Naimuddin vs Union of India and Others

Pradeep Nandrajog, J.—A detention order dated 28.10.2002, u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act 1974 was passed against the petitioner and pursuant thereto he was taken in custody and was lodged at the Central Jail, Tihar. On 13.11.1992, petitioner made a representation through the Jail Superintendent with a request that the same should be forwarded to the detaining authority which happened to be the Government of NCT of Delhi. The said representation contained a request that the same should be forwarded to the Central Government and accordingly on 18.11.2002 the Joint Secretary (Home), Government of NCT of Delhi forwarded the representation to the concerned ministry of the Union, which was received on 21.11.2002. The representation was rejected by the Central Government on 10.12.2002.

The present petition was filed challenging the detention order and the sole ground urged is the delay in consideration of the representation made by the petitioner.

Stand taken in the counter affidavit filed is that the representation was submitted not on 13.11.2002 but on 14.11.2002 to the Superintendent Jail, Tihar and was received by the detaining authority on 18.11.2002 and since there was a request that the same be forwarded to the Central Government, it was immediately forwarded to the Central Government where it was received on 21.11.2002. Cognizance thereof was taken immediately on the same day i.e. 21.11.2002, parawise comments were sought from the sponsoring authority i.e. Additional Commission of Customs, Indira Gandhi International Airport, New Delhi. Since comments were not received, reminder was issued on 28.11.2002. No comments being received till 4.12.2002, contact was made over the telephone with the concerned officer in the office of the sponsoring authority. Another telephonic message was sent on 5.12.2002. The concerned officer could not be contacted. 7th and 8th December, 2002 were holidays being Saturday and Sunday and it was only on 9.12.2002 that the concerned officer could be contacted who informed that the letter dated 21.11.2002 which was sent by post as also the reminder dated 28.11.2002 which was sent by post were not received. On 9.12.2002 itself, by FAX comments were obtained and the very next day decision was taken on the representation rejecting the same. It was thus contended that there is no ground to interfere in the matter. Learned Counsel appearing for the Union contended that the authorities concerned acted promptly in the matter and but for the unfortunate fact of letters dated 21.11.2002 and 28.11.2002 not being lost in transit, the representation would have been decided in a shorter time. Counsel argued that the test to be applied is not the length of time taken but whether the authorities had acted promptly. He argued that the fact of seeking comments from the sponsoring authority on the very day when the representation was received and taken a decision within one day of receiving comments shows that the Central Government acted with promptitude in deciding the representation.

Counsel for the petitioner on the other hand contended that the counter affidavit shows that the concerned cell of the Ministry of Finance, Department of Revenue, Union of India was in contact with the sponsoring authority over FAX as per the counter affidavit filed and therefore there was no reason as to why at the first instance the comments should have been sought by a letter transmitted through post. Alternatively, counsel contended that the authorities should not have waited till 28.11.2002 when comments were not received and in any case not upto 9.12.2002 when contact was made over FAX. Counsel contended that local letters are transmitted the very next day and in this view of the matter the delay in between 21.11.2002 upto 9.12.2002 entitles the petitioner to the relief prayed for in the writ petition.

It is settled law that in a matter relating to preventive detention it is the constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. This constitutional obligation flows from the provisions of Article 22 of the Constitution of India and is to be found in the words "as soon as may be" in clause (5) of Article 22 of the Constitution of India. This clause conveys the message that the representation should be considered and disposed of at the earliest.

A Constitution Bench of the Hon''ble Supreme Court delineated the legal position in its judgment reported as K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India (UOI) and Others and State of Karnataka and Others, The following observations of the Bench may profitably be extracted:-

It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible.

The words "as soon as may be" occurring in clause (5) of the Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.

The position which emerges from the aforesaid dictum of the Supreme Court is that the authority concerned has to act promptly in considering the representation made against the detention order. Promptness would mean that in the shortest period of time the representation should be decided. What is this period of time? There can be no hard and fast rule to measure the span of delay. Duration of the time taken in deciding the representation is not the test. The test as laid down in various judicial pronouncements is that the representation should be decided within reasonable dispatch. Observations of the Hon''ble Supreme Court in its judgment reported as 1990 (2) Crimes SC 472 Mahesh Kumar Chauhan Vs. Union of India and others may be noted:-

The detenu has an independent constitutional right to make his representation under Article 22 (5) of the Constitution of India. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty - the highly cherished right - which is enshrined in Article 21 of the Constitution.

The principle on which the test has been evolved by the Hon''ble Supreme Court may be traced to the decision of the Constitution Bench in its judgment reported as Jayanarayan Sukul Vs. State of West Bengal, The Constitution Bench while deprecating the conduct of authorities in unduly and unreasonably delaying the consideration and disposal of the representations stated as follows:

The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.

Courts have repeatedly and consistently held in precise and clear terms that all the procedural safeguards prescribed under Article 22 (5) of the Constitution of India have to be scrupulously and strictly observed, one of which being that the detenu would be afforded at the earliest an opportunity to make a representation against the order clamping his freedom coupled with the right to have the representation considered and disposed of with reasonable dispatch i.e. expeditiously. Courts have frowned upon lethargic indifference and have allowed no space for needless procrastination.

Tested on the touch-stone of the law as extracted above, the conclusion on the facts as noted above is obvious.

The concerned office of the Central Government received the representation on 21.11.2002 and sought comments from the sponsoring authority the same day. Postal letters intra-city are received the next day and in normal circumstances it was expected that the same would be delivered to the sponsoring authority on 22.11.2002. Giving allowance of 2 to 3 days, the Central Government ought to have reasonably expected the comments to be received by 26th November, 2002 and if not received, ought to have acted with promptness and concern. Admittedly the office of the appropriate authority and the sponsoring authority is connected by FAX and therefore the act of contacting the office of the sponsoring authority over FAX on 9.12.2002, coupled with the earlier delay clearly shows that the promptness required was missing. We may note that although, as noted by us above, no length of time can be laid down in a straight jacket formula but the Hon''ble Supreme Court in its judgment reported as JT Kundanbhai Shaikh Vs. Magistrate, Ahmedabad and others, . Ahmedabad adversely commented even upon a delay of six days. For the reasons stated above and in view of the discussion and circumstances noted above the petition is allowed. The detention order under dated 10.11.2002 is hereby quashed and set aside. The petitioner shall be set at liberty forthwith in case he is not required to be detained in any other case or under any other order.