Rajasthan High Court - Jaipur
Bhoor Singh vs The Dist. Magistrate And Ors. on 31 March, 1993
Equivalent citations: 1993CRILJ2217
JUDGMENT B.R. Arora, J.
1. The petitioner, by this Habeas Corpus petition, has challenged the legality of the order dated October 2, 1992 (Annexure 1), passed by the District Magistrate, Barmer, under Section 3(3) of the National Security Act, 1980 (for short 'the Act') by which the learned District Magistrate, Barmer, after being satisfied that the activities of the petitioner were prejudicial to the security of the 'State', ordered for his detention in the Central Jail, Jodhpur. The petitioner has, also, challenged the order of confirmation Annexure 8 dated 26-11-92, passed by the Government of Rajasthan, confirming the order of detention Annexure 1 passed by the Detaining Authority, i.e., the District Magistrate, Barmer.
2. The facts which necessiated the District Magistrate, Barmer, to pass the order Annexure-1 to 2-10-92, are that the activities of the petitioner are prejudicial to the security of the State. As per the confidential report received from the Military Intelligence, Barmer, the detenu Bhoor Singh was found to be engaged in espoinage. He was, also, found engaged in the smuggling activities; he collects information from India and transmits/passes it to the Secret Agencies of Pakistan and he is an active agent of Pakistani Secret Agencies. He worked in collaboration with one Sheru (R/o. Pakistan) -- an F.I.U. agent of Pakistan. The detenu used to supply secret/ confidential strategic informations to this Sheru. He is, also, a history sheeter of Police Station, Ramsar, and is involved in smuggling activities and is, also, passing the important/secret information to the Pakistan's Secret Agencies. The petitioner was arrested and was detained in the Central Jail, Jodhpur, on 2-10-92, and the order of detention was served on him on 2-10-92. On 4-10-92, the petitioner-detenu was, also, served with the Grounds of Detention Annexufe-2. Along with the Grounds of Detention, the particulars of the History-sheet of the petitioner entered in the Village Crime Book, maintained by the S.H.O., Police Station, Ramsar, were also supplied to the petitioner in support of the allegations mentioned in the Grounds Nos. 3 and 4. So far as the confidential reports dated 15-5-92 and 1-10-92 of the Military Intelligence, Barmer, as well as the monthly confidential reports dated 7-1-92, 9-10-92, 21-12-89 and 3-3-84, showing the activities of the petitioner, supplying the information to Pakistani Secret Agencies, were not supplied to him as they were confidential documents and their disclosure was against the public interest. The petitioner, after receipt of the Grounds of Detention, on 13-10-92, sent four copies of the representation to the District Magistrate, Barmer. This representation was addressed to the District Magistrate, Barmer, and to the Home Secretary. The District Magistrate, Barmer, forwarded the representation under Section 3(4) of the Act for consideration to the Home Secretary, Government of Rajasthan, Jaipur, along with his opinion and para wise comments on 15-10-92. The State Government considered the representation of the petitioner and by its order dated 24-10-92, rejected the same. The matter was also considered by the Advisory Board after giving an opportunity of hearing to the petitioner and the Advisory Board, also approved the detention of the petitioner in its meeting held on November 2/4, 1992.
