Hon'ble Arvind Kumar Tripathi,J.
1. Heard Mr. D.R.S. Chauhan, learned counsel for the petitioner, Mr. Jitendra Sisodia, learned counsel appearing for the State of U.P, Mr. Sachi Kant Misra appearing on behalf of Union of India and perused the record.
2. In the present case continued detention of the petitioner has been challenged on the ground of delay in deciding the representation by union of India.
3. The brief facts of the case is that considering the report of the sponsoring authority for preventive action under the National Security Act, the District Magistrate, Mau, passed the detention order dated 23.12.2009 under Section 3(2) of the National Security Act, in exercise of power under Section 3(3) of the said act, since the activities of the petitioner was found prejudicial to the maintenance of public order. The grounds of detention along-with the other materials was served through jail authorities to the petitioner since he was already in judicial custody at district jail, Mau. The petitioner submitted his representation through jail authorities on 31.12.2009, which was sent, to the office of District Magistrate Mau, on the same day. The representation was forwarded along-with para-wise comment by the District Magistrate, Mau on 7.1.2010, which was received in concerned section of the State Government on 8.1.2010. Date 9.1.2010 and 10.1.2010 were holiday on account of Saturday and Sunday. The representation was sent to the Advisory Board and to the Central Government along-with letter dated 11.1.2010 by the State Government and to the Central Government, the representation was sent through speed post on 12.1.2010.The said representation was examined and detailed note was submitted by Under Secretary, Mr. Prem Shanker to the Joint Secretary. The Joint Secretary and Special Secretary examined the representation on 13.1.2010 and thereafter, it was submitted to the Secretary. The Secretary, State of U.P. (Home) Confidential examined it on 14.1.2010 and submitted the same to the higher authorities for final order. The said representation was rejected by the State Government on 15.1.2010. There was holiday on 16.1.2010 and 17.1.2010 on account of Saturday and Sunday. Thereafter, the rejection of the representation was communicated to the petitioner by radiogram dated 18.1.2010.
4. The aforesaid representation was sent to the Advisory Board on 11.1.2010 and the hearing before the Advisory Board was on 15.1.2010. According to para 5 of the counter affidavit filed on behalf of the State, the Advisory Board on the date of hearing heard the petitioner in person considered his representation and gave its report expressing therein its opinion that there was sufficient cause for detention of the petitioner. After receiving the report of the Advisory Board the detention order was confirmed for a period of 12 months from the date of detention by the State Government. The confirmation order was issued on 11.2.2010 for communication to the petitioner.
5. The said representation was received by the Central Government on the concerned desk on 19.1.2010. There was holiday on 23.1.2010 and 24.1.2010 being Saturday and Sunday. The representation was examined on 25.1.2010 at the level of Deputy Secretary and Joint Secretary. There was again public holiday on 26.1.2010 being republic day. The representation was submitted to the Union Home Secretary, to whom the power was delegated by the Central Government to decide such cases. The representation was rejected on 28.1.2010 and the file was sent back to the Joint Secretary. The file reached in the concerned section on 29.1.2010, thereafter, the wireless message dated 1.2.2010 was sent for communication to the petitioner through District Jail, Mau regarding rejection of the representation.
6. Learned counsel for the petitioner submitted that there was unexplained delay on part of the Central Government in deciding the representation. There was no explanation regarding the delay from 19.1.2010 to 24.1.2010 because according to counter affidavit of the Central Government the representation was received on 19.1.2010 at concerned desk of Ministry of Home affairs. However, the representation was examined and processed only on 25.1.2010. He further submitted that in view of the Article 22(5) of the Constitution of India, the representation of the petitioner was to be decided as expeditiously as possible without any delay and since in the present case the aforesaid delay was not explained hence detention of the petitioner is illegal. He also submitted that though by filing supplementary affidavit the Central Government tried to explain the delay. However, explanation is vague. Hence the same cannot be accepted and there is no explanation in the eye of law.
