Court No. - 42
Case :- HABEAS CORPUS WRIT PETITION No. - 445 of 2019 Petitioner :- Shakeel Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Pradeep Kumar Singh,Jitendra Pal Singh Counsel for Respondent :- A.S.G.I.,G.A.,Mukteshwar Upadhyay
Hon'ble Manoj Misra,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard Sri Jitendra Pal Singh for the petitioner, Sri Mukteshwar Upadhyay for respondent no. 1 and learned A.G.A. for respondent no. 2 to 6.
This habeas corpus petition questions the detention of the petitioner (Shakeel) under the provisions of the National Security Act, 1980 (for short “Act, 1980”) pursuant to detention order dated 30.10.2018 with a prayer that he be set at liberty.
The relevant facts are as follows: while the petitioner was detained in District Jail, Pilibhit pursuant to remand orders dated 8.10.2018 issued by Additional Chief Judicial Magistrate-1, Pilibhit in connection with Case Crime Nos. 339 of 2018 and 334 of 2018 concerning Police Station Barkheda, District Pilibhit, he was served with an order of detention dated 30.10.2018 passed by District Magistrate, Pilibhit in exercise of power conferred upon him under Section 3(3) read with Section 3(2) of the Act, 1980. The aforesaid order of detention was approved by the State Government, under section 3(4) of the Act, 1980, on 2.11.2018 and the matter was reported by the State Government, under section 3(5) of the Act, 1980, to the Central Government on 6.11.2018. The matter was referred to the Advisory Board on 5.11.2018. The Advisory Board found sufficient cause for the detention and sent its report to the State Government vide letter dated 7.12.2018 where after the State Government confirmed the detention vide order dated 13.12.2018, initially, for a period of three months, which was extended from time to time, for block periods of three months each and, as per the learned counsel for the petitioner, it is to continue up to the maximum period of 12 months, starting from 30.10.2018. In between, the petitioner submitted his representation against the order of detention on 7.11.2018 in 32 sets at District Jail, Pilibhit addressed to the Central Government; State Government; Advisory Board; and District Magistrate (Detaining Authority). The said representation was forwarded by the Jail Authorities to District Magistrate on 12.11.2018, as, according to the return filed by jail authority, 8.11.2018 and 9.11.2018 were holidays on account of Diwali and 10.11.2018 and 11.11.2018 were Saturday and Sunday. On 13.11.2018, the District Magistrate rejected the representation of the petitioner. The State Government received the representation in its concerned Section on 20.11.2018 along with letter dated 19.11.2018 of the District Magistrate. The State Government thereafter forwarded the representation along with para-wise comments to the Central Government on 22.11.2018. Thereafter, the State Government examined the representation and rejected the representation of the petitioner on 1.12.2018 and the Central Government rejected the representation on 30.11.2018.
The learned counsel for the petitioner has urged that though there are several grounds available for him to raise and press in this petition but as the petition can be allowed on a solitary ground of delay on the part of the District Magistrate in forwarding the representation, he craves for liberty to press the petition on that ground alone.
The contention of the learned counsel for the petitioner is that from the returns filed by the respondents it is clearly established that the representation of the petitioner, dated 6.11.2018, was submitted before the Jail Authorities on 7.11.2018 and it was received in the office of the District Magistrate, Pilibhit on 12.11.2018. The same was rejected by the District Magistrate on 13.11.2018, but it was not forwarded to the State Government earlier than 19.11.2018 as is clear from the counter affidavit filed by the State Government which discloses that the representation of the petitioner was received in the concerned Section of the State Government on 20.11.2018 along with letter of District Magistrate, Pilibhit dated 19.11.2018. It has been submitted that the counter affidavit of the District Magistrate is silent as to when the same was forwarded to the State Government and no explanation whatsoever has been offered by the District Magistrate for the delay in onward transmission of the representation of the petitioner to the State Government for the period between 13.11.2018 and 19.11.2018.
Learned counsel for the petitioner has placed reliance on a decision of this Court delivered by this Bench in Habeas Corpus Writ Petition No. 99 of 2019 dated 15.7.2019, in the case of (Shamshul vs. Union of India and 5 others). In which, on identical set of facts, on the petition of co- accused, where also there was no explanation offered by the District Magistrate for the delay in between 13.11.2018 and 19.11.2018 in forwarding the representation to the State Government, the court after taking a conspectus of number of judgements of the apex court, held that the unexplained delay of 5 days, in between 13.11.2018 and 19.11.2018, in transmitting the representation, had vitiated the continued detention of the petitioner.
The relevant extract of the order passed in the case of (Shamshul vs. Union of India and 5 others) dated 15.7.2019 (supra) is extracted below:-
“We have considered the rival submissions and have perused the record carefully. From the record we find that it is not in dispute that representation of the petitioner, in sufficient number of copies, was submitted to the Superintendent Jail, Pilibhit on 7.11.2018. This representation was forwarded by the District Magistrate vide letter dated 19.11.2018 to the State Government, which was received in the concerned Section of the State Government on 20.11.2018. Though there appears to be explanation for the delay on the part of the Superintendent Jail, Pilibhit in not forwarding the representation to the office of the District Magistrate till 12.11.2018 but there appears no explanation whatsoever, at the level of the District Magistrate, in not forwarding the representation of the petitioner to the State Government in between 13.11.2018 and 19.11.2018. Interestingly, from the counter affidavit of the District Magistrate, it appears, he himself rejected the representation on 13.11.2018. Hence, in our view there was inordinate delay on the part of the District Magistrate in not forwarding representation till 19.11.2018. To explain this delay, the burden was on the District Magistrate to show that there were sufficient reasons for not forwarding the representation till 19.11.2018. But there is no explanation for that in any of the returns.