3. Learned counsel for the petitioner has challenged the legality and validity of the detention order on six grounds, namely, (i) that the order of detention passed by the Detaining Authority is mala fide, (ii) that in the meeting before the Advisory Board, certain extraneous materials have been supplied by the Detaining Authority to the Members of the Advisory Board and the same were considered by the Advisory Board, which vitiates the detention order; (iii) 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; (iv) proper opportunity to represent his case before the Advisory Board was not given to the petitioner as he was informed regarding the meeting of the Advisory Board only a day before; (v) 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; and (vi) that there was a long and inordinate delay in sending the representation for consideration to the Central Government, which delayed the consideration of the petitioner's representation by the Central Government. The learned Additional Advocate General and the Senior Central Government's Standing Counsel Mr. U. S. Bhargava, on the other hand, have supported the detention order passed by the respondent No. 1 and submitted that the order of detention passed by the respondent No. 1 does not suffer from any infirmity as pointed out by the learned counsel for the petitioner. The order passed by the Detaining Authority is neither mala fide nor was there any delay in consideration of the representation sent by the petitioner to the Central Government. According to the learned counsel for the respondents, even the representation was not required to be sent for consideration to the Central Government as it was only the 'appropriate government' which has to consider the same. Regarding the consideration of the representation by the Detaining Authority, it is submitted that the representation was duly considered by the District Magistrate, who after consideration, gave its opinion and parawise comments and forwarded the same for consideration to the appropriate government. It was, also, submitted that the proper details of the charges were supplied to the petitioner and the grounds supplied cannot be said to be vague or insufficient. The confidential reports could not be supplied to the petitioner as their disclosure is against the public interest.
4. Now, we will examine each of the contentions raised by the learned counsel for the petitioner-detenu and will see whether the impugned detention is vitiated for any of the aforesaid reasons.
5. The first ground on which the order of detention has been challenged by the learned counsel for the petitioner is that the order passed by the Detaining Authority was mala fide. This argument of the learned counsel for the petitioner is based on the ground that the petitioner, being the active worker in the area along with one Shri Bhauri Lal, Head Constable, lodged a complaint against the Officers of the Intelligence Bureau, caught them red-handed when they were carrying-on illegal and contraband articles in the vehicles of the Bureau and on account of this complaint, the officers of the Intelligence Bureau developed enmity against the petitioner and sent false reports against him, which have been made the basis for the detention order. The petitioner has mentioned these facts in para No. 6 as well as under the head 'grounds' in the Habeas Corpus Petition. No details has been given by the petitioner regarding the persons/officials against whom he lodged the complaint and who were caught red-handed. He has, also, not placed on record the F.I.R. alleged to be lodged by him and Bhauri Lal, H. C. with respect to the personnel of Intelligence Bureau, which, according to the petitioner, resulted in bad-blood between the petitioner and the personnels of the Intelligence Bureau. As the allegations have not been made by the petitioner against the specified person(s) and, therefore, the affidavit of the person concerned could not be filed but the respondents have denied the allegation made by the petitioner. The allegation of mala fide or bias can be shown and proved by cogent materials and the burden to prove such allegation that the order is mala fide, lies upon the person who asserts the same. Wild and unsupported allegations have been made by the petitioner in the Habeas Corpus Petition, which do not find support from any evidence and, therefore, the contention raised by the learned counsel for the petitioner, deserves to be ignored as it is devoid of any force. The order of detention, passed by the Detaining Authority, cannot be said to be the result or out-come of any mala fide or bias against the petitioner.
6. The next ground, on which the order of detention has been challenged by the learned counsel for the petitioner is that some extraneous material was considered by the Advisory Board while considering the case of the petitioner, which vitiates the order of detention passed by the Detaining Authority. The case of the petitioner is that in the meeting before the Advisory Board, he was interrogated by the Members of the Advisory Board regarding his relationship with one Abdul Wahid, which shows that certain extraneous material relating to one Abdul Wahid was considered by the Advisory Board before sending its report to the appropriate government. The Advisory Board constituted under Section 9 of the Act, functions only in an advisory capacity and its opinion is merely an advice. After considering the relevant materials, the Advisory Board has to give its report whether there is any sufficient cause for such detention. Merely because the Advisory Board has asked the questions regarding the relationship of the petitioner with one Abdul Wahid, it does not show that some extraneous material was placed by the Detaining Authority before the Advisory Board. Even otherwise, the opinion given by the Advisory Board under Section 11 of the Act, is not justiciable. The record does not show that any extraneous material was placed by the Detaining Authority before the Advisory Board. The contention raised by the petitioner is, therefore, devoid of any force.
