1997(2) ALL MR 303
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VISHNU SAHAI AND A.S.V. MOORTHY, JJ.
Shri Mohan Dattaram Salunke Vs. Shri R. D. Tyagi And Ors.
Criminal Writ Petition No.815 of 1996
11th December, 1996
Petitioner Counsel: Mr. U. N. TRIPATHI
Respondent Counsel: Mr. D. G. BAGWE, Mr. H. V. MEHTA
National Security Act (1980), S. 3(2) - Representation of detenue - Not disposed off for 32 days - No plausible reason for delay - Datewise explanation for delay of 32 days not furnished - Held detention order was liable to be quashed.
Constitution of India Art. 22(5). (Para 4)
VISHNU SAHAI, J. :- By means of this petition preferred under Article 226 of the Constitution of India, the petitioner/detenue has impugned the detention order dated 2-5-1996 passed by the Respondent No.1 in pursuance of the powers vested in him by sub-section (2) of section 3 of the National Security Act, 1980 (No.65 of 1980) read with Government Order, Home Department (Special) No. NSA.2396/1/SPL-3(B) dated the 20th February, 1996, detaining him under the said Act.
2. Since this petition is bound to succeed, on the contention of Mr. Tripathi that there is an inordinate delay by the respondent No.3 in disposing off the petitioner's representation we are not adverting to the prejudicial activities of the detenue as contained in the grounds of detention bearing the same date as the detention order, and which were served on the detenue along with the detention order on the same date (2-5-1996 ). In Ground 9(f) of the petition, it has been pleaded that on 12-6-1996, the petitioner sent a representation to the respondent No.3 and the same was rejected by it, after an inordinate delay of more than 3 months, on 10-9-1996. The aforesaid ground has been replied to in paragraphs 3, 4 and 5 of the return of Shri Alok K. Shrivastava, Deputy Secretary, Ministry of Home Affairs, Government of India. A perusal of the said paragraphs would show that the petitioner's representation dated 12-6-1996 was received by Central Government in the Ministry of Home Affairs on 18-6-1996. After going through the representation, it was felt that some information was required from the Respondent Nos. 1 and 2 and consequently, through a crash wireless message Dt. 19-6-1996, the said information was sought. It was received in the Ministry of Home Affairs of the Central Government of 26-6-1996. The case of the petitioner was put up before the Joint Secretary, Ministry of Home Affairs on 27-6-1996 who, with his comments, forwarded the same to the Special Secretary of the said Ministry on 28-6-1996. The Special Secretary, after processing the matter, put it before the Home Minister of the Government of India on 2-7-1996. The latter considered the case of the petitioner on 5-7-1996 and felt that it was desirable to have the opinion of the Advisory Board before deciding the representation. Consequently, the file was received back in the concerned desk on 11-7-1996. On 12-7-1996, a crash wireless message was sent to the respondent Nos. 1 and 2 to intimate the opinion of the Advisory Board and the same was intimated on 17-7-1996. Accordingly, the representation was again submitted to the Home Minister on 18-7-1996 and the said Minister disposed off the same of 8-9-1996. In paragraph 5 of the return, it has been mentioned that the said representation could not be disposed off on some dates because, they were holidays. Those dates are :-
20th, 21st, 27th, and 28th July 1996; 1st, 3rd, 4th, 10th, 11th, 15th, 17th, 18th, 24th, 25th, and 31st August, 1996; 1st, 5th, 7th and 8th September, 1996.
3. Even if the averments set out in paragraphs 3 to 5 of the return filed by Shri Alok Shrivastava are accepted, in entirety, the painful truth remains that no explanation has been furnished for not disposing off the representation of the petitioner on 19th, 22nd, 23rd, 24th, 25th, 26th, 29th, 30th, and 31st July, 1996; 2nd, 5th, 6th, 7th, 8th, 9th, 12th, 13th, 14th, 16th, 19th, 20th, 21st, 22nd, 23rd, 26th, 27th, 28th, 29th, and 30th August, 1996; 2nd, 3rd, 4th, and 6th September, 1996. The total period comes to 32 days.
4. We are shocked that in a case of preventive detention, for no reason shown in the return, the representation of the petitioner was not disposed off for 32 days. We would like to emphasise that a right to make a representation is a fundamental right which is contained in Article 22(5) of The Constitution of India. We would also like to candidly state that the fundamental rights of a person cannot be slaughtered in such a casual manner. We are at pains to observe that from the return filed on behalf of the respondent No.3, it appears that the Union of India, was wholly oblivious of its constitutional obligation of disposing off the representation at the earliest. We would like to remind authorities which have been fastened with the statutory obligation of disposing off representations in cases of preventive detention that preventive detention means detaining a person without trial. The law permits it in a extreme situation wherein the prejudicial activities of an individual cannot be curbed or contained under the ordinary law of the land, but as the Apex Court through a catena of decisions has laid down that the most stringent constitutional safeguards should be adhered to by the authorities. And one such safeguard is that the representation of the detenue should be disposed off at the earliest and in case the same is not possible then a most cogent explanation, preferably date-wise, should be furnished in the return.
We entertain the solemn hope and trust that the authorities concerned in future, would dispose off the representation of the detenues at the earliest.
Let a copy of this Judgment be sent by the Registrar, Appellate Side, within a period of 1 week from today, to the Respondent Nos. 1 and 4, The Chief Secretary of the Government of Maharashtra, Mantralaya, Mumbai, and the Home Secretary of the Union of India.