Rajasthan High Court - Jaipur
Roshan vs State Of Rajasthan And Ors. on 31 March, 1993
Equivalent citations: 1993CRILJ2688
JUDGMENT B.R. Arora, J.
1. The petitioner, by this Habeas Corpus Petition, has challenged the legality of the order of detention dated October 2, 1992, passed by the District Magistrate, Banner, and the order Annexure 7, passed by the State Government confirming the order dated 2-10-92, by which the District Magistrate, Barmer, ordered for the detention of the petitioner as his activities were found prejudicial to the security of the 'State' and it was, therefore, found necessary to detain him in order to prevent him from acting in such manner.
2. The facts, which necessitated the Detaining Authority to order for the detention of the petitioner and to pass the impugned order dated 2-10-92, are that as per the confidential reports of the Military Intelligence, Barmer, dated 5-5-92 and 1-10-92, and the reports dated 1-10-92, 11-10-92 and 14-1-92 of the Border Security Force, Barmer, the petitioner was found engaged in the espionage activities and supplying important strategical informations to the Pakistan Secret Intelligence Agencies and is working as an agent of F.U.I. Looking into the various reports of the Military Intelligence, Barmer, the Border Security Force, the Superintendent of Police, Barmer, the District Special Force as well as the History-sheet of the petitioner maintained at Police Station, Gadra Road, and the Special Officer, Chautan and the Village Crime Book of village Khalefe Ki Babad, the District Magistrate, Barmer, was satisfied that with a view to preventing the petitioner from acting in any manner prejudicial to the security of the State, his detention is necessary and issued the order Annexure 1 ordering the detention of the petitioner in the Central Jail, Jodhpur. The order of detention Annexure. 1 was served on the petitioner on 2-10-92, and he was arrested and detained in the Central Jail, Jodhpur. On 4-10-92, Grounds of Detention Annexure. 2, alongwith the Village Crime Book (Annexure. 3) were served upon the petitioner so that the petitioner, if so likes, may make the representation. The petitioner, after receipt of the Grounds of Detention, made his representation on 30-10-92, to the Jail Authorities. The representation made by the petitioner was sent to the Detaining Authority, to the State Government as well as to the Central Government. The District Magistrate, Barmer, after the receipt of the representation, sent the same alongwith his opinion and parawise comments to the State Government. The representation of the petitioner was considered by the State Government on 4-11-92. The order of detention, passed by the Detaining Authority, was approved and the representation made by the petitioner was rejected by the State Government. The Advisory Board, also, considered the representation of the petitioner and the relevant materials regarding the detention of the petitioner produced before it and approved the detention made by the Detaining Authority. After the receipt of the report of the Advisory Board by the State Government, the State Government confirmed the detention order passed by the Detaining Authority and ordered for the detention of the petitioner from 2-10-92 to 1-10-93. The representation, filed by the petitioner, was, also, dismissed by the Central Government. The order of detention dated 2-10-92 (Annexure. 1), passed by the District Magistrate, Barmer, as well as the order dated 24-10-92 (Annexure. 7) confirming the order of detention and ordering the detention of the petitioner for one year, i.e. since 2-10-92 to 1-10-93 have been challenged by the petitioner on three grounds, namely, (i) that there has been considerable delay in considering the representation filed by the petitioner by the Central Government, infringing the rights of the petitioner, granted under Article 22(5) of the Constitution of India, (ii) that the grounds of detention are vague and insufficient and the necessary details of the charges, on which the subjective satisfaction of the Detaining Authority was based, was not supplied to the petitioner, which has deprived the petitioner from making an effective representation; and (iii) the representation filed by the petitioner was not considered by the Detaining Authority, who was bound to consider the same and the non-consideration of the representation by the Detaining Authority has resulted in the failure of justice, which invalidates the detention of the petitioner.
3. The learned Additional Advocate General as well as the learned counsel for the Union of India have supported the order of detention passed by the Detaining Authority and confirmed by the State Government.
4. Now, let us examine each of the above contentions raised by the learned counsel for the petitioner-detenu and to see whether the impugned order of detention is vitiated on any of the above legal submissions?