7. The counsel for the Union of India submitted that the delay was properly explained in counter affidavit and in supplementary counter affidavit filed by Mr. Amar Chand, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi dated 14.12.2010. The representation was received by the Central Government in the concerned desk of the Ministry of Home Affairs on 19.1.2010 through State Government. The dealing assistant was on leave on 20.1.2010, 21.1.2010 and 22.1.2010 during the aforesaid period the section has received a large number of representation relating to detention under N.S.A, specially from U.P. Simultaneously, due to these factors additional staff could not be acquired to deal with his representation. This representation along-with the report were examined and processed on 25.1.2010 and the same was put up for consideration to the Deputy Secretary. There was Holiday on 23, 24 and 26.01.2010 being Saturday, Sunday and Republic Day. Thereafter, the representation was examined and rejected by the Home Secretary on 28.1.2010 hence there is no delay. Whatever time has been taken in disposal of the representation, the same has been explained. He further submitted that representation has to be decided expeditiously and no period has been provided either in the Constitution of India or in the National Security Act for disposal of the representation. In the present case there was no delay in deciding the representation. Hence the present petition is liable to be rejected.
8. Learned counsel for the State submitted that there is no delay at any stage as far as the State Government is concerned in disposal of the representation. The delay has also been explained by the Central Government. There is a criminal history of the petitioner in the present case. From perusal of the grounds of detention it is clear that the petitioner was creating nuisance in the office. He created hindrance in smooth functioning in the office of Research Centre, threatened the official and created panic and terror. The muscle power was used to enter in the premises and effort was made to kidnap the opponent. He was annoyed since the tender of his close associates was rejected.
9. On point of delay learned counsel for the petitioner relied on the following judgements:-
i. AIR 1999 SC page 684 : 1999 SCC (1)417 Rajammal Vs. State of Tamil Nadu ii. 2010 (2) ACR 1252 (LB) Mukesh Choudhary Vs. State of U.P. and others iii. 2010 (1) ACR 332 Shashi Kumar Yadav Vs. Union of India and others iv. 2010 (2) ACR 1255 (LB) Ashok Kashyap Vs. State of U.P. and others v. 2010 (2) ACR 1534 Abhimanyu Singh @ Dampal Vs. Union of India and others vi. 1990 (3) SCC 148 Mahesh Kumar Chauhan @ Banti Vs. Union of India and others vii. AIR 1987 SC 1977 Mohinuddin Vs. District Magistrate, Beed and others viii. 2010 (2) ACR 1789 Sugun @ Peerbux Vs. State of U.P. and others
10. Counsel for the State placed reliance on the following cases:
i. 1993(3) SCC 384 Kamlabai (Smt.) Vs. Commissioner of Police, Nagpur and others ii. 2008 (5) SCC 490 Union of India and others Vs. Laishram Lincola Singh @ Nicolai iii. 2007 (2) JIC 310 (SC) Union of India Vs. Yumnam Anand M. @ Bocha @ Kora @ Suraj and anothers iv. 1991 CRI. L.J. 2058 Kamarunnissa Vs. Union of India and another
11. In preventive action the detention order is based only on subjective satisfaction of the detaining authority. In view of Article 21 of the Constitution of India - "No person shall be deprived of his life or personal liberty except according to procedure establish by law."
12. In view of Article 22(5) of the Constitution of India:- " When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to detenu the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
13. The identical provisions are there in Section 8 of the National Security Act. Hence in view of aforesaid provisions, expeditious disposal of the representation is valuable and constitutional right of the detenu. Hence the authorities, to whom the representation has been addressed, has to consider and decide the representation expeditiously without any unreasonable delay.
