Allahabad High Court
Sant Singh vs District Magistrate And Ors. on 6 December, 1999
Equivalent citations: 2000CRILJ2230
Author: V.K. Chaturvedi
Bench: V.K. Chaturvedi
JUDGMENT O.P. Garg, J.
1. The petitioner-Sant Singh son of Sabhajeet Singh, resident of Sulemanpur, P.S. Cholapur, district Varanasi while he was in jail in connection with Case Crime No. 102 of 1999 under Section 302/506/ 120B IPC, P.S. Cholapur district Varanasi was served with an order of detention dated 4-6-1999, Annexure 1 to the writ petition issued by the District Magistrate, Varanasi under Section 3(2) of the National Security Act. This detention order has been made the subject matter of challenge of the present writ petition under Article 226 of the Constitution of India and it is prayed that a writ, order or direction in the nature of Habeas Corpus for production of the petitioner before the Court, for quashing the order of detention and for setting him at liberty be passed.
2. Counter and rejoinder affidavits have been exchanged. Heard Sri D.S. Misra, learned counsel for the petitioner, Sri Shesh Mani Misra, appearing on behalf of the Union of India and Sri Mahendra Pratap for rest of the respondents at considerable length.
3. The material facts which have led to the detention of the petitioner under Section 3(2) of the Act are that besides the fact that the petitioner is a person of criminal propensities having past antecedents of crime, he was arraigned in an incident which had occurred on 16-5-1999 at 11.30 A.M. near Chhichhna junction in village Mahganwa in district Varanasi in which one Bhaiya Lal Maurya lost his life on account of homicide. There was deep rooted enmity between the present petitioner, Nanhe Singh and Lal Mani Yadav on the one hand and the deceased Bhaiya Lal Maurya on the other. On the fateful day, the petitioner ws seen standing along with Nanhe Singh and Lal Mani Yadav in front of Katra of one Surendra Singh in Garthama Bazar which is at a distance of about three Kms. from Chhichhna junction in village Mahganwa. Incidentally, the deceased Bhaiya Lal Maurya, his brother Bhaiya Ram Maurya and their nephew Surjeet passed through Garthama Bazar on a Suzuki Motor Cycle. Seeing them, the petitioner made some gestures and was seen talking with Nanhe Singh and Lal Mani Yadav. The latter two on a motor cycle pursued Bhaiya Lal Maurya, his brother and nephew and after over-taking them at chhichhna trijunction dealt Bhiya Lal Maurya by opening indiscriminate fire by automatic weapons with the result he succumbed to the injuries. An F.I.R. was lodged by Bhaiya Ram Maurya, brother of the deceased at 1 P.M. at P.S. Cholapur, Varanasi which gave rise to crime case No. 102 of 1999 under Section 302/506 and 120B IPC. The petitioner was not present at the situs of the crime and the only allegation against him was of criminal conspiracy hatched between the accused persons to annihilate Bhaiya Lal Maurya. The petitioner was apprehended and sent to jail on 18-5-1999. It appears that the petitioner applied for bail and while efforts were being made on his behalf to secure release on bail, the detention order dated 4-6-1999 was served upon him in jail.