5. The first ground on which the order of detention has been challenged by the learned counsel for the petitioner is that the representation of the petitioner has not been given prompt and expeditious consideration and was allowed to lie without being properly attended to by the Central Government and the delay of about two months in the consideration of the representation by the Central Government in the absence of any satisfactory explanation, renders the order of detention invalid. The learned counsel for the petitioner-detenu, in support of its contention, has placed reliance over a number of judgments. It is not necessary to refer and consider all these authorities in the present case as the law on the point is well settled. The learned Additional Advocate General as well as the learned counsel for the Union of India, on the other hand, have submitted that there is no delay in deciding the representation made by the detenu. Their further contention is that the delay in deciding the representation will not, by itself, vitiate the detention order when the order was passed after detailed investigation and consideration. Learned counsel for the Union of India as well as the learned Additional Advocate General have, also, placed reliance over a number of judgments, in which effect of the delayed consideration of the representation, came-up for consideration. It is not necessary to burden this judgment with the case-laws relied upon by the learned counsel for the parties. The question regarding the delayed consideration and disposal of the representation of the detenu came up for consideration before the Hon'ble Supreme Court in numerous cases, including the cases on which reliance has been placed by the learned counsel for the panties. The proposition of law deduciable from these judgments has been summarised by the Supreme Court in the case of Rama Dhandu Borade v. V.K. Saraf, the Commissioner of Police, (1989) 3 SCC 173 : (1989 Cri LJ 2119), in the following words (at p. 2123 of Cri LJ) :-
"The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible. This Constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal since such a breach would defeat the very concept of liberty the highly cherished right - which is enshrined in Article 21 of the Constitution.
True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the words "as soon as may be" occuring in Article 22(5) of the Constitution of India reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sence of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention."
The detenu has a constitutional right to make a representation to be considered at the earliest opportunity. It is obligatory for the Central Government to consider the representation made by the detenu with immediate despatch. This obligation is created by Article 22(5) of the Constitution of India. Article 22(5) of the Constitution of India enjoins a duty on the Detaining Authority to consider and decide the representation of the petitioner-detenu with promptness.
6. Now, we have to see whether in the present case the Constitutional imperative of Article 22(5) of the Constitution of India has been observed or not and whether the representation filed by the petitioner has been considered expeditiously? The petitioner was detained by the Detaining Authority on 2-10-92 and the Grounds of Detention were served upon him on 4-10-92. Representation was made by the petitioner-detenu on 30-10-92, which was forwarded by the Detaining Authority to the State Government, the Advisory Board and to the Central Government. The representation made by the petitioner was rejected by the State Government on 4-11-92. In the counter filed by the Union of India and the State of Rajasthan, it has been stated that the representation dated 30-10-92, made by the petitioner-detenu was received by, the Central Government on 4-11-92. The representation was processed for consideration but certain vital informations required further consideration and, therefore, the State Government was directed, vide wireless message dated 5-11-92, to supply those informations. This wireless message was received by the Home Secretary, Government of Rajasthan on 5-11-92, asking the State Government for sending the parawise comments on the representation alongwith the actual date of detention, the grounds of detention, as well as the opinion of the Advisory Board. The Deputy Secretary, Home Department, Government of Rajasthan, vide its letter dated 9-11-92, sent the copy of the representation as desired by the wireless message. It was, also, informed that the report of the Advisory Board is still awaited. The Advisory Board, in its meeting held on 12-11 -92, sent its report approving the detention of the petitioner. This report of the Advisory Board was received in the Home Department on 13-11-92. After the receipt of the report of the Advisory Board, the detention order was confirmed by the State Government vide Annexure. 7 and the report of the Advisory Board alongwith parawise comments received from the District Magistrate, Barmer, i.e., the Detaining Authority and the order passed by the State Government rejecting the representation, were sent to the Central Government. All these papers were received by the Central Government on 30-11-92. After the receipt of the relevant materials, the case of the detenu was considered by the Joint Secretary, Ministry of Home Affairs, New Delhi, on 2-12-92, who, with its recommendation, placed the same before the Special Secretary, Ministry of Home Affairs, New Delhi, on 3-12-92. The matter was processed and considered by the Special Secretary and was placed before the Hon'ble Home Minister, Government of India, on 4-12-92. Hon'ble the Home Minister himself considered the case of the detenu and rejected the representation of the detenu on 6-12-92, and the petitioner was informed about the same by a wireless message on 8-12-92. This message was followed by a letter dated 9-12-92. The representation made by the petitioner was expeditiously considered by the State Government as well as by the Central Government. The State Government disposed of the representation within a period of five days while the time taken by the Central Government in disposing of the representation has been satisfactorily explained. There is no unexplained delay in the disposal of the representation of the petitioner and there is no violation of the constitutional obligations enshrined under Article 22(5) of the Constitution of India by the respondents. The order of detention, passed by the respondent No. 1, detaining the petitioner, does not suffer from any infirmity. No constitutional procedure has been breached. There is no material on record from which inference of inaction or callousness on the part of the authorities can be drawn and the order of detention cannot be set-aside on this ground. The contention raised by the learned counsel for the petitioner on this point has no substance.
