JUDGMENT Brijesh Kumar, A.C.J.
1. The above noted two writ petitions are directed against the orders of detention of the petitioners passed under Section 3(3) of the National Security Act by the District Magistrate, Mainpuri. The orders of detention in respect of both the petitioners in the above noted writ petitions have been passed on 20-12-1997. Since the grounds of detention of the two petitioners are same as well as other facts including the points involved, both the petitions have been heard together. However, the only difference between the facts of the two cases is that the representation of the petitioner Pappu alias Ausan Singh in Writ Petition No. 21277 of 1998 was rejected by the Central Government by order dated 24-2-1998; whereas the representation of Rajeev, the petitioner in Writ Petition No. 21293 of 1998 was rejected by order dated 2-3-1998. Both the parties agree that in all other respects the petitions raise similar questions of fact and law. therefore, both these petitions are being disposed of by this common judgment.
2. Learned counsel for the petitioners has challenged the orders of detention and the continued detention of the petitioners on the ground that the petitioners had been in jail at the time when the orders of detention were passed and served upon them and had not moved any application for bail. It was legally not permissible to pass an order of detention in the above circumstances. The next contention is that the representations of the petitioners were sent to the Advisory Board by the State Government after the hearing before the Advisory Board had already taken place; hence their representations were not considered by the Advisory Board. Yet another contention is that the representations of the petitioners have not been promptly decided by the Central Government and the delay is also not explained; hence the continued detention of the petitioners is illegal.
3. The contentions raised on behalf of the petitioners have been countered on behalf of the State. It is submitted that the fact that the petitioners had not moved any application for bail was in the knowledge of the authority passing the order of detention, which fact was taken into account, but there was material to infer likelihood of the petitioners' being released on bail; hence the orders of detention are not bad. So far as the consideration of the representations by the Advisory Board is concerned, it is not denied that it was sent to the Advisory Board after the date of hearing but the Advisory Board had considered the same. The learned State Counsel also contended that there was no inordinate and unexplained delay on the part of the Central Government in disposing of the representations of the petitioner, hence continued detention of the petitioners would not be invalid.
4. We propose first to take up the contention raised on behalf of the petitioners that there was delay in disposing of the representations preferred by the petitioners by the Central Government. For considering this point it would not be necessary to detail other facts which may not be relevant to settle the controversy. The relevant facts and dates, which admit of no dispute, are that the orders of detention were passed and served upon the petitioners in jail on 20-12-1997. The papers were forwarded to the State Government by the District Magistrate. The State Government approved the orders of detention on 29-12-1997. The State Government referred the matter to the Advisory Board on 30-12-1998. The relevant papers and information were also sent to the Central Govenrment on the same day.
5. The petitioners preferred representations to the State Government through the District Magistrate on 7-1-1998. The District Magistrate prepared his comments and forwarded the representations to the State Government along with comments on 12-1-1998. Copies of representations along with comments were also sent to the Advisory Board on 12-1-1998. The hearing was fixed before the Advisory Board two days earlier, that is, on 10-1-1998. The State Government sent the representations of the petitioners to the Central Government with comments on 15-1-1998 which were received by the Central Government on 19-1 -1998. The Central Government, the next day, on consideration of the representations sought some information from the State Government on 20-1-1998. The required information was furnished by the State Government by wireless message, which was received by the Central Government on 11-2-1998. On receipt of this information the Central Government started considering the matter and ultimately rejected the representation on 24-2-1998 in the case of Pappu alias Ausan Singh and on 2-3-1998 in the case of Rajeev.
6. It would also be pertinent to mention here that though the hearing before the Advisory Board took place on 10-1-1998, the report of the Advisory Board was received by the State Government on 5-2-1998. The State Government confirmed the order of detention on 11-2-1998. The State Government sent the report of the Advisory Board to the Central Government, which was received there on 11-2-1998.
