Bombay High Court
Shri Babulal Vildaram Bishnoi vs Smt. Reva Nayyar And Ors. on 28 September, 1998
Equivalent citations: (1998)100BOMLR608
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. Through this petition preferred under Article 226 of the Constitution of India, the petitioner, who is the brother-in-law of detenu Harish Chutraram Bishnoi @ Rajubhai @ Harish, has impugned the detention order dated 30.9.1997 passed by the respondent No. 1 - Smt. Reva Nayyar, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the PITNDPS Act) and the declaration No. 22/97 dated 21.10.1997, issued under Section 10(1) of the PITNDPS Act by the 3rd respondent Mr. S.S. Daware, Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi.
2. The detention order dated 30.9.1997, along with grounds of detention bearing the same date was contemporaneously served on the detenu on 13.10.1997.
3. We have heard Mr. R.G. Merchant for the petitioner, Mr. R.M. Agrawal for respondents Nos. 1 to 3 and Mrs. V. K. Tahilramani for respondents Nos. 4 and 5.
Since this petition, in our judgment, should succeed on a solitary ground namely that pleaded as ground No. 6(g) in the petition, we are not adverting to the prejudicial activities of the detenu mentioned in the grounds of detention.
4. The short and long of ground No. 6(g) is that the detenu made a representation dated 29.10.1997 to the Detaining Authority and has not received any communication from her in relation to the said representation and in case the same has not been disposed off or disposed off belatedly this Court should pronounce his continued detention as illegal and bad in law.
5. Ground No. 6(g) has been replied to in two returns.
The first is of the Detaining Authority dated 27.2.1998, wherein the said ground has been replied to in para 6(g). In the said para the Detaining Authority has averred that the detenu's representation dated 29.10.1997 addressed to her was received in the office on 10.11.1997. The comments of the Sponsoring Authority were called vide her letter dated 12/17.11.1997; 14.11.1997 was a restricted holiday and 15th and 16th November, 1997 were closed holidays. The letter was sent on 17.11.1997 and was received by the Sponsoring Authority on 20.11.1997. Thereafter the documents were translated and were required to be scrutinised and information was sought to be collected; 22nd, 23rd, 29th and 30th November, 1997 were closed holidays; and the concerned officer was engaged in secret surveillance between 24.11.97 to 28.11.97. The comments were sent to her on 1.12.1997; she received them on 5.12.1997; after careful consideration she rejected the representation on 5.12.1997; and the detenu was informed accordingly vide her Memo dated 8.12.1997 (6th and 7th December, 1997 were closed holidays).
6. Mr. Merchant, learned Counsel for the petitioner emphatically urged that the explanation furnished by the Detaining Authority in para 6(g) of her return has to be appreciated in the light of the fact that the representation of the detenu dated 29.10.1997, made to her, was not on merits but was confined to two small issues : viz. (a) since the detenu did not know English, he be furnished with Hindi translation of the documents so that he could make a representation to her and the Advisory Board and prove his innocence; and (b) that the statement purported to have been made by him before the N.C.B. Officers was not his voluntary statement, in fact was written by them and he was forced to pen his signature on it.
Mr. Merchant urged that considering the issues referred to in the representation of the detenu, the delay in disposal of his representation was unduly long.
Having gone through the representation dated 29.10.1997, we do find that Mr. Merchant is justified in urging that the representation was limited to the two issues mentioned above.
7. The question whether there was delay in the disposal of representation can only be decided after perusing the provisions of Article 22(5) of the Constitution of India and referring to some decisions of the Supreme Court.
Under Article 22(5) the detenu has a fundamental right to make a representation at the earliest opportunity. The Supreme Court has held that in the said right, there is an inherent obligation to dispose off the same at the earliest opportunity. Here it would be pertinent to refer to paragraph 3 of the decision of the Supreme Court in the case of Smt. Shalini Soni v. Union of India and others , wherein it has been observed thus :-
Quite obviously the obligation imposed on the Detaining Authority by Article 22(5) of the Constitution, to afford to the detenu the earliest opportunity of making a representation, carries with it the imperative implication that the representation shall be considered at the earliest opportunity. Since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Article 22(5) read with Article 19 the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural imperative must lead to the release of the detenu.