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 No. 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 (Guj) and Hazi Menu v. The 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 other 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 bona fide 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 document, 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 'bases that the disclosure of the documents 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's 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 information 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 not the copy of the report and 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 in the smuggling activities, a suggestive disclosure of the facts and 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 Master Lal Mohammed Sabir v. State of Jammu and Kashmir, 1971 Cri LJ 1271. : (AIR 1972 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 :--
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 the law in not supplying to the respondent the copies of I the reports or disclosing the source thereof. The respondent has actually been given in the grounds all material details necessary for making an effective representation.
11. The next contention raised by the learned counsel for the petitioner is that the petitioner was given only one day's time to represent his case before the Advisory Board, which has resulted to the loss to the petitioner in making proper representation before the Advisory Board. His further contention is that he was not even informed that he can take the assistance of his friend. The right of the detenu to be represented by a friend or through a Lawyer arises only when the Detaining Authority is allowed to be represented by a High-ranked Officer or a Lawyer. No such grievance was made by the petitioner before the Advisory Board. The detenu even did not ask for any time to the Advisory Board for representing his case. If such request would have been made before the Advisory Board, petitioner-detenu might have been granted some time. Instead of making any request for adjournment of the case, the petitioner represented his case before the Advisory Board and the Advisory Board, after considering the relevant materials on record and after hearing the petitioner, sent its report to the State Government for approving the detention of the petitioner. The petitioner was not denied the right of hearing or representing his case. The contention, raised by the learned counsel for the petitioner, in the facts and circumstances of the case, is devoid of any force and deserves to be rejected. Even otherwise, the opinion of the Advisory Board is merely advisory in nature. Its opinion is binding on the appropriate government only if it favours the detenu but if it goes against the detenu then the State Government is not bound to accept the opinion of the Advisory Board and can consider the case regarding the continuation of the detention independently on merit.
12. The next 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 along with 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 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 the 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 his detention has to be made to the appropriate government and not to the Detaining Authority. Section 14 of the Act gives powers 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-sec. (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 the making of such order unless in the meantime it has been approved by the State Government. Sub-section (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 for 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 along with the grounds on which the order was made and the State Government, vide its order dated 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 Sub-section (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, gave 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, along with the report of the Detaining Authority and the other materials on record, were 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.
13. 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, observed as under (at pp. 631 and 632 of Cri LJ):--
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 along with its opinion and parawise comments, does not invalidate the order of detention passed by the Detaining Authority.
14. The last contention raised by the learned counsel for the petitioner-detenu is that there was a delay in sending the representation by the Detaining Authority to the Central Government, which has resulted in the delay in consideration by the Central Government, which invalidates the detention order passed by the learned District Magistrate and the petitioner deserves to be released forthwith. The first limb of this argument is that the representation was not forwarded by the Detaining Authority for consideration to the Central Government. It is, no doubt, true that the Detaining Authority did not forward the representation for consideration to the Central Government, but only sent the representation along with its report/parawise comments for consideration to the State Government. The order of detention, as required under Sub-section (4) of Section 3, was sent by the Detaining Authority along with its report/parawise comments to the State Government and the State Government approved the same and sent it to the Central Government under Section 3(5) of the Act together with its report and the Central Government, under Sub-section (5) of Section 3 of the Act, approved the detention order as it was of the opinion that there is no necessity to interfere with the order of detention approved by the State Government and there is no reason to revoke or modify the detention order. The representation Annexure-5, which is placed on record, is addressed to the District Magistrate, Barmer, and to the Home Secretary, only. Section 8 of the Act requires the representation to be made to the 'appropriate government'. The District Magistrate, Barmer, i.e., the Detaining Authority, after the receipt of the representation along with his report, sent the representation for consideration to the appropriate government. As is evident from the representation Annexure-5 on record that it was neither addressed to the Central Government nor was any request made on behalf of the petitioner that the representation may be sent for consideration to the Central Government. The case of the petitioner is that the Central Government has been assigned with the power to modify or revoke the detention order and, therefore, it was obligatory for the Detaining Authority to have sent the representation to the Central Government. In support of its case, the learned counsel for the petitioner has placed reliance over : Sher Mohammed v. State of West Bengal, AIR 1975 SC 2049 : (1975 Cri LJ 1751), Shyam Amba Lal Siroya v. Union of India, AIR 1980 SC 789 : (1980 Cri LJ 555), Tara Chand v. State of Rajasthan, AIR 1980 SC 1361 : (1980 Cri LJ 1015), Vinayak Ram Chandra Sakhalkar v. D. Ram Chandra, Commr. of Police, Thane, 1985 Cri LJ 1257 (Bom), Aslam Ahmed Zahire Ahmed v. Union of India, AIR 1989 SC 1403 : (1989 Cri LJ 1447), Smt. Gracy v. State of Kerala, AIR 1991 SC 1090, Jai Prakash v. District Magistrate, Buland-shahar, U.P. (1992) 2 JT (SC) 342 : (1992 AIR SCW 3360) and Moosa Huseil Sanghar v. State of Gujarat (1993) 1 JT (SC) 44.
