Pratap Bhaskar Chandan vs R.D. Tyagi and Others

S.S. Parkar, J.—By this petition, filed under Article 226 of the Constitution of India, the petitioner has challenged his detention under the provisions of National Security Act, 1980. The detention order dated 8th April, 1996, was issued by the respondent No. 1, Commissioner of Police, Greater Bombay, against the petitioner u/s 3(2) of the National Security Act Pursuant to the said order, the petitioner was detained on the same date i.e. 8th April, 1996. The order of detention issued by respondent No. 1 is annexed as Annexure A to this petition. At the time of his detention, the petitioner was also served with the ground of detention dated 8th April 1996 which are annexed as Annexure B to this petition. There is no dispute that at the time of his detention the petitioner was served with the aforesaid order of detention as well as the grounds of detention along with their Marathi translations.

The above detention order is challenged by this petition on various grounds. But the same can be disposed of on the ground which is taken in paragraph 10(H) of the petition.

It appears that the petitioner had made two representations against the order of detention. The first representation is dated 23rd April 1996 while the other representation was sent through his lawyer and is dated 18th June, 1996. The first representation dated 23rd April 1996 is addressed to Secretary, Government of India as well as the Secretary, Government of Maharashtra and was sent though the Nasik Central Prison where he was detained. The copy of the same is annexed as Annexure "D" to this petition at page 45. The second representation dated 18th June 1996 was addressed to the Secretary, Government of India, Ministry of Home Affairs, Department of Internal Security, New Delhi, by the petitioner''s advocate which is annexed as Annexure "F'' at page 52 of the paper book of this petition.

The main grievance made in para 10(H) of the petition is that the Central Government did not consider at all the second representation dated 18th June 1996 addressed to the Secretary, Government of India, Ministry of Home Affairs, Department of Internal Security, New Delhi, though the same was received by them. In the counter affidavit filed on behalf of the Union of India i.e. respondent no 3 by Ishwar Singh, the Desk Officer, Ministry of Home Affairs, Government of India, New Delhi, it is stated in para 11 as follows:

That the second representation dated 18.6.96 submitted on behalf of the detenu was not considered as no fresh grounds were raised therein.

From the above reply it is clear that the second representation was received by the respondent No. 2, Union of India, but the same was not considered by the said authority. The reason given by respondent No. 3 as referred above, for not considering the said representation is that there were no fresh grounds raised in the second representation and, therefore, the same was not considered by the Central Government.

With the help of the counsel for the petitioner and the respondents, we have gone through both the representations and after reading the said two representations we find that the grounds taken in the subsequent representation dated 18th June 1996 sent by the petitioner''s advocate does not contain the same grounds which were taken in the first representation, dated 23rd April 1996, addressed to the authority by the detenu himself. In fact, after going through the said representation Mr. Mehta, learned advocate appearing on behalf of the respondent No. 3 fairly conceded that the grounds 3 and 4 taken in representation dated 18.6.1996 appearing on pages 54 and 55 respectively of the paper book were not taken in the first representation dated 23rd April 1996.

Mr. Patil, the learned Addl Public Prosecutor appearing on behalf of the respondent nos. 1 and 2 also fairly conceded that so far as the ground No. 3 in the second representation is concerned, pertaining to the wrong translation, was not at all taken in the first representation. Mr. Patil, However, tried to contend that so far as the ground with regard to the delay in issuing of the detention order after a gap of about four months, taken in paragraph 4 of the second representation is concerned, is impliedly taken in the first representation. We do not agree with this submission. In our view the grounds in paragraphs 3, 4 and 5 of the second representation appearing at pages 54 and 55 of the paper book were not at all taken in the first representation. Mr. Patil, however, contended that the ground 3 about the wrong Marathi translation of the grounds of detention cannot be substantiated, as according to him there was no error in the Marathi translation.

We are not called upon to consider whether the Marathi translation was accurate or not. The contention of Mr. Tripathi is that if the grounds in the second representation arc not repetition of the grounds in the first representation then the authority concerned ought to have considered the same and when the same is not considered there is noncompliance with the mandate under Article 22(5) of the Constitution of India. The contention of Mr. Patil that the detenu was knowing English as he had made representation in English and, therefore, the wrong translation, if any, in Marathi version will not prejudice the detenu, cannot be the answer to the question which is being considered by us.

The authorities concerned, like the Central Government, are duty bound to consider the second representation with fresh grounds The said question has been considered in our recent decision, in the case of Anand Swaroop Ramkumar Gupta v. Union of India 1997 I L.L.J. 497. In that case the second representation contained two distinctly fresh contentions which were not raised in the first representation dated 2nd April 1996. The first representation was considered by the Central Government the Detaining Authority, so also the Advisory Board. Though the second representation also was placed before the Detaining Authority, and the same came to be processed by him and he had recommended that the same deserved to be rejected he had not himself passed an order of rejection. The second representation was however considered and rejected by the Central Government. Since the same was not considered by the Detaining Authority the detention order was quashed and set aside, relying on the decisions of the Supreme Court.

In this case, admittedly, the second representation was not at all considered by the Union of India as averred in para 11 of the counter affidavit of the Desk Officer dated 17th July 1996, on the ground that no fresh grounds were taken therein. As we have pointed out earlier that the second representation did contain fresh grounds and Mr. Mehta on behalf of Union of India has fairly conceded the said position.

In view of the aforesaid facts and for the reasons given in our above referred judgment in the case of Anand Swaroop Ram Kumar Gupta v. Union of India Supra, the impugned order of detention is liable to be quashed and set aside for non-compliance with mandate under Article 22(5) of the Constitution to consider the representation of the detenu expeditiously.

We, therefore, quash and set aside the order of detention dated 8th April 1996 at Annexure "A" issued by Respondent No. 1 and direct that the detenu be released forthwith unless he is required to be detained in any other case.

Rule is thus made absolute in terms of prayer Clauses (a)(c).