Ramesh Chandra vs State of Rajasthan

S.S. Byas, J.—In this petition for a writ of habeas corpus under Article 226 of the Constitution, the petitioner challenges his detention u/s 3(2) of the National Security Act, 1980 (here in after to be referred to as the Act of N.S.A.)

As per averments disclosed in the petition, be is a resident of village Saledakala P. S. Chechat, District Kota. In pursuance to the order of the District Magistrate dated March 20, 1989 passed u/s 3(2) and (3) of the Act, he was arrested and lodged in Central Jail, Kota on the same day, The grounds of detention Annexure-1 dated March 23, 1989 were served on him on the same day. The order of his detention was approved by the State Government u/s 3(4) of the Act on 31-3-1989. The matter was placed before the Advisory Board and the Board was of the opinion that there was sufficient cause of the detention of the petitioner. The State Government thereafter passed order Annexure R/2 on 29-4-1989 and fixed the period of 12 months u/s 13 of the Act. This order was also communicated to the petitioner on 4-5-1989. The petitioner addressed a representation to the Secretary, Home Ministry of the State on 30-5-1989 and submitted it to the Superintendent, Central Jail, Kota to transmit it to the authority addressed therein. The Superintendent, Central Jail, Kota by his letter Annexure 3 dated 30-5-1989 sent the detenu''s representation to the Deputy Secretary (Home) of the State Government. The petitioner also addressed another representation to the Central Government on the same day and submitted it to the Superintendent, Central Jail, Kota who sent it to the Deputy Secretary (Home) of the State Government by his letter Annexure 4. The detention is challenged on the following two grounds amongst others:

(1) The grounds of detention have no rationale or nexus with the maintenance of public order; and (2) the representations sent by the petitioner have not been considered and decident till the filing of the writ petition on 14-6-1989.

In the return filed by the respondents, it was stated that the petitioner is a history Sheeter involved in many criminal cases of various offences including those of murder and dacoity. He had become a threat in the locality and his activities required that he should be detained under the Act to prevent him from acting in any manner prejudicial to the maintenance of public order. A regards the representation, in paras 7 and 8 on page 3 of the return, it was admitted that the representative addressed to the Home Ministry of the State was received on 3-6-1989 from the Superintendent, Central Jail, Kota. The State Government dealt with this representation and called for the comments of the District Magistrate on 17-6-1989. The comments of the District Magistrate were received on 23-6-1989. The State Government considered the representation and rejected it on 8-7-1989. The petitioner was accordingly informed on 9-7-1989. It was submitted that it was wrong on the part of the petitioner to allege that his representation was not considered and decided.

We have heard the learned Counsel for the petitioner and the learned Additional Advocate General.

Mr. Gupta learned Counsel for the petitioner did not press ground number (1) referred to above. He confined and concentarated his contention on ground number (2) viz. the non consideration of the representation and the delay which occureed in its consideration after when this writ petition was filed.

The facts involved about the detenu''s making the representation and its rejection on 8-7-1989, are not in dispute.

It was strenuously contended by Mr. Gupta that the petitioner submitted his representation to the Superintendent, Central Jail, Kota on 30-5-1989 to be transmitted to the Secretary, Home Ministry of the State. The Supdt. Central Jail in his turn sent it on the same day on 30-5-1989 to the State Govt. where it was received either on 2-6-89 or 3-689. The State Govt. slept over the matter and passed an order only on 17-6-1989 directing the Dist. Magistrate, Kota to send his comments. The comments of the Dist. Magistrate were received on 23-6-89. The representation still then was not decided, and it was finally rejected on 8-7-89. It was argued that the first delay between 3-6-89 and 17-6-89 and the second delay between 23-6-89 and 8-7-89 have not been explained by the respondents. The State Government slept over the whole matter and decided the representation only after this writ petition was filed on 14-6-89. It was argued that article 22(5) of the Constitution gives a right to the detenu to make a represetation against his detention under the detention law. It necessarily follows from article 22(5) that the representation should be considered and disposed of expeditiously without delay. It the delay is there, it should be explained. It was argued that the unexplained delay is fatal and makes the further detention to the detnu illegal. Reliance in support of the contention was placed on Piara Singh Vs. State of Punjab,

It was on the other band contended by the learned Additional Advocate General that the delay if it is there, is not fatal and it is not make the detention illegal. The representation of the detenu was received in the Home Ministry on 3-6-89 and the comments of the District Magistrate were called by the order dated 17-6-89. The comments were received on 23-6-89 and after taking into consideration the objections raised by the petitioner, his representation was rejected oh 8-7-89. The delay is thus not there. We have taken the respective submissions into consideration.

We may point out here that the representation was submitted by the detenu on 30-5-89 and it was received in the Home Ministry of the State Government on 3-6-1989 as stated by the learned Additional Advocate General. It is again not in dispute that the State Government initiated the action for the first time on 17-6-89 and called for the comments of the Detaining Authority viz. the District Magistrate, Kota. The comments were received from the District Magistrate, Kota on 23-6-89. The representation was ultimately rejected on 8-7-89. The contention of Mr. Gupta is that the delay between 3-6-89 to 17-6-89 and 23-6-89 to 8-7-89 has not been explained and that is sufficient to vitiate the further detention of the detenu. The contention of Mr. Gupta is not ineffective. It has substantial force.