7. According to the petitioners the State Government delayed the sending of the information to the Central Government, that is to say, it took about 21 days in furnishing the information sought by the Central Government. The time taken in furnishing the required information is not explained. The Central Government also, after receiving information on 11-2-1998, took another 13 days in disposing of the representation of the petitioner Pappu alias Ausan Singh and about 20 days in the case of Rajeev. The time taken is also not explained. While appreciating the above argument we may advert to averments made in paragraph 6 of the counter-affidavit filed on behalf of the Union of India by Bina Prasad, Under Secretary, Ministry of Home Affairs. The relevant part of paragraph 6 reads as under :
...It is stated that a representation dated 7-1-1998 from the detenu was received by the Central Government in the Ministry of Home Affairs on 19-1-98 through Government of Uttar Pradesh. This representation was immediately processed for consideration and it was found that certain vital information (i.e. opinion of the Advisory Board) required for its further consideration was needed to be obtained from the State Government through a crash wireless message dated 20-1-1998.
It is then averred in paragraph 8 that the required information became effectively available to the Central Government only on 11-2-1998 and the decision was taken by the Central Government on the representation within 10 days excluding February 14, 15, 21 and 22, which were holidays. On the basis of the above averment it is submitted on behalf of the respondents that the representations of the petitioners have been considered promptly without delay.
8. Learned State Counsel, appearing for the respondents, submitted that there was no delay on the part of the State Government in furnishing the information called for by the Central Government. According to him the report of the Advisory Board was also to be furnished to the Central Government. The report was made available to the State Government only on 5-2-1998, therefore, the required information could not be sent prior to 5-2-1998. Immediately on receipt of the report of the Advisory Board the State Government sent it to the Central Government on 11 -2-1998 without delay. From what has been averred in the counter-affidavit filed on behalf of the Central Government and has been submitted before us, it appears that the reason for sending the required information to the Central Government was delayed because of non-availability of the report of the Advisory Board. The question which thus falls for consideration is whether it was necessary for the Central Government to have called for the report of the Advisory Board and to postpone the consideration and disposal of the representations in want of the report of the Advisory Board. It has been submitted on behalf of the petitioners, and rightly, that the disposal of the representation cannot be delayed or postponed awaiting the decision or the report of the Advisory Board. In the present case we find that the Advisory Board had heard the matter on 10-1-1998. The report was forwarded by the Registrar of the Advisory Board to the State Government with the letter dated 4-2-1998 which was received in the State Government on 5-2-1998. The State Government delayed the sending of the report of the Advisory Board by six days. It thought it appropriate to consider the matter itself after receipt of the report of the Advisory Board. The State Government thus confirmed the orders of detention of the petitioners for a period of twelve months on 11-2-1998 and on that day sent the report of the Advisory Board to the Central Government. It is evident that the Central Government sought for the information and the report of the Advisory Board on 20-1-1998. Thereafter it did nothing till the report of the Advisory Board was received on 11 -2-1998. It was undoubtedly futile wait for the report of the Advisory Board. In case the Advisory Board does not hear the matter and forwards its report to the Government to even though representation is ripe for consideration (sic) this would not be a just reason for postpones of consideration of the representation of the detenu. The Government without awaiting for the report of the Advisory Board has to consider the representation and dispose it of at the earliest. In this connection learned counsel or the petitioners has relied upon a decision in the case of Navalshankar Ishwarlal Dave v. State of Gujarat reported in 1993 SCC (Cri) 1126 : AIR 1994 SC 1496 holding that the report of the Advisory Board is not to be awaited for disposal of the representation.
