Pratap Kumar Mohanty vs State of Orissa and Others

P.K. Misra, J.—One Badal alias Soumya Ranjan Mohanty (hereinafter called the "detenu") was detained u/s 3(2) of the National Security Act. 65 of 1980, as per the order dated 22. 3. 1999 passed by the District Magistrate, Cuttack. The present writ application seeking for a writ of Habeas Corpus has been filed by the brother of the detenu. Though several grounds have been taken in the writ petition and pressed into service at the time of hearing of the writ application, it is unnecessary to deal with all such contentions, as in our opinion, the writ application is to succeed on one ground, namely on the ground of undue delay in disposing the representation of the detenu.

Before dealing with this point, it is necessary to notice the relevant dates. As already indicated, the order of detention was passed on 22. 3. 1 999 and the detaining authority forwarded all papers including grounds of detention to the State Government for approval on 26. 3. 1 999. The State Government approved of the order of detention on 31. 3. 1999. It appears that the detenu made representations before the State Government as well as the Central Government. One representation was made from jail on 12. 5. 1999 and the order of the State Government rejecting the same was communicated on 11. 6. 1999. The representation submitted before the Central Government was rejected on 24. 6. 1999.

In the counter affidavits filed on behalf of opp. party No. 1, the State, and opp. party No. 2, the District Magistrate except indicating about such dates, nothing has been stated explaining the delay in disposal of the representation. Since the counters filed by opp. parties 1 and 3 had not explained the delay, we had called upon the counsels for the State to produce the relevant file to satisfy ourselves about the manner in which the matter had been dealt with. From the records made available and from the counter affidavit of the District Magistrate, it appears that the representation dated 12. 5. 1999 was received by the District Magistrate on 15. 5. 1999 whereafter he sent it to the Government with necessary comments on 18. 5. 1999. It appears from the record that the representation along with the comments of the District Magistrate had been received on 1 9. 5. 1999. However, such representation was disposed of only on 11. 6. 1999. There is no explanation available from the file, nor from the counter affidavit as to why it took so long for the State Government to dispose of the representation of the detenu. From the notings it appears that the representation which was received on 19. 5. 1999 received and attention for the first time on 27. 5. 1999 and thereafter after obtaining the views of other superior officers including the minister in between 27. 5. 1999 and 1. 6. 1999, the matter received the attention of the Chief Minister only on 7. 6. 1999. No explanation is forthcoming as to what happened between 19. 5. 1999 and 27. 5. 1999 and similarly between 1. 6. 1999 and 7. 6. 1999.

Law is now well settled that representation of a detenu has to be dealt with by the concerned authorities as expeditiously as possible without any unreasonable delay. It is the constitutional obligation of the appropriate Government to consider the representation filed by a detenu without any undue delay. It is true that no specific period has been prescribed under Article 22 of the Constitution for taking any decision on the matter of representation of a detenu, but the expression "as soon as may be" contained in Clause (5) of Article 22 clearly conveys the message that the representation should be considered and disposed of at the earliest. The aforesaid seems to be the settled view of the Supreme Court in series of decisions noticed in the decision reported in Rajammal Vs. State of Tamil Nadu and Another, and it is not necessary to multiply authorities on the point.

In the decision reported in Rajammal Vs. State of Tamil Nadu and Another, the unexplained delay between 9. 2. 1998 when the representation along with the necessary documents was submitted and 14. 2. 1998, when the Minister who had received the same while he was on tour dealt with the matter, was found fatal and the order of detention was quashed on the ground that delay from 9. 2. 1998 to 14. 2. 1998 had remained unexplained.

Judged against the aforesaid settled principle, there cannot be any doubt that in the present case, the State Government has proceeded in a rather lackadaisical manner in dealing with the representation of the detenu and particularly there is no explanation for the delay which occurred between 19. 5. 1999 and 27. 5. 1999 and thereafter between 1. 6. 1999 and 7. 6. 1999 in dealing with the representation. On this ground alone, the further detention of the detenu becomes illegal.

Apart from the above, it appears that the representation of the detenu meant for the consideration of the Central Government was left gathering dust with the State Government for a pretty long period. From the counter affidavit filed on behalf of the Central Government, it appears that the representation of the detenu along with the relevant comments and papers was received by the Central Government on 20. 6. 1999. The representation meant for the Central Government had been received by the District Magistrate on 15. 5. 1999 and had been forwarded to the State Government by 19. 5. 1999. Thereafter, it appears that for the first time, the State Government thought it fit to send the representation meant for the consideration of the Central Government only on 11. 6. 1 999. Though subsequently, there is no delay in dealing with the representation so far as the Central Government is concerned, the undue delay between 19. 5. 1999 and 1 1. 6. 1999 in sending the representation to the Central Government on the part of the State Government has also the effect of vitiating the order of detention.

For the aforesaid reasons, the writ application succeeds. The detenu may be released forthwith if not required to be detained in connection with any other case.

P.K. Mohanty, J.

I agree.