Before we take up the contentions of Mr. Gupta it would be useful to notice that no representation was made by the detenu before his case was placed before the advisory board and the period of 12 months was fixed by the State Government for the detenu''s detention u/s 13 of the N.S.A. by order Annexure R/2 dated 29-4-89. The representation was made by the petitioner for the first time on 30-5-1989. This how ever does not prevent him from making the representation. Section 14 of N.S.A. empowers the State or Central Government to revoke the detention order. This power u/s 14 can be exercised by the State or Central Government suo moto or on a representation made by the detenu. Since the representation was made by the petitioner subsequent to the order Annexure R/2 dated 29-4-1989, it is Section 14 of the Act which comes in to play.

Article 22(5) of the Constitution afford a right to the detenu to make a representation against his detention. It does not lay down as and when the representation is to be made. When once a representation has been made, it is implicit in Article 22(5) that it should be taken into consideration and disposed of without delay.

It is true that the delay in considering the representation of the detenu in itself may not be material to vitiate the detention. But when the delay stands unexplained, it assumes considerable importance. Once the representation has been made by the detenu, it should not be treated with any laxity or in a cavalier manner. The State Government when moved u/s 14 of the Act is expected to act with promptitude and should consider the representation without delay. If the delay has occasioned in the consideration of the representation, it must be satisfactorily explained Article 22(5) makes it obligatory rather casts a mandate on the appropriate Government to consider the representation at the earliest, opportunity. This constitutional imperative or mandate cannot be curtailed or abridged or circumvented.

We also quite conscious that in explaining the delay, the appropriate Government is not required to explain it day by day or each day''s delay. What is required is that the representation of the detenu must be dealt with by the appropriate Government with all reasonable promptness and diligence. If the delay stanes unexplained, no allowance should be made for lethargic indifference on the part of the appropriate Government.

Reverting now to the contentions of Mr. Gupta, the representation of the detenu was received in the Secretariat of the State Government on 3-6-1989 No action was taken upto 16-6-1989. It was only on 17-6-1989 that the State Government directed the Detaining Authority viz the District Magistrate, Kota to send his comments. It is thus evident that no action was taken on the detenu''s representation between the period from 3-6-1989 to 16-6-1989. The representation thus remained unattended with no action in the portals of the Secretariat. The State has not come with any plea to explain this rest period from 3-6-1989 to 16-6-1989 as to why the representation remained unattended and in noticed. The State Government should not have kept the representation of the detenu in the archives of the Secretariat for a period of nearly 12/13 days. This shows the extreme laxity and the indifference with which the representation of the detenu was dealt with. This unexplained delay is inexcusable and in itself makes the further detention of the detnu illegal.

The comments of the District Magistrate were received on 22-6-1989. The representation was thereafter rejected on 8-7-1989. The State has not again come forward to explain the delay between 24-6-1989 to 7-7-1989 i.e. to say nearly of two weeks. The State Government thus again noted with laxity and indifference in not considering the representation of the detenu from 24-6-1989 to 7-7-1989. No explanation good, bad or indifferent tits been furnished by the State Government for this inordinate delay of two weeks. That again is in itself sufficient to vitiate the detention.

The position boils down to this that the State has not furnished any explanation for the two rest periods from 3-6-1989 to 16-6-1989 and 24-6-1989 to 7-7-1989. The inevitable consequence is that the continued detention of the petitioner is bad and illegal.

In Kuni Dora v. State of Orissa (1984 Cri. L. J. 1609), their Lord-ships observed:

It is well settled that no rigid or inflexible period of time within which the representation of the detenu shall be considered and dispossed of, can be fixed. The question is not to be considered with reference to any set formula or by mere arithmetical counting of dates-Each case would depend upon its own facts and circumstances. The principle underlying, how ever, is that it shall be shown to the satifaction of the Court that the representation has been consendered with reasonable despatch and illgence.

If on examination the Court finds that there has been uncondonable remissness of avoidable delay on the part of the Detaining Authority/State Government in dealing with the representation, the continued detention of the detenu would be rendered illegal. If the delay has been due to unavoidable circumstances and for reasons entirely beyond the control of the authorities, such delay would not be a ground for nullifying the detention.

The same view reiterated in Mohinuddin alias Moin Master Vs. District Magistrate, Beed and Others, and Piara Singh Vs. State of Punjab,

The pith and substance of the entire discussion is that the State Government did not act with reasonable promptness and diligence in considering the petitioner''s representation. It appears that when this petition was filed by the detenu on 15-6-1989, the State Government realised difficulty and thereafter called for the comments of the Ditrict Magistrate by its order dated 16-6-1989. Any way the delay for the two periods referred to above is inordinate and inexcusable in absence of any explanation from the State Government. The detenu should therefore, be freed.

In the result the petition is allowed and the respondents are directed to forthwith release the petitioner Ramesh Chandra from detention, if not required in any other case.