JUDGMENT
1. This Habeas Corpus Petition has been filed by the Jokhu Lal who is under detention in pursuance of an order dated 14-9-1993 passed under Section 3(2) of National Security Act (hereinafter referred to as the Act) with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies and service essential to the community. The order was served upon the petitioner in jail on the same day. The grounds on which the detention order has been passed were also served on 29-7-1993 and they are as under.
2. The Station Officer of Police Station Mutthiganj intercepted Truck No. UMG 8399 at about 6.30 p.m. on 23-8-1993 at Balua Ghat crossing in which the petitioner along with some other persons was sitting. The Truck was carrying fourteen bags of different sizes. The bags contained electric-wires of aluminium and copper as well as aluminium windows of railway coaches. The recovered articles showed that the same were government property which were not available in market. The weight of the copper wire was 20 Kgs., 20 Kgs., 85 Kgs., 40 Kgs. and 50 Kgs. in separate bags. Similarly the weight of aluminium wire in four bags was 25 Kgs., 40 Kgs., 85 Kgs. and 65 Kgs., respectively. The petitioner Jokhu Lal, Krishna Kumar Vaishya and Lalta Prasad were arrested while two others managed to make good their escape. On interrogation the petitioner disclosed that he along with his companions was cutting electric wires and transformer's wires from Railway Station and they were also indulging in removing the aluminium windows of railway coaches and were sending these articles to Delhi. It was revealed that Crime No. 96/1993, 100/1993, 144/1993 and 139/1993 all under Section 379, IPC had been registered at P.S. Manjhanpur and Crime No. 426 of 1993 at P.S. Sarai Inayat. Crimes Nos. 317/93 and 318 of 1993 both under Section 379, IPC had been registered at P.S. Pokhraj for cutting electricity transmission wires of the Tubewells. On the basis of the recovery memo, a case was registered as Crime No. 480/1993 under Section 41/411, IPC, Section 3/5, U.P. Electric Wire and Transformer (Prevention and Punishment) Act 1976 and Section 3 Unlawful Possession of Railway Property Act, P.S. Mutthiganj on 23-8-1993.
3. The detention order has been passed by the District Magistrate, Allahabad exercising powers under Sub-section (3) of Section 3 of the Act and was approved by the State Govt. on 20-9- 1993. A report was sent to the Central Government under Sub-section (5) of Section 3 of the Act on 26-9-1993. The State Government sent the case before the Advisory Board on 28-9-1993 where the matter was heard on 8- 10-1993. The Advisory Board submitted a report dated 14-10-1993 to the effect that there was sufficient cause for the detention of the petitioner and thereafter the State Government confirmed the detention order for a period of one year under Section 12(1) of the Act on 29-10-1993.
4. The first question to be considered is whether on the facts of the present case an order of detention could be passed against the petitioner. The grounds of detention show that a huge quantity of electricity transmission wire made of aluminium and copper was recovered from the truck in which the petitioner was travelling along with his companions. Besides the electric wires, some part of railway coaches, which are made of aluminium were also recovered. The cutting of electric wire results in disruption of power supply and consequently affects industrial production as well as working of the Tubewells. Electricity is one of the most important and essential requirement of the community. Therefore, there can be no doubt that any stoppage in electricity supply affects supplies and services essential to the community. Similarly Railways are the most important means of communication for the people in the country and the removal of windows of railway coaches affects large number of people who travel everyday by trains. In these circumstances, on the material on record, the District Magistrate had the authority and jurisdiction to pass an order of detention so as to prevent the petitioner from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.