In Rajammal v. State of T.N., (1999) 1 SCC 417, a three judges bench of the apex court, after noticing the judgment of Constitutional Bench decision of the Apex court in K.M. Abdulla Kunhi v. Union of India (1991) 1 SCC 476, in paragraphs 7 and 8 of its judgement, as reported, held as follows:
7. 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 may be" in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in K.M. Abdulla Kunhi v. Union of India. The following observations of the Bench can profitably be extracted here:
"It is a constitutional mandate commanding the authority concerned 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 detention law concerned, within which the representation should be dealt with. The requirement, however, is that there should not be supine indifference, 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."
8. The position, therefore, now is that if 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 other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned. (Emphasis supplied) Thereafter, the apex court proceeded to notice the facts of the case and held that unexplained delay of 5 days in between 9.12.1988 and 14.2.1988 has vitiated the continued detention. The relevant paragraphs 9 and 11 of the judgment in Rajammal's case (supra), as reported, is being extracted below:
9. What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the Under-Secretary for processing it on the next day. The Under-Secretary forwarded it to the Deputy Secretary on the next working day. Thus there is some explanation for the delay till 9-2-1998. Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14-2-1998. Though there is explanation for the delay till 9-2-1998, we are unable to find out any explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14-2-1998 is not a justifiable explanation when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen.
11. We are, therefore, of the opinion that the delay from 9-2-1998 to 14-2- 1998 remains unexplained and such unexplained delay has vitiated further detention of the detenu. The corollary thereof is that further detention must necessarily be disallowed. We, therefore, allow this appeal and set aside the impugned judgment. We direct the appellant-detenu to be set at large forthwith. (Emphasis supplied) From the decision noticed above, the deducible legal principle is that the duration or the length of the time taken in deciding or dealing with the representation is not what is the deciding factor as to uphold the detention or to declare the continued detention illegal. The deciding factor is the explanation for the delay, if any. In other words, whenever there appears inordinate delay, at any stage of dealing with the representation, it is for the authority concerned to explain the delay. It is not enough to say that the delay was very short. Even longer delay can well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.
It is well settled by a catena of decisions that an unexplained delay in transmission of representation against a preventive detention order violates the fundamental right of a detenue guaranteed under Article 22(5) of the Constitution of India thereby rendering the continued detention illegal (vide Pebam Ningol Mikoi Devi v. State of Manipur: (2010) 9 SCC 618, paras 33 to 37; Abdul Nasar Adam Ismail v. State of Maharashtra, (2013) 4 SCC 435, para 19). The rationale behind the above view is, if the representation is not promptly sent to the authority competent to decide, to whom it is addressed, the phrase "shall afford him (detenue) the earliest opportunity of making representation against the order", as contained in Article 22(5) of the Constitution of India, would be rendered nugatory.
In Abdul Nasar's case (supra) in paragraph 19 of the judgment it was held as follows:
"19. In Pebam Ningol Mikoi Devi, seven days' unexplained delay in forwarding the representation to the Central Government was held to be fatal. In Aslam Ahmed Zahire Ahmed Shaik, the detenu had handed over his representation to the Superintendent of Jail on 16-6-1998 for onward transmission to the Central Government. It was kept unattended for a period of seven days and, as a result, it reached the Government 11 days' after it was handed over to the Superintendent of Jail. The Superintendent of Jail had not explained the delay. Relying on Vijay Kumar v. State of J&K, the continued detention of the detenu was set aside. At the cost of repetition, we must note that in this case, the Superintendent of Jail has not filed any affidavit explaining the delay. Therefore, this delay, in our opinion renders continued detention of the detenu, illegal."
Having noticed the legal position and upon finding that there is unexplained inordinate delay of about 5 days, in between 13.11.2018 and 19.11.2018, in forwarding the representation of the petitioner by the detaining authority to the appropriate government, we are of the considered view that the fundamental right of the petitioner guaranteed under Article 22(5) of the Constitution of India has been violated. Hence, the continued detention of the petitioner has been rendered illegal. The petition is, therefore, allowed. The petitioner shall be set at liberty forthwith, unless wanted in any other case. There is no order as to costs.”
(Emphasis Supplied) The learned A.G.A. though has claimed that there was no delay on the part of the State Government in deciding the representation but has not been able to invite our attention to any paragraph of any of the returns which may disclose that an explanation was offered by the District Magistrate for the delay between 13.11.2018 and 19.11.2018 in forwarding the representation of the petitioner by the Detaining Authority to the appropriate Government.
Further, the learned A.G.A. has also not been able to point out any distinguishing feature of this matter which may distinguish it with facts of Habeas Corpus Writ Petition No. 99 of 2019, which has been allowed by us vide order dated 15.7.2019, noticed above.
As we find that the representation of the petitioner dated 6.11.2018 was submitted with the jail authorities for onward transmission on 7.11.2018 and the same was received in the office of District Magistrate / Detaining Authority on 12.11.2018 and was rejected by him on 13.11.2018 but was sent by him to the State Government vide letter dated 19.11.2018 and that there is no explanation offered in any of the returns for the delay, in between 13.11.2018 and 19.11.2018, on the part of the detaining authority in forwarding the representation of the petitioner, dated 6.11.2018, addressed to the State Government; the Central Government; and Advisory Board, keeping in mind the law laid down in Habeas Corpus Writ Petition No. 99 of 2019 in identical set of facts, we are of the considered view that the continued detention of the petitioner has been rendered illegal for the same reasons as found in the order passed in Habeas Corpus Writ Petition No. 99 of 2019, extracted above.
The habeas corpus petition is, therefore, allowed. The petitioner shall be set at liberty forthwith, unless wanted in any other case. There is no order as to costs.
Order Date :- 30.7.2019 Saurabh