Gauhati High Court
Md. Monisur Islam vs Union Of India (Uoi) And Ors. on 13 August, 2002
Equivalent citations: (2003)1GLR80
Author: Amitava Roy
Bench: P.P. Naolekar, Amitava Roy
JUDGMENT Amitava Roy, J.
1. The subject matter of challenge in the present proceeding is the order dated 18.1.2002 passed by the District Magistrate, Dhubri under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act) detaining the petitioner on the ground that it was so necessary to prevent him from acting in a manner prejudicial to the maintenance of public peace, order and tranquility. The petitioner is since then detained in the District Jail, Dhubri.
2. We have heard Mr. B.D. Konwar, learned counsel for the petitioner, Mr. C. Choudhury, learned Central Govt. Standing Counsel for the respondent No. 1 and Mrs. A. Hazarika, learned Addi. Senior Govt. Advocate, Assam for the respondent Nos. 2, 3 and 4.
3. The facts as narrated in the writ petition can be summarised thus :
"The petitioner, a citizen of India, has been detained pursuant to the order of detention dated 18.1.2002 passed by the respondent No. 3 under Section 3(2) of the Act and the grounds of detention have been served on him. The order of detention and the grounds thereof have been annexed as Annexure I and II respectively. The grounds of detention are vague and devoid of material particulars and the petitioner had not been supplied with relevant documents, basic facts and material particulars referred to and relied upon by the detaining authority while passing the order of detention. This has seriously prejudiced the petitioner and has denied him a proper opportunity of filing an effective representation against the order of detention. He however on 29.1.2002 submitted a representation addressed to the appropriate authorities. He submitted another representation before the authorities on 10.2.2002 against the order of detention. According to the petitioner, no report and/or document whatsoever having a bearing on the ground of detention and relied upon by the detaining authority, had been supplied to him. The grievance of the petitioner, inter alia, is that the State Government did not consider and dispose of his representation dated 29.1.2002 expeditiously and that there had been inordinate delay in that regard. His said representation was disposed of by the State Government on 25.2.2002 and the order of rejection was communicated to him vide, Memo No. PLA.42/2002/88 dated 25.2,2002 issued by the Deputy Secretary, Govt. of Assam, Political (A) Department. His further grievance is that the Central Government has also failed to discharge its statutory obligation to consider and dispose of his representation expeditiously as required under the law. The Central Government disposed of his representation dated 29.1.2002 only on 18.2.2002 and there is no explanation for such delay. The petitioner has challenged the impugned order dated 18.1.2002 and his continued detention on the following grounds:
(a) The grounds of detention are vague, irrelevant, non-existent and extraneous and have no live-link with the object of detenttone.
(b) There has been total non-application of mind on the part of detaining authority in passing the impugned order of detention and the purported satisfaction of the said authority is no satisfaction in the eye of law.
(c) At the relevant time, the petitioner was facing a probable prosecution in criminal cases and the order of detention was passed to circumvent his prospect of getting bail from the appropriate court of law.
(d) At the relevant time, the petitioner was already in detention in other criminal cases and thus, the order of detention under the Act was passed most casually and mechanically.
(e) All documents having a bearing on the grounds on detention were not supplied to the petitioner resulting in violation of his constitutional rights.
(f) The Government of Assam had not passed any order under Section 3(3) of the Act empowering the District Magistrate of any district of Assam to exercise the powers under Section 3(3) of the Act and assuming that any such order had been passed, the District Magistrate, Dhubri, respondent No. 3 was not competent to pass the impugned order of detention. The petitioner is not involved or connected with the alleged incident and offences referred to in the grounds of detention.
(g) The representation vis-a-vis the report pertaining to the detention of the petitioner along with all material particulars were not sent to the Central Government forthwith without any delay. The State Government had withheld the representation of the petitioner without forwarding it to the Central Government till the same was rejected by the State Government.
(h) The respondent No. 3 did not report the fact of the petitioner's detention together with the grounds and other particulars having a bearing on the matter to the State Government as well as the Central Government within the statutory period as required under Section 3(4) and 3(5) of the Act.
(i) The State Government did not approve the order of detention within the period stipulated by law.
(j) The State Government did not place before the Advisory Board the representation submitted by the petitioner, the grounds of detention along with the report of the District Magistrate, Dhubri within three weeks from the initial order of detention.