5. Sri D.S. Misra, learned counsel for the petitioner has submitted that there has been an inordinate delay in consideration of the representation made by the detenu and as such his continued detention is illegal. In order to appreciate the contention of the learned counsel, it will be convenient to mention the relevant dates. The petitioner gave a representation dated 26-9-93 to the Superintendent Naini Jail on 28-9-1993 and this representation was addressed to the Home Secretary, U.P. Government. At the end of the representation, it was mentioned that copies be sent to (i) Prime Minister (ii) Secretary, Department of International Security, Ministry of Home Affairs, Government of India and (iii) Governor of U.P. The representation Was received by the District Magistrate on 28-9-1993 who sent it to the S.S.P. for obtaining his report. The S.S.P. sent it to the sponsoring authority on 1-10-1993 and after receiving his report, he prepared his own comment on 2-10-1993 and then forwarded it to the District Magistrate. The District Magistrate after preparing his own comment on 4-10-1993 forwarded it to the State Government on 5-10-1993 where it was received on 6-10-1993. State Government sent the representation to the Advisory Board on 7-10-1993 and on the same day it was sent to the Central Government by post. The Governor of U.P. rejected the representation on 13-10-1993. It is stated in the revised counter-affidavit filed on behalf of the Union of India that the representation was received in the Ministry of Home Affairs through State Government on 13-10-1993 where it was immediately processed and it was found that certain vital information required for its further consideration, needed to be obtained from the State Government and therefore, a message in this regard was sent on 14-10-1993 and a reminder was sent on 1-11-1993. State Government's message dated 1-11-1993 was received by the Central Government on 2-11- 1993 and thereafter the case was put up before Deputy Secretary on 3-11-1993, who after making his comments placed the matter before the Joint Secretary on the same day. The Joint Secretary after considering the case put up the same before the Special Secretary along with his comments on 4-11-1993. The Special Secretary, thereafter, put up the case before the Home Minister on 4-11-1993 and the Minister after considering the whole matter rejected the representation on 8-11- 1993. It has been further stated that the representation along with required information became effectively available to the Central Government on 2-11-1993 and a final decision was taken within six days on 8-11- 1993. In between, 6th and 7th November, were holidays being Saturday and Sunday.
6. The facts mentioned above would show that the representation given by the detenu to the Jail Authorities on 28-9-1993 was rejected within fifteen days by the State Government on 13-10-1993. It cannot, therefore, be urggd that there has been any delay in consideration of the representation by the State Government.
7. Sri Misra has vehemently urged that the Central Government took forty days in finally deciding the representation made by the detenu and on account of inordinate delay in consideration of the representation, there has been violation of fundamental right of the petitioner guaranteed under Article 22(5) of the Constitution and this delay has rendered his continued detention illegal. In support of his submission learned counsel has placed reliance on Virendra Kumar v. Superintendent, 1982 Cri L.I 1 and Gyani Harindra Singh v. State, 1992 LLJ 58, which have been decided by our Court. He has also placed reliance on several Supreme Court decisions namely Khatoon Begum v. State, ; Harish Pahwa v. State, ; Mohin Uddin v. District Magistrate, ; R.D. Barode v. B. K. Saraf, ; Smt. Gracey v. State of Kerala, and Julia Jose v. Union of India, . The law is well settled that Article 22(5) of the Constitution guarantees a fundamental right to a person detained in pursuance of an order made under any law providing for preventive detention that the authority making the order shall afford him an earliest opportunity of making a representation against the order. The affording of earliest opportunity of making representation also means an expeditious and speedy disposal thereof and any unexplained delay would render the continued detention illegal. The representation has to be dealt with utmost speed and a sense of urgency and there should be no inaction or lethargic approach at any stage.