14. In the case of Rajammal (Supra) there was unexplained delay from 9.2.1998 till the representation was considered and rejected on 14.2.1998. The representation was sent on behalf of detenu on 13.1.1998, which was reached to the Secretary, Government of Tamil Nadu on 5.2.1998 through the prescribed route. The Minister concerned rejected the representation on 14.2.1998. The remarks were submitted before the Secretary of concerned department on 6.2.1998. Thereafter, file was considered by under Secretary on 9.2.1998 as 7.2.1998 and 8.2.1998 were holiday on account of Saturday and Sunday and sent to Deputy Secretary on 9.2.1998 itself and after considering the same it was sent to the Minister for law for consideration of representation. The law Minister rejected the representation on 14.2.1998 as he was away on camp from Headquarters on the dates in between. That explanation was not accepted by the Apex Court and it was held that explanation from 9.2.1998 to 14.2.1998 was not justifiable explanation.
15. In case of Mukesh Choudhary (Supra) the detenu submitted his representation dated 8.5.2009 through Superintendent, District Jail, Muzaffar Nagar, which was addressed to the Advisory Board, State Government, Central Government and District Magistrate, Muzaffar Nagar and also to Senior Superintendent of Police, Muzaffar Nagar. The District Magistrate rejected the representation on 11.5.2009. The State Government rejected the representation on 18.5.2009 and Central Government also rejected the representation on 15.6.2009. The petition was allowed on the ground of delay in disposal of the representation by the Central Government. According to paragraph 5 of the counter affidavit the representation was examined and processed for consideration on 9.6.2009 and the case of detenu was processed at the level of Under Secretary, Consultant (s), Joint Secretary, who considered the case and placed the same before the Union Home Secretary on 11.6.2009 (who has been delegated power by the Central Government to decide such cases ) considered the case of the detenu and after carefully going through the detention order, grounds of detention, representation of the detenu and parawise comments of D.M./State Government, rejected the representation of the detenu on 12.6.2009. However, in para 6 explanation was that there was only one dealing hand to whom the work was allotted relating U.P., who was on leave for about 20 days on medical ground. The representation was received and disposed off in chronological order. Accordingly, the representation could be processed only on 9.6.2009. In that case it is not clear when the representation was received by the Central Government, which was processed on 9.6.2009 to consider the representation dated 8.5.2009.
16. In case of Shashi Kumar Yadav (Supra) the Division Bench of this Court held that the delay was not adequately and reasonably explained in disposal of the representation by Central Government hence continued detention was quashed. In that case the representation dated 1.4.2009 was addressed to various authorities including the Central Government. It was forwarded by the office of the District Magistrate on 14.4.2009, to the State Government, after obtaining comments from the Police. The State Government has received the representation on 15.4.2009, which was rejected on 21.4.2009 and it was held that the State Government has disposed off the representation of the petitioner with utterpromptness. It was submitted in the affidavit on behalf of the Union of India that there has been some delay in consideration of representation but there was no callousness in the matter. The administrative delay is due to huge voluminous bulk of such cases received from the State of U.P. Two affidavits dated 16.7.2009 and 15.12.2009 were filed and both the affidavits were found unsatisfactory since no particulars were given in the affidavits to show as to when the representation of the petitioner was received by the Central Government from the State Government. Hence the Court was shocked to see such casual approach on behalf of the Central Government. The representation was rejected by the Central Government on 18.5.2009 after lapse of four weeks.
17. In case of Abhimanyu Sing @ Dampal (supra) the petition was allowed on the ground that the representation of the petitioner was not placed before the Advisory Board within time and there was inordinate delay without any proper explanation, which was violation of mandatory provisions of Section 10 of National Security Act.
18. In case of Mahesh Kumar Chauhan @ Banti (supra) it was found by the Hon'ble Apex Court that there was absolutely no explanation regarding the delay in disposal of the representation. In that case representation was made by the petitioner on August 21, 1989 though it was alleged that the representation was submitted on August 18, 1989. It was received in the office on August 23, 1989 and the same was forwarded to concerned sponsoring authority on 25.8.1989. The sponsoring authority sent his comments only on September 11, 1989. Thereafter, the representation along with the comments was processed and put up before the Minister of State for Revenue, who considered and rejected the same on September 15, 1989 subject to the approval of the Finance Minister's Office and the memorandum was issued on September 19, 1989 rejecting the representation. In that case except merely mentioning that the representation was forwarded to the concerned sponsoring authority on August 25, 1989 and the comments from the sponsoring authority was received by the department on September 11, 1989, there was absolutely no explanation as to why such a delay had occurred. Hence it was held by the Hon'ble Apex Court that there was undue and unexplained delay, which was violation of Article 22(5) of the Constitution of India.