15. In the case of Sher Mohammed v. State of West Bengal (supra), the question for consideration before the Hon'ble Supreme Court was : whether the Central Government under Section 14(1) of the M.I.S. Act, can direct release of a detenu and whether the forwarding of the representation along with its comments and the order of approval by the State Government was necessary to be sent to the Central Government under Sub-section (5) of Section 3 of the Act, within the time-bound programme? Section 3 of the Act emphasises the various stages at which there will be consideration for the need of the detention order by the authorities such as the District Magistrate, the State Government and ultimately the Central Government. Sub-section (3) of Section 3 of the Act gives powers to the Officer under the State Government specifically authorised to pass an order for detention. Sub-sec. (4) makes it obligatory upon the Detaining Authority to report the facts of the detention along with its own report and the necessary materials to the State Government for its approval within twelve days and if the order is not approved within twelve days, the order of detention, passed by the Detaining Authority automatically comes to an end. Sub-section (5) of Section 3 further makes it obligatory upon the State Government, after it has approved the order passed by the Detaining Authority, to report the fact to the Central Government within seven days together with the grounds, on which the order has been made and such other particulars, as in the opinion of the State Government has bearing for the necessity of detention in the case. The matter before the Hon'ble Supreme Court relates to the power of the Central Government for consideration under Section 3(5) and was not related to the necessity of consideration of the representation under Section 14 of the Act, which was not made to it but was made to the Detaining Authority and to the State Government. This case has, therefore, no relevance to resolve the present controversy.
16. In the case of Shyam Lal Amba Lal v. Union of India, AIR 1980 SC 789 : (1980 Cri LJ 555), a representation was made to the Central Government by the detenu under Section 11 of the COFEPOSA Act and that representation was not forwarded by the Detaining Authority for consideration for about four months and no action was taken thereon by the Central Government even after filing of the writ petition. The Apex Court, therefore, observed that when a specific representation has been made by the detenu and which has not been forwarded by the Detaining Authority to the Central Government for a period of about four months and has not been considered by the Central Government, as required under Section 11 of the COFEPOSA Act, the detention cannot be justified as being contrary to the procedure.
17. In the case of Tara Chand v. State of Rajasthan, AIR 1980 SC 1361 : (1980 Cri LJ 1015), a representation was made by the detenu to the Central Government but there was an inordinate delay in consideration of the representation and the Supreme Court, therefore, observed that the inordinate delay in consideration of the representation by the respondents amounts to violation of Article 22(5) of the Constitution of India and renders the detention unconstitutional and void. These two cases are, also, not applicable in the present case because the petitioner, in the present case, has neither made any representation to the Central Government nor made any request for forwarding the representation to the Central Government and it is only in the writ petition that a ground has been taken.
