Supreme Court of India
Harish Pahwa vs State Of Uttar Pradesh & Ors on 18 March, 1981
Equivalent citations: 1981 AIR 1126, 1981 SCR (3) 276, AIR 1981 SUPREME COURT 1126, 1981 (2) SCC 710, 1981 CRIAPPR(SC) 276, 1981 SCC(CRI) 589, 1981 BBCJ 203, 1981 ALLCRIC 281, (1981) ALLCRIR 281
Author: A.D. Koshal
Bench: A.D. Koshal, Baharul Islam
PETITIONER:
HARISH PAHWA
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH & ORS.
DATE OF JUDGMENT18/03/1981
BENCH:
KOSHAL, A.D.
BENCH:
KOSHAL, A.D.
ISLAM, BAHARUL (J)
CITATION:
1981 AIR 1126 1981 SCR (3) 276
1981 SCC (2) 710 1981 SCALE (1)704
CITATOR INFO :
RF 1987 SC1977 (3)
RF 1987 SC2377 (6)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974-Detenu assailing detention
order-Failure of State Government to dispose of
representation within reasonable time-Point not taken before
High Court-Whether can be raised in Supreme Court-
Representations of detenus to be dealt with continuously and
disposed of expeditiously-Duty of State Government.
HEADNOTE:
The appellant who was detained by an order dated 16th
May, 1980, made a representation dated 3rd June, 1980 from
jail, which was received by the State Government on 4th
June, 1980. Comments were called for from the Customs
Authorities on the 6th of June, 1980 and were received on
13th June, 1980. On the 17th June, 1980, the State
Government referred the representation to its Law Department
for opinion which was furnished on the 19th June, 1980. The
representation was rejected by an order dated 24th June,
1980, which was communicated to the jail authorities two
days later.
The appellant's writ petition having been dismissed by
the High Court, he came in appeal to this Court raising a
new plea that the representation made by him against the
detention to the State Government was not decided within a
reasonable time and that the delay was fatal to the
detention.
Allowing the appeal,
^
HELD: 1. In matters of this kind where all the material
necessary for the determination of a new point is available
on the record, and having regard to the importance of the
matter, this Court can entertain the point even if it had
not been raised before the High Court. [277 F-G]
2. The order of detention declared unconstitutional and
appellant directed to be set at liberty. [279 F]
3. On numerous earlier occasions this Court has made it
clear that it does not look with equanimity upon delays in
considering the representations of detenus. Where the
liberty of a person is involved it is the duty of the State
to determine his representations with the utmost expedition
and deal with it continuously until a final decision is
taken and communicated to the detenu.
[278 G-H]
In the instant case no explanation had been given by
the Government, as to why no action was taken on the
representation of the detenu on 4th, 5th and
277
25th of June 1980 and what consideration was given from 13th
June, 1980 to 16th June, 1980 and why the file had to travel
from table to table before reaching the Chief Minister, who
was the only authority to decide the representation.
[278 E-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 183 of 1981.
Appeal by special leave from the Judgment and Order dated 30.1.1981 of the High Court of Allahabad in Civil Misc. Habeas Corpus Writ No. 6343/80.
R.K. Garg, Naresh K. Sharma and Mukul Mudgal for the Appellant.
R.K. Bhatt for Respondent No. 1Hardayal Hardy and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KOSHAL, J. This is an appeal by one Harish Pahwa against the judgment dated 30th January, 1981 of the High Court of Allahabad dismissing a petition presented by the appellant to it under Article 226 of the Constitution of India with a prayer that a writ of habeas corpus be issued against the State of Uttar Pradesh and Union of India in as much as the detention of the appellant by them was not in accordance with law.
2. The only point that has been raised before us by Mr. Garg appearing on behalf of the appellant is that the representation made by him against his detention to the State Government was not decided within a reasonable time and that the delay is fatal to the detention. This point was no doubt not taken before the High Court, but in view of its importance and the fact that all the material necessary for its determination is available on the record, we have allowed it to be raised before us and have overruled a preliminary objection taken by the State to the effect that it should not be entertained.
3. In order to decide the point we may refer to certain admitted facts. The order of detention is dated 16th May, 1980 and the representation made by the appellant against it from Varanasi Jail bears date the 3rd of June, 1980. The State Government received 278 the representation on the 4th June, 1980 but for two days no action was taken in connection with it. On the 6th of June, 1980 comments were called for from the Customs authorities with regard to the allegations made in the representation and such comments were received by the State Government on the 13th June, 1980. On the 17th of June, 1980, the State Government referred the representation to its Law Department for its opinion which was furnished on the 19th of June, 1980 The rejection of the representation was ordered on the 24th of June, 1980 and it was communicated to the jail authorities two days later.
The case of the State is that the representation was with the Customs authorities who were formulating their comments from 7th June, 1980 to the 12th of June, 1980 and that the representation was under the consideration of the Government for four days from 13th June, 1980 to 16th June, 1980, of its Law Department from 17th June, 1980 to 19th June, 1980 and then again under its own consideration for six days from 19th June, 1980 to 24th June, 1980.
In our opinion, the manner in which the representation made by the appellant has been dealt with reveals a sorry state of affairs in the matter of consideration of representations made by persons detained without trial. There is no explanation at all as to why no action was taken in reference to the representation on 4th, 5th and 25th of June, 1980. It is also not clear what consideration was given by the Government to the representation from 13th June, 1980 to 16th June, 1980 when we find that it culminated only in a reference to the Law Department, nor it is apparent why the Law Department had to be consulted at all. Again, we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. 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 279 some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional. We order accordingly, allow the appeal and direct that the appellant be set at liberty forthwith.
N.V.K. Appeal allowed.
280