connection with any other case.