(emphasis supplied.)
8. The extreme urgency with which the representation should be disposed off has been emphasised by the Supreme court through various expressions, such as :-
(i) "Utmost expedition" Para 3, Harish Pahwa v. State of U.P. and others. (ii) "as expeditiously as possible" Para 3, Jayanarayan Sukul v. State of West Bengal (iii) "Expeditiously considered and Para 21, Rama Dhondu Borade v. disposed of with due prompti- V.K. Saraf and Ors. tude and diligence and with a sense of urgency and without avoidable delay" (iv) "at the earliest" Para 18 Kundanbhai Dulabhai Shaikh v. District Magistrate Ahmedabad and Ors.
9. The Supreme Court in para 3 of (supra), while emphasising the express urgency with which a representation should be disposed off observed thus :-
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."
(emphasis supplied )
10. In , (supra), the Supreme Court after analysing all the leading authorities observed thus in para 18 :-
Turning now to the main question relating to the early disposal of the representation, we may immediately observe that this Court in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the Court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of detention, and in that situation, continued detention, would become bad. This has been the consistent view of this Court all along from its decision in SK. Abdul Karim v. State of W.B.; Durga Show; In re Jayanarayan Sukuk v. State of W.B. ; Sk. Hanif v. State of W.B.; Raisuddin v. State of U.P.; Frances Coralie Mullin v. W.C. Khambra; Mohinuddin v. Distt. Magistrate; Rama Dhondu Borde v. V. K. Saraf, Commr, of Police; Aslam Ahmed Zahire Ahmed Shaik v. Union of India; Mahesh Kumar Chauhan v. Union of India, right upto its reiteration in Gazi Khan v. State of Rajasthan.
(emphasis supplied)
11. We however wish to point out that there is no rule of thumb, having universal application, that if a representation is disposed off within a certain number of days, it would be deemed to have been disposed off at the earliest and if not, not. It would all depend on the facts and circumstances of each case. In this connection, it would be useful to advert to the observations contained in para 4 of the decision of the Supreme Court in S.K. Rashid v. State of West Bengal , which are to the following effect :-
Now whether or not the State Government has in a given case considered the representation made by the detenu as soon as possible, in other words with reasonable dispatch, must necessarily depend on the facts and circumstances of that case, it being neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases.
The said decision was relied upon in (supra), wherein in para 21, the Supreme Court observed :
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.
12. In order to appreciate Mr. Merchant's submission, it would be necessary to once again advert to para 6(g) of the return of the detaining authority. A perusal of the said para would show that the delay was in two pockets viz. (i) between 12.11.97 and 17.11.97; and between 20.11.97 and 1.12.97.
13. So far as the delay in the first pocket is concerned, the reply of the Detaining Authority is that the letter dated 12.11.97 was despatched on 17.11.97; 14.11.97 was a restricted holiday; and 15.11.97 and 16.11.97 were closed holidays. In other words, the Detaining Authority avers that 14th, 15th and 16th be discounted from computing the delay. It may be that 15th and 16th November were closed holidays but we find that no explanation has been furnished in the return of the Detaining Authority as to why the letter dated 12.11.1997 was not sent the same day or the next day, i.e. 13th. We also find that although the Detaining Authority has stated that 14.11.97 was a restricted holiday but she has not mentioned whether she was on leave on the said date. In such a situation, even excluding the holidays, there is atleast a delay of two days in the first pocket.
14. The fatal delay in the contention of Mr. Merchant is in the second pocket, viz., between 20.11.97 and 1.12.1997. In para 6(g) of her return the Detaining Authority seeking to explain the delay in the said pocket, offered a twofold explanation viz. (i) between 24.11.97 to 28.11.97 the concerned officer of the Sponsoring Authority was engaged in secret surveillance work; and (ii) 22nd, 23rd, 29th and 30th November, 1997 were closed holidays.