(k) The Advisory Board did not call for the relevant materials having a bearing on the matter and failed to submit its report in the manner and within the time framed prescribed by Section 11 of the Act.
(l) The Advisory Board failed to forward all the relevant particulars and documents pertaining to the proceedings before it to the Government of Assam which in turn passed the order of confirmation mechanically without taking into account such relevant factors.
(m) The Central Government failed to act in terms of Section 14 of the Act on receipt of the information of the detention of the petitioner. There has been unduly delay on the part of the State Government and the Central Government in disposing of the representation of the petitioner and there is no explanation for such delay."
4. In the affidavit filed on behalf of the respondent No. 1, it has been inter alia, stated that a report under Section 3(5) of the Act about the detention of the petitioner was made by the Government of Assam to the Central Government in the Ministry of Home Affairs vide, letter No. PLA.42/2002/62 dated 29.1.2002. The report was received by the Central Government in the Ministry of Home Affairs on 5.2.2002 and in the concerned Desk in the Ministry of Home Affairs on 6.2.2002. The Central Government completed the examination of the report in the Ministry of Home Affairs on 12.2.2002. The concerned Joint Secretary in the Ministry of Home Affairs who was authorised to act under Section 3(5) of the Act examined the report and decided on 12.2.2002 that no interference with the order of detention was called for.
5. It has been further stated that a representation dated 29.1.2002 of the detenu along with the parawise comments of the detaining authority was received by the Central Government in the Ministry of Home Affairs on 8.2.2002 through the Government of Assam letter No. DC. 13/2002/66 dated 4.2.2002 and the same was received by the concerned Desk of the same Ministry on 13.2.2002. The representation was immediately processed and was put up before the Under Secretary of Home Affairs on 13.2.2002 who in turn put up the same before the Joint Secretary, Ministry of Home Affairs on the same date. The latter authority put up the same before the Union Home Secretary on 14.2.2002 with his comments thereon. The Union Home Secretary who has been delegated the power to decide such cases considered the representation of the petitioner and rejected the same on 15.2.2002. Therefore, the representation of the petitioner was disposed of within a period of 6 (six) days from the date of receipt thereof and there was no delay in taking a decision in that regard. The petitioner was also informed about the decision by a crash wireless message dated 18.2.2002 through the Home Secretary, Government of Assam and the Superintendent, District Jail, Dhubri. A letter to the said effect followed the message.
6. The affidavit further discloses that another representation dated 10.2.2002 from the petitioner was received by the Central Government in the Ministry of Home Affairs on 18.2.2002 and in the concerned Desk of the same Ministry on 20.2.2002 directly from the petitioner. The said representation after being processed was placed before the Union Home Secretary who considered the same and rejected it on 21.2.2002. Thus, this representation was disposed of within a period of 4 (four) days from the date of receipt thereof and that, there was, therefore, no delay in disposing of the same. The decision of the Central Government was communicated to the petitioner by a crash wireless message dated 22.2.2002 through the Home Secretary, Government of Assam and the Superintendent, District Jail, Dhubri and the message was followed up by a letter dated 26.2.2002. It is, therefore, the stand of the respondent No. 1 that the representations submitted by the petitioner were considered most expeditiously and he was informed of the decision immediately thereafter through wireless messages.
7. In the affidavit filed on behalf of the respondent No. 2 while denying the allegation that the grounds of detention are vague and devoid of material particulars, it has been averred that the order of detention and grounds in support thereof and other relevant documents were supplied to the petitioner in time and that he was not denied the opportunity of making an effective representation. It has been stated that the representation dated 30.1.2002 submitted by the petitioner was forwarded to the State Government vide, communication No. DC/13/2002/66 dated 4.2.2002 along with copies of the detention order and other relevant documents. It has been categorically asserted that the order of detention has been passed, based on the grounds of detention after careful examination of all materials and informations available with the detaining authority. It has been contended that the fact of detention together with the grounds and other particulars having a bearing on the matter was duly reported to the State Government by the detaining authority immediately after the order of detention was passed. The affidavit discloses that the State Government had issued a notification vide. No. PIA.326/97/ 55 dated 29.11.2001 empowering the District Magistrates of Assam to act under Section 3(3) of the Act. It has been stated therein that the concerned Advisory Board duly considered the representation of the petitioner and other materials and submitted its opinion/report to the Government within the time prescribed under the law. The further contention in the affidavit is that the representation submitted by the petitioner was disposed of with reasonable promptitude and the State Government approved the order of detention on 25.1.2002, i.e., within the stipulated time.
