Laiq Abbas vs District Magistrate,Lucknow & Ors.

S.H.A. Raza, J.—The District Magistrate, Lucknow, on 731998, passed an order of detention of the petitioner under National Security Act (hereinafter referred to as the Act''). The said order was served upon the detenu on 831998 alongwith the grounds of detention while he was already in jail. The District Magistrate, Lucknow, sent the papers to the State Government for approval under Section 3(4) of the Act vide his letter dated 831998 itself which was received by the Government on 931998. The Stale

Government, after the receipt of papers far approval examined the same and approved the detention of the petitioner under Section 3(4) of the said Act on 1231998, within a period of 12 days from the date of detention order. The Government made a reference, under Section 3(5) of the Act to the Government of India on 1631998 which was received on 1831998. The State Govt. also made a reference, as provided under Section 10 of the Act, to the Advisory Board on 1631998.

The petitioner referred a representation on 3031998 which was received by the State Government vide District Magistrate''s letter 441998 alongwith the comment. The State Government sent copies of the representation alongwith comments to the Advisory Board on 641998. The representation of the petitioner alongwith comments was also sent to the Secretary, Government of India, Ministry of Home Affairs,New Delhi, on 641998.

The representation of the petitioner was finally rejected by the Stale Government on 841998 and an intimation of rejection was communicated to the detenu through the District Magistrate on 1541998. The Advisory Board was also informed of the rejection of the representation of the petitioner detenu on 1541998. The petitioner was heard by the Advisory Board on 741998. The report of the Advisory Board under Section 11 of the Act was received by the State Government on 2041998 vide Additional Registrar''s letter dated 1841998. After the report of the Advisory Board was received by the Stale Government, the case of the petitioner was considered in detail and the same was submitted for orders on 2141998 and the Stale Government confirmed the detention of the petitioner under Section 12(1) of the Act on 2441998. The order of confirmation was issued on 27 41998 by the State Government which was served on the petitionerdetenu on 851998.

A report, as envisaged under Section 3(5) of the Act, about the detention of the petitioner was made by the Government of Uttar Pradesh to the Central Government, Ministry of Home Affairs, New Delhi, vide letter dated 1631998 which was received in the Ministry of Home Affairs on 1831998 and it was immediately attended to. The Central Government completed examination of the report on 2331998. The concerned Deputy Secretary, authorized to Act under Sections 3(5) and 14 of the Act, examined the said report and decided on 2331998 that there was no necessity, to interfere with the order of the Government of Uttar Pradesh and therefore there was no reason to revoke the order of detention.

The representation dated 3031998 from the petitioner was received by the Central Government, Ministry of Home Affairs, on 1741998 through the Government of Uttar Pradesh. This representation was immediately processed for consideration and it was found that certain vital information (opinion of the Advisory Board) required for its further consideration was needed and the same was sought for through crash wireless message dated 2141998.

The said information was received in the Ministry of Home Affairs of the Central Government on 2341998 vide State Government''s wireless message dated 2241998. On receiving the said information, on 2341998 the case of the detenu was put up before the Deputy Secretary, Ministry of Home Affairs in the Central Government on 2741998 who after carefully considering the same, with his comments, put up the same before the Joint Secretary on 2841998. The Joint Secretary considered the case with comments and put up the same before the Home Minister, Government of India, on 2841998 who himself duly considered the case of the detenu and rejected the representation of the petitionerdetenu on 1351998.

According to the counteraffidavit filed by the Central Government, representation from the detenu alongwith all required information became effectively available to the Central Government, Ministry of Home Affairs, for consideration only on 2341998. The final decision of rejection of the said representation was taken by the Ministry of Home Affairs within 11 days (excluding 25th, 26th April, 1998, 2nd, 3rd, 7th, 9th, 10th and llth March, 1998 were holidays) of its effectively becoming available for consideration.

The detenu was informed of the decision of the Central Government through the quickest mode of communication available, i.e. crash wireless message, on 1551998 through the Home Secretary, Government of Uttar Pradesh and the Superintendent, District Jail, Lucknow. The message was followed by a letter. According to the counteraffidavit filed by the Central Government the case of the detenu was considered most expeditiously by the Central Government and the detenu was informed of the decision of the Central Government immediately. There was no delay at any stage on the part of the Central Government in consideration of the representation of the detenu and in communicating the final decision taken thereon to the detenu.

First of all we have to examine as to whether there was any delay in disposal of the representation made by the petitioner and if so what would be its effect.

In Kundabhai Dulabhai Shaikh v. District Magistrate Ahmedabad & Ors., 1996 Supreme Court Cases (Cri) 470, it was observed by Hon''ble Supreme Court that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the Court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of detention, and in that situation, continued detention would become bad. It was further provided that in spite of the law laid down by the Supreme Court repeatedly over the post three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the Secretariat for various reasons including redtapism the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The Government and its officers will not give up their habits of maintaining a consistent attitude of lethargy. So also, the Supreme Court will not hesitate in quashing the order of detention to restore the "liberty and freedom" to the person whose detention is allowed to become bad by the Government itself on account of his representation not being disposed of at the earliest.

