Suleman @ Sulla vs Union of India and Others

Pradeep Nandrajog, J.—Learned Counsel for the petitioner restricted her challenge to the detention order only to the ground pertaining to the alleged delay in disposal of the representation made against the detention order by the Central Government. Counsel submitted that the wife of the detenu had submitted a representation against the detention to the Central Government on 18.1.2003 which was not disposed of till date when the writ petition was filed i.e. 5.2.2003. Petitioner was detained pursuant to the order dated 16.11.2002 passed by the Commissioner of Police under the National Security Act, 1980, which order was approved by the Lt. Governor on 22.11.2002.

On 18.1.2002, as noted above a representation was made to the Central Government which was forwarded to the President of India.

As per the counter affidavit filed, it was not explained as to what happened to the representation filed by the wife of the petitioner. Additional affidavit was filed on 29th May, 2003 explaining what happened to the representation sent by the wife of the petitioner.

As per the additional affidavit filed, the representation which was submitted to the President of India was received in his secretariat on 20th January, 2003 and was forwarded to the Ministry of Home Affairs and delivered on 24.1.2003 vide Peon Book No. 4 of Central Registry Section of the President''s Secretariat. Strangely enough in the same very additional affidavit which has been affirmed by Mr. Umesh Kalra, Director, Ministry of Home Affairs it has been desposed that the representation was not received from the President''s Secretariat. Averments in paras 5 & 6 of the additional affidavit may be noted. Same are as under:--

We have received the replies from the office of the Commissioner of Police, Delhi and the President''s Secretariat. President''s Secretariat, have stated that the representation from Smt. Zulekha Khatoon w/o Shri Suleman @ Sulla dated 17th January, 2003 was received in Central Registry Section of President''s Secretariat on 20.1.2003. After processing by the concerned Sections, the communication was forwarded to the Ministry of Home Affairs and delivered on 24.1.2003 vide Peon Book No. 4 of Central Registry Section of President''s Secretariat.

As per our records, we have not received this representation from the President''s Secretariat.

It has further been deposed in the additional affidavit that the Central Government i.e. Ministry of Home Affairs for the first time learnt about the representation when it received the writ petition and that the same was rejected on 17th March, 2003.

Mr. K.K. Sud, learned Addl. Solicitor General contended that no relief should be granted to the petitioner inasmuch as in the detention order detenu was informed that the detenu has a right to make representation to the authorities indicated in the detention order, one of which was the Central Government. Counsel argued that by addressing the representation to the President of India, detenus create grounds in their favour, namely, delay in consideration of the representation and, therefore, urged that we should take this aspect into consideration while dealing with the issue of delay in consideration of the representation made by the detenu.

To our mind, the said contention raised by the learned Additional Solicitor General does not require us to delve into the issues as if the same are not res Integra. The Hon''ble Supreme Court in its decision reported as Raghavendra Singh Vs. Superintendent, District Jail, Kanpur and Others, held that in view of Section 3 (8) of the General Clauses Act, the "Central Government" means the President and a representation addressed to the President must, therefore, be considered to be a representation properly addressed to the Central Government. It was held that in a case where the representation is addressed to the President of India allowance may be made for the time taken to forward the representation to the appropriate Ministry.

The aforesaid judgment of the Hon''ble Supreme Court squarely answers out the submissions made by the learned ASG. At best, time taken in the President''s Secretariat to forward the representation to the appropriate Ministry for consideration would be taken into account and in the present case, the admitted position is that the President''s Secretariat forwarded the representation to the concerned Ministry on 24.1.2003 as per the additional affidavit filed by the respondent themselves. Thus, the only ground which remains to be considered to justify the delay in consideration and disposal of the representation is "that the concerned Ministry did not receive the representation". We have noted the averments made in paras 5 & 6 of the additional affidavit. The affidavit deposed by the concerned official of the concerned Ministry i.e. the Ministry of Home Affairs has deposed that the representation was delivered to the Ministry of Home Affairs by the President''s Secretariat on 24.1.2003 vide Peon Book No. 4 of Central Registry Section of President''s Secretariat. The affidavit clearly states that the representation was "delivered". We fail to understand the averments made in the next succeeding para of the affidavit wherein it is deposed that the Ministry of Home Affairs did not receive the representation. If, as per the affidavit, the representation was delivered on 24.1.2003 to the Ministry of Home Affairs vide the Peon Book No. 4 of the Central Registry Section of the President''s Secretariat, the subsequent averment in para 6 being at variance with the averment made in para 5 cannot be accepted. Once the official of the Ministry of Home Affairs, the concerned Ministry, deposes that the representation was delivered on 24.1.2003, a contrary stand cannot be adopted. It is obvious that the representation made to the President of India was duly delivered by the President''s Secretariat on 24.1.2003 to the Ministry of Home Affairs and it is in the said Ministry that the same got lost/misplaced.

Personal liberty is a precious value under our constitutional system recognised under Article 21 of the Constitution of India. Personal liberty of a person is fundamental and which eclipsed, the same must conform to the terms of Article 21 of the Constitution of India and in particular the last four words of the said Article, namely; "procedure established by law" which are the life of personal liberty. Article 22 of the Constitution of India while recognising preventive detention mandates and commands the concerned authority to whom the representation is submitted to consider and dispose of the same as expeditiously as possible. As held in JT 1991 (1) SC 216 K.M. Abdulla Kunhins vs. Union of India and Others the words "as soon as may be" occurring in clause 5 of Article 22 reflect the concern of the farmers of the Constitution that the representation should be expeditiously considered and disposed of without avoidable delay. To our mind this would require care and caution at the end of the authority which is charged with the duty of considering the representation to be vigilant and have a system where representations received are neither lost nor misplaced.

In present case the fact is that the representation which was received from the President''s Secretariat on 24.1.2003 remain lost/misplaced in the Ministry of Home Affairs till mid March, 2003 when on a receipt of the present writ petition the same was given due attention and consequential disposal. Since admittedly the representation filed by the wife of the petitioner was disposed of belatedly, the petition is liable to be allowed. The detention order dated 16th November, 2002 is hereby quashed and set aside. Petitioner shall be set at liberty forthwith in case he is not required to be detained in other case or under any other order.