4. The matter of preventive detention of the petitioner was sponsored by Lalta Prasad Tripathi, Station Officer, Cholapur Varanasi who submitted a report dated 2-6-1999, which was forwarded by the Senior Suprintendent of Police through his letter dated 3-6-1999 to the District Magistrate. After taking into consideration the material placed before him the detaining authority passed the impugned order of detention on 4-6-1999 on the basis of the grounds, as required under Section 8 of the Act, which were also duly served on the petitioner along with the detention order. The grounds on the basis of which the detention order has been founded may be summarised as follows :
(1) that the petitioner is involved in the commission of the gruesome crime of murder of Bhaiya Lal Maurya which took place on 16-5-1999;
(2) that there was old standing enmity between the petitioner and the deceased as the latter had lodged reports against the petitioner giving rise to crime case No. 31/90 under Section 302/307 IPC;
(3) that in the year 1990, the petitioner was a candidate for election as Co-operative Director. The deceased Bhaiya Lal Maurya was backing Ram Bali Yadav to oppose the petitioner. A wrangle culminating in assault had taken place with the result case crime No. 30 of 1990 under Section 323/506 IPC came to be registered :
(4) that in the year 1994, the deceased was asked by the petitioner not to appear as a witness against him in the case of murder of one Ram Nath but the deceased refused to oblige and deposed against the petitioner;
(5) that one Brijesh Singh, a notorious criminal was exterminated in a police encounter in the year 1998. He was brother of Nanhe Singh, a co-accused in the murder of Bhiya Lal Maurya. Lal Mani Yadav and Nanhe Singh had entertained a feeling that the encounter had taken place at the behest of Bhaiya Lal Maurya who acted as an informer of the Police;
(6) that on account of the incident which had taken place on 16-5-1999, in which Bhiaya Lal Maurya was murdered, the 'law and order' had completely broken down which has serious repercussions in the nearby local areas and the administration had to deal with the situation with great difficulty. Regional residents of the area suffered mental trauma on account of the ill-effects of the incident,and, (7) the petitioner was trying to get himself released on bail which was pending before this Court and incase he was successful in obtaining the bail, his release was likely to disturb the peace and tranquility of the area resulting in 'public disorder'.
The detention of the petitioner on the aforesaid grounds have been challenged by learned counsel for the petitioner. Sri D.S. Misra, learned counsel for the petitioner urged that the cumulative effect of all the grounds is that there was deep seated personal enmity between the petitioner and the deceased Bhaiya Lal Maurya; that though the petitioner has not been assigned anyspecific role in the commission of crime of murder of Bhaiya Lal Maurya and was not shown to be present at the scene of occurrence a charge of criminal conspiracy punishable under Section 120B IPC has been foisted upon him; that the incident of murder of Bhaiya Lal Maurya, taken as a whole had no nexus with the 'public disorder' or breach of peace and tranquility in the area and that there was hardly any material before the detaining authority which may indicate that if the petitioner is released on bail, he would be instrumental in bringing about the 'public disorder'. Besides the above challenge of the detention order, it was also urged that the representation of the petitioner, which he made on 14-6-1999 was dealt with in a most casual, mechanical and perfunctory manner and since inordinate delay was caused in its final disposal the detention order stands vitiated on account of flagrant violation of the safeguards as envisaged under Article 22(5) of the Constitution of India. In nutshell, the detention order has come to be challenged on the following three grounds:
(1) that the incident of murder of Bhaiya Lal Maurya did not result in 'public disorder' and it was a case of breach of 'law and order' only;
(2) that the order of detention was passed with a view to frustrate the legal right of the petitioner to obtain bail in a crime in which he had been detained in jail and, therefore, it was mala fide and bad in law;
(3) that the detention order is vitiated as representation of the petitioner has not been disposed of with that expedition which it deserved.
Learned counsel for the respondents refuted the various submissions made by Sri Misra and maintained that the detention order was perfectly justified in view of the fact that the petitioner had the tendency or inclination to repeat the commission of crimes and that his anticedents were not neat. It was also urged that this Court is not competent to enquire into the truthfulness or otherwise of the facts, which have been narrated in the grounds of detention.
5. Sri Mahendra Pratap, learned A.G.A, with his usual vehemence, urged that since there was adequate satisfaction that the petitioner was likely to indulge in acts, which might be prejudicial to the maintenance of 'public order' and to prevent the petitioner from doing so, it was necessary to detain him. According to him, this Court would be over-stepping its jurisdiction if it enters into the question as to the truthfulness or otherwise of the grounds on which the satisfaction has been reached. In support of his contention, Sri Mahendra Pratap, learned A.G.A, placed reliance on the decisions of the apex Court in State of Gujarat v. Adam Kasam Bhaya, AIR 1981 SC 2005 : 1981 Cri LJ 1686 Smt. K. Aruna Kumari v. Government of Andhra Pradesh, 1988 (25) ACC 15 AIR 1988 SC 227 (SC) and U. Vijay Laxmi v. State of Tamil Nadu, 1995 SCC (Cri) 176 : AIR 1994 SC 165 as well as decision of this Court in Vijay Pal alias Pappu v. Union of India, 1996 (33) ACC 741. The gamut of all these decisions as well as series of other decisions, which need not be referred to, on the Roint is that it has long been established that the subjective satisfaction of the detaining authority as regards the factual existence of the conditions on which the order of detention can be made, namely, the grounds of detention, constitute the foundation for the exercise of power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. Nor can the Court on the review of the grounds substitute its own opinion for that of the detaining authority.