18. In the case of Smt. Salini Soni v. Union of India, AIR 1981 SC 431 : (1980 Cri LJ 1487), the question for consideration before the Supreme Court was whether the representation has to be made in any prescribed form? The Apex Court opined that the representation is not required to be made in any prescribed form and if it makes a request for the release of the detenu and in whatever form and grounds of arrest are mentioned suggestive of such release, there is no option but to consider and deal it for the purpose of Article 22(5) of the Constitution of India. This case does not give any guidelines whether any representation, which is not addressed to the Central Government or when no request for sending the representation to the Central Government has been made then whether that is required to be forwarded to the Central Government for consideration.
19. Vinayaka Ramchandra v. A. Ramchandran, 1985 Cri LJ 1257 (Bom) is the case relating to Section 3(5) of the Act. A Division Bench of Bombay High Court, in this case, held that Sub-section (5) of Section 3 casts a duty on the State Government to report the facts to the Central Government within seven days together with the grounds on which the order of detention has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order. This case is, also, of no help to resolve the present controversy because in the present case the report under Sub-section (5) of Section 3 was sent by the State Government approving the order of detention passed by the Detaining Authority which was, also, approved by the Central Government.
20. In Smt. Gracy v. State of Kerala, AIR 1991 SC 1090, a representation was made to the Advisory Board under Section 9(f)(10)(2) of the Prevention of Illicit Drugs and Narcotic Drugs and Psychotropic Substances Act, which was not considered by the Detaining Authority. The Supreme Court, after considering various provisions of the Act, held that where any representation is addressed to the Detaining Authority or to the Advisory Board or to both, it is obligatory upon both the authorities to consider the representation even if the representation is addressed to one of them only. It is the dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the Detaining Authority, which flows from Article 22(5) of the Constitution of India when only one representation is made to any one of them. This case is, also, of no help to resolve the present controversy because in the present case the representation was made to the Detaining Authority as well as to the State Government. The Detaining Authority, under the Act, is not under an obligation to consider the same and, therefore, he, with his comments and the opinion, sent the representation to the State Government and the State Government considered the representation and rejected the same.
21. In Jai Prakash v. The District Magistrate, Bulandshahar, U. P. (1992) 2 JT (SC) 342 : (1992 AIR SCW 3360), the representation of the detenu was simply addressed to the Home Secretary without any further indication whether it was for the State Government or the Central Government. The State Government rejected the representation. Nine copies of the representation were supplied to the Superintendent, Central Jail and therefore, the Apex Court held that the Superintendent Central Jail was legally bound to send one copy to the Central Government and as that was not sent, therefore, it was held that the detenu was deprived of his right to make effective representation and, therefore, the detention order was quashed. This case is directly on the point. In this case the Apex Court while deciding the issue, did not note and consider the law laid down by the Bench of three Hon'ble Judges of the Supreme Court in the case of : State of Uttar Pradesh v. Zavad Zama Khan, AIR 1984 SC 1095 : (1984 Cri LJ 922), wherein it has been held that the detenu has no right to simultaneously make a representation against the order of detention to the Central Government, under Article 22(5) of the Constitution of India and there was no duty cast on the State Government to forward the same to the Central Government.
22. In Mousa H, Sangher v. State of Gujarat, 1993 JT (SC) 44, a representation was made by the detenu, which was addressed to the Advisory Board and not to the State Government. The State Government did not consider the representation and it was, therefore, observed that it did not absolve the State Government from the constitutional obligations flowing from Article 22(5) to consider the representation. The mode of addressing is only a method of form which cannot whittle-down the requirements of the constitutional mandate in Article 22(5). This case is, also, of no help to resolve the present controversy as the representation in the present case was addressed to the State Government as well as to the Detaining Authority and was sent to the State Government and the Advisory Board and both considered the same.
