Rai Sahab Singh vs Union of India & Ors.

Rai Sahab Singh has preferred this Habeas Corpus writ petition challenging his continued detention in jail on the strength of the detention order dated 22nd December 1997 of the District Magistrate, Ambedkar Nagar passed under Sections 3(2) and 3(3) of the National Security Act, 1980.

We have heard learned counsel for the petitioner, learned Government Advocate and the learned Standing Counsel for the Central Government and have perused the material placed on the record.

Learned counsel for the petitioner has submitted that there has been undue and unexplained delay in disposal of petitioner''s representation by the Central Government inasmuch as the petitioner had preferred his representation on 811998 and the representation was disposed of by the Central Government as late as on 651998. In this manner it took nearly four months for the Central Government to dispose of the representation.

Counteraffidavits on behalf of Union of India as well as State Government have been filed. The District Magistrate of Ambedkar Nagar has also filed his counteraffidavit.

It emerges from para 25 of the counteraffidavit of the District Magistrate that the representation of the petitioner dated 811998 was handed over to the Superintendent, District Jail on 1011998. On 1211998 the District Magistrate called for parawise comments on the representation from the Superintendent of Police, Ambedkar Nagar. Comments of the Superintendent of Police were received by the District Magistrate on 2211998 and thereafter on 3111998 the District Magistrate forwarded the representation to the Government of India, Home Ministry (Internal Security), North Block, New Delhi. According to the affidavit filed on behalf of Union of India, this representation was received by the Central Government on 1021998. No explanation is forthcoming from the State why it took 10 days for the Superintendent of Police to send his comments. Similarly, the delay between 1211998 to 2211998 has remained unexplained. It appears that the representation was dealt with in a most casual manner and was not given immediate attention. We are at a loss to understand why, if the comments of the Superintendent of Police were received by the District Magistrateon 2211998, the representation still remained lying with the District Magistrate till 3111998. It is also not known what happened, therefor, between 3111998 and 1021998. The dates mentioned above make it clear that there has been lot of unexplained delay at the level of the District Magistrate in transmitting the representation to the Central Government.

Adverting to the manner in which the representation was disposed of by the Central Government, a reference may be made to the counteraffidavit of Sri Bina Prasad, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi. In paras 6 and 7 of the counteraffidavit of Sri Bina Prasad it is stated that the representation was received by the Central Government on 1021998 and certain vital informations were sent for from the State Government. This information was available on 1321998. Thereafter there was a gap of another 10 days and the counteraffidavit says that on receiving said information on 13 21998 the case of the detenu was put up before the Under Secretary, Ministry of Home Affairs on 2321998. The representation was considered by the Under Secretary who gave his comments and put up the same before the Joint Secretary and the Joint Secretary considered the same and put the representation with his comments before the Minister of State for Home Affairs on 2421998. From 2421998 this representation remained pending without anything being done till 2431998. The explanation is that the P.S. to Minister of State for Home Affairs informed that the Minister is not likely to return before the formation of the new Government and hence the file remained pending. The affidavit does not explain the delay. There is no explanation for the period intervening 1321998 to 2321998. Even after the new Home Minister had assumed office, the file was again put before the Deputy secretary on 2431998 and in para 7 it is mentioned, "Who considered the same and put up the case to Deputy Secretary on 2431998, who carefully considered the same and with his comments put up the case to Joint Secretary on 841998." There is absolutely no explanation for the delay of 15 days between 2431998 to 841998. The counteraffidavit further mentions that the Joint Secretary put up the case before the Home Minister on 1341998 and the Home Minister rejected the representation on 651998. Thus, the file again remained pending for three weeks between 1341998 to 651998 and there is no explanation for the intervening period.

From what has been mentioned above, it is clear that there is no explanation for the delay for forwarding the representation at the level of the District Magistrate and there is also unexplained delay at the level of Central Government in disposing of the representation of the petitioner. In several cases the Supreme Court has observed that if there be unexplained delay in disposal of the representation of the detenu, continued detention of the detenu becomes invalid.

The question as to whether the decision on the representation of the detenu could be delayed on the ground of nonavailability of the Minister of State (Home) is tenable. On this point, during course of dictation of judgment today copy of a decision rendered by this Court in Writ Petition No. 8208 of 1998 on 28101998 by a Bench consisting of D.P. Mohapatra, C.J. and R.R.K. Trivedi, J. was cited before us in which it was observed:

"Similar explanation given in other cases has been rejected by this Court on the ground that at the Centre there is always a Government and if Minister of Slate (Home) was not available, the matter could be placed immediately before the Home Minister as it was done later on."

In a recent case of Mrs. Yenmathi Selvan v. State of Tamil Nadu and another, JT 1998 (4) SC 393, the Supreme Court has held that unexplained delay in consideration of representation of the detenu renders the detention illegal even though the delay was not long. The Supreme Court observed:

"The detenu had made a representation on 71097. The Governor''s Secretariat received it on 141097. It was despatched to the Government on 151097. It called for remarks of the detaining authority on 171097. The detaining authority in his turn called for remarks of the sponsoring authority on 211097. The sponsoring authority gave its remarks on 241097 and they were forwarded by the Commissioner of Police to the Government on 281097. The representation was rejected by the Government on 101197. The State Government was required to explain how it dealt with the representation between 151097 and 101197. Except stating that it called for the remarks of the detaining authority on 171097 the Government has failed to explain why it had become necessary to call for the remarks of the detaining authority. Even after an opportunity was given by the Court on 12598 to the respondents to file a counteraffidavit dealing with the contentions raised in the S.L.P. the Government has failed to file any counteraffidavit 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 211097 till 101197. Though the delay is not long it has remained unexplained. Though the delay by itself is not fatal the delay which remains unexplained becomes unreasonable. In spite of this wellsettled legal position the State Government has failed to explain satisfactorily that it has 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. We, therefore, allow this appeal, quash and set aside the impugned order of detention and direct that the detenu be released forthwith unless his presence in jail is required in connection with some other case."

Similar view was expressed by the Supreme Court in the case of Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police., 1989 (26) ACC 617 (SC): 1989 JIC 759 (SC). In yet another Supreme Court case of Kundanbhai Dulabhai Sheikh v. District Magistrate, Ahmedabad, 1996 (33) ACC 319 (SC), the Supreme Court observed:

"........we may immediately observe that this Court, in a large number of cases, has already laid down the principle in clear and specific terms 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."

The Supreme Court reiterated its earlier pronouncements in the cases of Mohinuddin v. District Magistrate, 1987 (24) ACC 495 (SC) and Rama Dhondu Borade (supra) and observed:

"In Mohinuddin and Rama Dhondu cases, it was provided that inordinate and unexplained delay in the disposal of representation would make the continued detention of a person illegal and unconstitutional. In Devi Lal Mahtov. State of Bihar, the continued detention was held to have become bad on account of the indifferent attitude of the Government in not attending to the representation for about 10 days."

Thus, it is settled law that unexplained delay in transmitting the representation for consideration as well as delay in disposing of the representation is fatal and renders the continued detention of the detenu illegal. As observed earlier, in the instant case there has been unexplained delay at the level of the District Magistrate in forwarding the representation to the Central Government and there has also been unexplained delay in disposing of the representation of the petitioner.

In view of what has been discussed above, the Habeas Corpus writ petition is allowed. Continued detention of the petitioner in pursuance of order dated 22nd December, 1997 of the District Magistrate, Ambedkar Nagar passed under Sections 3(2) and 3(3) of the National Security Act is set aside. The detenu is in jail. He shall be released forthwith unless wanted in any other case.