JUDGMENT J.P. Semwal, J.
1. By this petition, the petitioner Sunil alias Ashiq Ahmad, has challenged the detention order dated 29-9-1992, passed by the Secretary, Home and Confidential Department, State of U.P. (Anne-xure-1 to the affidavit filed in support of the petition) by which the petitioner filed in support of the petition) by which the petitioner has been ordered to be detained for a period of 12 months under Section 12(1) of the National Security Act, 1980 from 12th August, 1992, the date of commencement of detention.
2. The initial detention order was passed by the District Magistrate, Kanpur Nagar on 12-8-1992 (Annexure-2 to the affidavit) on the grounds mentioned in Annexure-3 to the affidavit. In the grounds of detention the alleged activities of the petitioner are set out. On 7-6-92 at about 3.00 p.m., the petitioner along with his associates including Suhel Ahmad, demanded illegally a sum of Rs. one lac on gun point from one Firoz Khan and his brother, who were sitting in the go-down of their house No. 92/6, Bekanganj, and asked them to pay a sum of Rs. 50,000/- instantaneously. When the said money was not paid, the petitioner and his associates, threatened them with dire consequences after firing shots. Again on the same date at about 9.00 p.m., the petitioner along with his associates including Suhel Ahmad, went to the go-down of Firoz Khan, with arms and demanded Rs. 1 lac and also fired several rounds. When the First Information Report was lodged at Police Station Bekanganj, this caused annoyance to the petitioner, who along with his associates, again attacked the reporter at his house by hurling bombs and firing several rounds. On 17-6-1992 at about 2.30 p.m. the petitioner along with his associates including Suhel Ahmad, demanded illegally Rs. 20,000/ - from Arshad from his shop which falls within the jurisdiction of Police Station Bajaria and on his refusal to pay the said amount, assaulted Arshad after dragging him on the road and fired several rounds to create fear and panic.
3. By way of present petition, the petitioner has challenged the detention order on the ground that the reference to the Advisory Board was not made within three weeks from the date of detention as required under Section 10 of the Act and also that the representation of the petitioner was not placed before the Advisory Board: that the detaining authority did not forward the representation to the Union Government and in any case the same has not been considered by the Union of India: that the grounds of detention related to only breaches of law and order; that the detention order has been passed mechanically without application of mind.
4. Counter-affidavit have been filed by Sri Ram Saran Srivastava, District Magistrate Kanpur Nagar, Sri Bansi Dhar Pandey, Upper Division Assistant in confidential Section-6, U.P. Secretariat, Lucknow and Sri N. K. Singh, Deputy Jailor, District Jail Kanpur Nagar, Mohammad Saleem, pairo-kar of the petitioner has filed supplementary affidavit, while Sri Banshidhar Pandey, Upper Division Assistant in confidential Section-6, U.P. Secretariat, Lucknow, has filed supplementary counter-affidavit.
5. In the supplementary affidavit, which was filed on behalf of the petitioner, allegations made in the writ petition were clarified and prayer was made to treat the said supplementary affidavit as part of the main petition.
6. It was asserted that there was inordinate delay in transmission of the representation of the petitioner which was handed over to the Jail authorities on 31-8-1992 and there was also inordinate delay in disposing of the representation of the detenu and due to inordinate delay in disposing of the representation of the petitioner, the provisions of Article 22(5) of the Constitution as well as the provisions of Section 14 of the National Security Act have been violated rendering the detention of the petitioner illegal as well as unconstitutional. It was also asserted that co-detenu, the real brother of the petitioner, namely Suhel Ahmad, had been set at liberty by this Court vide order dated 7-12-1992 on the ground of inordinate delay in the disposal of his representation dated 31-8-1992. It is further stated that the file of the co-detenu Suhel Ahmad as well as file of the present petitioner were dealt with jointly on the same date.
7. We have heard Shri D. S. Mishra, learned counsel for the petitioner and Sri Shivji Mishra, learned A.G.A. Sri D. S. Mishra learned counsel for the petitioner has not advanced any arguments relating to the grounds of detention. He has raised sole contention before us regarding delay in the disposal of the representation of the petitioner. He urged that the representation made on behalf of detenu was given to the Jailor, Kanpur Jail on 31-8-1992 and that the District Magistrate, Kanpur Nagar forwarded the same to the State Government on 1-9-1992, which was received by the State Government on 2-9-1992. This representation was not accompanied with the comments or parawise reply of the District Magistrate Kanpur Nagar. The State Government placed said representation before the Advisory Board on 3-9-1992 and kept on waiting for the comments of the District Magistrate on the said representation. The District Magistrate Kanpur Nagar, sent his comments to the State Government on the said representation on 10-9-1992 which was received by the State Government on 14-9-1992. The State Government considered the representation on 18-9-1992 and on 19-9-1992 and finally the State Government rejected the representation of the petitioner on 23-9-1992 which was communicated to the petitioner through the District Authorities on 29-9-1992.