9. Learned counsel for the State has referred to certain decisions of this Court dated 7-11-1998 rendered in Habeas Corpus Writ Petition No. 13655 of 1998 Tarik Mashkur v. State of U.P. and a decision dated 12-11-1998 rendered in Habeas Corpus Writ Petition No. 6925 of 1998 Raju Bhatia v. State of Uttar Pradesh to submit that delay of longer period was held not to be inordinate so as to render the continued detention of the detenu illegal or invalid. We would, however, like to observe that it depends upon the facts and circumstances of each case. A given amount of delay may not be held to be sufficiently explained in one case, but it may be held to be otherwise in the set of facts of another case. As in the present case we are definitely of the view that the Central Government or the State Government has to decide the representation of the detenu irrespective of the fact as to whether the Advisory Board has already heard and decided the matter and has submitted its report or not. The authority concerned, namely, the State Government or the Central Government has not to wait for the result of the hearing before the Advisory Board. It must consider the representation on its own merits without waiting for Advisory Board to decide the matter and wait for its report. The Central Government wrongly waited for the report of the Advisory Board to be furnished to it by the State Government. Thus the reason which has been put forward to explain the delay is neither valid nor cogent. The representation is undoubtedly to be decided at the earliest. Had the Central Government not asked for and waited for the report of the Advisory Board, there seems to be no reason that it would have certainly decided the representations earlier. Postponing the consideration of the representations for a reason not legally admissible will in no way explain the delay. The Central Government got the report of the Advisory Board after about three weeks of receipt of the representations of the detenu. Waiting of this period could be avoided. The State Government also cannot be said to have acted with all promptness as on receipt of the report of the Advisory Board it forwarded the same to the Central Government, which was received there only on 11-2-1998. We are, therefore, of the view that the representations of the petitioners have not been considered and decided by the Central Government with the speed and promptness which is required for disposal of such representations. After receiving the representations on 19-1-1998 the Central Government called for the report of the Advisory Board which was not necessary and took no steps in the matter until the report was furnished to the Central Government. Even after receipt of the report of the Advisory Board it took about 13 days to dispose of the representation in the case of Pappu alias Ausan Singh and about 20 days in the case of Rajeev.
10. We are not impressed by the submission made on behalf of the respondents that the right to make representation to the Central Government is neither a fundamental right nor a constitutional right, hence delay in disposing of the representation by the Central Government would not result in invalidating the continued detention. Relying upon AIR 1984 SC 1095 : 1984 Cri LJ 922 State of U.P. v. Zaved Zaman Khan, it has been submitted that right to make a representation to the Central Government under Section 14 of the National Security Act is only a statutory right. A perusal of the above noted decision shows that it was decided in a different context. A second representation was made by the detenu addressed to the Prime Minister. His representation to the State Government and first representation to the Central Government, both had already been decided. Matter related to COFEPOSA. It was also observed that representation through any source and addressed to whomsoever will not amount to representation. The learned counsel for the petitioners has placed reliance on two decisions of Hon'ble Supreme Court reported in JT 1998 (3) SC 41 : AIR 1998 SC 2212 Smt. Premlata Sharma v. District Magistrate Mathura and Ors. to show that right to make representation is relatable to Article 22(5) of the Constitution. The other case is reported in JT 1996 (2) SC 532 : AIR 1996 SC 2998 Kundan Bhai Dulabhai Shaikh v. District Magistrate, Ahmedabad holding that right to make representation is a constitutional right and the representation under the Act is only an extension of constitutional guarantee enshrined under Article 22(5) of the Constitution. It was also observed that Article 22(5) does not specify the authority to whom representation can be made. It is submitted by the State Counsel the decision in the case of Javed Zaman Khan : (AIR 1984 SC 1095) (supra), is a decision of a Bench of three Judges. It will, however, not be necessary to further go into this question in view of the Full Bench decision in the case of Raj Bahadur Yadav v. State of U.P. 1997 (35) ACC 33 : 1997 All LJ 1975 holding that even though right of representation may be statutory right yet the representation is to be considered and disposed of with all promptitude more particularly since it involves liberty of the citizen as enshrined in Article 21 of the Constitution.
11. Since we have arrived at a conclusion that there has been unexplained delay on the part of the Central Government in considering and disposing of the representations of the petitioners, in our view, it will not be necessary to deal with other contentions raised on behalf of the petitioners.
12. In view of the above discussion, it is held that the continued detention of the petitioners is invalid and illegal. We allow the writ petitions. The petitioners shall be released forthwith in case their detention in jail is not required in any other case.