8. Mr. Konwar, learned counsel for the petitioner has emphatically urged that the order of detention is vitiated by total non-application of mind on the part of the detaining authority inasmuch as, it totally left out of consideration the fact that the petitioner had been granted bail on 17.1.2002 in all the criminal cases in connection with which he was detained in the District Jail, According to the learned counsel, therefore, there was no basis for the detaining authority to draw its satisfaction in support of the order of detention, The learned counsel has, therefore, contended that on that ground alone, the impugned order of detention is liable to be set aside and quashed by this court.
9. The learned counsel next argued that there has been an unexplained delay in transmitting petitioner's representation dated 30.1.2002 by the District Magistrate, Dhubri to the State Government as well as the Central Government and the same is fatal keeping in view the mandatory requirements of the Act and on that ground as well the continued detention of the petitioner is liable to be adjudged illegal and unconstitutional.
10. The learned counsel further argued that In the instant case there has been an inordinate delay in disposal of the representations of the petitioner and there is nothing on record to satisfactorily explain the same. The learned counsel, therefore, contended that this has vitiated the continued detention of the petitioner in the above facts and circumstances being per se in violation of the constitutional mandate preserved in Article 22(5) and provisions of the Act, and he is entitled to a declaration that his detention is illegal and is, therefore, liable to be set at liberty.
11. The learned counsel has strenuously contended that some of the documents relied upon and referred to in the order and grounds of detention and furnished to the petitioner are not legible as a result of which, he could not submit an effective representation against his detention. He submitted that the petitioner having been furnished with illegible copies of the said documents, he has been deprived of his valuable right of submitting a representation, thus, rendering his continued detention ex facie, illegal and unconstitutional.
12. The learned counsel for the petitioner has further submitted that under Section 3(5) of the Act, when any order is made or approved by the State Government under that provision of the Act, report of the said fact together with the grounds on which the order has been made along with such other particulars as in the opinion of the State Government have a bearing on the necessity for the order has to be made to the Central Government within 7 (seven) days. According to him, in the instant case, the order of detention was passed on 18.1.2002 and the report of the same was communicated by the State Government to the Central Government only on 29.1.2002 and the said report was received by the Central Government on 5.2.2002 and the same reached the concerned Desk of the Ministry of Home Affairs on 6.2,2002, much beyond the stipulated period of 7 (seven) days prescribed under Section 3(5) of the Act.
13. In support of his submissions, the learned counsel has placed reliance on the following decisions of the Apex Court as well as this Court.
(i) (1989) 3 SCC 277 (Aslam Ahmed Zahire Ahmed Shaik v. Union of India and Ors.,)
(ii) 1997(II) GLT 374 (Naren Neog @ Naren etc. v. State of Assam and Ors.)
(iii) 1997(II) GLT 409 (Prituo Solo v. Union of India and Ors.)
(iv) 1997(II) GLT 165 (Vuxuto Achumi v. The Union of India and Ors.)
(v) (1982) 2 SCC 43 (Vijay Kumar v. State of Jammu & Kashmir and Ors.)
(vi) (1980) 4 SCC 531 (Smt. Icchu Devi Choraria v. Union of India and Ors.)
(vii) (1981) 2 SCC 710 (Harish Pahwa v. State of U.P. and Ors.)
(viii) (1981) 2 SCC 480 (Smt. Khatoon Begum v. Union of India and Ors.)
(ix) (1987) 2 SCC 234 (Bhupinder Singh v. Union of India and Ors.)
(x) 2000 (2) GLT 216 (Maniram Narzary @ Mani Narzary v. Union of India and Ors.)
(xi) (1990) 2 SCC I (M. Ahamedkutty v. Union of India and Anr.)
(xii) (1991) 2 SCC 1 (Smt. Gracy v. State of Kerala and Anr.)
(xiii) (1987) 4 SCC 58 (Mohinuddin Alias Moin Master v. District Magistrate, Beed and Ors.)
(xiv) 1980 (Supp) SCC 391 (Smt. Pushpa v. Union of India and Ors.)
(xv) (1982) 1 SCC 12 (Sat Pal v. State of Punjab and Ors.)
