Siri vs State of U.P.

R.R.K. Trivedi and M.C. Jain, JJ.—Heard Sri Sunil Kumar learned Counsel for the Petitioner and Sri Mahendra Pratap Singh learned Additional Government Advocate.

By the aforesaid petition, Petitioner has challenged his continued detention including the legality of the order dated 21.3.1998 under which he has been detained u/s 3(2) of National Security Act, 1980 (hereinafter referred to as the Act).

Along with the order of detention, the Petitioner was also served with the ground of detention. A perusal of the ground shows that the Petitioner was involved in criminal incident dated 24.11.1997 by which an attempt was made to kill under-trials Rakesh and Brahma who along with others were being taken on a police van from the Court to District Jail, Gorakhpur. In this incident several police personnel and undertrials were injured. In the first information report no body was named but during investigation it came to light that the Petitioner was driving the vehicle in which the assailants, who had attacked the police van, had come.

Learned Counsel for the Petitioner has submitted that Petitioner submitted his representation on 6.4.1998, which was received by the Union of India on 8.4.1998. The representation was processed for consideration and it was felt that certain vital information (opinion of Advisory Board) was required for which a wireless message was sent on 20.4.1998. The requisite information was received by the Central Government in the Ministry of Home Affairs on 29.4.1998. On receipt of this information, the case was put up before Deputy Secretary. Ministry of Home Affairs on 1.5.1998 who considered the matter and with his comments placed it before the Joint Secretary. Ministry of Home Affairs on 5.5.1998. The Joint Secretary in his turn, considered the case and placed the same before the Home Minister on 5.5.1998. Home Minister after considering the representation rejected the same on 13.5.1998. The aforesaid dates have been also mentioned in paragraphs 6 and 7 of the counter-affidavit filed by Bina Prasad on behalf of Respondent No. 4 Union of India. Learned Counsel for the Petitioner has submitted that there is no explanation for the delay from 8.4.1998 to 20.4.1998. It is submitted that 12 days delay in sending requisition for collecting required information, remaining unexplained, continued detention of the Petitioner has been rendered illegal. It has been further submitted that the representation was placed with all material before the Home Minister on 5.5.1998 who could decide it on 13.5.1998. i.e., after 8 days. It is submitted that the explanation for delay has been given in para 8 of the counter-affidavit, wherein, it has been stated that dates 2, 3, 7, 9, 10 and 11th of May, 1998 were holidays. Learned Counsel has submitted that so far as 2nd and 3rd May are concerned they are not relevant for consideration of the delay caused at the level of the Home Minister in deciding the representation as the representation was placed before him on 5.5.1998. It is further submitted that out of 8 days delay explanation has been tried to be given for 7, 9, 10 and 11th May, 1998. It is submitted that holidays falling between the two dates could not be appropriate ground for the Home Minister not to decide the representation expeditiously. It has been submitted that this Court has held that decision on the representation could not be postponed on account of certain holidays falling between the dates on which it was placed and the representation was decided. In this connection it has also been submitted that the delay from 8.4.1998 to 29.4.1998 has been caused in calling for the opinion of the Advisory Board, which was not material for deciding the representation of the Petitioner by Union of India. It is submitted that the representation should have been decided independently and its decision could not be postponed on the ground of non-availability of opinion of the Advisory Board. For the aforesaid submissions, learned Counsel for the Petitioner has placed reliance in case of Rajammal Vs. State of Tamil Nadu and Another, and Pappu alias Ausan Singh v. Adhikshak Janpad Karagar Mainpuri 1999 (1) JIC 234 (DB).

Sri Mahendra Pratap Singh learned Additional Government Advocate and Sri Mohd. Isa Khan appearing''for Respondent No. 4 have submitted that delay in deciding the representation of the Petitioner has been explained in the counter-affidavit filed by Bina Prasad. It is submitted that at the level of Home Minister delay of few days cannot be termed unreasonable and the detention of the Petitioner is not illegal.

We have considered the submissions of the learned Counsel for the parties. In case of Rajammal v. State of Tamil Nadu and Anr. Hon''ble Supreme Court after considering the earlier judgment of the Court concluded in para 9 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 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.

In the above case, Hon''ble Supreme Court on account of four days delay between 9.2.1998 to 14.2.1998, which was found unexplained, held that continued detention of the Petitioner has been rendered illegal.

In the present case also the representation of the Petitioner admittedly was received on 8.4.1998 but the wireless message was sent to the State Government for submitting the requisite information on 20.4.1998. There is no explanation for this 12 days delay, in the counter-affidavit. Similarly, the representation was placed before the Home Minister on 5.5.1998 which could be decided on 13.5.1998. For total period of 8 days taken in deciding the representation, explanation has been given only for four days, namely, 7, 9, 10 and 1 1th of May. 1998 it is stated that these dates were holidays. This Court in Habeas Corpus Writ Petition No. 26144 of 1998. Dara alias Arif v. Superintendent District Jail and Ors. has already held that intermittent holidays falling during the period could not be picked up for explaining the delay. Even otherwise, four days delay remained unexplained and the case is squarely covered by the judgment of Hon''ble Supreme Court in Rajammal''s case (supra). The submission of the learned Counsel for the Petitioner is that it was not legal and proper for the Union of India to postpone the consideration of the representation of the Petitioner on the ground of non-availability of the opinion of Advisory Board also finds support from the Division Bench view of this Court taken in Pappu alias Ausan Singh''s case. The Division Bench in the aforesaid case after considering the judgments of the Supreme Court held in para 10 as under:

As in the present case we are definitely of the view that the Central Government or the State Government has to decide the representation of the detenu irrespective of the fact as to whether the Advisory Board has already heard and decided the matter and has submitted its report or not. The authority concerned, namely, the State Government or the Central Government has not to wait for the result of the hearing before the Advisory Board. It must consider the representation on its own merits without waiting for Advisory Board to decide the matter and wait for its report. The Central Government wrongly waited for the report of the Advisory Board to be furnished to it by the State Government. Thus, the reason which has been put forward to explain the delay is neither valid nor cogent. The representation is undoubtedly to be decided at the earliest. Had the Central Government not asked for and waited for the report of the Advisory Board, there seems to be no reason that it would have certainly decided the representations earlier. Postponing the consideration of the representation for a reason not legally admissible will in no way explain the delay.

If the facts of the present case are considered in the light of the opinion expressed by the Division Bench in the above case, the submissions of the learned Counsel for the Petitioner is correct that the delay in deciding the representation between 8th April to 29th April. 1998, has also not been explained and the continued detention of the Petitioner has been rendered illegal.

For the reasons stated above, in our opinion on account of unexplained delay in deciding the representation of the Petitioner by Central Government, the continued detention of the Petitioner has been rendered illegal and he is entitled for the relief.

The writ petition is accordingly allowed. The Respondents are directed to set free the Petitioner forthwith, if he is not wanted in any other case.