In the aforesaid case the representation dated 1741995 was received in the office of the Chief Minister on 2581995 and it was ultimately disposed of on 1291995 i.e, within 17 days (after excluding 2581995 and 1291995) and the order was communicated to the detenu on 1491995. During that period of file was being processed in the Government Departments and the delay was caused because the representation was placed in queue and was not given precedence over other representations, which according to the counteraffidavit related to detention order. Similarly the representation dated 291995 which was made to the Central Government could not be disposed of for want to comments from the State Government. The representation was lying with the Slate Government from 291995 to 2791995 and it was on that date that it was sent to the Central Government which was received on 4101995. The Central Government, in spite of telegram and reminders, was not furnished with the comments by the State Government for over a month. The comments of the State Government it were received by the Central Government on 6111995 and the representation was disposed of on 8111995. Considering the aforesaid facts Hon''ble Supreme Court remarked that it was a glaring example of the lethargy on the part of the State Government, as a result of which petitioner''s representation could not be disposed of expeditiously by the Central Government with the obvious consequence that the petitioner''s right under Article 22(5) of the Constitution read with Section 8 of the Act was violated. The detention order was quashed by the Hon''ble Supreme Court.

In Mrs. Venmathi Solva v. State of Tamil Nadu and another, 1998 (5) Supreme 165, Hon''ble Supreme Court held as under:

"The State Government was required to explain how it dealt with the representation between 15101997 and 10111997. Except stating that it called for the remarks of the detaining authority on 17101997, the Government has failed to explain why it had become necessary for it to call for the remarks of the detaining authority. Even after an opportunity was given by this Court on 1251998 to the respondents to file a counteraffidavit dealing with the contentions raised in the S.L.P. the Government has failed to file any counter and explain why it had called for the remarks of the detaining authority and what was the reason for not taking up for consideration the representation of the detenu from 21101997 till 10101997, Though the delay is not long it has remained unexplained. Though the delay by itself is not fat.il the delay which remains unexplained becomes unreasonable. In spite of this well settled legal position the State Government has failed to explain satisfactorily thai it had dealt with the representation of the detenu as promptly as possible. It appears that oblivious of the correct legal position and its obligations in matters of preventive detention it has dealt with the representation of the detenu in a routine manner. This indifference of the Government is the cause for rendering the continued detention of the detenu illegal."

In Mahendra and Babua Dashrath v. Satish Sahney & Ors., 1997 (1) E.F.R. 70, the specific grievance which was raised by the detenu before Bombay High Court was that the representation remained pending with the Deputy Chief Minister from 2381995 till 991995 without any action. The Court ordered the release of the detenu.

In Ashok Kumar Mautya v. State of UP., (Writ Petition No. 564 (HC) of 1997, 1998 LCrR252:1998 JIC1037 (All) (LB), a Division Bench of this Court expressed the view that delay in disposal of the petitioner''s representation by the Central Government was fatal. The representation remained pending before the Home Ministry for long which entitled the petitioner to be released in view of the provisions contained in Article 22 of the Constitution of India read with Section 8of the Act.

In Mohinuddin v. District Magistrate, Seed & Ors., AIR 1987 SC 1977, there was delay in disposal of the representation, which remained unexplained on the part of the State Government, because the file rusted with the Chief Minister who remained away from the Capital and was busy with other political affairs.

In the aforesaid case there were two representations made by the appellantdetenu, one to the Chief Minister on 2291986 and the other to the Advisory Board on 6101986. The Chief Minister decided the representation on 17111986.

Hon''hle Supreme Court observed that the fact that Article 22(5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such representation must, when made, be considered and disposed of as expeditiously as possible, otherwise, it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning, and as there was failure on the part of the State Government to consider the representation addressed to the Chief Minister without waiting for the opinion of the Advisory Board, renders the continued detention of the appellant invalid and constitutionally impermissible.

There is no dearth of cases indicating that the representation preferred by the detenu against detention should be disposed of expeditiously and the delay, if any, should be properly explained and in absence of any cogent explanation the detention would be vitiated. In the instant case, as stated above, representation dated 30th March, 1998 was received by the Central Government in the Ministry of Home Affairs on 1741998. A wireless message was sent after a lapse of four days to the State Government,/.e.on2141998 requiring certain vital information''s. Although the information was received by the Ministry of Home Affairs on 23 41998 from the State Government but the file was put up before the Deputy Secretary on 2741998 who put up the same before the Joint Secretary in the Ministry of Home Affairs with his comments on 284 1998 and the Joint Secretary put the file before the Home Minister, Government of India on 2841998 itself. The Home Minister rejected the representation of the detenu on 1351998, LC. after a lapse of 15 days. No explanation has come forward as to why the Home Minister could not pass orders on the representation of the petitioner within fifteen days. Even if the holidays are excluded, there is no reason as to why the representation remained pending before the Minister, Home Affairs for eleven days. In a matter like this where the liberty of a person is involved it is incumbent upon the authorities to explain the delay in disposal of the representation. In the present case the delay remained unexplained, hence, we are of the view that there was inordinate delay in disposal of the representation of the petitioner, dated 3031998 which was rejected on 1351998. The explanation in the counteraffidavit filed by the Central Government is unsatisfactory and the delay in disposal of the representation which resulted into infringement of fundamental rights of the petitioner under Article 22(5) of the Constitution of India and Section 8 of the Act vitiates the detention order.

As this writ petition succeeds only on this ground alone we need not delve on other grounds.

The writ petition is accordingly allowed. The petitioner is ordered to be released forthwith from detention, if not wanted in any other case. Petition allowed.