6. The above aspect of the matter was summarized by the apex Court in the case of Gulam Hussain v. Police Commissioner Calcutta, AIR 1974 SC 2336. in the following oft quoted words :
The basic imperative of proof beyond reasonable doubt does not apply to the 'subjective satisfaction' component of imprisonment for reasons of internal security.
In U. Vijay Laxmi (Mrs.) v. State of Tamil Nadu and Anr., 1995 SCC (Cri) 176, the apex Court had the occasion to observe that in the matter of preventive detention, it is not for the Court to probe into the correctness of the alleged facts, since the Court has a limited role in the matter of examining the validity of the detention order. Undoubtedly, the firmness of the above legal position cannot be disputed. While dealing with the writ petition of the detenu this Court does not sit in appeal over the detention order and it is not for the Court to go into and to assess probative value of evidence available to the detaining authority. Similarly, High Court cannot enquire into the truth or otherwise of the facts which are mentioned in the grounds of detention in the communication to the detenu. Nevertheless, we cannot agree with the proposition that those who are responsible for the maintenance of 'public order' must be the sole Judges of what 'public order' requires. In Safiq Ahmad v. District Magistrate Merrut AIR 1990 SC 220, the apex Court observed that it has to be seen by this Court whether the grounds or the reasons supplied to the detenu in support of the detention order were germane to the maintenance of 'public order'. The Court can examine the record and determine the validity whether the order is based on no material or whether materials have rational nexus with satisfaction that 'public order' was breached.
7. The two connotations 'law and order' and 'public 'order' are not the words of magic but of reality which embrace within its ambit different situations, motives and impact of the particular criminal acts. As a matter of fact, in a long series of cases, these two expressions have come to be interpreted by the apex Court. It is not necessary to refer all those cases all over again in every decision for one simple reason that they have been quoted and discussed in earlier decision of this Court dated 14-10-1999 in Habeas Corpus Writ Petition No. 33888 of 1999- Udaiveer Singh v. State of U.P. and the decision dated 1-12-1999 in Habeas Corpus Writ Petition No. 38159 of 1999 Rajiv Vashistha v. State of U.P. (Reported in 1999 All Cri R 2777). The gamut of all the above decisions in short is that the true distinction between the areas of 'public order' and 'law and order' lies not in nature and quality of the act, but in the degree and extent of its reach upon society. Sometimes the distinction between the two concepts of law and order' and 'public order' is so fine that it overlaps. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore, touch the problem of 'law and order', while in another it might affect 'public order'. The act by itself, therefore, is not determination of its own gravity. It is the potentiality of the act to disturb the even tempo of the community which makes it prejudicial to the maintence of 'public order'.
7A. We have been taken through the decisions of the apex Court in Smt. Angoori Devi for Ram Ratan v. Union of India, AIR 1989.SC 371 : 1989 Cri LJ 950 T. Deoki v. Government of Tamil Nadu, AIR 1990 SC 1086, Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State of Maharashtra, 1992 AIR SCW 835 AIR 1992 SC 979, Tarannum (Smt.) v. Union of India, 1998 SCC (Cri) 1037 : AIR 1998 SC 1013 and the Full Bench'decision of this Court in Shesh Dhar Misra v. Superintendent Central Jail Naini, 1985 All LJ 1222, Arvind Kumar Shukla v. State of U.P., 1985 ALJ 1259, as well as Division Bench decision of this Court in Harish Kasana v. State of U.P., 1998 (37) ACC 724 1999 All LJ 598 and Atiq Ahmad v. Chief Minister State of U.P. decided by this Court on 5-10-1998 to support the contention that present is the case in which there was merely a breach of 'law and order' and the acts of the petitioner, if at all, were not prejudicial to the maintenance of 'public order'. At the outset, we would do better to explode the myth that no single act can give rise to 'public disorder'. Dealing with this question as to whether one solitary instance can be the basis of an order of detention, their Lord-ships of the apex Court in Smt. Bimla Rani v. Union of India, 1989 (26) ACC 589 SC observed that the question is whether the incident had prejudicially affected the 'public order'. In other words, whether it affected the even tempo of the life of the community. In Alijan Mian v. District Magistrate Dhanbad, 1983 (3) SCR 930 AIR 1983 SC 1130 it was held that even one incident may be sufficient to satisfy the detaining authority in this regard, depending upon the nature of the incident. Similar view has been expressed in the host of other decisions. The question was answered more approprietly and with all clarity in the case of Attorney General of India v. Amratlal Prajivandas, AIR 1994 SC 2179, wherein the apex Court ruled that it is beyond dispute that the order of detention can be passed on the basis of a single act. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudical activities. It cannot be said as a principle that one single act cannot be constitued the basis for detention. Thus, the argument of learned counsel for the petitioner that since it is solitary incident of the petitioner, he deserves sympathy, is rejected. Now the law, as it stands, is that even one solitary incident may give rise to the disturbance of 'public order'. It is not the multiplicity but the fall out of various criminal acts. Though there is consistency in the various decisions of the apex Court about the interpretation of the expressions of 'law and order' and 'public order' undue insistence on the case law is not going to pay any dividend as each case revolves round its own peculiar facts and has to be viewed in the light of the various attending factors. It is difficult to find a case on all fours with the case in hand.
8. There appears to be considerable merit in the submission of Sri D.S. Misra, learned counsel for the petitioner that the facts, as have been made the foundation of the detention order, even if accepted as true, will, at the most, make out a case of breach of 'law and order' and not of 'public disorder'. Admittedly, the murder of Bhaiya Lal Maurya was the outcome of the long standing personal enmity between the parties. The incident which has taken place on 16-5-1999 stands by itself and has no proximity or connection with the previous incident. The various past cases, referred to in the grounds accompanying the detention order, at best, indicate that the parties were at loggerhead on account of the animosity which came to be generated about a decade back. The question of breach of 'law and order' or the 'public order' has to be determined in the present case only with reference to the incident which had taken place, on 16-5-1999 in which the petitioner has been assigned the role of having entered into a criminal conspiracy to annihilate Bhaiya Lal Maurya. The murder undoubtedly had taken place in the briliant light of the day. It was committed by opening indiscriminate fire by automatic weapons by the two coaccused persons Nanhe Singh and Lal Mani Yadav. The hyperbole or use of high sounding words are of no consequence as every murder is not only gruesome but horrendous. A murder evokes panic and spontaneous outburst. On account of murder panic and tension prevalls in the locality and the terror stricken residents run helter-skelter imbued with a feeling of self-preservation. The scene of murder is turned into a place of insecurity. At times, broad day light murders in the densely populated areas of market impel the shop keepers to put down their shutters and the residents of the locality to close their doors and windows. It is the normal conduct of human beings and has been taken note of in Harish Kasana's case (supra) by observing that the position is fairly well settled that any incident invoking criminal activity is likely to cause self-restriction of the normal activities of the people and thereby cause some disturbance in the area of the society but it is not sufficient to say that there has been disturbance of 'publicorder'. In the case of Atiq Ahmad (Supra), the murder had taken place in the busy market area of city of Allahabad and yet it was held that it was a case of breach of 'law and order' and not that of 'public order'. In the instance case, the incident of murder of Bhaiya Lal Maurya had taken place though in the broad day light but at a comparatively lonely place at Chhiohhna trijunction, which is hardly populated. It was not a residential locality. The locus in que is at a distance of about 3 kms. from Garthana Bazar. The 'public order' could not be disturbed at a place where there was in fact no public. There is not even a faint suggestion in the grounds accompanying the detention order that the terror and tension prevailed in the area and that the residents of the nearby localities felt so insure that they confined themselves to their houses after closing doors and windows or that there was any commotion in Grathana market or in any local area. Mere using the bald words that the regional residents of area suffered mental trauma on account of the ill-effect of the incident and that the 'law and order' had completely broken down without any concrete and tangible material is of no consequence. There can be no escape from the finding that it was a case of murder having been committed on account of long standing personal rivarly in an area, which was bereft of the residential houses and market. Every murder has some ill-effect but then in every case it cannot be termed as resulting in 'public disorder'. Our finding in the matter is that it was a case, pure and simple, of breach of 'law and order' and not of 'public disorder'.