14. In reply, Mr. Choudhury, learned Central Govt. Standing Counsel while referring to the affidavit filed on behalf of the respondent No. 1 has argued that the Central Government had in the instant case, immediately on receiving the representations submitted by the petitioner processed the same and had disposed of the representations as early as possible without unnecessary delay. According to him, there has been no lapse on the part of the Central Government in dealing with the representations and no provision of the Act requiring the Central Government to act in such matters had been contravened.
15. Mrs. Hazarika, learned Addl. Senior Govt Advocate has produced the relevant records relating to the detention of the petitioner. Relying on the affidavit filed on behalf of the respondent No. 2 and the records, she has submitted that the contentions raised on behalf of the petitioner with regard to the delay in transmitting the representations of the petitioner to the Central Government and in disposing of the same are wholly without any basis. She has also refuted the arguments advanced by the learned counsel for the petitioner to the effect that the impugned order of detention suffers from non-application of mind on the part of the detaining authority and that illegible copies of vital documents have been furnished to the petitioner, thus, denying him a real and meaningful opportunity of making an effective representation against his detention. She has submitted with considerable force that there are sufficient materials on record to justify the order of detention and the detaining authority being fully satisfied with the detention of the petitioner was necessary to prevent him from acting in a manner prejudicial to the maintenance of public peace, order and tranquility had passed the impugned order of detention. She has argued that it is absolutely clear from the relevant records that the said authorities have acted strictly in conformity with the requirements of the Act and no provision thereof has been violated. She has submitted that no interference, thus, is called for with the impugned order of detention and the subsequent orders confirming the same.
16. Having regard to the submissions made by the learned counsel for the petitioner that there has been a delay in transmitting the representations submitted by the petitioner to the concerned authorities of the State Government and the Central Government and further in the matter of disposal thereof, we have looked into the records produced on behalf of the State authorities so as to satisfy ourselves with regard to tenability of the said contentions.
17. The records reveal that the order of detention was passed on 18.1.2002, three copies whereof were, inter alia, forwarded to the Superintendent of Police, Dhubri with a direction to serve a copy of the order together with the grounds of detention with Assamese version thereof, copies of FIR, seizure list and relevant extract of the dossier on the petitioner. The aforesaid copies were served on the petitioner on 19.1.2002. On 29.1.2002, the Government approved the said order of detention. A copy of the detention order along with the grounds of detention were directed to be forwarded to the Joint Secretary to the Government of India, IS-II Division, Ministry of Home Affairs, New Delhi by the said order. On the same date, the petitioner submitted a representation before the State Government. The said represetation was forwarded on the same date by the Superintendent of District Jail, Dhubri where the petitioner is lodged to the District Magistrate, Dhubri. On 30.1.2002, the petitioner submitted another representation before the N.S.A. Advisory Board. The said representation was forwarded by the Superintendent, District Jail, Dhubri to the District Magistrate, Dhubri on the veiy same date, i.e., 30.1.2002. On 1.2.2002, the District Magistrate, Dhubri forwarded the representation of the petitioner to the Superintendent of Police with a request to submit parawise comments thereon immediately indicating that the said representation along with parawise comments would have to be submitted to the Joint Secretary, Government of India, Ministry of Home Affairs, New Delhi. The Superintendent of Police. Dhubri submitted the parawise comments on the representation of the petitioner before the District Magistrate, Dhubri on 2.2.2002. On 2.2.2002, the State Government forwarded the relevant documents and materials along with the copies of the detention orders, grounds of detention etc. to the NISA Advisory Board, Guwahati. The District Magistrate, Dhubri forwarded the representations of the petitioner along with the parawise comments thereon to the State Government on 4.2.2002. A copy of the forwarding letter being No. DC. 13/2002/66 dated 4.2.2002 along with the copy of the representation and parawise comments thereon were also sent by speed post to the Joint Secretary, Government of India, Ministry of Home Affairs, IS-II Division, New Delhi. The representation of the petitioner addressed to the NSA Advisory Board was forwarded to the Board by the Government on 6.2.2002. The records reveal that the hearing before the Advisory Board took place on 14.2.2002 in course of which the petitioner was heard in person, the grounds of detention were read over and explained to him in Assamese, a language which he understands. All relevant records and documents were perused by the Board on 16.2.2002 and it recorded its opinion holding that upon hearing the petitioner in person and on considering his representation and the other materials on record, there were sufficient cause/causes for his detention under Section 3 of the Act. The Board prepared its report in the above lines on 16.2.2002 and the said report was forwarded to the Government by the Board on 25.2,2002, The Central Government rejected the said two representations of the petitioner on 18/20.2.2002 and 22/ 25.2.2002 respectively. Incidentally, the State Government rejected the representation of the petitioner on 20/25.2.2902, Thereafter, the State Government confirmed the order of detention on 20.3.2002.