15. Since the representation of the detenu dated 29.10.1997 only pertained to Hindi translation of the documents and verification of the fact whether his statement was the result of coercion or was voluntary, we felt during the course of hearing on 22.9.1997 that it was necessary to examine the original file to find out :- (a) whether there was any mention of secret surveillance work in it and (b) whether Mr. S.G. Kavitkar who had taken down the statement of the detenu was engaged in surveillance work and this became necessary because the Detaining Authority in para 6(g) of her return had only mentioned that between "24.11.97 to 28.11.97 the concerned officer was engaged in secret surveillance work" and had not mentioned the name of the officer. At that point of time we felt that if on the file there was mention of surveillance and it indicated that Mr. S.G. Kavitkar was engaged in surveillance work, the explanation of surveillance would become acceptable. Consequently we directed Mr. R.M. Agrawal, learned Counsel for respondents Nos. 1 to 3 to produce the original file before us.
16. On 28.9.1998 Mr. R.M. Agrawal, not only made the original file available to us but also filed the return of Mr. R.S. Gawade, Intelligence Officer, N.C.B. Mumbai to which we would be adverting to in some detail. Mr. Agrawal conceded that on the original file, there was no mention of surveillance or that any officer had been deputed on surveillance work but in his contention that would make no difference in view of the return filed by Mr. R.S. Gawade, Intelligence Officer, N.C.B., Mumbai on 25.9.1998.
17. We have perused the return dated 25.9.1998 filed by Mr. R.S. Gawade. We find that in para 1 he has mentioned that the statements of the detenu were recorded by Mr. S. G. Kavitkar, Intelligence Officer, N.C.B., Mumbai. In the said para, he has also mentioned that the proposal for PITNDPS and comments thereon were dealt by him under the supervision of Superintendent, Assistant Director and Zonal Director, N.C.B., Mumbai, because there is a division of work to ensure equitable distribution and proper handling of the matter.
In para 2 of his return, Mr. Gawade has stated that:- the representation of the detenu dated 29.10.97 was received in his office on 20.11.97; from faint memory he recollected that he got documents translated on 21.11.97; 22.11.97 and 23.11.97 were holidays; he was required to be on surveillance right from 23.11.97 itself till 30.11.97; and on 1.12.97 after returning from surveillance work, he attended his office, contacted Mr. Kavitkar and submitted his report which was forwarded the same day by the Zonal Director, Mr. Om Prakash. He has also stated therein that surveillance is a "secret and confidential" matter and there are no entries to that regard as any leakage in that behalf can result into serious repercussions.
18. We make no bones in observing that the story of surveillance does not stand our judicial surveillance under Article 226 of the Constitution of India for two reasons viz. (a) in the file there is no mention about it. We can understand that the name of the person in whose relation surveillance was made and the place where the officer had gone in connection with surveillance, may not have been mentioned on file to prevent leakage but what we fail to comprehend is that if on the file it was mentioned that an officer had gone in connection with surveillance and no further details were disclosed, how would secrecy and confidentiality, resulting in serious repercussions, be breached; and (b) whereas in para 6 of the return the Detaining Authority has mentioned that the concerned officer was engaged in surveillance between 24.11.97 and 28.11.97. Mr. R.S. Gawade has stated in para 2 of his return that he was engaged in surveillance from 23.11.97 to 30.11.97. To say the least the averment in one of the two affidavits is wrong.
We feel distressed at this because preventive detention matters are decided on the presumption that the averments contained in the returns of the Detaining Authority and the officers of the Sponsoring Authority are correct.