23. The controversy in the present case stands concluded by the judgment of a Bench consisting of three Hon'ble Judges of the Supreme Court in the case of : the State of Uttar Pradesh v. Zavid Zama Khan, AIR 1984 SC 1095 : (1984 Cri LJ 922), in which after consideration of the relevant provisions of law, the law on the point, the earlier judgments of the Supreme Court on the point, " the Supreme Court held as under (para 13):--
The principle that emerges from all these decisions is that the power of revocation conferred on the Central Government under Section 14 of the Act is a statutory power which may be exercised on information received by the Central Government from its own sources including that supplied by the State Government under Section 3(5) of the Act or from the detenu in the form of the representation. It is for the Central Government to decide whether or not it should revoke the order of detention in a particular case. In the present case the detenu was not deprived of his right of making the representation to the Detaining Authority under Article 22(5) of the Constitution of India read with Section 8(1) of the Act, although the detenu had no right to simultaneously make a representation against the order of detention to the Central Government under Article 22(5) and there was no duty cast on the State Government to forward the same to the Central Government.
Under Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all the Courts within the territory of India and this Court is bound to follow the dictum laid down by the Supreme Court. In case of conflict between the decisions of the Supreme Court itself, the judgment of the Larger Bench of the Supreme Court has got a binding force, but in case where there are two conflicting judgments of the Supreme Court on the point by the Bench consisting of the same number of Hon'ble Judges then in that case the earlier judgment, given by the Supreme Court has to be followed as precedent because it subsists until it is expressly overruled by a Larger Bench. A mere expression of disapproval or a judgment given by the Co-ordinate Bench of the Supreme Court without considering the earlier judgments of the Supreme Court by the same number of Judges cannot overrule an earlier decision and cannot take away its binding character. It is, no doubt, true that the Supreme Court is not bound to follow its own decision under Article 141 of the Constitution of India and is free to reconsider them in appropriate cases, but a Bench of the Supreme Court cannot overrule or disapprove the decision of another bench of equal number of Hon'ble Judges and in case of disagreement, the matter should be referred to a Larger Bench. The latter Bench decision taking a contrary view because probably the earlier decision was not brought to its notice, will not affect the binding force of the decision of the earlier bench which was passed by taking into consideration the relevant provisions of law and the earlier judgments of the Supreme Court. It has been held by the Hon'ble Supreme Court in the case of Union of India v. Godfrey Phillips Ltd. (1985) 4 SCC 369 : (AIR 1986 SC 806), as under:--
What has been laid down in Motilal Sugar Mills' case (AIR 1979 SC 621) in this regard is the correct law. A different view taken in a subsequent decision in Jit Ram v. The State of Haryana (AIR 1980 SC 1285) expressing Court's disagreement with the observations made in Motilal Sugar Mills case cannot prevail. A Bench of two Judges in Jit Ram could not overrule or disagree with what has been said by another Bench of two Judges in Motilal Sugar Mills. If the two Judges' Bench in Jit Ram found themselves unable to agree with the law laid down in Motilal Sugar Mills, they could have referred Jit Ram's case to a Larger Bench.
The latter decision given by the Bench consisting of same number of Judges can be said to be given 'per incuriam' when the Court acted in ignorance of a previous decision of its own. The later Bench took a contrary view because probably the earlier decision was not brought to its notice, but by that the earlier judgment of the Bench will not lose its binding force. The Supreme Court, while dealing with the question of per incuriam', in the case of A.R. Antuley v. R. S. Nayak (1988) 2 SCC 602 : (1988 Cri LJ 1661 at p. 1678), observed as under:--
'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned so that in such cases some part of the decision or some steps in the reasoning on which it is based, is found on that account to be demonstrably wrong (See Morelle v. Wakeling (1955 (1) All ER 708).
Similar view has again been taken by the Supreme Court in the case of : Punjab Land Development and Reclamation Corporation Limited v. Presiding Officer, Labour Court (1990) 3 SCC 682, while dealing with the question of 'per incuriam': --
The expression 'per incuriam' means through inadvertence. A decision can be said generally to be given 'per incuriam' when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court. It cannot be doubted that Article 141 embodies, as a rule of law, the doctrine of precedence on which our judicial system is based.