17. We have extended our anxious consideration to the arguments advanced by the learned counsels for the parties. Starting with the authorities cited by the learned counsel for the petitioner, the first on the point of delay in transmission of the representation of a detenu is one in Aslam Ahmed Zahire Ahmed Shaik (supra). The detenu therein was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA), He had submitted a representation against the detention on 16.6.1998 and was received by the COFEPOSA section of the Ministry of Finance on 27.6.1988. The delay of 11 days in such transmission was not approved by the Apex Court as it was of the view by considering the explanation that was submitted that the representation was left unattended for a period of seven days after its submission before forwarding it to the appropriate authority. The continued detention of the detenu was held to be illegal and constitutionally impermissible.
18. This court in its decision reported in Vuxuto Achumi (supra) while dealing with the similar contention held the continued detention of the detenu therein to be illegal because of failure on the part of the authorities concerned to explain the delay of 16 days in withholding the representation submitted by the concerned authorities.
19. A similar view was taken by this Court in Naren Neog (supra) where the unexplained period of delay was of 11 days in disposal of the representation by the State Government and of 17 days in sending the same to the Central Government. The continued detention of the detenu was similarly held to be illegal.
20. The above view was reiterated by this Court in Pritou Solo (supra) where amongst others a delay of 9 days was involved during which the representation of the petitioner remained unattended. Further another 8 days were spent for processing the concerned file. This Court observed in that decision that there was no explanation about the delay.
21. It may be pertinent to notice that all the three decisions of this Court dealt with the issue of continued detention under the Act.
22. The Apex Court in Vijay Kumar (supra) while dealing with a similar contention raised on behalf of the detenu noticed a delay of 14 days and 19 days at two different stages in the process of dealing with the representation of the detenu. The detention was under the Jammu and Kashmir Public Safety Act, 1978. While dealing with the constitutional protection conferred by Article 22(5) of the Constitution of India in such matters, the Apex Court, inter alia, observed that the jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. It further observed that the intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action, It recorded its view that if the Government enacts a law empowering certain authorities to make the detention order and also simultaneously makes a statutory provision for affording the earliest opportunity to the detenu to make his representation against his detention to the Government and not the detaining authority, the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and the same is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order, it observed.
23. On an identical reasoning, the Apex Court in Smt. Icchu Devi Choraria (supra) discountenanced the delay at various stages in the process of disposal of the representation submitted by the detenu therein.
24. In Smt. Khatoon Begum (supra), the detention was under the Act, A contention was raised on behalf of the respondent authorities that the rule requiring expeditious consideration of a detenu's representation is a Judge-made rule based on the provisions of COFEPOSA and that the extension of the application of the rule to cases of detention under the Act was unwarranted. It was further contended that in the cases of detention under the Act, a certain amount of delay was Inevitable having regard to the procedure prescribed by the Act and, therefore, delay in consideration of the representation should not be allowed to prejudice the detention, Repelling the said contentions, the Apex Court held that the right of a detenu to have his representation considered at the earliest opportunity is not a right and an obligation flowing from either the COFEPOSA or the National Security Act but, is a right created by the very Constitution which breathes life into the Parliamentary or State Law. It observed that Article 22(5) enjoins a duty on the authority making the order of detention to afford the detenu the earliest opportunity of making a representation, against the order. It held that the right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative which cannot be curtailed or abridged. If the Parliament or the State Legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter-departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable, it concluded.
25. The Apex Court in Harish Pahwa (supra) while disapproving the delay in disposal of the representation involved in that case observed that calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. It emphasised that it was the duty of the State to proceed to determine representations of such character with utmost expedition, which means the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously until a final decision is taken and communicated to the detenu.
26. The decision of the Apex Court in Bhupinder Singh (supra) and that of this Court in Moniram Narzary (supra) are on the issue of failure on the part of the authorities to supply legible copies of documents to the detenu in spite of request made in that regard. It was held that such failure on the part of the authorities amounted to denial of the opportunity to the detenu to make his representation. The detention was held illegal and unconstitutional.
