Bombay High Court
Shri Mahendra @ Babuwa Dashrath ... vs Shri Satish Sahney, Commissioner Of ... on 11 April, 1996
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. Heard Mr. Shirish Gupte for the petitioner (detenu). Mr. Rajiv L. Patil, A.P.P. for respondents Nos. 1 and 2 and Mr. J.C. Satpute for respondent No. 3.
By means of this writ petition, preferred under Article 226 of the Constitution of India, the petitioner (the detenu) has impugned the Order dated 26th April, 1995 passed by the Commissioner of Police, Greater Mumbai, Mumbai (respondent No. 1) in exercise of the powers conferred on him under section 3(2) of the National Security Act, detaining him (the petitioner) under the aforesaid Act.
2. The grounds of detention are annexed at Exhibit C to the petition. However, in our opinion, to recapitulate the grounds is not necessary for the disposal of this writ petition.
3. Mr. Shirish Gupte, the learned Counsel for the petitioner, has urged that the detention order stands vitiated on account of the fact that there was inordinate delay on the part of the respondent No. 2 (State of Maharashtra) in considering the representation addressed by the petitioner to the Advisory Board which after considering the same, forwarded it to the respondent No. 2. Mr. Gupte urged that in view of the decision of the Apex Court rendered in (1991)2 S.C.C. Smt. Gracy v. State of Kerala and another, an obligatory duty has been cast on the detaining authority to consider the representation addressed by the detenu to the Advisory Board and forwarded by the Advisory Board to it. He urged that in substance the aforesaid decision lays down that the detenu is under no legal obligation to make a separate representation to the State Government. The correctness of Mr. Gupte's submission is vindicated by the observation of Their Lordship in paragraph 9 which we propose to reproduce in entirety :
" 9. It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is 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 and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention of the learned Solicitor General. The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid 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. 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."
4. This ground of inordinate delay in the disposal of the detenu's representation has been incorporated by way of amendment as ground No. 7(L) to the petition. The specific grievance spelt out in the ground is that the representation of the detenu remained with the Deputy Chief Minister from 30-8-1995 till 9-9-1995 without any action. It has been urged by Mr. Gupte that the requirement in Article 22(5) of the Constitution of India in furnishing grounds to the detenu so that he can make a representation at the earliest casts a corresponding duty on the authorities to consider such representation at the earliest also. The proposition is so well settled that we do not want to advert to any authority.
5. Ground No. 7(L) has been replied to by Mr. M.D. Ambade, Desk Officer, Government of Maharashtra, Home Department (Special) Mantralaya, Mumbai, in paragraph 2 of an affidavit dated 6-4-1996. In the aforesaid paragraph it has been mentioned that the Principal Secretary (Preventive Detention) Home Department, after scrutiny of the entire papers put the same before the Deputy Chief Minister on 30-8-1995 and the said papers were received in the office of the Deputy Chief Minister (Home) on 31-8-1995. The Deputy Chief Minister was on tour outside Mumbai from 1-9-1995 to 3-9-1995. After returning from the tour and scrutinising the records of the materials placed before him, he was pleased to reject the representation on 9-9-1995. In the said paragraph it has also been averred that actually the file was with the Deputy Chief Minister only between the period 4-9-1995 to 8-9-1995. In the same paragraph, it has also been mentioned that the Deputy Chief Minister is the Minister in-charge of the Departments of Home and Energy and he has to look after the business of both the Departments and he was extremely busy in attending to very urgent Government business such as law and order in the State etc. and because of very busy schedule he could consider the representation only on 9-9-1995. Mr. Gupte, the learned Counsel for the petitioner vehemently urged that the explanation furnished for the delay in the disposal of the representation in paragraph 2 of the return filed by Mr. M.D. Ambade should not be accepted in view of the decision of the Apex Court Harish Pahwa v. State of U.P. He invited our attention to the observations made in paragraph 3 in particular :
"We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. 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. We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it ) until a final decision is taken and communicated to the detenu."
He urged that the explanation in Mr. Ambade's affidavit explaining the delay in consideration by the Deputy Chief Minister in between 4-9-1995 and 8-9-1995 is blissfully vague and far too general to receive acceptance by this Court. He urged that it was obligatory for the State Government to furnish details in respect of the work and problems of law and order on account of which the Deputy Chief Minister was busy. In his contention in a matter in which an infraction of fundamental right of the detenu under Article 22(5) of the Constitution of India is involved a most cogent and convincing explanation should come forth and this is not a case here.
6. Mr. Rajiv Patil, the learned Counsel for respondent Nos. 1 and 2 relying on the decision of the Apex Court , Fitrat Raza Khan v. State of U.P., urged that the delay in the instant case is not sufficiently long to vitiate the detention of the petitioner. He urged that in this case there was a delay of there days in the disposal of the representation by the Chief Minister and the same was not considered by the Supreme Court as undue delay. We have gone through the aforesaid decision and in our view, it does not para materia apply to the instant case. In that case from a perusal of paragraph 5 it is clear that file was received by the Chief Minister on August 21 and after studying it for two days he rejected the representation on August 24. In the present case, the file was with the Deputy Chief Minister for 6 days unlike in the case cited where it was with the Chief Minister for only 3 days. It is very legitimate to hold that the Chief Minister would have taken about three days time in disposing of the representation and the delay of three days could not be faulted as undue delay.
7. We would like to emphasise that no hard and fast rule, having universal application on the question of delay in disposal of the representation can be laid down. It would all depend on the peculiar facts of each case and more importantly on the nature of the explanation furnished for the delay in considering the representation. However, in the facts of this case and the explanation furnished, which have been spelt out by us above, the delay of six days was inordinate and the same has resulted in the infringement of the petitioner's fundamental right conferred by Article 22(5) of the Constitution of India rendering his continued detention unsustainable in law.
8. Hence this petition succeeds. The Order dated 26th April, 1995 passed by the respondent No. 1 detaining the petitioner under the National Security Act is quashed and it is directed that the petitioner shall be set at liberty forthwith unless wanted in some other case. Rule is made absolute.