8. Article 22(5) of the Constitution provides that the authority making the detentian order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford the earliest opportunity of making representation against the order. Sub-section (1) of Section 8 of National Security Act provides that the authority making the detention order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than ten days from the date of detention, communicate to the detenu the grounds on which the order has been made and shall afford him the earliest opportunity of making representation against the order to the appropriate government. It is, therefore, clear that Sub-section (1) of Section. 8 has been enacted so as to meet the constitutional guarantee of Clause (5) of Article 22 of the Constitution. Section 14 of the Act provides that the detention order may be revoked or modified by the State Government or by the Central Government if the same has been made by an officer mentioned in Sub- section (3) of Section 3 and also by the Centra Government if the order has been made by the State Government. The provisions of Section 14 (sic) of provisions of Section 11 of the COFEPOSA. It has been held in Amir Shad Khanv. L. Hmingliana, by a majority of two Hon'ble Judges that the power of revocation of the order of detention conferred by Section 11 of COFEPOS A has a nexus with the right of representation conferred on the detenu by Article 22(5) of the Constitution. However, Hon'ble M. M. Punchhi, J. disagreed with the majority on the point that Section 11 should be treated as part of the constitutional guarantee under Article 22(5) of the Constitution. Though the language of See. 14 of National Security Act is pari materiato Section 11 of COFEPOS A but there is one fundamental difference between the two enactments. There is no provision similar to that part of Sub-section (1) of Section 8 of the Act. which lays down that the detaining authority shall afford the detenu an earliest opportunity of making a representation against the detention order to the appropriate government, in COFEPOSA. Regarding furnishing of the grounds, a provision has been made in Sub-section (3) of Section 3. Therefore, Section 11 of COFEPOSA can be treated as part of the constitutional guarantee under Article 22(5) of the Constitution but .the provision of Section 14 of National Security Act cannot be so treated and can only be held to be a statutory right. In State of U.P. v. Javed Jaman.Khan, a Bench of three Hon'ble Judges, after considering all the earlier cases on the point, held as follows in para-13 of the report (at page 925 of Cri LJ):
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 Sub-section (5) of Section. 3 or from the detenu in the form of a petition for 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 the right of making a representation to the detaining authority under Article 22(5) of the Constitution 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, nevertheless the State Government forwarded the same forthwith. The Central Government duly considered that representation which in effect was nothing but a representation for revocation of the order of detention under Section 14 of the Act. That being so it was not obligatory on the part of the Central Government to consider a second representation for revocation under Section. 14.
Again in K. Aruna Kumari v. State of Andhra Pradesh, while considering the submission regarding delay of three months in the disposal of the second representation by the Central Government of a person detained under prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980, which has exactly similar provisions namely Sections 8 and 14, the Court observed as follows in para 9 of the report:
...In any event no period of limitation is fixed for disposal of the application under Section 14 and as we have seen earlier, the second representation filed by Lakshamana Rao, indeed was considered and rejected.
Since in the present case the detention order was passed by the District Magistrate exercising power under Section. 3(3) of the Act, the appropriate government in view of the definition of the term given in Section 2(a) would be the State Government. The representation given by the petitioner on 28-9-1993 was rejected by the State Government, which would be the appropriate government, within fifteen days on 13-10-1993 and thus the petitioner cannot complain of breach of either the provisions of Section 8(1) of the Act or any violation of the constitutional guarantee enshrined under Article 22(5) of the Constitution, the mere fact that the representation was disposed of by the Central Government after forty days would not amount to violation of any constitutional guarantee and the statutory provision namely Section 14 of the Act, for which no limitation has been provided, has been complied with.
9. Learned State Counsel has submitted that where a detention order has been passed by the District Magistrate exercising powers under Sub-section (3) of Section. 3 of the Act and the representation made by the detenu has been promptly considered by the State Government but there is some delay in consideration of the representation by the Central Government on account of late furnishing of information by the State Government, the detention order cannot be held to have been vitiated. In support of his submission he has placed reliance on Satpal v. State of Punjab, in which it was held as follows :.When there is no denial of the right of detenu of making a representation to the Central Government for revocation of the order of detention under Section 11, however, there is an unexplained delay on the part of the State Government in forwarding the representation made by the detenu to the Central Government, the delay by itself is not sufficient to invalidate the order of detention.