27. The bearing on the validity of the order of detention of the omission to place all documents and materials including the detenu's application for bail, the bail order etc., inter alia, was an issue in M. Ahamedkutty (supra). What would be the affect of non-supply of the bail application and bail order to the detenu was also in issue. It was held that if the detenu was already in jail, it was imperative that the grounds of detention should indicate the awareness of that fact on the part of the detaining authority, otherwise there would be a non-application of mind and the detention order would be vitiated thereby, The facts of the case revealed that the bail application and the bail order relating to the detenu were furnished to the detaining authority but the same were not supplied to the detenu. While observing that it is immaterial whether the detenu already knew about their contents or not, it was observed that if the bail application and the bail order had been considered by the detaining authority in arriving at its satisfaction in support of the order of detention, then those would be documents relied upon by it and, therefore, ought to have formed part of the documents supplied to the detenu with the grounds of detention and that without them the grounds themselves could not be said to have been completed. It further observed that as the bail application contained the grounds for bail and the bail order contained the conditions subject to which the bail was granted, if those were not considered, the satisfaction of the detaining authority itself would have been impaired. The Apex Court while noticing that the bail application and the bail order had not been supplied to the detenu in that case, held that the same amounted to denial of his right to make an effective representation resulting in-violation of Article 22(5) of the Constitution of India rendering his continued detention illegal.
28. The Apex Court in Smt. Gracy (supra) held that the dual obligation of consideration of the detenu's representation by the Advisory Board and the detaining authority flows from Article 22(5) of the Constitution of India and when only one representation is made addressed to the detaining authority, there, i.e., no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority. It emphasised that the said dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both and that the mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention.
29. In Mohinuddin alias Moin Master (supra), the detenu was detained under the Act. On 22.9.1986, he submitted a representation to the Chief Minister through the concerned Jail Superintendent. In the meantime, the State Government had approved the detention on 18.8.1986. On 6.10.1986, the detenu made another representation to the Advisory Board which on 13.10.1986 recommended confirmation of the order of detention. It was, thereafter, that the representation of the detenu submitted on 22.9.1986 was forwarded to the Chief Minister's Secretariat and acting upon the report of the Advisory Board, the State Government on 19.11.1986 confirmed the order of detention. The High Court disallowed the writ petition filed by the detenu challenging the detention on the ground of imperfect pleadings. While disapproving the approach of the High Court, the Apex Court observed that in the petition for grant of a writ of habeas corpus, it was enough for the detenu to say that he is under wrongful detention and the burden lies on the detaining authority to satisfy the court that the detention order is not illegal or wrongful and that the petitioner not entitled to the relief claimed. It was further held that in return to a rule nisi issued by the Apex Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention and must explain his subjective satisfaction and the grounds therefor and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who had personally dealt with or processed the case in the Secretariat or had submitted it to the Minister or other officer duly authorised under the Rules of Business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters. While referring to its earlier decision reported in (1979) 2 SCC 637 (Narendra Purshotam Umrao v. B.B.Gujral) to the effect that there was a duty cast on the Government to consider the representation made by the detenu without waiting for the opinion of the Advisory Board, the Apex Court observed that the constitution of an Advisory Board under the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it was received by it. It held in the facts of the case that the Government could not have kept the representation pending till the Advisory Board had submitted its report and there has been a failure on the part of the State Government to consider the representation made by the detenu rendering his continued detention invalid.
30. In Smt. Pushpa (supra), the Apex Court, inter alia, highlighted the purpose of affording an opportunity to the detenu to submit a representation at the earliest point of time as such representation could furnish informations necessitating revocation of the order of detention.
31. Two questions canvassed in Sat Pal (supra) were firstly, whether there was any duty cast on the State Government to forward the representation of the detenu under Section 11 of the COFEPOSA Act and secondly, whether the power of revocation of an order of detention by the Central Government under Section 11 thereof is exercisable only after the representation had been rejected by the State Government and the Advisory Board. The Apex Court while recalling the constitutional imperatives of Article 22(5) of the Constitution held that where the detenu makes simultaneously a representation to the detaining authority as well as an application for revocation under Section 11 of the said Act, those must be dealt with by the appropriate Government at the same time and there was no question of any conflict of jurisdiction.