It has, also, been observed in the case of Morelle v. Wakeling (1955) 2 QB 379 that "such instances in which the decisions have subsequently been regarded as having been reached 'per incuriam', should be limited to the decision given in ignorance or forgetfulness of some statutory provision or some authority binding on the Court concerned." The latter judgment of the Supreme Court in the case of Jai Prakash v. District Magistrate, Bulandshahar, U.P. (1992) 2 JT (SC) 342 : (1972 AIR SCW 3360) can be said to have been given 'per incuriam' as it has been given without consideration of the earlier judgment in the case of the State of Uttar Pradesh v. Zavad Zama Khan AIR 1984 SC 1095 : (1984 Cri LJ 922), which was probably not brought to the notice of the Hon'ble Supreme Court at the time of consideration of Jai Prakash's case, and therefore, we have to follow the judgment of the Supreme Court given in the case of : State of Uttar Pradesh v. Zavad Zama Khan's case, being a binding precedent. The latter judgment cannot take away the binding character of the earlier judgment which is a precedent as no subsequent decision has expressly or impliedly overruled the judgment in the case of the State of Uttar Pradesh v. Zavad Zama Khan (supra).
24. In the present case, the fact regarding the detention of the petitioner, as required under Sub-section (5) of Section 3 was reported by the State Government after its approval along with its comments and necessary papers to the Central Government and the Central Government, by its order dated 28-10-92, approved this detention order. In view of the law laid down by the Supreme Court in the case of the State of Uttar Pradesh v. Zavid Zama Khan (1984 Cri LJ 922) (supra), it was not necessary for the State Government to have referred the representation to the Central Government. Neither any representation was made by the petitioner to the Central Government nor was any request made by the petitioner for sending the representation for consideration to the Central Government, but still after the service of the copy of the writ petition, the Central Government called for the representation along with parawise reply/comments and the opinion of the Advisory Board. After the receipt of the wireless message, the representation of the petitioner along with the para-wise comments of the Detaining Authority, the order of the confirmation made by the State Government as well as the relevant record, was sent to the Central Government, which was received by the Central Government on 16-2-93, and was considered and decided by it on 22-2-93. The representation filed by the detenu was rejected by the Central Government. The order of detention, passed by the learned Detaining Authority, thus, does not suffer from any infirmity.
25. The second limb of this argument is that the representation of the petitioner in the present case has not been given prompt and expeditious consideration and it took about 31/2 months in its disposal. The delay of such a long period in consideration of the representation, in the absence of satisfactory explanation, renders the order of detention invalid. The learned counsel for the petitioner, in support of its case, has placed reliance over a number of judgments. It is not necessary to refer all the judgments in the present case because the proposition of law deducible from these judgments, as well as from the other judgments of the Supreme Court, has been summarised by the Supreme Court in Rama Dhaudu Borade v. V.K. Saraf, the Commissioner of Police (1989) 3 SCC 173 : (1989 Cri LJ 2119 at p. 2123), in the following words (paras 20 and 21): --
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 of the same as expeditiously as possible. The 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" occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense 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 constitutional imperative of Article 22(5) is that the concerned authority, to whom the representation has been submitted by the detenu, should consider the representation with immediate dispatch but the delay in the disposal of the representation itself will not make the detention illegal if the delay in disposal of the representation has properly been explained. In view of the judgment of the Supreme Court in the case of : the State of Uttar Pradesh v. Zavid Zama Khan (1984 Cri LJ 922) (supra), it was not necessary for the State Government to have forwarded the representation for consideration to the Central Government as it was neither addressed to the Central Government nor was any request made by the petitioner-detenu for referring the same for consideration to the Central Government, but still the representation was sent to the Central Government and the Central Government considered the representation and rejected the same. The Central Government had already approved the detention of the petitioner-detenu under Sub-section (5) of Section 3 of the Act within a period of three weeks from the date of the order of detention passed by the Detaining Authority.
26. In this view of the matter, the order of the detention, passed by the Detaining Authority, does not suffer from any infirmity.
27. In the result, we do not find any merit in this habeas corpus petition and the same is hereby dismissed.