19. In case of Mohinuddin (supra) the explanation on behalf of State Government was that Chief Minister remained away from capital and was busy in other affairs at relevant time. In that case the representation was not decided before forwarding the same to the Advisory Board. It was mentioned in para 4 of the writ petition that eight weeks have elapsed since the date of detention of the petitioner but no decision was taken on the representation forwarded to the Home Department. The representation was addressed to the Chief Minister on 22.9.1986 it was considered and disposed off on 17.11.1986. In that case it was held by Hon'ble Apex Court that explanation was not reasonable.
20. In case of Sugun @ Peerbux (supra) decided by the Division Bench of this Court the representation dated 18.9.2009 was received by the Central Government on 1.10.2008. The repeated letters were sent to the State Government on 3.10.2008, 17.10.2008 and 11.12.2008 for getting the criminal history of the petitioner but no criminal history was disclosed. According to the affidavits filed on behalf of State, after receiving the letter from Central Government on 26.11.2008 the necessary formalities were completed and criminal history was sent to the Union of India on 8.12.2008. The explanation was not accepted by the Hon'ble Court and it was observed "We think that this is sheer bureaucratism in dealing with the representation of the petitioner. Moreover, this undue delay has not been satisfactorily explained."
21. In case of Kamarunnissa (supra) it was held by the Apex Court "The contention that the views of the sponsoring authority were totally unnecessary and the time taken by that authority could have been saved does not appeal to us because consulting the authority, which initiated the proposal can never be said to be unwarranted exercise." In that case the representation was submitted on 18.12.1989 and delivered to the jail authority on 20.12.1989, which was dispatched through registered post. 23Rd, 24th and 25th of December, 1989 were non working days. The representation was received by the COFEPOSA unit on 28th December, 1989 and same was forwarded to sponsoring authorities for comments. 30th and 31st December, 1989 were non working days. Similarly, 6th and 7th January, 1990 were non working days. The comments of the sponsoring authorities were forwarded to COFEPOSA unit on 9.1.1990 and it was found that sponsoring authority was not guilty of inordinate delay. The representation was rejected on 16.1.1990. The comments were dispatched on 9.1.1990 and were received by COFEPOSA unit on 11.1.1990. The file was submitted before the Finance Minster on 12.1.1990. Thereafter, 13.1.1990 and 14.1.1990 were non working days. He took decision and rejected the representation on 16.1.1990. It was held by Hon'ble Supreme Court that there was no delay at all.
22. In case of Kamlabai (Smt.) (supra) the representation dated 11.5.1992 was received in the department on 14.5.1992, which was sent to the Home Minister and reply was given to the detenu on 26.5.1992. It was contended that there was delay in deciding the representation by the Central Government. According to affidavit filed on behalf of Central Government wireless message was sent on 19.5.1992 asking certain information and the information was sent on 21.5.1992. Again a wireless message was given on July 13, 1992 and on July 15, 1992, the matter was concluded by the Government of India. The submission was that from June 18, 1992 to July 13, 1992 no explanation has been given regarding the delay. It was observed by the Hon'ble Apex Court as follows "The delay by itself is not a ground which proves to be fatal, if there is an explanation. However, the short delay cannot be given undue importance having regard to the administrative actions. We do not think that the delay in this case is so inordinate as to warrant interference."