32. The golden thread of consistent judicial opinion on the topic which runs' through the authorities referred to above seems to be that our Constitution while conceding the power of preventive detention has prescribed procedural safeguards for protecting a citizen against arbitrary and unjustified invasion of his personal liberty and a duty has been cast on the courts to zealously guard against infringement of the cherished right of personal liberty and to ensure that such procedural safeguards are not denied to the person concerned. As has been observed by the Apex Court, the power of preventive detention is a draconian power justified only in the interest of public security and order and, it is tolerated in a free society as a necessary evil. It follows thus, that the provisions of law authorising the preventive detention will have to be rigorously enforced and any breach thereof would be at the pain of invalidation of the related orders and decisions affecting the person concerned. The right to have the earliest opportunity of making a representation against the order of preventive detention has really its roots in the constitutional guarantee enshrined in Article 22(5) or the constitution of India, Any provision in the Act which requires affording of such an opportunity to the detenu is in addition to such constitutional right. While interpreting the expression "earliest" it is not so much the number of day's which counts but what really matters is with what live concern and promptness, the representation is processed and attended to at different levels and stage to stage. True, it is neither possible nor advisable to lay down a rigid period of time to be uniformly applicable to all cases within which the period the representation of the detenu has to be disposed of but, it is incumbent on the authorities, keeping in view their Solemn obligation in that regard, to do so with reasonable expedition and utmost concern. The judicial pronouncements noticed hereinabove, clearly proclaim that if the provisions of the Act are not scrupulously adhered to and if the representation submitted by the detenu is not attended to and disposed of at the earliest, the same vitiates the continued detention so much so that even if such representation is eventually dismissed on merits, the illegality does not get effaced. The constitutional mandate, therefore, brooks no unreasonable delay in the matter of consideration of the representation of the detenu.
33. Does the impugned order of detention and the continued detention of the petitioner satisfy the above constitutional mandate and the precepts of the Act ? We find that the impugned order of detention was passed on 18.1.2002 and the same was served on the petitioner on 19.1.2002. It transpires from the records that the petitioner on that date was on bail granted to him by the competent courts of law in connection with criminal cases pending against him. The grounds of detention furnished along with the order of detention do make a specific mention of 2 (two) police cases. However, there is no reference of the fact that the petitioner at the relevant time was on bail in connection therewith. One of the considerations for the detention of the petitioner as can be culled out from the grounds of detention is that if the petitioner is allowed to remain at large, there is every likelihood that he would indulge in activities with the help of some fundamentalist groups which would create communal tension amongst the people of different communities which would be a threat to public peace, order, stability and integrity of the country. Thus, though the detaining authority was of the above opinion, as it appears, it did not apply its mind to the fact that the petitioner had, in the meantime, been granted bail in criminal cases then pending against him. That before the order of detention was passed, the petitioner was on bail, had also been conteded by him in his representations made before the appropriate authorities. In the para-wise comments submitted by the Superintendent of Police, Dhubri to the said representations, it has been admitted that in Gouripur P.S. Case No. 157/2001 (one of the cases mentioned in the grounds of detention), the petitioner was granted interim bail by a competent court. However, as alluded above, this fact of the petitioner being granted bail in such case, appears not to have been considered by the detaining authority. There is nothing on record also to indicate that the bail applications submitted by the petitioner along with the orders of bail granted to him were furnished to him before he had submitted his representations. We are of the view that having regard to the observations made by the Apex Court in Ahamedkutty (supra), the non-consideration of the fact that the petitioner was at the relevant time, before the order of detention was passed, was on bail in the criminal cases including the one reference whereof had been made in the grounds of detention, had impaired the satisfaction of the detaining authority about the necessity of preventive detention of the petitioner. In the instant case, no affidavit has been filed by the detaining authority. The affidavit is on behalf of the respondent No. 2 alone. No explanation has been furnished as to why the detaining authority though a party to the proceedings has not filed its affidavit. This assumes importance in view of the observations made by the Apex Court in Mohinuddin (supra). There is nothing in the affidavit filed by the respondent No. 2 that the deponent had either personally dealt with the case or had processed the same. The parawise comments submitted by the Superintendent of Police, Dhubri indicates that the said authority was aware that the petitioner was granted bail in Gouripur P.S. Case No. 157/2001. If therefore, assuming that the detaining authority had also taken note of the said fact, though not spelt out in the grounds of detention, the non-furnishing of the bail application and the bail orders, in view of the pronounced judicial opinion recorded in the above decision amounts to a denial of a meaningful opportunity to the petitioner to submit his representation against the impugned order of detention. This, in our opinion, is sufficient to hold that there has been a violation of the constitutional right of the petitioner guaranteed under Article 22(5) of the Constitution of India rendering the continued detention of the petitioner illegal. We, thus, uphold the contention of the learned counsel for the petitioner in this regard.