9. It appears that the detention order was passed by the District Magistrate obviously with a view to frustrate the right of the petitioner to secure bail in the Crime Case No. 102 of 1999 under Section 302/506/120B IPC in which he was languishing in jail since 18-5-1999. The petitioner had applied for bail before this Court which was pending on 4-6-1999 on which date the detention order was passed. An order for release of petitioner on bail was passed on 11-6-199 by this Court. Learned counsel for the petitioner rightly pressed the point that with a view to militate against the order of bail, which was imminent to be passed in favour of the petitioner on account of his alleged role in the ciminal conspiracy only, the District Magistrate passed the detention order on 4-6-1999 so that the fruits of the order of bail may not be enjoyed by the petitioner. Learned A.G.A repelled the aforesaid submission and urged that in the instant case, the detaining authority rightly came to the conclusion that the release of the petitioner on bail would be prejudicial to the maintenance of 'public order'. The learned A.G.A placed reliance on Kartic Chandra Guhaa v. State of West Bengal 1975 SCC (Cri) 82 : AIR 1974 SC 2149 that even likelihood of his being released on bail could be taken into consideration because bail being the rule and jail an exception, it is usually seen that the Session and High Courts are liberal in bail matters. It. might be so, but this element of likelihood has to be plausible and in the realm of a reasonable feasibility, rather than a fanciful proposition. It is in the totality of the context that the issue requires determination having regard to the background of criminal activities attributed to the detenu by the State itself. It will be going too far today that he would have been granted bail just for the asking of it. After all, in such type of cases notice is usually given to the State to highlight its side of the story; moreover, if the latter deems it appropriate, it could still forestall the release by passing the detention order during the intervening period. A reference was also made to Alijan Main v. District Magistrate Dhanbad 1983 (3) SCR 930 AIR 1983 s.c. 1130 in which it was held that merely because there was a pending prosecution and the accused were in jail that was no impediment for their detention under Section 3(2) of the Act if the detaining authority was satisfied that their being enlarged on bail would be prejudicial to the maintenance of 'public order'. This view has been reiterated by the apex Court in Raisuddin alias Babu v. State of U.P. A.I.R. 1984 SC 46 : 1983 Cri LJ 1785. The observations made in these cases are beyond the pale of challenge. The element of likelihood of seeking the bail has to be plausible and in the realm of reasonable feasibility rather than a fanciful proposition. It would be going too far to assert that the petitioner would have been granted bail just for asking of it. It is in the totality of the context that the issue requires determination having regard to the background of criminal activities attributed to the detenu by the State itself. After all, in such type of cases, notice is usually given to the State to highlight its side of the story moreover if the latter deems it appropriate, it could still forestall the release by passing detention order during the intervening period. In the case of Ramesh Yadav v. District Magistrate Etawah, 1985 (4) SCC 232 : AIR 1986 S.C. 315 at page 234, the apex Court observed at page 316 of AIR :
On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted challenge against that order to the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.
What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person under the Act. In paragraph 12 of the report of another celebrated decision rendered in Shashi Agrawal v. State of U.P. 1988 SCC (Cri) 178 : AIR 1988 S.C. 596 the apex Court observed thus at page 598, of AIR :
12. Every citizen in this country has the right to have recourse to law. He has the right to move the Court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be indicted from moving the Court for bail by clamping an order of detention. The possibility of the Court of the granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail would act prejudicially to the interest of public order. That has been made clear in Binod Singh v. District Magistrate Dhanbad, 1986 (4) SCC 416 : AIR 1986 S.C. 2090 at 421 where it was observed at page 2094, of AIR :
A bald statement is merely in ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be declared then these should have been made apparent. Enternal vigilance was the part of the authority charged with both law and order and public order is the price which the democray in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens.