19. At any rate, we fail to comprehend that if Mr. R.S. Gawade had gone on surveillance duty, then why he did not hand over the file to the Superintendent or Assistant Director or Zonal Director, N.C.B., Mumbai, because the Hindi translation of documents was already completed on 21.11.97 and the only fact to be enquired was whether the statement of the detenu was voluntary or forcibly written by Mr. S.G. Kavitkar. This could have been enquired in a few hours by any of the said officers from Mr. S.G. Kavitkar.
20. For the said reasons, in our view, the delay in the disposal of the representation between 23.11.97 and 30.11.97, on account of Mr. R.S. Gawade being busy in surveillance work, has not been satisfactorily explained by the respondents.
21. Mr. Merchant, learned Counsel for the petitioner, placed two authorities of the Supreme Court before us to which we now propose to advert to.
The first is in the case of Gazi Khan (c) Chatty v. State of Rajasthan and Anr. . The said authority deals with the delay of disposal of representation in a case under PITNDPS Act, A perusal of para 16 shows that therein the unexplained delay in the disposal of the representation was from 3rd to 9th July, 1989 (for a period of seven days) and the Apex Court, in view of that delay, held that the authorities had not discharged the obligation to dispose of the representation at the earliest opportunity as mandated by Article 22(5) of the Constitution and held continued detention to be vitiated and consequently quashed the impugned detention order.
Mr. Merchant also pointed out that in this period of one week there were two holidays, namely 8th and 9th July (Saturday and Sunday) and the Supreme Court included them for computing the duration of delay.
The second authority is a recent decision of the Supreme Court, dated 10.6.1998, rendered in the case of Mrs. Venmathi Seivam v. State of Tamil Nadu and Anr. . In the said case while dealing with delay in disposal of representation, in para 4, the Supreme Court observed thus:-
Though the delay is not long it has remained unexplained. Though the delay by itself is not fatal the delay which remains unexplained becomes unreasonable.
Mr. Merchant urged on the basis of the said observations that even a small delay, if not explained is fatal.
Mr. Merchant also urged on its basis that" broken periods should be computed together in determining the delay in disposal of the representation. This submission of his is borne out from a perusal of para 4 of the said decision.
22. The short and long of the submission of Mr. Merchant is that in the instant case if the two pockets of delay in the disposal of representation, referred to above, are added up together the unexplained delay would be nine days. Mr. Merchant urged that this delay of nine days is inordinate not only in view of para 16 of 1990 Cr. L.R. (SC) 414, (supra), but also because the representation which was addressed was not on merits but only in relation to two points :- (i) since the detenu did not know English, Hindi translation of the documents be furnished to him; (ii) the statement of the detenu recorded by the N.C.B. Authorities was not his voluntary statement as urged by them but was obtained from him under coercion.
23. We feel that considering the facts and circumstances of the present case, the delay of nine days in the disposal of the detenu's representation is inordinate and has vitiated his continued detention. We make it clear that we are loathe to accept an explanation not borne out by contemporaneous records. And this is to prevent the hazard of a false explanation creeping in.
(emphasis supplied)
24. Mr. R.M. Agrawal, learned Counsel for the respondents Nos. 1 to 3 strenuously urged that there has been no delay in disposal of the representation. He invited our attention to the decisions of the Apex Court in Mst. L.M.S. Ummu Saleema v. B. B. Gujaral and Anr. wherein as is apparent from para 7 there was a delay of 6 days in the disposal of the representation; M. Mohammed Sultan v The Joint Secretary to Government of India and Ors. AIR 1990 SC 2222 : (1990) 4 J.T. 41 where again as is apparent from para 10 there was a delay of 6 days in the disposal of the representation; Raisuddin v. State of U.P. where as is clear from para 4 there was a delay of six days in disposal of representation; and Noor Salman Makani v. Union of India and Ors. 1994 Cri. L.J. 602 : (1993) 3 Crimes 1108 where as is evident from para 4 there was a delay of five days in the disposal of the representation.
