JUDGMENT Vishnu Sahai, J.
1. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner-detenu Babban alias Babbu has impugned the order dated 11th June 2002 passed by the second opposite party Mr. Hemant Rao, District Magistrate, Moradabad detaining him under Section 3(2) of the National Security Act.
The detention order along with the grounds of detention which are also dated 11th June 2002 was served on the petitioner-detenu on 11-6-2002 itself and their true copies have been annexed as Annexures 1 and 2 respectively to this petition.
2. We have heard learned counsel for the parties, Since, in our view, this writ petition deserves to succeed on the basis of the averments contained in paragraph-17 of the petition and ground-K of paragraph-21 thereof, and for the decision thereof, reference to the prejudicial activities of the petitioner-detenu contained in the grounds of detention is not necessary, we are not adverting to them.
The averments contained in paragraph-17 of the petition and ground-K of para-graph-21 thereof are that the petitioner-detenu made representation which has not been dealt with promptitude and sense of urgency and this has resulted in violation of Article 22(5) of the Constitution of India.
Mr. Rishad Murtaza, learned counsel for the petitioner-detenu strenuously urged that although representations dated 28-6-2002 made by the petitioner-detenu to the State Government (opposite party No. 1), the Central Government (opposite party No. 4) and the Advisory Board were received by opposite party No. 2, i.e. the District Magistrate, Moradabad on 28-6-2002, there was an inordinate delay of five days on his part in forwarding it to the State Government, He pointed out that the said representations were sent along with para-wise comments of the detaining authority to the State Government with a covering letter on 3-7-2002. Mr. Rishad Murtaza urged that the detaining authority has furnished no explanation for not sending the said representations for a period of five days. He consequently contended that the detenu's continued detention has been rendered bad in law.
3. The averments contained in paragraph-17 of the petition and ground-K of paragraph-21 thereof have been replied to in paragraph 18 of the return of the detaining authority. The said paragraph reads thus:--
"That the contents of para 17 of the writ petition is incorrect, hence denied. In view of, what has already been answered in reply of para 4 of the writ petition in this counter-affidavit about the dealing, handling and disposal of the representation at the level of the detaining authority and therefore, there is no violation of Article 22(V) of the Constitution of India."
Since a perusal of said paragraph would show that the pleading contained in paragraph 17 of the petition has already been answered in reply to the pleadings contained in paragraph 4 it would be necessary to advert to the reply pertaining to said paragraph. Paragraph 4 of the petition has been replied to in paragraph 6 of the return of the detaining authority. The said paragraph reads thus:
'That in reply to the contents of para 4 of the writ petition regarding the representation of the petitioner made by him, it is submitted that the petitioner-detenu made his representation against his detention on 28-6-2002 delivered to the District Jail Authority. Moradabad, which came to the office of the deponent (District Magistrate) on the same day, upon which, one of the representation was addressed to the District Magistrate, which was taken-up and was considered and rejected by the deponent. It is further submitted that so far as the representation addressed to the State and Central Govt. and Advisory Board, it is submitted that parawise comments were prepared by the detaining authorities. All the copies were sent to the State Govt. by a covering letter dated 3-7-2002 along with the representation. In view of above, the representation made by the petitioner against his detention dated 28-6-2002 has been dealt with promptitude at the level of the detaining authority."
3A. A perusal of said paragraph would make it manifest that Mr. Rishad Murtaza, learned counsel for the petitioner-detenu, is absolutely justified in urging that there was an ominous inaction and inexcusable lethargy on the part of the second opposite party in withholding the representation of the petitioner-detenu for a period of five days, i.e. between 28-6-2002 and 3-7-2002. A perusal of paragraph 6 of the return of the detaining authority shows that the detaining authority received the representations of the petitioner-detenu addressed to the State Government (opposite party No. 1), the Central Government (opposite party No. 4) and the Advisory Board on 28-6-2002 and parawise comments were prepared by him and the copies were sent to the State Government on 3-7-2002. Since no date pertaining to the preparation of parawise comments has been mentioned in paragraph 6 of the return of the detaining authority, the presumption is that the said comments were prepared on 28-6-2002 itself.
4. We wish to emphasise that in preventive detention matter, the benefit of any ambiguity, obscurity, vagueness, or lacuna would enure to the advantage of the detenu. In such a situation, in our view, there was unjustified and unexplained delay on the part of the detaining authority in sitting over the petitioner-detenu's representations till 3-7-2002.
5. The Supreme Court in the oft quoted case of Harish Pahwa v. State of U. P., reported in AIR 1981 SC 1126, while dealing with a preventive detention matter, in paragraph 3 has held thus:--
"..... .We would emphasise that it is the duty of the State to proceed to determine representations of the character abovementioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. ..."
6. A perusal of the above passage would show that representation in a preventive detention matter is to be dealt with continuously (unless it is imperative to wait for some assistance in connection with it) till a final decision is taken. In our view a perusal of paragraph 6 of the return of the detaining authority does not spell out that it was absolutely necessary for him to wait and sit over the petitioner-detenu's representation till 3-7-2002.
7. It should be borne in mind that one of the fundamental rights guaranteed to the detenu under Article 22(5) of the Constitution of India is of preferring a representation against the detention order at the earliest opportunity. It is well-settled that implicit in the detenu's aforesaid right is also an obligation on the part of the authority to whom the representation is preferred to dispose of the same at the earliest opportunity. In our view, this obligation has been given a go-by by the detaining authority and consequently, he and State of Uttar Pradesh (opposite party No. 1) have to face the music.
8. In the circumstances, we hold that the continued detention of the petitioner-detenu cannot be sustained in law; and direct that the petitioner-detenu Babban alias Babbu be released forthwith unless wanted in some other case.