23. In case of Union of India and others Vs. Laishram Lincola Singh @ Nicolai, it was contended on behalf of detenu that representation was made on 12.10.2005 and it was received by the Central Government on 31.10.2005. The representation was rejected on 29.11.2005. The High Court accepted the plea that there was unexplained delay. According to counsel for the Central Government the representation was received on 31.10.2005 and immediately letter was written to State Government to give its parawise comments, which was received on 22.11.2005 and immediately after consideration the order of rejection was passed on 29.11.2005, which was communicated on 30.11.2005. The judgement of Madan Lal Anand Vs. Union of India reported in 1990 (1) SCC 81 : 1990 SCC(Crl.)51, Kamarunnissa Vs. Union of India and another reported in 1991 CRI. L.J. 2058 and Birendra Kumar Rai Vs. Union of India reported in 1993 (1) SCC 272 : 1993 SCC (CRI) 324 were considered and it was held by the Hon'ble Apex Court " The challenge to the detention order made on the ground of delay in consideration of the representation made by the appellant has no substance and deserves to be rejected." The order of High Court was set aside.
24. In case of Union of India Vs. Yumnam Anand M. @ Bocha @ Kora @ Suraj and anothers (supra) the representation submitted by the detenu was received by the Ministry of Home Affairs on 3.11.2005 immediately para wise comments were called for from the sponsoring authority. The comments were received on 19.12.2005 and the representation was rejected on 20.12.2005. It was submitted on behalf of detenu that there was unusual delay in deposing of the representation. It was held by the High Court that para wise comments were not required to be called for and it was held that the same was fatal to the detention. The order of High Court was set aside by the Apex Court and appeal filed by the Union of India was allowed.
25. The concept of liberty has been enshrined in Article 21 and 22 of the Constitution of India. It is valuable and constitutional right of the detenu of making representation. The earliest opportunity has to be given to make the representation against the detention order and there is obligation on the authority to whom the representation has been addressed to consider and dispose of the representation as early as possible without unreasonable delay. However, no time has been provided either in Article 22 (5) of the Constitution of India or in the National Security Act. If the representation remains unattended on one table for several days and the explanation is unsatisfactory then the continued detention are liable to be quashed irrespective of the gravity of offence. However the time taken for consideration and disposal of the representation, cannot be decided merely by counting of days, rather it depends on the facts and circumstances of each case. In view of facts of each case, it has to be decided whether there was callousness, indifferent attitude of the authorities and there was no sense of obligation in considering the representation. The authorities are required to dispose of the representation with utmost promptitude as there is a curtailment of life and liberty, which is fundamental right of a citizen but in some cases the same period consumed for disposal of the representation might be fatal and in other cases considering the surrounding facts and circumstances it may be found that there was no unreasonable and inordinate delay in dealing with the representation.
26. In case of K. M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of India, 1991 (1) SCC 476 the Constitution Bench of Supreme Court observed as follows "It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifferent, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal."
27. It was held by the Apex Court in case of Kamlabai (Smt.) (supra) "short delay cannot be given undue importance having regard to the administrative actions." If the time consumed for disposal of the representation is reasonable, and without inordinate delay and further the process for consideration of the representation does not show the callous, indifferent approach of the authorities then whether the delay is short or long, the continued detention will not vitiate.
28. In the present case, the representation was received at the concerned desk of the Ministry of Home Affairs only on 19.1.2010 along-with para wise comments. It was mentioned in the affidavit that dealing assistant was on leave on 20th, 21st, and 22nd January, 2010. Further there was holiday on 23rd, 24th and 26th January, 2010 on account of Saturday, Sunday and Republic Day. The representation was rejected on 28.1.2010. Though the counter affidavit was required to give more details, however, whatsoever facts have been mentioned there is a delay of only three days, which was explained. In the present case, the detention order was passed on 23.12.2009, which is going to expire on 22.12.2009. In view of the facts and circumstances, it cannot be said that there was any callousness or indefferent approach specially when there was short delay of only three days, which was explained. Hence in view of the facts and circumstances, it cannot be said that there was unreasonable delay in disposal of representation by the Central Government.
29. Accordingly, present petition has no force and the same is hereby dismissed.
Order Date :- 22.12.2010 Pramod