Finally, Mr. Agrawal placed reliance on a Division Bench decision of this Court, dated 12.1.1996, rendered in Przemyslaw @ Filla Raphael s/o Naercino Witolo v. Union of India and Ors. Cri. Writ Petition No. 543 of 1995. He pointed out that a perusal of paragraph 8 would show that there was a delay of six days in disposal of the representation but the Division Bench observed that it was not inordinate having regard to the administrative niceties and contingencies in a set-up.
Mr. Agrawal urged that in each of the above cases though the Court found that delay was there but it felt that it was not sufficient to vitiate the continued detention of the detenu.
25. We have perused the decisions cited by Mr. Agrawal and in our view they would have no application on the facts of our case. The said decisions were rendered on the facts and explanation in each of them. And as the Supreme Court held in , (supra) and that the issue of delay in considering representation has to be decided on the facts and circumstances of each case.
Apart from the fact that the unexplained delay in disposal of the representation in our case is longer than in those cases, we find that in our case the representation was not addressed on merits but on the two limited points referred to above. Hence it should have been dealt with within two to three days of its receipt by the Sponsoring Authority.
26. Finally, Mr. R.M. Agrawal urged, that at any rate, bearing in mind the gravity of the prejudicial activities of the detenu and their devastating impact on the society, his personal liberty should be subordinated to social good and we should not fault his continued dentention as illegal on account of the delay in disposal of his representation. We regret that we do not find any merit in this submission also. The inherent flaw in it is that it is oblivious to the grim reality that only persons whose enormity of prejudicial activities cannot be curbed by the ordinary law of land are preventively detained. If inspite of this, the Legislature has provided in Article 22(5) of the Constitution of India that such persons have the fundamental right to make a representation at the earliest opportunity and the Supreme Court has held that in such a right is inherent an obligation to dispose off the same at the earliest opportunity (See supra) it is crystal clear that gravity of prejudicial activities can never be a justification for not disposing off the representation at the earliest opportunity. In this connection, it would be necessary to refer to the following decisions of the Supreme Court :-
(i) - Kundanbhai Dulabhai Shaikh v. Distt. Magistrate Ahmedabad and Ors. .
(ii) Mahesh Kumar Chauhan alias Banti v. Union of India and Ors. 1990 SCC (Cri.) 434 : (1990) 2 SCJ 359 : (1990) 4 D.L.T. 234.
(iii) Prabhu Dayal Deorah etc. v. District magistrate, Kamrap and Ors. of the majority Judgment of Justice K. K. Mathew.
(iv) Smt. Icchu Devi Choraria v. Union of India and Ors. .
All these decisions pertain to preventive detention and in each of them the Supreme Court has taken the view that gravity of prejudicial activities of the detenu and their pernicious influence on the society cannot be a ground for depriving the detenu of the stringent constitutional safeguards provided to him by Article 22(5) of the Constitution of India.
It would be pertinent to mention that even in para 81 of the decision in P. C. Mehta v. Commissioner and Secretary Government of Kerala and Ors. cited by Mr. R.M. Agrawal, the Supreme Court has held that strict constitutional safeguards have to be adhered to in cases of prevention detention.
27. For the said reasons, in our view, on account of delay of nine days in disposal of the representation of the detenu, dated 29.10.1997, his continued detention has become vitiated in law and the logical consequence would be that the impugned detention order and the declaration under Section 10(1) of the PITNDPS Act would have to be quashed.
28. In the result, the impugned detention order and the declaration under Section 10(1) of the PITNDPS Act is quashed and the detenu is directed to be set at liberty forthwith unless wanted in some other case.
Rule is made absolute.
At this stage, Mr. Agrawal, learned Counsel for the respondents Nos. 1 to 3, moved an application containing three prayers, viz. (i) the operation of our judgment be stayed for eight weeks; (ii) certificate of fitness to move the Supreme Court be granted under Article 134(1)(c) of the Constitution of India; and (iii) certified copy of the judgment be expedited.
We do not find any merit in the first two prayers and accordingly reject them. We grant the third prayer and expedite the issue of certified copy of our Judgment.