7. The next ground, on which the detention order has been challenged, relates to the vagueness and insufficiency of the grounds of detention supplied to the petitioner. The case of the petitioner is that the copies of the confidential reports submitted by the Intelligence Agencies against the petitioner, mentioned in para Nos. 1 and 2 of the grounds, have not been supplied to the petitioner which has deprived the petitioner from making effective representation. His further submission is that the non-disclosure of the material facts and the particulars to the detenu on the ground of 'public interest' can be resorted to only in exceptional circumstances and not in a case like the present one. In support of its case, the learned counsel for the petitioner has placed reliance over Bai Amina v. State of Gujarat, 1982 Cri LJ 1531 and Hazi Menu v. State of Rajasthan, (1989) 2 WLN 310.
8. In the case of Haji Menu v. State of Rajasthan (supra), a Division Bench of this Court, while considering the question regarding the non-supply of the documents in public interest, held that Article 22(6) of the Constitution of India puts a limitation on the right of the detenu and authorises the Detaining Authority to conceal or refuse to disclose the material facts, which according to him, is not in the public interest. The Court further opined that this can be done under Section 8(2) of the National Security Act, also. The Court, after considering both the provisions, i.e., Article 22(6) of the Constitution of India and Section 8(2) of the Act came to the conclusion that on the one hand there is a fear that the disclosure of the fact is not in the public interest and on the ether hand, there is another fear that if the relevant facts are not brought to the notice of the detenu then it will not afford reasonable opportunity to the detenu for denying the allegations and therefore, a balance is required to be maintained and it is for the Detaining Authority to apply its mind and before the order is made, it must appear that the Detaining Authority has considered all the aspects of the case and came to the conclusion that a disclosure of such facts will impair the public interest as the non-disclosure will deprive the detenu of his right to make effective representation. In that case, no affidavit was filed by the Detaining Authority that the disclosure of the report is not in the public interest and, therefore, the order of detention was set-aside on the ground that the relevant material was not supplied to the detenu.
9. In Bai Amina v. State of Gujarat, (1982 Cri LJ 1531) (supra), a Division Bench of Gujarat High Court while considering the question : whether the disclosure of a document is in the public interest or not, held that the question of public interest is not justiciable and although the Constitution of India and the Act have left it to the Detaining Authority to decide what materials and particulars should be withheld, the Court must at least be satisfied that the Authorities have applied their mind and have come to the conclusion with regard to the public interest bonafide and not arbitrarily or capriciously and once the affidavit of the Detaining Authority discloses the grounds and reasons, which weighed with it in withholding the documents, it will be the duty of the Court to examine whether the grounds and reasons have any reasonable connection with the public interest and whether the Detaining Authority could have been reasonably satisfied with these basis that the disclosure of the document was not in the public interest.