Similar view was taken in subsequent decisions in Anand Prakash v. State of U.P. 1990 (27) SCC 67 : AIR 1990 S.C. 516 (SC); Ahmedhussain Shaikhussain alias Ahmed Kalio v. Commissioner of Police, Ahmedabad, 1990 SCC (Cri) 86 : AIR 1989 SC 2274, Surya Prakash Sharma v. State of U.P. 1994 SCC (Cri) 1691 and Dharmendra Suganchand Chelawat v. Union of India, A.I.R 1990 SC 1196 : 1990 Cri. LJ 1232. This Court has also taken a similar view in the cases of Harish Kasana and Atiq Ahmad (Supra) as well as Adesh Kumar v. Karagar Pratapgarh 1997 U.P. Cr. R 647. What has been stressed in all the above cases is that an apprehension of the detaining authority that the accused, if enlarged on bail would again carry on his criminal activities is by itself not a sufficient ground to detain a person under the Act. This ground for detention is, therefore, also not workable in the instant case. The apprehension of the detaining authority that the release of the petitioner on bail shall be prejudicial to the maintenance of 'public order' was totally unfounded.
10. To sum up, it is a case where the murder of Bhaiya Lal Maurya was committed for entirely personal reason and to feedfat private grudge. The case falls sequarely within the domain of 'law and order'. The District Magistrate does not have the jurisdiction to pass an order of detention under Section 3(2) of the Act if the case is merely of breach of 'law and order'. Since it was not a case of disturbance of 'public order' the detention order passed by the District Magistrate was wholly without jurisdiction, uncalled for and untenable. The facts and circumstances of the case further indicate that the detention order was passed by the District Magistrate with a view to frustrate and nullify the right of the petitioner to seek bail under the ordinary law. In a case of breach of 'law and order', a person cannot be deprived of his right to continue on bail if it has been granted to him by merely passing an order of detention which ex facie is illegal and without jurisdiction.
11. With regard to the procedural aspect involved in disposal of the representation made by the petitioner, Sri D.S. Misra painstakingly pointed out that the detaining authority has adopted casual attitude and has exhibited a sense of indifference in dealing with the representation made by the petitioner and on account of inordinate delay caused in the forwarding of the representation of the petitioner to the Central Government, the detention order is vitiated as the mandatory safeguards as envisaged under Article 22(5) of the Constitution of India have been flagrantly violated. Admittedly, the representation of the petitioner was received by the District Magistrate from the Jail Superintendent on 14-6-1999. The District Magistrate sent the same to the State Government after obtaining the necessary comments through a special messenger on 19-6-1999. The State Government received the representation on 21-6-1999 and rejected the same on 23-6-1999. So far as the disposal of the representation by the State Government is concerned, there has been no delay as it has been disposed of with all possible expedition. The shoe really pinches when it comes to the forwarding of the representation by the District Magistrate to the Central Government. As is evident from the counter affidavit filed by Sri Sushil Kumar, Under Secretary, Ministry of Home Affairs, Government of India, representation of the petitioner dated 14-6-1999 was received on 28-6-1999. Sri Avinash Kumar, District Magistrate, Varanasi in his counter affidavit, through has deposed that the representation of the petitioner was sent to the State Government through special messenger on 19-6-1999, he has deliberately avoided to disclose the mode by which the representation was sent to the Central Government. The representation sent by the District Magistrate to the Central Government on 19-6-1999 undoubtedly reached on 28-6-1999. It moved with a snails speed. Had it been sent through special messenger to the Central Government it would have certainly reached the State Government latest by 21-6-1999, if not on 20-6-1999. A Division Bench of this Court in the case of Mohar Ali v. State of U.P. 1999 U.P. Cri. R. 640, has lamented on the conduct of the authorities concerned in sending/forwarding representations in a casual manner. Sending of the representation by registered post received abhorrence of this Court. It was observed that a duty is cast upon the authorities concerned to take every possible step for consideration of the representation of the detenu at the earliest without any loss of time by faster and quicker means which come up in the modern society. The callous attitude of the District Magistrate in the present case is discernible right from the very beginning. It is not understandable under what circumstances he had not been able to forward the representation of the petitioner which he received on 14-6-1999 till 19-6-1999. The District Magistrate sat tight over the representation for a long period of five days. As matter of fact, it is merely a lame excuse to state that the representation was forwarded after obtaining comments of the sponsoring authorities. At the time of passing of the detention order, the District Magistrate is seized of all the necessary documents and the reports of the sponsoring authorities. No further comments in the matter are called for or required. It appears that with a view to cover up the dealy in forwarding the representation to the State/Central Government an usual plea is taken that some time was consumed in obtaining the comments. This Court considers that the exercise of obtaining the comments is nothing but futile. Besides making an unreasonable delay in forwarding the representation of the petitioner to the Central Government, the District Magistrate had exhibited an irresponsible attitude in not sending the representation of the petitioner to the Central Government by quicker modes. It sounds ridiculous that in the modern age, it took about 10 days to reach the relevant documents from Varanasi to Delhi while the distance could be covered in less than 24 hours time. The delay, howsoever long it may be, if properly explained, is not fatal, and conversely, delay, howsoever short it may be, if remains unexplained, is likely to vitiate the detention order. Amazingly, in the present case, the delay in transmitting the representation of the petitioner dated 14-6-1999 to the Central Government where it reached on 28-6-1999, remains totally unexplained.