In Kamla Bai v. Commissioner of Police, 1993 (3) JT 666 : (1993 AIR SCW 2305) where the disposal of the representation by the Central Government was delayed by more than two months on account of the asking of certain information, it was held that the delay cannot be given undue importance having regard to the administrative action and the detention order was upheld. Even assuming that while making the representation to the Central Government the petitioner was invoking his fundamental right under Article 22(5) of the Constitution, we are of the opinion that in fact there is no such delay which may amount to violation of a constitutional guarantee and the delay, if any, has been satisfactorily explained.
10. In Madan Lal Anand v. Union of India, the Supreme Court after referring to Mst. L.M.S. Ummu Saleema v. B. B. Gujaral, has observed that the time imperative can never be absolute or obsessive and the occasional observations made by the Court that each day's delay in dealing with the representation must be adequately explainedare meant to emphasise the expedition with the representation must be considered and not that it is a magical formula; the slightest breach of which must result in the release of detenu. In Mohd. M. Sulthan v. Joint Secretary, AIR 1990 SC 2222, the representation dated 18-1-1990 was disposed of after thirty three days on 20-2-1990 and it was held that the delay which took place in communicating through post between Jail Authorities and the sponsoring authority and the Central Government, was a proper explanation and it could not be held that there was inordinate delay in consideration of the representation. In Qamarunnisa v. Union of India, the representation made on 18-12-1989 was rejected after 43 days on 30-1-1990 and the explanation offered namely that the Central Government had asked for comments from the sponsoring authority which took time was accepted and it was held that the detention of the detenu could not be held to be illegal on that ground. Recently in Birendra Kumar Rai v. Union of India, AIR 1993 SC 963, where the representation dated 22-12-1990 was disposed of on 25-1-1991 the delay occasioned on account of seeking information from Narcotic Bureau, Varanasi was held to be sufficiently explained and the detention order was upheld. We are, therefore, unable to accept the contention of the learned counsel that on account of any delay in consideration of the representation by the State Government the continued detention of the petitioner has been invalidated.
11. Learned State Counsel has also submitted that the reason why the Central Government after receipt of the representation on 13-10-1993 did not immediately decide the same, namely, that it sought some information from the State had been disclosed in the counter-affidavit filed on its behalf. However, as the counter-affidavit on behalf of the State of U.P. had been filed on 27-1-1994 and the counter-affidavit on behalf of the Union of India had been filed much later on 11-4-1994 and no further opportunity was given to the State Government to explain the delay in sending information to the Central Government, the necessary explanation in this regard could not be brought on record.
12. Learned counsel has next submitted that the petitioner sent a second representation on 14-11-1993 which has not been considered and therefore, his continued detention is illegal. Copy of this representation has been filed as Annexure RA-1 to the rejoinderaffidavit. It may be mentioned here that this representation was sent by Sri Daya Shanker Misra, Advocate by registered post on 15-11- 1993. It has been addressed as follows:
"Sewa me preshit After the aforesaid words, there is a blank. The representation, therefore, does not show as to whom it was addressed. However, in the revised counter-affidavit filed on behalf of the Union of India, it has been mentioned that the said representation was received but as the contents thereof were more or less the same as of the earlier representation dated 28-9-1993 and according to the existing practice it was not considered. We have carefully gone through the second representation and we are of the opinion that no such new plea has been raised therein which may not have been available at the time of the making of the first representation. That apart the grievance of the petitioner is that his second representation has not been considered by the Central Government. As held earlier, the representation to the Central Government is in fact an application under Section 14 of the Act for revocation of the detention order. We do not find any such new fact in the second representation, which in law would be an application under Section. 14 of the Act, the non-consideration thereof can be held to have vitiated the detention order.
13. Having given our careful consideration to the submissions made by Sri Daya Shanker Misra, learned counsel for the petitioner and Sri Mahendra Pratap, learned State Counsel, we are of the opinion that there is no merit in this petition and the same is hereby dismissed.