10. Sub-section (1) of Section 8 of the Act makes it obligatory on the Detaining Authority to communicate to the detenu the grounds on which the order of detention has been made in order to enable the detenu to make a purposeful and effective representation. The grounds, as contemplated under Section 8(1) of the Act must contain the reasons on which the order of detention is based. It must contain the pith and substance of the basic and primary facts. The grounds which are required to be supplied are the conclusion of the facts and not the complete detailed -recital of the facts. The right of the detenu to be furnished with the facts and particulars is subject to the limitation mentioned in Clause (6) of Article 22 of the Constitution of India as well as in Sub-section (2) of Section 8 of the Act. The Detaining Authority has a right to withhold such facts or particulars, the disclosure of which it considers to be against the public interest. Whether the disclosure of any fact involves therein against public interest, is within the domain and consideration of the Detaining Authority and not in any other authority. The Detaining Authority, in Grounds Nos. 1 and 2, has stated that there are confidential reports of the Military Intelligence Agencies against the petitioner showing the involvement of the petitioner-detenu in the smuggling activities as well as in supplying the strategical informations to the Pakistan Secret Agencies and further showing the connection of the petitioner with the Pakistan's Secret Agencies. It has further been stated in the Grounds itself that the disclosure of these two reports is against the public interest and the security of the State. The disclosure of a confidential report and the source of intimation used in the ground or utilized for making the order of detention and the disclosure of the confidential reports is not necessary to be supplied to the detenu. What is necessary for making an effective detention is the disclosure of the material facts and the copies of the report and not the source thereof. In the present case, by indicating the fact that the confidential reports submitted by the Military Intelligence Agencies indicate the connection of the petitioner-detenu with that of Pakistan Secret Agencies and the involvement of the petitioner-detenu in the smuggling activities, a suggestive disclosure of the facts the source has, also, been made and there is no infringement of any of the right of the petitioner to make an effective representation. The grounds supplied by the respondent, cannot be said to be vague or insufficient and there is no infringement of any law in not supplying the copies of the confidential reports or disclosing the source thereof by the respondents to the petitioner-detenu. This view taken by us found support from the judgment of the Supreme Court in the case of: Masterlal Mohammed Sabir v. State of Jammu and Kashmir (1971 Cri LJ 1271) : (AIR 1971 SC 1713) and the State of Rajasthan v. Shamsher Singh, 1985 Cri LR (SC) 270 : (1985 Cri LJ 1348). In State of Rajasthan v. Shamsher Singh (supra), it has been observed by the Apex Court that (para 15):-
"The detenu is not entitled to a disclosure of confidential source of the information used in the grounds or utilized for making the order. What is necessary for the making of an effective representation is the disclosure of materials and not the source thereof. By indicating that the facts have been gathered from confidential reports, suggestive disclosure of the submission of the respondent that there has been an infraction of law in not supplying to the respondent the copies of the reports or disclosing the source thereof. The respondent had actually been given in the grounds all material details necessary for making an effective representation."
11. The last ground raised by the learned counsel for the petitioner is that the representation made by the petitioner was not considered by the Detaining Authority and the Detaining Authority merely forwarded the representation of the petitioner alongwith his comments, which has resulted in the failure of justice and, thus, vitiates the detention order. In support of its case, the learned counsel for the petitioner has placed reliance over Smt. Santosh Anand v. Union of India, (1981) 2 SCC 420. The case of Smt. Santosh Anand, relied upon by the petitioner, was under the COFEPOSA Act, and Section 11 of the COFEPOSA Act makes a provision for consideration of the representation by the Detaining Authority and gives power to the Detaining Authority, after consideration of the representation, to revoke the detention order. But under the National Security Act, the power of revocation or modification of the order of detention does not vest in the District Magistrate/Detaining Authority. Section 8 of the Act deals with the supply of the Grounds of order of Detention to the detenu and making of the representation by him against the order. Sub-section (1) of Section 8 provides that when a person is detained in pursuance of the detention order, the authority making the order, shall communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate government. Sub-section (1) of Section 8, therefore, provides that the representation against the detention has to be made to the appropriate government and not to the Detaining Authority. Section 14 of the Act gives power to the State or the Central Government(s) to revoke or modify an order of detention passed by the authority at any time. Sub-section (a) of Section 14 gives power to the Central Government or the State Government to which the officer is subordinate, who has passed the order under Section 3(3) of the Act. Sub-section (b) of Section 14 gives powers to the Central Government to modify or