34. The contention raised on behalf of the petitioner with regard to non-supply of legible copies of documents should not detain us for long as on perusal of the representations submitted, we do not find that any such grievance was expressed therein. The learned counsel for the petitioner has also not been able to point out anything in this regard from the records. This contention, therefore, fails. It appears from the rewords that on 29.1.2002, the State Government had forwarded the copy of the detention order together with the grounds of detention to the Central Government. The stand of the Central Government in its affidavit is that the said report was received by the Ministry of Home Affairs on 5.2.2002 and the concerned Desk of the said Ministry on 6.2.2002. The impugned order of detention was made on 18.1.2002 and was approved on 29.1.2002. Going by the language of Section 3(5), therefore, it cannot be said that there has been a breach of Section 3(5) of the Act, the communication having been made on the very same date on which the order of detention was approved. This contention of the learned counsel for the petitioner also fails.
35. We now turn to the aspect of the delay in transmission of the representation dated 29.1.2002 to the State Government and the Central Government and the alleged delay in disposal thereof. It appears from the records that the representations submitted before the State Government dated 29.1.2002 and 30.1.2002 along with para wise comments thereon were forwarded by the District Magistrate, Dhubri to the State Government as well as the Central Government on 4.2.2002. It appears from the affidavit filed on behalf of the Central Government that the representation dated 29.1.2002 was received by the Ministry of Home Affairs on 8.2.2002 and in the concerned Desk of the said Ministry on 13.2.2002. The representation was put up before the appropriate authority through different stages on 14.2.2002 and the same was rejected on 15.2.2002. The order of rejection was thereafter communicated by a crash message dated 18.2.2002 as well as by registered letter dated 18/20.2.2002. Considering the calendar of dates as above, we are of the opinion that there has not been any undue delay in disposal of the representation of the petitioner by the Central Government.
36. The facts relating to the disposal of the representation by the State Government, however, tell a different story. Though the representations as above were forwarded to the State Government on 4.2.2002, the same were rejected only on 20/25.2.2002. There is no explanation in the affidavit for the delay of about 15/20 days in disposing of the said representations.
37. In the meantime, the representation dated 30.1.2002 had been forwarded to the N.S.A. Advisory Board on 2.2.2002 and after the hearing before the said Board, it submitted its report that the detention was justified on 16.2.2002. The said report and the opinion of the Board was forwarded to the Government on 25.2.2002 which incidentally appears to be the date on which the State Government had rejected the representation of the petitioner. If the State Government had been waiting for the report for passing its order on the representation of the petitioner in the same lines as recommended by the Board, we are of the opinion that the State Government had in such a case also failed to discharge its constitutional obligation of independently considering and disposing of the representation without reference to the report or opinion of the Board. Thus, on the above two counts, in absence of any explanation whatsoever for the delay in disposing of the representation of the petitioner, we are of the considered view that the constitutional guarantee preserved in Article 22(5) of the Constitution had been violated by the respondents rendering the continued detention of the petitioner illegal and unconstitutional. We accordingly uphold the contention of the learned counsel for the petitioner with regard to the delay in disposal of the representation by the State Government. In view of these conclusions of ours, we do not consider it necessary to further deal with the aspect of disposal of the second representation submitted by the petitioner before the Central Government.
In the light of the above discussions, therefore, we are constrained to hold that the impugned order of detention suffers from non-application of mind of the detaining authority. Further, the continued detention of the petitioner, in view of the above, is also constitutionally impermissible. The impugned order of detention dated 18.1.2002 is, thus, set aside and the continued detention of the petitioner thereafter, is also adjudged illegal and unconstitutional. As a corollary, we order that the petitioner be released forthwith and be set at liberty if he is not wanted in any other case. The petition is thus allowed. However, in the facts and circumstances of the case, we make no order as to costs.