8. Sri D. S. Mishra, learned counsel for the petitioner has relied on paragraphs 2 and 3 of the supplementary counter-affidavit filed on behalf of the State Government by Sri Bansidhar Pandey (supra). The contention of the learned counsel for the petitioner is that there has been delay in sending the comments by the District Magistrate to the State Government and consequent inaction by the Government on the representation of the petitioner. It was for the first time taken up by the State Government on 18-9-1992 for examination. In the counter-affidavit filed by Sri N. K. Singh, Deputy Jailor, it is admitted that the representation dated nil of the petitioner addressed to the Home Secretary, U.P. and also to Home Secietary, New Delhi, was received by the Jail Authorities on 31-8-1992. It was also urged by the learned counsel for the petitioner that there was inordinate delay in the transmission of the representation to the Central Government as well as inordinate delay in consideration of the representation by the Central Government. The learned counsel has relied on para 2 of the supplementary counter-affidavit filed by Sri Ban-shidhar Pandey wherein it is averred that the copy of the representation along with comments of the detaining authority were also sent to the Secretary, Ministry of Home Affairs, New Delhi by the State Government on 17-9-1992 and the Ministry of Home Affairs, New Delhi vide his telex message dated 20-10-1992 initimated the petitioner through Superintendent, District Jail, Kanpur as well as the State Government that representation was rejected by the Central Government. Sri D. S. Misra, learned counsel for the petitioner emphasised that the representation of the petitioner which was filed on 31-8-1992 was not disposed of by the Government expeditiously and no explanation has been given for inordinate delay in not considering the representation of the petitioner before 18-9-1992. This contention of the learned counsel for the petitioner appears to have force. Further it was urged that the co-detenu Suhel Ahmad, who is real brother of the petitioner, has been set at liberty by this Court on 7-12-1992 on the ground of inordinate delay in disposal of his representation dated 31-8-1992. It was also urged that said Suhel Ahmad was also detained in pursuance of the order dated 12-8-1992 passed by the District Magistrate, Kanpur under Section 3(2) of the National Security Act, and the grounds of detention served on the petitioner as well as the said Suhel Ahmad are similar relating to activities in which the petitioner along with others including Suhel Ahmad was involved. This has not been controverted by the learned A.G.A. appearing for the State.
9. Preventive detention is an exception to the normal procedure. It has been sanctioned and authorised for a very limited purpose under Article 22(2)(b) (22(3)(b)) of the Indian Constitution with good deal of safeguards. Exercise of that power of preventive detention must be with circumspection and care. Our Constitution is supreme which embodies a philosophy of Government and away of life. The purpose of all Governments is to promote the common well being and it must subserve the common good. It is, therefore, necessary to protect individual rights as far as consistent with the security of the society and an atmosphere wherein even tempo of community is least in danger. It is only with this object that the law of preventive detention has come into being, being an exception of the normal procedure. However, there are various procedural safeguards like making known to the detenu within a particular time the grounds of detention and giving him information that he can make representation which should be placed before the Advisory Eoard and the opinion of the Advisory Board should be placed before the Government concerned and thereafter a decision be taken expeditiously.
10. In the present case, the representation was filed before the Jail Authorities on 31-8-1992 and it was not considered till 18-19-9-1992 and was finally rejected on 23-9-1992 by the State Government. Copy of the representation of the petitioner along with comments of the detaining authority were also sent to the Secretary, Ministry of Home Affairs, New Delhi by the State Government on 17-9-1992 and the intimation about the rejection of the said representation was sent to the petitioner by telex message on 20-10-1992.
11. The right of the detenu to have his representation to be considered at the earliest opportunity is a constitutional right. No doubt, there is no fixed or absolute standard of time beyond which the delay will violate the detenu's constitutional right. It depends upon the circumstances of each case. The duty of the Government to consider the representation as soon as it is received is a constitutional safeguard against improper or unjustified exercise of the power of detention. The Hon'ble Supreme Court has held in a number of cases that the obligation of the Government under Article 22(5) of the Constitution is to consider the representation "as soon as it is received by it" because it affects the liberty of a citizen though of course it may not be possible to lay out any hard and fast rule as to the measure of the time taken by the appropriate authority for sudy consideration. The Constitution enjoins the Government with the duty to consider the representation as soon as it is received and any unexplained departure there from this constitutional safeguard will vitiate detention order. The detenu as in the present case taken plea that there was inordinate delay in consideration of his representation which was filed by him on 31-8-1992. In spite of this plea taken by the detenu, no explanation at all has come forth from the Government as to why there was delay in consideration of representation of the detenu. Since preventive detention is a serious inroad on individual liberty and its justification, the prevention of imminent danger of activity prejudicial to the community, the Court would scrutinise delay on each of the stages involved and where there is no explanation for such delay, it would strike down the order of detention on the ground of delay.
12. As already stated the writ petition of co-detenu, on similar ground has been allowed by this Court on account of delay. Considering the facts and circumstances of the case and the delay caused in considering the representation of the detenu/petitioner which was submitted on 31-8-1992, the constitutional right of the detenu/petitioner under Article 22(5) of the Constitution has been violated which has rendered the continued detention of the petitioner bad in the eyes of law.
13. The petition is allowed. The continuance of the petitioner under detention is held to be not in accordance with law. The petitioner Sunil alias Ashiq Ahmad shall be set at liberty unless wanted in any other case.