revoke the detention order if the order has been made by the State Government. The power of modification or revocation of the detention order has been given only to the State Government or the Central Government in cases where the order is passed by the Officer under Sub-section (3) of Section 3 of the Act and to the Central Government when the order is passed by the State Government. No power has been given to the officer authorised under Sub-section (3) of Section 3 to modify or revoke the order. Even Section 8 does not make any provision for making the representation to the Detaining Authority under Sub-section (3) of Section 3. The Detaining Authority while passing an order under Sub-section (4) of Section 3 is required to forthwith submit the representation to the State Government, to which he is subordinate with the grounds on which the order has been made and such other particulars as in his opinion have necessary bearing on the matter and no such order shall remain in force after twelve days of making of such order unless in the meantime it has been approved by the State Government. Subsection (5) of Section 3 of the Act cast a duty on the State Government to report the fact to the Central Government within seven days when any order is made or approved by the State Government under Section 3 together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government having a bearing on the necessity of the order. Admittedly, in the present case, the Detaining Authority, within twelve days of the passing of the order under Sub-section (3) of Section 3, reported the facts to the State Government alongwith the grounds on which the order was made and the State Government, vide its order dted 13-10-92, within twelve days of the order of detention, approved the order passed by the Detaining Authority and reported the fact to the Central Government under Subsection (5) of Section 3 and the Central Government, by its order dated 28-10-92, approved the order passed by the Detaining Authority as approved by the State Government as in the view of the Central Government there was no necessity to interfere with the order of detention approved by the Government of Rajasthan and, therefore, there was no reason to revoke or modify the order of detention. In view of the provisions of Sections 3, 8 and 14 there was, therefore, no necessity of consideration of the representation by the District Magistrate, i. e., the Detaining Authority. Even otherwise, also, the Detaining Authority, in the present case, after the receipt of the representation, forwarded the representation to the Central Govt. alongwith his opinion that the representation made by the petitioner-detenu deserves to be rejected and, also, submitted his parawise report/ comments giving reasons of his opinion. The representation of the petitioner, alongwith the report of the Detaining Authority and the other materials on record, was considered by the Advisory Board and the Advisory Board approved the detention of the petitioner. After the report of the Advisory Board, the State Government again considered the representation of the petitioner, the record of the case, the report of the Detaining Authority and the other materials and by its order dated 24-10-92, rejected the representation made by the petitioner and ordered for the detention of the petitioner since 2-10-92 to 1-10-93.
12. The question whether the representation of the detenu under Section 8 of the Act and under Article 22(5) of the Constitution of India is required to be considered by the District Magistrate ordering for the detention of the petitioner-detenu under Section 3(3) of the National Security Act, came-up for consideration before the Hon'ble Supreme Court in the case of : Raj Kishore Prasad v. State of Bihar, AIR 1983 SC 320 : (1983 Cri LJ 629). In that case the contention was raised that the Detaining Authority merely forwarded the representation to the State Government after making its report and without deciding the same and, therefore, the detention order stands vitiated. Reliance was placed on the same judgment on which reliance has been placed by the petitioner in this case, namely, Smt. Santosh Anand v. Union of India, (1981 2 SCC 420. The Apex Court distinguished the judgment of the Supreme Court in the case of Santosh Anand in view of the specific provision contained under Section 8 of the Act, which requires for making the representation to the appropriate government only and not to the Detaining Authority. The Apex Court, after distinguishing the Authority of the Supreme Court, in the case of Santosh Anand, (1981 (2) SCC 420), observed as under:-
"However, in view of the specific provisions contained in Section 8, which requires that the detaining authority shall afford earliest opportunity to make representation, not to the Detaining Authority but to the appropriate government, it follows as a corollary that the appropriate government must consider it. The Chief Minister has considered the representation and rejected it after calling for the parawise remarks by the Detaining Authority. Therefore, it is not possible to accept the contention that the failure of the Detaining Authority to consider the representation would invalidate the order."
In this view of the matter, the non-consideration of the representation by the Detaining Authority and reporting the matter to the appropriate government alongwith its opinion and parawise comments, does not invalidate the order of detention passed by the Detaining Authority.
13. In this view of the matter, the order of the detention, passed by the Detaining Authority, does not suffer from any infirmity.
14. In the result, we do not find any merit in this hebeas corpus petition and the same is hereby dismissed.