12. During the course of arguments, a novel tactics appears to have been adopted on behalf of the respondents. Learned A.G.A sat down by stating that since the State Government had decided the representation of the petitioner with expedition and there was no delay on its part, it is not responsible for the delay, if any, caused in the disposal of the representation by the Central Government. Similarly, the learned counsel for the Union of India felt contended by submitting that the representation which was received by Cetral Government on 28-6-1999 had been finally disposed of on 1-7-1999 after it was duly processed and since no delay had occasioned at the level of the Central Government, the blame for delay cannot be laid at its doors and that if there was any delay, it was on the part of the District Magistrate. It is nothing but passing the buck. No body is prepared to take the responsibility in the matter.
13. One cannot lose sight of the fact that Preventive detention is considered so treacherous and such an anathema to civilized thought and democratic polity that safeguards against undue exercise of the power to detain without trial have been built into the Constitution itself and incorporated as Fundamental Rights. Detention of individuals without trials for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law. The law of preventive detention is by itself harsh and the various conditions by which such detention is hedged have to be strictly complied with. The entire machinery of the State which includes the sponsoring authority, detaining authority, state and the Central Governments have to act in cohesion and as has been held in a number of decisions, they all have to act as one unit. Our Constitution does not give a carte blanche to any organ of the State to act sole arbiter in such matters. One cannot lay blame at the door of another authority. Sharing of blame and credit is hardly material when the matter is considered with reference to the personal liberty of an individual. The fact remains that if any one of the branches or section fails in discharging its duty in the manner as mandated by law, the liberty of the individual is curtailed. It is firm law of the land which flows from the provisions of Article 22(5) of the Constitution of India that the representation of the detenu should be dealt with and decided with all possible expedition and if there is an unexplained dealy in the matter the order of detention shall stand vitiated. Without unnecessarily loading this judgement with the case law on the point, this Court would do well to make a reference to a recent decision of the apex Court in the case Rajammmal v. State of Tamil Nadu, 1999 SCC (Cri) 93 : 1999 Cri LJ 826, in which it was observed that it is a Constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words 'as soon as maybe' in Clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. It was further observed that if the delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In the instant rase, if the District Magistrate had forwarded the representation of the petitioner without loss of time, the Central Government would have been in position to dispose it much before 1-7-1999. In our view, the delay caused in sending the represention dated 14-6-1999 to the Central Government, which received the same on 28-6-1999, is highly unreasonable and unconscionable and since there is no explanation for the said delay, it cannot be condoned. The result is that on account of blatant unexplained delay, the detention of the petitioner stands vitiated.
14. To conclude, the detention order is bound to be quashed for the reasons, firstly, that it was a case of merely breach of 'law and order' and not of 'public order' and therefore, the District Magistrate had no jurisdiction to invoke the provisions of Section 3(2) of the Act, and, secondly, there was undue and unwarranted delay which remains unexplained in disposing of the representation of the petitioner, and consequently, the detention order stood vitiated.
15. The petition, therefore, succeeds and is allowed. The impugned order of detention dated 4-6-1999, Annexure 1 to the writ petition passed under Section 3(2) of the Act by the respondent No.l District Magistrate, Varanasi is hereby quashed. The petitioner shall be set at liberty forthwith provided he is not wanted in any other case.