Nizam vs District Magistrate and Others

S.K. Agarwal, J.—Heard Sri Virendra Bhatia for the Petitioner. Additional Government Advocate for Respondent Nos. 1, 2 and 4 and Senior Standing Counsel for the Union of India.

This petition has been filed by, the Petitioner against his detention u/s 3(2) of the National Security Act (hereinafter called as the Act). He has been detained by the order dated 25.10.1998 passed by the District Magistrate, Kannauj, who is the detaining authority.

The detenu submitted an application through Jail Superintendent on 10.11.1998. This application was treated by the detaining authority as his representation. The representation was forwarded by the detaining authority to the Government of Uttar Pradesh on 10.11.1998 itself. The Jail Superintendent forwarded a copy of this application to the Union of India which was received in the Ministry of Home Affairs on 16.11.1998. This representation was immediately processed for consideration and it was detected that certain vital informations were required for its further consideration by the Union Government. A crash wireless message was sent to the Government of Uttar Pradesh for furnishing the required informations on 27.11.1998. The informations so sought were received by the Ministry of Home Affairs, Central Government on 8.12.1998. It was furnished by State Government on 3.12.1998. After the receipt of the above information, the case of the detenu was put up before the Director, Ministry of Home Affairs on 10.12.1998 who forwarded the same for consideration by the Joint Secretary, Ministry of Home Affairs on 12.12.1998. After the consideration of the representation and the informations so received, the Joint Secretary forwarded the representation for consideration by the Home Minister, Union of India, on 14.12.1998 and the Home Minister took 12 days in considering the representation of the detenu. The representation was rejected by him on 26.12.1998.

The argument advanced before us by the Learned Counsel for the Petitioner is that there is enormous delay in the consideration of the representation of the detenu by the Government of India, i.e., Home Minister. It vitiates any further detention of the Petitioner on the basis of impugned order dated 25.10.1998.

We have considered carefully the facts detailed above and also examined the counter-affidavit filed on behalf of the Union of India by Sri Bina Prasad, Under Secretary, Ministry of Home Affairs, Government of India. In this context, contents of paragraphs 7 and 8 deserve serious consideration.

An examination of these two paragraphs reveal clearly that the Home Minister has consumed as many as 13 days in rejecting the representation of the detenu. In paragraph 8, it has been stated that 12, 13, 19, 20, 25 and 26.12.1998 were holidays. So far as 12 and 13 December, 1998 are concerned, we are not required to take them into account. For our consideration, 19, 20, 25 and 26.12.1998, i.e., four days are of importance. It will be pertinent to mention that on 26.12.1998, which was a holiday, the Home Minister rejected the representation of the detenu. Thus, the plea of holidays does not hold any water and in the facts and circumstances of the present case, no benefit of holidays can be allowed to Union of India. Ignoring these holidays, the delay, caused in deciding the representation, is of 13 days and we are left with absolutely no explanation coming forth for this delay in deciding the representation of the detenu.

A case decided by the Apex Court has been cited before us, i.e., Rajammal v. State of Tamil Nadu and Anr.AIR1999 SCW 139, in support of the above submission. The observations of the Hon�ble Apex Court are quoted as under :

The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.

It is clearly discernible from the above observations of the Apex Court that if substantial delay was caused on account of any indifference or lapse on the part of Union of India in considering the representation, such delay will further adversely affect the detention.

In the present case, on an analysis of the facts detailed above, it is crystal clear that no explanation is forthcoming from the side of Government of India for the delay of 13 days in rejecting the representation made by the Home Minister. Even no benefit of four days claimed to be holidays, is available to the Government of India in present case. The representation was rejected on a holiday as per the case of the Government of India itself. It was rejected on 26.12.1998 as stated in paragraph 7 of the counter-affidavit of Sri Bina Prasad. In paragraph 8, 26.12.1998 is shown as a holiday. Thus, clearly the explanation offered by Government of India for unusual delay in disposal of the representation of the detenu fails. No importance can be attached to such a clumsy attempt to explain the delay.

The liberty of a citizen guaranteed under Article 21 of the Constitution of India cannot be allowed to be easily circumvented by anyone, specially when there is absolutely no cause shown for this delay by the Government of India. The law requires in such cases of curtailment of liberty of a citizen utmost promptitude in disposal of such representations. Delay in the present case thus is inordinate and exhibits lack of desire. The detenu thus is entitled to its benefit.

It has been argued by the Learned Counsel for the Government of India that the delay of a few days in disposing of the representation by the Home Minister is inconsequential. We are not in agreement with the submission so made on behalf of the Union of India. Such a cursory argument cannot be entertained. In this connection, it will be pertinent to adopt the observations made by the Apex Court in Kundanbhai Dulabhai Sheikh v. District Magistrate. Ahmedabad JT (1996) 2 SC 532 :

In spite of law laid down above by this Court repeatedly over the past 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 red tapism, 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 habit of maintaining a consistent attitude of lethargy. So also, this 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 or account of his representation not being disposed of at the earliest.

In view of the above observations, we are of the opinion that the enormous delay in deciding the representation by the Government of India, i.e.. Home Minister, entitles the detenu, the Petitioner, to be set at liberty. This renders his further detention unlawful.

The writ petition is accordingly allowed and the continued detention of the Petitioner in pursuance of the detention order dated 25.10.1998 of the District Magistrate, Kannauj against the Petitioner is hereby quashed and the detenu is directed to be set at liberty forthwith if not otherwise wanted in any other case.